Makana Dada V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, J.S.C.

The Appellant was arraigned and prosecuted at the High Court of Justice of Kebbi State, sitting at Birnin Kebbi in Bimin Kebbi Judicial Division for the offence of Culpable Homicide punishable with death contrary to Section 221(b) of the Penal Code, and was convicted and sentenced to death by hanging having been found guilty of causing the death of one Mrs. Talina Ganya on 1st March 2002.

FACTS OF THE CASE

The Appellant was alleged to have dealt machete’s cuts on the deceased person Mrs. Talina Ganya on or about the 1st day of March 2002 which lead to her death on or about the same 1st day of March, 2002, Appellant pleaded not guilty to the charges. In proof of its case, the prosecution called three witnesses and tendered two (2) Exhibits namely, the confessional statement of the accused/appellant and the medical or post mortem report on the deceased victim. For his defence, the Appellant testified on his own behalf without calling any witness or tendering any Exhibit.

At the end of the trial the learned trial Judge on 31/7/2003 in his considered Judgment found the

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Appellant guilty as charged, convicted and sentenced him to death by hanging under Section 221(b) of the Penal Code.

Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court of Appeal vide Notice and Grounds of Appeal dated 5th December, 2005, containing two (2) Grounds of Appeal. In its considered Judgment, delivered on the 9th day of December, 2011, the Court of Appeal found the appeal of the Appellant without merit, it accordingly dismissed same, and affirmed the Judgment of the trial Court dated 31/7/2003 – convicting and Sentencing the Appellant to death by hanging.

It is from this decision of the Court of Appeal, affirming the conviction and sentence of the Appellant for culpable Homicide punishable with death, that this further appeal to this Court has arisen – Learned counsel for the Appellant filed his Notice of Appeal to this Court on the 9th of January, 2012. From the two (2) Grounds of appeal contained therein, the learned counsel for the Appellant filed the Amended Appellant’s Brief of Argument on the 13th of January, 2017, but deemed as properly filed on the 5/10/2017, and formulated the lone issue for

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determination as follows:

“Whether the Court of Appeal was right in affirming the conviction of the appellant for culpable homicide punishable with death having regard to the evidence before the Court.”

On its part; the Respondent; in its Brief of Argument; filed on the 18/12/2013; but deemed properly filed on the 5/10/2017, adopted the lone issue as proposed by the Appellant for the determination of the appeal.

In arguing the lone issue for the determination of the appeal, learned counsel for the Appellant took a swoop on what the Law requires for the prosecution; to establish for the offence of culpable homicide punishable with death. Learned counsel cited the decisions of this Court in both MICHAEL vs THE STATE (2008) 9 MJSC page 61 at 63, and KADA VS THE STATE (1991) 8 NWLR (pt. 208) 134 at 136.

Learned counsel further submitted that, the trial Court is not limited to considering only defences brought forward by an accused person. A trial Court is to consider all defences that could be available to an accused person from the evidence before the Court. For example, if blows and threatening gestures could cause loss of self control,

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then an abuse that caused pains on the Appellant is provocative and can cause loss of self control. See LADO VS THE STATE (1999) 9 NWLR (Pt.619) 369 at 371. LAOYE VS THE STATE (1985) 2 NWLR (Pt.10) 832 at 833; GABRIEL VS THE STATE (1999) 5 NWLR (Pt. 122) at 459. In the instant case the prosecution failed to discharge its duty for its failure to consider an unequivocal defence that is available to the Appellant. The prosecution failed and or neglected to prove the absence of provocation as clearly stated in the Appellant’s retracted confessional statement and same was not considered by the Trial Court.

Learned Counsel further submitted that, the onus lies on the prosecution to prove the guilt of an accused person beyond reasonable doubt. In the process of proving the guilt of the accused, the prosecution, where there is evidence of provocation from either the prosecution or from the defence, has the burden to prove the absence of such provocation LADO VS THE STATE (supra). Before a Court can convict on a charge of culpable homicide punishable with death, it must be satisfied on the whole evidence, including any explanation offered by the accused that the

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death was the probable consequence of the act of the accused. In the present appeal the evidence of the prosecuting witnesses is entirely hearsay evidence which is not in conformity with the provisions of Section 126 of the Evidence Act 2011. The evidence of a witness to Court based on what he was told by another person is clearly hearsay evidence which is inadmissible in law and cannot therefore be relied upon to convict for murder. Evidence of PW1, PW2, were all based on what they were told. See: NJOKU VS THE STATE (2013) 2 NWLR (PT.1339) 548 at 558, R. v. OGBUEWU (1949) 12 WACA 483.

Learned Counsel submitted further that there was no cogent and compelling circumstantial evidence before the learned trial Judge which made it probable that the Appellant caused the death of the deceased and that the Appellant’s retracted extra judicial statement was never corroborated during the trial before the trial Court. The Appellant in his evidence in Chief before the trial Court and page 42 of the Record stated that “It is not true, I did not give statement to the Police.” When they arrested me I did not give them any statement. I was beaten seriously at the Police

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Station they asked me the truth I told them I don’t know the offence I committed, it is not true I gave statement, it is not true I affixed my signature on the statement. The law here is that, before a person can be convicted upon circumstantial evidence such evidence must be so mathematically accurate that it points to the one and only irresistible conclusion that the person was the one responsible for the offence for which he was been charged. See ONAH VS THE STATE (1985) 3 NWLR (Pt.12) 236 at 237, YESUFU VS THE STATE (1976) 6 S.C. 167 at 173.

Also when an accused person confessed to a crime in his extra judicial statement, but in Court he retracts or resiles from his confession, profound and the well laid down practice is that, before such an accused person is convicted, on the confessional statement; the Court, looks for some evidence outside the confession which would make the confession probable. See BASSEY VS THE STATE (2012) 12 NWLR (pt.1314) 209 at 212 – 214. The guide here is the six tests laid by the Supreme Court, before a conviction on such a confessional statement. See: OSENI VS THE STATE (2012) 5 NWLR (Pt.1293) 351 at 358; AKPA VS THE STATE

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(2007) 2 NWLR. (Pt.1019) 500; UWAGBOE v. THE STATE (2007) 6 NWLR (Pt.1031) 606; UDOFIA v. THE STATE (1980) 8-11 SC.236. On all of the above, the Onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. He urged the Court to allow this appeal, discharge and acquit the Appellant.

In reply, the learned Counsel for the Respondent in their brief of argument filed 18/12/2013 but deemed properly filed on the 5/10/2013 and settled by Kabir Aliyu Esq. Ag. DPP Ministry of Justice, Kebbi State, maintained that, the learned Counsel for the Appellant in all the argument did not consider the whole evidence as adduced by the prosecution before the lower Court and as contained in the record of proceedings of the lower Court.

Learned Counsel for the Respondent argued that, for the prosecution to secure a conviction for the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code, it must establish ingredients (a), (b) and (c) listed under the Section. See: GAMBO MUSA v. THE STATE (2009) SCNQR 39; CHUKWU VS THE STATE (2012) 12 SCNJ 208 at 222; OCHIBA VS THE STATE (2011) 12 SCNJ 526 AT 537; MBANG

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VS THE STATE (2012) SCNJ 395.

In this case, there is enough evidence in the record of proceedings of the lower Court that, there was the death of TALINA GANYA. The testimonies of P.W.1, P.W.2, P.W.3 and Exhibit B the Medical Report at pages 17 – 18 of the record. This evidence was never contradicted nor controverted by the Appellant. On the second and third ingredient, though the prosecution did not have an eye/direct witness who saw the Appellant inflicting the injuries on the deceased which led to her death, yet the position of the law is very clear in cases of this nature to establish beyond reasonable doubt by circumstantial evidence. The prosecution can prove the cause of death either by direct or circumstantial evidence. See: ADETOLA & ORS VS THE STATE (1993) 4 SCNJ 1999 at 281; AYO GABRIEL VS THE STATE (1989) All N.C.R. 742: ADEPETU VS THE STATE (1998) 5 NWLR (Pt.565) 185 at 223. The law on this point is, as in the instant case, direct evidence of eye witness is not available, the Court may infer from the facts proved the existence of the facts that may logically tend to prove the guilt of an accused person from circumstantial evidence,

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however, great care must be taken not to fall into serious error.

Learned Counsel for the Respondent argued further that, the Appellant made a confessional statement to the commission of this crime, but retracted his confession, Exhibit A1 and B2 when prosecution sought to tender it in evidence through PW.3 and the learned trial Judge ordered for trial within trial, when the Appellant was called upon to put his defence at page 42 of the record, instead of giving evidence as to the voluntariness of his confessional statement or otherwise, he completely denied giving any statement to the police. The Appellant did not state that the statement was not made voluntarily by him or that duress or inducement or promise or influence of any sort was applied or made to him by the I.P.O. (PW.3) or any person in authority as required by Section 28 of the Evidence Act. A confessional statement does not become in admissible because of retraction, the Court only decides as to the weight to attach to it. Also a confessional statement once direct and positive and had been properly proved could be sufficient to grant a conviction even without corroborated evidence so long

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as the trial Court is satisfied with the truth. The trial Court was therefore right in admitting the statement of the Appellant.

Learned Counsel for the Respondent furthered his argument on circumstantial evidence before a Court as is the case with the instant appeal, that circumstantial evidence is very often the best. It is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. In the circumstances of this case the lower Court was right in affirming the conviction of the Appellant for Culpable Homicide punishable with death having regard to the evidence before it. He urged this Court to affirm the conviction and sentence made by the lower Court and to dismiss this appeal as lacking in merit.

On the part of this Court, the law is settled that, for the prosecution to secure a conviction for the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code it must establish the following ingredients beyond reasonable doubt:

“(a) That there was a death of human being.

(b) That death was caused by the act of the accused person;

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and

(c) That the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act.”

What is deducible from the above ingredients on the duty of the prosecution to establish the guilt of the accused person, must include:

“(i) That the deceased died:

(ii) That his death was not a natural death;

(iii) That the accused person did something or omitted to do something he had a duty to do by law.

(iv) That the said act or omission resulted in harm to the deceased.

(v) That the deceased died as a result of the said injury or harm.”

The basket is full with authorities established by this Court, on this subject. See:- THE STATE VS COLLINS AIBANGBEE & ANOR (2007) 2 NCC 648 at pages 689 – 690: AYO GABRIEL VS THE STATE (1989) 12 SCNJ 33 at 41; EZEKIEL ADEKUNLE VS THE STATE (1989) 12 SCNJ 184 at 192; GAMBO MUSA VS THE STATE (2009) S.C.N.Q.R.39; CHUKWU vs THE STATE (2012) 12 SCNJ 208 at 222; OCHIBA VS THE STATE (2011) 12 SCNJ 526 at 537, MBANG VS THE STATE (2012) 6 SCNJ 395.

Saddled with the duty to establish the ingredients of the offence of culpable homicide against the

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appellant, the prosecution approached the trial Court with its case against the appellant. The appellant was said to have used a machete and inflict several cuts over the body of the deceased, one TALINA GANYA, as a result of which she died, on or about the 1st day of March 2002. To further its proof against the appellant, the prosecution called three (3) witnesses and tendered two (2) exhibits which include the extra judicial statements of the appellant and Report of the cause of death of the deceased as Exhibits A1, B1 and B respectively.

For his defence, the Appellant testified on his own behalf without calling any witness or tendering any exhibit. At the end of the trial, the learned trial Judge on 31/7/2003 in his considered judgment, convicted the appellant as charged. The appellant appealed to the Court of Appeal, which also in a considered judgment delivered on the 9th day of December, 2011, dismissed the appeal of the appellant against the judgment of the trial Court, and affirm the decision, convicting and sentencing the appellant to death by hanging. It is against the judgment of the Court of Appeal of the 9/12/2011, that the appellant

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approached this Court with his appeal. The appellant’s grouse against the Judgment will include:

“(a) Accepting the trial Court’s finding that the offence was proved against the appellant by the prosecution beyond all reasonable doubt before it finally convicted him as charged. None of the witnesses saw the persons on who cut the deceased, there were no eye witnesses.

(b) The Court of Appeal was wrong in accepting trial Court’s position in admitting the confessional statement of the Appellant even though retracted by him at the trial.”

The two contentions against the judgment of the Court of Appeal, as raised by the Appellant can be considered together. The Court of Appeal on pages 166 – 167 of the record stated as follows:

“Both the learned appellant counsel and the Respondent’s Counsel are at one and rightly too, as to the elements the prosecution is expected to prove in order to obtain conviction of an offence of culpable homicide punishable with death under Section 221(b) of Penal Code as highlighted above and all such ingredients of the offence must be proved beyond reasonable doubt under Section 138(1) of the Evidence Act (as

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amended). Three of the witnesses were called by the prosecution in order to establish its case against the accused/Appellant namely PW.1 (Ganye Jade) the deceased person’s husband, PW.2 Sabge Ganye the wife of the son of the deceased who was also a neighbor of the accused person (Appellant) and of course PW.3 Sergeant Ibrahim Kawti the police officer who investigated the case,. The 1st PW, (the husband of the deceased) testified that on receiving information from PW.2 that his wife was attacked by the Appellant, he quickly rushed to the scene which was not far from his house where he saw his wife left in pool of blood hence he decided to take her to General Hospital Wasagu but she died on the way to the hospital. At the hospital he identified her body before it was examined and later released to him for burial rites. As for pW.2 the deceased daughter-in-law she testified that when she went to the accused house to fetch fire, she heard the noise of the cry of the deceased person (Alias Mama lge) and on rushing to the scene in company of the Appellant’s wife, they equally met the deceased in pool of blood with machete cuts all over her body

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and when they asked her the latter confirmed to them that it was the accused/Appellant who inflicted the injuries on her body and she (PW’2) went and told PW.1 even though they did not meet the accused/Appellant at the scene. Then PW’3 the Police Officer who took the body of the deceased to the hospital and later collected the post-mortem report which was tendered in evidence and marked Exhibit B. He said he recorded the statement of the accused and same being a confessional one he took it and the accused to a superior police officer (S.P.O.) for endorsement. After same was read over to the accused, he confirmed making it voluntarily. To my mind, from the surrounding circumstance of the case vis-a-vis the uncontroverted testimonies of the prosecution witnesses there is no gainsaying established by the prosecution through credible and reliable evidence of the deceased’s husband and her daughter-in-law and the medical report (exhibit B). The first ingredient of the offence has therefore been proved.”

The Appellant stood trial for culpable homicide punishable with death. The principle of our Law ingrained in our Constitution is the presumption of Innocence. It

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behooves of the Court to subject every item of facts raised for or against him to merciless scrutiny. Nothing should be taken for granted as the liberty of the subject is at stake. While it is the right of an accused person to raise a defence, the law also imposes it as a duty on the Court to consider other defences that may be available however stupid or unreasonable for whatever it is worth. This is a settled position of the law. See:- DSP GODSPOWER NWAKWOALA & ANOR VS THE STATE (2006) 14 NWLR (Pt. 1000) 663 at 686; MBANENGEN SHANDE VS THE STATE 22 NSCQR 756 at pages 772-773; SAMPSON N. NWAEGBINYA VS THE STATE; 21 NSCQR 570 at 584; LADO VS STATE (1999) 9 NWLR (Pt’619) 369 AT 371; LAOYE VS STATE (1985) 2 NWLR (PT. 10) 832 AT 833; GABRIEL VS STATE (1999).

The Appellant stated at page 4, paragraph 4.11 of his Amended Appellant’s Brief of Argument, that the prosecution has failed and or neglected to prove the absence of provocation as clearly stated in the Appellant’s retracted confessional statement and same was not considered by the Trial Court. The record before this Court bears the fact that the appellant made a confessional statement before the

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police, and later retracted the said statement in Court. The Trial Court conducted a Trial within Trial before it admitted same in evidence. The Court of Appeal was right in stating the Law that, retraction of a statement by an accused person may not call for a trial within trial, only comes in the province of a challenge to the voluntariness of that statement.

The Appellant’s retraction of his statement freely made by him even if later denied is by law admissible. This is a settled position by this Court. See:-SHITTU VS STATE (1970) 1 All NWLR 228; QUEEN VS ITULE (1961) 2 SCNLR 183; ADAMU VS A.G. BENDEL STATE (1986) 2 NWLR (Pt.22) 284; AREMU v. THE STATE (1991) 1 NWLR (Pt.201) l; EJINIMA v. THE STATE (1991) 6 NWLR (Pt.200) 627, AKPAN VS THE STATE 4 LC. page 582. The Appellant’s reference to his retracted statement, is his clear admission that, his retracted statement was still alive. Where the trial Court which admitted that statement in evidence Exhibit A1 failed to avert its mind to the defence of provocation raised therein in Exhibit A1, the Court of Appeal ought to have made that defence available to the Appellant but it did not. Now, how has the defence

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of provocation as contained in Exhibit A1 becomes available to the Appellant. (For clarity I reproduced Exhibit A1 at pages 13 to 14) as follows:

“I of the above named and address wish to state as follow: actually Talina Ganya was my former girl friend since for the past ten years. With my agreement whatever, I sell I will give her the money free and she will take it to her husband house, to the extent she bought nine cows with my money and the cows are now in her husband house, and I am the one that zink their house, not knowing to me that her husband is aware of our staying, he have once chase me with her at the back of my house while we were discussing. After that the money that Talina Ganya got from me is beyond expectation and I know she will be wealthy more than what I have. Then on the 1st March -2002 at about 1800hrs I went and block Tadurga market road, luckily enough Talina Ganya was coming back from Tadurga market, I called her and she stopped I started playing with her and it pains me, I warned her to stop abusing me but she refused, I brought out my Cutlass from it house and (cut) inflicted wound all over her body and I believe that she die,

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then I ran away with my family, I threw my Cutlass in the bush and I cannot trace it now, more over I left her with her place at the scene I did not take any of her belonging, in brief I am the one that killed Talina Ganya and it is an accidental incident, my intention was not to kill her but to disfigure her. That is all I have to say.”

From the content of Exhibit A1, it is beyond doubt that the Appellant, and the deceased, who had a history of man and woman relationship was pained by the conduct of the deceased in that relationship. The Appellant accosted the deceased, a former girl friend on the scene of the crime. I must mention quickly here, and now, that the defence of provocation now raised by the Appellant himself, has fixed him to the scene of the crime on that fateful date. From exhibit A1, it is crystal clear that, it was the Appellant, and no one else that interacted with the deceased at the scene of crime.

The provocation of the Appellant was as a result of all his gifts monetary to the deceased went out to her husband. The Appellant challenged the deceased on her attitude, who in turn replied with abuses. He was pained by the

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abuses. He was already armed with a machete which he used, gave several cuts to the deceased. His intention according to Exhibit A1 was to disfigure her, and not to kill her, but it resulted into her accidental death. The defence of provocation under the penal code cannot be discussed in a vacuo. See Section 38 of the Penal Code, it provides as follows:-

“(1) The fact or act of Provocation;

(2) The loss of self control; and

(3) A retaliation proportionate to the provocation offered by the deceased to the accused.”

All the three factors above cannot avail the appellant, as he left home armed with his machete to go and commit the crime. The provocation relied upon by the appellant did not occur in a spur of the moment. And to return machete cuts for abuses with words by the deceased was quite disproportionate. This Court per Obaseki, JSC (as he then was and of blessed memory) held in the case of MANAWA OGBODU VS THE STATE (1987) 3 SC.497 at pages 504 to 505 that:”Provocation does not arise under the Nigeria Law when an innocent victim is stabbed.”

The provocation as claimed by the appellant was not one that arose suddenly in the

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heat of anger. The position of the law is that, the test of provocation is objective and not subjective.

It is the test of the reasonable man not the test the particular accused. Therefore, in the determination whether there was provocation, the Court will consider what a reasonable man in the street will do.

The bottom line arrived at by this Court is that, defence of provocation will not avail an accused if there is evidence of organized or premeditated vendetta which clearly represents the case of the Appellant before this Court. On this point, see:- USMAN KAZA VS THE STATE, 33 NSCQR (Pt.2) 1351 at pages 1418 – 1419; DARE KADA VS THE STATE (1991) 11 SCNJ 19 at 41; ABUBAKAR DAN SHALLA VS THE STATE 32 NSCQR 277. In Dan Shalla’s case (supra) I.T. Muhammad, JSC., had this to say at pages 338 – 339 of the report.

“In order to enjoy the above facility (of Section 221(1) Penal Code) the accused must lead evidence to establish the following ingredients.”

“(i) The act of provocation is grave and sudden;

(ii) The accused must have lost self control, actual and reasonable.

(iii) The mode of resentment must bear a reasonable relationship

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to the provocation.”

From the above therefore, the evidence based on the confessional statement is quite overwhelming against the appellant. The evidence is direct, positive and cogent that it was the appellant and no one else that caused the death of the deceased person.

I do not have any reason to disturb the findings of the trial Court and of the Court of Appeal that, the dying declaration of the deceased in this case formed part of the regestae in convicting the appellant. It is well established in our Law of evidence that a statement made by a person in imminent fear of death, and believing at the time it is made that he was going to die, is admissible as a dying declaration Section 33(A) Evidence Act. See:-AKINFE VS THE STATE (1988) 3 NWLR (P.83) 729; OKOKOR VS THE STATE (1967) NMLR 189, R. v. OGBUEWU (1949) 12 WACA 493. Strict proof of actual words used by the deceased is generally required in proof of the dying declaration to avoid any uncertainties. See- IKONO VS THE STATE (1973) 5 SC.231.

In the present case, there is no evidence that PW.2, PW.3, did not correctly state the actual words of the deceased in the dying declaration.

On the

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whole therefore, the lone issue in this appeal is resolved against the appellant. The appeal is devoid of merit, and it is hereby dismissed by this Court. The Judgment of the Court of Appeal delivered on the 9th day of December, 2011, which affirmed the Judgment of the trial Court, convicting and sentencing the appellant to death by hanging is hereby affirmed by this Court.

OLABODE RHODES-VIVOUR, J.S.C.: I have had the privilege of reading in draft the leading judgment just read by my learned brother Bage JSC and I agree with the reasons his lordship had given for dismissing the appeal.

The respondent’s case rested on circumstantial evidence. Circumstantial evidence is something from which facts in issue are/can be inferred. So, before a trial Court convicts an accused person on circumstantial evidence the evidence must be cogent, and unequivocal. It must be compelling and lead to the irresistible conclusion that the accused person and no one else committed the offence. The only reasonable conclusion after examining the facts is that the accused person committed the offence for which he is charged. Where circumstantial

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evidence is deficient it helps the appellant to an acquittal. See Udedibia & Ors v State (1976 11 SC p.133, Adie v State (1980) 1- 2 SC P.116 Ukorah v State (1977) 4SC p.167.

The evidence in this case is compelling and leads to the irresistible conclusion that the appellant killed the deceased by inflicting several matchete cuts on her. The dying declaration of the deceased, together with the appellant’s confessional statement and the postmortem report makes circumstantial evidence very reliable and conclusive that the appellant killed the deceased.

The evidence is sufficient to satisfy the standard necessary for a conviction for culpable homicide punishable with death.

For these brief reasons as well as the more detailed reasoning in the leading judgment l, too dismiss this appeal.

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SC.259/2013