Adamu Garba V. The State (1997)

LAWGLOBAL HUB Lead Judgment Report

B. WALI, J.S.C. 

In the trial court, the appellant was charged with the following offence:-

“That you Adamu Garba on or about the 28th June, 1986, along Gabaitawa/Kadassaka road of Gwadabawa Local Government Area within the Sakata Judicial Division did commit culpable homicide punishable with death in that you caused the death of one Garba Ibrahim by doing an act to wit striking him with a cutlass/matchet with the knowledge that his death would be the probable consequence of your act and thereby committed an offence contrary to section 221(6) of the Penal Code:”

The appellant pleaded not guilty to the charge and the case proceeded to trial. The prosecution called the witnesses to prove the charge. The appellant neither called witness nor did he testify to rebut the prosecution’s evidence.

The prosecution’s case in brief is as follows

It was the deceased’s practice to go on an annual trading trip from Sokoto to Yola in the then Gongola but now in Adamawa State. In 1986 the deceased went on a similar trip and on his way back home, and in the early hours of 28th June, 1986 he was found fatally wounded in a farm along Gabaitawa/Kadassaka Road in Gwadabawa Local Government Area of Sokoto State, by Umaru Abdu (P.W.4). P.W.4 was later joined by Garba Aliko (P.W.3), a brother to the deceased. They put the deceased on the back of a donkey with which P.W.3 came to the farm and carried him to Kadassaka, the home village of the deceased. From the village they look him to Gada Hospital and on the way the deceased died. P.W.3 said the body of the deceased was returned to Kadassaka village and the incident was reported to Police at Gada. The deceased body was taken to Gada from where it was conveyed to Gwadabawa Hospital. After necessary identification of the deceased’s body it was examined by a Doctor who thereafter issued a medical report. The dead body was released to the relations of the deceased and was buried in Kadassaka village.

At the end of the case put up by the parties, the learned trial Judge meticulously examined the evidence adduced and found the appellant guilty as charged and sentenced him to death.

The appellant’s appeal to the Court of Appeal Kaduna Division was unsuccessful. It was dismissed and the conviction and sentence of death was affirmed. As a result, the appellant has now further appealed to this court.

In compliance with the Rules of this court, the parties filed and exchanged brief of argument. In the brief filed for and on behalf of the appellant, the following issues have been formulated for determination:-

“1. Whether it was right and indeed fair for the Court of Appeal to have drawn damaging and negative inferences from the appellants exercise of his constitutional right not to be compelled to give evidence and if a negative answer is returned, whether the position taken by the Court of Appeal did not affect its consideration of the appellant’s appeal and thereby occasioned a miscarriage of justice

2. Whether the failure by the appellant to testify in his defence disqualified him from relying on the defences of provocation and private defence particularly as there existed before the court Exhibit 8 and 9, the alleged confessional statement which contained incriminating and exculpatory statements
3. Whether the Court of Appeal as indeed the trial court was not under a duty to accord both the incriminating and exculpatory parts of exhibits 8 and 9 the same weight even in the absence of the appellants testimony viva voce
4. Whether the Court of Appeal was correct when it rejected the appellant’s reliance on the defences of provocation, private defence and sudden fight

The respondent’s brief also contained the following three issues for determination:-

1. Whether it is unconstitutional for the Court of Appeal to draw an inference from the election by the appellant not to give evidence in his own defence.
2. ‘Whether a court after a careful consideration can believe a portion and reject another.
3. Whether the Court of Appeal was right in rejecting the defences raised in the statement of the appellant who refused to give his defence on oath.

The three issues formulated in the respondent’s brief are covered by the four issues in the appellant’s brief and for purpose of disposing this appeal I shall adopt and follow the sequence in which the issues have been argued in the appellant’s brief.

Under issue 1 the complaint by learned Senior Advocate for the appellant is against the comment made by Ogebe JCA in his lead judgment that:-

“From the facts, the appellant acted in a cruel and unusual manner by dealing death blows on an unarmed man. The trial court was therefore right in rejecting such defences. It was clear from the proceedings that the appellant had a lot to hide that is why he chose not to give evidence and he must abide by the consequence of his choice.”