Shuaibu Abdu V. The State (2016)
LAWGLOBAL HUB Lead Judgment Report
AMIRU SANUSI, J.S.C.
This is an appeal against the Judgment of Court of Appeal Kaduna division (“the Lower Court”) delivered on 21st February, 2014 which affirmed the judgment of Jigawa State High Court of Justice (hereinafter called the trial Court)
The appellant was arraigned before the trial High Court on allegation of causing the death of his wife Binta, on 30th April, 2007 at Falgore village in Jahun Local Government of Jigawa State by matchetting her to death on the head, contrary to Section 221 of the Penal Code of Jigawa State.
At the trial, the prosecution called five witnesses and tendered some exhibits in order to prove its case, while the appellant did not give evidence or call any witness but instead, he rested his case on that of the prosecution/respondent.
Both parties at the end of the trial, waived their rights of address. In the end, the trial Court found the appellant guilty as charged and sentenced him to death.
Dissatisfied with the judgment of the trial Court, the appellant filed an appeal before the Lower Court which heard his appeal and
affirmed the judgment of the trial Court. Further aggrieved with the judgment of the Lower Court, the appellant has now appealed to this Court by filing a notice of appeal containing nine grounds of appeal.
In keeping with the rules and practice in this Court, parties filed and exchanged briefs of argument. The appellant’s brief of argument settled by Nassir Abdu Dangiri was filed on 3rd of July, 2014 wherein, one issue was raised by him for the determination of the appeal. The lone issue for determination raised by the appellant in his brief of argument reads thus:-
“Whether the learned Justices of the Lower Court were right in affirming the death sentence passed on the appellant by the trial Court after holding that the learned trial judge completely abdicated its responsibility and did not approach the task of determining the guilty of the appellant with any sense of duty and did not appear to know what he was doing.”
On his part, the respondent also formulated lone issue for the determination of this appeal as reproduced hereunder:-
“Whether considering the evidence adduced before the trial Court, the learned Justices of the Lower Court
were right in dismissing the appeal of the convict/Appellant and affirming the judgment of the High Court of Jigawa State in Suit No.JDU/24C/2007 delivered by Honourable Justice A. M. Nakullum on the 24th of September, 2008 convicting the appellant for the offence of culpable homicide punishable with death”
Before delving into the determination of this appeal, I think it will apposite to make, what I consider to be salient observation. As I said supra, the appellant herein, filed a notice of appeal containing nine grounds of appeal out of which he raised only one issue for determination.
The learned appellant’s counsel unfortunately did not tie or link his lone issue to any of the nine grounds of appeal. If he had done that, this Court would have no difficulty in knowing to which of the grounds of appeal his lone issue relates. As a general rule, issue(s) for determination formulated in a brief of argument must be based on a particular ground or grounds of appeal. Where such issue is not so linked or tied to any ground or grounds of appeal, then it becomes irrelevant and goes to no issue and is even liable to be struck out. See Akpan v. FRN (2012) 1
NWLR (Pt.1281) 403; Amadi v. NNPC (2000) 6 SC (Pt.1) 66 at 172, Ibetor v. Barakuro (2001) 9 NWLR (Pt.1040) 475; Chami v. UBA Plc (2010) LPELR 841 (SC).
In this instant appeal, it would appear difficult for this Court to know to which of his nine grounds of appeal, his lone issue flows from so that the rest grounds of appeal which it does not relate or linked to can be deemed abandoned and thereby strike them out. This is because it is trite law that any ground or grounds of appeal from which no issue for determination is raised is/are deemed abandoned. See Unilorin v. Olawepo
(2012) 52 WRN 42; Oseni v. Bajulu (2010) All FWLR (Pt.571) 813; Ossai v. FRN (2013) 13 WRN 87.
The learned counsel for the respondent did not help matters either, because he also fell into the same trap of his learned colleague for the appellant. In his brief of argument, the sole issue for determination formulated by the respondent was also not shown to have flowed from any of nine grounds of appeal filed in the appellant’s notice of appeal. Well, ordinarily I should have struck out the appellants lone issue for this lapse or anomaly, but I will however be hesitant to do so,
especially because this appeal is on a criminal matter and it involves serious offence which attracts a capital punishment. I will therefore still venture to consider the appeal on its merit for these important reasons and in doing so, I will be guided by the lone issue raised in the respondents brief of argument as it is more relevant and was also more elegantly couched.
In his submission on this sole issue, the learned counsel to the Appellant referred to the evidence of PW1 to PW5 at pages 1-16 and stated that there was no eye witness to the commission of the crime and that the learned trial Judge failed to consider all the defence available to the Appellant. He referred to the judgment of the Lower Court at pages 10-11 of the record. He then submitted that the Lower Court erred in law, in affirming the conviction and sentence passed on the Appellant. He argued that the defence of provocation raised by the Appellant was never considered by the two Courts. He stated that this defence was raised in his extra judicial statement. He further stated that the Lower Court ought to have ordered a retrial by the trial Court having failed to consider the said
defence of provocation. In conclusion, he urged this Court to allow his appeal.
As stated supra, the Respondent has also formulated one issue for determination which said issue relates to whether the Lower Court was right in dismissing the Appeal of the Appellant. The learned counsel to the Respondent submitted that the lower Court was right in affirming the conviction and sentence of the Appellant, notwithstanding their comment on the learned trial judge, that he does not know what he was doing. On the contention of the Appellant that the trial Court failed to consider their defence raised in his extra judicial statement contained in Exhibits 1 and 2 he contended that provocation can only avail an accused person when the act complained of occurred instantly on the suddenly of moment and before the passion cools down. He argued that provocation defence cannot avail the Appellant in this circumstance. He argued further, that there was nothing in the record to show that the Appellant was provoked, hence the defence cannot avail the Appellant, and also because the degree of retaliation was not proportionate to the alleged provocation. He stated that the Appellant slapped the
deceased and he still went ahead to inflict matchet cut on her. He contended that the Appellant did not adduce any evidence to support the defence of provocation. He referred to the evidence of PW1, PW2 and PW3 and submitted that the Respondent has proved all the ingredients of this offence. He argued further, that an accused person can even be convicted solely on his confessional statement, whether judicial or extra judicial, especially where it is direct, positive and unequivocal. He submitted that the Lower Court was right in affirming the conviction and sentence of the Appellant. In conclusion, he urged this Court to dismiss the appeal and to also affirm the conviction and sentence of the Appellate by the two Lower Courts.
It needs to be stressed here, that the appellant did not testify nor did he call any witness for his defence at the trial Court. Rather, he chose to rely or rest his case on the case of the prosecution i.e. the respondent herein. Surprisingly and quite strangely too, the appellant decided to raise the defence of provocation on appeal which said defence was never raised at the trial Court and which was also obviously never
considered by the trial Court in its judgment which was appealed against to the Lower Court and such defence could not have been contemplated by the trial Court. To my mind, such defence could not have availed the appellant since he never raised it at the trial Court and also because he never applied to the lower Court for leave and was obliged one by the Lower Court to raise it as a fresh issue on appeal for the lower Court’s consideration. Although it can be noted from particular(b) of Grounds No.7 of the Notice of Appeal, I am unable to see any issue for determination flowing from Ground No.7 raising the defence of provocation. Even at that, as I said above, the issue of provocation was never raised by the defence at the trial Court for it to address. Now, since the appellant did not seek leave to raise it as a fresh issue before the Lower Court, such defence can not avail the appellant. Be that as it may, since it was raised in the appellant’s confessional statement I shall still consider it here for whatever it is worth.
The charge the accused/appellant stood trial on is culpable homicide punishable with death, Contrary to Section 221(b) of the Penal Code. The
ingredients of the offence that of necessity, must be proved by the prosecution in order to obtain conviction are:
(a) That death of a human being was caused;
(b) That such death was caused by the accused person.
(c) That the act that led to the death of the victim was intended to cause death or grievous hurt or that the accused knew or had reason to believe that by his action, death will be the probable and not only likely consequence of his act.
In all criminal cases the burden of proof squarely lies on the prosecution which always has a duty to prove all the above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act, the standard of such proof is nothing less than proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution such doubt shall be resolved in favour of the accused person. See Adebiyi v. The State (2013) 7 NWLR (Pt. 1354) 397; Kola v. Poteskum (1998) 3 NWLR (Pt. 540) 1; David Abaje v. The State (1976) A NLR 139.
It is apposite to say that in order to prove an offence the prosecution can use any of the following
modes of proof namely:-
(1) Evidence of eye witness or witnesses or
2) Confessional statement of the accused, or
(3) Through circumstantial evidence.
However, in the case of proof by circumstantial evidence, the circumstantial evidence to be relied upon by the prosecution must be credible, cogent and must irresistibly point to the guilty of the accused and to no other person. In fact it is stated in criminal jurisprudence, that circumstantial evidence is often regarded as a reliable and acceptable mode of proof of a case and the Court can accept and act on it provided it is cogent and admissible. See Usman v. State (2013) 3 NWLR (Pt. 1342) 607; Maigari v. State (2010) 16 NWLR (Pt. 439) 49; Nwabueze v. State (1996) 2 NWLR (Pt. 428).
Admittedly, in this instant case, there was no eye witness called by the prosecution. However, the evidence relied upon by the prosecution is basically the confessional statement of the accused/appellant. The said statement, Exhibit 2, was admitted without any objection from the defence. Its voluntariness was never questioned throughout the trial. In the said statement the accused now appellant stated, inter alia,
“I asked her to wash my cloths but she answered me that she will not wash it. I insulted her father and she retaliated after that I was annoyed and slapped her, she attempted to revenge but she did not do so, I was very angry with her, I then brought out a matchet in the room and cut her on her chick and her jaws for the first time, the second time she was trying to block the matchet with her hand and I cut her the second time. I left her in blood rushing out of her body and dropped the matchet inside the room and ran to the bush behind the village.”
The prosecution led evidence to prove that the deceased died from the machete cuts caused by her husband, the appellant herein, also through the evidence of PW5 the medical officer who examined the body of the deceased victim, PW2, the foster father of the appellant, also confirmed seeing the dead body of the deceased victim. Similarly, the appellants mother PW1, also confirmed seeing the dead body of the victim when she testified. All these piece of evidence go a long way in establishing that the deceased victim died and also as a result of the act of machetting by the
accused/appellant and by such dastardly act or attack on the helpless and defenceless victim and that he definitely did so, with knowledge that death will certainly be the probable and not only likely consequence of his act considering the vital parts of her body the appellant inflected the injuries on her.
As I stated supra, the prosecution heavily relied on the confession of the accused/appellant in proof of its case. I am mindful of the fact that a free and voluntary confession of guilt whether judicial or extra judicial which is direct, positive and properly proved is enough to establish a conviction, so long as the Court is satisfied with its truth. See Thomas Akpan Ekong v. The State (2013) All FWLR (Pt.685) 353; Odey v. FRN (2008) 3 4 SC 147.
It is equally settled law, that there is no evidence stronger than a person’s own admission or confession. However, even though a person can be convicted solely on his confessional statement, it is still desirable to look for evidence, no matter how slight outside the confession which would make it probable that the confession was true. In this instant case, the evidence abound from the evidence
of PW5, the medical officer who performed autopsy on the body of the deceased victim when testified on the part of her body that was cut by the appellant which also tallies with the appellant’s confessional statement with regard to where he hit her with his machette. Also these evidence of PWs 1 and 2 who saw the dead body of the deceased also confirmed the death of the victim support or justifies the trial Court’s finding.
I have earlier noted that the appellant herein, raised the issue of provocation in his confessional statement even though such defence was not raised at the trial Court and for that reason, it was not contemplated or dealt with by the trial Court. I shall still consider it here. The appellant in his statement Exhibit 2 stated that the wife/deceased annoyed him when she out rightly refused to wash his cloths because he insulted her father or that when he slapped her, she attempted to retaliate. The question is, could this avail him the defence of provocation The law is well settled that a defence of provocation can only avail an accused person in the following circumstances or when the underlisted conditions are met and such conditions
must be shown or proved by the accused person. The conditions are
(i) That the act relied on by the accused is really provocative.
(ii) That the provocative act deprived him of self-control.
(iii) That the provocative act came from the deceased.
(iv) The sudden fight between the accused and the deceased was instantaneous and continuous with no time for passion to cool down, and;
(v) The force used by the accused in repelling the provocation is not disproportionate in the circumstance.
The defence of provocation would not be available to an accused person who acted with calculation and was no longer in the heat of passion even though there was a provocative incident which angered him at first. See Frank Uwagboe v. The State (2008) 12 NWLR (Pt.1102) 621; Nwede v. State (1985) 3 NWLR (Pt.13) 444; Akalezi v. State (1993) 3 NWLR (Pt.273) 1; Okonjo v. State (1987) 1 NWLR (Pt.52) 659. Applying the above tests, there is no how the defence of provocation could avail the present appellant. Firstly, the acts of the victim which he perceived to be provocative as mentioned above, are far from being provocative. Also, there was time for heat of passion to
cool down. Again, the attack on her with matchet on an armless, helpless, feeble woman is disproportionate especially the matchet cuts on vital parts of her body which clearly shows that he intended the consequences of his act and he ought to have known that her death would be the probable consequences of his dastardly and cruel act.
From the surrounding circumstances of this case, evidence also abound that the appellant had really committed the offence he was charged with and convicted on. The prosecution had, in my humble view, proved its case against the accused/appellant beyond reasonable doubt. The Lower Court had painstakingly considered the entire evidence led by the prosecution which was also relied upon by the defence when it rested its case on same. The Lower Court was also right in affirming the decision of the trial Court which found the accused guilty as charged and convicted him.
In the result, I adjudge this appeal as meritless. It therefore fails and is accordingly dismissed by me. The judgment of the Lower Court which affirmed the judgment of the trial Court is hereby affirmed. Appeal is dismissed.