Gambo Musa V. The State (2006)

LawGlobal-Hub Lead Judgment Report

R.D. MUHAMMAD, J.C.A.

This is an appeal against the judgment of the Borno State High Court holden at Maiduguri presided by Ogunbiyi J., (as he then was) in Charge No. M/3C/89. The appellant was charged with the offence of culpable homicide punishable with death. The charge reads:

“That you Gambo Musa on or about 25th day of July, 1988 at Gwange II Primary School in Gwange Ward in Maiduguri Metropolitan Area did commit culpable homicide punishable with death in that you caused the death of Umar Alhaji Idrisa by doing an act to wit, you brought out a knife and stabbed Umar Alhaji Idrisa on the chest when you knew or had reason to know that death was the probable and not only a likely consequence of your act and thereby committed an offence punishable under section 221(b) of the Code”.

To prove their case the prosecution called five witnesses and tendered three exhibits. The appellant testified on his own behalf. In a well considered judgment, the trial court found the appellant guilty as charged and he was sentenced to death.

Aggrieved and dissatisfied with the judgment of the trial court, the appellant has appealed to this court. Initially only one ground of appeal was filed. With the leave of this court one additional ground of appeal was filed. We now have two grounds of appeal. The grounds of appeal read:

1. The judgment is unreasonable and unwarranted and cannot be supported by evidence having regard to the evidence adduced at the trial.
2. The learned trial Judge erred in law when he failed to properly consider the appellant’s defences of provocation and self-defence when it is apparent in the evidence and in the findings of the trial court that there was a quarrel between the appellant and the deceased which resulted into a fight. The failure by the court to properly consider appellant’s defences has occasioned a miscarriage of justice.

Particulars of Error

The learned trial Judge erroneously held in page 13 lines 28-31 of the record that “PW 1 and PW2 gave evidence as eye witnesses of the incident that happened. In their evidence none of them gave an indication of either any exchange of words or fight between the accused and the deceased or any one of them”.

The appellant filed his brief of argument. The State, i.e. the respondent, failed to file any brief. With the leave of the court the appeal was heard based on the appellant’s brief alone. Two issues were formulated in the appellant’s brief for the determination of the appeal. They are –

“1. Whether the prosecution was able to prove its case beyond all reasonable doubt, having regards to the prosecution’s evidence at the trial?

2. Whether the trial court acted properly when it rejected appellant’s defences of provocation and self defence?”

Before considering the learned counsel’s submissions and the submissions in the appellant’s brief let me state, albeit briefly, the facts that gave rise to this appeal. The case of the prosecution as narrated by PWI – Jinadu Saidu and PW2 – Garba Yakubu was that it was on a Sallah Day and the three of them i.e. PW 1, PW2 and the deceased- Umaru Alhaji Idrisa were resting in a classroom at Gwange II Primary School, Maiduguri when they saw the appellant coming to the class. When the appellant entered the classroom, the appellant asked to know who they were. The appellant then brought a knife and stabbed Umar Idrisa on the chest as a result of which Umar Alhaji Idrisa died.

The appellant’s case however was that he acted in self-defence. It was the deceased who first attacked him with a knife. It was in retaliation that the appellant seized the knife and stabbed the deceased with it.

In the appellant’s brief, it was submitted that the prosecution did not prove its case beyond reasonable doubt as provided in S. 138 of the Evidence Act, 1990. In support of the submission we were referred to the case of Ahmed (Alias Eza) v. The State (2001) 18 NWLR (Pt.746) 622, (2002) I SCM 56. It was also submitted that out of the five witnesses called by the prosecution, none positively supported the prosecution’s case, particularly PW1 and PW2 who gave nothing but contradictory evidence as to what exactly happened on the fateful day. After quoting from the testimony of PW 1, it was submitted that PW 1 was confused, particularly considering he was only fifteen years old when he testified. After quoting from the testimonies of PWs’ 1, 2 and 4. It was submitted that their evidence was nothing but a bundle of contradictions and that their evidence should be rejected because of the contradictions. We were then referred to the following cases:- Iko v. The State (2001) 14 NWLR (Pt. 732) 221, (2001) 11 SCM 112; and Dogo v. The State (2001) 3 NWLR (Pt.699) 192, (2001) 2 SCM 39.

From a plethora of decided cases, it is now settled beyond controversy that to secure a conviction on a charge of culpable homicide punishable with death, the prosecution must prove: –

(a) That the death of a human being has actually taken place.