Mallam Zakari Ahmed V. The State (1999)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C 

Mallam Zakari Ahmed was convicted by the High Court of Anambra State, sitting at Awka, of the offence of murder, contrary to section 274 (1) of the Criminal Code. Cap 36, Vol. 1. Laws of Anambra State of Nigeria, 1986.

The facts of the case as given by the prosecution are in the following narrative: The appellant came to the house of the deceased at night and went straight to the door of the room where one Igala woman, Sarah Abba, was living. He knocked at the door several times. Sarah Abba, who was also called Mama Friday in the locality, refused to open the door. She told him to go away because she had already gone to bed. But the appellant continued to knock at the door. A girl called Baby, who was staying in another room in the compound also told the appellant to go away.

The deceased, Mr. Osuagwu Obudike, who was Sarah Abba’s landlord, came out of his room and told the appellant to go away. The appellant refused and brought out a dagger and stabbed the deceased with it. The deceased shouted in Ibo language “Ogbuomuo” meaning “He has killed me”. Sunday Okafor, PW.l heard some noise and came out of Raymond Hotel’s premises where he was working as a night-guard. He saw the deceased holding the appellant by the shirt. Another person, Bello Aminu, testified as PW2 and told the trial court that he came out of his house when he heard a woman crying. The woman crying was PW.4, the wife of the deceased. PW.1 and PW.2 tied up the hands of the appellant put him in a wheel-barrow and took him to the police station. They handed over to the police the knife they recovered from the appellant at the scene of the crime.

A medical practitioner, Dr. Nathaniel Sunday Oraegbunam, performed an autopsy on the body of the deceased. He gave evidence as PW.8. The doctor told the trial court that from the pathological findings the two stab wounds seen on the body of Osuagwu Obudike caused severe bleeding which led to his death. The appellant made two statements to the police investigators, Exhibits B and C and testified in court for his own defence.

The learned trial judge after considering all the evidence adduced before him, convicted the appellant as charged and sentenced him to death. Dissatisfied with the conviction and sentence the appellant appealed to the Court of Appeal. The Court below considered the issues canvassed before it and dismissed the appeal. Armed with 4 grounds of appeal, the appellant finally came before this court contesting the conviction and sentence passed on him by the trial court which was affirmed by the court below.

The following three issues have been identified by learned counsel for the appellant, Chief Chibube Ezebilo, for the determination of this appeal:

“1. Whether the trial court as well as the Court of Appeal evaluated the evidence tendered before it properly.

2. Were there material conflicts in the statements and evidence of prosecution witnesses which rendered their various pieces of evidence unreliable and can the conviction of the appellant based on such unreliable evidence be sustained and upheld
3. Whether the trial courts as well as the Court of Appeal were right when they held that the defences of provocation, self defence, defence of property and defence of intoxication do not avail the appellant in this case”.

For the respondent the two issues raised are; whether the defence of provocation, self defence, defence of property and intoxication avail the appellant and secondly, whether the respondent had proved its case beyond reasonable doubt taking into consideration all the surrounding facts of the case.

In considering the issues formulated for the determination of this appeal I do recognise that the appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a trial court and a Court of Appeal would only interfere with the performance of that exercise if the trial court had made imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support. If the trial judge draws mistaken conclusions from indisputable facts or wrongly arranges or presents the facts on which the foundation of the case rests, the appeal court should not abdicate its own responsibility and rubber-stamp the error, but should intervene and do what justice requires-see Y.A. Lawal v. Chief Yakubu Dawodu & Anor. (1972) A.N.L.R. 707 at 722; Fatoyinbo and Ors. v. Williams alias Sanni and Ors. (1956) 1 F.S.C. 87; (1956) SCNLR 274 and Paul O. Omoregbe v. Ehigiator Edo SC 142/69 decided on 29th October, 1971.

Chief Ezebilo for the appellant submitted in the Appellant’s Brief that when the learned trial judge was considering the defence of self defence, defence of property and provocation raised by the appellant in his defence he disbelieved and rejected the evidence of the appellant in court and statements made by the appellant to the police in Exhibits B and C with regards to what actually happened on the night of the incident. Learned counsel further submitted that pieces of evidence given by the appellant in court such as “I took out my knife and waived it to defend myself’ and appellant’s statement to the police Exhibit B where he said “I forced myself to matchet one of the people who attacked me with knife while they collected my money and wrist watch” and in Exhibit C where the appellant said “They beat me and one of them hit me on the head while one cut me with knife on the head because of that I used dagger to defend myself’ were disbelieved and rejected by the trial judge.

After going through the submissions of both counsel in their respective briefs I find it pertinent to reappraise the evidence adduced before the trial court in order to establish whether the conclusions reached by the trial court which were affirmed by the court below from the facts and evidence available before the court had established beyond reasonable doubt that the appellant was guilty of the offence charged. This being a criminal trial for the offence of murder the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt -Ameh v. The State (1978) 6/7 SC. 27 and State v. Albert (1982) 5 SC. 6 at 8.

The case against the appellant is hinged on the evidence of PW 1, PW2 and PW4. The appellant was consistent in the statements he made to the police and the evidence he gave in his defence that he was waylaid along the road by three people, robbed of N3,000.00 and a wrist watch and beaten up by his attackers. The appellant stated further in his evidence and said:

“Before they beat me up I had a knife with me. I had a knife with me because as we control the herd of cattle any one about to die we kill it in order to sell it. As they were beating me they injured me in the eye and blood was rushing out so I took out the knife and waved it to defend myself. I was saying thief, thief, thief and people were coming out but they started beating me as I held one of the three people who waylaid me by his shirt. I did not enter any man’s house. What happened was along the main road. I did not know the people who carried me to the Police Station. I was unconscious when I was taken to the Police Station. It was about 4 a.m. that I asked one Policeman Sgt. Adamu what brought me here and he told me that some people brought me here with a barrow. What I now have on was not what I was wearing on that day. This one was bought for me while I was in prison yard. I do not know any Igala woman in my life”.