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Joseph Kwaghshir & Anor V. The State (1995)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, J.S.C.

The appellants were charged in the High Court of Benue State holden at Makurdi and convicted of culpable homicide punishable with death contrary to section 221 (a) read with section 79 of the Penal Code.

Later in the day, the mother of the deceased (P. W.1) went to a meeting of an association of women called Better Life for Rural Women. She was returning home in the evening when she came across the appellants who informed her that the deceased had killed their goat and they called her bad name. Thereafter the 1st appellant pushed her down to the ground, and started to beat her. P.W.1 shouted for help while crying. The deceased who was at home heard P.W.1 crying for help and therefore left for the scene of the incident to help her.

On deceased’ s arriving at the scene the appellants set on him and began to beat him. According to P.W.1 the deceased was also attacked with cutlass and knives by the appellants and one Magondo. She testified that she saw the appellants cut the deceased three times with the cutlass and once with a knife. As a result the deceased died on the spot. A report was lodged with the Police and the 1st appellant was arrested. Three days later the 2nd appellant was arrested by the Police when he went to the Police Station to see the 1st appellant. Both the 1st and 2nd appellants made statements to the Police under caution.

In his defence, the 2nd appellant pleaded alibi. He said that he was not present at the scene of the incident because he went to the house of P.W.5 to buy cigarette. The 1st appellant said that he met P.W.1 in the evening of the day in question on his way to buy kerosine. He spoke to P.W.1 about her son -. The deceased-killing his family’s goat earlier in the day. P.W.1 began to shout calling for the deceased to come. Shortly thereafter the 1st appellant said he was stabbed on the upper part of his hand with a knife. He was stabbed in both his hands, then in the trunk and the chest, he was able to identify the deceased as his assailant. He was on the ground with the deceased on top of him when he received the fifth cut on his left thumb from the deceased. He struggled to snatch the knife from the deceased whilst still on the ground. On succeeding he stabbed the deceased once with the knife in order to escape without knowing where he exactly stabbed the deceased. The 1st appellant was able to free himself from the deceased and P.W.1.

He ran away from the scene of the incident and got to his home where he collapsed and became unconscious. Later the 1st appellant was taken to the Police Station and then to the General Hospital at Makurdi where he was examined and treated by a doctor (D.W.5).

The defence of alibi set up by the 2nd appellant was investigated by the Police (P.W.4) and was found to be untrue. P.W.5 from whom the 2nd appellant said he bought cigarette denied in her testimony that the 2nd appellant went to her house at the time of the incident as he claimed.

In his judgment, the learned trial Judge (Ogbole J.) believed the prosecution’s case and disbelieved the defence. He therefore, found the appellants guilty as charged.

The appellant appealed to the lower court complaining inter alia that the learned trial Judge was wrong in holding that the defences of provocation and private defence did not avail the 1st appellant and that the defence of alibi was not available to the 2nd appellant. In its judgment the Court of Appeal (Musdapher, Muhammad and Orah, J.J.C.A.) held as follows as per Muhammad, J.C.A. –

“I have very carefully considered the evidence adduced before the lower court, I have also carefully considered the judgment of the trial Judge. In the judgment he has extensively reviewed the totality of the evidence before him. He has meticulously evaluated the said evidence. He believed the prosecution witnesses one of whom was an eye witness to the killing. He made specific findings of fact. These findings of facts, considering the evidence are not perverse. He also, in my, view, drew the correct inferences from these findings of fact. The evidence offered by the prosecution clearly established that the appellants killed the deceased. The trial Judge was right in convicting the appellants.”

Aggrieved by this decision, the appellants appealed further to this court. They formulated five issues for determination in their brief of argument. The issues read –

“(a) Whether or not the lower court was right in holding as the High Court did, that the contradictions and inconsistencies highlighted in the prosecution’s case by appellants were mere discrepancies and/or minor variations as to details which did not affect then material issue(s) before the court;

(b) Whether or not the lower court was right in holding, in apparent affirmation of the trial High Court of Benue State’s decision, that the appellants killed the deceased, whose death was proved;

(c) Whether or not the lower court when it failed, neglected and/or refused to consider and pronounce on all the issues canvassed before it with regard to various inferences made by the Judge of the trial High Court of Benue State leading to the conviction of the appellants, and if this failure did not lead to a miscarriage of justice by the lower court;

(d) Whether or not the lower court was right in holding as the trial High Court did, that the statutory defences of private defence and provocation did not avail the 1st appellant; and

(e) Whether or not the lower court was right in holding as the trial High Court did, that the defence of alibi did not avail the 2nd appellant.”

The respondent has also raised issue for determination, in its brief of argument. The issues are –

“(a) Are there any material contradictions/inconsistencies in the prosecution’s case to warrant a reversal of the decision of the ‘lower courts

(b) Are the statutory defences of self defence/provocation and, alibi available to the appellants respectively

(d) Did the courts below consider and make their findings on all the issues canvassed. And if not can the Supreme Court set aside the conviction and sentence on that basis”

It appears to me that the issues as framed by the respondent are less worded and clearer than those formulated by the appellant. As both the appellants ‘ issues as well as the respondent’s cover the same points and are based on the grounds of appeal. I intend to follow those formulated by the respondent.

With regard to issue (a) the appellants have identified in their brief of argument 10 instances of contradictions and inconsistencies in the testimonies of the prosecution witnesses. The first instance concerns the evidence of P.W.1 as .. eye-witness. It has been argued that her testimony contradicts her statements to Police – Exhibits F &F1. Now before any contradiction can be established between the evidence of a witness and the statement made previously by the witness, the statement must be brought to the attention of the witness in accordance with the’ provisions of section 199 and 209 of the Evidence Act, Chapter 112. In the present case P.W.1 admitted under cross-examination that she made 2 statements to the Police. The statement were not shown to her in cross-examination though mentioned but were admitted by the learned trial Judge when P.W.4 testified under cross-examination. The learned trial judge rejected admitting the statements under the first arm of section 209 but admitted the statements (Exhibit F and F1) under the proviso to section 209 of the Evidence Act, Chapter 112. The section states:-

“209. A witness may be cross-examined as to previous statements made by him in writing relative to the subject matter of the trial without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him:

Provided always that it shall be competent for the court at any time during the trial, to require the production of the writing for its inspection, and the court may thereupon make use’ of it for the purposes of the trial, as it shall think fit.”

The learned trial Judge made the following observation in his judgment ”

I have considered the argument and contentions of both counsel, I pause here to ask whether there are real material contradictions and inconsistencies to have rendered the prosecution’s case so discreditted and so unreliable that no reasonable tribunal can convict upon it. I have considered the evidence of P.Ws. 1, 2, 3,4 and 5 and also Exhibit D, the doctor’s report, and in particular P.W.1’s evidence which the defence counsel has heavily attacked and made heavy weather out of nothing and I am satisfied that there are no material contradictions or inconsistencies that have so discredited the prosecution’s case and made same unreliable. What the learned counsel termed as contradictions or inconsistencies are mere discrepancies which are not uncommon in every case of this nature……………………………..

It is to be recalled P.W.1 and .P.W.3 gave evidence and were extensively cross-examined. But their statements to the police were never tendered through them with the view to contradicting them pursuant to section 209 of the Evidence Act Chapter 112 of 1990.”

It follows, therefore, that the appellants cannot use Exhibits F and F1 to contradict the evidence of P.W.1 since Exhibits F and F1 were not admitted for that purpose as provided by sections 199 and 209 of the Evidence Act, Chapter 112.

The next contradiction referred to by the appellants is in respect of the testimony of P.W.1 vis-a-vis the testimonies of P.W.2, P.W.3, P.W.4 and P.W.5. While P.W.1 said the deceased was cut 3 times with a knife, P.W.2 said that he saw a stab wound in the stomach of the deceased, a matchet cut on the deceased’s forehead and a cut on the right shoulder. P.W.3 said the deceased was stabbed on the, stomach and had a matchet cut on the shoulder. Furthermore P.W.1 said under cross-examination that P.W.4 did not record her statement correctly while P.W.4 said he did. What is significant here is not the contradiction inherent in the testimonies of P.W.1, P.W.2 and P.W.3 but the fact that they all alleged that the deceased suffered a matchet cut. The 1st appellant confessed of stabbing the deceased only once with a knife. The medical report (Exhibit D) based on the post mortem examination conducted on the deceased’s corpse confirms that the deceased had only one “deep stab (wound) on left anterior chest.” This supports the evidence of 1st appellant and discredits the evidence of P.W.1, P.W.2 and P.W.3 as to the number of wounds inflicted on the deceased and the nature of the wounds.

In view of the above contradictions I do not think it is necessary to go further into ,the other contradictions highlighted by the appellant, for the point has sufficiently been made. However I will return to this theme later in this judgment.

The next issue is whether the defences of self-defence, provocation and alibi avail the appellants respectively. The case for the 1st appellant is that he was suddenly attacked with a knife at the scene of the incident. He did not at first know who was his assailant. He was brought down to the ground after being pounced upon. He received five stab wounds before he was able to snatch the knife used from the hand of the deceased. He stabbed the deceased once with the knife to enable him escape from the attack. He denied attacking P.W.1 at the time she began to shout for help. The fact that he received numerous stab wounds and that he stabbed the deceased only once had been corroborated by the medical reports on him and the deceased – Exhibits E and D.

The learned trial Judge rejected the defence and preferred the prosecution’s case, in particular the testimony of P.W.1 as eye-witness. Be held as follows:”

I have no slightest doubt in my mind that the accused attacked the deceased in the presence of P.W.1, stabbed him and killed him on the spot. I have no reason to disbelieve the evidence of P.W.1 as to the violent attack on the deceased and how he was killed by the accused. ”

It is argued in the brief of the appellants that the fact that the 1st appellant said in his statement to the police – Exhibit A and his testimony in court that he acted itself; defence and the support given to his defence by the doctor who examined him after the incident – D.W.5; was sufficient to convince the trial Judge. It is submitted that the trial court should have adverted its mind to the provisions of section 30 subsections (1) and (2) of the 1979 Constitution and Sections 59 and 222 of the Penal Code to Come to the conclusion that the 1st appellant acted in private defence and therefore was entitled to acquittal on the authority of Milla v. The State (1985) 3 NWLR (Pt.11) 190; (1985) 10 S.C. 177 at Page 230; Oka v. The State (1915) 9;11 S.C. 17 at Pages 33 and 37.

For the prosecution it is argued in the respondent’s brief that there were material contradictions in the testimony of the 1st appellant setting up the defence of private defence. The doctor who examined him on 16/12/90 – a day after the incident – said the 1st appellant had lacerations in only 3 places and not 5. While it one breath the 1st appellant testified that after he snatched the knife from the hand of the deceased he could not run away from the scene of the incident when he tried to; he said in another breath that after stabbing the deceased he was able to run away from the scene. It is then submitted that if it was true that the 1st appellant was first attacked by the deceased, he should have run away when the attack ceased instead of stabbing the deceased when the deceased no longer posed any threat to him since the deceased became unarmed.

In determining whether the defence of private defence can succeed in this case the evidence adduced by the defence has to be compared with that adduced by the prosecution to see which is more cogent. The prosecution’s case appears to me to be inherently afflicted with contradiction as regard the nature of the wound suffered by the deceased. P.W.1, P.W.2 and P.W.3 testified that the deceased received multiple cut wounds from matchet and knife respectively. The medical report tendered by the prosecution- Exhibit D, established only one wound on the left side of the deceased’s chest. This discrepancy was not explained by the prosecution and the learned trial Judge failed to advert to it. All the learned trial Judge said in this regard is –

“Although the (medical) report does not say that there are multiple cuts on the body the doctor found a “deep stab” on the body confirming the admission of the 1st accused in his evidence that he stabbed the deceased. To my mind, the failure of P.W.1, the mother of the deceased to have not mentioned specifically the part of the body stabbed by the accused resulting to (sic) the death of her son, is not fatal to the prosecution’s case considering the physical arid mental agony of P.W.1 in watching her son being brutally killed by the accused.”

The Court of Appeal did not also advert to the discrepancy but simply stated as follows, Per Muhammad, J.C.A. –

“These findings of fact by the learned trial Judge; in my opinion, are not perverse. They are supported by cogent; positive and credible evidence. There is no reason why I should disturb these findings. It, therefore, follows that the defence of self-defence is not available to the 1st appellant. Where the prosecution adduced evidence which negates the offer of acts of self-defence, the defence must adduce credible evidence to establish self-defence – Wankey v. The State (1993) 5 NWLR (Pt.295) 542.”

It follows from the foregoing that the lower courts did not properly evaluate the evidence adduced by the prosecution. In the case of Onubagu v. The State (1974) 9 S.C. 1 this court stated as follows on page 366 thereof, Per Fatayi- Williams J.S.C. (as he then was) –

“We are also of the view that where one witness called by the prosecution in a criminal case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation, such as showing that the witness is hostile, before they can ask the court to reject the testimony of one witness and accept that of another witness in preference for the evidence of discredited witness. It is not competent for the prosecution which called them, to pick and choose between them. They cannot, without showing clearly that one is a hostile witness discredit one and accredit the other. (See Summer and Leivesley v Brown & Co., (1909) 25 T.L.R 745. We also think that, even if the Inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial Judge, as was the case here, to provide the explanation. One of the witnesses should furnish the explanation and thus give the, defence the opportunity of testing, by cross-examination, the validity of the proferred explanation.”

See also Ateji v. The State (1976) 2 S.C 79 at pages 83-84 and Muka & Ors. v. The State (1976) 9-10 S.C. 305. The consequences of the conflicts, not being resolved in the aforementioned cases, were fatal to the cases for the prosecution. However, the situation in the present case is different in view of the consistent admission by the 1st appellant that he stabbed the deceased in private defence. It is, therefore necessary to examine the defence in the light of the relevant provisions of the Penal Code in order to determine its availability or otherwise to the 1st appellant.

By section 59 of the Penal Code, Chapter 89 of the Laws of Northern Nigeria 1963, nothing is an offence which is done in the lawful exercise of the right of private defence. Section 60 of the Penal Code provides Inter alia that every person has a right, subject to the restriction stated in the Penal Code, to defend his own body against any offence affecting human body. Furthermore, section 65 (a) of the Penal Code; states –

“65. The right of private defence of the body extends, under the restrictions mentioned in sections 62 and 63, to the voluntary causing of death only when the act to be repelled is any of the following descriptions, namely –

(a) an attack which causes reasonable apprehension of death or grievous hurt.”

The restriction imposed by section 62 of the Penal Code is –

“62. The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.”

The testimony of P.W.1 which contradicts that of the 1st appellant has been shown to be unreliable in view of its not being corroborated by the medical report – Exhibit D, which supports the testimony of the 1st appellant. For a proper evaluation of the evidence adduced before the learned trial Judge, the testimony of the 1st appellant is to be preferred to that of P.W.1. It is, therefore, clear from the testimony of the 1st appellant that if he had been cut five times with a knife by the deceased who was on top of him, the 1st appellant was justified in having the apprehension that the deceased was at least going to cause him grievous hurt if not death. In my opinion, the defence provided by section 65 read with section 59 of the Penal Code is available to the 1st appellant.

In view of what I have just stated it becomes unnecessary for me to consider the defence of provocation which, if it applies, will only reduce the offence charged against the 1st appellant from culpable homicide punishable with death to culpable homicide not punishable with death in accordance with the provisions of section 222 subsection (1) of the Penal Code.

Next is the complaint by the 2nd appellant this his defence of alibi was not properly considered by the lower courts. The alibi which the 2nd appellant set up was investigated by the police (P.W.4) and confirmed to be false by P.W.5, to whom the 2nd appellant said he went, at the time material to this case, to buy cigarette. It has been argued in the appellant’s brief that the testimony of P.W.5 impliedly supported the alibi. Nothing can be further from the truth. The alibi pleaded by the 2nd appellant in his statement to the police – Exhibit B, is as follows-

“…………I could remember on the 15/12/90 at on the same date at about 5 p.m. After bathing, I decided to go and buy cigarette in a nearby compound call (sic) Tombo, when I came back from where I went to buy the cigarette, at about 8 p.m of the same date, I saw my senior brother Joseph Kwaghshir with blood all over his body I asked him what happened. He told me that he fought with Abamber Avenda and Abamber gave him several wounds by stabbing him with knife, he also received the knife and stabbed Abamber with it. From there I decided to go and report the matter at “D” Division Police Station…………………………..

I bought the cigarette from one woman by name Ramatu Iyoryem. I did not know anything that happened between my brother Joseph and Abamber I was not around when they fought. That it all what I have to say.” (Italics mine)

Ramatu Iyoryem was called by the prosecution as P.W.5 and she testified as follows-

“On 15/12/90 I was in my house. There was in my house on that day a meeting. It was ‘Better Life’ Meeting. I know the 2nd accused. I know him for a long time. I did not sell anything to 2nd accused on the mentioned date So I did not know anything about the 2nd accused coming to my house on that day.”

The witness said under cross-examination thus-

“I did not see the 2nd accused. I cannot say whether or not he came to buy cigarette in my house.”

It is very clear, therefore, that the alibi of 2nd appellant was not confirmed by the P.W.5. In Muka & Ors. v. The State (supra) this court held on page 326 thereof as follows, Per Fatayi-Williams, J.S.C. (as he then was)-

“Even assuming that the accused persons lied in the defence of alibi put forward by them, we nevertheless, wish to point out that mere lying by an accused person is not evidence of guilt. The prosecution must still prove the guilt of the accused beyond reasonable doubt. Certainly, there must be something more than the telling of lies before a man can be convicted of any crime, let alone murder.”

The evidence which directly connects the 2nd appellant with the offence is that of P.W.1 which has been discredited to some extent. The credible evidence establishes that the deceased was stabbed once by the 1st appellant only and that he died as a result of that singular act committed by the 1st appellant. The 2nd appellant was considered by the lower courts to be liable by virtue of the provisions of section 79 of the Penal Code which states –

“79. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

The act committed by the 1st appellant, even if the 2nd appellant had the common intention with him, has been established not to be an offence by virtue of the provisions of sections 59 and 65 of the Penal Code. Without the 1st appellant being guilty of the offence charged, the 2nd appellant cannot be held to be guilty pursuant to the provisions of section 79 of the Penal Code.

The remaining two issues for consideration can be summarily disposed of by stating that the question is not whether the prosecution has failed to prove any of the ingredients of the offence charged but that even if the ingredients of the offence charged had been proved the appellants have valid defences that exonerate them from the offence charged. Indeed the lower courts made findings on most of the issues canvassed before them but they were wrong in their evaluation of the evidence of the prosecution witnesses vis-a-vis the evidence adduced by the defence. Therefore, the basis exists for this court to interfere with the findings of the lower courts that are found to be perverse.

In the final result, this appeal has merit and it hereby succeeds. The decision of the Court of Appeal affirming that of the trial court is hereby set aside. The appellants are found not guilty and they are accordingly acquitted and discharged.

KUTIGI, J.S.C.: I read in advance the judgment just delivered by my learned brother Uwais, J.S.c. I agree with his conclusion that the appeal ought to succeed. It is clear from record that but for the extra-judicial statement of the 1st appellant (Exhibit A) and his evidence on oath wherein the 1st appellant admitted stabbing the deceased once with a knife after he had struggled and seized the same knife from the deceased, the prosecution had virtually failed to prove the charge against the appellants. The medical witness (D.W. 5) called by the 1st appellant corroborated his statement (Exh. A) and testimony that in fact the deceased was using the knife on him (1st appellant)before he (1st appellant) seized same from the deceased after a struggle and stabbed him (deceased) only once when he believed that his (1st appellant’s) life was in danger. One is not surprised that the deceased was the aggressor. His mother (P.W. 1) in her evidence in chief on page 39 of the record said amongst others:-

“As I was crying my son came, the deceased on hearing this cry came and said “when a snake enters your house, you had better kill it.” I am inclined to agree with the 1st appellant that the deceased wanted to kill him before he seized the knife from him (deceased) I have no doubt in my mind that the 1st appellant, clearly discharged the evidential burden of proof of private defence. He is entitled to be discharged and acquitted. The 1st appellant made it clear both in Exh. A and in his evidence before the court that the 2nd appellant was never present at the scene. That was only the defence of the 2nd appellant. At any rate, the prosecution failed completely to prove the part, if any at all, played by the 2nd appellant in the episode. He is entitled to a discharge and acquittal too.

In conclusion, I also found the appellants not guilty of the offence charged. They are accordingly discharged and acquitted. This shall be the verdict of the lower courts.The appellants were charged in the High Court of Benue State holden at Makurdi and convicted of culpable homicide punishable with death contrary to section 221 (a) read with section 79 of the Penal Code.

The facts of the case are briefly as follows. The family of the deceased had a farm where they grew crops. The appellants’ family had goats which used to go on the farm to destroy the crops. In the morning of the day material to this case that is on 15th December, 1990,.the goats went on to the farm and the deceased killed one of them .. The father of the appellants (D.W.1) complained to the elder brother of the deceased (P.W.3) about the incident making the point that the deceased had so far killed 6 goats belonging to him (D.W.1). Later in the day, the mother of the deceased (P. W.1) went to a meeting of an association of women called Better Life for Rural Women. She was returning home in the evening when she came across the appellants who informed her that the deceased had killed their goat and they called her bad name. Thereafter the 1st appellant pushed her down to the ground, and started to beat her. P.W.1 shouted for help while crying. The deceased who was at home heard P.W.1 crying for help and therefore left for the scene of the incident to help her. On deceased’ s arriving at the scene the appellants set on him and began to beat him. According to P.W.1 the deceased was also attacked with cutlass and knives by the appellants and one Magondo. She testified that she saw the appellants cut the deceased three times with the cutlass and once with a knife. As a result the deceased died on the spot. A report was lodged with the Police and the 1st appellant was arrested. Three days later the 2nd appellant was arrested by the Police when he went to the Police Station to see the 1st appellant. Both the 1st and 2nd appellants made statements to the Police under caution.