➥ CASE SUMMARY OF:
Abdullahi Nasiru V. The State (2016) – CA
by Branham Chima (SAL).
Court of Appeal – CA/S/78C/2015
➥ JUDGEMENT DELIVERED ON:
7th December 2016
➥ AREA(S) OF LAW
Novus actus interveniens;
Admissibility of confessional statement.
➥ PRINCIPLES OF LAW
⦿ DENIAL OF CONFESSIONAL STATEMENT DOES NOT MAKE THE CONFESSIONAL STATEMENT INADMISSIBLE
Against this background, it is important to note that the Appellant, in the course of his evidence-in-chief before the lower Court, retracted from the said Exhibits A and A1, thus prompting the lower Court into deciding that the entire evidence of the Appellant was at that stage unreliable and therefore discountenanced same; but the settled position of the law is that a retraction of a confession does not ipso facto render the confession inadmissible. See the old case of R. v. JOHN AGAGARIGA ITULE (1961) 1 ANLR 402 (FSC) where the Supreme Court per BRETT, Ag CJF held thus; “A confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the Appellant took the earliest opportunity to deny having made the statement may lend weight to his denial. See R v. SAPELE and ANOR (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement.” … It would be further recalled that the Appellant took the earliest opportunity when the statement was offered in evidence to deny having made it. But the position remains in law, that a mere denial without more, even at the earliest opportunity, cannot, on the bare facts of the case, lend any iota of weight to the denial. Apart from the fact that the denial is a bare statement bereft of any supporting facts, it is by and large, standing only on the ipsi dexit of the Appellant. To make matters rather worse and as revealed by the printed records in this case, the said statements were not even challenged on grounds of involuntariness and the learned trial Court in its Ruling on the objection raised by the Appellant rightly declined the invitation to conduct a trial within trial. Against this backdrop, the question of the voluntariness of the statements, not having been raised or challenged at the trial, this Court therefore holds that the prosecution proved affirmatively that Exhibits A and A1 were voluntary confessional statements of the Appellant. Regardless of this position, the usual thing in all criminal trials is that the burden of proving affirmatively beyond doubt that the confession was made voluntarily is always on the prosecution, which this prosecution succeeded in doing as expected in this case. See the cases of JOSHUA ADEKANBI v. A-G WESTERN NIGERIA (1961) All NLR 47; R v. MATON PRIESTLY (1966) 50 CR APP. R 183 at 188; ISIAKA AUTA v. THE STATE (1975) NNLR 60 at 65 SC on the issue. — F.O. Oho, JCA.
⦿ WHERE NO APPEAL, DECISION IS DEEMED ACCEPTED BY THE PARTY
The settled position of the law applicable in the given circumstance is as straight forward as it comes and that is to the effect that a decision of Court against which no Appeal has been filed is deemed accepted by the party against whom the decision was entered and therefore binding. In the same token, the law is trite that a decision or conclusion or finding not appealed against is deemed correct and binding between the parties. See the cases of ODIASE v. AGHO and ORS (1972) 1 ALL NLR (Pt. 1) 170 AT 176; MELIFONWU v. EGBUJI (1982) 9 SC. 145 AT 165; BIARIKO v. EDEH-OGWUILE (2001) 12 NWLR (Pt. 726) 235; IYOHO v. EFFIONG (2007) 11 NWLR (Pt. 1044) 31; and S.P.D.C. v. X.M. FED. LTD (2006) 16 NWLR (Pt. 1004) 189 where the Supreme Court per ONNOGHEN, JSC had this to say on the subject: “It is settled law that a decision of a Court not Appealed against remains valid, subsisting, and binding between the parties and is presumed acceptable to the parties.” — F.O. Oho, JCA.
⦿ CAUSE OF DEATH AND NOVUS ACTUS INTERVENIENS
In respect of the second factor, which is the question of cause of death and the Appellant’s plea of novus actus interveniens, that is; “a new thing intervening”, it is important to state from the outset that the onus to prove that the accused person caused the death of the deceased is always on the prosecution and that it is not considered sufficient evidence to show that the accused did an act or made an omission which could have caused the death of the deceased. See the cases of R v. SAMUEL ABENGOWE (1936) 3 WACA 85 and R. v. WILLIAM OLEDIMA (1940) 6 WACA 202; UYO v. ATTN-GEN. BENDEL (1986) 1 NWLR (Pt. 17) 418; GABRIEL v. THE STATE (1989) 5 NWLR (Pt. 122) 457. Perhaps, the one thing to always take note of is that the overriding principle with regards to the question of causation in homicide cases is that an accused person is guilty of causing death of the deceased, if the deceased died as a result of the injury he inflicted. What this means in essence, is that where some other act or event intervenes before death, some problems may arise as to whether it was the earlier injury or the subsequent one, or the act or omission of a third party who is not a confederate of the accused or controlled by him, which resulted in the death of the deceased. Where the new act is clearly shown to have occurred, it will normally operate to relieve the accused person of the offence committed as it was recorded in the case of R. v. WILLIAM OLEDIMA (Supra). However, the settled position of the law with regards to the question of causation and which learned Appellants Counsel had sought to latch unto in seeking the release of the Appellant, is that where the chain of causation is considered broken, any resultant death is attributed to the new cause or is considered a contributory factor in causing death. See the English decision in the case of R. v. HUGGINS (1730) 17st. Tr. 309. … In this situation, however, it has often been convenient to distinguish between that which the accused person had caused to happen and that from which he had merely literally offered the occasion. In all such situations, the subsequent act or event, in order to make needed impact, should be capable of independently causing the death of the deceased irrespective of the earlier injury inflicted on the deceased by the accused person. But where the subsequent act is not mortal, it would be utterly wrong to locate criminal responsibility in respect of an offence committed, on someone who should ordinarily be exonerated for acts directly caused by others. — F.O. Oho, JCA.
⦿ GENERAL PRINCIPLES OF CAUSATION IN HOMICIDE CASES
There are however, certain general principles, three (3) in all governing the nature of things as far as the question of causation in homicide cases is concerned. It is to be pointed out in this connection that it is not every act of intervention or omission of a casual nature that will relieve the accused of liability for the subsequent death of the deceased. These principles, on which the accused might still be held to have caused the death of the deceased despite some form of intervention, are as follows: The first of these is where the earlier injury inflicted by the accused is held to be “an operating cause” and a “substantial cause.” See the cases of R. v. SMITH (1959) 2 ALL ER 193; QUEEN v. EGUABOR (No. 2) (1962) 1 ALL NLR 541. It is to be stated here that the intervening act may not obliterate an earlier injury inflicted by another person, where the earlier injury inflicted is adjudged not mortal, but may cause death in combination of the subsequent injury inflicted by the accused. In that kind of situation, the accused and that other person are both guilty of homicide. A second set of intervention is where the death of the deceased is due to some act done by the accused, which act is an actual consequence of the accused persons act. The accused will of course be liable if it is shown that his act is foreseeable as likely to occur in the normal courses of events. Here the injury inflicted by the accused is not regarded as “operating cause,” but the accused will be liable to have caused the death of the deceased. It must, however be shown that the act or event was the natural consequence of the accused persons act. See the cases of MICHAEL v. STATE (2008) 9 MJSC 61 AT 73; ALHAJI MUAZU ALI v. THE STATE (2015) LPELR-24711 (SC) and UMMARU v. GWANDU N. A. (1961) 1 ALL NLR 545. The third set of intervention is anchored on the rule that ordains that the accused must take his victim the way he finds him. If a man is suffering from a disease, which in all likelihood would terminate his life in a short time, and another gives him an injury or hurt which hastens his death, this killing constitutes murder simpliciter. See the cases of R. v. HAYWARD (1908) 21 COX C.C.692; See also R. v. MURTON (1862) 3 F and F. 492. It generally does not lie in the mouth of the accused person to say that he did not know that his victim was suffering from a disease of such a debilitating nature, which in all likelihood would terminate his life in a short time, before the accused gave him the injury, which hastened his death. The pertinent question usually raised for the Courts decision in matters of this nature, is; what caused the victim’s death? If the answer is either a stab wound or a blow to the head, that is all there is to decide and no more. — F.O. Oho, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Frederick Oziakpono Oho, J.C.A.
⦿ FOR THE APPELLANT
Musibau Adetumbi, Esq.
⦿ FOR THE RESPONDENT
Sirajo Abdullahi, Esq.
➥ CASE FACT/HISTORY
On the 22nd day of October, 2006 at Magami within the premises of a Mosque some commotion ensued between two factions of a political party, to wit; the ANPP. The Appellant, who was a member of one the factions called Adadidaita Sahu had altercations with one Sule, a member of the rival Gaskiya Dokin Karfe faction. The deceased, also a member of the Gaskiya Dokin Karfe faction, in trying to ensure that the quarrel did not de-generate into a free for all fight between the factions, intervened and while in the process of resolving the fracas, the PW1s evidence was that the Appellant left Sule, the person with whom he had picked up quarrel and hit the deceased with a stick on the head. The deceased bled profusely and had to be taken to Magami Hospital before he was transferred to the Gusau General Hospital where he died the next day being the 23rd day of October, 2006.
The Appellant was arraigned, tried unto conviction and sentenced to death by the High Court of Zamfara State sitting at Gusau in the Gusau Judicial Division on the 19th day of December, 2014 for the offence of Culpable Homicide Punishable with death for unlawful killing of one Haruna Dahiru (hereinafter referred to as the deceased) on the 22nd day of October, 2006 at Magami within the Gusau Judicial Division by hitting the said deceased with a stick which resulted in his death; an offence punishable under Section 221 of the Penal Code.
The Appellant in its defense, in one breadth rested its case on that of the prosecution and in another breadth learned Appellants Counsel in its address sought refuge under the defense of Self Defense. But in what appears a most painstakingly considered judgment, the trial Court roundly rejected the Appellants defenses as they would in the lower Courts view not avail the Appellant. It therefore proceeded to convict and sentenced the Appellant to death. The Appeal herein is against that Judgment.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether, in view of the evidence adduced by the prosecution it could be said that the prosecution proved the case of Culpable Homicide punishable with death against the Appellant to warrant his conviction?
RULING: IN RESPONDENT’S FAVOUR.
A. THERE WAS NO GROUND APPEALING THE DECISION OF THE TRIAL COURT ON THE CONFESSIONAL STATEMENT
[The decision of the learned trial judge, the pith and substances of which culminated in the erroneous rejection of the Appellants extra-judicial statements in Exhibits A and A1 on the ground of having made statements in Court which were inconsistent with his extra-judicial confessional statement, is hereby, though regrettably deemed valid, subsisting, and binding between the parties as long as it is not challenged on Appeal. What the situation translates in essence, therefore, is that the issue of the rejected Exhibits A, A1 of the Appellant cannot under any guise be revisited, by this Court as the Appellants evidence already rejected remains rejected so long as the lower Courts decision on the issue was never appealed against. The contention therefore, of the learned Respondents Counsel who has sought to exhume the issue of the Appellants confessional statement, in the absence of an Appeal against the lower Court’s decision is, therefore clearly of no moment in the circumstances of this case and I so hold.]
B. THE APPELLANT HITTING THE DECEASED WAS THE IMMEDIATE CAUSE OF THE DECEASED DEATH
[The simple facts of this case as already related in the preceding sections of this judgment is that as soon as the Appellant struck the deceased on the head with a stick the deceased fell on the ground and that it was while lying down unconscious in a pool of his own blood that he was rushed to Magami Hospital where some form of first aid was administered and from there he was taken to Gusau General Hospital still in a state of unconsciousness and that after the PW5 tried all he could to resuscitate him to no avail, he was eventually declared clinically dead at 7.00 am. The evidence of the PW1 who was an eye witness both in his examination-in-chief and under cross-examination maintained that he saw the Appellant hit the late Haruna Dahiru (the deceased) with a stick and that the deceased fell on the ground. The argument of learned Appellants Counsel that the failure to lead evidence on the size and weight of the stick is fatal to the case of the prosecution is clearly of no moment. On the strength of the fact that the deceased fell on the ground under the weight and force of the blow struck by the accused is enough to dispense with the need to call evidence on the weight and size of the stick. Clearly, the circumstances under which the deceased died leaves no doubt as to the manner and cause of his death. In such a situation Medical evidence may be dispensed with. There are legions of decided cases on this issue. See for example the cases of ADAMU v. KANO NATIVE AUTHORITY (1956) 1 FSC 25; AYINDE v. THE STATE (1972) 3 SC 153; EDIM v. THE STATE (1972) 4 SC 160; THE STATE v. EDOBOR (1975) 9-11 SC 69 and ESSIEN v. THE STATE (1984) 3 SC 14 AT 18. But even in this situation there is an Exhibit B which is the Medical Report dated the 6th of November, 2006 and issued under the hand of Dr. Mustapha Mohammed, the PW5; that the Report is to the effect that the deceased was admitted on the 23rd day of October, 2006 on account of loss of consciousness and bleeding from the head. Perhaps, more intriguing is the fact that the evidence of the PW5 is a confirmation of the testimonies of other witnesses as to the events that took place that fateful day. The fact remains that the deceased was taken in a state of unconsciousness to Magami Hospital from where he was lying down after the attack in a pool of his own blood and did not regain consciousness even when he was transferred to the General Hospital Gusau.
The position of the law is that a person is clearly guilty under Section 221 (b) of the Penal Code if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury which the act was intended to cause. Appellant cannot in the circumstances of this case feign ignorance of the likely consequences of his action. The Appellant had hit the deceased with a stick not on any other part of the body but the head. His intention to kill or cause bodily injury was betrayed by the fact that he went to the “Eid” praying ground, which is a place of worship with a stick. Learned Respondent’s Counsel had contended that whoever goes to a praying ground with a stick or any related weapon must have had the intention to accomplish a mission; and this I simply cannot disagree with. I am also in agreement that the act of hitting the deceased with the stick on the head also demonstrated the intended mission of the Appellant on the fateful day, which manifested as a clear intention on his part to kill.]
“To this end, this Appeal is moribund and lacks merit and it is accordingly dismissed. The judgment of the High Court of justice sitting at Gusau and delivered on the 19-12-2014 by N. U. GUMMI, J is hereby affirmed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)