In The Supreme Court of Nigeria
On Friday, the 11th day of January, 2019
Before Their Lordships
WALTER SAMUEL NKANU ONNOGHENJustice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMADJustice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHSJustice of The Supreme Court of Nigeria
JOHN INYANG OKOROJustice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZEJustice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): By a charge dated 5th July, 2006, the appellant was arraigned by the respondent before the Katsina State High Court, the trial Court, sitting at Dutsin Ma, for the offence of Culpable Homicide punishable with death under Section 221 of the Penal Code. He had caused the death of one Salihu Yusuf on the 3rd day of May 2004 by hitting him with a stick on his head. The appellant pleaded not guilty to the charge.
Six witnesses testified for the respondent through whom four exhibits were tendered and admitted in evidence. The appellant testified for himself. He called no other witness in his defence.
At the end of trial, the trial Court found the appellant guilty as charged and convicted him accordingly in its judgment dated 5th December, 2012.
Aggrieved, the appellant appealed to the Court of Appeal, Kaduna Division, hereinafter referred to as the lower Court, vide a notice filed on the 14th November, 2013 containing five grounds. Allowing the appeal in part, the Court set aside appellant’s conviction under Section 221 of the Penal Code and substituted it with one under Section 224 of the same code for culpable homicide not punishable with death and sentenced him to ten years imprisonment.
Still dissatisfied, the appellant has further appealed to this Court on a notice dated 18th September, 2014 containing three grounds. He seeks that his conviction and sentence by the lower Court be set-aside.
In his brief settled by Gideon Musa Kuttu Esq of counsel, the appellant has distilled a single issue for the determination of his appeal. The issue reads: –
“Whether by (sic) the available evidence on the records, it (sic) can justifiably sustain a conviction of the Appellant on the substituted charge of Culpable Homicide not punishable with death under Section 224 of the Penal Code.”
At page 3 of its brief, settled by Addul-rahman Umar Esq., chief state counsel Katsina State Ministry of Justice, the respondent has adopted the foregoing issue formulated by the appellant as calling for resolution in the determination of the appeal.
On the lone issue, learned appellant’s counsel contends that the respondent, who has not discharged the burden of proving beyond reasonable doubt that it was the appellant that caused the death of Salisu Yusuf, is not even entitled to the lower Court’s verdict substituting appellant’s conviction under Section 224 of the Penal Code with the trial Court’s conviction under Section 221 of the same code for homicide punishable with death. Exhibits 2A, 2B, photographs of the deceased’s corpse and Exhibit 3, the medical report on the fact of the death of Salisu Yusuf and its cause, it is argued are all inadmissible. By virtue of Sections 68 and 83 of the Evidence Act 2011, the three exhibits being the opinion of expert witnesses, it is contended, must be tendered through their makers except where their presence is shown to be impracticable and/or inexpedient. The exhibits are inadmissible having been tendered not through their makers and without any foundation for so doing.
Finally, the material contradictions in the evidence of PW1, PW3 and PW4, it is submitted, makes the entire case of the respondent incredible, unacceptable and incapable of being acted upon by any reasonable Tribunal. Relying on Oforlete V. State (2000) 12 NWLR (Pt. 681) 415 at 434, Ebeinwe V.
State (2011) 7 NWLR (Pt. 1246) 402 at 413 – 414 and Agbo V. State (2006) 6 NWLR (Pt. 977) 545 at 564, learned appellant’s counsel urges the Court to resolve the lone issue against the respondent, allow the appeal, set-aside the lower Court’s conviction and sentence of the appellant and discharge him.
Responding, learned counsel submits that the prosecution has not only proved the offence under Section 224 of the Penal Code for culpable homicide not punishable with death against the appellant but the one with which it was substituted by the lower Court under Section 221 of the same code for culpable homicide punishable with death. Appellant’s contention that Exhibits 2A, 2B and 3 being expert opinions must be tendered through their makers, it is argued, is misconceived. While conceding that Exhibit 3, the medical report is the opinion of an expert, learned respondent’s counsel further submits, Exhibits 2A and 2B, ordinary photographs which are not the expert evidence the law requires their being tendered through the photographer. Any person can snap a picture and print same without being an expert. In any event, tendering the exhibits through PW6, learned respondent’s counsel contends, does not affect their admissibility since the documents were in his custody and proper foundation in that regard has been laid. It is too late for the appellant who was represented at trial by counsel and raised no objection to the exhibits, learned counsel further contends, to do so now.
Fundamentally, it is also argued, Section 55 (2) of the Evidence Act 2011 allowed the appellant to summon the maker of Exhibit 3 for cross examination thereby obviating appellant’s grudge that because he did not have the opportunity to cross examine the makers of the exhibits his right to fair hearing has been breached. Still under Section 36 (c) of the 1999 Constitution, learned counsel submits, an offence may be
proved either by direct evidence of eye witnesses, compelling circumstantial evidence, lawful confessional statement of the accused or a combination of any of the three. In the case at hand, it is contended, the respondent has established by direct evidence as well as the confessional statement of the appellant that the latter had caused the death of Salisu Yusuf. Learned counsel relies on Shurumo V. State (2010) 19 NWLR (Pt. 1226) 73 109, Akpan V. State (2008) 14 NWLR (Pt. 1106) 72 at 99 and Patrick V. State (2013) 18 NWLR (Pt. 1385) 163 at 183. PW1, PW2, PW3 and PW4, it is submitted, testified, in their unchallenged evidence, seeing when the appellant hit the deceased with a stick. It is within the trial Court’s competence and duty, having seen and assessed the credibility of these witnesses, to rely on such evidence. Learned counsel supports his submission with Okosi V. State (1989) 1 NWLR (Pt. 100) 42 and Ndidi V. State (2005) 17 NWLR (Pt 953) 17 at 32 – 33.
Appellant cannot be right, learned respondent’s counsel asserts, to suggest that there are such contradictions in the evidence of the prosecution witnesses which disentitle a reasonable Tribunal to rely on same in convicting the appellant. There must always be differences in the content of their testimonies. As a rule, where as in the case at hand, the contradictions are minor, it is argued, Courts discountenance them.
Concluding, learned respondents counsel submits that Exhibits 4a and 4b, appellant’s extra judicial statements, are confessional. Having been voluntarily made, tendered and admitted without appellant’s objection at trial, it is submitted, the statements alone would sustain appellant’s conviction by the lower Court. Citing Musa V. State (2013) 9 NWLR
(Pt. 1359) 214 at 236, Ada V. State (2008) 13 NWLR (Pt. 1103) 149 at 166 and Akindipe V. State, learned counsel urges that appellant’s lone issue be resolved against him the unmeritorious appeal dismissed and the trial Court’s conviction of the appellant under Section 221 of the Penal Code for homicide punishable with death restored.
Replying on points of law, the appellant in his reply brief filed on the service of the respondent’s brief on him cites the decisions in Ajayi V. Adebiyi (2012) II NWLR (Pt. 1310) 137, Ogunbadejo V. Owoyemi (1993) 1 NWLR (Pt. 271) 517 and Ogunsola V. Nicon (2010) 13 NWLR (Pt. 1211) 225 in rightfully submitting that the role of the respondent in an appeal is to defend the judgment appealed against. Having not crossed appealed, it is argued, the respondent herein cannot seek the reversal of the judgment of the lower Court. I entirely agree with learned appellant’s counsel. In Ogunbadejo V. Owoyemi (1993) 1 NWLR (Pt. 271) 517 rightfully cited and relied upon by learned counsel, this Court restated the principle that the respondent who has not cross-appealed against the very judgment on appeal cannot seek the reversal or variation of any findings of the Court below.
My lords, the real issue this appeal raises is that available evidence does not sustain appellant’s conviction for culpable homicide not punishable with death under Section 224 of the Penal Code. Appellants submissions in support of this complaint are as earlier captured in this judgment. Hereinunder restated are the salient principles necessarily applicable in the resolution of the lone issue and determination of the appeal.
Both sides are right that the burden of proof of the offence with which the lower Court convicted the appellant lies on the respondent and same does not shift. See Aruna & Anor V. The State (1990) LPELR-568 (SC) and Okashetu V. State (2016) LPELR-40611 (SC).
Again, counsel are right that in discharging the burden, the law places on the respondent herein to prove the case against the accused by relying on: –
(a) The direct evidence of eye witnesses.
(b) Circumstantial evidence and/or
(c) The confessional statement of the accused. See Olabode Abirifon V. The State (2013) 13 NWLR (Pt. 1372) 587 and Freeborn Okiemute V. The State (2016) LPELR-40639 (SC).
The law further requires that whatever evidence the respondent relies on in proving its case against the appellant, it must be bereft of substantial contradictions. Only material contradictions in respect of a fact in issue creates doubt in the mind of the Court thereby destroying the case sought to be established against an accused. Thus, only such material contradictions which affect live issues to which they relate avail an opposing party thereby entitling the appellate Court to interfere with the judgment on appeal giving the miscarriage of justice they occasion. See Maiyaki V. The State 2008) LPELR-1823 (SC), Sele V. The State 1 SCNJ (Pt. 1) 15 at 22 – 23 and Usiobaifo & Anor V. Usiobaifo (2005) LPELR-3424 (SC).
It is also trite that confession remains the best form of evidence against the accused for no rational being, all things being equal, says anything against his interest. See Adebayo V. The State (2014) LPELR-22988 (SC) and Olanipekun V. State (2016) LPELR-40597 (SC).
The appellant has enthused that Exhibits 2A and 2B, the photographs of the corpse of the deceased and Exhibit 3 the medical report denoting the fact of and the nature of the injury that caused the death of Salisu Yusuf to be inadmissible. The three do not avail the respondent in proof of the facts to which
they relate. Their being expunged from evidence, it is contended, has a disastrous effect on the respondent’s case.
Learned respondent counsels response to appellant’s arguments in relation to the three exhibits is indeed devastating.
I agree with learned respondent’s counsel that it is not that Exhibits 2A, 2B and 3 are in any event inadmissible. No.
Rather, it is that the exhibits are admissible under certain conditions.
It is settled law that the appellant herein who was represented by counsel at the trial Court and raised no objection when the exhibits were tendered to be admitted, even though the conditions precedent have not been met, cannot now raise the objection on appeal. In Unity Life and Fire Insurance Company Ltd V. International Bank of West Africa (2001) LPELR-3412 (SC) (2001) NWLR (Pt 713) 610 this Court in restating the principle has held at pages 21 – 22; page 627 of the reports as follows:-
“A distinction must however, be drawn between where the evidence complained of is one which by law is prima facie admissible albeit under stipulated conditions as against where such evidence is by law inadmissible in any event and in all circumstances. In the latter class of cases, such evidence ought never to be acted upon by any Court of law whether, of first instance or of appeal, and it is immaterial that its admission in evidence was by the default or consent of the party complaining in failing to raise the necessary objection at the appropriate time. In other words, where the evidence complained of is by law inadmissible in any event and all circumstances, the evidence cannot be acted upon by any Court of law even if the party complaining failed to raise any objection or consented to the admission of such evidence in the proceeding. The appellate Court in such circumstance is duty bound to entertain a complaint on the admissibility of such evidence by the trial Court, reject it if it finds it absolutely inadmissible in any event and in all circumstances and decide the case on the legal evidence before the
See also Sadiku Osho & Anor V. Michael Ape (1998) LPELR-2800 (SC), Etim V. Ekpe (1983) 1 SCNLR 120.
Evaluation of evidence and the ascription of probative value is the primary duty of the trial Court that saw and assessed the credibility of the witnesses. The appellate Court that does not enjoy this much advantage cannot, on the basis of the cold facts on record, interfere with the trial Court’s findings of fact unless it finds the findings to be perverse. A Court’s findings are perverse where they are speculative, not being based on any evidence or because the Court had taken into account matters which it ought not to or shut its eyes to the obvious. Because of the miscarriage of justice, they occasion, perverse findings do not sustain a judgment on appeal even if same had been upheld by the Court of Appeal.
See Jolayemi & Ors V. Alaoye & Anor (2004) 12 NWLR (Pt. 887) 322 and Akinlagun & Ors V. Oshoboja & Anor (2006) LPELR-348 (SC).
In entirely agree with learned respondent’s counsel that the appellant does not benefit from the application of any of the foregoing recounted principles.
PW1, PW2, PW3 and PW4 have all testified that they saw the appellant hit the deceased with a stick and that the deceased died the following day. In Exhibits 4a and 4b, his extra judicial confessional statement, the appellant has admitted hitting the deceased with a stick on his forehead and that death of
his victim had occurred thereafter. At the trial Court, the appellant while testifying in chief stated inter-alia at page 88 of the record thus:-
I know one Salisu Yusuf. Salisu Yusuf is dead on 02-05-2004, I went to a well to fetch water where I met Amadu Yusuf, Abdu Yusuf and Salisu Yusuf laughing. I then asked them what they were laughing for, then Salisu replied that they were laughing at me. I asked them what for? Then Salisu replied: “You black, you are black dog” I became annoyed as a result and I beat him with my stick. When people intervened, I went my way.” (Underlining mine for emphasis).
Inspite of the foregoing uncontroverted evidence, the trial Court made no issue out of the defence of provocation manifest in appellant’s testimony.
In resolving appellant’s 2nd issue while determining the appeal thereat, the lower Court at pages 200 – 201 of the record of appeal held as follows:-
“Now applying these principles to the undoubted facts of this case, I am of the view that the defence of provocation can avail the Appellant. I am of the view that in the circumstances and bearing in mind the station of the Appellant, the appellant certainly received grave and sudden provocation and did what he did in the heat of passion before that passion had time to cool.
The Appellant was insulted and called a dog. I disagree with learned D.P.P. that the insult given to the Appellant did not amount to such provocation as would mitigate his offence. The prudent course in a case like this would have been for the trial judge to ask the Moslem witnesses what they thought of that kind of insult to a Moslem. It is a question to the effect that such an insult would have on the ordinary reasonable man of the class to which the Appellant belongs.”
The Court proceeded thus:-
“It is my view that the retaliation was proportionate to the provocation. The Appellant in his testimony said he struck the deceased only once. Having previously held that there was a lingering doubt
as to the weapon used in this case (the stick not having been tendered in evidence), I am of the view that based on the evidence before the trial Court, the Appellant should have been found guilty of culpable homicide not punishable with death and sentenced under Section 224 of the Penal Code”
And concluded as follow:-
“I also hold that the Appellant can be convicted for a lesser offence by virtue of the provisions of Section 218 of the Criminal Procedure Code CAP 30 Laws of Northern Nigeria 1963 which states that…
In the final analysis, this appeal is meritorious and it is hereby allowed in part.
The judgment of the Hon. Justice I.B. Ahmed of the Katsina State High Court, holden at Dutsinma, delivered on the 5th of December, 2012 in SUIT NO. KTH/DM/4C/2006 is hereby set aside.
In its place, I find the Appellant guilty of Culpable Homicide not punishable with death and convict him accordingly. The Appellant is hereby sentenced to 10 years imprisonment to take effect from the 2nd of May, 2004, the day the Appellant was arrested.”
The instant appeal is informed by the foregoing lower Court’s interference with the judgment of the trial Court.
I entirely agree with learned respondents counsel that the application of the principles of law already cited in this judgment still leaves the appellant bare.
The findings of the lower Court the appellant contests clearly arise from the Court’s application of correct principles to the evidence on record. The evidence on record suggests a defence in favour of the
accused which the trial Court discountenanced in its judgment. The appellate Court is duty bound and is right to have so interfered with the trial Court’s perverse judgment by taking into consideration the suggested defence ignored by the trial Court in arriving at a just conclusion. See Suleman Danta Annabi v. The State (2008) 13 NWLR (Pt. 1103) 179 and Osuagwu V. The State (2016) LPELR-40836 (SC).
With the law not on the side of the appellant, the lone issue for the determination of the appeal is accordingly resolved against him and the unmeritorious appeal dismissed. The lower Court’s conviction and sentence of the appellant under Section 224 instead of 221, with his defence of provocation having been made out, is further affirmed.
WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: I have had the privilege of reading the respective Briefs as well as the facts of this case. I have also read the Lead Judgment of my Learned Brother, Hon. Mr. Justice Musa Dattijo Muhammad, JSC, just delivered and I am ad idem with His Lordship’s reasoning and conclusion therein and consequently order accordingly.
I make no Order as to Costs.
KUMAI BAYANG AKA’AHS, J.S.C.: I read before now the draft of the judgement of my learned brother, Musa Dattijo Muhammad JSC. I agree that the lower Court rightly substituted a conviction for culpable homicide punishable with death under Section 221 Penal Code with that of culpable homicide not punishable with death under Section 224 of the Penal Code having considered the defence of provocation raised by the appellant in his oral evidence in Court. The trial Judge did not advert his mind to the defence raised by the accused. If the respondent felt the judgement of the trial Judge in convicting and sentencing the appellant to death for culpable homicide under Section 221 was properly done, it must file
a cross-appeal showing that the trial Court duly considered the defence of provocation but rejected it
Photographs taken of the deceased’s corpse are secondary evidence. They become admissible only when the negative is also tendered and their inadmissibility has nothing to do with the maker or photographer. However in this age of digital photography where the negatives are stored electronically, it becomes necessary for the photographer to be called to testify.
On the whole, I agree with my learned brother, Muhammed JSC that the appeal has no merit and it is accordingly dismissed.
JOHN INYANG OKORO, J.S.C.: I had read before now in draft the lead judgment just delivered by my learned brother, Musa Dattijo Muhammad, JSC and I entirely agree with his reasoning and conclusion that this appeal lacks merit and deserves to be dismissed. I have no hesitation in dismissing the appeal. However, I wish to make a few comments in support of the judgment and for purpose of emphasis. The facts of the case and the submission of learned counsel on both sides have been meticulously summarized in the lead judgment and I shall not repeat the exercise.
I shall adopt the sole issue raised by the appellant to wit:-
“Whether by (sic) the available evidence on the records. It (sic) can justifiably sustain a conviction of the Appellant on the substituted charge of culpable homicide not punishable with death under Section 224 of the Penal Code.”
Evidence on record reveal that the Appellant was charged at the trial Court under Section 221 of the Penal Code for culpable homicide punishable with death. He confessed to having committed the offence, albeit under provocation. The said confessional statement was corroborated by the testimonies of PW1, PW2, PW3 and PW4 who were eye witnesses to the incident. At the trial, the Appellant testified as follows:-
” . I know one Salisu Yusuf. Salisu Yusuf is dead. On 02 – 05 – 2004 I went to a well to fetch water where I met Amadu Yusuf, Abdu Yusuf and Salisu Yusuf laughing. I then asked them what they were laughing for? Then Salisu replied that they were laughing at me. I asked them what for? Then Salisu replied: “you black, you are black dog” I became annoyed as a result and I beat him with a stick. When people intervened, I went my way.”
The deceased (Salisu Yusuf) died the following day. The learned trial Judge relied on the statement of the accused as corroborated by PW1, PW2, PW3 and PW4 who all testified that they saw the accused hit the deceased and convicted the accused under Section 221 of the Penal Code. However, the Court below correctly countenanced the defence of provocation overlooked by the trial Judge in favour of the appellant and substituted the conviction under Section 221 of the Penal Code with a conviction under Section 224 of the same Code.
It is instructive to note that the defence of provocation does not exculpate an offender from criminal liability, rather it minimizes or reduces the sentence. Where an accused charged with homicide or murder successfully raises a defence of provocation, as in the instant case, that defence does not exculpate him of punishment but merely reduces culpability to manslaughter which carries a term of imprisonment unlike murder which is punishable by death. See the cases of Akang v State (1971) 1 All NLR 46; Shande v State (2005) 12 NWLR (pt. 939) 301. Note that for the defence to avail the accused, the accused must have committed the offence:-
(a) in the heat of passion.
(b) it must have been caused by a sudden provocation.
(c) the act must have been committed before there is time for the passion to cool.
(d) the accused must have lost self – control
(e) the degree of retaliation by the accused person must be proportionate to the provocation offered.
See Afosi v State (2013) 13 NWLR (pt. 1371) 329.
Again, it is trite that an accused person can be convicted on his confession alone once it is properly proved and admitted in evidence. See Karimu Sunday v The State (2017) LPELR- 42259 (SC). In the instant case, the Appellant confessed to hitting the deceased with a stick which incident led to his death. The prosecution’s witnesses (PW1, PW2, PW3 and PW4) all testified to having witnessed the incident. I agree with the respondent that an offence may be proved either by direct evidence of eye witnesses, compelling circumstantial evidence, lawful confessional statement of the accused or a combination of any of the three.
I am of the considered view that the Appellant cannot be exculpated of the offence of homicide merely by a successful defence of provocation. The learned Justices below correctly countenanced his defence which was overlooked at the trial Court. I therefore affirm the conviction and sentence passed on the appellant under Section 224 of the Penal Code by the Court below. I hold that this appeal is lacking in merit and is hereby dismissed by me. Appeal Dismissed.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Musa Dattijo Muhammad, JSC, obliged me with the draft of the leading judgement delivered now. I agree with His Lordship that, being unmeritorious, this appeal should be dismissed.
As shown in the leading judgement, the trial Court ignored an essential defence in favour of the accused person, namely, the defence of provocation. It was this fact that prompted the lower Court’s interference with the findings of the trial Court, Osuagwu v The State (2016) LPELR – 40836 (SC). This notwithstanding, from the facts of this case, the appellant’s fate still remains as determined by the lower Court.
It is for these, and the more detailed reasons in the leading judgement that I too shall enter an order dismissing this appeal as unmeritorious. I abide by the consequential orders in the leading judgement.
Chief Gideon Musa Kuttu with him, S.S. Gomper and Sarah FarintoFor Appellant
Abdurahman Umar (DPP, Katsina State) with him, A. L. Buhari (CSC), Sani Dan Mallam (P.S.C. Katsina State)For Respondent