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In The Supreme Court of
On
Friday, the 21st
day of September 2007
Before Their Lordships
S.C.
244/2004
Between
And
Judgment of Court
Delivered by
George Adesola Oguntade.
J.S.C.
The appellant, Musa
Yaro, was the first of six accused persons who
were brought before the High Court of Kebbi
State, Birnin Kebbi
on a three-count charge of Criminal conspiracy, abatement and culpable
Homicide punishable with death contrary to
sections 97, 85 and 221 (a) of the
Penal Code respectively. On 18/1/2000, the appellant and the five other
accused persons charged with him pleaded not guilty to each of the counts.
Hearing of the case opened on 19/1/2000.
The prosecution called eight witnesses.
The appellant elected not to testify or call a witness.
The trial judge,
Ambursa J, on 24-02-2000 in the judgment, found
the appellant and the 5 other accused persons charged with him guilty of the
offence of culpable homicide punishable with death under
section 221 (a) of the Penal Code.
The appellant was accordingly sentenced to death. The appellant
brought an appeal against his conviction before the Court of Appeal, Kaduna
(herewith referred to as the court below).
The court below, on 10 - 12 - 03 in its judgment dismissed the
appellant's appeal and affirmed the judgment of the trial court. The
appellant has come before this court on a final appeal. The appellant raised
three grounds of appeal.
The two issues for determination raised in the three grounds of appeal read:
1.
Whether the Learned Justices of the Court of Appeal ought to confirm
the conviction and sentence of the Trial court.
(This issue is distilled from grounds 1 and 2 of the grounds of
appeal 1).
2.
Whether the Learned Justices of the Court of Appeal were right in
raising the issue of defences of justification and provocation without
affording the parties the right to be heard on the said issue which they
raised
suo
motu (this issue is distilled
from ground 3 of the grounds of Appeal)."
The respondent in its brief
adopted the issues for determination as formulated by the appellant's
counsel in his appellant's brief.
Let me start by examining the
case of evidence as laid before the trial court by the prosecution. It was
alleged that a group of persons including the appellant had stated that
Abdullahi Alhaji Umaru
(now deceased) had made certain remarks which were insulting to Prophet
Muhammed (S.A.W) and that the deceased ought to
be killed for making such remarks. The deceased was killed and the incident
was reported to the police on 14-7-99.
The appellant and five other persons were arrested for killing the
deceased. The evidence of P.W. 5 on the manner Alhaji
Abdullar Umaru was killed is particularly
eye-opening - At page 51 of the record he testified thus.
"What I know is that on
14/7/99 I was at my sleeping place at Kardi when
one Mr. Bello Dan Nana woke me up and asked me whether I was aware of what
was happening and I told him that I didn't know. He told me that somebody
was accused of insulting the Prophet Mohammed (SAW) and asked whether I will
go to the place where he was being held. I took my catapult and started
going to the scene along with
As I observed earlier, the
appellant elected not to testify at the trial. He called no witness but his
statement under caution to the Police was tendered in evidence as exhibits J
and J 1. In the Exhibit J l (which is the translation of exhibit J from
Hausa to English), the appellant had said:
"After official word of
caution 1 of the above name and address voluntarily wish to state as follows
on 14th July 1999 between the hours of 0300hr I was together with
one Abdullahi Sallah
and Usman Kaza from
there Usman Kaza
told me that did I know what is happening. Then I asked him what is going
on? As (sic) result of that Usman
Kaza told me that somebody by name
Abdullahi Alh.
Umaru (deceased) he insulted Prophet Mohammed
'S.A.W.' after Usman Kaza
told me this. Myself and
Abdullahi Sallah and
Usman Kaza we left from
Kardi that is our Village to
Recorded
by Det. Shehu Mohammed."
Sign 15/07/99"
(This is as it was in the record)
It is apparent from Exhibit J
l above that the appellant only admitted that he read a quotation from the
Holy Quran before the deceased was killed.
He did not admit that he killed the deceased. P.W.5 however testified
that, it was the appellant who pronounced the death sentence on the
deceased. Further, the 3rd, 4th, 5th and 6th
accused persons who were charged with the appellant in their written
statements to the police under caution materially implicated the appellant.
The statements of the 3rd, 4th,
5th and 6th
accused persons were as given in evidence by P.W. 4 served on the appellant.
In Exhibit E 3, the 3rd
accused said:
"I of the above given name and
address wish to add here that, when Abdullahi
Alh. Umaru was
caught, immediately Musa Yaro finished saying
that whoever abused Prophet shall be killed, I suddenly used the cutlass
which I collected from Musa Yaro when we were
checking for Abdullahi. And immediately I
finished matcheting the deceased, I returned
back the cutlass to Musa's house and gave it to his son
Nasiru Musa to keep it for his father. That's all."
In a part of his statement
Exhibit F l, the 4th accused said:
"And when we went to the
Village Head, I was in possession of torchlight, Musa
Yaro was holding an iron like stick and Usman
Kaza was also holding a
torchlight. When we informed the Village Head all that is happening
that someone abused Prophet Mohammed, and also the judgment which supposed
to pass to such person, according to Islamic teaching, the village Head did
not made any comment, and we left him and went to where
Abdullahi Alh. Umaru
and the other people are. When we reached to their place, Musa told them all
that we told the Village head, and he repeated that, it is written whoever
abused Prophet Mohammed, that person shall be killed.
Then I heard a sound of
hitting. But I cannot say precisely who hitted
(sic) him, but I saw when Abdullahi fell down,
and also I saw when Dan Shalla used the knife
that was in his possession and slaughtered Abdullahi
Alh.
Umaru, and I was standing watching,
but I did not touch Abdullahi, then we all
dispersed. In conclusion, this case of Culpable Homicide was done with him.
Signed: RTI of
Abdullahi Ada
15/7/99"
Similarly, in a portion of his
statement Exhibit G 1, the 5th accused said:
"And from there, I hear
someone saying that Abdullahi
Alh. Umaru who
abused the Prophet had been arrested at Kardi,
then I quickly went back to
Kardi and met Abdullahi who was together
with Adamu Aljani,
Kalli Odita and
others whom I was not able to know them. Then we later sent the following:
Musa Yaro, Usman
Kaza and Abdullahi
Ada to the Village Head of
Kardi to know what is happening in his Village. As they returns (sic)
back from the Village Head's House, Musa Yaro
made some Quotation in Risalah which means that,
who ever abused Prophet Mohammed shall be killed, then people started
beating Abdullahi Alh.
Umaru, and Mohammadu
Sani matcheted him
and he fell down, then I removed the knife that was in my possession with my
right hand and slaughtered him 'deceased' just along
And finally in a portion of
Exhibit H 1, the 6th accused said:
"I have decided to state that,
on Wednesday 14/07/99 at about 2200hrs, I was sleeping at
Majelisa area of Kardi,
then one Musa Yaro came and met me with a
history that someone at Randali abused the Holy
Prophet and people are there looking for him. Then I myself, Musa
Yaro and Mohammed Sani
both went to Randali to find out whether the
incident was true. Then we met one Garba
Soja who later directed us to
Shugaban Samari to
confirm from him, and I don't know him, then Musa Yaro
asked him whether it is true that someone abused Prophet Mohammed, then the
man was about to repeat the same kind of insult that was uttered, but we
told him not to repeat but to assure us, then he said actually the incident
was true and that, the person told him to go and tell Prophet Mohammed. And
he that abused the Prophet was Abdullahi
Alh. Umaru
Randali, and that has ran to
When Musa
Yaro passed judgment, Mohammed
Sani matcheted him
and Usman Kaza also
matcheted him with the same cutlass.
Then Abdullah fell down, and Mohammed Dan Shalla
used his knife and slaughtered him. Then we all dispersed. That's all my
statement."
It is manifest in the
statements of the 3rd, 4th, 5th and 6th
accused persons and the evidence of P.W.5 that it was the appellant who
encouraged all the other accused persons to kill the deceased by rehearsing
to them extracts from the Holy Quran to the effect that whoever insulted the
Holy Prophet Mohammed [S.A.W.] deserved to be killed.
The case made against the
apparent boils down to this: The appellant and the 5 accused persons charged
along with him had heard from some sources that the deceased had somewhere
in their village made some statements or comments which were considered
insulting to Prophet Mohammed (S.A.W.).
The exact comments or remarks said to have been made by the deceased
were not stated or given in evidence. The appellant read to the other
accused persons a portion of the Holy Quaran
where the death penalty is prescribed for any one who insulted Prophet
Mohammed (S.A.W) in the manner the deceased was said to have done. The
appellant and the other accused person thus accepted that they had the duty
to put the deceased to death in effectuating what is written in the Holy
Quran. They accordingly slaughtered the deceased by slicing his throat.
The trial judge in his
judgment at page 66 to 67 of the record in explaining the role played by the
appellant said:
"The allegation against the 1st
accused is that he was the one who went round at Kardi
informing others that the Prophet was insulted at
Randali. He also took part in going to Randali
for investigation. He also took part in searching and arresting the deceased
at Kardi. He took part in going to the house of
the village Head to inform him what was going on and the decision to ill the
deceased. He was the person who read from the Risala
thereby authorizing the killing of the deceased. As a result the deceased
was killed. This is supported by the evidence of PWS’ 2, 5, 6 and the
voluntary statement of the accused as in Exhibit J. This is a conclusive
evidence, it is unchallenged and uncontradicted
sufficient in prove of the charge of Criminal Conspiracy against the 1st
accused person."
And at pages 68 - 69 of the
record, the trial judge said:
"From the above, it is evident
that there is direct, evidence of conspiracy against all the accused persons
as in their voluntary statements and the testimony of PW2 who told the Court
how the accused persons confronted him and even threatened to kill him place
(sic) of the deceased at the earliest stage. Furthermore the circumstances
of this case are inferable to the only conclusion that the accused persons
conspired to kill the deceased. In the case of Ono
Chie v. The Republic (1966) 1 All N.L.R. 86 it was held
that the proof of conspiracy can even be inferred from the circumstances of
a case.
Furthermore, it should be made
clear that once the Prosecution succeed in proving the existence of
conspiracy, as in this case at hand, evidence admissible against one
Conspirator is also admissible against the other. See the cases of
Oyediran v. The
Republic (1967) NWLR 122;
Thus in the present case the
only inference one can draw from the testimony of PWs’
2, 5 and 6 and the voluntary statements of the accused persons in Exhibits
E, F, G, H, J and K is that the 1st, 2nd, 3rd,
4th, 5th and 6th accused persons conspired
and killed Abdullah Alh.
Umaru.
I shall then consider the
charge of abatement preferred against the 1st, 2nd, 4th
and 6th accused persons.
The evidence in this respect
against the 1st accused person is that after the deceased was
arrested and detained at the outskirts of Kardi
near the burial ground, he went along with the 2nd and 4th
accused persons to the house of the Village Head to inform him about
happenings and on their return to the scene of crime, he was the person who
read from the Risala thereby authorizing the
killing of the deceased. This fact is contained in the testimony of PWS 2, 5
and the voluntary statement of the accused as in Exhibit J. I am therefore
satisfied that the act of the accused facilitate the killing of the
deceased."
And finally at pages 73 - 75
of the record, the trial judge conclude
"I observed that the 1st,
2nd and 4th accused persons were not shown to have
used any physical assault against the deceased but there is unchallenged and
uncontradicted evidence as I already found under
the charge of Criminal Conspiracy that the accused persons were joint
actors. In such a situation the law is that it is same as if each of them
had done the act directly leading to the death of Abdullah
Alh.
Umaru individually. Each of them is
not only liable for his own acts but also for the
sum of the acts of his fellow conspirators in furtherance of their common
intention; actual presence together with their conduct means participation
in the offence. The accused persons were present at the scene not as mere on
lookers but with the purpose of ensuring that Abdullah
Alh. Umaru was killed. See the cases
of Nyam
v. The State (1964) 1 AUNLR 361
and Buje
v. The State (1991) 4 NWLR (Part 185) page 287 at
298-304.
I am therefore satisfied that
the 1st, 2nd and 4th accused persons were
equally guilty under Section 22(a) of
the Penal Code. I found that the act of accused persons was done with
the intention of causing the death of the deceased.
It is worthy to note that the
backbone of this case is the testimony of PWs’
2, 3, 5 and 6. Exhibit D and the confessional and
voluntary statements of the accused persons in Exhibits E, F, G, H, J and K.
Each one of the accused persons admitted taking part and remaining at the
scene where Abdullah Alh.
Umaru was killed in a brutal manner. Each of them narrated fully the
role he played. The 3rd accused admitted
strucking the deceased with a matchet on
the neck, the 5th accused admitted slaughtering the deceased with
a knife, the 6th accused admitted holding and pulling the
deceased to the last destination, the 1st accused admitted giving
the authority to kill the deceased while the 2nd and 4th
accuseds (sic) admitted going up and down
to ensure that the deceased was punished. I have carefully examined these
statements and found that they are at all material times in corroboration of
the evidence of the Prosecution witnesses on the account of the death of
Abdullah Alh.
Umaru. I noted
that the statements were duly endorsed by a Superior Police Officer and were
tendered without objection. I found the statement of each of the accused
persons positive, direct voluntary and consistent. From the evidence adduced
the accused persons had every opportunity to commit the offence.
In Kanu v.
The State (1952) 14 WACA 30,32,
Combey J. said:-
'A voluntary confession of
guilt, if it be fully consistent and probable, is justly regarded as
evidence of the high test and most satisfactory whenever there is
independent proof that a criminal act has been committed by someone.'
In the case at hand there is
evidence that Abdullah Umaru was brutally killed
and there is the confession of the accused persons to that effect.
In
Philip Ekpenyong v.
The State (1991) 6 NWLR (Part 200) page 683, 704
the Court of Appeal
held:-
'A person may be convicted on
his own confession alone, there being no law against it. The law is that if
a man makes a free and voluntary confession which is direct and positive and
is properly proved, the Court may if it thinks fit, convict him of any crime
upon it.......once a statement complies with the law and the rules governing
the method for taking it and it is tendered and not objected to by the
defence whereby it was admitted as an Exhibit, then it is a good evidence
and no amount of retraction will vitiate its admission as a voluntary
statement.'
I am satisfied that the
confessional statements of the accused persons were voluntary, free, direct,
positive, properly recorded, tendered and admitted in evidence. I see no
reason to decline acting on them."
Now, in the appeal to the
court below, the accused persons in the trial court, of whom the appellant
was one, formulated only one issue for determination and that issue reads:
"Did the appellants suffer any
miscarriage of justice when the court below refused to consider the defences
available to the appellants (sic) on the record before convicting the
appellant as charged."
Could it now be said that the
court below was in error to have considered whether or not on the evidence
available before the trial court the defences of provocation or
justification were available to the appellant as contended before us by
appellant's counsel?
In attending to this issue, it
is apposite to relate the submission by appellant's counsel before us to his
submission before the court below. At page 12 of appellant's brief before
us, counsel argued thus:
“4:23
We submit also that it is not in doubt with due respect to the
learned Justices of the Court of Appeal, that the lone issue raised by the
Appellant counsel before them was not considered at all, rather the new
issue raised suo
motu as to whether the defences of justifications and provocation
enure in favour of the Appellant was the basis
upon which the Appellant appeal was eventually dismissed.
4:24
We submit that it is the law that where
the court 14 raise an issue suo
muto, it ought to call on the parties to
address it on such issue.
We refer to:
Badmus
v. Abegunde (1999) 71 LRCN Page 2912;
Oshodi v. Eyifunmi
(2000) 80 LRCN page 2877
4:25
We further submit that because the learned Justices of the Court of
Appeal did not call on the parties to address on this new issue raised by
the court suo
motu, as seen above and the failure to consider the lone issue as
raised by the Appellant counsel in his brief of argument before the Court of
Appeal, it is tantamount to breaching the fundamental right of the Appellant
to fair hearing as guaranteed under the Constitution of the Federal Republic
of Nigeria by virtue of section 36 of
the 1999 Constitution.
4:26
We accordingly urge my lords to resolve issue Number 2 (two) in our
favour also, especially the Appellant who is now prosecuting his appeal with
out consolidation of the same with any other Appellant."
In the argument of counsel for
the appellant before the court below, he submitted thus:
"In the court below, there is
abundant evidence on the record showing that the Appellant was involved in
the death of the deceased and that the deceased was so killed as
a retaliation for allegedly insulting Holy
Prophet Mohammed. In this respect, reference must be made to the voluntary
statement of the Appellant as contained in pages 26-31 of the record. The
said voluntary statements of the Appellant both in Hausa Language and its
English translation were admitted in Evidence as Exhibits J and J l
respectively - See page 53 of the record. In addition, the evidence of PW2
at pages 42-44, the evidence of PW5 at pages 51 and 52 and the evidence of
PW6 at page 52 are all to the effect that the Appellant was involved in the
death of the deceased because of the allegation that the deceased insulted
Holy Prophet Mohammed.
It is submitted that as per
the record before the trial court, the Appellant is entitled to a
consideration of the defence of justification by law as provided for in
section 45 of the penal code as well as the defence of provocation as
provided for in section 222(1) of the
penal code.
In Exhibits J and J l, it is
shown that the Appellant is a Moslem by religion. Therefore, for the
deceased to have insulted the Prophet as alleged by the Appellant would
inevitably invite a consideration of these defences in favour of the
Appellant before a verdict as to the guilt or otherwise of the Appellant is
reached. In considering whether an act or speech is capable of provoking a
person to commit the office of murder or homicide, the
Accused's background and station in life should be taken into account
- See Akalezi v.
The State [1993] 2 NWLR (Pt.273) page 1 at 14;
Ekpenyong v. The State [1993] 5 NWLR
(Pt.295) page 513 at 522 and
Ubani v. The State [2001] FWLR (Pt.44)
page .
483 at 490."
It was in response to the
argument of appellant's counsel that the court below considered whether or
not the defences of provocation and justification which the trial court had
not considered were available to the appellant.
The court below at pages 118 - 120 of the record observed:
"I will begin by stating or
rather restating the settled principle of law on the topic raised under it
to the effect that while the trial court is under an obligation or has duty
to consider all the defences possible or available to the accused
(appellants) on the facts even though they appear to be stupid improbable or
unfounded, and whether or not they were specifically raised by the
appellant, it (i.e. the trial court) cannot give him (the said appellant)
the benefit of defences which were not supported or reflected by the
evidence on record -See Abara v.
The State (supra) at p.117
of the report;
Ekpenyong v. The State (supra) at p. 52 5 of the report;
Udofia v. D.P.P. (1955) 15 WACA 73;
Sanusi v. State Digest of Supreme Court cases
vol. 10 p. 348; Nwuzoke v.
The State (1988) 1 NWLR (Pt. 72) 529; R. V. Bio (1945) 11 WACA 46 at 48;
Asanya v. State (1991) 3 NWLR (Pt. 180) 442 at
451 and
Ogunleye v. The State supra).
As a corollary to the above rule or principle, the trial court is only under
an obligation or duty to consider such defence(s) open to an accused person
only as disclosed or supported by the evidence on the printed record. Thus
in Ekpenyong v. State (supra) it
was held that a court of law will not presume or speculate on the existence
of facts not placed before it and that accused person is usually 16 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 as done by the appellants in the instance
case. Moreover the defence of provocation as asserted by the appellants in
the present case like all other defences cannot hang in the air without
supporting evidence. Nor can it be built on scanty foundations. In order to
establish it, it is the duty of the accused person to adduce credible and
positive evidence to support the alleged provocation. Where the accused
person fails to adduce evidence in support of his defence as in the present
case, the trial court has to rely on the evidence before it as adduced by
the prosecution. It must be noted that in the present case, before the trial
court instead of the learned counsel for the appellants to call evidence in
support of their two defences as canvassed in their brief of arguments, or
at least to pinpoint the elements constituting such defences from the
evidence adduced by the prosecution upon which they relied, he failed to do
so and such failure in my humble view shows that he did not perform his
proper role or function in the defence of his clients (i.e. the appellants).
Even if he was giving the appellants a free legal aid or service he is
required to do better than merely mentioning tacitly and generally about the
defences available to the said appellants in his summing up (or final
address - See pages 60 and 61 of the record of proceedings. I therefore
agree with and accept the submission in the respondents brief on the point
that the defences available or open to the accused person in a criminal
trial which the trial court is bound to consider must be based or founded on
material pieces of evidence from the record rather than on their being
formulated in the counsels address or in the brief of arguments and in a
very shallow manner making them to appear as an after thought as done by the
appellants in the instant case - See Oladipupo
v. The State (supra); Asanya
v. The State (1991)3 NWLR (pt. 180) 422 at 465.
Ekpenyong v. State (supra) at p. 52 5 of the
report "
The above extract of the
judgment of the court below clearly demonstrates that it was the view of the
court below that the evidence before the trial court did not necessitate a
consideration of the defences of provocations and justifications.
I am of the firm view that the court below was right in its views.
There was plainly no material before the trial court to
enable it proceed to consider the defences of provocation or
justification. The appellant never called any evidence to show the exact
words or acts which the deceased had uttered or done as to provoke the
appellant and other accused persons into the killing him. Whether or not the
appellant and the other accused persons were provoked into the act of taking
the life of the deceased was a matter to be determined by a consideration of
the nature of the annoyance given to the appellant and the others. This
however could not be done without a knowledge of
what the deceased had said or done.
This was what the court below stressed in its judgment at page 124 -
125 of the record where it said:
"In all their voluntary and
cautioned statements to the Police (which in my view amounts to a voluntary
confession) in Exhibits E-K, the appellants confessed to the killing or
causing the death of the deceased through their joint (or mob) act on the
fateful day because they heard the rumour (which was not even confirmed)
that he had insulted or blasphemed the Holy Prophet (SAW). The actual words
of insult allegedly uttered by the deceased were not known. The appellants
along with others (now at large) however constituted themselves into a
fanatical Islamic vanguard or a religious vigilante groups and upon hearing
the rumour took it upon themselves to go in
search of the deceased who was alleged to have insulted the Holy Prophet
(SAW). Even before seeing or hearing him, they had already passed a sentence
or judgment against him that he must be killed for his offence under
Sharia as recommended in both the Quran and
Risala. They even made a threat to kill his
master PW2 by name Aliyu Magga who they believed
was hiding the alleged culprit in his place if he was not found. When they
went to the Village Head of Randali to whom they
reported the matter and who did not approve their plan to kill the deceased
they still proceeded in their crusade to execute their planned or
premeditated murder of the said deceased. Even when they were advised by one
Ustaz Mamman that it
was not their responsibility but that of the court or judge to punish the
deceased as a person who insulted the Holy Prophet they shunned that advise
and described the Ustaz as a non Muslim himself
and went on with their plan to kill the deceased."
It is obvious that the
appellants 2nd issue is misconceived as it was appellant's
counsel himself who in his brief argued the defences of provocation and
justification to which the court below reacted in its judgment.
It is therefore, wrong to argue that the
court below considered these defences without granting the appellant a
hearing on the point.
I have given a very anxious
consideration to the two issues raised by the appellant for determination in
this appeal. Both must be
decided against the appellant. The evidence against the appellant went
unchallenged. More than that however is the admission by the appellant that
he was the one who read to the other accused persons the portion of the Holy
Quran that any one who insulted the Holy Prophet Mohammed (S.A.W.) ought to
be killed without at the same time stating how and in what manner the
deceased had insulted the Holy Prophet Mohammed (S.A.W.).
In any case, even if it is
assumed that indeed the deceased had in some way committed the act ascribed
to him, was it open to the appellant and the other accused persons to
constitute themselves into a court of law pronouncing a sentence of death on
another citizen?
The facts of this case are
rather chilling and leave one wondering why the appellant and others with
him committed this dastardly act. It cannot escape notice that the victim of
their reckless and irresponsible behaviour is another Moslem, an Alhaji. I
am greatly pained by this occurrence.
In the final conclusion, this
appeal fails and it is dismissed. I affirm the judgment of the two courts
below.
Judgment delivered by
Sylvester Umaru Onu.
J.S.C.
This is an appeal against the
judgment of the Court of Appeal, Kaduna Judicial Division, which on 10th
day of December, 2003 dismissed the appellant's appeal by affirming the
conviction and death sentence passed on him by the High Court of Justice,
Birnin Kebbi (per
Ambursa, J.) dated 24th day of
February, 2000.
The facts of this case have
been so admirably set out in the leading judgment of my learned brother just
delivered, that I do not deem it necessary to review same herein.
The issues formulated as
arising for our determination in the appeal herein which clearly overlap the
Respondent's two issues, are:
1.
Whether the learned justices of the Court of Appeal ought to confirm
the conviction and sentences of the trial court.
(Grounds 1 and 2 of the Grounds of Appeal.)
2.
Whether the Learned justices of the Court of Appeal were right in
raising the issue of defences of justification and provocation without
affording the parties the right to be heard on the said issue they raised
suo motu
(Ground 3 of the grounds of Appeal).
I will now consider issues 1
and 2 briefly hereunder by adopting the Respondent's issues as guideline
thus:
Issue 1
Whether
the learned justices of the Court of Appeal ought to confirm the conviction
and sentences of the trial court.
It has been submitted on
behalf of the Appellant that the learned justices of the court below ought
not to have confirm the conviction and sentence of the trial court which
they did.
It is also submitted on behalf
of the Appellant that his (Appellant's) statement at pages 29 - 31 of the
record cannot qualify as a confessional statement, adding that Appellant had
contended that he did not kill the deceased and that the reading of the Holy
Qur'an he did was not the cause of the death of the deceased.
It is the contention on behalf
of the Respondent that the statement of the Appellant at pages 29-31 of the
record is a confessional statement vide Section 27 of the Evidence Act which
provides:
"A confession is
an admission made at any time by a person charged with a crime, stating or
suggesting the inference that he committed that crime” (Underlining
is for emphasis).
The Appellant after hearing
the rumour that the deceased uttered insultive
words against the Holy Prophet from Usman
Kaza, he went for confirmation where he stated
thus: -
"....After
Usman Kaza told me
this, myself and Abdullahi
Sallah and Usman
Kaza we left from Kandi that is our
village to Randali village where the incident
happened to confirm if it is true......"
Continuing, Appellant said:
".....When
we reached the house of Abdullahi
Alh.
Umaru (the deceased) who insulted the Prophet
Mohammed, from there Mamman
Dambu used his touch-light (sic) in the house of
Abdullahi Alh.
Umaru. Then
from there we do not see him.......” See pages 29 - 30 of the record.
The Appellant, it was
contended, declined to accept the advice of the village head when he
reported the matter to him and suggested bringing the deceased to him when
arrested; adding that after the arrest of the deceased, he assigned some one
to get hold of him for him. However, the Appellant
adviced that before they killed the deceased they should inform the
village Head, a suggestion to which they all agreed. He added that when he
brought the suggestion, he along with Abdullahi
Adah and one Usman
Kaza, went to the village head to explain to him
but who in turn did not say anything in reply.
Where upon, the Appellant
passed the death penalty on the deceased and it was thereafter that the
deceased was killed. It was then submitted that the only inference to be
drawn from Exhibit J and J1 is that Appellant committed the offence on the
authorities of Section 7 of the
Evidence Act and the case of Ubierho
v. The State
(2005) 1 NCC 146.
It was further submitted that
assuming that Exhibits J and J1 as well as their contents do not amount to a
confession, there is enough evidence in the record to convict the Appellant.
Besides, neither the Appellant nor his counsel has complained of failure to
adduce evidence. Thus, the provision of
Section 45 of the Penal Code
cannot avail the Appellant as he cannot establish any of the circumstances
under which he will enjoy the protection thereof.
That section provides:
"Nothing is an offence which
is done by any person who is justified by law or by reason of a mistake of
fact and not by reason of mistake of law, in good faith believes
himself to be justified by law in doing it."
Issue No.2
This issue asks whether the
learned Justices of the Court of Appeal were right in raising the issue of
justification and provocation without affording the parties the right to be
heard on the said issue raised suo
motu.
I am in agreement with
Respondent's submission that the lone issue before the lower court which
reads:
"Did the Appellant suffer any
miscarriage of justice when the court below refused to consider the several
defences available to the Appellant on the record before convicting the
Appellant as charged?"
Is very clear that it related
to all the defences available from the record and the Appellant in his Brief
of Argument at pages 85 - 90 of the record, canvassed all its argument on
the defences of justification and provocation and also on the same in
Respondent's Brief of Argument at pages 94 -99 of the record.
I entirely agree with the
Respondent's submission that the court below did not raise any issue
suo motu
as argued by the Appellant.
Should this court overrule the
above submission by the Respondent, it is submitted on its behalf that the
court below has power to evaluate the evidence in the record and do what it
considers just in the circumstances vide
Order 1 Rule 19 (4) of the Court of
Appeal Rules, 2002 which reads:
"The powers of the court under
the foregoing provisions of this rule may be exercised notwithstanding that
no notice of appeal or respondents notice has been given in respect of any
particular part of the decision of the court below or by any particular
party to the proceedings in the court, or that any ground for allowing the
appeal or for affirming or varying the decision of that court is not
specified in such a notice and the court may make any order, on such terms
as the court thinks just to ensure the determination on the merits of the
real question in controversy between the parties."
I agree with the Respondent
that beside the above powers, the court below has power to make any finding
which ought to be arrived at by the trial court based upon the evidence
available in the record. See Order 1
Rule 19(3) of the Court of Appeal Rules (ibid).
For these reasons and the more
comprehensive ones contained in the leading judgment of my learned brother
Oguntade, J.S.C.
I too, dismiss this appeal as lacking in merit.
Judgment delivered by
Aloma
Mariam Mukhtar.
J.S.C.
I have read in advance the
lead judgment delivered by my learned brother Oguntade,
J.S.C., and I am in complete agreement with the reasoning and conclusion
reached therein, that the appeal lacks merit and deserves to be dismissed in
its entirety. I abide by the consequential order made in the lead judgment.
Judgment delivered by
Walter Samuel Nkanu
Onnoghen. J.S.C.
I have had the opportunity of
reading in draft the lead judgment of my learned brother
Oguntade,
J.S.C. just delivered. I agree with his reasoning and
conclusion that the appeal has no merit and should be dismissed.
I therefore dismiss the
appeal.
Judgment delivered by
Ibrahim Tanko Mohammed.
J.S.C.
My learned brother
Oguntade,
J.S.C. graciously
permitted me to read in draft the judgment just delivered. I am in agreement
with his reasoning and conclusions that the appeal fails. I too dismiss it
and affirm the judgment of the two Courts below.
Counsel
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