Abdullahi Ada Vs The State (2008)
LAWGLOBAL HUB Lead Judgment Report
I.F. OGBUAGU, JSC.
This is an appeal against the decision of the Court of Appeal, Kaduna Division delivered on 10th December, 2003 dismissing the appeal of the Appellant and affirming his conviction and sentence of death by the High Court of Kebbi State in Birnin Kebbi Judicial Division presided over by Ambursa, J. on 24th February, 2000.
Dissatisfied with the decision, the Appellant who was the 4th accused person, has appealed to this Court on three (3) grounds of appeal which without their particulars, read as follows:
“The learned Justices of the Court of Court of Appeal erred in law in confirming the conviction and sentence of the appellant in spite of the fact that the trial court failed to consider and examine the defences open to the Appellant on the record before convicting the Appellant as charged.
The Court of Appeal erred in law when in dismissing the appeal of the Appellant it held that the Appellant failed to call evidence in support of the defences available to him nor pinpoint the elements constituting such defences.
The learned Justices of the Court of Appeal erred in law and occasioned a miscarriage of justice to the Appellant when they failed to confine themselves and resolve the only issue formulated by the Appellant for determination before them but instead, suo motu raised and considered an entirely different issue without affording the Appellant any opportunity to be heard on the said issue before using same as a basis to dismiss the appeal of the Appellant”.
For the avoidance of doubt, I will reproduce verbatim, the facts of this barbaric, heartless and most wicked slaughtering of the deceased by the six (6) accused persons including the Appellant as stated in the Appellant’s Brief which facts, have been adopted by the Respondent in its Brief. They read as follows:
“1:1. On or about the 14th day of July 1999, it was rumored (sic) in Randali and Kardi villages within Birnin Kebbi Local Government Area ofKebbi State that one Abdullahi Alhaji Umaru of Randali village (now deceased) defamed Holy Prophet Mohammed (SA W). Accordingly, some Moslem fanatics arrested the deceased at Kardi village and kept him in the custody of Suleiman Dan Ta Annabi who was the 6th Accused person in the trial court as well as in the custody of one Mohammed Sani (the 3rd Accused before the trial court). Meanwhile, one Musa Yaro – the 1st Accused in the court of trial in conjunction with Usman Kaza (the 2nd Accused in the court of trial) as well as the Appellant (the 4th Accused in the court of trial) went to intimate the village head of their intention to met out the prescribed punishment on the deceased for defaming the name of Holy Prophet Mohammed (SA W). The village Head never gave any answer to them.
1:2. Subsequently, the said Musa Yaro, Usman Kaza and the ‘Appellant returned to the outskirt of Kadi (sic), village where the deceased was being held captive by Suleiman Dan Ta Annabi and one Mohammed Sani and on getting there, Musa Yaro read a portion ofRisala to the effect that the punishment of any one who defame Holy Prophet Mohammed (SA W) is death. Following this recitation, Mohammed Sani matched the deceased on the neck and he fell down. Abubakar Dan Shalla (the 5th Accused in the court of trial) used a knife and slaughtered the deceased by the neck and the deceased died on the spor.t (sic) Thereafter, everybody dispersed from the scene.
1:3. Subsequently, all the persons who participated one way or the other in the alleged crime were arrested by the police and taken to C.I.D, office at Birnin Kebbi. At the end of police investigation into the alleged offence, the Appellant and 5 others were arraigned before the High Court of Justice Birnin Kebbi – Kebbi State of Nigeria presided over by Hon. Justice Mohammed Suleiman Ambursa on counts of Criminal conspiracy, Abetment and Culpable Homicide punishable with death contrary to sections 97, 85 and 221 (a) respectively of the Penal Code. The Appellant was the 4th Accused person before the trial court.
1:4. In the course of trial, the prosecution called 8 witnesses in proof of the alleged offences while the Appellant rested his case on that of the prosecution – see pages 41 – 56 of the record. Thereafter the Counsel to the respective parties addressed the court (see pages 56 – 61 of the record) and on the 24th day of February 2000, the learned trial Judge delivered his judgment and found the Appellant guilty of criminal conspiracy, abetment and culpable Homicide punishable with death contrary to sections 97, 85 and 221 (a) of the Penal Code respectively. The Appellant was therefore sentenced to death by the trial court.
1:5. Being aggrieved by the said judgment of the trial court, the Appellant applied to the Court of Appeal (Kaduna Division) for an order extending time for him to file an appeal to the said Court of Appeal. The said Application of the Appellant was granted by the Court of Appeal -seepage 81 (a) of the record. As a result, the Appellant filed his notice and grounds of appeal before the Court of Appeal on the 28″ of January 2003 – seepages 79 – 81 of the record and in accordance with the Rules of procedure of the said court, the Appellant filed his Brief of argument wherein he raised only one issue for the ‘determination of the Court of Appeal – see pages 82 – 92 of the record. In response, the Respondent also filed the Respondent’s brief as can be seen at pages 93 – 99 of the record. Subsequently, the Court of Appeal heard the said appeal on the 14th day of October 2003. – seepages 100 102 of the record and by a judgment delivered on the 10th day of December 2003 per Hon. Dalhatu Adamu (JCA), Hon. Baba Alkali Ba’aba (JCA) and Hon. Stanley Shenko Alagoa (JCA), the said appeal of the Appellant was dismissed – see pages 105 – 140 of the record.
1:6. Subsequently, the Appellant who was out of time in filing an appeal to this Court in challenging the said decision of the Court of Appeal applied to this Court for an Appeal of the Appellant filed on the 11th of November 2004 as property filed”.
As appears in the above facts, at the said Court of Appeal (hereinafter called “the court below”), the Appellant argued only one ground of appeal – i.e. ground 3 in his Notice of Appeal after abandoning grounds one and two. In other words, the Appellant formulated one issue for determination which reads as follows:
“Did the Appellant suffer any miscarriage of justice when the court below refused to consider the several defences available to the Appellant on the record before convicting the appellant as charged”?
In this Court, the Appellant, has formulated three (3) issues for determination, namely,
“Issue No. 1
Whether or not the Court of Appeal was correct in law when it confirmed the conviction and sentence of the Appellant despite the fact that the trial court failed to consider and examine the defences open to the Appellant on the record before convicting the Appellant as charged. This issue relates to ground one of the Grounds of Appeal.
Issue No. 2
Whether or not an Accused person is under a legal obligation to call evidence in support of the defences open to him on the record or pinpoint the element constituting the defences before he is entitled to a consideration of the defences by the trial court. This issue relates to ground two of the Grounds of Appeal.
Issue No. 3
Were the learned Justices of the Court of Appeal correct in law when they considered the record of proceedings suo motu and held that the defences of justification and provocation did not avail the Appellant even when the Appellant was not afforded the opportunity to canvass argument on the said point before their lordships arrived at such a conclusion? This issue relates to ground three of the Grounds of Appeal”.
On its part, the Respondent has formulated two (2) issues for determination, namely,
“ISSUE NO. 1
Whether or not the Court of Appeal was right when it went ahead and evaluate (sic) (meaning to evaluate) evidence with regard to defences available to the Appellant which ought to have been done by the trial court, having regard to Order 1 have been done by the trial court, having regard to Order 1 Rule 19 paragraphs 3 and 4 of its Rules. The issue relates to ground 3 of Grounds of Appeal.
ISSUE NO. 2
Whether or not the Court of Appeal rightly held that the defences of Justification and Provocation as provided under Sections 45 and 222(1) of the Penal Code respectively were not available to the Appellant. This issue relates to ground 1 of the Grounds of Appeal”.
For clarity and completeness, I will take the said issues of the parties together since they deal with the consideration of the said defences of justification and provocation by the court below.
From his issue No. 1, it could be seen that the Appellant is complaining about the failure of the trial court to consider and examine the defences open to the Appellant on the record before convicting him as charged. I had noted that this was his sole issue at the court below. Now, under his Issue No 3, he queries whether the court below was correct when it considered the defences of justification and provocation and held that they did not avail the Appellant, and according to him,
“when the Appellant was not afforded the opportunity to canvass argument on the said point before their Lordships arrived at such a conclusion”
From the said facts stated above, it is admitted by the Appellant that while the prosecution called eight (8) witnesses in proof of its case, the Appellant, never testified in his defence and did not call any witness. He rather, rested his case on that of the prosecution. At page 56 of the records after the trial court granted the application for an adjournment to 16th February, 2000 for defence and address, the following appear inter alia:
“16/2/2000 – E. C. Oguelina (i.e. Appellant’s learned counsel). We must express our gratitude for the time given us by this Honourable Court to review the case and make up our mind as to whether to rest our case on that of the Prosecution or call evidence. We have made up our mind to rest our case on that of the Prosecution. We are ready to address the Court”.
[the underlining mine]
Learned defence counsel proceeded to address the court there and then. In other words, it was the decision of the learned defence counsel and the Appellant, for the Appellant not to go into the witness box to testify, but to rest his case on that of the prosecution. It was their/his right to so decide.
I will now deal even briefly, with the effect of an accused person just like a defendant resting his case on the case of the Plaintiff. Such a stance, is regarded as a legal strategy. In my concurring Judgment recently, in the case of Major Bello M. Magaji & The Nigerian Army dated 7th February, 2008 (unreported), (new reported in this volume of SCM) (now reported in this volume of SCM) I dealt with this issue and referred to the cases of Oforlete v. The State (2000) 7 SCNJ. 162 at 179, 183,184 and Ubani & 2 ors. v. The State (2003) 12 SCNJ. 111 at 130, (2003) 12 SCM, 310 where it is firmly settled that where an accused person rests his case on that of the prosecution, the evidence of the prosecution which has not been controverted by the accused person, is deemed to have been accepted or admitted by such an accused person. Such evidence being unchallenged and uncontroverted, a trial court has a duty and in fact, is entitled to act on it where credible. In the case of Ali & anor. v. The State (1988) 1 NWLR (Pt.68) 1 at 18, (1988) l SCNJ. 17; Oputa JSC, (Rtd.), stated that it is always a gamble to rest the defence on the case of the prosecution.
See also the case of Nwede v. The State (1985) 3 NWLR (Pt.13) 444. The defence in effect, has shut itself out and will have itself to blame as the court, will not be expected to speculate on what the accused person might have said.
The learned trial Judge at pages 75 and 76 of the Records, stated in this regard inter alia, as follows:
“Therefore in this particular case the onus is on the accused persons to prove that they have a right in the Quran or Risala to kill Abdullah Alhaji Umaru. (i.e. the deceased). Furthermore, the accused persons did not raise or suggest any defence, their voluntary statements did not suggest any defence and there is no doubt about this. The evidence adduced by the Prosecution remained uncontradicted and unchallenged, positive and direct. In Nasamu v. The State (1969) F.S.C. (sic) it was held by the learned justices that a court will fail in its duty if it fails to convict on the evidence of Prosecution which is unchallenged and uncontradicted. I also observed that the witnesses who testified for the Prosecution gave direct evidence in support of the case of the Prosecution and were found to be witnesses of truth. I accept their testimony”.
[the underlining mine]
At page 117 of the Records, the court below – per Adamu, JCA, stated inter alia, as follows:
“……….it is not in dispute that all the Appellants took part and participated in the unfortunate incident that led to the gruesome murder or killing of the deceased by name Abdullahi Alhaji Umaru for his alleged (but unproven) use of abusive, defaming or insultive words against the Holy Prophet Mohammed (SAW). The Prosecution has led evidence to prove the essential ingredients of the offences for which the appellants were charged including their confessional and voluntary statements to the Police which was neither denied nor retracted from (sic) the said appellants. It is also to be noted as rightly pointed out by the learned trial judge and as reflected by the record that the appellants rested their case on the evidence adduced by the Prosecution and chosed (sic) not to give or call any evidence for their defence. They were also ably represented by a counsel during their trial who failed to raise or prove any defence for them, during the trial. Consequently, the only evidence available before or at the trial court were that of the prosecution witnesses (8 of them) and the confessional or voluntary statements made by the appellants to the Police and tendered as Exhibits E, F, G, H, J and K) and other exhibits (e.g. medical report and the weapons used by the appellants etc.) also tendered by the prosecution.
All other facts are commonly accepted by the parties, herein as there is no dispute about them……….”.
[the underlining mine]
All the above show that the Appellant, had no defence for his brutal and callous slaughter of the deceased perpetrated by him and his co-conspirators and accomplices – i.e. the other five (5) accused persons. In the court below, his grouse or complaint was/is that he suffered “a miscarriage of justice” as the trial court “refused to consider the several defences available to him on the record before convicting him”. Not that he raised any of the said defences either in his said confessional statement or in his defence in the witness box. For him and his learned counsel, since it is settled that a trial court must consider all defences open or available to an accused person especially in murder cases, there was a miscarriage of justice to him.
I note that at page 75 of the Records, the learned trial Judge stated inter alia, as follows:
“I am satisfied that the confessional statements of the accused persons were voluntary, free, direct, positive, properly recorded, tendered and admitted in evidence. I see no reason to decline acting on them”.
As noted above in this Judgment, a trial court, will fail in its duty, if it fails, refuses and/or neglects to convict on the evidence of the prosecution which is unchallenged and uncontroverted. It is now also settled in a line of decided authorities by this Court, that a court can convict based on the confessional statement of an accused person made voluntarily and which is direct, positive, true and unequivocal and made out of conscience of the necessity to uphold the truth even in the face of death. See the cases of Onyejekwe v. The State (1992) 4 SCNJ. 1 at 8; Kim v. The State (1992) 4 SCNJ. 81 at110; Akpan v. The State (1992) 7SCNJ. (Pt.1) 22 at 46 and
Bature v. The State (1994) 1 NWLR (Pt.320) 267; (1994) 1 SCNJ. 19 at 29 – per Onu. JSC, just to mention but a few.
The question I or one may ask, is, in the face of the evidence of the said prosecution witnesses which were unchallenged and uncontroverted and were accepted or believed by the trial court and also and more importantly, the said confessional statement of the Appellant, which the learned trial Judge was satisfied rightly in my respectful view to be voluntary, direct and positive and admitted in evidence without objection, what other defences were the learned trial Judge to consider? I have reproduced above, the findings of fact by the court below at page 117 of the Records. For purposes of emphasis, I repeat part of the said findings, namely,
“……… ..Consequently, the only evidence available before or at the trial court were that of the prosecution witnesses (8 of them) and the confessional or voluntary statements made by the appellants (which include the Appellant) to the Police and tendered as Exhibits……..”.
The learned trial Judge, rightly and correctly again in my view, had a duty to act and did in fact act, upon the said unchallenged and uncontroverted evidence of the said prosecution witnesses and the said confessional statement of the Appellant. Period! See the case of Ubani & 2 ors. v. The State (supra).
I am aware of and this is settled, of the duty of the court to consider all defences raised by evidence in the Records even if the defence does not specifically raise them regardless of whether the defences are weak or stupid. See the cases of Williams v. Inspector General of Police (1965) NMLR 470; Takida v. The State (1968) 1 All NLR 270; Apishe & 2 ors. v. The State (1971) 1 All NLR. 50; Njoku v. The State (l993) 7 SCNJ. (Pt. 1) 36 at 41; Grace Akpabio & 2 ors. v. The State (1994) 7-8 SCNJ. (Pt. III) 429 citing several other cases therein; and Sampson Nkeji Uwaekweghinya (2005) 3 SCNJ, 32; (2005) 3-4 S.C. 29 at 38. and many others. As is obvious from this proposition of the law, the defence or all the defences, must have been raised in the evidence before the trial court. Such evidence so raised, must be in the Records of proceedings.
It is not a matter of speculation by the court. As noted by the court below in the excerpts I have reproduced,
“……… .It is to be noted as rightly pointed out by the learned trial judge and as reflected by the record that the appellants rested their case on the evidence adduced by the Prosecution and chosed (sic) not to give or call any evidence for their defence. They were also ably represented by a counsel during their trial who failed to raise or prove any defence for them during the trial……”.
[the underlining mine]
So, as regards Issue No. 1, there was no defence or defences raised, proved or open to the Appellant on the Record which the trial court failed to consider and examine. The said issue, in my respectful view, is a non-issue in the circumstances and with respect, it is grossly misconceived.
Flowing from the above, as regards Issue No. 2, if there is or are any defence or defences raised, proved or open to an accused person which evidence appear in the Record of proceedings, a trial court has a duty to consider and/or examine such defence or defences whether weak or stupid. But since the Issue is a hypothetical one, a court and this Court, is not permitted to go into such hypothetical questions or issues. But since again, there are/were no defence or defences available to the Appellant or to pinpoint the elements constituting such defences raised, open or proved in the Records, the trial court, could not and was not expected to consider, such defence or defences. I hold with respect in the alternative, that this issue, is completely misconceived and being hypothetical, I discountenance the same.
Incidentally and ironically, the court below, considered the defences of justification and provocation. Yet, the Appellant, like a drowning man hanging on or clinging to a straw, is now under Issue No. 3, blaming that court and say that the court below, raised them suo motu and did not afford him the opportunity, to canvass argument on the said point before arriving at the conclusion that the said defences, did not avail him. Wonders it is said, shall never end!
However, for purposes of emphasis, as regards the said Issue No. 3 and Issue No. 1 of the Respondent, I note or observe that the court below with respect, abundate et cautela, considered the defences of justification and provocation which were never raised in his confessional statement or in any defence on oath at the trial. The court below, was being “magnanimous” in so doing. It dealt in effect with defences not raised in the Records under the mistaken view that such defences, will be considered and examined by the trial court whether or not it was raised in evidence in the Records. Having found as a fact and held that, no such defence or defences, was or were ever raised by the Appellant who never testified but rested his case on that of the prosecution in which none of its said witnesses, testified of any justification or provocation, the court below, in my respectful view, had no business considering the said defences of justification and provocation which were/are not the case of the Appellant and not even raised by him and his learned counsel.
I hold that such exercise by the court below, (although understandable and with respect, displaying transparent justice), was uncalled for. But since the Appellant has not shown what prejudice he suffered or what was the miscarriage of justice meted out to him by such an exercise, his said Issue No. 3 in my respectful view, is of no moment or consequence. But in answer to Issue No. 1 of the Respondent, I hold that the court below, was right in evaluating the evidence on Record, and finding that there was no evidence therein, to sustain such defences that did not exist in the said Record. Afterwards, an appeal, is in the nature of or by way of a re-hearing. See the cases of Namsoh v. The State (1993) 5 NWLR (Pt.292) 129 at 143; (1993) 6 SCNJ. 55; Sabrye Motors Nig. Ltd. v. Rajah Enterprises Nig. Ltd. (2002) 4 SCNJ. 370 at 382 and Attorney-General, Anambra State & 5 ors. v. Okeke & 4 ors. (2002) 5 SCNJ. 318 at 333 just to mention a few. Of note also, is the clear and unambiguous provision of Section 16 of the Court of Appeal Act which gives full jurisdiction over the whole proceedings as if the proceedings, had been initiated in that court as a court of first instance and may re-hear the case as a whole or in part.
The trial court at page 76 of the Records, stated inter alia, as follows:
“I have carefully observed the accused persons throughout the trial. It is sad that such young persons could heartlessly kill a human being in such a cruel manner without any remorse whatsoever. I wonder what was their concern with a rumour which was said to happen in a neighbouring village. They actually acted in a cruel and unusual manner sufficient to warrant conviction”.
The court below, on its part, after painstakingly and thoroughly, considering or dealing with the said alleged defences, at pages 123 to 136 of the Records, held that the said defences, are not available to the Appellant and the other co-accused persons.
His Lordship, at page 123 of the Records stated inter alia, as follows;
“………..There is no mention or suggestion whatsoever about the defence of provocation from the above quoted passage as its particulars or legal elements were not mentioned as done in relation to the defence of justification. Consequentially, it is wrong in my view, for the appellants counsel to now give the impression in his brief of arguments that their counsel, had alerted the learned trial judge on that defence. That to me is a mere after thought and a misstatement…….”
[the underlining mine]
At page 124 thereof, the following inter alia, appear:
“In all their voluntary and cautioned statements to the Police …….. the appellants confessed to the killing or causing the death of the deceased through their joint (or mob) act on the fateful day because they heard the rumour (which was not even confirmed) that he had insulted or blasphemed the Holy Prophet (SAW). The actual words of insult allegedly uttered by the deceased were not known. The Appellants however along with others (now at large) however constituted themselves into a fanatical Islamic vanguard or a religious vigilante groups and upon hearing the rumour took it upon themselves to go in search of the deceased who was alleged to have insulted the Holy Prophet (SAW).
Even before seeing or hearing him, they had already passed a sentence or judgment against him that he must be killed for his offence under Sharia as recommended in both the Quran and Risala. They even made a threat to kill his master PW2 by name Aliyu Magga who they believed was hiding the alleged culprit in his place if he was not found………”.
At page 126 of the Records, His Lordship continued inter alia, as follows:
“In applying the above principles of law on the defence of justification to the facts and circumstances of the case at hand, it will be very clear that the appellants with their shallow knowledge of Sharia or Islamic law and calling themselves Muslim Brothers, have in ignorance or deliberate disregard of the rules of judgment and procedure under the said Sharia as contained in the same text of Risala, arrogated to themselves the function and role of a court of law or a Khadi and wrongly (without any proof or evidence) or based on rumour or hearsay, convicted, sentenced and inflicted or carried out the execution of the supposed punishment. They cannot claim that to be the way of life of their community because they were not supported by both the Village Head and Ustaz Mamman………”.
At page 136 thereof, His Lordship stated inter alia, as follows:
“From my consideration of the lone or single issue formulated by the appellant (sic) for determination of this appeal, the said issue and its related ground of appeal have failed and must be resolved against the said appellant (sic). With the failure of the said issue the appeal itself has also consequently failed and must be dismissed……….”.
I completely agree. This hopeless appeal, however I or one looks at it, is very unmeritorious and fails. I note that there are concurrent findings of fact by the two lower courts and on the authority of the cases of Sobakun v. The State (1981) 5S.C. 75: Igwe v. The (1982) 1 SCNJ. 256; Princent & anor v. The State (2002) 12 SCNJ. 280 and too many other decided authorities by this Court in this regard, there is no way, this Court can interfere. I too, dismiss the appeal and affirm the decision of the court below affirming the conviction and sentence of death imposed on the Appellant by the trial court.