Alhaji Mu’azu Ali V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

The facts preceding this appeal are that on the 30th June, 2005, the Appellant was arraigned before the High Court of Katsina State sitting in Funtua for causing the death of one Alhaji Garba Na Muri on the 17th day of April, 2004 at about 3.00 pm at Kadde Wakataba Doka village in Fiskari Local Government Area; Katsina State, by cutting his head with an axe with the knowledge that death would be probable consequence of his act and thereby committed an offence punishable with death under section 221 of the Penal Code.

He pleaded not guilty to the charge which was read over and explained to him. The charge proceeded to trial during which the prosecution called five witnesses while the defence presented three, including the Appellant himself. After the hearing and the addresses of Counsel for the parties, the trial Court evaluated the evidence and then found the Appellant guilty as charged, and sentenced him to death, to be hanged by the neck until he is dead.

The Appellant was disappointed with the pronouncement of the trial Court hence this appeal. The parties filed and exchanged their Briefs of Argument in accordance with the Rules of this Court, and later adopted their respective Briefs of Argument at the hearing of this appeal.

In presenting the Appellants’ Brief of Argument, five burning issues were raised by the Appellant for consideration by this Court. They are:

“1. Whether the evidence of P.W.1 requires corroboration.

2. Whether the defence of self-defence was available to the Appellant.
3. Whether the Appellant has a legal duty or obligation to prove his innocence.
4. Whether the trial Court’s evaluation of evidence adduced at the trial supports the judgment.
5. Whether the prosecution (Respondent) could be said to have proved its case against the Appellant in view of the numerous inconsistencies, such as failure to invite the IPO (Inspector Amos Tache), investigating or reporting the investigation on the Appellant’s alibi; failing to tender the Appellant’s statement and subjecting Exhibit B to appropriate forensic analysis and recovering P.W.1’s matchet”.

It was emphasised in the argument tendered in respect of issue No. I by the Appellant’s Counsel, Chief U. A. Mbuko Etq; that the only persons present at the scene of crime were the deceased victim, (Alhaji Garba Na Muri); Alhaji Muhammadu Jabbo (P.W.1) and the Appellant, Alhaji Mu’azu Ali. He referred to P.W.1’s evidence where he stated that the Appellant’s children were close by and that the Appellant ran to his children for reinforcement, and apart from his own axe and knife, he recovered an axe, cap and wristwatch from the Appellant at the scene of crime, and then contended that P.W.s’ 2, 3 4 and 5 were not witnesses to the fact, and, in that con, the testimonies of P.W.2, P.W.3, P.W.4 and P.W.5 were not eye-witnesses accounts.

He then turned to the remarks of the trial Court at pages 49-50 that the evidence of P.W.1 needed to be corroborated and that it, somewhat, found corroboration in the evidence of P.W.2 and P.W.3. Counsel cited the cases of Ogunbayo vs. The State 5 MJSC p.32 at 45 – 46 paras. G – A and Nwanabe vs. The State (1995) 3 SCNJ 77 at 84 where the term, ‘corroboration’ was defined showing therefore that a corroborative evidence must have two ingredients that is to say; (a) that a crime was committed and (b) that the crime was committed by the accused. It was further stated that, where the ingredients are lacking, the evidence cannot be said to have provided the requisite corroboration, and, it is fatal to the case for the prosecution. He cited Jatau vs. Danladi (1995) 8 NWLR Part 415 p. 614 and Iko vs. The State (2001) ALL FWLR Part 68 p. 1161 at 1178 in support and urged that since corroborative evidence is lacking in this case, issue No. I should be resolved in favour of the Appellant.

It is necessary to observe that learned Counsel for the Appellant did not proffer any argument in respect of issue No. 2 which emanated from ground No. 6 of the Appellant’s Notice and Grounds of Appeal. In this regard, the said issue No. 2 in respect of which no argument had been presented is hereby deemed abandoned.

Accordingly issue No. 2 and ground No. 6 in the Notice and Grounds of Appeal are hereby struck out for having been abandoned.

On the third issue; whether the Appellant has a legal duty or obligation to prove his innocence, learned Counsel made reference to the trial Court’s remarks at page 54 lines 3 – 4 of the record of appeal about the various people mentioned by the Appellant, and, who, he had failed to produce to testify on his behalf, which Counsel argued, had weighed heavily on the mind of the Court, and, stated that the Appellant could keep mute if he chooses as prescribed by the law and/or call witnesses to testify in his defence or rest his case on the prosecution’s case. He invoked the provisions of sections 138(1) and (2) and 36(5) of the Constitution of the Federal Republic of Nigeria and the case of Chianugo vs. State (2002) 2 NWLR Part 750 p. 225 at 236 paras F – G and submitted that it is not the duty of the accused to prove his innocence and that the trial Court was, not only prejudicial but, it also wrongly applied the law on the onus of proof in criminal cases. Counsel then urged that this issue be resolved in favour of the Appellant.

Arguing in respect of issue No. 4, Counsel referred to the evidence adduced at the trial Court contained at pages 8 – 29 of the record of appeal and the trial Court’s assessment and evaluation of the same at pages 38 – 55 of the record and submitted that the trial Court dwelt on the submissions of defence Counsel touching on self defence, and provocation in arriving at its decision to convict the Appellant rather than on the evidence before it. He stressed that the defence of self defence and provocation arose in the written address of defence Counsel, that the Appellant never alluded to or presented any defence other than a total denial. He argued that the trial Court was in grave error to have placed reliance on that. He referred to Okwejiminor vs. Gbakeji (2008) FWLR Part 409 p. 405 at 447 paras. D – E, Lewis & Peat Ltd. vs. Akhimien (1976) 7 SC 157, Niger Construction vs. Okugbeni (1987) 4 NWLR Part 67 p. 787, Igwe vs. A.I.C.E. (1994) 8 NWLR Part 363 p. 459 and Ndika vs. Chiejina (2003) 1 NWLR Part 802 p. 451 at 483 paras B – F and submitted that the error of Counsel in addressing on self – defence as against the Appellant’s denial of the allegation cannot be visited punitively on the Appellant. He urged this Court to resolve the issue in favour of the Appellant.

Addressing the Court on issue No. 5, in the Appellant’s Brief of Argument, Counsel submitted that to secure a conviction for murder (Culpable Homicide), it is not sufficient to merely prove that the deceased died. It must be proved beyond reasonable doubt, that the death of the deceased resulted from the act of the accused person and that the act was intentional. The cause of the death of the deceased must be traceable to the act of no other person than the accused person. He contended that the trial Court misunderstood and misapplied the principles of law in the cases of Agih vs. Ejinkonye & Bros Ltd. (1992) 3 NWLR Part 228 p. 200 at 211 paras. G – H; and Mohammed vs. State (1991) 5 NWLR Part I92 at 438 as analyzed by him at page 49 lines 12 to 26 and page 50 lines 1 – 10 of the record.

He submitted that, neither P.W.2 nor P.W.3 witnessed the killing of Alhaji Garba Na Muri and that Exhibit B was received from P.W.1 by P.W.3. He stressed that notwithstanding the trial Court’s reliance on Exhibits A and B, the testimonies of P.W.1, P.W.3 and P.W.4 call for proper scrutiny and caution. He said that the making of Exhibit A by P.W.4, the Medical Doctor was not based on professional analysis but on hearsay evidence that he received from P.W.3 that the late Alhaji Garba Na Muri died as a result of a cut by an axe making a deep larceration on his head and causing seizure of brain function and consequent death. He argued that it would have been necessary to produce the knife used by P.W.1 and subject both the knife and the axe, also, recovered from P’W’ 1 to forensic analysis of finger prints and DNA. He alleged that there was no proper investigation of the allegation and the investigating Police officer who recorded the Appellant’s statement was not called to testify. He urged the court to invoke section 149 of the Evidence Act. He referred to the cases of Shande vs. State (2005) 12 MJSC p. 152 at 173 – 174 paras G – B; Aiguoreghian vs. State (2004) 1 SCNJ p. 65 at 66; Udosen v. State (2005) 8 NWLR Part 928 p. 587 at 603 paras D – G and 604 paras A – D and Adekunle vs. State (2006) 10 MJSC p. 107 at 121 paras D – E and 127 – 128 paras B – C and submitted that the most that could be said of the Appellant was that he was a suspect, and that suspicion does not ground a conviction. He argued that serious doubts exist in this case, and, when there are doubts, they are usually resolved in favour of the accused person. He finally submitted that where the prosecution fails to prove beyond reasonable doubt that the act of the accused person caused the death of the deceased, a verdict of discharge and acquittal must be entered. He urged that this issue be resolved in favour of the Appellant that the appeal be allowed, that the decision of the trial High Court be set aside, that the conviction and sentence of the Appellant by the trial Court be set aside and the Appellant be discharged and acquitted.