Gambo Musa V. The State (2006)
LawGlobal-Hub Lead Judgment Report
R.D. MUHAMMAD, J.C.A.
This is an appeal against the judgment of the Borno State High Court holden at Maiduguri presided by Ogunbiyi J., (as he then was) in Charge No. M/3C/89. The appellant was charged with the offence of culpable homicide punishable with death. The charge reads:
“That you Gambo Musa on or about 25th day of July, 1988 at Gwange II Primary School in Gwange Ward in Maiduguri Metropolitan Area did commit culpable homicide punishable with death in that you caused the death of Umar Alhaji Idrisa by doing an act to wit, you brought out a knife and stabbed Umar Alhaji Idrisa on the chest when you knew or had reason to know that death was the probable and not only a likely consequence of your act and thereby committed an offence punishable under section 221(b) of the Code”.
To prove their case the prosecution called five witnesses and tendered three exhibits. The appellant testified on his own behalf. In a well considered judgment, the trial court found the appellant guilty as charged and he was sentenced to death.
Aggrieved and dissatisfied with the judgment of the trial court, the appellant has appealed to this court. Initially only one ground of appeal was filed. With the leave of this court one additional ground of appeal was filed. We now have two grounds of appeal. The grounds of appeal read:
- The judgment is unreasonable and unwarranted and cannot be supported by evidence having regard to the evidence adduced at the trial.
- The learned trial Judge erred in law when he failed to properly consider the appellant’s defences of provocation and self-defence when it is apparent in the evidence and in the findings of the trial court that there was a quarrel between the appellant and the deceased which resulted into a fight. The failure by the court to properly consider appellant’s defences has occasioned a miscarriage of justice.
Particulars of Error
The learned trial Judge erroneously held in page 13 lines 28-31 of the record that “PW 1 and PW2 gave evidence as eye witnesses of the incident that happened. In their evidence none of them gave an indication of either any exchange of words or fight between the accused and the deceased or any one of them”.
The appellant filed his brief of argument. The State, i.e. the respondent, failed to file any brief. With the leave of the court the appeal was heard based on the appellant’s brief alone. Two issues were formulated in the appellant’s brief for the determination of the appeal. They are –
“1. Whether the prosecution was able to prove its case beyond all reasonable doubt, having regards to the prosecution’s evidence at the trial?
- Whether the trial court acted properly when it rejected appellant’s defences of provocation and self defence?”
Before considering the learned counsel’s submissions and the submissions in the appellant’s brief let me state, albeit briefly, the facts that gave rise to this appeal. The case of the prosecution as narrated by PWI – Jinadu Saidu and PW2 – Garba Yakubu was that it was on a Sallah Day and the three of them i.e. PW 1, PW2 and the deceased- Umaru Alhaji Idrisa were resting in a classroom at Gwange II Primary School, Maiduguri when they saw the appellant coming to the class. When the appellant entered the classroom, the appellant asked to know who they were. The appellant then brought a knife and stabbed Umar Idrisa on the chest as a result of which Umar Alhaji Idrisa died.
The appellant’s case however was that he acted in self-defence. It was the deceased who first attacked him with a knife. It was in retaliation that the appellant seized the knife and stabbed the deceased with it.
In the appellant’s brief, it was submitted that the prosecution did not prove its case beyond reasonable doubt as provided in S. 138 of the Evidence Act, 1990. In support of the submission we were referred to the case of Ahmed (Alias Eza) v. The State (2001) 18 NWLR (Pt.746) 622, (2002) I SCM 56. It was also submitted that out of the five witnesses called by the prosecution, none positively supported the prosecution’s case, particularly PW1 and PW2 who gave nothing but contradictory evidence as to what exactly happened on the fateful day. After quoting from the testimony of PW 1, it was submitted that PW 1 was confused, particularly considering he was only fifteen years old when he testified. After quoting from the testimonies of PWs’ 1, 2 and 4. It was submitted that their evidence was nothing but a bundle of contradictions and that their evidence should be rejected because of the contradictions. We were then referred to the following cases:- Iko v. The State (2001) 14 NWLR (Pt. 732) 221, (2001) 11 SCM 112; and Dogo v. The State (2001) 3 NWLR (Pt.699) 192, (2001) 2 SCM 39.
From a plethora of decided cases, it is now settled beyond controversy that to secure a conviction on a charge of culpable homicide punishable with death, the prosecution must prove: –
(a) That the death of a human being has actually taken place.
(b) That such death has been caused by the accused.
(c) That the act was done with intention of causing death.
(d) That the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act.
The evidence relied upon to establish a charge of culpable homicide may be direct or circumstantial. Whatever the evidence is, whether direct or circumstantial, it must establish the guilt of the accused person beyond reasonable doubt. The onus of proving the guilt of the accused person beyond reasonable doubt is always on the prosecution and as a general rule never shifts and misdirection on the onus of proof is fatal unless it can be shown that on a proper direction the result would be the same. See: Aruna v. State (1990) 6 NWLR (Pt. 155) 125; Ozaki v. The State (1990) I NWLR (Pt. 124) 92.
Where there are material contradictions and inconsistencies in the evidence of the prosecution, the accused is entitled to be given the benefit of doubt so created as a result of the inconsistencies. See: Onubogu v. State (1974) 9 SC 1; Nwabueze v. State (1988) 4 NWLR (Pt. 86) 16; Boy Muka v. The State (1976) 9 – 10 SC 305 and Dogo v. State (2001) 3 NWLR (Pt 699) 192. In Onubogu v. State (supra) Fatayi-Williams .JSC (as he then was) stated at page 20:
“We are also of the view that where one witness called by the prosecution in a criminal case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation, such as showing that the witness is hostile, before they can ask the court to reject the testimony of one witness and accept that of another witness in preference for the evidence of the discredited witness. It is not competent for the prosecution which called them to pick and choose between them. They cannot, without showing clearly that one is hostile witness, discredit one and accredit the other (see Summer and Leivesley v. Brown & Co. (1909) 25 T.L.R. 745). We also think that, even if the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial Judge, as was the case here, to provide the explanation. One of the witnesses should furnish the explanation and thus give the defence the opportunity of testing, by cross-examination, the validity of the proffered explanation”.
It should be noted that the principle enunciated above, by the Supreme Court, comes into play only where there are material contradictions in the evidence of witnesses for the prosecution. What amounts to material contradictions depends on the circumstances of each case. See: Nasamu v. The State (1979) 6-9 SC 153.In the instant case it is my considered opinion that there are no material contradictions in the testimonies of PW 1 and PW2 when their evidence is taken as a whole without any legal technicalities. The question as to whether the appellant has left the scene of the crime after or before PW 1 left to report to the deceased mother is not material to the issue at stake. What is at stake is who stabbed the deceased to death? PW 1, Jinadu Saidu, in his testimony stated:
“On Sallah day at about 9.00a.m I was sent to give out Sallah meat in a particular house. When I returned after delivering the meat I met Dmar Idrisa the deceased and Uba Garba in their class in Gwange Ward, Maiduguri. When I met them I stayed with them. Uba Garba was sitting on the window while the others and myself were playing. Myself, i.e. Jinadu Saidu, then Uba Garba and Umar Idrisa the deceased. There were three of us in total, while Uba Garba was on the window, Umar Idrisa and myself were also around in the class. While Uba Garba was sitting on the widow, Uba Garba saw Gambio Musa the accused coming. Uba Garba then told us to hurry up and leave that place or else the accused would demand some money from us when he meets us. When Uba Garba said this I observed and saw the accused also the deceased saw the accused coming. When the accused came in he asked us “who are those?” from there I saw the accused removed a knife (sic) his waist on the right side and stabbed Umar ldrisa with the knife. I saw the accused stab Umar Idrisa, the deceased with a knife. On seeing this we took to our heels i.e. Uba Garba and myself while the deceased was left with the accused.
We took to our heels because the accused said he would be next at us. I went and reported the matter to the deceased’s mother”.
PW2, Garba Yakubu in his testimony stated:
“On a Sallah day we escorted one Jinadu, myself, the deceased and Jinadu, we took some Sallah meat to one house. On our return we sat down in one class resting. It was in one Primary School at Gwange II Primary School. I sat down on a window in the class, while I sat down on the window, Umaru the deceased and Jinadu were inside the classroom. At that time we were awaiting our friends to come for us to go to the Zoo. As we were in the classroom we saw Gambo the accused and Abba coming towards the classroom where we were. I was the one who saw the accused and Abba coming towards us. Then I informed my colleague the deceased and Jinadu that we should leave the class. On the arrival of the accused and Abba he, Abba held my shirt at the sleeve. The accused Gambo Musa entered the class through the door. The accused acquired to know why we were there. From there, the accused brought out a knife from his waist and stabbed the deceased Umaru Alhaji Idris. As far as I know there was no reason why the accused should have stabbed the deceased who did not say or do anything to the accused.”
These are eye witnesses accounts of what happened at Gwange II Primary School, Maiduguri. PWs’ 1 and 2 were there when the incident happened and they positively identified the appellant as the person who stabbed Umar Alhaji Idrisa to death. In his judgment the learned trial Judge believed these two witnesses. This is what he said:
“In my view and from all indications and having regard to the manner of demeanor of the prosecution witnesses 1and 2 who were eye witnesses to that which happened, I have no doubt whatsoever in my mind that they are credible witnesses of truth and who knew exactly what they were saying as that which happened and which they saw on the day of the incident. For example the said witnesses were not shaken even under cross-examination but stood firm to their evidence”.
The above is a finding of fact by the trial court. It is now well settled, where in a criminal case, a finding of fact is supported by evidence believed by the trial court, an appellate court will be reluctant to interfere with such findings unless it is evidently perverse. See: State v. Aigbangbee (1988) 3 NWLR (Pt. 84) 548; NWOSII v. State (1986) 4 NWLR (Pt. 35) 348; Saidu v. State (1982) 4 SC 41 and Gufwat v. State (1994) 2 NWLR (Pt. 327) 435. In the instant case the appellant has not established any compelling reason or evidence to show that the finding of the learned trial Judge was perverse as to warrant us interfere with the said finding.The learned trial Judge is therefore right in believing the evidence of PW 1 and PW2 as there is no doubt whatsoever that they were eye witnesses to the killing of the deceased. The trial Judge is also right in holding that the prosecution has proved its case beyond reasonable doubt. Proof beyond reasonable doubt, it should be noted, does not mean proof beyond the shadow of doubt. In Lori v. The State (1980) 8-11 SC 81 the Supreme Court stated:
“The basic necessity before a verdict of guilt in a criminal charge can be pronounced is that the jury are satisfied of the guilt of the accused beyond all reasonable doubt. Proof beyond reasonable doubt as Denning J., (as he then was) stated in Miller v. Minister of Pensions (1947) 2 All ER 372, 373:
Does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice.”I therefore resolve the first issue against the appellant. I hold that the prosecution has proved its case beyond reasonable doubt.
I now come to the second issue i.e. whether the trial court acted properly when it rejected appellant’s defences of provocation and self-defence. In the appellant’s brief various findings in the trial court’s judgment were quoted and it was submitted that the findings of the trial court was nothing but a bundle of contradictions and that the findings were speculative. It was submitted that a court of law must always make findings upon the facts before it. In support of this submission the case of Mohammed v. State (1997) 1 NWLR (Pt.483) 536 was cited. It was further submitted that where there was doubt as in this case, it must be resolved in favour of the appellant. It was also submitted that the trial Judge was wrong to have rejected the appellant’s defence of provocation when it was apparent that the appellant was stabbed by the deceased exhibits A and C i.e. the appellant’s extra-judicial statements to the police were referred to and his oral evidence in court and it was submitted that the deceased provoked the appellant by challenging and abusing the appellant. We were then referred to the following cases: Oghor v. The State (1990) 3 NWLR (Pt. 139) 484; Paul Ahmed v. The State (1975) All NLR 187; and Audu Yalwa & Ors. v. The State (1970) 1 All NLR 288. It was alleged in the brief that the trial Judge refused to consider the question of provocation and general right raised by the appellant. We were urged to reverse the judgment of the lower court and enter a verdict of discharge and acquittal as the judgment of the trial court was perverse as the prosecution failed to prove its case beyond reasonable doubt as required by law.
It is trite law that in a criminal trial, a court is bound to examine and consider all possible defences from the evidence in favour of an accused person. See: Umani v. State (1988) 1 NWLR (Pt. 70) 274. The defence of provocation is set out under section 222(1) of the Penal Code. It provides:
“Culpable homicide is not punishable with death if the offender whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”
Provocation has been defined as:
” … Some act, or series of acts done by the dead man to the accused which would cause in a reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her, for the moment not master of his mind.” Per Devlin J., in R. v. Duffy (1949) 1 All ER 932.”
Under section 222(1) of the Penal Code, provocation must be grave and sudden as to deprive the accused of the power of self-control. It must be established not only that the act was done under the influence of some feeling which took away from the person doing it all control over his action but that, that feeling had an adequate cause.
In Mancini v. D.P.P. (1942) AC 1, Lord Simon L.C. stated:
“It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes death The test to be applied is that of the effect of provocation on a reasonable man… so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance:
(a) To consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool;
(b) To take into account the instrument with which the homicide was affected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, and the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter”.
The defence of provocation is available only where the provocation is grave and sudden and must be such as to deprive the accused the power of self-control. The act of killing must have been done in the heat of passion before there was time for temper to cool and the retaliation must be proportionate to the provocation. See: R. v. Blake (1942) 8 WACA 118. The accused must also have a reasonable belief that his life is in danger and the quality of force used by him must be the same as that from which he defends himself. See Okonji v. State (1987) 1 NWLR (Pt. 52) 659.It is not true as alleged in the appellant’s brief that the learned trial Judge did not consider the defences of provocation and self-defence. The learned trial Judge has extensively considered the defences available to the appellant and made some specific findings. With regards to the defence of provocation, the learned trial Judge exhaustively considered the evidence of the appellant and his statements to the police i.e. exhibits A and C. She also considered the evidence of PW 1 and PW2 and came to the following conclusion:
“PW 1 and PW2 gave evidence as eye witnesses of the incident that happened. In their evidence none of them gave an indication of either any exchange of words or fight between the accused and the deceased or anyone of them. In their testimony the accused for no good reason stabbed the victim with a knife on his chest. This they both confirmed took place in their presence. Against this testimony there is a need to weigh that of the accused and his statements exhibits A and C. In exhibit A accused said the deceased insulted him. The law as provided under section 222(1) of the Penal Code requires that to sustain this defence the provocation must be grave and sudden so as to temporary deprive the accused of the power of self-control. The nature of insult by the deceased on the accused was not spelt out by him. In my view the same cannot be said to be grave and sudden; moreso when it is considered in the light of the further stating by the accused in his statement exhibit A that the insult then took them to a rage of quarrelling as far as fighting themselves, thus giving rise to the use of the knife. There does not seem to me to be any evidence of grave and sudden provocation as contemplated by the defence counsel.
Further still, with reference to exhibit C which was recorded on the day of the incident there was no mention by the accused of any use of insultive words on him by the deceased. While exhibit C was recorded on the 25/7/88 the day of the incident, exhibit A was recorded on the 29/7/88 four days after it happened. The indication of provocation in exhibit A in my view is an afterthought.”
I agree with the above findings. As borne out by the records the appellant, clearly, was not a victim of provocation which was grave and sudden as to deprive him of the power of self-control.
The learned trial Judge has carefully reviewed the evidence of PW 1 and PW2 vis-a-vis the defence put forward by the appellant. There is nothing perverse in the finding as the finding is amply supported by the totality of the evidence adduced before the trial court. This court cannot interfere with the finding. I therefore hold that the defence of provocation is not available to the appellant. I now come to the issue of self-defence. Section 222(2) provides:
“Culpable homicide is not punishable with death if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.”
For this defence to be available to an accused person, the accused must have acted in good faith without premeditation and without intention of doing more harm than necessary and the act of the deceased must be sufficient to excite in the accused reasonable apprehension of imminent danger of death or grievous harm to justify using appropriate defence. In Akpan v. The State (1994) 9 NWLR (Pt. 368) 347. The Supreme Court stated at page 363 as follows:
“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault. The force which may be used, in such circumstances, must not be intended, and should not be such as is likely, to cause death or grievous harm. If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.”
The learned trial Judge considered this defence and came to the following conclusion:
“From the statement of the accused exhibits A and C and also his evidence before this court, his stabbing of the deceased was pursuant to his (accused) seizing the knife from the deceased and following which be, the accused, used same to stab the deceased on his chest.
In my view, from the circumstances of the case, even if the accused was acting in self-defence, at the point when he seized the knife from the deceased he was no longer under the apprehension of imminent danger or harm or death with him having disarmed the deceased and giving rise to stabbing him on the chest which amounted to using harm more than necessary. This defence in my view is also not available to the accused as argued by his counsel.”
It is my considered view that the above finding is correct. This is moreso if we take into consideration the evidence of PW1 and PW2, who were eye witnesses to the incident and whom the learned trial Judge believed. They both testified that the deceased neither said a word to the accused nor touched the accused, when the accused stabbed the deceased. I too hold that the defence of self-defence is not available to the appellant. Section 222(4) provides:
“Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.”
Before this subsection could come into play, the following must be satisfied:
(a) There must be a sudden fight in the heat of passion.
(b) There must be absence of premeditation.
(c) The accused must not take undue advantage or acted in a cruel or unusual manner.
The learned trial Judge after considering the evidence adduced before the court said:
“I hold the view that the accused person from all indications must have made up his story of a sudden quarrel alleged, which must have been an after thought and a lie deliberately to make up a defence. The law is clear on uncontradicted or unshaken evidence as that laid down in the authority of Okosi v. State supra ….”
Taking into consideration the totality of the evidence adduced coupled with the fact that the learned trial Judge who watched the demeanor of PW 1 and PW2 and held that they gave credible evidence, the above finding cannot be faulted. It therefore follows that this defence will not avail the appellant.
My answer to the second issue is therefore in the affirmative. The trial court acted properly when it rejected the appellant’s defences of provocation and self-defence.
I find no merit in this appeal and I dismiss it for the reasons given above. The conviction and the sentence of the appellant are hereby affirmed.
Other Citations: (2006)LCN/2033(CA)
