Gambo Musa V. The State (2009)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Jos Division delivered on 6th July, 2006 in which the appellant’s appeal against his conviction and sentence to death by hanging by the trial High Court of Justice of Borno State holden at Maiduguri on 24th February, 1994 was affirmed.

At the trial court, the appellant was arraigned for the offence of culpable homicide punishable with death contrary section 221 (b) of the Panel Code. The charge reads as follows:-

“That you Gambo Musa on or about 25th of July, 1998 at Gwange 11 primary school in Gwange ward Maiduguri Metropolitan Area did commit culpable homicide punishable with death in that you caused the death of Umaru Alhaji Idrisa by doing an act to wit: you brought out a knife and stabbed Umaru Idris on the chest when you know or had reason to know that death was the probable and not only likely consequence of your act and thereby committed an offence punishable under section 221 (b) of the Code.”

As manifest on page I of the transcript record of appeal, the charge was read out to the appellant on 7th March, 1990.

He pleaded not guilty to the charge before Ogunbiyi, J. (as she then was). Thereafter, the prosecution called five witnesses and tendered four exhibits to buttress their case. The appellant testified in a bid to extricate himself. In the reserved judgment handed out by the learned trial judge on 24th February, 1994, the appellant was found guilty as charged. He was consequently convicted and sentenced to death by hanging as dictated by law.

The appellant felt unhappy with the stance of the learned trial judge. He appealed to the Court of Appeal (the court below) for short. Thereat, the appeal was carefully considered and in the judgment delivered on 6th July, 2006, the appeal was found to be devoid of merit. The court below dismissed the appeal of the appellant and affirmed his conviction and sentence to death by hanging as pronounced by the trial court.

The appellant, being aggrieved by the decision of the court below has, ex debito justitiae, appealed to this court. His Notice of Appeal, filed on 4th October, 2006, was accompanied by four grounds of appeal.

On 7th May, 2009 when the appeal was heard, learned counsel for the appellant adopted the brief of argument filed on 19th January, 2007 and urged that the appeal be allowed. On page 2 of the appellant’s brief of argument three issues distilled from his four grounds of appeal, as it should be, read as follows:-

“1. Whether the defence of self-defence was not made out by the appellant.

2. Whether the contradictions in the evidence of PW1 and PW2 were not so material as to render it unreliable to support conviction.
3. Whether the defence of provocation was not made out by the appellant.”

In the same fashion, on the stated date when the appeal was taken, learned counsel for the respondent adopted the respondent’s brief of argument filed on 28th of January, 2009 and urged that the appeal be dismissed. In a concise manner, two issues were decoded for a due determination of the appeal on page 3 of the respondent’s brief. They read as follows:-

“(1) Whether there were material contradictions in the evidence of PW1 and PW2 capable of rendering their evidence unreliable and incapable of supporting the conviction of the appellant.

(2) Whether the defences of provocation and self defence were available to the appellant in the circumstances of this case.”

I wish to state briefly the facts that are germane to the resolution of this appeal. The case narrated by PW1 and chest of the deceased, Umaru Alhaji Idrisa. Probable cause of death was due to loss of blood, as a result of the stab injury.