Idrisu Ahmed V. The State (1998)
LAWGLOBAL HUB Lead Judgment Report
WALI, J.S.C.
With the leave granted by the High Court of Justice. Kogi State and under the hand of Umoru Eri, Chief Judge, the following charge was preferred against Musa Yusufu and Idrisu Ahmed:
“That you Musa Yusufu and Idrisu Ahmed on or about the 7th day of December, 1993 at Obehira in Okene Local Government Area within the Kogi State Judicial Division committed culpable homicide punishable with death by causing the death of Anda Ali by doing an act to wit: you shot the said Anda Ali in the neck with a locally made gun with the intention of causing his death and you thereby committed an offence punishable under section 221 (a) of the Penal Code read along with section 79 of the same Code.”
The two accused persons being referred to as 1st and 2nd accused were arraigned before Umoru Eri, the learned Chief Judge, and each pleaded not guilty to the charge. The trial proceeded with the prosecution calling four witnesses and putting in evidence a number of exhibits in proof of their case while both the 1st and the 2nd accused gave evidence in defence with 1st accused calling one witness.
At the conclusion of the trial the learned trial Chief Judge made a thorough consideration and evaluation of the evidence adduced before him and found the two accused persons guilty as charged, convicted and sentenced them to death accordingly.
Dissatisfied with the decision of the trial court the 2nd accused, Idrisu Ahmed appealed against his conviction and sentence to the Court of Appeal, Abuja Division. His appeal was dismissed and the conviction and sentence passed on him were affirmed.
Aggrieved by the dismissal of his appeal by the Court of Appeal, Abuja the 2nd accused has now further appealed to this court.
It appears that the 1st accused did not appeal against the judgment of the trial court to the Court of Appeal, Abuja Division.
The simple facts involved in this case are as follows:
On the evening of 12th December, 1993, between the hours of 7.30p.m-8p.m. at Obehira in Okene Local Government Area of Kogi State, the 1st and the 2nd accused after raising an alarm of “thief! Thief!” against one Anda Ali, now deceased, the latter ran into the compound of James Averehi (P.W.1) and hid himself in a room and locked the door. The 1st and the 2nd accused pursued Anda Ali into the compound of James Averehi, broke the door open of the room he was hiding and dragged him out. After giving Anda Ali beating with a horse whip, James Averehi and his wife pleaded with them to leave the deceased. They both ignored the plea. The accused pinned down their victim to the ground and the 1st accused holding a local made pistol shot the deceased in the neck resulting in his instantaneous death on the spot. After committing the offence, the 1st and the 2nd accused ran away. Mr. James Averehi reported the incident to the police on the same day. The two accused persons were later arrested, interrogated and charged to court.
Henceforth, the 2nd accused who is the appellant in this appeal, shall be referred to simply as the appellant. Parties filed and exchanged briefs of argument.
In the appellant’s brief and of the 3 issues filed therein issue 1 was abandoned and struck out. The two remaining issues are as follows;
“2. Whether the courts below were right in basing their decision on the evidence of P.W. l inspite of apparent contradictions and twists in the course of the trial.
- Whether it was proper for courts below to prefer the case of the prosecution to that of the defence when each of the cases stood parallel and uncontradicted by cross-examinations.”
In the respondent’s brief the following 3 issues have also been raised:
“2.1. Whether the Court of Appeal was right In holding that the offence was proved beyond reasonable doubt before the trial Chief Judge. (Ground 1).
2.2. Whether the court below was right when it held that there were no contradictions in the case of the prosecution. (Ground 2).
2.3 Whether the cases of the prosecution and the defence stood parallel even after the court below disbelieved the defence. (Ground 3)”
Having carefully examined the two sets of issues identified in the respective briefs of the appellant and the respondent, I am satisfied that the 3 issues raised in the respondent’s brief are adequately covered by the two issues in the appellant’s brief and which I consider comprehensive enough for the determination of this appeal. I shall therefore adopt the two issues raised in the appellant’s brief for the purpose of determining this appeal. And since the issues are inter-related and basically deal with facts I shall take and consider them together.
Issue 2: This covers issues 1 and 2 of the respondent. Under this issue, it is the contenton of learned counsel for the appellant that both the trial court and the Court of Appeal were wrong to have relied on the evidence of P.W.1 to convict the appellant since the evidence is contradictory. Learned counsel referred in particular to the part of P.W.1 ‘s evidence where he said
“Accused I left his slippers while the cap being worn by accused 2 got hung to one of the sticks by the roof of the house.”
and then submitted:-
“The above quotation is a clear evidence of identification. If the 1st accused was wearing slippers at the time of the pursuit and the 2nd accused was wearing a cap at the material time, the identification must have been ideal. But accused 2 who was supposed to be the owner of the cap, told the court that on the faithful (sic) day he wore no cap and did not enter into the P.W.1’s compound/house. This claim by the 2nd accused was authenticated by the evidence of the accused at page 34 where he claimed the cap supposedly worn by the 2nd accused person as the cap he was wearing that night.”
He argued that a pair of slippers is not the same as a pair of shoes which P.W.3 said he collected from the scene of incident and for that reason, he submitted, the appellant was not properly identified by P.W.1, the only eye witness to the incident called by the prosecution; and that the benefit created by the contradiction in the prosecution’s evidence ought to have been given to the appellant. He cited and relied on the decisions in Oje v. The State (1972) 11 SC 23 and Njoku v. The State (1996) 7 SCNJ 36.
On issue 3 learned counsel for the appellant contended that the legal guide to the court in any given trial is the cross-examination and that testimonies not tested and discredited through that process sound straight forward, convincing and apparently credible and submitted in his brief as follows:
“With respect, the counsel on both sides did not so much assist the court. It is with the assistance proffered by the effect of cross-examination that the court can judiciously come to a considered opinion to believe one side or the other, to prefer one side’s case to the other. It is my humble submission that where the case of the prosecution remains uncontradicted by cross-examination. the court is tempted to believe it. Similarly, where the case of the defence stands uncontradicted, the court even, if it does not believe it is duty bound to appreciate that a doubt has been thrown into the prosecution’s case.”
Learned counsel finally submitted “that with the parallel stands of the case for the prosecution and the case for the defence, the court below and the trial court had no proper bases for preferring one side to the other …. ” and urges this court to discharge the appellant.
Learned counsel for the respondent in his reply to the submissions by learned counsel for the respondent on issue 2 submitted that there are no material contradictions in the evidence of P.W.1 and that of P.W.3 and P.W.4 to affect the prosecution’s case. He said the contradiction between shoe and slippers is not fundamental as to affect the identity of the appellant and that what ever the appellant wore on his feet that day, be it shoes or slippers could not amount to material contradiction. He cited and relied on the following cases to buttress his submissions -Asariyu v. The State (1987) 4 NWLR (Pt.67) 709;( 1987) 11-12 SCNJ 125 at 130; Ogbodu v. The State (1987) 2 NWLR (Pt. 54) 20 at 27; Grace Abraham Akpabio & 10 Ors. v. The State (1994) 7 NWLR (Pt. 359) 635;(1994) 7 – 8 SCNJ (Pt. 111) 429 at 453; Onubogu v. The State (1974) 9 SC.1 and Sugh v. The State (1988) 2 NWLR (Pt.77) 475;(1988) NSCC (Pt. 1) 852 at 862.
On issue 3, learned counsel submitted that the cases of the prosecution and the defence were not at par as the case put up by the defence was disbelieved by both the trial court and the Court of Appeal. He finally submitted that the courts below were satisfied that the prosecution had proved its case beyond reasonable doubt and urged that the appeal be dismissed. He cited the case of Nwaga Nwuzoke v. The State (1988) 1 NWLR (Pt.72) 529; (1988) 12 SCNJ 344.
The appellant and the 1st accused were jointly charged under s. 221 (a) read with s.79 of the Penal Code with the murder of Anda Ali The substratum of argument of learned counsel is that had the Court of Appeal made a thorough consideration of the prosecution’s evidence viz-a-viz that of the defence, it would have come to the inevitable conclusion that such evidence was not reliable due to contradiction and discrepancy in that evidence. The particular contradiction or discrepancy in the prosecution’s evidence is related to the statement of P.W.1 who is one of the two eye witnesses to the incident where he said:
“After they had killed Anda Ali the accused persons tried to run away. Accused I left his slippers (sic) while the cap being worn by accused 2 got hung to one of the sticks by the roof of the house. All these things were left there until the policemen came to the scene”;
while the 3rd witness for the prosecution, Sgt. Atere Olugba said in his evidence:
“At the scene I saw a cap bearing the caption ‘Coke’ and a pair of black shoes.”
The 1st accused in his evidence-in-chief said-
“I left my shoes and facing cap on the ground there because I was afraid:’
The pair of shoes and the cap were admitted in evidence without objection as Exhibits I and 2 and which 1st accused under cross-examination admitted he left in James Averehi’s compound, i.e. P.W.I, on the day of the incident. It was as a result of this contradiction or discrepancy that learned counsel argued that there was no proper identification of the appellant by P.W.1.
I shall now examine the evidence to see whether the submissions as regards the complaint against the proper consideration and evaluation of the evidence adduced viz-a-viz the identification of the appellant in the participation of the criminal act are so material and fundamental to raise any doubt in his favour.
P.W.1, the most important witness for the prosecution and in whose compound the brutal murder of the deceased was committed said in part of his evidence as follows:
“On 7/12/93 at about 8.00 p.m. I was sitting in my compound/house at Obehira. On that day, I was eating beans prepared for me by my wife. After I had taken two spoonful I heard shouts from a crowd. When I was about taking a third spoonful of the cooked beans, I saw Anda Ali rushed to me to say: ‘Help me Baba, Help me Baba.’ He entered into a room whose door was not closed. The room was in my house. I saw the second accused, Idrisu, chasing the said Anda into the room. He said, ‘This is the room he has entered, this is the room he has entered’ and immediately the 1st accused followed the 2nd accused into my compound and made for the room. The room Anda Ali ran into was in my compound. He closed the door. The 2nd accused stood by the door to say to the 1st accused ‘this is the room he has entered’. I inquired from both the accused persons what the matter was. The two accused persons hit the door with their legs and forced it open. The mud of the house that held the frame of the broken door is still on the ground at the spot uptill now. After the accused persons forced the door open, they both pushed Anda Ali backwards. Both accused held his two legs and brought him out into the open compound. The two accused persons flogged Anda Ali. When the flogging was too much, I started to appeal and beg the accused persons that since I am an old man, they should honour him and desist, promising that I would intervene in whatever their matter was on the next day. My wife and myself knelt down to beg the two accused persons. Accused 2 said we should not kneel down for them because the matter did not concern us and that we should go away from the scene to avoid blood splash. The deceased was held down by the two accused persons. As a result of their warning that we should not kneel down, my wife and myself got up. The first accused brought out a short gun from his pocket and pointed it directly at the neck of Anda Ali. I heard a sound from the gun shot when accused I fired at Anda Ali. I was frightened. Immediately accused 1 shot at Anda Ali, I started to shout to call on all the Obehira community, shouting that the two accused persons had killed Anda Ali in my compound. I did not know what was the matter between them. I went to a nearby police station at a village called Akuhavi. After they had killed Anda Ali the accused persons tried to run away. Accused I left his slippers while the cap being worn by accused 2 got hung to one of the sticks by the roof of the house. All these things were left there until the policemen came to the scene.”
Under cross-examination the P.W.1 gave evidence that at the time of the incident there was light in his house.
He said:-
“On that night there was electricity light. Even the accused persons know that everywhere in my compound is lit.”
With regard to consideration of P.W.1 ‘s compound that night, 1st accused testified that:
“In Averehi’s compound there were many fluorescent lights and I therefore could not see the person I was pursuing as a result of the reflection of the light,”
The learned trial Chief Judge, after considering the totality of the evidence by the prosecution and the defence, was in no doubt as regards the identity of 1st accused and the appellant and their joint participation in the criminal act when he found as follows:
‘I have considered the totality of the evidence adduced by the prosecution before me. It is indeed a clear case. The totality of the evidence by the prosecution is not only direct, positive, unequivocal, but points to each and every ingredient required to make for a complete offence of culpable homicide. I find as a fact from the evidence of P.W.1, whom ‘believe, that Anda Ali was pursued by both accused 1 & 2 to his compound on the said 7/12/93. I also believeP.W.1 and find as a fact that, Anda Ali hid in one of P.W.1’s rooms when both accused 1 & 2 broke the door of the room with their legs by hitting it and dragging Anda Ali to the compound of P.W.1. ‘find as a fact that both accused 1 & 2 held Anda Ali to the ground and that accused I used Exhibit 7, the locally made pistol(gun) and shot the deceased on the neck ……”
“I find as a fact that accused 2 told P.W.1 that the issue between them and Anda Ali was not a matter for P.W. 1 to beg them. Exhibits 3 and 4 are statements volunteered and written by accused I himself owning up to Exhibit 7, the locally made pistol which the ballistician has aptly described as a lethal weapon in his report marked Exhibit 9. On the whole,’ believe the evidence of all the prosecution witnesses and find as a fact that accused 1 and 2 were not only responsible and pinned as the direct cause of the death of Anda Ali but that it was so done on 7/12/93 at Obehira in P.W.1’s compound ……”
“On accused 2, his outright denial, except that he heard the shout of ‘thief, thief like that of his witness, is a make up story which I do not believe. ‘have no doubt in my mind, from the evidence of P.W.1 that, accused 2 not only identified the room where Anda Ali hid in P.W.1’s compound, but assisted in breaking open the door and dragging Anda Ali outside into the compound to receive the beating and the gun shot from accused I which eventually snuffed off life from the said Anda Ali.”
The Court of Appeal in its lead judgment by Ayo Salami J.C.A with which both Kalgo and Opene J.J.C.A. agreed, after meticulous consideration of the evidence, agreed with the learned trial Chief Judge in his findings when the learned Justice said:
“Learned counsel for appellant contended that since first accused admitted ownership of the facing cap, ownership of which was ascribed to appellant by the eye-witness, it was unsafe to accept all what first prosecution witness said. The cap bearing inscription Coka cola (sic) was tendered and admitted as Exhibit 2. This piece of evidence is not material to the determination of the real issue calling for determination, that is, the charge preferred against the appellant. The appellant’s identity was not in doubt. Indeed the appellant did not deny his presence on the grounds of Averehi on the day in question. He peremptorily declared ‘we got to Averehi’s compound-Averehi was P.W.1 who testified before this court’. In the result, the failure of learned trial Chief Judge to consider the contradiction did not result in a miscarriage of justice as contended by learned counsel for appellant. See Abdul Mohammed v. The State (1991) 5 NWLR (Pt. 192) 438.
There is no conflict between the testimony of the first prosecution witness and his previous statement in which he alleged that appellant participated in the beating of the deceased. It is immaterial whether appellant single handedly beat the deceased or he was joined by others in beating him, in either view the appellant was implicated and not exculpated by the pieces of evidence. The parties were charged jointly. It is, therefore, immaterial to draw a line between the role played by each person since as it was observed earlier in this judgment the act of one accused is deemed to be the act of every member of the assembly which gathered at Averehi’ s compound on that fateful night.”
On the issue relating to the consideration and evaluation of the evidence by the trial court, the learned Justice of the Court of Appeal opined thus-
“It is a serious overstatement on the part of learned counsel for appellant to contend that the only findings made by learned trial Judge were as to the cause of death and the one touching on the preference of witnesses. He found that Anda Ali was pursued by both accused at page 52 lines 20, 21 and 22. Apart from this finding D learned trial Chief Judge made several other findings at page 52 of the record touching upon the hiding place of the deceased in the home of James Averehi and the appellant’s role in exposing the deceased, and the part he played in terminating the life of the deceased as well as the appellant telling first prosecution witness ‘that the issue between them and Anda Ali was not a matter for P.W.1 to beg them’. Learned Chief Judge went on at page 53 of the record to observe thus-
‘I treat the evidence of accused 2 and that of his witness as those of copious liars that needed to be treated with only pinch of salt. He and accused 1 clearly took the laws into their hands and made nonsense and mockery out of the life of a human being………..”
This is a case where s. 79 of the Penal Code is involved. It deals with common intention. The section provides thus:
“When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”
Although the learned trial Chief Judge did not specifically comment on this section, the learned Justice of the Court of Appeal and by virtue of section 16 of the Court of Appeal Act, 1976, had taken pains to deal with it in his judgment wherein he said-
“I agree with the learned counsel for the respondent that on the evidence before the court there is sufficient material evidence to draw an irresistible inference that both appellant and the 1st accused had a common intention to kill the deceased ….. A common intention need not be based on direct evidence of an express agreement rather it can be presumed from the circumstance of the case but a common intention should not be hastily drawn. See Abu Peter and another v. The State (1977) NMLR 81,89. On the evidence accepted by the learned trial Chief Judge, the appellant’s involvement in the commission of the crime exceeded the prosecution of common object of apprehending a common thief urged upon us by learned counsel for appellant. In the circumstance of this case, it can be reasonably inferred from the conduct of the appellant as well as statement imputed to him that he had common intention to terminate or eliminate the deceased. In the result, it is immaterial that the appellant did not personally carry the short gun nor pull the trigger of the gun that snuffed life out of deceased. The fatal shot given by the first accused is seen in the eye of the law to be a shot by all those present and pursuing the deceased. The possession of the short gun and cartridges by the first accused was the possession of the appellant.”
On the question of the learned Chief Judge’s reliance to convict on the evidence of P.W.1 as a sole witness, the learned Justice of the Court of Appeal after considering counsel’s arguments on it, came to the following correct conclusion:-
“In this connection, the learned counsel for appellant in the appellant’s brief delve into a lot of irrelevancies. The substance of his submissions is that the learned trial Chief Judge was in error in accepting the evidence of the only eye witness, first prosecution witness, James Averehi, without caution, when the accused were not cross-examined when they testified which failure by the prosecution, renders their version truthful. There is nothing truthful about the testimony of appellant and his only witness. The two witnesses contradicted themselves materially; while the appellant admitted that he got to the house of James Averehi, his only witness, Audu Aliyu, claimed that both of them turned back to their respective homes when, on approaching the house of first prosecution witness, they heard a report of gun shot – from the direction of the house. The learned trial Judge considered the evidence adduced by the appellant and his witness along with that of the prosecution and rejected the defence of the appellant. There was, therefore, no two credible conflicting evidence which can be subjected to the forensic test enunciated in Modupe v. State (1988) 9 SCNJ 1;(1988) 4NWLR (Pt.87) 130 and Oladimeji v. The State (1964) 1 All NLR 131 cited in appellant’s brief.”
There is plethora of evidence with no iota of doubt that both the appellant and the 1st accused had the common intention of terminating the life of the deceased by inflicting such grievous body injury on the mortal part of the body to wit: neck with such a lethal weapon as Exhibit 7. See Nwali & Ors. v. The State (1971) NMLR 78; Akpankere Apishe Ors. v. The State SC 97/70 dated 12/2/71;(1971) 1 All NLR 50 and Eyo Okon & Ors. v. The State Sc. 288/69 dated 25/9/70; (1970) 3 NMLR 40
Both the appellant and the accused were known to the P.W.1 long before the incident and that apart, each of them admitted pursuing the deceased to the deceased’s compound. The appellant in Exhibit 6, his statement made under caution, said-
“I know Musa Yusufu and Anda Ali, the two of them are my relation. I live in the same area with them. On 7/12/93 between 7.00 p.m. and 8.00 p.m. I was in my house. I heard Anda Ali was shouting calling Musa Yusufu that Musa Yusufu want (sic) to kill him. I came out I saw Musa Yusufu pursuing Anda Ali and that Anda Ali is a thief, today is today. Musa Yusufu pursued him into the compound of one James Averehi. When Anda Ali ran into the compound, he entered inside one or the rooms and locked himself. Musa Yusufu forced the door open with his leg. The landlord then pleaded to Musa Yusufu that what happened He should not kill some body in his house. I was also inside the compound,”
(Italics supplied for emphasis)
This excerpt from Exhibit 6 corroborated and confirmed in material particular the evidence of P.W.1 and that of 1st accused and his statements made under caution. The story is too complete and exact to be narrated by a person who was not inside the compound of P.W.1.
The learned trial Chief Judge(Umoru Eri) as well as Ayo Salami, J.C.A., after having meticulously considered and evaluated the evidence, both came to the inevitable conclusion that the deceased, Anda Ali died as a result of the concerted criminal act against him perpetrated by the 1st accused and the appellant. From the words uttered by the appellant to the P.W 1. that unless the latter stopped from pleading on behalf of the appellant and left the scene, he would be splashed with blood, coupled with jointly holding the deceased by the 1st accused and the appellant when the 1st accused shot him with the gun (Exhibit 7) on the neck, the two courts below were in my view right in separately coming to the conclusion that the deceased died from the gun shot on the neck. The killing of the deceased was premeditated. See R v. Hansen Owarey 5WACA 66 and Egbe Nkanu v. The State (1980) 3-4 SC. 1.
This is an appeal basically involving issues of fact and the findings of the lower courts thereon. To succeed against findings of fact, it must be shown that the court, in the performance of its primary duty to appraise the evidence and ascribe probative values to it, it made imperfect or improper case of hearing and seeing the witnesses, or has drawn wrong conclusions from the accepted or proved facts which those facts do not support, or it has approached the determination of these facts in a manner which these facts cannot and do not support. See Fashanu v. Adekoya (1974) 1 All NLR(Pt.1)35: Okolo Uzoka (1978) 4SC77; Ebba v. Ogodo (1984) 1 SCNLR 372:(1984) N.S.C.C. 255 and Idundun v. Okumagba (1976) 1 NMLR 200.
There is no such error or misdirection in the findings of the learned trial Judge which were rightly affirmed by the Court of Appeal. Where the entire appeal revolved around issues of fact and there was nothing on the record of the lower courts to show that such findings were erroneous, the appeal court would dismiss the appeal. See Fatoyinbo & Ors. v. Williams & Ors. (1956) SCNLR 274; (1956) 1 FSC 87; Adio & Anor. v. The State (1986) 2 NWLR (Pt. 24) 581 and Onyejekwe v. The State (1992) 3 NWLR (Pt.230) 444;(1992) 4 SCR (Pt.1) 19.
This court has no duty in interfering with concurrent findings of fact by the two lower courts unless they are shown to be perverse. See American Cyanamid Co. v. Vitality Pharm. Ltd. (1991) 2 NWLR (Pt.171) 15; Sunday Baridam v. The State (1994) 1 NWLR (Pt.320) 250;(1994) 1 SCNJ 1 at 12; Onuoha v. The State (1988) 3 NWLR(Pt. 83) 460 and Ugwumba v. The State (1993) 5 NWLR (Pt. 296) 660 at 671.
Having considered the issues raised in this appeal I find on the whole, it has no merit and it is hereby dismissed. The conviction and sentence of the appellant which were affirmed by the Court of Appeal are hereby confirmed.
SC.3/1998
