……………………..A…………………….
Judgement of the Court
Delivered by
Andrews Otutu Obaseki. J.S.C
This criminal appeal raises important issues. The first is the burden of proof or onus of proof and the second is the question of standard of proof required in criminal cases to secure conviction. The other equally important issues raised are whether there is need to give direction on the issue of provocation and the issue of self defence when a defence of alibi is raised unsuccessfully in the light of the evidence on record. Finally, there is the question whether an accused can be convicted on the written statement of a co-accused made to the police in his absence. The formulation of these issues by the appellants’ counsel, Chief F.O. Akinrele, S.A.N., runs as follows:
(1) The Court of Appeal having found that there was a misdirection in the assessment of the evidence offered as alibi, was the Court of Appeal right to have dismissed the appeal of the appellants?
(2) Was the learned Judge right that there was no evidence on record to consider the case of provocation or self-defence as the appellants have retracted the story contained in their statements to the police?
(3) Was the Court of Appeal right in holding that there can be no case of provocation for acts done in the absence of the appellants?
This appeal is against the decision of the Court of Appeal sitting in Kaduna on appeal from the High Court of Kwara State holden at Lokoja. The information filed in the High Court of Kwara State charged the two appellants herein to wit:
(1) Danlami Zaki and
(2) Tukura Zaki and 5 others namely
(3) Wamba Bawa;
(4) Peter Waiyam;
(5) Musa Baba,
(6) Yusuf and
(7) Shaba Tukura
with culpable homicide punishable with death under section 221(a) read in conjunction with section 7 of the Penal Code.
The facts of this case accepted by the learned trial Judge are contained in the evidence of P.W.2, PC. No.61732 by name Abayo Abimeka and P.W. 3 No. 62376 Corporal Augustine Garuba.
Briefly, P.W. 2 and P.W. 3 went on patrol duty to Ahoko village. On getting to the village, they saw a crowd of people sad and wailing. On enquiry, accused 4 told them that one fulani man, unknown to them had shot to death their brother and ran away. They then found their way to the main road where they could get a vehicle. On getting to the main road, they stopped a bus going to Koton Karfe. They then saw late Mohammed Dan Mauta alighting from the bus and he came to P.W. 2. He enquired what was happening and as P.W. 2 was trying to explan to him, the enraged villagers (including the 1st, 2nd, 3rd, 4th and 6th accused) pounced on him and attacked him. On seeing 1st appellant armed with a cutlass, the deceased fled shouting for help. P.W. 2 in order to prevent the villagers from killing him, followed to help him but 1St appellant and others ran faster passed him and got hold of the deceased. His effort to save the deceased was unsuccessful and abortive. As he struggled with accused 1, accused 2 got the cutlass from accused 1 and cut the deceased on the head with it. Accused 3 and 4 used the butts of their dune gun to hit the deceased. Accused 6 who held a long knife used it to cut the legs of the deceased. P.W. 2 could not recognise accused 5 and 7. The picture will not be complete without a narration of the facts of events that brought the rage on the crowd.
