Alhassan Maiyaki V. State (2007)

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BULKACHUWA, J.C.A.

The appellant, as accused was arraigned before the Yobe State High Court on the 18th October, 2004 on a charge of culpable homicide punishable with death which reads:

“That you, Alhassan Maiyaki, on or about the 7th day of June 2004 at about 07:30 hours around Texaco Filling Station at Potiskum Local Government Area which is within the jurisdiction of the Yobe State High Court of Justice did commit culpable homicide punishable with death in that you caused the death of one Habu Usman of Potiskun town by doing an act to wit you shot on his head with your rifle in the cause of struggle with others with the knowledge that his death would be the probable consequence of your act and you thereby committed an offence punishable under section 221 of the Penal Code.”

The prosecution called four witnesses and tendered 3 exhibits, while the appellant/accused testified in his defence and called another witness. He also tendered 3 exhibits. At the end of the trial, in a considered judgment delivered on the 21/6/05 learned trial Judge found the accused guilty as charged convicted him for culpable homicide punishable by death and sentenced him accordingly..

The appellant being aggrieved by the said sentence has now appealed to this court on five grounds of appeal.

Parties filed and exchanged briefs of argument and the appellant in his brief identified the following issues for the determination of appeal.

1. Whether the learned trial Judge properly evaluated and appraised the entire evidence to determine where the scale of justice tilted before arriving at his finding.
2. Whether the failure of the learned trial Judge to use the favourable testimonies of PW1 and PW2 to the advantage of the appellant has not occasioned a miscarriage of justice.
3. Whether the learned trial Judge was right when he refused to accept the defence of accidental discharge put in by the appellant in his defence.
4. Whether from the records of this case the defence of self defence can avail the appellant along with other statutory provisions that can exempt him from criminal liability.

The respondent in his brief settled by Ngalda Esq, Principal State Counsel in the chambers of Hon. Attorney General Yobe State identified these issues;

1. Whether the trial court properly evaluated the evidence before it, in convicting the appellant?
2. Whether there are material contradictions in the prosecutions case that would warrant the reversal of the trial courts decision?
3. Whether from the totality of the evidence before the trial court, the defence of accident can avail the appellant?
4. Whether self defence is given to the appellant in this case?

The set of issues as identified by each of the parties are essentially the same, I will therefore in the determination of this appeal adopt the issues as identified by the appellant.

It is apt at this stage to state the facts leading to this appeal.

On the 7/6/2004, the appellant, a policeman, was on board a luxurious bus with the DW1 as security escort on its way to Maiduguri. The bus stopped at Texaco Filling Station Potiskum. The appellant and the passengers on board the bus alighted and started urinating in a place said to be prohibited. The deceased, a security man at the filling station, accosted the accused and the other passengers and asked them not to urinate there. The appellant then shot the deceased on the head who died on the spot, the defence of the appellant being that they were attacked by a crowd of men holding iron and sticks who started beating the passengers and held his colleague captive and in an attempt to have him released his hand touched the trigger of the gun his colleague was holding and the deceased died.

On the first issue, the appellant submitted that the lower court did not consider and evaluate the evidence on both sides as presented by the parties before resolving the issue as to whether the death of the deceased resulted from the intentional act of the appellant with the knowledge that death or grievous bodily harm was the probable consequence as required by law.

He made reference to the testimony of the DW2 who said that the shot which killed the deceased was an ‘accidental discharge’ and pointed out that this testimony is as contained in the DW2’s statement before the police and was never challenged nor contradicted by the prosecution and should have been accepted by the lower court that the death of the deceased was not intentional rather it was as a result of the appellant’s struggle with the youths (crowds?) to restrain them from wrestling with the DW2.

He contends that the incidence which led to the trial of the appellant and his subsequent conviction was not the issue of the prohibition of urine but the death of the deceased in respect of which the appellant raised the defence of accidental discharge and that the lower court made no findings on this vital issue.

He urged us based on the above to re-evaluate the appellant’s testimony and make a proper finding as the finding of the lower court is perverse and should not be allowed to stand.