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In The Supreme Court of
On Friday, the 5th day of October
2007
Before Their Lordships
S.C. 245/2004
Between
And
Judgement of the Court
Delivered by
George Adesola
Oguntade
J.S.C.
The appellant, Abubalar
Dan Shalla, was the fifth of six accused person
who were brought before the High Court of Kebbi
State, Birnin Kebbi
on a three-count charge of criminal conspiracy, abatement and culpable
homicide contrary to Sections 97, 85
and 221 (a) of the Penal Code respectively. On 18/1/2000, each of the
appellant and the five other accused persons charged with him pleaded not
guilty to each of the three 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 his judgment found
the appellant and the five others accused persons charged with him guilty of
the offence of culpable homicide and each was sentenced to death under
Section 221 (a) of the Penal Code.
The appellant brought an appeal against the judgment of the trial court
before the Court of Appeal,
The appellant has come before
this court on a final appeal. The appellant raised three grounds of appeal
out of which two issues were formulated for determination.
The said issues are:
“1.
Whether the learned justices of the Court of Appeal ought to confirm
the conviction and sentence of the appellant by the trial court.
This issue is distilled from 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 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 the appellant's brief.
Let me start by examining the
case of the prosecution against the appellant as put before the trial court.
It was alleged that a group of persons of whom the appellant was one had
stated that one Abdullar
Alhaji Umaru (now deceased) made certain
remarks which were insulting to Prophet Muhammed
(S.A.W.) and that the deceased ought to be killed as prescribed in the Holy
Quran for making the alleged remarks. They went in search of the deceased,
laid their hands on him and slaughtered him with a knife. 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 as to the manner in
which Abdullahi Alhaji
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 G
and Gl. The statement of the appellant exhibit Gl
reads thus:
"On Wednesday 14/7/99 at about
2000hrs after Isha'i prayers, I sat down at the frontage of Mosque at
Faransi Area of Kardi then one Musa
Yaro of Kardi came and met me with an
information that, someone abused Prophet Mohammed at
Randali village which he is not sure, but he will try to find out at
Randali. On hearing that, I stood up and went
inside my house and carried knife along with me, and I moved to
Randali. On reaching there, I went straight to
one Shugaban Samari
for conformation about the abusing of Prophet Mohammed and he assured me
that, the issue is true, and that there were witnesses to testify but he did
not tell me the kind of abuse. And from there, I heard someone saying, that
Abdullahi Alh. Umaru
who abused the Prophet had been arrested at Kardi, and 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
then. 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 returned 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,
and then people started beating Abdullahi Alh.
Urnaru, and Mohammadu
Sani machete 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
It is apparent that the
evidence of P.W.5 as to how the deceased was killed and in particular as to
the fact that it was the appellant who actually slaughtered the deceased was
unchallenged. More
than that however, the appellant in exhibit Gl
narrated how the deceased was apprehended, his alleged offence and the
manner the appellant himself killed the deceased.
The case against the appellant
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 remarks which were considered insulting to Prophet
Mohammed (S.A.W.). The text of the remarks or the exact
words employed by the deceased were not given in evidence. The 1st
accused had read to the other accused persons including the appellant a
passage in the Holy Quran where it was said to be prescribed that any one
who insulted Prophet Mohammed (S.A.W.) in the manner the deceased was said
to have done deserved to be killed. As adherents to the teaching in the Holy
Quran, the appellant and the other accused persons accepted that they had a
duty to kill the deceased in effectuating the contents of the Holy Quran.
They accordingly slaughtered the deceased by slicing his throat.
In the manner the appellant
and the other accused persons behaved during their trial by not calling
evidence to deny the allegations against them; and by in fact admitting that
they killed the deceased, there is no doubt that they laboured under a
notion that they had a duty under Islamic injunction to kill the deceased.
At pages 74 - 76 of the record
of proceedings, the trial judge in his judgment said inter alia:
"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 striking the deceased with a
machete 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 accused 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 Phillip Ekpenyong v The
State (1991) 6 NWLR (Pt.200) pages 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
.............
Therefore in this particular
case the onus is on the accused
persons to prove that they have a right in the Quran or Risala to kill
Abdullah Alh.
Umaru. Further
more the accused persons did not raise or suggest any defence, their
voluntary statements did not suggest any defence and there is no doubt about
this. The evidence adduced by the Prosecution remained uncontradicted and
unchallenged, positive and direct. In
Nasarmi v.
The State (1969) F.S.C. I also observed that
the witnesses who testified for the Prosecution gave direct evidence in
support of the case for Prosecution and were found to be witnesses of truth.
I accept their testimony."
In affirming the judgment of
the trial court, the court below at pages 118-120 of the record reasoned
thus:
"What is in dispute and on the
crucial point stemming from the appellants submissions under the lone issue
is the alleged failure of the learned trial judge to consider in his
judgment all the possible or available defences open to the appellants.
Amongst these possible or available defences, as suggested in the appellants
brief, are the defences of justifications and
provocation. I have given due and careful consideration to the
submissions in the two briefs on the issue. In its resolution, 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. 525 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) 52.9; 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 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)."
Was the court below in error
to have affirmed the judgment of the trial court in the circumstances
narrated above? I now examine the issues for determination formulated by the
appellant.
Under the first issue, the
argument of counsel is that, as the trial court failed to consider the
defences of justification and provocation, which were available to the
appellant on the evidence before the trial court, it was the duty of the
court below to have set aside the conviction of the appellant and the other
accused persons. Counsel referred to Williams v. State [1992] 8 NWLR
(Pt.261) 515 at 522; Araba v. State [1981] 2 NCR
110 at 125; R vs. Fadina [1958] SCNLR 250;
Udofia v. The State [1984]
12 SC 139; Ojo v. The
State [1972] 12 SC 147; Ogunleye v. The
State [1991] 3 NWLR (Part
177) 1
at 3 and
Opeyemi v.
The State [1985] 2 NWLR (Pt.5) 101.
It was finally argued under
issue 1 that the court below should have ordered a retrial.
The appellant's counsel under
the second issue for determination argued that the court below eventually
went on to consider the defences of justification and provocation but that
when it did, it had not allowed the appellant an opportunity to address it
on the matter. It was argued that the court below
suo motu raised the defences
of justification and provocation and proceeded to decide the appeal on that
basis without affording the appellant a hearing. Counsel relied on
Badmus v.
Abegunde [1999] 71LRCN 2912: Oshodi v.
Eyifunmi [2000] 80 LRCN 2877. Counsel
finally urged the court to allow the appeal on the ground that the approach
of the court below amounted to a denial to the appellant of his right to
fair hearing as enshrined in section
36 of the 1999 Constitution of
In reacting to appellant's
first issue; it is important to bear in mind that, at the proceedings before
the trial court, there was not a shred of evidence as to what the deceased
had done or what words he uttered which was considered by the appellant and
other accused persons as constituting an insult to Prophet Mohammed
(S.A.W.).
Now in Takida v. State [1969] 1 All N.L.R. 270 at 273-274,
this Court per Coker C.J.F.
said:
"No court is bound to
speculate on what possible defences can be open to a person accused before
it but where in a trial for homicide, the evidence suggests a line of
defence, it is the duty of the court to consider and deal with that defence
whether or not the accused or his counsel expressly raised that defence by
the legal terminology ascribed to it by lawyers."
See also
Williams v. The State [1992] 8
NWLR (Pt.261) 515 at 522; Udofia v.
The State [1984] 12 SC 139
and Oyo v.
The State [1972] 12 S.C. 141. That approach
however, does not enable the court to consider fanciful or imaginary
defences which could not possibly be available to an accused person on the
evidence before the court. See
Abara v. The State [1981] 2
NCR 110 at 125.
Ekpenyong v. The State [1993]
5 NWLR (Pt-295) 513 at 522; Asanya v. State
[1991] 3 NWLR (Pt. 180) 442 at 451. In the circumstances of this
case, since the trial court was not told the words alleged to have been
uttered by the deceased or the act he did which were contrary to the
injunctions of Islam as contained in the Holy Quran, and which justifies his
killing, the trial court could not be criticized for not engaging in a
futile speculation. The court below was therefore not in any error to have
held that the defences of justification and provocation were not available
to the appellant before the trial court.
The second issue for
determination is inexorably linked with the first issue. The court below
having held that the defences of justification and provocation were not
available to the appellant still went on to consider the applicability of
those defences in the circumstances of this case. It was this occurrence
that the appellant's counsel not relied upon under the second issue as
denying the appellant a right to fair hearing on the ground that the
appellant's counsel was not first heard on the point. Ordinarily, it would
be unnecessary to consider the second issue since I have made the point that
it was not even necessary to consider the defences since the evidence did
not directly or indirectly raise them. I only consider the 2nd
issue ex abundati
cautello.
At pages 12 - 13 of the
appellant's brief, counsel before us argued thus:
"4:17
With due respect to the Learned Justices of the Court of Appeal, we
submit that from their pronouncement above, they have conceded that the
learned trial judge ought to but refused to consider the defences of
justifications and provocation as raised by the Appellant.
4:18
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
endure in favour of the Appellant was the basis upon which the Appellant
appeal was eventually dismissed.
4:19
We submit that it is the law that where
the court 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
4:20
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."
Counsel has however overlooked
the fact that in the appellant's brief before the court below at pages
85-86, it was argued 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 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 18-21 of the record. The said voluntary statements of the Appellant
both in Hausa Language and its English translation were admitted in Evidence
as Exhibits G and Gl respectively - See page 49
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 (S.A.W.).
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 G and
Gl, 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;
Ekpen-yong 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.
In the course of his address
before the Court below, the learned counsel for the Appellant specifically
invited the learned trial judge to consider the defences open to the
Appellant in view of the evidence before the Court. At page 59 of the
record, the said Counsel formulated the 2nd issue for
determination before the Court below thus:-
'Has the prosecution proved
that there is no defence to the lst-6th accused
persons in respect of the charges against them?'
In elaborating on this issue
on page 60 lines 29 and 30 and on page 61, line 1, the said learned counsel
for the Appellant submitted thus:-
'On the second issue for
determination, it is our submission that it is not enough for the
prosecution to establish elements of section 221 P.C. but the prosecution
must exclude the existence of any defence to the accused persons.’”
It was to the above arguments
by appellant's counsel before it that the court below was reacting; when at
pages 124-125 of the record 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 (S.A.W.). 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 them to go in search of the deceased who was
alleged to have insulted the Holy Prophet (S.A.W.). 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.
The crucial question to ask on
the above facts confessed by the appellants themselves and supported or
corroborated by the testimonies of the prosecution witnesses (PW2, 3, 4 and
5) is whether or not the appellants were justified in killing the deceased
for his alleged insult of the Holy Prophet (SAW). This depends on or calls
for a further and second question of whether they acted in good faith. Thus
the essential element required for the defence of justification under
S.45 of the Penal Code is that
the accused must act in good faith and must exercise due inquiry on his
belief before his action can or will be justified - See the comment in the
annotated copy of the Penal Code at
page 241 thereof. In this regard although an honest and reasonable
mistake of fact may be excusable under the defence of justification, a
mistake of law is not so excusable. In any case as in the case of
witchcraft, the standard of living or the position in life of the accused
person as well as the manner of life of the community have to be considered
by the court - See Lado v.
The State [1999] 9 NWLR (Pt.619) 369 at 381; R. v.
Adamu [1944] 10 WACA 161;
Akalezi v. The State (supra) and Ekpenyong V, the State
(supra) at p. 522 of the report). Thus the standard or test for the
justification of the act of the accused person under section 45 should be an
objective one like that of the provocation. This is why I agree with the
respondent’s submission that the defence of justification sought to be
invoked or benefited from by the appellants in the present case should not
be isolated from or stand on its own but must be tied to that of the
provocation"
It is obvious that the
appellant's second issue is misconceived and amount to a distortion of the
true state of things. Appellant's counsel had himself argued the defences of
justification and provocation. The court below did not therefore need to ask
appellant's counsel to re-argue a point he had previously argued in his
brief.
I have given a very careful
consideration to the two issues raised by the appellant in this appeal. Both
must be decided against the appellant. The evidence against the appellant by
prosecution witnesses was neither challenged nor contradicted. More than
that is the admission in exhibits G and Gl by
the appellant that he actually slit the throat of the deceased.
In any case, even on the
assumption (although without any proof) that the deceased had in some way
done any thing or uttered any word which was considered insulting to the
Holy Prophet Mohammed (S.A.W.), was it open to the appellant and others with
him to constitute themselves into a court of law and pronounce the death
sentence on another citizen? Plainly, this was jungle justice at its most
primitive and callous level. The facts of this case are rather chilling and
leave one wondering why the appellant and the others with him committed this
most barbaric act. It cannot escape notice that the victim of this reckless
and irresponsible behaviour is another Moslem, an
Alhaji. I am greatly pained by the occurrence.
In the final conclusion, this
appeal fails. It is dismissed. I affirm the judgment of the two courts
below.
Judgement delivered by
Sylvester Umaru
Onu,
J.S.C.
This is an appeal against the
judgment of the Court of Appeal of the 10th day of December, 2003
that dismissed the appellant's appeal by affirming the conviction and death
sentence passed on him by the trial High Court (per
Arnbursa, J-).
It is against the said
judgment that the Appellant has filed this appeal based on three grounds of
appeal out of which two issues were submitted as arising for our
determination, to wit:
1.
Whether the learned Justices of the Court of Appeal ought to confirm
the conviction and sentences of the Appellant by the trial court. (This
issue is distilled from 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.
(This issue is distilled from ground 3 of the grounds of Appeal).
The Respondent formulated
identical issues to those identified above by the Appellants for
determination.
In my treatment of these
issues of this appeal, I wish to adopt the Appellant's two issues, thus:
Issue 1
It is submitted on behalf of
the Appellant on this issue that he is entitled to a consideration of the
defence of justification by law, as provided under
section 45 of the Penal Code, as
well as defence of provocation under
section 222(1) of the Penal Code considering the content of Exhibits G
and Gl of pages 18:20 of the record
and also in the evidence of PW5 at pages 51-52 of the record raised in the
defences of justification and provocation which ought to been considered by
the trial court.
It is further submitted on
behalf of the Appellant that failure of the trial court to consider the
defences open or available to an accused person amounts to or is tantamount
to a failure by the prosecution to prove the offence(s) alleged against the
accused person beyond reasonable doubt and also a miscarriage of justice.
It is also submitted on behalf
of the Appellant that the finding of the Court of Appeal quoted in paragraph
4.6 of Appellant's Brief of Argument as well the conduct of the court below
in carrying out the examination of the said two defences by itself at pages
124-137 as not proper and the main issue formulated before the court was not
considered.
It was also submitted that the
learned counsel for the Appellant misconceived the whole issues when he
considered the lone issue for determination before the court below which he
formulated and adopted by the Respondent at pages 86 and 94 of the record
which queried:
"Did the Appellant
suffer any miscarriage of justice
when the court below
refused to consider several
defences available to the Appellant
on the record before
convicting the Appellant as charged?”
This lone issue,
it is
contended, is wide and that the
court below is bound to look
into all the defences available in the record which was
adduced before the
trial court before it can make
such findings.
It is further submitted that
the question whether the Appellant was prejudiced by the finding of the
lower court cannot be reached without evaluating the evidence available on
the record and that what the court below did and its finding does not cause
any miscarriage of justice to the Appellant and was right and that doing so
is not raising any issue suo
motu.
Learned counsel for the
Appellant next submitted that the main issue before the lower court was
against the failure of the trial court to consider the defences of
justification and provocation which are said to be either available or
raised by the defence, and whether the court below can examine such defences
and make a finding thereof.
Now, to
the proper issues for determination.
Issue No.1
asks whether
or not the court below was right when
it, went
ahead and
evaluated evidence
with regard
to defences open or
available to the Appellant
which ought to have been done by the trial court, having regard to
Order 1 Rule 19 paragraphs 3 and 4 of
its Rules.
It is submitted that having
regard to Order 1 Rule 19
paragraphs 3 and 4 of the
Court of Appeal Rules, 2002
the Court of Appeal has power to make such findings, since it reads:
"19(3)
The court shall have to draw inferences of
fact and to give any judgment and make any order which ought to have been
given or made, and make such further or other orders as the case may
require.
(4)
The powers of the court under the foregoing provision of this rule
may be exercise notwithstanding that
no notice of appeal or respondents notice has been given in respect
of any particular part of the decision of the lower
court.................and the court may make any order on such terms as the
court thinks just, to ensure the determination on merits of the real
question in controversy between the parties.”
See the case of
Namsoh
v. State (1993) 5 NWLR (Pt.292) 129 at 143 where this
Honourable court held that where a trial court failed to consider the
defence of an accused person, an appellate court can consider such defence
with alt available evidence on the record.
In the case in hand the court
below did exactly what is required of it by this Honourable court as per the
decision in Takida v.
State
(1969) 1 All NWLR 53 and
State
v. Ajie
(2000) 3 NSCQR 53.
I am in entire agreement with
the Appellant's submission that failure of the trial court to consider the
defences available or open to an accused person is only fatal where there is
evidence in support of such defence(s) in the record of the trial court and
a court of law will not presume or speculate on the exercise of facts not
placed before it and that accused person is usually 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 decided in the case of
Ekpeyong
v. State
(1993) 5 NWLR (Pt.295) 513 at 522.
Issue No.2
This issue which relates to
Ground 3 of the Grounds of Appeal asks whether or not the court below
rightly held that the defences of justification and provocation as provided
under sections 45 and 222(1) of the
Penal Code respectively are not available to the Appellant.
I agree with the Respondent's
submission that the Appellant will be entitled to the defence of
justification after satisfying the conditions set up by
section 45 of the Penal Code
which provide:
"45.
Nothing is an offence which is done by any person who is justified by
law, or who by reason of a mistake of fact and not by reason of a mistake by
law, in good faith believes himself to be justified by law in doing it."
The Appellant will be entitled
for the defence of justification where: -
(i)
His action is justified by law;
(ii)
His action was done as a result of mistake of fact not mistake of
law; and
(iii)
He acted in good faith believing himself
to be justified by law in doing it.
As
can be gleaned from the record of proceedings of the trial court the
only evidence against the deceased is based on the rumour the Appellant
overheard or hearsay allegation that he (deceased) had insulted the Holy
Prophet in a neighbouring village Raudali of
Birnin Kebbi Local
Government Area of Kebbi State. I am in
agreement with the submission of the Respondent that there is no evidence of
any kind emanating from the Penal Code or Sharia disclosed in the record of
proceedings to show that Appellant's action is justified by law having
regard to his back ground and opinion or non-approval of his village Head
and one Ustaz Mamman who were members of the
same community, class, standard in life and live with Appellant. Moreover,
the Appellant's act of killing the deceased cannot be said to amount to a
mistake of fact in good faith as he has no authority to execute or slaughter
the deceased as he did. Thus, I agree with the Respondent that from the
evidence adduced before the trial court and available on record the
Appellant cannot be entitled to a defence of justification, because the
court cannot give the Appellant the benefit of defence which was not
reflected or supported by the evidence on the record.
See Abara
v.
The State
(1981) 2 NRC
110 at 117.
I agree with the Respondent's
submission that the Appellant will only be entitled to the defence of
provocation under section 222(1) of
the Penal Code where he established the ingredients therein. The section
reads;
"222
(1)
Culpable Homicide is not punishable with death if the offender whilst
deprived of the power of self control by grave and sudden provocation causes
the death of the person who gave the provocation or causes the death of any
other person by mistake or accident.”
The Appellant will be entitled
to the defence of provocation when he shows by evidence in the trial court
that:
(i)
The act of provocation must be grave and sudden;
(ii)
The Appellant must have lost self control actual and reasonable;
(iii)
The degree of relation by the Appellant must be proportionate to the
provocation offered.
See the case of
Ihuebeka v. The
State (2000) 5 SCNQR 186 (Vol.2).
Moreover, in the case herein
there is no evidence whatsoever in the record of proceedings to establish
that the Appellant was provoked by the deceased. What the record rather
depicts is the overhearing of the rumour from co-accused, Musa
Yaro, that the deceased insulted the Holy
Prophet and how the Appellant and the co-accused went to one
Shugaban Samari to
confirm to them that that allegation was true by setting out the insultive
words used or uttered. Although it is settled law that words alone can
constitute provocation depending on the actual words used and their effect
or what they mean to a reasonable person having a similar background with
the Appellant and in the ease in hand where the exact insultive words are
neither know or disclosed and moreover not even heard from the mouth of the
deceased, it will not be possible to determine whether the defence of
provocation is open or available to the Appellant. See the case of
Ahmed v. The
State
(1999) 7 NWLR (Pt.612) 641 at 684. Clearly, the
provocation act done or reported by one person - the co-accused {Musa
Yaro) cannot be a ground for the Appellant to
kill the deceased. See
Idemudia
v. State (1992) 7 NWLR 356. And going
by the definition of provocation as postulated in the case of
Lado
v.
State
(supra) at page 385.
It is clear that for the
defence of provocation to avail the Appellant, the act or utterance of the
deceased must be directly offered or directed against the Appellant, which
was not the case here where it was based on hearsay or rumour. There is no
direct or indirect evidence to show that the Appellant was provoked by the
deceased vide Exhibit G and Gl (the latter being
the Hausa and the English translation of the Appellant's statement at pages
18-20 thereof as well as the evidence of PW5 at page 51 of the record) which
is enough to convict the Appellant as charged. Consequently, it is manifest
that the lone issue before the lower court is clear and related to all the
defences available from the record
and the Appellant in his Brief of Argument at pages 85-90 had
canvassed all its argument on
defences of justification
and provocation and the Respondent in its Brief of Argument at pages
94-99 of the record. Thus, I am
of the view that the court
below did not raise any issue suo
motu as submitted
by the
Appellant.
For the above reasons
and those fully contained in the
leading judgment of my
learned brother Oguntade, JSC, I find no merit in this
appeal which I too
unhesitating dismiss. I affirm the
conviction and sentences of
the two courts below.
Judgement delivered by
Aloma
Mariam Mukhtar,
J.S.C.
The appellant together with
five others pleaded not guilty to the charges of criminal conspiracy
contrary to section 97 of the Penal
Code, and culpable homicide punishable with death contrary to
section 221 of the Penal Code.
The appellant was found guilty of the two offences and he was accordingly
convicted and sentenced to death. In exercise of his constitutional right
the appellant who was then the 5th accused person appealed to the
Court of Appeal. The Court of Appeal dismissed the appeal and affirmed the
conviction and sentence of the trial court. Aggrieved by the decision the
appellant appealed to this court on three grounds of appeal. Briefs of
argument were exchanged by learned counsel, and these were adopted at the
hearing of the appeal. The two issues for determination raised in the
appellant's brief of argument are:-
"1.
Whether the learned Justices of the Court of Appeal ought to confirm
the conviction and sentence of the Appellant by the trial court.
2.
Whether the learned Justices of the Court of Appeal were right in
raising the issue of defences of justifications and provocation without
affording the parties the right to be heard on the said issue raised
suo motu."
The issues raised by the
respondent are:-
"Issue No. 1
Whether or not the Court of
Appeal was right when it went ahead and evaluated evidence with regard to
defences available to the Appellant which ought to have been done by the
trial Court, having regard to Order 1
Rule 19 paragraphs 3 and 4 of its Rules..........
Issue No. 2
Whether or not the Court of
Appeal rightly held that the defences of Justification and Provocation as
provided under Sections 45 and 222
(1) of the Penal Code respectively were not available to the
Appellant......."
The argument of learned
counsel for the appellant is that the trial court did not consider the
defences which the accused may be entitled to on the evidence before it, and
in the circumstance the court below should not have confirmed the conviction
of the trial court. Particularly learned counsel placed reliance on the case
of Williams v. State 1992 8 NWLR part
261 page 515, which emphasise the need to
consider any defence available to an accused person. It is instructive to
note that in this case the appellant did not give evidence in his defence,
whereas in the former case the accused person testified in his defence.
Indeed, in the instant case,
the defence relied on by the appellant is contained in his voluntary caution
statement to the police, Exhibit "G” the relevant portion of which, reads as
follows:-
".................. I sat down
at the frontage of Mosque at Faransi Area of
Kardi then one Musa, Yaro of Kardi came and met
me with an information that, someone abused
Prophet Mohammed at
There was no defence raised by
the appellant, and so there was nothing in that direction for the trial
court to consider. As a matter
of fact, the learned trial judge in his judgment considered the voluntary
statements of the accused, and (which were most confessional) which included
Exhibit 'G', as is illustrated by the following excerpt of the judgment,
which reads thus;-
"Therefore in this particular
case the onus is on the accused
persons to prove that they have a right in the Quran or Risala to kill
Abdullah Alh.
Umaru. Further
more the accused persons did not raise or suggest any defence, their
voluntary statements did not suggest any defence, and there is no doubt
about this. The evidence adduced by the prosecution remained uncontradicted
and unchallenged, positive and direct."
So if I may ask, what defences
is the learned counsel for the appellant making heavy weather of. Then, in
spite of the absence of any defence, the appellant in his brief of argument
in the Court of Appeal raised the following issue in his appellant's brief
of argument, which reads thus:-
"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."
The Court of Appeal in its
judgment considered these so called defences as follows:-
"In the case of the appellant
(sic) who have no authority or warrant whatsoever to adjudicate under both
the Common law and Sharia, they constituted themselves into a Kangaroo court
in order to realize their purpose or plan to kill the deceased. The only
evidence against the deceased was the rumour they overheard or hearsay
allegation that he had insulted the Holy Prophet."
On the issue of provocation
discussed and found on by the court below, I am of the view that the sole
issue raised by the appellant in the court below, which I have already
reproduced supra sufficiently covered the question of provocation, which the
court below was at liberty to consider. It should be noted that that single
issue referred to 'defences' and not 'defence', so the Court of Appeal was
perfectly in order to consider the defence of provocation as it did in the
lead judgment. In the light of the foregoing I fail to see how this appeal
can succeed. 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.
This is an appeal against the
judgment of the Court of Appeal Holden at
The facts of the case are
simple and straight forward.
On the I4th day of
July, 1999 a rumour went round the villages of Randali
and Kardi, both in Birnin
Kebbi Local Government Area of Kebbi
State, that one Abdullahi Alhaji
Umaru, now late of
Following the capture of the
deceased, Abdullahi Alhaji
Umaru, by the mob, one Musa Yaro, a
co-accused with the appellant, now appellant in S.C/244/2004 read some
quotations in Risalah
to the effect that whoever abused Prophet Mohammed shall be
killed, as a result of which the mob started to beat up the deceased with
the appellant eventually using his knife to slaughter the deceased. The
facts are not disputed neither did the appellant testify in his defence at
the trial. At the conclusion of the trial, the learned trial judge found the
appellant and Musa Yaro, guilty of culpable
homicide and sentenced them to death.
Being dissatisfied with that
judgement, appellant appealed to the Court of Appeal in which the sole issue
for determination was:
"Did the appellants suffer
any miscarriage of justice when the Court below refused to consider the
several defences available to the Appellants (sic) on the record
before convicting the Appellants as charged."
As stated earlier in this
judgment, the lower court resolved the issue against the appellant and
dismissed the appeal. It is against that decision that the instant appeal
has been lodged in this Court, the issues for determination of which have
been identified in the appellant's brief of argument filed on 13/9/05 and
adopted in argument of the appeal on 5/7/07 as follows;-
"1.
Whether the learned justices of the Court of Appeal ought to confirm
the conviction and sentence of the Appellant by the trial court (This issue
is distilled from 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 justifications and provocation without
affording the parties the right to be heard on the said issue raised
suo
motu (This issue is distilled from ground
3 of the grounds of appeal)."
On the other hand, learned
counsel for the respondent formulated the following two issues for
determination:-
"1.
Whether or not the Court of Appeal was right when if went ahead and
evaluate evidence with regard to defences
available to the appellant whom ought to have been done by the trial
court, having regard to Order 1 Rule 19 paragraphs 3 and 4 of its
Rules. The issue
relates to ground 1 of Grounds of Appeal.
2.
Whether or not the Court of Appeal rightly held that the defences of
justification and provocation as provided under
sections 45 and 222(1) of the Penal
Code respectively were not available to the appellant. This issue
relates to grounds 3 of the Grounds of Appeal."
It can be seen from the above
that the issues as formulated by both counsel are substantially the same
though those submitted by learned counsel for the respondent are more lucid
and to the point.
In arguing the appeal, learned
counsel for the appellant submitted that appellant is entitled to the
defence of justification by law as provided for under
section 45 of the Penal Code in
addition to the defence of provocation under
section 222(1) of the said Penal Code
having regard to the contents of exhibits G and Gl
and the evidence of PW5 but that the trial court failed to consider the said
defences before coming to its decision in the charge; that the failure to so
consider the defences available to the appellant amounts to failure of the
prosecution to prove the charge against the appellant and the decision of
the trial court a miscarriage of justice.
It is further submitted that
the justices of the Court of Appeal were in error in raising the defences of
justification and provocation
suo
motu and without affording the parties the
right to be heard thereon; that it was not proper for the tower court to
have examined the record to see whether from the facts the defences were
open to the appellant and that the lower court tailed to consider the sole
issue submitted to it for determination.
On his part, learned counsel
for the respondent submitted rightly in my view, that the main issue before
the lower court was against the failure of the trial court to consider the
defences of justification and provocation which defences were said to have
been available to the appellant, and whether the Court of Appeal can examine
such defences having regard to the evidence on record, and that the lower
court did just that and was justified; that failure of the trial court to
consider the defences available to an accused person is only fatal where
there is evidence in support of such defences on record as the court is not
allowed to speculate on the existence of facts not placed before it; that
the evidence against the deceased was based on rumour and there is nothing
on record to suggest that the action of the appellant is justified by law
and urged the court to dismiss the appeal.
It should be noted that from
the evidence on record, the parties involved in the drama that unfolded on
the 14th day of July, 1999, are all Muslims. In any event, there
is no evidence to the contrary, it is not a case of insult on the Holy
Prophet Mohammed by a Christian or Traditional Religionist but a Muslim;
which resulted in the deceased being slaughtered by his fellow Muslims.
Also of much significance is
the fact that throughout the record, what the deceased is alleged to have
said which was considered by his Muslim brothers as constituting insult on
the Holy Prophet Mohammed and justifying his slaughter has not been stated
therein. We are therefore deprived of the opportunity of weighing what was
allegedly said against the standard of a reasonable Muslim so as to
determine whether the alleged insult could amount to provocation in our law
to justify the slaughter of the deceased.
It is settled law that where
the trial court failed or neglected to consider the defence of an accused
person, an appellate court is at liberty or under duty to consider such
defence having regard to the evidence on record. It is therefore not every
failure of the trial court to consider the defences opened to an accused
person that will be fatal to the case of the prosecution. For such a
consequence to arise there must be on record, legally admissible evidence in
support of the alleged defence(s) as such evidence is what grounds the
defence(s).
In the instant case, the power
of the Court of Appeal to examine the record to see whether the failure of
the trial court to consider the alleged defence was fatal to the case of the
prosecution is well grounded in order
1 Rule 19(3} and (4) of the Court of Appeal Rules 2002 which provide
thus:-
"19
(3)
The court shall have power to draw inferences of fact and give any
judgment and make any order which ought to have been given or made, and make
such further or other orders as the case may require.
(4)
The powers
of the court under the foregoing provision 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 by the lower
court..... and the court may make any order, on
such terms as the court thinks just, to ensure the determination on merits
of the real question in controversy between the parties."
In the instant case, the main
issue before the lower court was the consequence of the failure of the trial
court to consider the defences of justification and provocation and whether
the lower court can examine such defences and make findings thereon having
regard to the evidence. As to whether an appellate court can so act in the
circumstance see
Namson
vs State (1993) 5NWLR (pt. 292) 129 at
143;Takida vs State (1969) 1 All NLR 53; State
vs Ajie (2000) 3
NSCQR53.
In the instant case, is there
evidence on record to establish the existence of the defences of
justification and provocation?
As stated earlier in this
judgment, appellant did not testify at the trial. He rested his case on the
case of the prosecution. However, in this his statement to the police,
exhibit Gl, he stated inter alia, thus:-
"Musa
Yaro (the co-accused) of Kardi came and
met me with an information
that someone abused Prophet Mohammed ……
on hearing that I stood and went inside my house and carried knife
along with me and I moved to Randali ....... and
met Abdullahi
(the deceased) who was
together with ....... others
....... Musa
Yaro (co-accused)
made some quotation in Risalah which means that whoever abused
Prophet Mohammed shall be
killed..... I removed the knife that was
in my possession ...... and
slaughtered him "deceased"."
PW.5's testimony confirms the
statement of the appellant to the police when he stated,
inter alia, under oath:
"On my arrival I found that it
was Abdullahi Alh. Umaru
of Randali
village who was
being held.... the 1st
accused Mallam Musa just appeared and said
whoever abused the Prophet shall be killed.
He read a verse...... On hearing
this then
Abubakar Dan Shalla (appellant)
slaughtered Abdullahi with a knife."
The question is whether the
two passages can be said to be evidence to ground the defences of
justification and provocation so as to result in the acquittal of the
appellant in a charge of Culpable Homicide punishable with death. The answer
is obviously in the negative.
Section 45 of the Penal Code
makes provision for the defence of justification as follows:-
"45
Nothing is an offence which
is done by any person who
is justified by law, or who by reason of a mistake of fact and not by reason
of a mistake of law, in good faith believes himself to be justified by law
in doing it."
From the above provision, it
is clear that for the appellant to be entitled to the defence of
justification, he must prove or establish the fact that:-
(a)
his action on that day in question is
justified by law;
(b)
it was done as a result of a mistake of
fact not law, and
(c)
that he acted in good faith believing
himself to be justified by law in so doing.
From the record, the
allegation against the deceased was based on rumour, hearsay
simpliciter and there is no
evidence whatsoever as to what the deceased allegedly said to deserve such a
brutal fate.
On the other hand, the defence
of provocation is provided for under
section 222(1) of the Penal Code as follows:-
"222 (1)
Culpable Homicide is
not
punishable with death if
the offender whilst
deprived of the power of self
control by grave and sudden provocation causes the death of
the person who gave the
provocation or causes the death of any person by mistake or accident."
For the defence of provocation
as provided under section 222(1) of
the Penal Code to be sustained, the appellant must produce evidence to
establish the fact that:-
(a)
the act of provocation was grave and
sudden;
(b)
the
appellant lost
his self
control, actual
and reasonable
(c)
the degree of retaliation by the appellant
must be proportionate to the provocation.
As stated earlier, there is no
evidence on record as to what the deceased was alleged to have said touching
and concerning the Holy Prophet Mohammed which would have afforded the court
the opportunity of examining same at the background of the law and available
relevant facts. It is not disputed that words alone can constitute
provocation but it all depends on the actual words used and their effects or
what they mean to a reasonable person having a similar background with the
accused/appellant.
In the instant case, not only
are the exact words used by the deceased unknown, no one testified to the
fact that he heard the deceased utter those words, not even the appellant
who now intends to take advantage of the defence of provocation in the
circumstance of this case. Even if the alleged words were said directly by
the deceased to Musa Yaro, the co-accused, which
is not true, it cannot, in law, be a ground for the killing of the deceased
particularly as it was the appellant who was not present when the words were
uttered that slaughtered the deceased, not Musa Yaro
- granted that the alleged words had been disclosed and found to be
provocative, and that Yaro was present when the
said words were uttered.
Learned Counsel for the
appellant has argued in one breath that the trial court's error in not
considering the defences of justification and provocation is fatal to the
case of the prosecution and at the same time that the lower court was in
error when it reviewed the evidence to determine the issue as to whether the
said defences were actually available to the appellant before deciding that
they are not. The argument appears to me to approbate and reprobate. We have
to always bear in mind that the Court of Appeal, and every appellate court,
exists to correct errors in the proceedings, be it procedural or
substantive, of the lower court, in accordance with its rules of procedure.
In the instant case, the lower court need not call on the parties to address
it on the alleged defences allegedly not considered by the trial court when
it can, on its own, go through the evidence on record to determine the issue
so as to do substantial justice between the parties.
In conclusion, I agree with
the reasoning of my learned brother Oguntade, J.S.C. that the appeal is
totally without merit and should be dismissed. I accordingly dismiss same.
Appeal dismissed.
Judgment delivered by
Ibrahim Tanko
Muhammad,
J.S.C.
The appellant, along with five
others were charged before the Kebbi State High
Court of Justice (trial court) for the offences of Criminal Conspiracy (section
67 of the Penal Code) He was also charged along with the
2nd, 4th
and 6th accused persons before the trial court with the offence
of abatement (contrary to section 35
of the Penal Code). When the counts were read to each of the accused,
each separately pleaded not guilty to each of the counts. The case then
proceeded to trial. After taking evidence from the respective parties and
final addresses by their counsel, the learned trial judge delivered his
Judgment wherein he found the appellant guilty and sentenced need him to
death by hanging.
Aggrieved with the trial
court's Judgment, the appellant appealed to the Court of Appeal Kaduna
Division, (court below). The Court below, after reviewing the case, the
Grounds of appeal and the briefs filed by the parties, found the appeal to
be a worthless one. It dismissed the appeal and affirmed the trial court's
decision.
Further aggrieved, the
appellant now appealed to this Court In his Notice of Appeal, the appellant
set out three grounds of appeal as contained on page 80 of the printed
Record of Appeal placed before this court, the parties filed and exchanged
briefs of argument.
In his brief, learned counsel
for the appellant formulated the following two issues:
‘‘It is our contention on
behalf of the Appellant that the issues arising for determination in this
appeal are as follows:
1.
Whether the Learned Justices of the Court of Appeal ought to confirm
the conviction, and sentence of the Appellant by the trial court. (This
issue is distilled from 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 raised
suo
motu. (This issue is distilled from ground 3
of the grounds of Appeal)."
The learned counsel for the
respondent adopted the two issues formulated by the appellant. (I shall come
back to these issues as formulated by the parties). But let me now relate
the salient facts giving rise to this appeal as contained in the printed
record of proceedings. Sometimes on or about the 14th
day of July. 1999, a rumour was spread within or between two
neighbouring villages of Randali and Kardi of
Birnin Kebbi to the
effect that one Abdulbhi
Alhaji Umar of
Randali village (now deceased) had insulted or defamed the Holy
Prophet Muhammad (SAW). On hearing this rumour, the appellant with five
others all of
Although they could not arrest
the deceased at Randali, he was eventually
caught at Kardi village where he hid himself.
On being caught at Kardi village, he was taken to the outskirts of
the village and was held or kept under the custody of Mohammed
Sani (3rd accused) and Suleiman Dan
Ta Annabi (6th accused) at a place
near the grave yard. Other
accused persons then went to the village head of Kardi and informed him that
the person said to have insulted the holy Prophet had been caught in his
village and the appropriate punishment to be in meted out to him under
Sharia was death and he was therefore to sanction his killing. When the
village head failed to give them any answer, then appellant along with
Abdullahi Ada (4th accused), Musa
Yaro (1st accused) and Usman
Kaza (2nd accused) left and went back
to the grave yard where the deceased was being held or kept by the 3rd
and the 6th accused
persons. On arriving at the grave yard, the 1st accused brought
out an Islamic text book "Risala" and read out some portion from it that the
punishment of any person who insults the holy prophet was death. Thereupon
the 3rd accused struck the deceased by the neck with a machete.
When the deceased fell on the ground as a result of the machete blow, the 5th
accused brought out a sharp knife and slaughtered the deceased like a ram.
After the incident and when the accused persons were certain that the
deceased was dead, they all dispersed leaving his corpse lying at the scene.
It was later that the corpse was removed by the police and the relations of
the deceased and it was conveyed to Birnin
Kebbi Specialist Hospital where an autopsy was
conduced and a medical report (Exh. 1) was
issued. It was after due investigation by the police that the appellant
along with the five other accused persons were arrested and prosecuted at
the Court below which convicted all of them for the offences under
sections 85, 97 and 221 (a) of the
Penal Code (PC for short). They were each sentenced to death
accordingly.
In his submissions on issue No.1
learned counsel for the appellant, Mr. Amuda-Kannike
states that the learned Justices of the Court of Appeal ought not to have
confirmed the conviction and sentence of the appellant by the trial Court as
it failed to consider and examine defences of justification and provocation
which ought to ensure in favour of the appellant by virtue of
sections 45 and 232 (1) of the Penal
Code. Learned Council
argued further that both the evidence of PW5 and ihe appellants statement to
the Police Exhibits "G" and "G1" which formed part of the evidence before
the trial court no doubt raised the issues of justification and provocation
on behalf of the appellant, yet the learned trial judge failed to consider
the said defences throughout the entire gamut of the judgment that was
delivered. Learned Counsel
submitted that the trial Court was bound to look at the defences to which
the accused may be entitled to on the evidence before it no matter how
improbable or stupid or unfounded such a defence may be whether or not same
were raised by the accused or his counsel during the course of trial.
He cited and relied on some authorities such as
Williams v. State (1992) and NWLR (P
261) 515 at 522; Arara v. State (1981) 2 NCR 110
at 125. The learned
Counsel stated that the non consideration of the defences
aforementioned had affected the burden of proof placed on the prosecution
which would have mace the learned Justices of the Court below to have upheld
the appeal by reversing the conviction of the appellant. Further citations
made by learned Counsel included the cases of Ogunleye
v. The State (1991) 3NWLR (P 177) 1 at page 3:
Opeyemi v. The State
(1985) 2NWLR Pg 101. Clement
Oguonzee V. The State (1999) 2 LRCNCC; 232 at 245 paragraph f:
Doherty v. Doherty (1964) All NLR 299.
He urged this Court to resolve issue No 1 in favour of the appellant.
In his brief of argument,
learned Counsel for ihe respondent submitted on issue No.1 that what
the Court of Appeal did and its findings were based on ihe evaluation of ihe
evidence available on the record and did not cause any miscarriage of
justice to the appellant and the Court was right and doing so could not
amount to raising any issue
suo
rnotu.
On the main point raised under issue No.1 by the appellant,
that is, that the trial Court failed to consider and examine the defences of
justification and that of provocation which was wrongly done by the Court of
Appeal, Learned Counsel for the respondent submitted that having regard to
Order 1 Rule 19(3) and (4} of the
Court of Appeal Rule, 2002, the Court of Appeal has power to make such
findings. He supported his submission by quoting the said provision of the
Court of Appeal Rules and the cases of
Namsoh
v. State (1993) 5 NWLR (pt 292) 129 at 143. Takida
v.State (19(39) 1 All NLR 53; State V.
Ajie (2000)3 NSCQR 53.
He argued further that failure that failure of the trial Court to consider
the defences available or open to an accused person aforementioned
is only fatal where there is evidence in support of such defenses in the
record of the trial Court.
I think it is appropriate for me to start by asking a question at this
juncture: What were the defenses raised by the appellant before the trial
Court? I cannot find a better answer anywhere else other than from the
printed record of this appeal.
The learned trial Judge stated in that respect:
"Therefore in this particular case the
Onus is on the accused persons to
prove that they have a right in the Quran or Risala to kill Abdullahi
Alh.
Umaru. Furthermore the accused
persons did not raise or suggest any defense, their voluntary statements did
not suggest any defense and there is no doubt about this." (See page 75 of
the record)
So, there was no defense raised by the appellant. In fact, the appellant did
not testify in person and he did not contradict, deny or retract his
confessional statement Therefore there was nothing by way of defense for the
learned trial Judge to consider. The learned trial judge was an umpire and
he could not stand in defense of the defenseless appellant. So, what bluff
is the learned Counsel for the appellant making? But granted for the sake of
argument only that there were no defenses raised by the appellant and the
trial Court omitted or failed to consider such defenses. Can't the Court of
Appeal remedy such an omission or failure by resorting to the provision of
section 15 of the Court of Appeal
Act.
Cap.C.36 Law's of the Federation of
"15
General Powers of Court of Appeal The Court of Appeal may, from time
to time, make any order
necessary for determining the real question in
controversy in the
appeal, and
may amend any defect or
error in the record of appeal, and may direct the court below to inquire
into and certify its findings on any question which the Court of Appeal
thinks fit to determine before final judgment in the appeal, and may make an
interim order or grant
any injunction which the court below is authorized to make or grant and may
direct any necessary inquiries or accounts to be
made or taken,, and,
generally shall have
full jurisdiction over
the whole
proceedings as
if the proceedings
had been
instituted in
the Court
of Appeal as court of first instance and may re-hear the case in
whole or in part or may remit it to the court below for the purposes of such
re-hearing or may give such other directions as to the manner in which the
court below shall deal with the case in accordance with the powers of that,
court, or, in the case of an appeal from the court below, in that court's
appellate jurisdiction, order the case to be re-heard by a court of
competent jurisdiction."
Thus, where a trial Court
failed to consider the defence of an accused person such as the appellant,
the
On issue No2
Appellant's Counsel submitted that from the pronouncements of the Court of
Appeal the learned Justices on the panel that decided the appeal under
consideration, had conceded that the learned trial Judge ought to but
refused to consider the defences of justification and provocation as raised
by the appellant was not considered at all rather the new issue raised
suo
motu as to whether the defences of
justification and provocation ensure in favour of !he appellant was the
basis upon which the appellant's
appeal was eventually dismissed, further, he contended, it is the law
that where a court raises an issue
suo
motu. It ought to call on the parties to
address it on such issue. He cited the cases of
Badmus
v. Abegunde 11999) 71 LRCN 2912;
Oshodi v. Eyifunmi
(2000) 80 LRCN 2877.
Learned counsel argued that because of the lower courts failure to call on
the parties to address it on an issue raised
suo
motu by it and because of its failure to
consider the lone issue raised by the appellant's counsel in his brief of
argument, such a failure tantamount to breaching the fundamental right of
the appellant to fair hearing as guaranteed by
section 36 of the Constitution of the
Federal Republic of Nigeria 1999.
He urged this court to resolve issue No 2 in favour of the
appellant.
In his argument contained in
the brief of argument, learned counsel for the respondent submitted that the
appellant will be entitled to the defence c-r Justification after satisfying
the conditions set out by section 45
of the Penal Code. He further submitted that there is no evidence of any
kind (Penal Code or Sharia) in the record of proceedings to show that the
appellant's action was justified by law. He finally on this point, submitted
that from the available evidence before the trial court and available in the
record the appellant would not be entitled to defence of justification as
the court could not give the appellant the benefit of defence which was not
reflected or supported by evidence on the record He cited the case of
Abara
v. State (1981) 2 NRC 110 at page 117.
Making his submissions on the
defence of provocation, learned counsel for the respondent argued that the
appellant would only be entitled to defence of provocation under
section 222(1) of the Penal Code
where he established the ingredients
therein. There is no evidence whatsoever on the record of proceedings
to establish that the appellant was provoked by Abdullahi
Alh. Umaru
(deceased), it is impossible he stated, to determine whether the defence of
provocation was open or available to the appellant.
He referred to the case of
Ahmed v. The
State (1999) 7 NWLR (Pt.612) 641 at 684. The provocative act done
or reported by one person the co-accused Musa Yaro,
cannot be a ground for the appellant to kill the deceased. He cited and
relied on the case of
Idemudia
v. State (1992) 7 NWLR (Pt.356).
He concluded that the Court of Appeal did not raise any issue
suo
motu.
He urged this court to affirm the conviction and sentence of the
trial court and finding of the Court of Appeal and dismiss this appeal.
This issue is on the defences
of provocation and Justification Under issue No. 1 I already made a
finding that no such defences were raised by the appellant now since this
issue is purely on these defences; I shall now expand on it. I will start by
quoting what the court below said on these defences:
"It is also to be noted as
rightly pointed out by the learned trial judge and as reflected by the
record that the appellants rested their case on the evidence adduced by the
prosecution and chose not give (sic) evidence for their defence. They were
also ably represented by a counsel during their trial who failed to raise or
prove any defence for them during the trial."
Ideally that would have put an
end to the issue of defences as none existed from the evidence laid before
the lower court. But while reviewing the proceedings of the lower court, the
court below made the following observation:
"It is necessary to dispel the
impression made or given in the appellants brief to the effect that the
learned counsel for the accused persons (i.e. the appellants) had at the
trial court alerted the trial court on the two defences said to be available
to them. On perusing the relevant pages or passages of the record containing
the submissions of the two learned counsel in the case and the ruling of the
trial court on the matter I found that the appellants learned counsel only
raised or asserted the defence of Justification in his final address in the
following words in addition to what is reproduced in the appellants brief):
'A question can be asked
whether the prosecution has disproved that there is a punishment of death as
provided in the Quran for anybody that (sic) insults the prophet and the
Risala cited by the 1st accused person. The prosecution must show
by positive evidence that the accused persons are not entitled to kill the
accused (sic - the deceased) for insulting the prophet.'"
The learned Justice Court of
Appeal then concluded in the following words:
"It is clear from the above
quoted submission of the appellants counsel at the trial court that only the
defence of Justification (under Sharia rather than under the Penal Code) was
raised by the said counsel. There is no mention or suggestion whatsoever
about the defence of provocation from the above quoted passage as its
particulars or legal elements were not mentioned as done in relation to the
defence of Justification. Consequently it is wrong, in my view, for the
appellants counsel to now give the impression in his brief of arguments that
their counsel had alerted the learned trial judge on that defence that to me
is a mere after thought and a misstatement.”
From the above excerpts, it is
clear that the issue of defences of provocation and Justifications were by
and large, raised and argued by the learned counsel for the
accused/appellant it thus not a new issue entirely as would require further
address by appellants counsel. The lower court was in my view right in its
approach to the issue of the defences which were raised in counsels’
address. Although not an evidence in itself counsel's address forms part of
the case See-
Obodo .v.
Olomu (1937) 2 NSCC 824 at 829. That was why
the Court below took considerable time, place and efforts to meticulously
answer the points raised on the defences’ highlighted in the appellants
brief.
Justification as a defence in
a criminal trial arises because the defendant/accused is not blame worthy
for having acted in a way that would otherwise be criminal The act carried
out by the accused or where he failed to carry out an act is considered just
and lawful.
Section
45 of the Penal Code
has provided as follows:
"Nothing is an offence which
is done by any person who is justified by law, or who by reason of a mistake
of fact and not by reason of a mistake by law, in good faith believes
himself to be justified by law in doing it."
This means that an accused
standing trial before a criminal court such as the appellant will be
entitled for the defence of Justification if the defence is premised on the
following conditions:
i.
His action is justified by law
ii.
His action was carried out as a result of mistake of fact not mistake
of law
iii.
He acted in good faith believing himself
to be justified by law in doing it.
The above conditions will
extend to situations where:
(a)
the accused acted in execution of the law
(b)
acted in obedience to the order of
a competent authority which he is bound by law to obey, unless the order is
manifestly unlawful.
(c)
when the action is reasonably necessary in
order to resist actual and unlawful violence threatened to him, or to
another person in his presence.
Now, from the facts and the
evidence placed before the trial court, can the appellant be covered by any
of the above conditions to justify his participation in killing the
deceased? My answer is certainly in the negative.
On the defence of provocation,
which is provided by section 222 of
the Penal Code, the appellant will be entitled to it if it is shown that
he established all the ingredients therein. Permit me, my Lords to quote the
section:
"222
(1)
Culpable homicide is not punishable with death if the offender whilst
deprived of the power of self control by grave and
sudden provocation causes the death of the person who gave the
provocation or causes the death of any other person by mistake or accident."
(Underlying supplied for
emphasis).
In order to enjoy the above
facility, the accused must lead evidence to establish the following
ingredients:
i.
The act of provocation is grave and sudden
ii.
The accused must have lost self control actual and reasonable
iii.
The mode of resentment must bear a reasonable relationship to the
provocation
I am afraid, none of the
defences will avail the appellant in this case as he elected not to lead
evidence to establish all the supporting ingredients of the defences. By the
provision of Section 141 of the
Evidence Act, the burden of proving; his entitlement to the defences
rests squarely on his shoulders and he has woefully failed to discharge the
burden.
On the question of
provocation, the Lord Chancellor, Viscount Simon, in
Mancini v The Director of Public
Prosecutions 26 C. A. R. 74 stated the correct principle of the law when
he said:
"It is not all provocation
that will reduce the offence of murder to manslaughter. Provocation, to have
that result must be such as temporarily deprives the person provoked of the
power of self control, as the result of which he commits the unlawful act
which causes death...The test to be applied is that of the affect of or
evocation on a reasonable man, as was laid down by the court of Criminal
Appeal in
Lesbini 11 CAR 7. In
applying the test, it is of particular importance to take into account the
instrument with which the homicide was effected;
for to retort, in the heat of passion induced by provocation by a simple
blow is a very different thing from making use of a deadly instrument like a
concealed dagger. In short, the mode of resentment must bear a reasonable
relationship to the provocation if the offence is to be reduced to
manslaughter."
See the cases of
Wonaka
v. Sokoto N. A. (1956) 'NSCC 28;
Kumu v. the State (1967) NSCC Vol. 5, 283.
On the main, the free and
voluntary confessional statement of the appellant alone is enough to send
him to the gallows. Listen to what he said:
"On Wednesday 14th
July, 1999 at about 2000hrs after Isha'i prayers, I sat down at the frontage
of Mosque at Faransi Area of Kardi then one Musa
Yaro of Kardi came and met me with, an
information that, someone abused Prophet Mohammed at
Randali Village which he is not sure, but he wilt try to find out at
Randali. On hearing that, I stood up and went
inside my house and carried knife along with me, and I moved to
Randali. On reaching there, I went straight to
one Shuqaban Saman
for confirmation about the abusing of Prophet Mohammed and he assured me
that, the issue is true, and that there were witnesses to testify out he did
not tell me the kind of abuse. And from there I heard 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 then.
Then we later sent the following: Musa Yaro,
Usrnan Kaza and
Abduilahi Ada to the
village Head of Kardi to
know what is
happening in
his village.
As they
returned back from
the Village Head's house... Musa Yaro
made some Quotation in Risslah which means that,
who ever abused Prophet Mohammed
shall be
killed, and then
people started
besting Abdullahi Alh.
Umaru, and Mohammadu
Sani macheted 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 Randali-Kardi
Road near a burial ground of Kardi.
And we ail dispersed.
When I reached home, I fetched some water and washed the knife and
part of my cloth that stained, the cloth is light blue in colour. That’s all
my statement.''
This was further corroborated
by the unchallenged evidence of PW5 who stated as follows:
"What I know is that on 14th
July, 1999 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
A litany of authorities lays
the rule that a voluntary confession can fetch conviction. See:
Kanu
v The State (1952) 14 WACA, 30 at page 32 Phillip
Ekpenyong v. The State (1991) 6 NWLR (Pt.200) 633 at p. 704
I think I should observe that
although this case is Sharia in nature, it was decided under the Common Law
principles. I should not delve much into the Islamic Law principles relating
to such a case. I will limit my observation to what the court below said in
citing some Islamic Law principles. Let me quote
in extenso what the court below
observed:
"It will be very clear that
the appellants with their shallow knowledge of Sharia or Islamic law and
calling themselves Muslim brothers, have in ignorance or deliberate
disregard of the rules of judgment and procedure under the said Sharia as
contained in the same text of Risala, arrogated to themselves the function
and role of a court of law or a Khadi and
wrongly (without any proof or evidence) or based on rumour or hearsay,
convicted, sentenced and inflected (sic) or carried out the execution of the
supposed punishment. They cannot claim that to be the way of life of their
community because they were not supported by both the village head and Ustaz
Mamman. Although the prosecution did not call
the Ustaz as a witness it is however clear that he gave them the
advise in the presence of some of the witnesses
(e.g. PW2) but they refused to heed and even went to the extent of
describing him as an infidel or a non Muslim for giving them such an advice.
There is also
no legal justification in the action taken by the
appellants in killing
the deceased
for his supposed
offence. Islamic religion is not a primitive religion that allows its
adherents to take the law into their own hands and to commit jungle justice.
Instead there is a judicial system in Islam which hears and determines cases
including the trial of criminal offences and any body accused of
committing an offence against the religion or against a fellow Muslim
brother should be taken to the court (either a Sharia or a secular/common
law court) for adjudication. It is only when a person is convicted and
sentenced by a court of law
that he will be liable to a punishment which will be carried out by an
appropriate authority (i.e. the prison) Although it is true that there is
the provision in Risala which prescribes the punishment of death on any
Muslim who insults the Holy Prophet such punishment can only be imposed
by the appropriate
authority (i.e. the court) rather than by any member of the society whether
a Muslim or otherwise. The relevant provision can be quoted from "Risala
(treatise on Maliki law) translated and
annotated by Joseph Kenny - Chapter 37 at paragraph 37.19 page 173 as
follows:-
"If someone speaks
disrespectfully of the messenger of God (sabb -
an -nably) he should be put to death without
accepting his repentance ...."
The above provision is
contained in a chapter dealing with ''crimes, conviction and punishments."
From the wording of the
chapter it presupposes that there must be a due process leading
to the conviction by an appropriate authority of someone accused of
committing the crimes contained in the chapter before he will be liable for
the punishment. The chapter begins with the following passage which is
instructive:-
"37.01
No one may be put to death for homicide unless he is convicted by
(1) adequate testimony (bayyinat), or (2) his own admission (igrah),
or (3) as sworn indictment (Qasama) if that is
necessary .....,"
(underling
and
brackets
supplied for
emphasis
and explanation)
It is also pertinent to note
that the next immediate chapter following chapter 37 (i.e. chapter 38) in
the Risala provides for "judgment": Procedure and cases. In this subsequent
chapter it is made very clear that decisions on cases including criminal
cases are the function of judges who observe the court procedure and whose
actions or decisions are based on testimony or evidence (bayyina)
admission (Iqrar) or oath (Yamin)
See Aththamarud Dani
(Commentary on Risala) pages 604 - 707.
In another Islamic text:
Ashalul Madarik
which contains similar but wider provision than that of Risala on which the
appellants relied in their nefarious action, there is a proviso or a stinker
to the rule against insulting Allah, (SWT) His Prophets or any angel. In the
later text it is stated that the words used in the chapter differ in the
rules (i.e. their application) and have been given different meaning
depending on their aims (or objects) and changes in circumstances. Sometime
they may necessitate the killing and sometime only chastisement for
correction and sometime they attract no punishment or sanction at all. So it
is necessary for the Qadi to exercise caution
and exert (sic) his effort in research (Ijtihad) for each case or judgment
concerning the rules.
All my above explanation of
the rule in Risala relied upon by the appellants in their action show that
it is the judge (who is qualified to adjudicate) or the court of law whose
responsibility is to apply (or order the execution) of the sanction given in
the text against any person accused under a civilized system of justice even
under an Islamic state. I will recall here the sentence of death passed on
an Indian born but British author Salman Rushdie
for blaspheming the Holy Prophet Mohammed (SAW) in his book titled "The
Satanic verses." I will recall that he was dully prosecuted and convicted
(though in absentia) by an Iranian Islamic Court under the Regime of Imam
Ayatollah Khomaini of blessed memory which tried
him for the offence, in the case of the appellant who have no authority or
warrant whatsoever to adjudicate under both the common law and
Sharia they constituted themselves into a
Kangaroo court in order to realize their purpose or plan to kill the
deceased. Their only evidence against the deceased was the rumour they
overheard or hearsay allegation that he had insulted the Holy Prophet. If
the objective test is applied on them, and considering the non approval of
the propose (sic) action by the village Head and Ustaz
Mamman who were members of the same community and therefore in the
same class or position or standard in life with the said appellant, it will
easily be seen that the said appellant were not acting under an honest
misapprehension of fact or in good faith but they were merely a bunch of
blood thirsty and militant or religious fundamentalists who were all out to
satisfy their vindictive zeal against the appellant.
Notwithstanding their motive
based on their ideological concept as Muslim brothers which is a
Shia sect with a morbid dogma, they should be
held fully responsible for their action and are not therefore entitled to
the defence of justification under both Sharia and
Section 45 of the Penal Code.
With their cruel or wicked disposition they constitute or pose as very
serious danger to their society or community, in my view, it is the
appellants rather than the deceased who committed an offence against Islam
or Sharia by their unjustified action which represents to the public that
Sharia is an uncivilized and primitive system which allows or permits the
killing of people without complying with the due process of law. I am
consequently of the humble view that the defence of justification under the
penal code is not open or available to the appellants as asserted in their
brief."
I agree.
The 1st issue to be
put in its straight perspective is that Islamic Law, as opposed to Common
Law, makes no provision for the defence of provocation. A sane and adult
Muslim stands responsible and answerable to all his deeds or misdeed.
Secondly, where he makes a free and voluntary confession, he is bound by his
confession which is even regarded to be a better form of
evidence than calling of witnesses. See
Jawahir
Al-Iklil Sharh
Mukhtasar Al-khalil
Vol. II by Sheikh Salih Abd
Alsami Al- Azhari,
page 132;
Wonaka v
Sokoto N.A supra
The trite position of the law
under Sharia is that any sane and adult Muslim, who insults, defames or
utters words or acts which are capable of bringing into disrepute,
oduim, contempt, the person of Holy Prophet
Muhammad (SAW) such a person has committed a serious crime which is
punishable by death. See.
Alkhurshi,
commentary on Mukhtasar Al-Khalil
Vol. 8 page 70;
Hashiyatul
vol. 2 page 290.
However as observed by the
court below, Islamic law has not left the killing open in the hands of
private individuals. The offence alleged has to be established through
evidence before a court of law. The court itself will have to implore its
professional dexterity in treating the case by allowing fair hearing and
excluding all the inadmissible evidence or those persons who may fall within
the general exemption clause such as an infant, imbecile or those who suffer
mental delusion Thus, the killing is controlled and sanctioned by the
authorities.
Abdul
Qadar Qudah in his
criminal law of Islam vol. III;
(improved edition, 1999), stated that if any of the crimes involving
Hudud (fixed punishment),
Qisas (Retaliation) and Ta'azir
(penal/exemplary punishments) is imputed to a person he will be prosecuted
against in a court law. If the charge against him is established, sentence
will accordingly be passed keeping in view the prescribed punishment. If the
charge cannot be established, the accused will be acquitted. If the sentence
is passed the ruler or the competent authority will be responsible for its
execution in respect of offences involving hudud
and penal punishment. Such punishments can only be executed by the ruler or
his deputy for
Had is Allah's right which has been made obligatory. Hence the
responsibility for its execution will be vested in the Imam or the ruler of
the Community. Besides, awarding of
Had punishment requires
exertion of the mind (Ijtihad) and it is likely to exceed the limit or be
less than it. Hence, it is to be established by the ruler himself or depute
his representative to do it on his behalf, (see generally pages 157 - 170 of
the book under reference for further details).
The law will, thus, have set a
dangerous precedence if private individuals were authorized to take the law
into their hands as the appellant and others did in this case. Sharia
guarantees and values the sanctity and dignity of human life. That is why it
outlaws unlawful killing of human life. The Quran has several verses in
various chapters where it outlaws such nefarious acts. For instance it
provides in chapter 6 (Surat
al - An'Am) verse 151 as follows:
"And do not kill the soul
which Allah has forbidden (to be killed) except by (legal) right."
The Prophet (SAW) is reported
to have said that the first action to be judged on the Day of Judgment is
the spilling of blood. (see
Bulugh
Al - Maram Min Adiilatil
Ahkam by Asqalani,
page 244). In another Hadith, he is reported
to have said that three things have been made illegal to a Muslim:
(i)
to spill the blood of another or deprive
him of his life
(ii)
to deprive him of his property and
(iii)
to deprive him of his honour or integrity
(see
Forty Traditions of Imam An-Nawawi).
The appellant in this appeal
did not show any of the courts that he had the requisite authority to take
away the life of the deceased. He thus unlawfully deprived the deceased the
opportunity to defend the allegations levelled against him before any court
of law or authority. The village head of Kardi
who was contacted by the appellant and others for authority to execute the
deceased, flatly refused authority as he fully well knew that he was not the
right authority to grant such leave. A learned person known as Ustaz
Mamman drew attention of the appellant and his
co-accused persons that they had no authority to take away the life of the
deceased, yet they kept deaf ears and even described the Ustaz as an
infidel.
I cannot see how these kinds
of people shall have any respite by the
law. What is good
for the goose is good for the gander. Life is precious to all and sundry. He
who kills by the sword shall die by the sword, I have no sympathy for the
banishment of such busy bodies who respect no human life due to their high
degree of misapprehension of the law or, should I say, complete ignorance of
the law. The appellant failed to convince me through his explanations. But
he is free to make further and better explanations to the hang man, though
belatedly it may be.
I find no merit in this
appeal. I dismiss same. I affirm the conviction and sentence of the trial
court which were affirmed by the court below.
Counsel
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