Paul Ameh V. The State (1978)
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FATAYI-WILLIAM, J.S.C.
On the 10th December, 1974, in the Lokoja High Court, the accused, now appellant, was charged with the offence of culpable homicide punishable with death. The particulars of the offence state that the accused, on or about the 12th day of February, 1974, at about 11 p.m. at Emagaba, Ogugu village in Ankpa Division in Kwara State, committed the offence of culpable homicide punishable with death in that the said Paul Ameh caused the death of one Benjamin Idoko by shooting him with a dane gun knowing that death would be the probable and not only a likely consequence of his act.
The evidence by the prosecution adduced in support of the charge may be summarised as follows. On the day in question, Benjamin Idoko, the deceased, went to his farm to set a trap and never returned. Shaidu Abdul Idoko (P.W.4) and others who later went to look for him found his dead body in the farm of the accused. Eventually, the body was carried to the General Hospital at Ankpa where a post-mortem examination was performed on the body after it had been identified to the doctor as being that of his brother by Idoko (4th P.W.). The doctor who performed the post-mortem examination certified that death was due to a gun shot wound on the left lower abdomen which caused a ruptured spleen and internal haemorrhage.
Meanwhile, the accused, after the incident, had run to one Alhasan Ameh (P.W.1) and told him what had happened. The 1st P.W., in his testimony before the court, said that the accused told him that when he arrived at his farm on the day in question, he met someone. He challenged that person who thereupon ran towards him. He, the accused, then started to run away while this man pursued him. The accused then turned to the man and shot him with his dane gun. Under cross-examination, the 1st P.W. explained further as follows:-
“I later made a statement to the police. I never told the police all that the accused told me. The accused told me that the thieves he found on his farm were many. Many people in the village must have slept when the accused came to me. It was very dark then. He carried no light. The accused told me that all the thieves were chasing him before he fired his gun. The accused further told me that one of the thieves was shouting ‘kill him, kill him’. The farm of the accused to my house is about one mile. I told the police that after I have taken my supper, I heard a gun shot from the direction of the farm of the accused. From the time I heard the gun shot to the time I saw the accused, one would have walked a distance of about 11/2 a mile. The accused told me that when he shot his gun others ran back. The accused told me that he could not say whether the man died or not because it was dark. The accused told me that he came direct to me from his farm. It is not usual in our area not to go with a cutlass when one is setting a trap because it is the cutlass we use to dig the hole for the trap.” (The underlining is ours)
Another witness, one Andrew Idoko (P.W.2), testified that his father was the village head and that since his death he now held the title. He explained that about eleven months ago, the accused came to tell him that a thief came to his farm to steal yams and that he shot the thief. Under cross-examination, this witness also testified further as follows:-
“I made a statement to the police. The accused never told me that the thieves he met on his farm were many. He told me that he heard voices saying ‘the owner of the farm has come, the owner of the farm has come’. He then fired his gun ……….. the accused told me that he was afraid and therefore did not move near the person he shot to see whether he died or not. He also told me that the deceased said he had died and that he heard the footsteps of the people moving back. The accused is a farmer and a hunter. The carried his gun to his farm………… The father of the accused and the father of the deceased had the same father. I never heard of any previous quarrel between the accused and he deceased. If the accused knew it was the deceased, he would not shoot him.” (The underlining is ours)
One Audu Abba (P.W.3), also testified that the accused came to his house early in the morning about ten months ago to tell him that he saw people stealing his yams and he fired his gun at them. This witness asked him to go and report to the village head and also at the Police Charge Office at Ankpa. He however, admitted under cross-examination that the accused never told him that the thieves were many.
When the accused arrived at the Police Station at Ankpa at about 11 p.m. on the night of the incident, he saw P. C. Ibrahim Atofolaki (P.W.7) whom he informed that he saw someone in his farm carrying his yam seedlings in a basket and that the shot he person with his gun. The 7th P.W., after collecting the gun from the accused, locked him up in the cell in the police station. Two days later, that is, about 14th February, 1974, P.W.7 and the Divisional Police Officer went to the scene of the incident where they saw the corpse of the deceased which they afterwards collected and took to the Medical officer in charge of the General Hospital at Ankpa for post-mortem examination. For some inexplicable reason it was not until about five months later (the 26th July, 1974, to be precise) that the 7th P.W. obtained a written statement under caution from the accused. Although the statement was made by the accused to him in Igala language, the 7th P.W. recorded the statement in English language. The contents of the statement (Exhibit 4), as recorded by P.W.7, read:-
“On the 12/2/74 at about 23.00 hours when I was in my farm watching the person who was stolen my yams. Before this day I have been reported to my Gago that someone was stolen my seedling yam at my farm where it was grouped. I was in the farm I saw somebody carried a basket on his head from my yam farm heading home. I strongly suspected that the person making away with my some yams. Eventually I shot the man with my dane gun, and this person mentioned my name saying I had killed him.
I was unable to recognise the voice and depart from the farm for home. I did not go to the scene of crime to know the victim. As soon as I got home I reported the incident to our village head called Agada Ojiku who instructed me to go to Ogugu Barrack to report the matter to Police. As I got to Ogugu I was told that the only constable who was there was away to Ikem village. I move forward to Okpo Police Post where I reported the incident to a number of Police there. Following my report a police constable proceed to the scene of crime. On his return from the scene I was brought to Ankpa Police Station here on a motor vehicle. I did not know who was the victim as the corpse still lying at the scene. Earlier thieves have been removing my yams dishonestly. I decided to keep night at the farm.”
When he was cross-examined as to why he did not record the written statement in the language in which it was made, the 7th P.W. replied-
“I had in the past been acting through an interpreter. I understand Igala language but cannot write it down. I have enough experience of Igala language that was why I recorded it down in English. The accused was on remand at Idah from 13/2/74 to 26/7/74. Between this period I was still acting through interpreter in Igala language. I deny the suggestion that I obtained a statement from the accused through an interpreter prior to Exhibit 4. I took Exhibit 4 from the accused at the Idah Prison Yard. The accused had earlier made a statement to Justice of Peace.” (The underlining is ours)
Presumably, because of the obvious irregularity in the taking of the above statement (Exhibit 4) by the 7th P.W., P.C. Jonathan Idakwo (P.W.8), on 6th August, 1974, obtained another written statement from the accused who was then still in custody at the prison at Idah. Indeed, this witness said that he was sent to obtain another statement from the accused because he is an Igala man while the 7th P.W. is not. This second statement was obtained from the accused in Igala language and was recorded in the same language. The contents are not much different from the first statement recorded in English by the 7th P.W.
In his defence on oath, the accused testified as follows:-
“On 12/2/74 I went to my farm at day time I never carried any lamp. I remained at the farm until night fall. At one stage I left my farm but I later returned there, but I do not know the time I returned there. As I was moving near where the remaining yams were gathered, I saw someone putting the yams inside a basket and was lifting the basket on his head. I did not recognise the person. I could not recognise whether the person was a male or a female. I asked ‘who are you’. The person replied ‘the owner of the farm has come, please come, I became afraid and started to run away. I heard footsteps from many directions running towards me. I heard voices saying ‘pursue him and get hold of him’. I heard nothing else apart from ‘pursue him and get hold of him. I thought that should the people get hold of me they would kill me. I then turned to them and fired my dane gun. I heard a voice that said ‘you have killed me’. I replied that it was what he had come to steal that killed him. After that I heard no further footsteps and I too ran away. I never returned to see the person I shot because I was afraid. I thought the other people might get hold of me or the person I shot had a gun. I ran to my village. The first person I saw was P.W.1 and I narrated to him what I had just narrated to court. I later went to the village head and reported to him.”
No other witness testified for the defence.
In a reserved judgment, the learned trial Judge, after reviewing the evidence adduced before him, observed –
“I have no doubt in my mind that the accused both from his own evidence and his two statements (Exhibits 4 and 5A) clearly saw the object before he pulled the trigger of his dane gun at the deceased………… I have no doubt in my mind that it was only the deceased that the accused found on his farm, that he heard no footsteps, that he never heard the deceased say ‘the owner of the farm has come, please come’, that he never heard the sound of footsteps from many directions running towards him and the accused never heard voices saying ‘pursue him and get hold of him’. I regard all these as an afterthought.
I am satisfied that the accused had loaded his dane gun with bullets and had made up his mind to shoot at whoever he found stealing his yams in his farm. Otherwise, when he saw the deceased, the accused should have shot his gun into the air. I am satisfied that the deceased had no weapon with him and never pursued the accused at the time when the accused shot him dead with his dane gun.
I have considered the legal authorities cited by the learned counsel for the defence but I am of the view that they are inappropriate to the facts of this case. Section 62 of the Penal Code reads:-
‘The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.”
The trial Judge thereupon convicted the accused of the offence charged after finding finally as follows:-
“I am of the opinion that when the accused fired his loaded gun at the lower abdomen of the deceased who was unarmed which thereby caused rupture of the spleen and internal haemorrhage and therefore the death of the deceased, the accused exceeded his right of private defence of his property (yams). By firing his loaded gun at the lower abdomen of the deceased, the accused knew or had reason to know that death would be the probable and not only likely consequence of his act.”
In the appeal before us against the judgment, Mr. Funmi Jibowu, who appeared for the appellant, complained that the judgment was unreasonable, unwarranted and could not be supported having regard to the evidence adduced before the learned trial Judge. With remarkable resourcefulness, learned counsel pointed out that where a charge is laid under Section 221(b) of the Penal Code, consideration should be given to the provisions of Section 222 of the said Code which affect the punishment of any person found guilty under Section 221. Leaned counsel then submitted that since the testimony of the 1st and 2nd P.Ws formed part of the case for the prosecution, which the learned trial Judge appeared to have accepted, the defence of the appellant on oath, which is substantially the same as the evidence of these witnesses, should have been accepted by the trial Judge. Learned counsel also pointed out that the written statements of the appellant (Exhibits 4 & 5A), on which the court relied, were not reliable because it is unusual for the police to keep a suspect in custody for five months before taking a statement from him. Mr. Jibowu further contended that it is inconceivable that the appellant would say on the night of the incident that many people came to his farm and then say voluntarily five months later that only one person was there. Learned counsel also submitted that it is obvious that the trial Judge did not evaluate the evidence adduced before him by the 1st and 2nd P.Ws properly because, if he had done so, he would have had to make a finding as to whether he believed or disbelieved their testimony before deciding that the defence of self-defence put forward by the appellant was tenable or not. Finally, learned counsel submitted that the trial Judge was in error in referring to the evidence given by the appellant on oath as “an afterthought”. That defence, learned counsel contended, was the earliest put forward by him a few hours after the incident, whereas the one recorded in the statements, (Exhibits 4 & 5A) was made more than five months afterwards.
We thought there was merit in all the points urged upon us by learned counsel for the appellant. It is settled law that in a criminal case, the onus throughout the trial is on the prosecution to prove its case beyond reasonable doubt. Even if an accused had admitted in a written statement to the police that he committed the crime, the court would still have to consider that statement along with the other testimony adduced by the witnesses for the prosecution in order to determine whether the confession was voluntary or not.
Now what is the position in the case in hand From the evidence adduced before the trial Judge, the case for the prosecution would appear to be based on two irreconcilable versions. One version, given by the 1st and 2nd P.Ws, indicated that there were many people in the farm of the appellant on the night of the incident, that when they saw the appellant they said the owner of the farm has come, the owner of the farm has come; that they then shouted “kill him, kill him”, that all the people were chasing him, and that it was because of this that he fired his gun at them. The other version, ventilated in the written statements (Exhibits 4 & 5A), indicated that the deceased was the only person in the farm of the appellant that night and that the appellant shot him when he found him stealing his yams.
Curiously enough, nowhere in his judgment did the trial Judge say that he rejected the version given by the 1st and 2nd prosecution witnesses as to what the appellant told them soon after the incident. It is also significant that these two witnesses were not treated as hostile witnesses by the prosecution. That being the case, we think the learned trial Judge was in error in preferring the later version to the earlier one without explaining why.
Can it be said that the prosecution, having put before the court two versions of the incident, one indicating justifiable homicide and the other pointing to an offence under Section 221 of the Penal Code, has proved its case against the appellant beyond reasonable doubt We did not think so. Undoubtedly, the delay in taking the two written statements (Exhibits 4 & 5A) from the appellant and the circumstances under which they were recorded leave much to be desired. In this respect, we recalled that the two statements were taken after the appellant had been in custody at Idah Prison for about six months. No reasons were given for the delay. Furthermore, no explanation was given for the non-production at the trial of the statement which the 7th prosecution witness said the appellant made earlier to a Justice of the Peace.
There is one other point which we would like to make. The trial Judge, in his reserved judgment, said that the defence of the appellant on oath, which accords with the version which he gave to the 1st, 2nd and 3rd prosecution witnesses on the very night of the incident, was “an afterthought”. We observe, with respect, that that defence was put forward much earlier, in fact, more than six months before the version recorded in the statement (Exhibits 4 & 5A) and which the trial Judge accepted as the truth. To our mind, therefore, rather than being “an after-thought”, this defence clearly indicated the earlier thought of the appellant on the matter;
For all these reasons, we did not think that the trial Judge evaluated the evidence adduced before him properly. If he had, he would not have dismissed this earlier version so lightly, if that had been the case he undoubtedly, would have realised that the case put forward by the appellant raised seriously doubts about his guilt vis-a-vis the offence charged.
At this juncture, it is, we think, pertinent to refer to the provisions of Sections 59 and 60 of the Penal Code which read –
“59. Nothing is an offence which is done in the lawful exercise of the right of private defence.
- Every person has a right, subject to the restrictions hereinafter contained, to defend –
(a) his own body and the body of any other person against any offence affecting the human body;
(b) the property whether movable or immovable of himself or of any person against any act, which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass.”
If the earlier version given by the appellant had been considered as part of the prosecution’s case, the learned trial Judge would have realised that on the totality of the evidence, the appellant would have had a perfect defence to the charge by virtue of the provisions of the sections referred to above. Furthermore, he would have realised, as we did, that, having regard to the particular circumstances in which the appellant was the only eye-witness, and to the fact that the incident, during which those on his farm were shouting ‘kill him, kill him’, took place around 11 p.m., the appellant did not exceed the powers of private defence given him by law and could not therefore have committed even the lesser offence of culpable homicide NOT punishable with death provided for in Section 222(2) of the Penal Code.
For all these reasons, we found ourselves in agreement with the points urged upon us by learned counsel for the appellant. Accordingly, we were driven, both by the facts and by the application of the well established principles of law to which we have referred, to the inexorable conclusion that it would not be safe to allow the conviction to stand.
We, therefore, allowed the appeal on the 6th June, 1976, set aside the conviction of the appellant for the offence charged, and ordered that he should be acquitted and discharged. We now give our reasons for doing so.
Other Citation: (1978) LCN/2043(SC)
