Abbas Muhammad Vs The State (2017)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Appellant was charged with the offence of culpable homicide punishable with death, and after a trial in which six witnesses had testified for the Prosecution, the Kano State High Court found him guilty as charged, and convicted and sentenced him to death.

The case against him is that he caused the death of Nura Muhammad” by stabbing him with a knife on his face and back, knowing that death would be the probable consequence of his act.

The Appellant, a football coach, testified in his own defence, and called one other witness. He did not deny that there was a fight between them at the football field, but his side of the story is that he was provoked by the deceased, and acted in self-defence.

In his judgment delivered on 5/11/2008, the learned trial Judge, Tani Yusuf Hassan, J. (as he then was) held as follows –

Counsel to the [Appellant] contended that since the deceased approached [him] with a shovel, [he] had a right of self-defence.. More so when the deceased used abusing language against [him], which provoked [him].. Neither DW1 [Appellant] and

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his witness DW2 and PW2 the eye witnesses told the Court the abusive words used by the deceased. It is settled that words alone can constitute provocation. But that depends on the actual words used and their effect or what they mean to a reasonable person having a similar back ground. In this case, the exact insultive or abusive words are neither known nor disclosed. It will not be possible to determine whether the defence of provocation is open or available to [him].

He further stated as follows at page 85 of the Record –

From the evidence adduced before the Court, the [Appellant] cannot be entitled to defence of justification because the Court cannot give [him] the benefit of defence, which was not reflected and supported by evidence, as there is no direct or indirect evidence to show that [he] was provoked by the deceased. I hold that the defence of provocation and self defence is not available to [him].. because [his] allegation that the deceased hit him with the shovel on the head has been controverted by the evidence of PW4, the police investigating officer, who said under cross-examination that he did not see any injury on [him]. Also

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neither PW2 nor PW3, who were eyewitnesses, told the Court that the deceased injured [him] in fact the evidence of PW2 is that the shovel, which the deceased was holding fell down as they were fighting and [he] brought out a knife stacked (sic) in his pocket and stabbed the deceased at the back. The evidence was collaborated (sic) by (him) in his confessional statement Exhibit A when he said Islezedre (sic) shovel and hit him on his left leg and hit him on his back two times Even it is true that (he) was wounded by the deceased; the degree of retaliation by the [Appellant] proportionate with the attack by the deceased. In the case at hand, there is no wound by the deceased and abusive words by the deceased has not explained by [him] and even the witnesses either for the prosecution or the Defence.

He challenged the decision of the trial Court at the Court below, wherein he formulated two Issues for Determination whether the Prosecution proved its case beyond reasonable doubt and the trial Court right to convict and sentence him of the offence; and whether the trial Court properly considered and rightly dismissed the defence of provocation and self-defence, which he had raised.

The Court below [Coram: