In The Supreme Court of Nigeria
On Friday, the 10th day of March, 2017
Before Their Lordships
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SAMBO ALH. GALADIMA –Appellant
THE STATE –Respondent
AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Kaduna division (the Court below) delivered on the 8th of February, 2013 which affirmed the decision of Jigawa State High Court (the trial Court).The facts of the case giving rise to this appeal are summarized below. The appellant along with four other co-accused persons were arraigned before the trial Court charged with the offence of culpable homicide punishable with death, contrary to Section 221(b) of the Penal Code read with Section 79 of the same code. They were said to have caused the death of their relation one Safiya Nomau by attacking her and beating her with sticks and a hoe on her head and other parts of her body. In its efforts to prove the allegation against the appellant, the respondent as prosecution, called five witnesses and tendered weapon (a hoe) used on her which was admitted in evidence and marked Exhibit 2. Also two Writs of Possession of a land issued by an Area Court tendered in evidence through PW3, were admitted and marked Exhibits 1 and 1A. They were issued by Babura Area Court over a disputed piece of land in favour of one Usman Magu and Alhaji Galadima, the father of the appellant herein At the conclusion of the prosecution’s case, two of the accused persons were discharged by the trial Court for want of proof of the allegation against them, while the appellant and two other co-accused persons continued with the trial. After the prosecution/respondent closed its case, the appellant opened his defence. He testified for his defence as DW1 and called two other witnesses who testified as DW2 and DW3. In the end, the trial Court found the appellant and his other co-accused guilty, convicted and sentenced them to death.
Aggrieved by his conviction and sentence by the trial Court, the appellant and the other co-accused person appealed to the Court below separately. The Court below on the 8th of February 2013 affirmed the conviction and sentence of the appellant and his co-accused earlier made by the trial Court and subsequently dismissed their appeals which they filed and argued separately at the Court below on separate notices of appeal dated 20th of February, 2013 each containing six grounds of appeal.
Further dissatisfied with the judgment of the Court below, the present appellant appealed to this Court vide a notice of appeal dated 20/2/2013 but filed on 21/2/2013. In his Brief of Argument filed on 24/4/2013, settled by one Nasiru Audu Digiri Esq., three issues were distilled from the grounds of appeal for the determination of this appeal
The issues are reproduced hereunder:-
1. Whether from the facts and circumstances of this case, the learned trial judge and the Learned justices of the lower Court thoroughly and properly considered the defence of provocation or all the defences available to the appellant before convicting and sentencing the appellant to death instead of terms of imprisonment. (Ground one, three and five)
2. Whether the learned trial judge and learned justices of the lower Court were right in confining themselves to part of evidence of the prosecution and defence witnesses and totally ignoring Exhibits 1 and 1(a) in convicting and sentencing the appellant to death (Ground six).
3. Whether there are lapses in the investigation of the episode that led to the death as well as in the evidence presented to prove the charge under Section 221 of the Penal Code against the appellant (Grounds two and four).
Upon being served with the appellant’s Brief of Argument, the respondent on 18/11/2015 filed its Amended Respondent’s Brief of Argument. It however adopted the three issues for determination raised in the appellant’s brief as reproduced above.
The appellant’s learned counsel decided to argue all the three issues for determination together in view of their similarity. I think he is right on that, hence I will also treat the three issues together, but before doing so, I will first of all deal with the Preliminary Objection raised and argued in the Amended Respondent’s brief.
It is worthy of note that the preliminary objection raised in the Respondent’s brief of argument is challenging the competence of this appeal and thus seeking the striking out of the appeal. As had been the practice in this Court, preliminary objection once raised by a respondent either in its brief or in a motion on notice, such objection must be disposed of first, before considering the main appeal. I shall therefore consider the preliminary objection first for whatever it is worth, before determining this appeal.
The respondent’s preliminary objection was hinged on two grounds as follows:-
(i) That all the three issues relied in (sic) by the appellant in challenging the decision of the Court of Appeal under his issues were not canvassed and argued before the two lower Courts.
(ii) No leave of this Court was sought and obtained before arguing the said issues in this brief.
In his response, the learned appellant’s counsel in his Appellant’s Reply Brief submitted that all the grounds of appeal from which he encapsulated or raised his three issues for determination, arose from the decision of the Court below and he tied each of the three issues to the relevant ground or grounds of appeal. He went further to identify each of the issues to the ground or grounds of appeal and the portion of the judgment of the Court below he lifted the issues from. without much ado, I do not think the determination of the preliminary objection requires any waste of time or energy. It appears to me that the learned Attorney General for the respondent missed the point. This Court is concerned solely with the decision of the Court below and not that of the trial Court because there is no right of appeal to this Court direct from the decision of the trial Court. All that this Court is concerned with in hearing the appellant’s appeal, is to consider the judgment of the Court below and decide whether it is wrong in law or if it is Perverse.
The respondent had even conceded that the issues raised were derived from the decision of the Court below. I have closely considered all the three issues for determination and have noticed that all of them were posing challenges on the decision of the Court below and NOT the judgment of the trial Court. Whatever anomaly the respondent observed in the decision of the trial Court should or ought to have been raised at the Court below and not in this Court since there is no right of appeal direct to this Court from the decision of the trial Court. Similarly, I do not think that any leave was required by the appellant to raise any of or all the grounds of appeal from which the three issues for determination were formulated or encapsulated in the appellant’s brief. I therefore hold the preliminary objection to be lacking in substance and was merely raised in an effort to waste this Court’s precious time. The preliminary objection is therefore not well-taken and is accordingly overruled for want of merit. It is accordingly dismissed.
On the appeal proper, the learned counsel for the appellant conceded that the deceased died as a result of the injuries she sustained as a result of the attack and the beatings by the three accused persons including the appellant herein. He submitted that the two lower Courts did not thoroughly consider the evidence presented in this case. The incident that led to the death of the deceased had to do with a land dispute. He argued that a fight broke out between the deceased and the appellant on one hand and the three co-accused on the other and the fight took place in the farm land that was found by the Upper Area Court, to belong to the appellant’s father and the two writs of possession were issued to that effect. He referred to the evidence of PW2, PW3, PW4 and DW1, DW2 and DW3 at pages 13-28 of the record. Learned counsel for the appellant further argued that inspite of and notwithstanding the admission of the Writs of possession in evidence as Exhibits 1 and 1(A), the two lower Courts did not utilise the said evidence in considering the defence available to the appellant. He contends that there is no proper investigation of what led to the death of the deceased as the evidence of the prosecution witnesses in relation to the ownership of the land which they said belonged to the deceased which had contradicted the evidence of the three appellants as was supported by Exhibits 1 and 1(A) (pages 48-49) of the record.
He also referred to other contradictions in the evidence of PW2 at pages 13 and 14 of the record. He submitted that the lower Court did not properly consider or evaluate the above pieces of evidence and that failure has occasioned gross miscarriage of justice against the appellant. He contended that the deceased was an aggressor and trespasser as adjudged by the Upper Area Court Ringim and the fact that the prosecution witnesses encouraged the deceased to enter into the land in dispute and erect a hut constitutes enough reason to consider that piece of evidence. He submitted that the pieces of evidence given by the prosecution witnesses contain the good, the bad and the ugly and that contradicts the decisions of the two lower Courts. He referred to pages 48-49 of the record. He also argued that the trial Court completely ignored part of evidence of prosecution witnesses that there was a fight. He submitted that, had the two lower Courts given consideration to those pieces of evidence, they could not have escaped coming to the conclusion that the defence of provocation was properly raised.
He remarked that there was no evidence that the police had investigated the allegation of the appellant that the deceased trespassed on the land and even erected a hut which was confirmed by PW2, PW3, PW4 & PW5, He referred to
the case of AREMU V THE STATE (1984) ALL NWR 314 at 316 where per Obaseki J.S.C (RTD) said:-
“I would in the circumstances acquit the appellant of the offence of murder but convict him for manslaughter. There was no evidence of investigation of the allegation of the appellant………”
He submitted that, had the two lower Courts properly considered the issue of provocation, they would not have imposed a higher sentence on the appellant. He urged this Court to substitute the death sentence with a term of imprisonment.
In his response, the learned respondent’s counsel submitted on the defence of provocation raised by the appellant, that for the defence of provocation to avail an accused person under Section 222(1) of the Penal Code, it must be grave and sudden as would deprive the accused of the power of control.
He argue that the appellant is in the best position to say whether there was any act done by the deceased to the appellant that was grave and sudden and capable of making him lose his self control to justify killing the deceased, by furnishing particulars of defence of provocation raised by him. He referred to the case of YAR0 v STATE (2007) 18 NWLR (pt.1066) P. 215 at 234 where the Supreme Court held as below:-
“The defence of provocation like other defences cannot hang in the air without supporting evidence. Nor can it be built on scanty foundations in order to establish it, it is the duty of the accused person to adduce credible or positive evidence to support the alleged provocation, Where the accused person failed to adduce evidence in support of his defence as in the present case, the trial Court has to rely on the evidence before it adduced by the prosecution … “
Based on the above, he submitted that the appellant has failed woefully in discharging the burden of furnishing the trial Court with particulars of the defence of provocation he raised. He referred to the evidence of DW3 at page 28 of the record as follows:-
“When the deceased came and met her senior sister with us, she started abusing us but I told them not to mind her.”
He admitted that although the word “abuse” was held to be capable of provoking a person, but he argued that the appellant had ruled out the possibility of being provoked when he said:
“Do not mind her (meaning the deceased person) (page 28) of the record.”
He stated that evidence of possible provocation might be drawn from beating the appellant when the appellant stated thus:-
“From there, she took a hoe and started beating the 1st accused person two times but he was dodging” (See page 28.)
The learned counsel argued that from the above, the deceased only beat the co-accused persons and not the appellant and therefore the defence of provocation cannot avail a person where it was a third party that is provoked and not the accused, He also stated that the third possibility of provocation could be that the deceased entered the farm land in dispute.
He stated that the appellant had never shown that her entering into the land made him lose control. He urged this Court to resolve this against the appellant.
On the 2nd issue which borders on exclusion of Exhibit 1 and 1(a), he argued that failure of the trial Court in making reference to the said exhibits has not occasioned any miscarriage of justice. He referred to Section 227(2) Evidence Act 2004 which provides thus:-
“The wrongful exclusion of evidence shall not of itself be a ground for reversal of any decision in any case if it appears to the Court on that had the evidence excluded been admitted it may reasonable hold that the decision would have been the same.”
He argued that the issue canvassed by the appellant on the alleged failure of the trial Court or the Court below to evaluate evidence of PW2, PW3 and PW4 on the said documentary evidence i.e. Exhibit 1 and 1[a], were not supported by evidence. He cited the case of OKWETIMINOR v GBAKEJI (2008) 5 NWLR (pt. 1079) 172 at 181. Here, the attitude of Supreme Court with regard to concurrent findings of lower Court is pertinent as adjudged by the lower Court, unless
a miscarriage of justice is occasioned by the finding. He argued further, that it is not on every occasion that the Supreme Court will vary the decision of lower Court for failure to properly evaluate evidence furnished. On the issue of contradictions in the evidence led by the prosecution on Exhibits 1 and 1(a), he argued that the said contradiction with regard to the ownership of the land cannot to be fatal to the case of prosecution. He argued that the main issue is whether it was the act of the appellant that caused the death of the deceased which was done with intent to kill her or cause grievous bodily harm on her. He referred to page 8 Paragraph 5.03 of the appellant brief of argument. He referred to the case of AKPANU v. STATE (2008) 14 NWLR (pt. 1106) p. 72 at 90, where the Supreme Court had provided the ingredients of the offence of culpable homicide punishable with death which must be proved by the prosecution in a charge under Section 221(b) of the Penal Code as listed below:-
(i) That the death of a human being has take place.
(ii) That such death was caused by the accused.
(iii) That the act was done with intention of causing death.
(iv) That the accused knew or had reason to know that death would be probable consequence for the proof of 1st ingredient.
Learned counsel for the respondent referred to the evidence of PW2, PW3 & PW4 at page 14 of the record, and submitted that with the evidence of PW2, PW3 & PW4, the prosecution has discharged the burden of proof on the first ingredient. On the proof of second ingredient, he referred to the evidence of PW2 at page 13 where the role played by the appellant was described. On the third ingredient, the evidence of PW2, PW3, PW4 and PW5 were used in proving the ingredient, whether death is the probable consequence.
He argued that the above pieces of evidence were neither shaken contradicted nor were they cross examined on it. He then urge this Court to also resolve this issue in favour of the respondent and dismiss his appeal.
It is well-settled law, that the prosecution, in order to obtain conviction in a charge of culpable homicide punishable with death, contrary to Section 221 of the Penal Code, has the heavy burden of proving the under listed ingredients of the offence beyond reasonable doubt namely:-
(1) That death of a human being was caused.
(2) That the accused was the cause of the deceased person’s death.
(3) That the act of the accused leading to the death of the deceased was done intentionally or with knowledge that death or grievous harm was the probable and not only likely consequence of the act
See Ogba v State (1992) 2 NWLR (pt. 222)164.
In culpable homicide cases like in all criminal offences, the onus is always on the prosecution to prove the guilt of the accused beyond reasonable doubt. Failure to do so, will automatically lead to the discharge of the accused person. See Onuwogu v The State (1974) 9 SC.
Where there is/are material contradiction(s) in the evidence led or adduced by the prosecution, then obviously doubt will be created in the mind of the trial Court, hence such doubt will be beneficial to the accused in which case, the Court should discharge the accused person. See Almu vs. The State (2009) 4 SCNJ 159/160.
In this instant case, PW2 and PW4 were eye witnesses to the commission of the offence. Part of these two eye witnesses testimonies (who are key witnesses for the prosecution) as borne out by the record, read as below:
For instance; PW2 had this to say at page 13 of the record.
“PW2: On Friday night, the deceased that is when she was alive, reported to the ward head that since she was not given the land she would go to her father’s land and erect a hut, she also notified the village head of her intention. The Galadima family members also planned that if they see the deceased in the land they would kill her And at page 17 of the Record, PW4 said thus:
PW4: Before I reached the farm, I saw all the accused going towards the place where the deceased woman wanted to erect a hut, I then heard them saying kill her, kill her, meaning the deceased woman. I retreated backwards and waited when they started hitting her I hide myself..
From the above pieces of evidence, there is no doubt that the appellant had a pre-determined plan to kill the deceased woman. These pieces of evidence were not contradicted in any respect. Even DW3 in his testimony while testifying for hrs
defence corroborated the evidence of PW2 and PW4. Also credible evidence abound that the appellant and his co-conspirators attacked the deceased by beating her mercilessly with sticks and hoe which led to her instant death. Although there was no medical report on the cause of the death of the deceased woman, I feel the tendering of medical report to confirm the death of a deceased victim is not material in a situation where death was instantly caused by the act of or attack by the accused person as in this instant case. Almost all the witnesses called by the respondent confirmed that they saw the dead body of the deceased covered with grass mat at the scene of the incident. A Court can always dispense with medical report or is not bound by it, in situation where death can easily be inferred or where there had been direct account of the act that led to the death of the victim as in this instant case. See Onyia v State [2006) 11 NWLR (pt. 991) 267 at 292.
In the present case, there are eye witnesses account on the attack on the deceased by the appellant and his co accused, and also on the use of sticks and hoe on the helpless lethargic woman by the appellant and other co-accused and also on vital places on her body on which she was beaten i.e. head and all other parts of her body as well as the fact that the attack on her was not done to repel or to retaliate any serious attack on them by the deceased woman. There is no doubt from the evidence led by the respondent that the appellant intended to kill and did kill the deceased woman. Considering the totality of the evidence adduced in this case, I entirely agree with the findings of the Court below that the respondent had proved all the ingredients of the offence as found by the learned trial judge.
It is noted by me, that the appellant raised the issue of contradiction in the evidence adduced by the respondent. To my mind, even if there had been any contradiction in the testimonies of prosecution/respondents witnesses, such contradiction (even if available), were not material contradictions as would cast or raise doubts in the mind of the trial Court.
At best, such contradiction are mere contradictions which are often and naturally noticed or found in testimonies of witnesses due to human error or due to long period between the date the event happened which usually result in the witnesses forgetting all or some of the events. In fact, the alleged contradictions cited by the appellant are in my humble view, not on material points which are fatal to the case of the prosecution/respondent and they were also not on material or crucial points.
This brings me to the defence of provocation raised and relied on by the appellant. In presenting his defence while testifying, the appellant raised the defence of provocation. With due deference to the learned counsel for the appellant, the defence of provocation avails on accused person who killed his victim in heat of passion before the time to cool down. For the defence of provocation to benefit an accused person and also for same to be upheld, the accused must clearly show or establish the under mentioned conditions:-
(a) That the act he relied on is actually Provocative,
(b) That the provocative act deprived him of self control,
(c) The provocative act came from the deceased.
(d) The sudden fight between the accused and the deceased was instantaneous and continuous with no time to cool down; and
(e) The force used by the accused in repelling the provocation is not disproportional in the circumstance.
See Nwede v State (1985) 3 NWLR (pt.13) 444; Akalezi v State (1993) 3 NWLR (pt.273) 1; Okonji v State [1987) 1 NWLR (pt.52) 659; Ekpenyong vs. State (1993) 5 NWLR (pt. 295) 513. Frank Uwagbae v The State(2008) 12 NWLR (pt. 1102) 627.
In the present case, from the testimonies of PW2 and PW4 as highlight supra, there had been a pre-meditated plan by the appellant and his co-conspirators to kill the deceased if she dared go to the land to erect a hut there. When they envisaged rightly or wrongly that the deceased was going to actualise her plan, they followed her to the farm land and started attacking her, some of them shouting kill her! Kill her! Kill her. They then armed themselves with sticks and hoe which they used to dastardly attack and kill the defenseless and unarmed woman. There was no evidence that she had even attacked any of them and even if she started it, the appellant and other two or three co accused would not be justified to have pounced on an armed less women. There was also no apprehension of death or grievous harm on any or all of them. The attack by the appellant was certainly disproportional. There was also no instant or sudden fight to warrant their attack on the deceased woman. For these reasons I also agree with the judgment
of the Court below that the defence of provocation did not avail the appellant.
It is trite law that the first test to be applied in determining whether the defence of provocation could avail an accused person is the effect of alleged provocation would have had on a reasonable man. The act of provocation must be one which could incite a reasonable man of the appellant’s/accused standing in life and education, to lose his self control.
Adebiye v State (2013) 7 NWLR (1354) 597; Musa v State (2009)15 NWR (pt.1165) 467.
Therefore, considering the surrounding circumstances of this case, I am at one with the findings of the Court below that the defence of provocation can not be beneficial to the present appellant. Such defence was therefore rightly rejected by the two lower Courts.
The resultant effect of all that I have stated above is that the prosecution/respondent had proved all the ingredients of the offence of culpable homicide punishable with death against the appellant as rightly found by the two Courts. The Court below therefore is right in rejecting the defence of provocation raised by the appellant at the trial Court. I finally resolve the three issues raised by the appellant against him and in favour of the respondent herein.
Having resolved all the issues against the appellant, I have no reason to disturb or interfere with the concurrent findings of the two lower Courts.
In the result, I adjudge this appeal to be devoid of any merit.
I accordingly dismiss the appeal and affirm the judgment of the Court below which had earlier affirmed the decision of the trial Court. Appeal dismissed.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the privilege of reading before now the leading judgment just delivered by my learned brother, Sanusi, JSC.
From the reasons given in the said leading judgment, I have no reason to depart from them. Furthermore I am satisfied that concurrent findings of the two Courts below are correct.
MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the lead judgment of my learned brother Amiru Sanusi JSC just delivered, I imbibe the reasoning and conclusion in dismissing the appeal and abiding by the consequential judgment therein.
CLARA BATA OGUNBIYI, J.S.C.: My learned brother Sanusi, JSC has treated this appeal comprehensively and I adopt his judgment as mine.
For all intents and purposes, I find the concurrent judgments of the two lower Courts very encompassing and conclusive. I do not therefore, wish to add anything further but make an order that the appeal herein has no merit and is hereby dismissed also by me.
The conviction and sentence of the appellant by the two lower Courts are hereby also affirmed by me.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Sanusi, .JSC, obliged me with the draft of the leading judgment just delivered now. I entirely agree with His Lordship that this appeal is wholly devoid of merit and ought to be dismissed.
This short contribution is only intended to expatiate on the necessity vel non of tendering medical evidence as hinted in the leading judgment. In my view, the Prosecution’s case was watertight. Both PW2 and PW4, eyewitnesses to the dastardly acts of the appellant and his co-conspirators gave unchallenged testimonies of their perpetration of the offence he [the appellant] was charged with.
Indeed, even the testimony of the DW3 bolstered the grim narrative of how the appellant and his cohorts, mercilessly, pummeled the deceased person with their cudgels and hoes: unlawful acts from which the instant death of the deceased person eventuated. The circumstances therefore obviated any need for tendering any medical evidence.
It could not have been otherwise for it has long been settled that in cases, such as the instant one, where a person was attacked with lethal weapons and he or she died on the spot, the cause of death could be, properly, inferred from the fact that the wound inflicted caused the deceased person’s death.
Simply put, therefore, where the cause death is obvious, medical evidence ceases be of any practical or legal necessity in homicide cases. Such a situation arises where death was instantaneous or nearly so. Ben v The State (2006) LPELR -770 (SC) 12- 13; Bakuri v. The State (1965) NMLR 163, 164; Uyo v. Attorney-General of Bendel State (1986) 1 NMLR (Pt. 17) 418; Onwumere v. The State (1991) 4 NWLR (PT. 186) 428; Nwachukwu v. The State 12 NWLR (pt. 782) 543; Oforlete v The State (2000) LPELR -2270 (SC); Ogbu v The State (1992) LPELR -2292 (SC) 18; B-C.
It is for these, and the more detailed reasons in the leading judgment that I too shall dismiss this appeal for lacking in merit. As already shown above, medical evidence is not always essential where as in this case, the victim died on the spot or in circumstances in which there is abundant evidence of the manner of death [as narrated by the PW2; PW4 and DW3], Ogbu v The State (supra); Salako v. Attorney-General, Western Nigeria(1965) NMLR 107; R. v. Omoni 12 WACA 511.
Appeal dismissed. I abide by the consequential orders in the leading judgment.
N.A Dangjri with him, A.L. Likko.- For Appellant
Sani Hussaini Garun Gabbas (Hon. Attorney General, Jigawa State) with him, Adamu Mukhtar (DDCL), Hussaini Abdullahi (DDLD), Mustapha B. Adamu (ACSC), Yahaya Abdullahi (ACSC), Zakilyu Muhammad (PSC) and Muhammad El-Usman (SSC). –For Respondent