Idi Muh’d (Alias Idua) Vs. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, JSC

This is an appeal against the decision of the Court of Appeal, Kaduna Judicial Division, delivered on the 6th day of June 2014, in Appeal No. CA/K/202/C/2013. The Court of Appeal, affirmed the decision of the Jigawa High Court Presided by Hon. Justice Abubakar Sambo Mohammed.

2013, he filed a Notice of Appeal dated the 22nd of April, 2013 on the 13th of May, 2013. The notice of appeal contained twenty-two grounds of appeal.”

The judgment of the trial Court convicting and sentencing the Appellant to death is at pages 54 – 78 of the Record of Appeal while the judgment of the lower Court affirming the decision of the trial Court is at pages 136 – 155 of the Record of Appeal. And dissatisfied with the decision of the lower Court affirming his conviction and sentence to death for the offence charged, the Appellant by a Notice of appeal containing eight (8) grounds of appeal dated and filed on 20th June, 2014, appealed to this Court. The Notice of Appeal containing eight Grounds, is on pages 156 – 159 of the Record of Appeal. From the said Grounds, the Appellant formulated the following three (3) Issues for the determination of this appeal viz:-

“(i) Whether from the facts and circumstances of this case, the Learned Justices of the Court of Appeal were right in holding that the defence of provocation is not available to the Appellant (Grounds 3, 4 and 5).

(ii) Whether the Learned Justices of the lower Court were right in relying on the contradictory testimonies of the 1st , 2nd and 3rd prosecution witnesses in convicting and sentencing the Appellant to death. (Grounds 1, 2 and 6).

(iii) Whether the Learned Justices of the lower Court were right in convicting and sentencing the Appellant to death instead of a terms of imprisonment considering the fact that there was a fight between members of the families of the deceased and the Appellant. (Ground 3 and 8).”

On the other hand, Learned Counsel for the Respondent formulated the following two issues for the determination of this appeal to wit:-

“(i) Whether from the fact and circumstances of this case, the learned Justices of the Court of Appeal were right in holding that the defence of provocation is not available to the Appellant.

(ii) Whether the learned Justices of the Court of Appeal were right in holding that there was no contradiction in the testimonies of the 1st , 2nd and 3rd prosecution witnesses.”

After a careful perusal of the three issues proposed by the Learned Counsel for the Appellant, vis-a-vis the two issues as proposed by the Learned Counsel for the Respondent, I am satisfied that the three issues proposed by the learned Counsel for the Appellant are adequate for the purpose of this appeal.

In his written brief and oral submission before this Court, learned Counsel to the Appellant argued issues 1, 2 & 3 together. In arguing the appeal, the learned Counsel for the appellant submitted that, there was indeed a fight between the family of the deceased (Hamza Barde) and that of the Appellant. PW.1 in his testimony in chief said, he was an eye witness of the event leading to the death of the deceased. The PW.2. and PW3 also claimed to be eye witnesses to those events leading to the death of the deceased. One common thread going through the evidence of PW.1, PW.2 and PW.3 is that, there was a fight between members of the family of the

the learned trial Judge said exists at page 73 of the printed record was resolved and the lower Court did not with respect also resolved the conflict. He farther submitted that the lower Court did not also consider the defence of provocation. See pages 144-145 of the printed record. Also pages 146, 147 & 148 of the printed record. Rather, the lower Court only considered the defence of Alibi, and had nothing to do with the defence of provocation as concluded at page 149 of the Record of Appeal.

Learned Counsel submitted further that the defence of provocation can be verbal as it is the case in the present appeal. Both the trial Court, and the lower Court ought to have given serious consideration as to why Appellant who was not described as insane or abnormal or who has no evidence of any mental incapacity by PW.1, PW.2, and PW.3 who claimed to know him for over twenty years should attack the deceased for no apparent reason. In support of this submission, he relied on the case of LADO VS STATE (Supra) where this Court held that provocation can be verbal or physical. According to him, there is no evidence to prove that the prosecution has discharged the onus placed on it by Law to prove the deceased and the Appellant. Those pieces of evidence of PW.l, PW.2 and PW.3 remained unchallenged, and so the two lower Courts ought to act on them. He further argued that considering the social background of the accused and the deceased being Hausa farmer and Fulani cattle rearer, both hold their farms and cattle very dear. He cited in support of his submission the dictum of Wali, JSC. in LADO VS THE STATE (1996) 6 SCNJ 1 at 6 to the effect that: “It is a notorious fact that a Fulani cattle rearer carries stick with him, wherever he goes. It is with the stick that he controls the cattle.”According to him, the above quoted evidence of PW.l, PW.2 and PW.3, and of course the finding of fact by the learned trial Judge and the learned Justices of the lower Court on the evidence quoted above clearly raised the defence of provocation as provided by Section 222(1) of the Penal Code of Jigawa State.