When defence of sudden fight will not avail in a charge of culpable homicide punishable with death

KAWU v. STATE

CITATION: (2020) LPELR-50038 (CA)

In the Court of Appeal
In the Gombe Judicial Division
Holden at Gombe

ON TUESDAY, 16TH JUNE, 2020
Suit No: CA/G/265/C/2019

Before Their Lordships:
JUMMAI HANNATU SANKEY Justice, Court of Appeal
MOHAMMED MUSTAPHA Justice, Court of Appeal
JAMES GAMBO ABUNDAGA Justice, Court of Appeal
Between
ALHAJI BABAYO KAWU – Appellant(s)
And
THE STATE – Respondent(s)

LEADING JUDGMENT DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.

FACTS
This Appeal is against the Judgment of the High Court of Gombe State, delivered, April 17, 2007 by Yakubu, J.

The appellant and two of his friends went to a neighbouring village to visit a young girl. When they arrived at about 8:00pm, they went into her house and engaged her in conversation. Shortly thereafter, Adamu Manu (deceased), came in and demanded to know why they were there at that time of the night. An argument ensued between the appellant and the deceased. The appellant challenged the deceased to a fight in the nearby bush. They left the house and very shortly afterwards, the appellant stabbed the deceased in his neck with a knife and he fell down and died. The appellant and his friends were all later arrested by the village vigilante group and handed over to the Police.

After investigation, the appellant was charged with culpable homicide punishable with death, under Section 221 of the Penal Code Law. Upon his arraignment, the appellant pleaded not guilty.

In proof of the charge, the prosecution adduced evidence through six witnesses and tendered four exhibits, comprising of the Hausa and English versions of the confessional statements of the appellant made to the Police, as well as the broken knife, being the weapon used in the stabbing incident. In his defence, the appellant adduced evidence through two witnesses and also testified in his defence.

Judgment was delivered by the trial Judge, wherein, he found and pronounced the appellant guilty as charged and sentenced him to death by hanging. Dissatisfied, the appellant appealed to the Court of Appeal.
Issue for determination

Was the learned trial Judge right in convicting the appellant of the offence of Culpable Homicide punishable with death under Section 221 of the Penal Code having regard to the totality of the evidence adduced before him?

Appellant’s submissions
Counsel for the appellant argued that the appellant ought not to have been convicted for the offence of culpable homicide punishable with death under Section 221 of the Penal Code Law. Instead, he should have been convicted and sentenced for culpable homicide not punishable with death under Section 224 of the Penal Code Law, since the evidence adduced before the Court disclosed that he acted in the heat of a sudden fight. Counsel argued that the evidence of the PW1 and PW2 were conflicting and contradictory in material particulars. Thus, the High Court was wrong when it found that there were no material contradictions and that PW1 and PW2 were eyewitnesses and so witnesses of truth. Counsel further argued that from the evidence of PW1, PW2, PW3 (father of the deceased) and PW6 (the IPO) who noticed signs of a struggle on inspection of the crime scene, it could be surmised that there was a sudden fight between the appellant and the deceased. Yet, the trial Judge failed to consider the defence of sudden fight punishable under Section 224(4) or the defence under Section 222(7) of the Penal Code Law implicit in the evidence of the prosecution, which defences were available to the appellant even though not specifically raised. Counsel submits that from the evidence of PW1, PW2, DW3 (appellant) as well as the confessional statements, exhibits 3 and 3A, the appellant stabbed the deceased in the course of a sudden fight. For the ingredients to be established to activate a defence of sudden fight, counsel relied on the decisions in Gambo Musa V State (2009) 15 NWLR (Pt. 1165) 467, 493, D-F and Oji V Queen (1961) LPELR 25123 (SC).

Counsel submitted that for the defence of sudden fight to avail the appellant, it is immaterial who started the fight. The weapon used, in this case a knife, and the part of the body that was struck were also immaterial – Musa V State (2009) 4 LPELR 1930. The type of weapon used i.e. the knife, does not equate to premeditation by the appellant because it was not unusual for him to be carrying a knife on him. He contended that carrying knives, daggers, etc, on oneself is common especially in rural settings in Nigeria and knives are not used exclusively for the commission of crimes but for other purposes. See Oji V Queen (supra).

Counsel also asked the court to take judicial notice of the fact that both the appellant and the deceased were 18 years old at the time of the incident. They were therefore both adolescents. He asked the court to also take judicial notice of the fact that the age of adolescence is usually a difficult period in a young person’s life due to the physiological, psychological and social changes that impact his behaviour. Therefore, the actions of both the appellant and the deceased were actuated by natural aggression in the heat of passion in the course of a sudden fight. Counsel therefore urged the court to allow the appeal. Counsel finally urged the court to set aside the conviction and sentence of the appellant under Section 221 of the Penal Code Law and replace it with a conviction and sentence of culpable homicide not punishable with death under Section 224 of the same Law and impose a term of imprisonment in place of the sentence of death by hanging.

Respondent’s submissions
Counsel for the respondent submitted that the prosecution proved all the ingredients of the charge of culpable homicide punishable with death under Section 221 of the Penal Code Law and that the High Court properly relied on the evidence of the PW1 to PW4 as well as the exhibits tendered in arriving at its decision. Counsel referred to the nature of the weapon used, a knife, which was deadly or lethal, the part of the body struck i.e. the deceased’s neck, which is a delicate part of the body, the nature of the injury sustained, the degree of force applied and the proximity of the victim to the weapon in arguing that the appellant intended the death of the deceased. See Iden V State (1994) 8 NWLR (Pt. 365) 719 and Ejeka V State (2003) 7 NWLR (Pt. 819) 408.

On the alleged contradictions in the evidence, counsel submitted that it is not every discrepancy or inconsistency in the testimonies of witnesses that will vitiate the decision of a court. Instead, such discrepancy or inconsistency must be material and substantial such that it affects the fundamental issue to be determined by the Court. See Shoremi V State (2010) 16 NWLR (Pt. 1218) 65, 81 and Ikemson V State (1989) 3 NWLR (Pt. 110) 455. Counsel submitted that the High Court rightly relied on the confessional statement of the appellant to convict him, because a confession is the strongest evidence of the guilt of an accused person, stronger than the evidence of an eyewitness, because it comes from the accused person himself. Therefore, a free and voluntary confession alone is sufficient to ground a conviction even without further corroboration. See Akpan V State (2010) 8 LRCN 70, 73; Osung V State (2012) 11 SCM 176, 178 and Gabriel V State (2011) 6 NWLR (Pt. 1190) 280, 290. Counsel argued that the evidence of the PW1 and PW2 amply corroborated the confessional statements.

On the submission in respect of the sentence of death, counsel submitted that Section 222(4) of the Penal Code Law cannot avail the appellant because it was he who challenged the deceased to the bush for a fight knowing full well that he was armed with a knife and that the deceased was not armed. He took undue advantage of the unarmed deceased and acted in a cruel and unusual manner by stabbing the deceased in the neck with such force that the knife broke. Counsel argued that the act of the appellant was premeditated and therefore the only inference to be drawn was that the appellant intended to kill or to cause grievous bodily harm to the deceased and so intended the natural consequences of his act. See Oludamilola V State (2010) 5 SCM 166, 170; Audu V State (2006) 3 CRPR 87, 90-91 and Udu V State (2000) NWLR (Pt. 664) 283, 286.

On the submission that the appellant at 18 years of age was an adolescent and so that should serve as a mitigating factor, counsel submitted that the legal age of criminal responsibility was 13 years. Thus, the appellant’s act did not fall within the protection provided under Section 50 of the Penal Code. Counsel urged the court to dismiss the appeal and affirm the conviction and sentence.

Resolution of the issues
On the contradictions in the evidence of PW1 and PW2, the court restated the trite position of the law that one evidence contradicts another evidence when it says the opposite of what the other evidence stated and not simply when there is a minor discrepancy between them. Two pieces of evidence contradict one another when they are themselves inconsistent on material facts. See Bassey V State (2012) All FWLR (Pt. 633) 1516, 1832. It is acceptable for little variations and differences to appear when witnesses give evidence on the same subject matter. The nature of contradictions that would be fatal must relate to material facts and must also be substantial. It must deal with the real substance of the case. See Adoba V State (2018) LPELR-44065 (SC) 33-35, B-A per Nweze, JSC; Famakinwa V State (2013) 7 NWLR (Pt. 1354) 597; Musa V State (2014) LPELR-23631 (CA) 20-22, E-C; (2013) 9 NWLR (Pt. 1359) 214; Iregu V State (2013) 12 NWLR (Pt. 1367) 92; Osetola V State (2012) 17 NWLR (Pt. 1329) 251; Osung V State (2012) 18 NWLR (Pt. 1332) 256; Theophilus V State (1996) 1 NWLR (Pt. 423) 139, 155, A-B.

Applying the above, the court considered the record of appeal and held that the alleged contradictions went to no issue. This is because they were minor contradictions, which are not unusual in a trial. Furthermore, it is settled law that where there is contradiction in the case of the prosecution and the accused admits to committing the crime, the contradiction is rendered irrelevant. See Simeon Lalapu V Commissioner of Police (2019) LPELR-47814 (SC) 16, C-E per Galumje, JSC.

On the alleged retraction of the appellant’s confessional statements, the court held that once a statement complies with the law and rules governing the method by which it is taken and at the time it was tendered in evidence, there was no objection by the accused as a result of which it was admitted in evidence, then it is good evidence. Thereafter, no amount of retraction will vitiate its admission as a voluntary statement. If its voluntariness is challenged, then the court will conduct a trial-within-trial. Similarly, where the accused person admits at the time a statement is sought to be tendered that, although he signed the statement, he did so involuntarily, the court would admit the statement but weigh the credibility to be attached to such a statement. In the instant case, the High Court was right to reject the retraction as a mere afterthought and rely on same because there was no objection at all to their admission.

On the contention of the appellant that the High Court failed to consider the defence of sudden fight, the court stated the trite position of the law that a court must consider all the defences raised by the accused as well as all other defences, which may surface in the evidence adduced before the Court, however slight. See Kaza V State; Ahmed V State (1999) 7 NWLR (Pt. 612) 641 and Section 222(4) of the Penal Code Law. However, the trial court is under a duty to consider such defence(s) open to the accused only as disclosed or supported by evidence on the printed record. A court of law will not presume or speculate on the existence of facts not placed before it and the accused is usually required or recommended to give his evidence viva voce rather than adopting his previous extra-judicial statement for his defence or resting his case on the evidence of the prosecution. See Yaro V State (2007) 18 NWLR (Pt. 1066) 215, per Oguntade, JSC.

Going further, the court held that for the defence of sudden fight to come into play, there must be a sudden fight in the heat of passion. There must also be an absence of premeditation and the accused must not take undue advantage or act in a cruel or unusual manner. These elements must also co-exist.  Danjuma V State (2019) LPELR-47037 (SC) 20-21, E-B; Hassan V State (2017) LPELR-41994 (CA) 8, B-E; Alfa V State (2016) LPELR-40552 (CA) 25-26, G-E; Usman V State (2015) LPELR-40855 (CA) 34, B-F; State V Shontu (2014) LPELR-24206 (CA) 16-17, D-A.

Applying the above to the instant case, the court held that the defence of sudden fight did not avail the appellant. This is because it was the appellant who was the instigator, initiator and active proponent of the fight merely upon the inquiry of the deceased as to their presence in the house at that time of the night. The appellant was clearly the aggressor in a fight, which was in no way sudden and in which he had the advantage and the upper hand knowing very well that he was armed with a lethal knife and the deceased was unarmed. Also, the force, which the appellant applied in stabbing the deceased was much considering that the knife broke. The law is trite that a man intends the natural consequences of his act. See Sani Idris V State (1981) 2 SC 1. Therefore, it must be taken that the appellant intended the death of the deceased considering the fact that he stabbed the deceased in the neck, a delicate part of the body, with such force that the knife broke. In conclusion, the court held that the trial Judge rightly held that neither the defence of provocation nor self-defence nor any other such defence was available to the appellant, as the ingredients of those defences, as well as the ingredients of the defence of sudden fight raised in the Court of Appeal, were neither specifically raised by the accused person nor were they disclosed by the evidence at the High Court.

On the contention that the appellant, being 18 years old at the time he committed the offence, was in his adolescence and so with the attendant hormonal changes, the court refused the arguments of the appellant’s counsel but rather agreed with respondent’s counsel that the legal age of criminal responsibility being 13 years, the appellant’s act did not fall within the protection provided under Section 50 of the Penal Code Law.

HELD
The court resolved the sole issue against the appellant and dismissed the appeal.

Appearances:
Y. H. Daddy Esq., holding the brief of J.L. Usoroh Esq. For Appellant(s)
Abubakar Jungudo, Esq., ACSC Gombe State Ministry of Justice, with him, Asma’u Mohammed Hassan Esq., PSC For Respondent(s)

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