3PLR/1997/3 (SC)



3 NWLR (Pt.492) 144










J.B. Daudu SAN (appearing with U.H. Agomoh and G.N. Bako ESQ.) – for the appellant

Nuhu Adamu, Director Civil Litigation, Sokoto State – for the Respondent



[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]



CONSTITUTIONAL LAW – Extent and scope of right of accused not to give evidence

EVIDENCE – Inculpatory and exculpatory portions of confessional statement – whether one can be considered without the other

EVIDENCE – Comment of Judge on accused not or refusing to give evidence

PRACTICE AND PROCEDURE – Attitude of Supreme Court to concurrent findings by trial court and court of appeal



Wali Delivering Leading Judgement

In the trial court, the appellant was charged with the following offence:-

“That you Adamu Garba on or about the 28th June, 1986, along Gabaitawa/Kadassaka road of Gwadabawa Local Government Area within the Sokoto Judicial Division did commit culpable homicide punishable with death in that you caused the death of one Garba Ibrahim by doing an act to wit striking him with a cutlass/machete with the knowledge that his death would be the probable consequence of your act and thereby committed an offence contrary to section 221(6) of the Penal Code“.

The appellant pleaded not guilty to the charge and the case proceeded to trial. The prosecution called the witnesses to prove the charge. The appellant neither called witness nor did he testify to rebut the prosecution’s evidence.

The prosecution’s case in brief is as follows;

It was the deceased’ practice to go on an annual trading trip from Sokoto to Yola in the then Gongola but now in Adamawa State. In 1986 the deceased went on a similar trip and on his way back home, and in the early hours of 28th June, 1986 he was found fatally wounded in a farm along Gabaitawa/Kadassaka Road in Gwadabawa Local Government Area of Sokoto State, by Umaru Abdu (P.W.4). P.W.4 was later joined by Garba Aliko (P.W.3), a brother to the deceased. They put the deceased on the back of a donkey with which P.W.3 came to the farm and carried him to Kadassaka, the home village of the deceased. From the village they took him to Gada Hospital and on the way the deceased died. P.W.3 said the body of the deceased was returned to Kadassak village and the incident was reported to Police at Gada. The deceased body was taken to Gada from where it was conveyed to Gwadabawa Hospital. After necessary identification of the deceased’s body it was examined by a Doctor who thereafter issued a medical report.

The dead body was released to the relations of the deceased and was buried in Kadassak village.

At the end of the case put up by the parties, the learned trial Judge meticulously examined the evidence adduced and found the appellant guilty as charged and sentenced him to death.

The appellant’s appeal to the Court of Appeal Kaduna Judicial Division was unsuccessful. It was dismissed and the conviction and sentence of death was affirmed. As a result the appellant has now further appealed to this court.

In compliance with the Rules of this court, the parties filed and exchanged brief of argument. In the brief filed for and on behalf of the appellant, the following issues have been formulated for determination:-

“1.     Whether it was right and indeed fair for the Court of Appeal to have drawn damaging and negative inferences from the appellants exercise of his constitutional right not to be compelled to give evidence and if a negative answer is returned, whether the position taken by the Court of Appeal did not affect its consideration of the appellant’s appeal and thereby occasioned a miscarriage of justice?

  1. Whether the failure by the appellant to testify in his defence disqualified him from relying on the defences of provocation and private defence particularly as there existed before the court Exhibit 8 and 9, the alleged confessional statement which contained incriminating and exculpatory statements?
  2. Whether the Court of Appeal as indeed the trial court was not under a duty to accord both the incriminating and exculpatory parts of exhibits 8 and 9 the same weight even in the absence of the appellants testimony viva voce?
  3. Whether the Court of Appeal was correct when it rejected the appellant’s reliance on the defences of provocation, private defence and sudden fight?

The respondent’s brief also contained the following three issues for determination:-

  1. Whether it is unconstitutional for the Court of Appeal to draw an inference from the election by the appellant not to give evidence in his own defence.
  2. Whether a court after a careful consideration can believe a portion and reject another.
  3. Whether the Court of Appeal was right in rejecting the defences raised in the statement of the appellant who refused to give his defence on oath.

The three issues formulated in the respondent’s brief are covered by the four issues in the appellant’s brief and for purpose of disposing this appeal I shall adopt and follow the sequence in which the issues have been argued in the appellant’s brief.

Under issue 1 the complaint by learned Senior Advocate for the appellant is against the comment made by Ogebe JCA in his lead judgment that:-

“From the facts, the appellant acted in a cruel and unusual manner by dealing death blows on an unarmed man. The trial court was therefore right in rejecting such defences. It was clear from the proceedings that the appellant had a lot to hide that is why he chose not to give evidence and he must abide by the consequence of his choice”.

He argued that though S. 23(i)(c) of the Criminal Procedure Code authorizes courts to draw any negative inference from the accused person’s exercise of his constitutional right not to give evidence, it is his submission that the provision referred to (supra) is contrary to the provision of S. 33(ii) of the 1979 Constitution and therefore unconstitutional. He said that the decision in Mandilas Karaberis Ltd. v. I.G.P. (1958) SCNLR 335, the excerpt of which he quoted from p. 339 therefore reinforces his submission. Learned Senior Advocate cites S. 2(4) of the Constitution (Suspension and Modification) Decree NO. 107 of 1993; Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139; Nafiu Rabiu v. The State (1980) 2 NCLR 177 at 133; A.G. of Ontario v. A.G. of Canada (1912) A.C 571 at 583-584 to further buttress his argument. It is also his contention that the Court of Appeal failed to properly consider the confessional statement of the appellant so as to ensure a distillation of the inculpatory parts from the exculpatory portions but chose to base its decision on the appellant’s failure to testify in court, thereby disregarding the defence contained in the statement which he said is fundamental irregularity that occasioned breach of justice and cites the decision in Buraimoh Ajayi and Anor. v. Zaira N.A. (1964) NNLR 61. He urges that the issue be resolved in the appellant’s favour.

In the respondent’s reply to the appellant’s arguments on this issue, it is the submission of the learned DCL of Sokoto State that S. 236(c) of the Criminal Procedure Code Law is neither contrary nor in contravention of S. 33(ii) of the 1979 Constitution. He said S. 33 (ii) of the Constitution was enacted to protect an accused person from being compelled to give or call any evidence in his defence. It did not prohibit the court from drawing any reasonable conclusion from the accused person’s failure to testify as provided in S. 236 of the Criminal Procedure Code. Learned DCL cited and relied on Mandilas Karaberis Ltd. v. I.G.P. (1958) SCNLR 335 at 359; Usman v. COP (1969) scope 100 and The Queen v. Ijoma (1962) All NLR 402 at 408; (1962) 2 SCNLR 157. S. 236(i)(c) provides thus:-

“An accused person shall be a competent witness on his own behalf in any inquiry or trial, whether he is accused solely or jointly with another person or persons, and his evidence may be used in proceedings against any person or persons tried jointly with him. and the following provisions shall have effect:-

(a) …………………………………………………………………………………………

(b) …………………………………………………………………………………………..

(c)     the failure of the accused to give evidence shall not be made the subject of any document by the prosecution, but the court may draw such inference as it thinks fit”.

while S. 33(ii) of the 1979 Constitution enacted as follows:-

“33(ii) No person who is tried for a Criminal Offence shall be compelled to give evidence at the trial”.

There is nothing in S. 33(ii) above which either directly or impliedly suggests that a court cannot or should not comment or draw justifiable inference from the evidence when an accused person elects to take advantage of the provision of subsection (ii) of S. 33 of the Constitution. The subsection is very clear and unambiguous in that it prohibits the compelling of any person who is being tried for a criminal offence from giving evidence unless he voluntarily elects to do so. S. 236(i)(c) of the CPC is not in conflict with S. 33(ii) of the Constitution, and there is great wisdom in that provision when it prohibits the prosecution from commenting on an accused person’s failure to give evidence to avoid the influencing of the court’s approach in deciding the case. It will be absurd to accept the learned Senior Advocate’s suggestion that the comment or inference drawn by the learned Justice of the Court of Appeal of the appellant’s failure to give evidence is a violation or infringement of the appellants fundamental human rights guaranteed by S. 33(ii) of the 1979 Constitution (supra). Our Law Reports are replete with the decisions of our superior courts of record containing inference drawn from the accused person’s failure to give evidence in explanation to some proved facts which only he can offer. See Mandilas and Karaberis Ltd. v. I.G.P. (1958) SCNLR 335 which both parties referred to in their respective briefs.

I have carefully read through the other authorities cited in support of the appellant’s case and have found them not opposite.

Issue 1 is therefore resolved in the negative against the appellant.

Issue 2 and 3 of the appellant’s brief have been taken together. It is the submission of learned Senior Advocate in his brief that both the trial court and the Court of Appeal did not properly consider Exhibit 8 well to appreciate the reason why the appellant used the machete Exhibit 1 on the deceased to wit – that the deceased who was a complete stranger to the appellant, held the latter ‘s private part in the early hours of the morning of the day incident happened. He submits that since Exhibit 8 contain evidence that caused the death of the deceased as well as evidence which led the appellant to use Exhibit 1 on the deceased which act caused the latter’s death, the Court of Appeal as well as the trial court were wrong in picking and choosing the incriminating part of Exhibit 8 while rejecting its exculpatory part. He submits that the procedure adopted by the two courts below in accepting part of Exhibit 8 and rejecting the other part was a fatal misdirection of law that ultimately affected their consideration of the defence of provocation raised in Exhibit 8. Learned Senior Advocate cited and relied among others, on the following cases to support his submissions R. v. Duncan (1981) 73 CR. APP. R 359, R. v. McGregor (1967) CR. APP. at 341; Chukwu v. The State (1992) 1 NWLR (Pt. 217) 255 at 270; Olubu v. The State (1980) 1 NCR 309 at 315-316. The Queen v. Itule (1961) All NLR (Reprint) 481 at 485; (1961) 2 SCNLR 183; Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383 at 435; Kasa v. The State (1994) 5 NWLR (Pt. 344) 269 at 286-287 and R. v. Basil Ranger Lawrence 11 NLR 6. He urges that issues 2 and 3 be resolved in the appellant favour.

The learned DCL in answer to the submission above, submits that the trial court and the Court of Appeal can believe a portion of a confessional statement and reject the other portion, especially when there are other pieces of evidence which tend to make the exculpatory part of the statement unreliable. He contends that there are compelling circumstantial evidence in the case in hand which tend to make the exculpatory part of the confession unreliable.

With regard to the decisions in R. v. Duncan (1981) 73 CAR 359 and R. v. Itule (1961) All NLR 481; (1961) 2 SCNLR 183, the learned DCL contends that they are distinguishable from the present case because what was decided therein is that both the incriminating and the exculpatory aspects of a confession are admissible and that they must be considered by the court but did not say that the exculpatory aspect must be taken as true when there is clear evidence to make it unreliable. He cited and relies on Biode and Ors. v. The State (1970) NSCC 31; (1970) All NLR 36 which emphasized the principle that the court can believe a portion of an accused person’s statement and reject the other part for good reasons.

I have carefully read the decisions cited by and relied on by the learned Senior Advocate to buttress his submissions and have come to the conclusion that none of them made his case any better.

In R. v. McGregor (supra) the portion cited and relied on by the learned Senior Advocate which was a statement made in Jones and Jones (1927) 2 C. and P. 338 at 347 to wit – “There is no doubt that if a prosecutor uses the declaration of a prisoner he must take the whole of it together and cannot select one part and leave another and if there be no evidence in the case, or no other evidence incompatible with it the declaration so adduced in evidence must be taken as true. “Is no longer authority as the Court of Appeal went on to state in Mcgregor case (supra) on the same p. 341 that:

“As stated in paragraph 1128 of Archbold’s Criminal Pleadings etc. (36th Ed.) “The better opinion seems to be that as in the case of all other evidence the whole should be left to the jury to say whether the facts asserted by the prisoner in his favour be true.” The court is satisfied that the passage in archbold sets out the true position”.

In the present case the appellant did not give evidence to enable the prosecution cross-examine him on the correctness of the statement – Exhibit 8. It is therefore only natural that trial court should only attach greater weight to the confession of the incriminating aspect than to the exculpatory explanation contained therein after it had considered exhibit 8 as a whole.

It is the duty of the jury where jury is involved in the trial or the trial Judge, where jury system is not in use, to consider the case and then to make a finding whether in their/his view of the facts, the accused was guilty of manslaughter or murder. See Holmes v. DPP (1946) Cr. App. R 123.

As I have said earlier, I have read through the authorities relied on by the appellant, particularly R. Lawrence and Chukwu v. The State (supra) and have found them not opposite in the present circumstance. Also in the case of The Queen v. Itule (1961) All NLR 462; (1961) 2 SCNLR 183, the trial court did not make any finding as to whether the retracted statement of the appellant in that case was admissible in evidence or not and therefore it was not considered. The Federal Supreme Court made a finding that the retracted statement was admissible, admitted and considered it and came up with the following conclusions:-

“There was evidence of provocation which the trial Judge ought to have considered. It may well be that he would have rejected it”.

The purport of the statement (supra) made by the Federal Supreme Court is that the court must consider the extra – judicial statement made by an accused person as a whole, but did not say that in the course of its consideration, it cannot reject any explanation contained therein having regard to the other evidence in the case particularly when the accused elects not to give evidence to enable the prosecution test it. The following findings of the learned trial Judge on the issues of provocation and self defence cannot be faulted –

“In the present case, the accused met the deceased in the early hours of the morning. The accused was carrying Exhibit 11 – a carton. The deceased was returning from his annual trade journey. Exhibit ‘1’ was sufficiently described in Exhibit 6 and 7. The accused used Exhibit ‘1’ to inflict the injuries seen on the body of the deceased by the prosecution witnesses. These injuries were fully described by the medical evidence in Exhibit ’10’. I have also seen Exhibit ‘1’. It is a strong and big cutlass/machete. Without doubt Exhibit ‘1’ is a very dangerous weapon. It is the more dangerous in the hands of the accused who by his appearance before me is a strong person. The accused as a reasonable man, must have known that to use Exhibit ‘1’ on the body and head of the deceased and inflict such multiple and deep injuries as described in Exhibit ’10’, death would be the natural and normal effect of that act. The accused did not give evidence. Nor did the defence call any witnesses. The only evidence before the court therefore, was that of the prosecution. I have accepted the testimonies of the prosecution witnesses as the truth of what happened. Nevertheless, it is the duty of the court to examine the evidence before it with a view to finding any available defence for the accused person. This is so even where no such defence is raised for the accused – Apise, 8 Ors v. The State (1971) All NLR 53.

In his submission, the learned counsel for the accused stated that the accused found himself in a life and death encounter and was therefore exercising the right of private defence against the deceased whom he believed was a wizard. Moreso, according to the learned counsel the accused did not inflict more harm than was necessary in the circumstances. Furthermore, there was no time for the accused to have recourse to public authority as the fight took place in the night and in the bush. On the other hand, the prosecution submitted that the right of private defence was not open to the accused person – R. v. Adamu (1944) 10 WACA 161 and that he the accused was the aggressor Oji v. Queen (1961) NNLR 93; (1961) 1 SCNLR 350. Evidence before me showed that at the time the accused inflicted the fatal and innumerable fatal wounds on the deceased the deceased was unarmed. Yet the accused continued inflicting fatal wounds, all over the body of the deceased. All what the deceased had was a carton containing what he got from his trade journey. P.W.2 said in his testimony and I quote:-

“The accused came to me and told me that he had a fight with a wizard. The wizard had bitten him all over his body”.

This was the only statement pertaining to the submission that the accused was attacked by a wizard. And this was the only time the accused told anybody or – said anything about being attacked by a wizard. More surprisingly, was the accused’s failure or refusal to say anything about a wizard in his statement Exhibits 8 and 9, which were recorded soon after the incident. One could therefore infer that the accused himself must have been (sic) the unreasonableness of such a line of defence soon thereafter and dropped it. In Exhibits 8 and 9, the accused said:-

“he then held my private part……”

This seemed to be the new line of defence by the accused. The accused is free to state as many lines of defence as he so wished but the court can draw reasonable inference from such actions. Even if the accused believed that the deceased was a wizard I am of the view that such a belief was most unreasonable in the circumstance.

What he told P.W.2 was only part of his effort hide the truth. I do not believe that it was because the deceased held his private part that was why he inflicted such wounds on him – R.v. Reuben Enyi Jinobu (1961) All NLR 627. I also could not see any element of provocation in the present circumstances – Queen v. Alija Elegba Olewuri (1959) E.N.L.R. Vol. v. 17. In the light of this I found that the accused had no reason to believe that there was on the part of the deceased a very definite intention to kill him or that he was engaged in a life and death struggle. In view of this, the defence of right of private defence could not be open to the accused. When the accused was arrested, he made an extra judicial statement to the police, PC Joseph Kimsa recorded statement Exhibit 8 and translated it into English per Exhibit 9. The statement being confessional was endorsed by the D.P.O. Gwadabawa – one Alhaji Bello Bungudu. The statement was tendered and admitted without objection. The statement as I said earlier confirmed that the accused hit the deceased with a cutlass/machete. This confession was clear, unequivocal, direct and voluntary Phillips Kani v. The King 14 WACA 39″.

These findings were confirmed by the Court of Appeal in its unanimous judgment in which Ogebe JCA opined thus after reviewing the evidence and submissions by learned counsel:-

“I have given a very serious consideration to the submission of the learned counsel on either side and it is clear from the record that the conviction of the appellant was based mainly on Exhibit 8, the confessional statement. In it the appellant confessed cutting of the deceased with a machete when the deceased allegedly held his private part and was biting him. The learned trial Judge did not believe that the deceased held the private of the appellant and the main contention of the appellant’s counsel is that this aspect of the appellant’s story should have been believed. It is a well known principle of law that it is the pre-eminent duty of the trial court to determine issues of credibility and not that of the appeal court. See the case of Ekpenyong v. The State (1991) 6 NWLR (Pt. 200) 683. In this particular case, the appellant had his first opportunity to explain what happened when he went to P.W.2 to ask for iodine, he told him that he fought with a wizard who bit him all over the body. He did not tell P.W.2 that the deceased held his penis. I am therefore of the view that the trial court was right in rejecting that aspect of the appellant’s statement of the police. Even if the deceased held the appellant’s penis, the amount of force used by the appellant by cutting the head, the shoulder, and the arm of the deceased with a cutlass in several places was far in excess of his right of private defence and the provocation if any if any given by the deceased was not grave enough to reduce the gravity of the offence. The medical report Exhibit 10 shows the ferocity of the attack on the deceased. It reads in part as follows:

“The deceased was said to have been accidentally found dead by his own uncle who was on his way to the farm. Examination revealed 5 stab wounds on the extensor aspect of (L) forearm. Deep stab would (R) eyebrow, and 4 on the head. He was also very pale”.

Under section 62 of the Penal Code, the right of private defence does not extend to the infliction of more injury than necessary for the purpose of the defence”.

For the reasons stated I am satisfied that no case has been made to warrant interference with the findings of both the trial court and the Court of Appeal as regards Issues 2 and 3, Ground 2 of the grounds of appeal from which the said two issues have been formulated fails.

On Issue 4 which is formulated from grounds 3 and 4 of the grounds of appeal, learned Senior Advocate adopts his arguments in respect of Issues 2 and 3. He submits that evidence explain in abundance from which the defences of provocation and private defence can be sustained.

I do not see the need to go over and review the arguments advanced in support of issues 2 and 3 which the learned SAN adopted to support his Issue No.4. Suffice it to say that both the trial court and the Court of Appeal had considered the questions of private defence and provocation and rejected them. These are issues hinging basically on facts. In my view there is no miscarriage of justice or violation of some principle of law or procedure that will justify my interference with these findings See Woluchem v. Gudi (1981) 5 SC 291; Adio and Anor v. The State (1986) 2 NWLR (Pt.24) 581 at 589 and Onyejekwe v. The State (1992) 3 NWLR (Pt. 230) 444.

I see no reason to differ from the judgments of the lower court and the court below. The appeal therefore lacks merit and it is dismissed. The conviction and sentence of the appellant are hereby affirmed.

Cases referred to:

Adio v. State (1986) 2 NWLR (Pt. 24) 581

Mandilas v. Karaberis Ltd. v. I.G.P. (1958) SCNLR 335

Onyejekwe v. State (1992) 3 NWLR (Pt. 230) 444

Queen v. Itule (1961) 2 SCNLR 183

Woluchem v. Gudi (1981) 5 SC 291


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