Mallam Zakari Ahmed V. The State (1999)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C
Mallam Zakari Ahmed was convicted by the High Court of Anambra State, sitting at Awka, of the offence of murder, contrary to section 274 (1) of the Criminal Code. Cap 36, Vol. 1. Laws of Anambra State of Nigeria, 1986.
The facts of the case as given by the prosecution are in the following narrative: The appellant came to the house of the deceased at night and went straight to the door of the room where one Igala woman, Sarah Abba, was living. He knocked at the door several times. Sarah Abba, who was also called Mama Friday in the locality, refused to open the door. She told him to go away because she had already gone to bed. But the appellant continued to knock at the door. A girl called Baby, who was staying in another room in the compound also told the appellant to go away.
The deceased, Mr. Osuagwu Obudike, who was Sarah Abba’s landlord, came out of his room and told the appellant to go away. The appellant refused and brought out a dagger and stabbed the deceased with it. The deceased shouted in Ibo language “Ogbuomuo” meaning “He has killed me”. Sunday Okafor, PW.l heard some noise and came out of Raymond Hotel’s premises where he was working as a night-guard. He saw the deceased holding the appellant by the shirt. Another person, Bello Aminu, testified as PW2 and told the trial court that he came out of his house when he heard a woman crying. The woman crying was PW.4, the wife of the deceased. PW.1 and PW.2 tied up the hands of the appellant put him in a wheel-barrow and took him to the police station. They handed over to the police the knife they recovered from the appellant at the scene of the crime.
A medical practitioner, Dr. Nathaniel Sunday Oraegbunam, performed an autopsy on the body of the deceased. He gave evidence as PW.8. The doctor told the trial court that from the pathological findings the two stab wounds seen on the body of Osuagwu Obudike caused severe bleeding which led to his death. The appellant made two statements to the police investigators, Exhibits B and C and testified in court for his own defence.
The learned trial judge after considering all the evidence adduced before him, convicted the appellant as charged and sentenced him to death. Dissatisfied with the conviction and sentence the appellant appealed to the Court of Appeal. The Court below considered the issues canvassed before it and dismissed the appeal. Armed with 4 grounds of appeal, the appellant finally came before this court contesting the conviction and sentence passed on him by the trial court which was affirmed by the court below.
The following three issues have been identified by learned counsel for the appellant, Chief Chibube Ezebilo, for the determination of this appeal:
“1. Whether the trial court as well as the Court of Appeal evaluated the evidence tendered before it properly.
- Were there material conflicts in the statements and evidence of prosecution witnesses which rendered their various pieces of evidence unreliable and can the conviction of the appellant based on such unreliable evidence be sustained and upheld
- Whether the trial courts as well as the Court of Appeal were right when they held that the defences of provocation, self defence, defence of property and defence of intoxication do not avail the appellant in this case”.
For the respondent the two issues raised are; whether the defence of provocation, self defence, defence of property and intoxication avail the appellant and secondly, whether the respondent had proved its case beyond reasonable doubt taking into consideration all the surrounding facts of the case.
In considering the issues formulated for the determination of this appeal I do recognise that the appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a trial court and a Court of Appeal would only interfere with the performance of that exercise if the trial court had made imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support. If the trial judge draws mistaken conclusions from indisputable facts or wrongly arranges or presents the facts on which the foundation of the case rests, the appeal court should not abdicate its own responsibility and rubber-stamp the error, but should intervene and do what justice requires-see Y.A. Lawal v. Chief Yakubu Dawodu & Anor. (1972) A.N.L.R. 707 at 722; Fatoyinbo and Ors. v. Williams alias Sanni and Ors. (1956) 1 F.S.C. 87; (1956) SCNLR 274 and Paul O. Omoregbe v. Ehigiator Edo SC 142/69 decided on 29th October, 1971.
Chief Ezebilo for the appellant submitted in the Appellant’s Brief that when the learned trial judge was considering the defence of self defence, defence of property and provocation raised by the appellant in his defence he disbelieved and rejected the evidence of the appellant in court and statements made by the appellant to the police in Exhibits B and C with regards to what actually happened on the night of the incident. Learned counsel further submitted that pieces of evidence given by the appellant in court such as “I took out my knife and waived it to defend myself’ and appellant’s statement to the police Exhibit B where he said “I forced myself to matchet one of the people who attacked me with knife while they collected my money and wrist watch” and in Exhibit C where the appellant said “They beat me and one of them hit me on the head while one cut me with knife on the head because of that I used dagger to defend myself’ were disbelieved and rejected by the trial judge.
After going through the submissions of both counsel in their respective briefs I find it pertinent to reappraise the evidence adduced before the trial court in order to establish whether the conclusions reached by the trial court which were affirmed by the court below from the facts and evidence available before the court had established beyond reasonable doubt that the appellant was guilty of the offence charged. This being a criminal trial for the offence of murder the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt -Ameh v. The State (1978) 6/7 SC. 27 and State v. Albert (1982) 5 SC. 6 at 8.
The case against the appellant is hinged on the evidence of PW 1, PW2 and PW4. The appellant was consistent in the statements he made to the police and the evidence he gave in his defence that he was waylaid along the road by three people, robbed of N3,000.00 and a wrist watch and beaten up by his attackers. The appellant stated further in his evidence and said:
“Before they beat me up I had a knife with me. I had a knife with me because as we control the herd of cattle any one about to die we kill it in order to sell it. As they were beating me they injured me in the eye and blood was rushing out so I took out the knife and waved it to defend myself. I was saying thief, thief, thief and people were coming out but they started beating me as I held one of the three people who waylaid me by his shirt. I did not enter any man’s house. What happened was along the main road. I did not know the people who carried me to the Police Station. I was unconscious when I was taken to the Police Station. It was about 4 a.m. that I asked one Policeman Sgt. Adamu what brought me here and he told me that some people brought me here with a barrow. What I now have on was not what I was wearing on that day. This one was bought for me while I was in prison yard. I do not know any Igala woman in my life”.
His defence therefore is simple. He did not enter the compound of the deceased. The incident which led to his arrest happened on the road. He did not know an Igala woman by name Mama Friday. He was attacked by three people on the road and robbed of N3,000.00 and a wrist watch. In trying to defend himself and his property he attacked the assailants with his knife injuring one of them.
The key witness for the prosecution is the wife of the deceased who gave evidence as PW4. The relevant part of her testimony reads thus:
“About 2 1/2 years ago in our house as we went to sleep at night. At about 2 a.m, that night as I was praying I heard a voice asking who is that’! Who is that’! It was a night watchman by name Sunday the PW 1 who was asking who is that. I then heard a knock on the door of Mama Friday an Igala woman. The woman told the person knocking to go away. Also a girl called Baby asked the man who was knocking to go away. I heard shout saying he has killed me, he has killed me. I ran out and saw my husband and I asked what was the matter. He told me that a hausa man has stabbed him. I saw Sunday PW 1 holding a hausaman and I saw another hausaman also holding the same man. My husband told me that the hausaman who stabbed him was the one held on the ground by the two men. I will know the hausaman who stabbed my husband if I meet the man. The man in the dock that is the accused is the hausaman who stabbed my husband. The second hausaman who also held the accused had given evidence in this court. I do not know his name. When I saw that my husband was stabbed I shouted and some people helped me to carry him to the hospital. I left my husband in the care of the doctor and went and (sic) reported to the police. The police followed me to my house and saw that what I said was true. The Police carried the accused in the barrow and took him to the Police Station. When I heard the shout and ran out I saw that my husband was stabbed seriously. Mama Friday and the girl I mentioned were all living in our compound. They were living in different rooms. The house where Mama Friday and baby lived is owned by my husband. Baby is a young lady, a teenager. Mama Friday has packed out of our compound. Baby has also packed out.”
It is pertinent to contrast the testimony of PW4 with the evidence given by PW 1 and PW2. PW 1 explained to the court how his attention was attracted to the scene where he met the appellant and the deceased holding each other. He said as follows:
“I work at Raymond Hotel Amikwo Awka. On 20/9/91. I came to work at 6 p.m, at Raymond’s Hotel Awka. In the night between the hours 12.00 midnight a.m. 1.00 a.m. I heard some noise. I took out my torch-light to see what was happening I heard someone shouting in Igbo “Ogbuomuo” (He has killed me) I opened the gate and came out. I saw a man holding another by the shirt. One of them was trying to run away. As I came out a hausaman living nearby also came out and we held the man trying to run away. It was the accused that was trying to run away. It was one Osuagwu that was holding the accused at the time we arrived at the scene. This Osuagwu is now dead”.
PW2 on his part told the trial court what he did when he heard a woman crying, in the following testimony:
“On 21st September, 1991 I was in my house. I heard a woman crying I ran out to the gate. I saw two persons on the ground and one person standing. The person standing is Sunday. I know him as Sunday, the watch night. He was PW1. I asked the accused person what the matter was and he told me “the deceased abused me and I stabbed him”. We later took the deceased to the hospital. I saw the dagger covered with blood and later we went to the hospital. At that time the dagger was on the ground. When I came to the scene I saw the accused we tied the hands and put him into a wheel-barrow”.
During the cross examination of PW2 he said that when he came out he saw the deceased and PW 1 outside the compound of the deceased. He was emphatic that it was on the road. Now, it is abundantly clear going through the testimonies of PW 1 and PW2 on how the incident happened that their evidence was inconsistent with the testimony of PW4. From her testimony it is clear that PW4 was not living in the same room with her husband in the night of the incident. She said that she was praying when she heard a voice saying “who is that Who is that Later she identified Sunday (PW 1) to be the person saying, “who is that She said she then heard a knock on the door of Mama Friday, the Igala woman. By the evidence given by PW4 Sunday (PW 1) came into the compound of the deceased and said “who is that’!”‘ before the appellant was heard knocking at the door of the Igala woman. Sunday however told the trial court that he heard a noise and took his torchlight to see what was happening, He then heard someone shouting in Ibo language “Oguomuo” (he has killed me). The contradiction between the evidence of PW4 and PW 1 is vital because by the evidence of PW4 Sunday was already in the house before the appellant began to knock at the door of Mama Friday. If her evidence is to be believed what was Sunday doing in the house before the appellant began to knock at the door of Mama Friday’
Turning to the evidence of PW2, he said he heard a woman crying and he came out of his house. When he reached the scene he saw two persons on the ground and one person (Sunday) standing. Let me go back to the testimony of Sunday. He said when he came he saw the deceased holding the appellant by the shirt and that the appellant was trying to run away. Here the evidence of Sunday and PW2 do not agree. The descriptions of what happened at the scene as given by these two witnesses are in conflict. Both PW 1 and PW2 told the trial court that the incident happened on the road near the house of the deceased. But PW4 in answer to a question during cross-examination said,
“No. Sunday and the other hausaman were holding the accused near our gate but inside our compound”.
When asked again whether it would surprise her to hear that Sunday told the trial court that the scene of the incident was on the road and not inside the compound she replied;
“Sunday cannot say so. My husband was stabbed inside the compound” .
Another contradiction which to me is minor is where PW4 said that she reported the matter to the police. The police followed her to the house and when they saw what she reported was true they (police) carried the appellant in a wheelbarrow and took him to the police station. PW1 and PW2 however, told the trial court that they took the appellant in a wheel barrow to the police station. These contradictions lead to one vital issue, that is, doubt as to where the incident took place. If it took place on the road the appellant’s version of the incident will be relevant, If it took place inside the compound of the deceased the evidence of PW4 has to be believed. The court is only entitled to rely on the evidence adduced before it and not on speculation – see Okoko v. The State (1964) 1 All NLR 423 and Seismograph Ltd. v. Ogbeni (1976) 4 S.C. 85.
It is trite law, where there are contradictions in the evidence of prosecution witnesses on a material fact, such contradictions ought to be explained by evidence by the prosecution. In the absence of such explanation by the prosecution, the court cannot and shall not speculate on an imagined explanation for such contradictions and proceed to choose which of the prosecution witnesses to believe.Arehia v. The State (1982) 4 S.C. 78.
The vital witness who could have given evidence to clear the doubt on whether the appellant entered the compound of the deceased or not was Mama Friday (Sarah Abba). She was interviewed by the police twice during investigation and she made two inconsistent statements to the police. In criminal trial evidence which would help the defence in the trial of an accused should be produced by the prosecution. The testimony of Mama Friday may establish whether the appellant knew her before the incident and whether he came into the compound and knocked at her door. Without such evidence the learned trial judge was wrong to make the following finding in his judgment:
“Evidence showed that it was the knocking by the accused at the woman’s door late at night in the compound of the deceased that caused (sic) the deceased to come out of his room. The refusal of Mama Friday to open her door to the accused afforded the accused an opportunity to vent the anger caused by his disappointment on the deceased by stabbing him”.
There is no evidence to support this finding. It is mere assumption. There is no evidence adduced to show that the deceased came out of his room when he heard the appellant knocking at Mama Friday’s door. His wife PW4 did not say so. Her evidence is clear and she was in her room praying when she heard her husband shouting “He has killed me”. The evidence of PW4 saying that the appellant knocked at the door of Mama Friday is not reliable because she did not see the appellant knocking at the door of Mama Friday. She said she heard it and there are other rooms in the compound. The knocking could be on any other door. One girl baby, was living in one of them. Even this girl was not called by the prosecution to say what she saw during the incident. Her testimony may confirm whether the appellant entered the compound as has been alleged by PW4. The whereabouts of the deceased before the appellant came knocking at the door of Mama Friday is questionable. His wife, PW4, did not say that he was with her in the same room when the knocking started. Where then was he before his voice was heard saying “Ogbuomuo” meaning “he has killed me”
Since no prosecuting witness saw what happened at the time the appellant used his knife to stab the deceased it will be mere speculation to say that because Mama Friday refused to open the door to the appellant he vent his anger on the accused and stabbed him. As there is no direct evidence on what transpired between the appellant and the deceased before the appellant used his knife to stab (the deceased) the conviction of the appellant in my view was based on circumstantial evidence. Though circumstantial evidence is admissible in criminal cases to prove the guilt of an accused yet, such evidence must be narrowly examined by the court if only because evidence of this kind may be fabricated to cast suspicion on another. It is necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference- Okoro Mariagbe v. The State (1977) 2 S.C. 89.
It is a cardinal principle in criminal proceedings that the burden of proving a fact which if proved would lead to the conviction of the accused is on the prosecution who should prove such fact beyond reasonable doubt. In criminal cases, any doubt, as to the guilt of the accused. arising from the contradictions in the prosecution’s evidence of vital issues must be resolved in favour of the accused – Ankwa v. The State (1969) 1 All NLR 133.
It is relevant to ask. “what really happened which made the deceased to struggle with the appellant during which they fell on the ground and the appellant used his knife and stabbed the deceased Where was the deceased before the appellant came into the compound and began to knock at the door of Mama Friday as alleged What is to be believed Was it the version given by the prosecution, the veracity of which could not be ascertained due to contradictions in the evidence of prosecution witnesses or the story of the appellant that he was waylaid along the road by three people who robbed him of N3,000.00 and a wrist watch The evidence of PW1 and PW2 which the trial court believed is inconclusive to establish that the appellant stabbed the deceased simply because the deceased told him to get out of his compound since Mama Friday had refused to open her door for him to enter. The deceased who was alive for many hours after he received the injuries did not stale to anybody how and why the appellant stabbed him. In the testimony of PW2, he said that when he asked the appellant why he (the appellant) stabbed the deceased, the appellant said it was because the deceased abused him. This evidence without more is not enough to sustain a conviction for murder.
The Court of Appeal fell into similar errors. It believed a story which is not supported by direct evidence. The Court below did not even consider the inconsistencies in the testimonies of prosecution witnesses. It is abundantly clear that there is reasonable doubt in the prosecution’s case. Having failed to clear this doubt I have to accept that the doubt must be resolved in favour of the appellant. The trial court was in error to convict the appellant of the offence charged based on the evidence adduced by the prosecution. I have not touched the defence of intoxication because I agree that the two courts below are right in rejecting it. I therefore accept the version given by the appellant on how the incident happened. The appellant is entitled to the right to plead the defence of self defence, provocation and the defence of property. This appeal therefore succeeds in part. The conviction and sentence passed by the trial court and affirmed by Court of Appeal are set aside. It is my view however, looking at the facts of this case, that the appellant had exceeded the right of private defence. Where an accused armed with a lethal weapon is attacked by another who is equally armed with a lethal weapon and during the encounter one kills the other the survivor has a right to put up a defence of self defence. However, if the person attacked exceeds that right and kills the offender when in fact it was unnecessary to cause grievous harm to the attacker the offence committed is manslaughter if the intention of the accused was to do no more harm than he believed necessary in the exercise of his right. Even though there was a reckless criminality in the act of the accused he can succeed in pleading the right to self defence so long as he did not kill with a vengeful motive in the purported exercise of his right.
The appellant made two separate statements to the police during the investigation and testified for his defence. He was consistent in all the statements he made that he was going along the road when he was waylaid by three people. He was robbed in the process of N3.000.00 and a wrist-watch. He said he used his knife and stabbed one of his attackers on the shoulder. There is no evidence to show that the deceased was armed when he struggled with the appellant. I therefore find the appellant not guilty of murder but guilty of manslaughter and I convict him accordingly.
I have considered the seriousness of the allegation against the appellant, the circumstances which led him to stab the deceased and the fact that the deceased died within 24 hours of the injuries he received before passing sentence for the offence of manslaughter of which I have convicted him. I therefore sentence the appellant to serve a prison term of ten years. The sentence is to commence from the date of his conviction at the High Court.
SC.77/1998
