Alhassan Maiyaki V. The State (2008)

LAWGLOBAL HUB Lead Judgment Report

P.O. ADEREMI, J.S.C.

This is an appeal against the decision of the Court of Appeal (Jos Division) holden at Jos, which has, in a considered judgment delivered on the 25th of April 2007, dismissed the appeal against the judgment of the Yobe State High Court sitting at Potiskum in Potiskum Judicial Division.

In the court of first instance (High Court sitting at Potiskum) the appellant was charged with causing the death of Habu Usman of Potiskum at the Texaco Filling Station on the 7th day of June 2004 by shooting him (Habu Usman) on the head with his (appellant) rifle in the cause of struggles with others with the knowledge that the death of the deceased would be the probable consequence of his act. The case proceeded to trial before the court of first instance and after concluding evidence on both sides and sequel to taking the final addresses of counsel on both sides, the trial judge, in a reserved judgment delivered on the 21st of June 2005, convicted the appellant of the offence and consequently sentenced him to death. In so doing, the trial judge held inter alia:-

“From the entire case, I tried to see what defences are available to the accused other, other than the only single defence of accident but I could not find any. I must therefore say that the accused was negligent in his conduct. Generally, in a criminal trial, it is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence and that it was his act which caused the offence. In the instant case, evidence abound (sic) and infact that was conceded to even by counsel for the accused that a human being died; one Habu Usman that it was the act of the accused that caused the death. What was disputed by counsel was the intention or necessary mens rea which according to counsel for the accused, was lacking. However, in my considered view, having considered the entire circumstances of this case particularly taking into account the nature of the weapon used, the force applied and the part of the body affected by the act of the accused, I am not left in any doubt that the accused actually intended killing the deceased and no more and he thus succeeded.”

Dissatisfied with the judgment of the trial court, the appellant appealed therefrom to the court below (Court of Appeal). That court dismissed the appeal and in so doing, it held inter alia: –

“Considering that the appellant is a policeman who has been trained to handle a gun, the shooting of the gun by the appellant directly on the head of the deceased will only infer that the appellant has by this singular act intended to cause the death of the deceased and the learned trial judge had rightly found so….In the instant case, the appellant having failed to adduce evidence to show that the act of the shooting of the deceased was accidental, the only inference was that the act itself was intentional the defence of accidental discharge will thus not avail the appellant in the instant case and I so hold.”

Again, dissatisfied with the judgment of the court below, he appealed to this court via a Notice of Appeal which has incorporated into it nine grounds of appeal. The appellant and the respondent filed their respective briefs of argument.

When this appeal came before us for argument on 17th April 2008, Mr. Paul, learned counsel for the appellant, referred to, adopted and relied on his client’s brief of argument and while referring us to the evidence of DW2 – Sgt. Ibrahim Bello – who was described as a key witness and who gave evidence of accidental discharge by the appellant; he submitted that the evidence of accidental discharge be believed and consequently, the appeal be allowed. Mr. Kehinde, learned counsel for the respondent, referred to, adopted and relied on the respondent’s brief of argument filed on 12th December 2007, he urged that the concurrent findings of the two courts below be not disturbed, the judgment of the court below be affirmed while the appeal be dismissed.

As I have said, both the appellant and the respondent did exchange their briefs of argument after filing same. Distilled from the nine grounds of appeal by the appellant and as set out in his brief of argument are five issues which are in the following terms:

(1) Whether the lower court was right in upholding the judgment of the trial court that the defence of accident was not made out by the appellant.

(2) Whether the lower court was right when it declined to interfere with the findings of the trial court on the ground that the trial court had properly evaluated the evidence before it when in fact the trial court did not properly evaluate the evidence.

(3) Whether the lower court was not in error when it failed to set aside the conviction of the appellant by the trial court in view of the manifest irreconcilable material contradictions in the evidence of the prosecution’s witnesses.

(4) Whether the lower court was right in raising the presumption of withholding evidence against the appellant for failure to call the other policemen passengers and drivers as defence witnesses.

(5) Having regard to the entire evidence before the trial court, whether the lower court was right in its conclusion that none of the defences raised by the appellant before the trial court availed him.