Latest SC Cases: Whether An Issue Of Law Or Error In Law Can Be Raised From An Omnibus Ground Of Appeal

By Legalpedia

LAWALI NASIRU Vs. THE STATE

APPEAL NO: SC/1076/2021

Areas Of Law:

Appeal, Court, Criminal Law And Procedure, Judgment And Order, Law Of Evidence, Practice And Procedure, Words And Phrases
Summary Of Facts:

The Appellant, who allegedly caused the death of one Hassan Ismail by using a cutlass and inflicted a serious cut on his thigh in the course of a scuffle that ensued between them, was tried, convicted and sentenced to death by the Sokoto State High Court, for the offence of culpable homicide punishable with death.

On appeal, however, the Court of Appeal reversed the trial Court’s decision, and reduced his sentence to 10-years imprisonment for culpable homicide not punishable with death, and the Appellant has now appealed to this Court contending that the lower court ought to have considered whether his plea of self-defence was rightly or wrongly rejected by the trial Court.

HELD:

Appeal Dismissed

ISSUES FOR DETERMINATION

Ø  Whether the finding of the Court below that the Prosecution proved its case beyond reasonable doubt against the Appellant beyond reasonable doubt can be faulted or assailed

RATIONES

GROUNDS OF APPEAL – NEED FOR GROUNDS OF APPEAL TO ARISE FROM THE RATIO DECIDENDI OF THE DECISION APPEALED AGAINST

‘’It is an elementary principle that grounds of appeal arise from the ratio decidendi of the decision appealed against and the issues formulated for the determination of the appeal, arise from the grounds of appeal, which emanated from the decision appealed against — see Ibigbami & Anor V. Military Governor, Ekiti State (2004) 4 NWLR (Pt. 863) SC’’. – PER A. A. AUGIE, J.S.C.

OMNIBUS GROUNDS OF APPEAL- WHETHER AN ISSUE OF LAW OR ERROR IN LAW CAN BE RAISED FROM AN OMNIBUS GROUND OF APPEAL

‘’The Respondent is right that an omnibus ground of appeal is not against a specific finding of fact or any document, and cannot be used to raise any issue of law or error in law – see Akinlagun V. Oshoboja (supra) and Osolu V. Osolu (supra), wherein this Court explained that:

When a complaint is against the weight of evidence, the complaint must be against the totality of the evidence adduced at the trial Court not against any specific issue. The complaint is only concerned with the appraisal and evaluation of all the evidence; not the weight to be attached to any particular piece of evidence’’.

– PER A. A. AUGIE, J.S.C.

PARTICULARS OF ERROR – MEANING OF PARTICULARS OF ERROR

“It is settled that Particulars are the specifications of errors or misdirection which shows what a complaint against the decision is. They are the specific reasoning, finding or observations relating to an error or misdirection complained of, and to determine whether a ground of appeal is relevant to the issue formulated, it must be read together with its Particulars to make it a complete Ground, and it must be based on the issue in controversy – Nyako V. Adamawa State House of Assembly (2016) LPELR-41822(SC)”. PER A. A. AUGIE, J.S.C.

GROUNDS OF APPEAL- ATTITUDE OF COURTS TO INELEGANT GROUND OF APPEAL

‘’Courts are encouraged to make the best out of an inelegant ground of appeal in the interest of justice, particularly where no one is left in doubt as to the Particulars on which it is founded – Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205’’.– PER A. A. AUGIE, J.S.C.

PROOF – WAYS THE PROSECUTION CAN PROVE ITS CASE

‘’Now, there are three ways for the Prosecution to prove its case – direct evidence, circumstantial evidence or confession’’. – PER A. A. AUGIE, J.S.C.

DIRECT AND CIRCUMSTANTIAL EVIDENCE- MEANING OF DIRECT AND CIRCUMSTANTIAL EVIDENCE

‘’Direct evidence establishes a fact without making any inference to connect the evidence to the fact. In effect, direct evidence proves or disproves a fact directly. Circumstantial evidence, on the other hand, requires an inference to be made to establish a fact. “Inference” is “a conclusion reached by considering other facts and deducing a logical consequence from them” – Black’s Law Dictionary, 9th Ed. In other words, circumstantial evidence does not point directly to a fact. An inference must be made that would link the circumstantial evidence to the fact that the Party using it is trying to prove, which can make it a lot more powerful than direct evidence – see Lori V. State (1980) NSCC (Vol. 12) 269, wherein Nnamani, JSC, stated:

“Circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances, which by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial. But the circumstantial evidence sufficient to support a conviction – – must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the Prisoner, and no one else, is the murderer. The facts must be incompatible with innocence of the Accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt’’.

– PER A. A. AUGIE, J.S.C.

CONFESSION – MEANING OF CONFESSION

‘’ A confession is an admission made by a person charged with a crime, stating or suggesting the inference that he committed that crime, and it is settled that a confessional statement, which is sufficient to ground a conviction, is the most effective compass of navigating culpability of an Accused on the part he played in the commission of the offence.

See Obidiozo & Ors V. State (1987) LPELR-2170(SC) and Solola V. State (2005) 11 NWLR (Pt. 937) 460, wherein Tobi, JSC, aptly stated that:

“A confessional statement is the best evidence – – It is a statement of admission of guilt by the Accused and the Court must admit it in evidence, unless it is contested – – If a confessional statement is contested at the trial, our procedural law requires that the trial Court should conduct a trial within a trial for purposes of determining the admissibility or otherwise of the statement. Once a confessional statement is admitted, the Prosecution need not prove the case against the Accused beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the Accused.”

– PER A. A. AUGIE, J.S.C.

CONFESSIONAL STATEMENT –WHETHER A RETRACTED CONFESSIONAL STATEMENT IS SUFFICIENT TO WARRANT A CONVICTION

“He merely retracted his confession, and it is well settled that a confessional statement, if made voluntarily, even if subsequently retracted, is sufficient to sustain a conviction — see Solola V. State (supra), Nwaeze V. State (1996) 2 NWLR (Pt. 428) 1. PER A. A. AUGIE, J.S.C.

DEFENCES – DUTY ON AN APPELLATE COURT TO CONSIDER ALL DEFENCES AVAILABLE TO AN ACCUSED PERSON

“it is trite law that an appellate Court will consider all the defences available to the Appellant, whether it is raised in the appeal or not, provided that there are facts established in the lower Court capable of being considered as adequate proof of any of the defences – see Ojo V. State (1973) LPELR-2385(SC), Bello V. FRN (2018) LPELR-44465(SC). PER A. A. AUGIE, J.S.C.

ERROR IN JUDGMENT – NATURE OF AN ERROR THAT WILL RESULT IN A REVERSAL OF JUDGMENT

‘’It is well settled that the only error made by a Court that will lead to a reversal of its judgment, is an error that occasioned a miscarriage of justice or substantially affected its decision — see Ajuwon V. Akanni & Ors (1993) 9 NWLR (Pt. 316) 182’’. – PER A. A. AUGIE, J.S.C.

PLEA OF SELF DEFENCE – INGREDIENTS OF A PLEA OF SELF DEFENCE THAT THE PROSECUTION MUST PROVE TO EXCULPATE AN ACCUSED PERSON FROM CRIMINAL LIABILITY

‘’Now, a successful plea of self-defence, completely exculpates an Accused from criminal liability— see Uwaekweghinya V. State (supra), (2005) 9 NWLR (Pt. 930) 227, wherein this Court explained as follows:

The purport of self-defence in law is to negative the existence of an offence so that where a person kills another in self-defence, the killing, unlike in provocation as a defence, does not amount to an offence but total exoneration of the Accused. Thus, the Accused is discharged and acquitted.

But to benefit from the exoneration that comes with a successful plea of self-defence, an Accused must prove the ingredients of the defence — see Kwaghshir V. State (supra), Musa V. State (2009) 7 SCNJ 329 and Afosi V. State (2013) 13 NWLR (Pt. 1371) 329, wherein this Court stated:

Ordinarily, self-defence that will have any impact on a case to favour an Accused Person must be such that the action taken by the Accused Person was unavoidable. The following are the ingredients of self-defence: –

The following are the ingredients of self-defence: –

(a) The Accused must be free from fault in bringing about the encounter;

(b) There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity;

(c) There must be no safe or reasonable mode of escape by retreat; and

(d) There must have been a necessity for taking life

In order to sustain the defence of self-defence, all the above ingredients must exist and be established. See also Uwaekweghinya V. State (supra) where this Court also held:

Before the defence is available, it must be shown by the person relying upon it that he believed that there was no other way of saving himself from death or grievous bodily harm other than by using such force as he did and that he tried to disengage from the event, which led to the application of such force or in this instant case, the use of cutlass – – For an Accused to avail himself of the defence of self- , he must show – – that he took reasonable steps to disengage from the fight or make some physical withdrawal. But issue of disengagement depends on the peculiar circumstances of each case. Sometimes it may be possible to run away from an unwarranted attack, at times it may be impossible to withdraw”.

In other words, to avail himself of the said defence, the Appellant must show that his life was so much endangered by the act of the deceased that he had no other option but to kill the deceased and save his life; that he did not want to fight; and that he was prepared to withdraw — see Baridam V. State (1994) 1 NWLR (Pt. 320) 250. – PER A. A. AUGIE, J.S.C.

DEFENCE OF SELF DEFENCE – TEST TO DETERMINE WHETHER OR NOT THE DEFENCE OF SELF DEFENCE CAN AVAIL AN ACCUSED PERSON

‘’ The guiding principles are necessity and proportion — the force must have been necessary and it must have been reasonable — see Adeyeye V. State (2013) 11 NWLR (Pt. 1364) 47, wherein this Court per Ogunbiyi, JSC, stated the right questions to ask:

The two questions, which ought to be posed, and therefore, answered before the trial Court, were: – (1) on the evidence, was the defence of self-defence necessary? (2) Was the injury inflicted proportionate to the threat offered, or was it excessive? If, however, the threat offered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand such self-defence, then the defence cannot avail the Accused. See R. V. Onyeamaizu (1958) NRNLR 93’’. – PER A. A. AUGIE, J.S.C.

DEFENCE OF SELF DEFENCE – GROUNDS ON WHICH SELF DEFENCE WILL AVAIL AN ACCUSED PERSON

” In order for the defence to avail him, the law requires the Appellant, by credible evidence, to show and satisfy the trial Court that at the material time, his life was put in real and grave danger by the act/s of the deceased such that the only reasonable option left for him to save his life was to kill the deceased or cause him such bodily in injury to prevent the deceased from killing him. There must be cogent evidence from the accused person to show that he did not take undue advantage by use of unnecessarily excessive force that is clearly disproportionate to that used on him by the deceased and that he did not want to fight, but was prepared to withdraw, for the defence, as a complete defence, to avail him. The defence is predicated on the natural principle of kill or be killed. PER M. L. GARBA, J.S.C.

PLEA OF SELF-DEFENCE – NATURE OF EVIDENCE REQUIRED FOR A SUCCESSFUL PLEA OF SELF DEFENCE BY AN ACCUSED PERSON CHARGED WITH THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH

“For a successful plea of the defence of self-defence by an accused person charged with the offence of culpable homicide punishable with death under the Penal Code, (as in the case against the Appellant), or murder under the criminal code, there must be credible evidence to show, among others, that:-

1. That the life of the accused person was actually threatened or endangered by the acts of the deceased;
2. That the only option that was opened and available to him to save his own life, was to use force which was necessary on the deceased;
3. That the amount of force used on the deceased was proportionate to the threat or danger posed by the acts of the deceased person;
4. That he did not take undue advantage of the deceased person in the process of saving his own life by way of self-defence;
5. That the accused person must show that he did not want to fight and that he was prepared and ready to withdraw from the threat or danger posed to his life by the deceased. See Laoye v. State (1985) 2 NWLR (pt. 10) 832, Stephen v. State (1986) 5 NWLR (pt. 46) 979 at 987, Njoku v. State (1993) 8. K.L.R, 60, Ahmed v. State (1999) 5 SC (pt. II) 39 at 48, Kwaghshir v. State (1995) LPELR-1726 (SC), Odu v. State (2001) 10 NWLR (pt. 722) 668, Nnamah v. State (2005) 2 NWLR (pt. 929) 147, Apugo v. State (2006) 16 NWLR (pt. 1002) 227, Chukwu v. State (2012) LPELR-9829 (SC), Audu v. State (2003) 7 NWLR (pt. 820) 517. These factors must co-exist for the defence to be available to completely exculpate or exonerate the accused person from or of guilt for the offence charged. PER M. L. GARBA, J.S.C.

Statutes Referred To:

• Criminal Code Cap 48 Vol. II, Laws of the Defunct Bendel State
• Evidence Act, 2011