Abubakar Dan Shalla V The State (2007) LLJR-SC

Abubakar Dan Shalla V The State (2007)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

The appellant, Abubakar Dan Shalla, was the fifth of six accused persons who were brought before the High Court of Kebbi State, Birnin Kebbi on a three-count charge of criminal conspiracy, abatement and culpable homicide contrary to sections 97, 85 and 221 (a) of the Penal Code respectively. On 18/1/2000, each of the appellant and the five other accused persons charged with him pleaded not guilty to each of the three counts. Hearing of the case opened on 19/1/2000. The prosecution called eight witnesses. The appellant elected not to testify or call a witness.

The trial Judge, Ambursa, J. on 24-02-2000, in his judgment found the appellant and the five other accused persons charged with him guilty of the offence of culpable homicide and each was sentenced to death under section 221 (a) of the Penal Code. The appellant brought an appeal against the judgment of the trial court before the Court of Appeal Kaduna (hereinafter referred to as ‘the court below’). The court below, on 10-12-03 in its judgment dismissed the appeal and affirmed the judgment of the trial court. The appellant has come before this court on a final appeal. The appellant raised three grounds of appeal out of which two issues were formulated for determination. The said issues are:

1. Whether the learned Justices of the Court of Appeal ought to confirm the conviction, and sentence of the appellant by the trial court. This issue is distilled from grounds 1 and 2 of the grounds of appeal.
2. Whether the learned Justices of the Court of Appeal were right in raising the issue of defences of justification and provocation without affording the parties the right to be heard on the said issue raised suo motu. (This issue is distilled from ground 3 of the grounds of appeal).”

The respondent in its brief adopted the issues for determination as formulated by the appellant’s counsel in the appellant’s brief.

Let me start by examining the case of the prosecution against the appellant as put before the trial court. It was alleged that a group of persons of whom the appellant was one, had stated that one Abdullahi Alhaji Umaru (now deceased) made certain remarks which were insulting to Prophet Mohammed (S.A.W.) and that the deceased ought to be killed as prescribed in the Holy Quran for making the alleged remarks. They went in search of the deceased, laid their hands on him and slaughtered him with a knife. The incident was reported to the police on 14-7-99. The appellant and five other persons were arrested for killing the deceased. The evidence of PW5 as to the manner in which Abdullahi Alhaji Umaru was killed is particularly eye-opening. At page 51 of the record, he testified thus:

“What I know is that on 14-7-99, I was at my sleeping place at Kardi when one Mr. Bello Dan Nana woke me up and asked me whether I was aware of what was happening and I told him that I didn’t know. He told me that somebody was accused of insulting the Prophet Mohammed (SAW) and asked whether I will go to the place where he was being held. I took my catapult and started going to the scene along with Bello at Shiyar Riyoji where the person who was accused of insulting the Prophet (SAW) was arrested. On my arrival, I found that it was Abdullahi Alh. Umaru of Randali Village who was being held by the 6th accused Suleiman and the 3rd accused Muhammadu Sanni. These accused persons pulled Abdullahi Alh. Umaru towards the road leading to Randali on the outskirt of Karcli near a burial ground. As Abdullahi was being held there in our presence, the 1st accused Mallam Musa just appeared and said whoever abused the Prophet shall be killed. He read a verse but I can’t bring it as read. On hearing this, Muhammadu Sanni (3rd accused) used a matchet which was with him on Abdullahi Alh. Umaru on the head and Abdullah fell down. Then Abubakar Dan Shalla (5th accused) slaughtered Abdullahi with a knife on the neck just like a goat. I saw the knife used by the 5th accused in slaughtering Abdullahi but I can’t describe it as he went away with it. When they were sure that Abdullahi died, they all dispersed and ran away. We too left the corpse and went home.”

As I observed earlier, the appellant elected not to testify at the trial. He called no witness but his statement under caution to the police was tendered in evidence as exhibits G and G 1. The statement of the appellant exhibit G1 read thus:

“On Wednesday 14/7/99 at about 2000hrs after Isha’I prayers, I sat down at the frontage of Mosque at Faransi Area of Kardi then one Musa Yaro of Kardi came and met me with an information that, someone abused Prophet Mohammed at Randali Village which he is not sure, but he will try to find out at Randali. On hearing that, I stood up and went inside my house and carried knife along with me, and I moved to Randali. On reaching there, I went straight to one Shugaban Samari for confirmation about the abusing of Prophet Mohammed and he assured me that, the issue is true, and that there were witnesses to testify but he did not tell me the kind of abuse. And from there, I heard someone saying, that Abdullahi Alh. Umaru who abused the Prophet had been arrested at Kardi, then I quickly went back and met Abdullahi who was together with Adamu Aljani, Kalli Odita and others whom I was not able to know then. Then we later sent the following:

Musa Yaro, Usman Kaza and Abdullahi Ada to the Village Head of Kardi to know what is happening in his village. As they returned back from the Village Head’s house, Musa Yaro made some quotation in Risalah which means that. whoever abused Prophet Mohammed shall be killed, then people started beating Abdullahi Alh. Umaru, and Mohammed Sani matcheted him and he fell down, then I removed the knife that was in my possession with my right hand and slaughtered him “deceased” just along Randali-Kardi Road near a burial ground of Kardi. And we all dispersed. When I reached home, I fetched some water and washed the knife and part of my cloth that was stained, the cloth is light blue in colour. That’s all my statement.”

It is apparent that the evidence of PW5 as to how the deceased was killed and in particular as to the fact that it was the appellant who actually slaughtered the deceased was unchallenged. More than that however, the appellant in exhibit G1 narrated how the deceased was apprehended, his alleged offence and the manner the appellant himself killed the deceased.

The case against the appellant boils down to this: The appellant and the 5 accused persons charged along with him had heard from some sources that the deceased had somewhere in their village made some remarks which were considered insulting to Prophet Mohammed (SAW). The of the remarks or the exact words employed by the deceased were not given in evidence. The 1st accused had read to the other accused persons including the appellant a passage in the Holy Quran where it was said to be prescribed that anyone who insulted Prophet Mohammed (SAW) in the manner the deceased was said to have done deserved to be killed. As adherents to the teaching in the Holy Quran, the appellant and the other accused persons accepted that they had a duty to kill the deceased in effectuating the contents of the Holy Quran. They accordingly slaughtered the deceased by slicing his throat. In the manner the appellant and the other accused persons behaved during their trial by not calling evidence to deny the allegations against them, and by in fact admitting that they killed the deceased, there is no doubt that they laboured under a notion that they had a duty under Islamic injunction to kill the deceased.

At pages 74-76 of the record of proceedings, the trial Judge in his judgment said inter alia:

“It is worthy to note that the backbone of this case is the testimony of PWs 2, 3, 5 and 6. Exhibit D and the confessional and voluntary statements of the accused persons in exhibits E, F,G, H, J and K. Each one of the accused persons admitted taking part and remaining at the scene where Abdullahi Alh. Umaru was killed in a brutal manner. Each of them narrated fully the role he played. The 3rd accused admitted striking the deceased with a matchet on the neck, the 5th accused admitted slaughtering the deceased with a knife, the 6th accused admitted holding and pulling the deceased to the last destination, the 1st accused admitted giving the authority to kill the deceased while the 2nd and 4th accused admitted going up and down to ensure that the deceased was punished. I have carefully examined these statements and found that they are at all material times in corroboration of the evidence of the prosecution witnesses on the account of the death of Abdullahi Alh. Umaru. I noted that the statements were duly endorsed by a Superior Police Officer and were tendered without objection. I found the statement of each of the accused persons positive, direct, voluntary and consistent. From the evidence adduced, the accused persons had every opportunity to commit the offence. In Kanu v. The King (1952) 14 WACA 30,32 Coussey, J. A. said:

A voluntary confession of guilt, if it be fully consistent and probable, is justly regarded as evidence of the highest and most satisfactory nature wherever there is independent proof that a criminal act has been committed by someone.

In the case at hand. there is evidence that Abdullahi Umaru was brutally killed and there is the confession of the accused persons to that effect.

In Phillip Ekpenyong v. The state (1991) 6 NWLR (Pt. 200) page 683. 704 the Court of Appeal held –

‘A man may be convicted on his own confession alone,there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive and is properly proved. The court may if it thinks fit. convict him of any crime upon it … once a statement complies with the law and the rules governing the method for taking it and it is tendered and not objected to by the defence, whereby it was admitted as an exhibit, then it is a good evidence and no amount of retraction will vitiate its admission as a voluntary statement. ‘

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 … 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 Abdullahi Alh. Umaru. 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.; (1979) 6-9 SC 153. I also observed that the witnesses who testified for the prosecution gave direct evidence in support of the case for prosecution and were found to be witnesses of truth I accept their testimony.”

In affirming the judgment of the trial court, the court below at pages 118-120 of the record reasoned thus:

“What is in dispute and on the crucial point stemming from the appellant’s submissions under the lone issue is the alleged failure of the learned trial Judge to consider in his judgment all the possible or available defences open to the appellants. Amongst these possible or available defencies, as suggested in the appellant’s brief, are the defences of justification and provocation. I have given due and careful consideration to the submissions in the two briefs on the issue. In its resolution, I will begin by stating or rather restating the settled principle of law on the topic raised under it to the effect that while the trial court is under an obligation or has duty to consider all Ihe defences possible or available to the accused (appellants) on the facts even though they appear to be stupid, improbable or unfounded. And whether or not they were specifically raised by the appellant, it (i.e. the trial court) cannot give him (the said appellant) the benefit of defences which were not supported or reflected by the evidence on record – See Abara v. The State (1981) 2 NCR 110, at P.117 of the report; Ekpenong v. State (supra) at p. 525 of the report; Udofia v. D.P.P (1955) 15 WACA 73; Sanusi v. State Digest of Supreme Court Cases Vol. 10 p. 348; Nwuzoke v. The State (1988) 1 NWLR (Pt. 72) 529; R. v. Bio (1945) 11 WACA 46 at 48; Asanya v. State (1991) 3 NWLR (Pt. 180) 422 at 451 and Ogunleye v. The State (1991) 3 NWLR (Pt.117) 1. As a corollary to the above rule or principle, the trial court is only under an obligation or duty to consider such defence(s) open to an accused person only as discussed or supported by the evidence on the printed record. Thus in Ekpenyong v. State (supra) it was held that a court of law will not presume or speculate on the existence of facts not placed before it and that accused person is usually required or recommended to give his evidence viva voce rather than adopting his previous extra judicial statement for his defence or resting his case on the evidence of the prosecution as done by the appellants in the instant case. Moreover, the defence of provocation as asserted by the appellants in the present case like all other defences cannot hang in the air without Supprting evidence. Nor can it be built on scanty foundations. In order to establish it, it is the duty of the accused person to adduce credible and positive evidence to support the alleged provocation. Where the accused person fails to adduce evidence in support of his defence as in the present case, the trial court has to rely on the evidence before it as adduced by the prosecution. It must be noted that in the present case, before the trial court, instead of the learned counsel for the appellants to call evidence in support of their two defences as canvassed in their brief of arguments, or at least to pinpoint the elements constituting such defences from the evidence adduced by the prosecution upon which they relied, he failed to do so and such failure in my humble view shows that he did not perform his proper role or function in the defence of his clients (i.e. the appellants),”

Was the court below in error to have affirmed the judgment of the trial court in the circumstances narrated above I now examine the issues for determination formulated by the appellant.

Under the first issue, the argument of counsel is that, as the trial court failed to consider the defences of justification and provocation, which were available to the appellant on the evidence before the trial court, it was the duty of the court below to have set aside the conviction of the appellant and the other accused persons. Counsel referred to Williams v. State (1992) 8 NWLR (Pt 261) 515 at 522;Araba v. State (1981) 2 NCR 110 at 125; Fadina v. Queen (1958) SCNLR 250; Udofia v. The State (1984) 12 SC 139; Ojo v. The State (1972) 12 SC 147; Ogunleye v. The State (1991) 3 NWLR (Pt 177) 1 at 3 and Opayemi v.The State (1985) 2 NWLR (Pt 5) 101. It was finally argued under issue 1 that the court below should have ordered a retrial.

The appellant’s counsel under the second issue for determination argued that the court below eventually went on to consider the defence of justification and provocation but that when it did, it had not allowed the appellant an opportunity to address it on the matter. It was argued that the court below suo motu raised the defences of justification and provocation and proceeded to decide the appeal on that basis without affording the appellant a hearing. Counsel relied on Badmus v. Abegunde (1999) 11 NWLR (Pt.627) 493, (1999) 71 LRCN 2912; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt.684) 298, (2000) 80 LRCN 2877. Counsel finally urged the court to allow the appeal on the ground that the approach of the court below amounted to a denial to the appellant of his right to fair hearing as enshrined in section 36 of the 1999 Constitution of Nigeria.

In reacting to appellant’s first issue: it is important to bear in mind that, at the proceedings before the trial court, there was not a shred of evidence as to what the deceased had done or what words he uttered which was considered by the appellant and other accused persons as constituting an insult to Prophet Mohammed (SAW) Now in Takida v. State (1969) 1 All NLR 270 at 273-274, this court per Coker C.J.F. said:

“No court is bound to speculate on what possible defences can be open to a person accused before it but where in a trial for homicide, the evidence suggests a line of defence.,it is the duty of the court to consider and deal with that defence whether or not the accused or his counsel expressly raised that defence by the legal terminology ascribed to it by lawyers.”

See also Willams v. The State (1992) 8 NWLR (Pt. 261) 515 at 522: Udofia v. The State (1984) 12 SC 139 and Ojo v. The State (1972) 12 SC 147. That approach however, does not enable the court to consider fanciful or imaginary defences which could not possibly be available to an accused person on the evidence before the court. See Abara v. The State (1981) 2 NCR 110 at 125. Ekpenyong v. The State (1993) 5 NWLR (Pt. 295) 513 at 522; Asanya v. State (1991) 3 NWLR (Pt. 180) 422 at 451 at 351. In the circumstances of this case, since the trial court was not told the words alleged to have been uttered by the deceased or the act he did which were contrary to the injunctions of Islam as contained in the Holy Quran, and which justifies his killing, the trial court could not be criticized for not engaging in a futile speculation. The court below was therefore not in any error to have held that the defence of justification and provocation were not available to the appellant before the trial court.

The second issue for determination is inexorably linked with the first issue. The court below having held that the defences of justification and provocation were not available to the appellant still went on to consider the applicability of those defences in the circumstances of this case. It was this occurrence that the appellant’s counsel not relied upon under the second issue as denying the appellant a right to fair hearing on the ground that the appellant’s counsel was not first heard on the point. Ordinarily, it would be unnecessary to consider the second issue since I have made the point that it was not even necessary to consider the defences since the evidence did not directly or indirectly raise them. I only consider the 2nd issue ex abundati coutello.

At pages 12 – 13 of the appellant’s brief. counsel before us argued thus:

“4.17 With due respect to the learned Justices of the Court of Appeal. we submit that from their pronouncement above, they have conceded that the learned trial Judge ought to but refused to consider the defences of justification and provocation as raised by the appellant.

18.18 We suhmit also that it is not in doubt with due respect to the learned Justices of the Court of Appeal,that the lone issue raised by the appellant’s counsel before them was not considered at all, rather the new issue raised suo motu as to whether the defences of justifications and provocation enure in favour of the appellant was the basis upon which the appellant’s appeal was eventually dismissed.

18.19 We submit that it is the law that where the court raises an issue suo motu, it ought to calion the parties to address it on such issue.

We refer to: Badmus v. Abegunde (1999) 11 NWLR (Pt.627) 493, (1999) 71 LRCN page 2912; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt.684) 298, (2000) 80 LRCN page 2877 18.20

We further submit that because the learned Justices of the Court of Appeal did not call on the parties to address on this new issue raised by the court suo motu, as seen above and the failure to consider the lone issue as raised by the appellant’s counsel in his brief of argument before the Court of Appeal, it is tantamount to breaching the fundamental right of the appellant to fair hearing as guaranteed under the Constitution of the Federal Republic of Nigeria by virtue of section 36 of the 1999 Constitution.”

Counsel has however overlooked the fact that in the appellant’s brief before the court below at pages 85-86, it was argued thus:

“In the court below, there is abundant evidence on the record showing that the appellant was involved in the death of the deceased and that the deceased was so killed as a retaliation for allegedly insulting Holy Prophet Mohammed. In this respect, reference must be made to the voluntary statement of the appellant as contained in pages 18-21 of the record. The said voluntary statements of the appellant both in Hausa Language and’ its English translation were admitted in evidence as exhibit G and G I respectively – See page 49 of the record. In addition, the evidence of PW2 at pages 42 44, the evidence of PW5 at pages 51 and 52 and the evidence of PW6 at page 52 are all to the effect that the appellant was involved in the death of the deceased because of the allegation that the deceased insulted Holy Prophet Mohammed (SAW). It is submitted that as per the record before the trial court, the appellant is entitled to a consideration of the defence of justification by law as provided for in section 45 of the Penal Code as well as the defence of provocation as provided for in section 222(1) of the Penal Code.

In exhibits G and G1, it is shown that the appellant is a Muslim by religion. Therefore, for the deceased to have insulted the Prophet as alleged by the appellant would inevitably invite a consideration of these defences in favour of the appellant before a verdict as to the guilt or otherwise of the appellant is reached. In considering whether an act or speech is capable of provoking a person to commit the offence of murder or homicide, the accused’s background and station in life should be taken into account – See Akalezi v. The State (1993) 2 NWLR (Pt. 273) page 1 at 14; Ekpenyong v. The State (1993) 5 NWLR (Pt. 295) page 513 at 522 and Ubani v. State (2001) 7 NWLR (Pt.713) 587, (2001) FWLR (Pt. 44) page 483 at 490.

In the course of his address before the court below, the learned counsel for the appellant specifically invited the learned trial Judge to consider the defences open to the appellant in view of the evidence before the court. At pages 59 of the record, the said counsel formulated the 2nd issue for determination before the court below thus:

‘Has the prosecution proved that there is no defence to the 1st – 6th accused persons in respect of the charges against them

In elaborating on this issue on page 60 lines 29 and 30 and on page 61, line 1, the said learned counsel for the appellant submitted thus-

‘On the second issue for determination, it is our submission that it is not enough for the prosecution to establish elements of section 221 Penal Code but the prosecution must exclude the existence of any defence to the accused person,”

It was to the above arguments by appellant’s counsel before it that the court below was reacting” when at pages 124-125 of the record it said:

“In all their voluntary and cautioned statements to the Police (which in my view amounts to a voluntary confession) in exhibits E-K, 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 (S.A.W).

The actual words of insult allegedly uttered by the deceased were not known. The appellants along with others (now at large) however, constituted themselves into a fanatical Islamic vanguard or a religious vigilante group 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 (S.A.W). Even before seeing or heating 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 culptit in his place if he was not found. When they went to the Village Head of Randali to whom they reported the matter and who did not approve their plan to kill the deceased, they still proceeded in their crusade to execute their planned or premeditated murder of the said deceased. Even when they were advised by one Ustaz Mamman that it was not their responsibility but that of the court or Judge to punish the deceased as a person who insulted the Holy Prophet, they shunned that advice and described the Ustaz as a non muslim himself and went on with their plan to kill the deceased.

The crucial question to ask on the above facts confessed by the appellants themselves and supported or corroborated by the testimonies of the prosecution witness (PW2, 3, 4 and 5) is whether or not the appellants were justified in killing the deceased for his alleged insult of the Holy Prophet (SAW). This depends on or calls for a further and second question of whether they acted in good faith. Thus the essential element required for the defence of justification under S. 45 of the Penal Code is that the accused must act in good faith and must exercise due inquiry on his belief before his action can or will be justified – See the comment in the annotated copy of the Penal Code at page 241 thereof.

In this regard, although an honest and reasonable mistake of fact may be excusable under the defence of justification, a mistake of law is not so excusable. In any case as in the case of witchcraft, the standard of living or the position in life of the accused person as well as the manner of life of the community have to be considered by the court – See Lado v. The State (1999) 9 NWLR (Pt. 619) 369 at 381; R. v. Adamu (1944) 10 WACA 161; Akalezi v. The State (supra) and Ekpenyong v. The State (supra) at p. 522 of the report). Thus the standard or test for the justification of the act of the accused person under section 45 should be an objective one like that of the provocation. This is why I agree with the respondents submission that the defence of justification sought to be invoked or benefited from by the appellants in the present case should not be isolated from or stand on its own but must be tied to that of the provocation.”

It is obvious that the appellant’s second issue is misconceived and amount to a distortion of the true state of things. Appellant’s counsel had himself argued the defences of justification and provocation. The court below did not therefore need to ask appellant’s counsel to re-argue a point he had previously argued in his brief.

I have given a very careful consideration to the two issues raised by the appellant in this appeal. Both must be decided against the appellant. The evidence against the appellant by prosecution witnesses was neither challenged nor contradicted. More than that is the admission in exhibits G and G1 by the appellant that he actually slit the throat of the deceased.

In any case, even on the assumption (although without any proof) that the deceased had in some way done anything or uttered any word which was considered insulting to the Holy Prophet Mohammed (SAW), was it open to the appellant and others with him to constitute themselves into a court of law and pronounce the death sentence on another citizen Plainly this was jungle justice at its most primitive and callous level. The facts of this case are rather chilling and leave one wondering why the appellant and the others with him committed this most barbaric act. It cannot escape notice that the victim of this reckless and irresponsible behaviour is another Moslem, an Alhaji. I am greatly pained by the occurrence. In the final conclusion, this appeal fails. It is dismissed. I affirm the judgment of the two courts below.S. U. ONU, J.S.C: This is an appeal against the judgment of the Court of Appeal of the 10th day of December, 2003, that dismissed the appellant’s appeal by affirming the conviction and death sentence passed on him by the trial High Court (per Ambursa, J.).

It is against the said judgment that the appellant has filed this appeal based on three grounds of appeal out of which two issues were submitted as arising for our determination, to wit:

1. Whether the teamed Justices of the Court of Appeal ought to confirm the conviction and sentence of the appellant by the trial court. (This issue is distilled from grounds 1 and 2 of the grounds of appeal).
2. Whether the learned Justices of the Court of Appeal were right in raising the issue of defences of justification and provocation without affording the parties the right to be heard on the said issue raised suo motu. (This issue is distilled from ground 3 of the grounds of appeal).

The respondent formulated identical issues to those identified above by the appellants for determination.

In my treatment of these issues of this appeal, I wish to adopt the appellant’s two issues thus:

Issue I

It is submitted on behalf of the appellant on this issue that he is entitled to a consideration of the defence of justification by law. As provided under section 45 of the Penal Code, as well as defence of provocation under section 222( I) of the Penal Code considering the content of exhibits G and G1 of pages 18 – 20 of the record and also the evidence of PW5 at pages 51 – 52 of the record raised in the defences of justification and provocation which ought to be considered by the trial court, It is further submitted on behalf of the appellant that failure of the trial court consider the defences open or available to an accused person amounts to or is tantamount to a failure by the prosecution to prove the offence(s) alleged against the accused person beyond reasonable doubt and also a miscarriage of justice.

It is also submitted on behalf of the appellant that the finding of the Court of Appeal quoted in paragraph 4.6 of appellant’s brief of argument as well the conduct of the court below in carrying out the examination of the said two defences by itself at pages 124-137 was not proper and the main issue formulated before the court was not considered.

It was also submitted that the learned counsel for the appellant misconceived the whole issues when he considered the lone issue for determination before the court below which he formulated and adopted by the respondent at pages 86 and 94 of the record which queried:

“Did the appellant suffer any miscarriage of justice when the court below refused to consider several defences available to the appellant on the record before convicting the appellant as charged

This lone issue, it is contended; is wide and that the court below is bound to look into all the defences available in the record which was adduced before the trial court before it can make such findings.

It is further submitted that the question whether the appellant was prejudiced by the finding of the lower court cannot be reached without evaluating the evidence available on the record and that

what the court below did and its finding does not cause any miscarriage of justice to the appellant and was right and that doing so is not raising any issue suo motu Learned counsel for the appellant next submitted that the main issue before the lower court was against the failure of the trial court to consider the defences of justification and provocation which are said to be either available or raised by the defence, and whether the court below can examine such defences and make a finding thereof.

Now, to the proper issues for determination.

Issue No. 1: asks whether or not the court below was right when it went ahead and evaluated evidence with regard to defences open or available to the appellant which ought to have been done by the trial court, having regard to Order 1 rule 19 paragraphs 3 and 4 of its rules.

It is submitted that having regard to Order 1 rule 19 paragraphs 3 and 4 of the Court of Appeal Rules. 2002 the Court of Appeal has power to make such findings, since it reads:

“19(3) The court shall have to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and make such further or other order as the case may require, including any other as to costs.

The powers of the court under the foregoing provision of this rule may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision of the court below … and the court may make any order on such terms as the court thinks just, to ensure the determination on merits of the real question in controversy between the parties.”

See the case of Namsoh v. State (1993) 5 NWLR (Pt. 292) 129 at 143 where this Honourable Court held that where a trial court failed to consider the defence of an accused person, an appellate court can consider such defence with all available evidence on the record.

In the case in hand, the court below did exactly what is required of it by this Honourable Court as per the decision in Takida v. State (1969) 1 All NWLR 53 and State v. Ajie (2000) 11 NWLR (Pt.678) 434, (2000) 3 NSCQR 53.

I am in entire agreement with the appellant’s submission that failure of the trial court to consider the defences available or open to an accused person is only fatal where there is evidence in support of such defence(s) in the record of the trial court and a court of law will not presume or speculate on the existence of facts not placed before it and that accused person is usually required or recommended to give his evidence viva voce rather than adopting his previous extra judicial statement for his defence or resting his case on the evidence of the prosecution as decided in the case of Ekpenyong v. State (1993) 5 NWLR (Pt. 295) 513 at 522.

Issue 2

This issue which relates to ground 3 of the grounds of appeal asks whether or not the court below rightly held that the defences of justification and provocation as provided under sections 45 and 222(1) of the Penal Code respectively are not available to the appellant.

I agree with the respondent’s submission that the appellant will be entitled to the defence of justification after satisfying the conditions set up by section 45 of the Penal Code which provide:

“45. Nothing is an offence which is done by a person who is justified by law or who by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be justified by law in doing it.”

The appellant will be entitled for the defence of justification where:

(i) His action is justified by law:

(ii) His action was done as a result of mistake of fact not mistake of law; and

(iii) He acted in good faith believing himself to be justified by law in doing it.

As can be gleaned from the record of proceedings of the trial court, the only evidence against the deceased is based on the rumour the appellant overheard or hearsay allegation that he (deceased) had insulted the Holy Prophet in a neighbouring village Randali of Birnin Kebbi Local Government Area of Kebbi State. I am in agreement with the submission of the respondent that there is no evidence of any kind emanating from the Penal Code or Sharia disclosed in the record of proceedings to show that appellant’s action is justified by law having regard to his background and opinion or non-approval of his village Head and one Ustaz Mamman who were members of the same community, class, standard in life and live with appellant.

Moreover, the appellant’s act of killing the deceased cannot be said to amount to a mistake of fact in good faith as he has no authority to execute or slaughter the deceased as he did. Thus, I agree with the respondent that from the evidence adduced before the trial court and available on record, the appellant cannot be entitled to a defence of justification, because the court cannot give the appellant the benefit of defence which was not reflected or supported by the evidence on the record. See Abara v. The State (1981) 2 NRC 110 at 117.

I agree with the respondent’s submission that the appellant will only be entitled to the defence of provocation under section 222(1) of the Penal Code where he established the ingredients therein. The section reads:

“222(1) Culpable homicide is not punishable with death if the offender whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”

The appellant will be entitled to the defence of provocation when he shows by evidence in the trial court that:

(i) The act of provocation must be grave and sudden:

(ii) The appellant must have lost self control actual and reasonable;

The degree of retaliation by the appellant must be proportionate to the provocation offered. See the case of Uluebeka v. The State (2000) 7 NWLR (Pt.66S) 404, (2000) 5 SCNQR 186 (vol. 2).

Moreover, in the case herein there is no evidence whatsoever in the record of proceedings to establish that the appellant was provoked by the deceased. What the record rather depicts is, the overhearing of the rumour from co-accused, Musa Yaro, that the deceased insulted the Holy Prophet and how the appellant and the co-accused went to one Shugaban Samari to confirm to them that that allegation was true by setting out the insultive words used or uttered. Although it is settled law that words alone can constitute provocation depending on the actual words used and their effect or what they mean to a reasonable person having a similar background with the appellant and in the case in hand where the exact insultive words are neither known or disclosed and moreover not even heard from the mouth of the deceased, it will not be possible to determine whether the defence of provocation is open or available to the appellant. See the case of Ahmed v. The State (1999) 7 NWLR (Pt. 612) 641 at 684. Clearly, the provocative act done or reported by one person – the co-accused (Musa Yaro) cannot be a ground for the appellant to kill the deceased. See Idemudia v. State (1999) 7 NWLR (Pt. 610) 202. And going by the definition of provocation as postulated in the case of Lado v. State (supra) at page 385.

It is clear that for the defence of provocation to avail the appellant, the act or utterance of the deceased must be directly offered or directed against the appellant, which was not the case here where it was based on hearsay or rumour.

There is no direct or indirect evidence to show that the appellant was provoked by the deceased vide exhibit G and G1 (the latter being the Hausa and the English translation of the appellant’s statement at pages 18-20 thereof as well as the evidence of PW 5 at page 51 of the record) which is enough to convict the appellant as charged. Consequently it is manifest that the lone issue before the lower court is clear and related to all the defences available from the record and the appellant in his brief of argument at pages 85-90 had canvassed all its argument on defences of justification and provocation and the respondent in its brief of argument at pages 94-99 of the record. Thus, I am of the view that the court below did not raise any issue suo motu as submitted by the appellant. For the above reasons and those fully contained in the leading judgment of my learned brother, Oguntade, J.S.C, I find no merit in this appeal which I too unhesitatingly dismiss. I affirm the conviction and sentence of the two courts below.

SC.245/2004