Joseph Kwaghshir & Anor V. The State (1995)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, J.S.C.

The appellants were charged in the High Court of Benue State holden at Makurdi and convicted of culpable homicide punishable with death contrary to section 221 (a) read with section 79 of the Penal Code.

The facts of the case are briefly as follows. The family of the deceased had a farm where they grew crops. The appellants’ family had goats which used to go on the farm to destroy the crops. In the morning of the day material to this case that is on 15th December, 1990,.the goats went on to the farm and the deceased killed one of them .. The father of the appellants (D.W.1) complained to the elder brother of the deceased (P.W.3) about the incident making the point that the deceased had so far killed 6 goats belonging to him (D.W.1).

Later in the day, the mother of the deceased (P. W.1) went to a meeting of an association of women called Better Life for Rural Women. She was returning home in the evening when she came across the appellants who informed her that the deceased had killed their goat and they called her bad name. Thereafter the 1st appellant pushed her down to the ground, and started to beat her. P.W.1 shouted for help while crying. The deceased who was at home heard P.W.1 crying for help and therefore left for the scene of the incident to help her.

On deceased’ s arriving at the scene the appellants set on him and began to beat him. According to P.W.1 the deceased was also attacked with cutlass and knives by the appellants and one Magondo. She testified that she saw the appellants cut the deceased three times with the cutlass and once with a knife. As a result the deceased died on the spot. A report was lodged with the Police and the 1st appellant was arrested. Three days later the 2nd appellant was arrested by the Police when he went to the Police Station to see the 1st appellant. Both the 1st and 2nd appellants made statements to the Police under caution.

In his defence, the 2nd appellant pleaded alibi. He said that he was not present at the scene of the incident because he went to the house of P.W.5 to buy cigarette. The 1st appellant said that he met P.W.1 in the evening of the day in question on his way to buy kerosine. He spoke to P.W.1 about her son -. The deceased-killing his family’s goat earlier in the day. P.W.1 began to shout calling for the deceased to come. Shortly thereafter the 1st appellant said he was stabbed on the upper part of his hand with a knife. He was stabbed in both his hands, then in the trunk and the chest, he was able to identify the deceased as his assailant. He was on the ground with the deceased on top of him when he received the fifth cut on his left thumb from the deceased. He struggled to snatch the knife from the deceased whilst still on the ground. On succeeding he stabbed the deceased once with the knife in order to escape without knowing where he exactly stabbed the deceased. The 1st appellant was able to free himself from the deceased and P.W.1.

He ran away from the scene of the incident and got to his home where he collapsed and became unconscious. Later the 1st appellant was taken to the Police Station and then to the General Hospital at Makurdi where he was examined and treated by a doctor (D.W.5).

The defence of alibi set up by the 2nd appellant was investigated by the Police (P.W.4) and was found to be untrue. P.W.5 from whom the 2nd appellant said he bought cigarette denied in her testimony that the 2nd appellant went to her house at the time of the incident as he claimed.

In his judgment, the learned trial Judge (Ogbole J.) believed the prosecution’s case and disbelieved the defence. He therefore, found the appellants guilty as charged.

The appellant appealed to the lower court complaining inter alia that the learned trial Judge was wrong in holding that the defences of provocation and private defence did not avail the 1st appellant and that the defence of alibi was not available to the 2nd appellant. In its judgment the Court of Appeal (Musdapher, Muhammad and Orah, J.J.C.A.) held as follows as per Muhammad, J.C.A. –

“I have very carefully considered the evidence adduced before the lower court, I have also carefully considered the judgment of the trial Judge. In the judgment he has extensively reviewed the totality of the evidence before him. He has meticulously evaluated the said evidence. He believed the prosecution witnesses one of whom was an eye witness to the killing. He made specific findings of fact. These findings of facts, considering the evidence are not perverse. He also, in my, view, drew the correct inferences from these findings of fact. The evidence offered by the prosecution clearly established that the appellants killed the deceased. The trial Judge was right in convicting the appellants.”

Aggrieved by this decision, the appellants appealed further to this court. They formulated five issues for determination in their brief of argument. The issues read –

“(a) Whether or not the lower court was right in holding as the High Court did, that the contradictions and inconsistencies highlighted in the prosecution’s case by appellants were mere discrepancies and/or minor variations as to details which did not affect then material issue(s) before the court;

(b) Whether or not the lower court was right in holding, in apparent affirmation of the trial High Court of Benue State’s decision, that the appellants killed the deceased, whose death was proved;