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In The Supreme Court of
On Friday, the 15th day of
February 2008
Before Their Lordships
S.C. 21 2/2004
Between
And
Judgement of the Court
Delivered by
Christopher Mitchell
Chukwuma-Eneh J.S.C.
This appeal is against the
judgment of the Court of Appeal Kaduna Division, that is to say the Court
below, delivered on 10/12/2003 which while dismissing the appellant's (Usman
Kaza) appeal affirmed his conviction and sentence by hanging passed on him
(the appellant) by the trial court (Kebbi State High Court of Justice). In
the trial court the appellant as the 2nd accused was jointly
arraigned with 5 others for Criminal conspiracy, abetment and culpable
homicide publishable with death under
Sections 97, 85 and 221 (a) of the Penal Code respectively.
Being aggrieved by the
decision of the court below the appellant finally has appealed to this court
by a Notice of Appeal filed on 27/12/2007 wherein he has raised four grounds
of appeal. In the result the parties have filed and exchanged their briefs
of argument in this matter. In the appellant's brief of argument three
issues for determination have been distilled as follows:
"(1)
Whether the prosecution proved the case of
conspiracy, abetment and murder against the appellant.
(2)
Whether mere presence at a scene of crime proof of actual
participation in the commission of the crime.
(3)
Whether the Defence of provocation and justification avail the
appellant."
The respondent in its brief of
argument has adopted issues 1 and 3 of the appellant's issues for
determination as the more proper and salient issues to resolve the appeal.
As the facts of this heinous
crime are not in issue, I
have culled the facts of the same as vividly and graphically set out
in paras.2.1 and 2.2 of the respondent's brief of argument as follows:
"2.1.
On
the 14th day of July, 1999 a rumour was spread in Kardi and
Randali villages of Birnin Kebbi Local Government Area of Kebbi State of
Nigeria that one Abdullahi Alhaji Umaru of Randali village (the deceased)
insulted the Holy Prophet Muhammad (S.A.W). In consequence thereof the
appellant, together with co-accused, at the trial court who were both
resident of Kardi, went Randali in search of the deceased. The deceased was
arrested on this account and taken to the outskirt of Kardi village near the
village burial ground and kept in the custody of Suleiman Dan Ta Annabi (6th
accused in the trial court) and Mohammed Sani (3rd accused in the
trial court). In the interim, Musa Yaro (1st accused in the trial
court) in conjunction with the appellant (2nd accused in the
trial court) as well as Abdullahi Ada (the 4th accused at the
trial court) went to Randali, the village of the deceased, in search of the
deceased and clarification of whether the deceased uttered the insult or not
after the arrest of the deceased they went to the house of the village head
at Kardi to inform him that the deceased was caught and the prescribed death
punishment of whoever insulted the Holy Prophet Muhammad (S.A.W.) would be
carried out on him, Where upon the said village head did not say anything.
2.2
The appellant, Musa Yaro and Abdullahi Ada returned to the outskirt
of the village where the deceased was held captive under the custody of
Mohammed Sani and Suleiman Dan Ta Annabi. On getting to the place, Musa Yaro
read a portion of the Risala to the effect that whoever insults the prophet
should be punished with death. And following this recitation, Mohammed Sani
(3rd accused at trial court) matcheted the deceased on the neck
and also the appellant as
a result of which the deceased fell down and was slaughtered by the
neck with a knife by Abubakar Dan Shalla and the deceased died and
thereafter the appellant and his co-accused at the trial dispersed from the
scene."
At the trial, the prosecution
called 8 witnesses including the brother of the deceased as p.w.3. In
addition, the prosecution before the trial court tendered a total of 18
exhibits including particularly exhibits K and K 1 and being appellant's
extra judicial statements to the police to show the appellant's involvement
in the killing of the deceased. The prosecution's case as can be gathered
from the Record shows that the 1st accused gave the instruction
to kill the deceased. The 3rd
accused cut him down by the neck with a matchet and the 5th
accused slaughtered the deceased with a knife "like a goat" while being held
to the ground by the 3rd and 6th accused. The 1st,
2nd, 4th and 6th accused persons it is
alleged abetted the commission of the crime in a manner that will become
clearer soon. Be it noted that the appellant as the 2nd accused
in line with the nature of the defence he opted for, before the trial court
did not lead any evidence. He rested his case on the prosecution's case.
On the issues for
determination raised by the appellant herein vis-avis the background to the
judgment of the court below, having gone over the same, I agree with the
appellant's submissions that the four main pillars upon which the court
below has predicated its reasoning for its decision are, firstly, that all
the accused including the appellant took part and participated in killing
the deceased hence they are respectively convicted and sentence accordingly.
2.
That the prosecution has led evidence to prove the essential
ingredients of the offences for which the appellant and the co-accused were
charged.
3.
That the prosecution's ease has dispelled any availability of
defences of provocation and justification to the appellant and other
accused.
4.
That the confessional and voluntary statements of the appellant and
other accused to the police were neither denied nor retracted.
The appellant has, as it were,
joined issues with the respondent on these findings, as borne out by his
four grounds of appeal and the issues raised there from as per his brief of
argument. I now proceed to deal, firstly with the appellant's case as per
his brief of argument.
The appellant's case as per
his brief of argument is that he went to the scene to witness what was going
to happen to the deceased. He submits in this vein that it has not been
showed that he used any physical assault against the deceased as was the
case with the 1st accused who as held by the trial court read the
punishment from Risala; the 3rd accused who matcheted the
deceased by the neck or the 5th accused who slaughtered the
deceased with a knife. And that on the totality of the evidence of the
prosecution witnesses coupled with the extra judicial statement of the
accused person and other Exhibits, the prosecution has not established a
case of conspiracy, abetment and murder against the appellant beyond
reasonable doubt. He submits that there is no basis therefore for his
conviction by the trial court on the unproven charge for taking part in
killing the deceased. He contends it is a grave error for the court below
upholding the finding to the effect that "all the accused persons (including
the appellant) herein took part and participated in the unfortunate incident
that led to the gruesome murder or killing of the deceased ....." [Words
in bracket supplied].
It is strongly-contended that
as regards the offence of conspiracy in particular the prosecution has
failed to establish the existence of any previous agreement to kill the
deceased in the face of irrefutable evidence that the accused persons came
from different villages and so could not have formed the necessary common
intention to ground a charge of conspiracy. Furthermore, that such agreement
has to be express albeit to warrant relying on it to convict the appellant.
As regards the offences of abetment and murder, it is argued that the
prosecution has not proved conclusively either or both of them by evidence,
that is to say, beyond reasonable doubt vis-a-vis the ingredients of these
offences. The appellant has therefore relied on the cases of
Yakasi v.
The appellant has claimed
entitled on the available evidence before the court to the defences of
provocation and justification which, it is urged should have been addressed
even moreso suo motu by the
courts below.
In this respect it has been
submitted that the blasphemy, that is, insultive words uttered by the
deceased had provoked the appellant and other accused persons as the rumour
made it rounds in the neighbourhood and the evident want of enough cooling
time with regard to the appellant in the circumstances. It is broached on
behalf the appellant the serious question of the contradictory evidence of
the prosecution witnesses which as contended by the appellant has thrown the
prosecution's case asunder.
I must, however, observe that
the appellant has not covered the offences of abetment and culpable homicide
punishable with death as well as the defence of justification in his brief
of argument. This summarises the appellant's case.
As can be seen the appellant's
case put in a nutshell is one of total failure on the part of the
prosecution to prove its case beyond reasonable doubt and that having, as it
were, failed in that regard it tantamount to a miscarriage of justice for
the trial court to convict and sentence the appellant for these offences and
even moreso a grave error for the court below to uphold the said conviction
and sentence. Because of the peculiar nature of this case I have taken great
care in articulating the appellant's submissions thereof so expansively on
the three issues posed in this case.
The respondent on the other
hand, on issues 1 has submitted that the inference to be drawn from the
evidence of p.w.2, p.w.5 and p.w.6 shows that the appellant conspired with
other co-accused to kill the deceased. The respondent also has reverted to
extra judicial confessional statement of the appellant, that is, Exhibit K1
(English transaction) in which he has outlined his role in this heinous saga
of an offence to support the contention that acting in concert with his
co-confederates they killed the deceased.
On Issue 1 - that is, the
offence of conspiracy under Section
97 of the Penal Code, the respondent has submitted that the agreement to
kill the deceased has to be inferred from circumstantial evidence of p.w.2,
p.w.5, and p.w.6 as per the principle settled in Obiakor v.
The State-NSCQR
972 at 930
and
Ahmed v. The
State (1998) 1 AIR 77 Furthermore, and rightly in my view, that the acts
or omission of any of the conspirators done in furtherance of the common
design arc receivable in evidence against any other or others of the
conspirators and that the appellant need not have inflicted physical assault
on the deceased as propounded in the case of Abacha v.
The State (2002) 11
NSCQR 346 at 353
to be a party to the offence of conspiracy.
The appellant having spent a large chunk of its brief discussing this issue,
I think, I should deal with it firstly.
Having rehearsed over and over
again the parties' cases on this issue as presented in their respective
briefs of argument on the backdrop of the evidence of the prosecution
witnesses thereof, I see no
reason for not upholding the respondent's submission that the prosecution
has proved its case of offence of conspiracy as encompassed under
Section 96 of the Penal Code
against the appellant beyond reasonable doubt. Section
97 of the Penal Code, the
punishment section of the offence of Criminal Conspiracy provides:
"97(1)
whoever is a party to a criminal conspiracy to commit an offence
punishable with death or with imprisonment shall where no express provision
is made in this Penal Code for the punishment of such conspiracy be punished
in the same manner as if he had abetted such offence.
2.
Whoever is a partly to a criminal conspiracy other than a criminal
conspiracy to commit an offence punishable as aforesaid shall be punished
with imprisonment for a term not exceeding six months or with a tine or with
both.
Although Section 97 is the
punishment section it is really section 96 that explicates the import of
criminal conspiracy. It is Section 96 of the Penal Code that
conceptionalises the import of criminal conspiracy and for case of reference
it provides that:
"96(1)
when two or more persons agree to do or cause to be done
(a)
an illegal act, or
(b)
an act which is not illegal by illegal
means, such an agreement is called a criminal conspiracy.
(2)
Notwithstanding the provisions of subsection (1); no agreement except
an agreement to commit on offence shall amount to a criminal conspiracy
unless some act besides the agreement is done by one or more parties to such
agreement, or is merely incidental to that object."
The import of the provisions
of Section 96 supra has been considered in a long line of cases including
Chianagu v. The State (2002)
2NWLR (pt.750) 225 at 236 para.A.; Obiakor v.
The State (2002)10 NWLR (pt.776) 612 at 628
Upahor v. The State (2003) 6
NWLR (pt.816) 23 at 262
and Idi v. Yau (2001)10
NWLR (pt. 722) 640 at 651
and 658. These cases in summary establish that to secure the
conviction of an accused on a charge of conspiracy it must be proved beyond
reasonable doubt that:-
(1)
The agreement to commit an offence - an illegal act is between two or
more persons.
(2)
That the said act apart from the agreement itself must he express in
furtherance of the agreement.
However, authorities abound to
the effect that agreements under Section 96 of the Penal Code can be
inferred from circumstantial evidence. In this regard the evidence of p.w.2,
p.w.5 and p.w.6 becomes very crucial bearing in mind that the appellant as
the 2nd accused before the trial court rested his case on the
prosecution's case. In this regard, I have to examine the evidence of P.w.2,
P.w.5 and P.w.6 in relation to this question.
Firstly the P.w.2’s
testimony English Translation from Hausa as per the Record al page 42-44
runs thus: (male Muslim, speaks Hausa, affirmed)
"'My name is Aliyu Magga. I
live at Randali village in Birnin Kebbi Local Government Area. I am a
farmer. I know the 1st accused Musa
Yaro, I know the 2nd accused, the 3rd accused,
5th accused and 6th accused very. I also know one
Abdullah Umaru. He is now dead.
I returned to Randali around
3:00 am and was in my house when the 1st accused Musa Yaro, one
Mamman Dambu Umaru Kaza (2nd accused), Abdullah Ada (4th
Accused), Suleiman Danta Aunabi (6th Accused) along with some
other people whom I did not know woke me up and that I should come out as I
am lucky because they would have killed me if they had not seen Abdullah.
When I came out, they asked me whether I knew exactly what Abdullah said
about the Prophet and I told them that I didn't know. I however asked them
to go to the house of our village head and we went together. At the house of
the village head, I called the attention of one Shehu Yalliya and Ustaz
Mamman on what was happening. Then Ustaz Mamman read a verse from the Holy
Quran and translated it in Hausa to the 1st accused and his group
which included the other accused persons, that it is not their
responsibility to punish a person who insults the Prophet but that it is
only the authority that will punish him. The accused persons led by the 1st
accused were not satisfied with the explanation and they just went away
towards Kardi village and I followed them. On getting to Danfili within
Randali Market one Shehu Yanliyya asked me to go through the motor park so
that I can find people who will go with me to Kardi in order to rescue
Abdullah even by force. I only got Baba Sambar; and Abun Dambu and we
proceeded together to Kardi. At then the accused persons and their remaining
group members had proceeded to Kardi.
On reaching Kardi near the
burial ground we already met the late Abdullah being held by Sule Dan ta
Aunabi (6th accused) and Mohammed Sani (3rd accused)
there were so many people around the scene. At then the 1st
accused was not around. I went very close to where Abdullah was being held
and I saw one Abu Maigirgi and Adamu Aljani holding a spear and stick
respectively. Ustaz Mamman was also around and he repeated to the accused
what he said at Randali that it is not their duty to punish Abdulllah. Then
the 5th Accused Dan Shalla came and asked Ustaz Mamman whether he
too is not a Muslim. The 5th accused further asked whether Ustaz
Mamman was using a tape recorder to record what was happening. I used my
torchlight and lit at the tape recorder and only then the 5th
accused got satisfied that the recorder was not being used to record the
happening.
As this was happening, Abu
Dambu came and told me that Abdullah has been slaughtered. Then the accused
persons and their group members started shouting (Allahu Akbar) God is great
and moved away through a footpath into the town. I thought they were going
away with Abdullah and I asked Ustaz Mamman to follow them. But Aba Dambu
repeated that we should go home because Abdullah had been slaughtered. The
incident happened between 3:00 am and 4:00 am. We proceeded to the exact
place where Abdullah was slaughtered and found his corpse close to the
footpath near millet stalks dead slaughtered by the neck full of blood and
we left him there and went back to Randali. There were more than 50 people
at the scene of crime. I only identified those I mentioned because I know
them very well and they cannot deny this fact."
As for P.w.5 his account of
what happened as recorded by the police at p.51 of the record is as follows:
"My name is Atiku Dan Ayi. I
live at Kardi village in Birnin Kebbi Local Government Area. I am a farmer.
I know the 1st, 2nd, 3rd, 4th, 5th
and 6th accused persons very well, I know one Abdullahi
Alh. Umaru. He is now dead. 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
These accused persons pulled
Abdullah Alh. Umaru towards the road leading to Randali
on the out skirt of Kardi near burial ground. As Abdullah was being
held there in our presence, the 1st accused Mallam Musa just
appeared and said whoever abused the Prophet shall be killed. He read a
verse but I can't bring it as read. On hearing this, Muhammadu Sani (3rd
accused) used a matchet which was with him on Abdullah Alh. Umaru on the
head and Abdullah fell down. Then Abubakar Dan Shalla (5th
accused) slaughtered Abdullah with a knife on the neck just like a goat. I
saw the knife used by 5th accused in slaughtering Abdullah but I
can't describe it as he went away with it. When they were sure that Abdullah
died, they all dispersed and ran away. We too left the corpse and went
home."
P.w.6 in his testimony at p.52
of the record (a translation of his Hausa testimony) runs thus:
"My name is Faruk Suleiman. I
am a farmer. I live at Kardi village. I know the 1st,
2nd; 3rd,
4th, 5th and 6th accused persons. I know
Abdullah Alh. Umaru. He is now dead. I know about
the death of Abdullah because I was in my room when Muhammadu Auwal and
Muhammadu Bello came and told me that somebody from Randali insulted the
Prophet (SAW). myself and my friend went to the
Eastern part of Kardi where we met a group of people from Randali standing
while the person who was accused of insulting the Prophet was being held
apart. I looked and found out that it was Abdullah Alh.
Umaru who was being held by the 3rd and 6th accused
persons. I remained there until Abdullah was killed by the accused
persons and people dispersed. That's all."
The appellant in his
confessional statement at p.35 of the record heir English translation of his
Hausa statement to the police states:
"I could remember on 14/07/99
at about 0l00hrs we were sleeping where we normally gathered and lying in
one place, every night. After eating my dinner, I later went to my house and
drop the plate, then Musa Yaro came and meet me and told me that somebody
named Abdullahi abuse Prophet Mohammed 'S.A.W.' there myself Musa Yaro left
and meet Abdullahi Danada, there we decided to proceed to Randali Village
and meet Garba Soja, on reaching, Musa Yaro asked Garba Soja that we heard
one Abdullahi Alh. Umaru abused Prophet Mohammed 'S.A.W.', then Garba Soja
confirmed to Musa Yaro really late Abdullah Alh. Umar did abused Prophet
Mohammed (SAW) there we proceeded to Wakihn Sarki of Randali named Shehu Dan
Yau. on reaching to Shehu Dan Yau, Musa Yaro
asked him is it true that Abdullahi Alh. Umaru abused Prophet Mohammed
‘S.A.W.’ he said yes it is true, which I was not told the time of
abuse the late did, but Shehu Dan Yau wanted to tell us the type of the
abuse the late made, but Musa Yaro ask him not to tell us. It was there
Shehu Dan Yau told us that he has already send 20 people to go and search
for the boy and arrest him and brought to him, then we decided to come back
to our village Kardi, on our way back home, we meet with some of our Village
boys on the road who told us that the boy have been arrested that is
Abdullahi Alh. Umaru inside
The trial court in its review
and findings on the prosecution's case against the appellant vis-a-vis the
charge of conspiracy at p.67 LL6-14 stated thus;
"In the case of the 2nd
accused person the evidence against him is that he was among the group that
went to Randali on inquiry and subsequently returned to Kardi in search of
the deceased. After the deceased was arrested he was also among the people
who came to the house of the Village Head of Kardi to inform him what was
going on. He was further among the group that come (sic) back to the place
where the deceased was being held and remained there until the deceased was
killed. This is supported by the testimony of PWs 2, 5 and 6 and the
voluntary statement of the accused himself as in Exhibit K. This evidence
too is uncontradicted and unchallenged. I am therefore satisfied that the 2nd
accused took part in the conspiracy to kill the deceased."
Concluding this aspect of its
review and findings of the prosecution's case of the 1st to 6th
accused persons i.e. including the instant appellant the trial court from
the third paragraph
at p.68 of the record rightly in my view held that:
"From the above, it is evident
that there is direct evidence of conspiracy against all the accused persons
as in their voluntary statement and testimony of p.w.2 who told the court
how the accused persons confronted him and even threatened to kill him in
place of the deceased at the earliest stage. Furthermore the circumstances
of this case are inferable to the only conclusion that the accused persons
conspired to kill the deceased. In the case of
Onochie v.
The Republic (1966) 1 ANLR 86 it was held that the proof
of conspiracy can even be inferred from the circumstance of a case."
The court below on the other
hand in agreeing with the foregoing abstract has observed at p.117 of LL5-16
thus:
".... it is not in dispute
that all the appellants took part and participated in the unfortunate
incident that led to the gruesome murder or killing of the deceased by name
Abdullahi Alhaji Umaru for the alleged (but unproven) use of abusive,
defaming or insultive words against the Holy Prophet Mohammed (SAW). The
prosecution has led evidence to prove the essential ingredients of the
offences for which the appellants were charged including their confessional
and voluntary statements to the Police which was neither denied nor
retracted from by the said appellants. It is also to be noted as rightly
pointed 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 (sic) not give or call any evidence for their defence."
The foregoing findings cannot
be faulted or flawed as the sole issue taken before the court below by the
appellant ranged on whether the appellant suffered any miscarriage of
justice when the trial court refused to consider possible several defences
open to the appellant and his co-confederates. In this court the instant
appellant has reopened all the questions dealt with at trial court in
addition to the sole issue in the Court below. This act of chopping and
changing a party's case at every stage of the hierarchy of the courts as
here has been frowned upon and roundly condemned in the case
of Jumbo v. Bryanko
Internationals Ltd (1995) 6 NWLR
(pt.403) 545 at
555-6. I have ignored this anomaly, as this is a murder case.
The findings of both courts
below as stated above, I must again emphasis, are unimpeachable. It
certainly cannot be contested on the facts of this case that the fatal act,
that is to say, the heinous act of slaughtering the deceased like a goat by
the 5th accused person and even before then hacking him (the
deceased) down with a matchet by the 3rd accused person with the
common intention of causing him grievous bodily harm and kill him are
outside the scope or tacit agreement of the accused persons to kill the
deceased albeit in furtherance of their common intention to kill him for
insulting the Prophet Mohammed. Again, it is an unchallenged fact that the
appellant was present at and aiding and abetting the others of them
including the 3rd and 5th accused persons particularly
in the execution of the gruesome slaughtering of the deceased. It is my view
that in such circumstances as here the prosecution does not have to prove
that the accused persons were acting in pursuance of a common design of a
prearranged plan; it is inferable from the surrounding circumstances. My
reasoning here certainly begs the question - What did the accused persons
agree to do? Pertinently, this is so in that if what the appellant and the
other accused persons agreed to do is, on the facts known to them, an
unlawful act they are guilty of conspiracy and cannot excuse themselves by
unfoundedly contending that owing to their ignorance of the law they did not
realise as per their Religious persuasion that such act is a crime. I have
here anticipated appellant's claim to the defence of justification. I shall
return to it later. All the same, I hold that the appellant is rightly
convicted of the offence of conspiracy.
On the offence of abetment -
this is covered under Section 85 of
the Penal Code and it provides as follows:
"85.
Whoever abets any offence shall, if the act abetted is committed in
consequence of the abetment and no express provision is made by this Penal
Code or by any other law for the time being in force for the punishment of
such abetment, be punished with punishment provided 1or the offence.
The clear purport of the above
provisions of Section 85 of the Penal
Code is clear to the extent that to secure the conviction of an accused
person as the appellant here the prosecution has the responsibility to
establish as follows:
(1)
That the accused abetted the offence
(2)
That the abetted offence was committed in consequence of the abetment
(These stipulations flow naturally from the definition of abetment as per
the foregoing provisions)
I have set out in extenso the
evidence of P.w.2, P.w.5 and P.w.6 herein in so far as they are relevant to
establish this offence and I shall revert to them anon. The trial court at
p.69 LL16-25 of the record has found as regards this offence as follows:
"In respect of the 2nd
and 4th accused persons, it is in evidence that after the arrest
of the deceased, they ordered for his detention until their return. It is
also in evidence that they told the Village Head of Kardi what was to happen
to the deceased and acted as strong supporters of the 1st accused
following him closely. It was when they came to (sic) scene of crime that
the deceased was callously killed. The acts of the 2nd and 4th
accused persons were supported by the voluntary statement of the accused
persons in Exhibits K and F respectively and the testimony of p.w.2. I am in
agreement with the learned counsel for the prosecution that the ups and
downs and final arrest of the deceased by the accused persons facilitated
his killing. I am satisfied that the prosecution have proved beyond
reasonable doubt the charge of abatement (sic) against the 2nd
and 4th accused persons."
This finding cannot be faulted
as it has brought to the fore the complicity and indeed the liability of the
appellant for aiding and abetting the commission of the heinous crime. The
court below as per the record has not adverted to nor made any specific
findings on this question apart from its overview of the offences for which
the appellant was charged as per my excerpt above i.e. as per p.117 LL5-16
of the record. As I observed herein this question has not been raised as an
issue for determination before the court below hence it did not consider it.
For my part I must turn to
examining this question by scrutinising the distinction between the offences
of conspiracy and abetment as properly accentuated by the trial court in its
judgment at p.66 LL13-22 of the record where it said thus:
"I am of the view that from
the nature of the provisions of
Section 85 and 97 of the Penal Code the two provisions are distinct.
Conspiracy is distinguished from abatement (sic) in that the crime consists
of simply in the agreement or confederacy to do some act, no matter whether
it is done or not. In the other (i.e. abatement) (sic) the intention to do a
criminal act is not a crime itself until something is done amounting to do
or attempting to do some act to carry out the intention. More so the offence
of abatement (sic) deals only with offenders who may be described as
accessories before the fact and at the fact. Abattors (sic) must have
committed acts or omissions which must take place in pursuance of the
conspiracy. I therefore find the two charges as framed by the prosecutions
are distinct."
This is a correct statement of
the law on the distinction between conspiracy vis-a-vis abetment and I
uphold it. The exposition recognises the distinction between the persons
otherwise known as principals in the first degree who actually did the
criminal act and those other parties or co-confederates who are secondary
parties present at and assisting in the commission of the felony, for
example by keeping watch. And so conspiracy is distinguishable from
abetment; the two offences have different ingredients, in the case of
conspiracy prior agreement is necessary, it is not so in abetment. See
Mohan v. R (1967) 2 AELR
58.
I have followed meticulously
the evidence of p.w.2, p.w.5 and p.w.6 as per the record indicating that the
appellant and his co-accused persons were present at and assisting in the
commission of the offence of killing the deceased by slaughtering him.
Although the appellant is apparently a secondary party to this crime
according to the law he has been rightly convicted and punished as a
principal offender (i.e. as the 3rd and 5th accused
persons) who did the criminal act, and I so hold.
I now turn
to the offence of
culpable homicide punishable with death under section
221 (a) of the Penal Code which
section provides as follows:
"221
(a)
Except in the circumstances mentioned in
section 222 culpable homicide shall be punished with death
(b)
If the act by which the death is caused is done with the intention of
causing death."
By the foregoing provision the
prosecution is to establish the following elements beyond reasonable doubt
to secure conviction lo wit;-
(a)
That there was a death of human being
(b)
That the death was caused
by the act of the accused Person
(c)
That the act of the accused person was done with intention of causing
death.
At the trial of the appellant
and his co-confederates the evidence of p.w.2, p.w.3, p.w.4, p.w.5 and
Exhibit D as per the prosecution witnesses as found by the trial court has
established beyond reasonable doubt all the above ingredients of the offence
of culpable homicide punishable with death to secure the conviction and
sentence of the appellant by hanging. On the first element the prosecution
has proved the death of the deceased being i.e. Abdullahi Alhaji Umaru,
P.w.3, a brother to the deceased testified to the effect that he came to
Kardi village and found the corpse of his brother who had been slaughtered.
P.w.2, p.w.4, p.w.5 and p.w.6 all testified that the deceased was severely
beaten and matchcted by the neck and eventually slaughtered to death by
cutting his throat. This gruesome and chilling account of this callous
murder was further corroborated by Exhibit D - the medical report and
Exhibits E, El, E2, E3, F, Fl, G, G1, H, HI, J and J1 and exhibits K and K1
in particular that is, the extra judicial statements of the accused person
confessing to the crime.
On the 2nd element
- as rightly found by the trial court, it was the appellant and other
accused persons who killed the deceased. I have expatiated on this aspect of
the crime above and I need not even then flog that aspect of the case any
further see: R v. Isa (1965) ANLR 68 and Erik
Uyo v. AIG Bendel
State (1986) 1 NWLR
48.
The appellant as the 2nd
accused person made a confessional statement Exhibits K and K1 so also did
other accused persons charged along with the appellant - this was
corroborated in every material particular by the testimonies of p.w.2, p.w.5
and p.w.6 and Exhibit D. Exh. D has described the injuries inflicted on the
deceased thus: "...„ severe signs of violence around the neck cutting all
the blood vessels around the neck and the air way thereby resulting in the
death of the deceased on the pot" There can be no doubt that the conviction
of the appellant and 5 other accused persons for causing the death of the
deceased is well grounded. See Bwoshe v.
The State (1972) 6
SC 93,
Kan Dan
Adamu v. Kano N.A. (1956)
1 FSC25.
On the 3rd
ingredient i.e., whether the act was done with intention of causing death.
All the accused persons it is
agreed were present at the scene of the crime and each of them including the
appellant assisted in the commission of the offence of slaughtering the
deceased. The evidence as per the record has acknowledged signs of violence
around the neck region of the deceased, cutting of all the blood vessels and
the air ways as per Exhibit D. The murder weapons, that is to say, the
matchet and the knife Exhibit A used by the 3rd and 5th
accused persons respectively are no toys. These are dangerous weapons that
can cause grievous bodily harm and as they did here. P.w.3 has testified as
to how the deceased was cut with a matchet by the 3rd accused
who struck him down by the neck with a matchet
and slaughtered by the 5th accused with a knife while the other
accused persons including the appellants abetted the crime. The accused
persons including the appellant intended not only to cause the deceased
grievous bodily harm but to kill him. See George v.
The State (1993) 6
SCNJ 249 at 257.
From all accounts of this matter the appellant and his co-confederates
must have intended the consequences of their act and must take the
consequences. As for the appellant, the 1st and 4th
accused persons the prosecution's case has showed them not to have used any
physical assault against the deceased. The trial court nonetheless and
rightly for that matter found conclusively that all accused persons i.e. 1st
to the 6th were joint actors i.e. participes in criminis. In
discussing their complicity and liability in this matter the law is settled
that where persons have embarked on a joint enterprise, each is liable
criminally for the act done in pursuance of the joint enterprise and even
including unusual consequences arising from the execution of the joint
enterprise see R v. Anderson and Morris (1966) 2 AER 644; Nyam v.
The State (1964) 1 ANLR 361 and
Buje v.
The State (1991) 4
NWLR (pt.185) 287 at
298-304. It is clear that right from the outset of this
despicable saga that the appellant and the other accused persons left Kardi
village with the avowed intention apparently fired by the unproven rumour
that Abdulahi Alhaji Umaru had insulted Prophet Mohammed to put the deceased
to death.
The trial court therefore,
rightly in my view held thus: "at p.74 LL1-3: "I am therefore satisfied that
1st, 2nd and 4th accused persons (including
the appellant) were equally guilty under section 221(a) of the Penal Code. I
found that the act of accused persons was done with the intention of causing
the death of the deceased." (Words in bracket supplied) And I agree and also
so hold."
Reverting to the confessional
statement of the appellant Exhibits K and K1, I agree with the submissions
of the respondent and also the finding of the trial court that the
confessional statement of the appellant as per Exhibits K and K1 has
remained as proved by the prosecution positive, direct, voluntary and
consistent confession as to the offences charged and that from the
prosecution's case which the trial court rightly accepted that the appellant
had every opportunity as well as all of his co-confederates to commit the
offence of murder see: Kanu
v.
The State (1952) 14
WACA 30 at 32. There are factors external to Exhibits K
and K1 I have showed herein in clear support of the trial court's reliance
on Exhibit K and K1 to convict the appellant. And as held by the trial court
I see no reason therefore, declining to act on appellant's confessional
statement again, particularly when it has been endorsed by a superior police
officer attesting to its voluntariness and was tendered at the trial without
any objection. In regard to the appellant, Exhibit K and K1 have not been
retracted. The confessional statement is so conclusive as to sustain by
itself alone the conviction of the appellant.
The appellant has raised
questions of contradictions in the testimonies of the prosecution's
witnesses as regards 2nd, 5th and 6th
witnesses so much so that I cannot gloss over it. He has dwelt passionately
on p.w.2's evidence as per Exhibit C and his oral testimony before the trial
court. Exhibit C, the critical exhibit in this regard, for case of reference
reads as follows:
"I of the above given name and
address wish to state that: on Wednesday 14/7/99 at about 2000 hours when I
was coming from Randali Garrage, heading to market field, I met with one
Mamman Aboho who gist me that Abdullahi Alh. Umaru was said to have abused
Prophet Mohammed and that me being his friend shall find a solution to how
the friend Abuilahi will escape that the issue had even reach the village
head but he was not found at home. On hearing this information I later saw
Abdullahi then I invited him to his mother Amarya Alh. Umaru and then
demanded transport money from the mother to enable Abdullahi leave the town
to some where, but the mother said that she have no money to give Abdullahi
then I later advice Abdullahi to park his properties and go. Immediately we
finish discussing one Shugaban Samari arrive with Dan Ashibi and Danladi
Umaru Giwa and called me, as I went Abdullahi left then these '3' persons
still went to the town telling people that I asked Abdullahi to go, and that
if they did not see Abdullahi, I will be held responsible with that, I ran
to Kardi to find out from one of his friend called Bello Aliyu and Bello
told me that he did not see Abdullahi then I told him about the incident
that happened, and I also advised him that in case if he see Abdullahi let
him take him to the Police Station, or hide him somewhere and ran to inform
Inspector Sule Dogon Yaro that my life is in danger that people says if they
did not see Abdullahi, they will hold me responsible and that Abdullahi
abused Prophet Mohammed and if he is seen he should be arrested and hidden,
then the Inspector told me that he will take care, then I went back to
Randali when I was in my room sleeping at about 0 300 hours Mallam Musa
Yaro, Shugaban Samari and others came and woke me up and they told me that I
was lucky that they have arrested Abdullahi and that did I witness that kind
of insult altered to the Prophet? I said no, then
they all left.
And I later went and woke
Shehu Yalliya and Mamman Dan Mallam and went to Kardi to rescue Abdullahi.
As we reached Kardi, we met people surrounded with Abdullahi then Mamman Dan
Malami who was in possession of tape recorder warned the crowed that,
Islamically it is not right to touch whoever abused Prophet Mohammed, but
that such person should be taken to the authority concerned. But they
insisted, that Mamman Dan Mallam is a fake Moslem they attempted to damage
his tape. We made our rescue the deceased, but we were too limited. And
after the struggling, one Abu Magaji drew my attention to one side
arguing on why Abdullahi must be killed, then, one Abu Danbu whom we, went
together to rescue the deceased later came and informed me that, we have to
go home because they have killed Abdullahi then we left back to Raodali."
The pieces
of contradictions with regard to PW 2 as per para.29at p.20 to para.
32 of the appellant's brief read thus:
"29.
In Exhibit C, he told the police that he ‘invited him (Abdullah) to
his mother Amarya Alh. Umaru and then demanded transport money from the
mother’ in his evidence in chief he said ‘On hearing this I returned to the
motor park where I met Ahdullahi Alh. Umaru and called him and went with him
to his mother's place along with one of the brothers of the deceased called
Kallamu part of the spicing of his evidence is that. In his evidence in
chief is that while he forgot immediately the incident took place to mention
that deceased's brother Kallamu was with him when he look the deceased's
mother, he remembered it in his evidence in chief in Exhibit C he said 'One
Shugaban Samari arrive with Dan Ashibi and Danlarii Umaru Giwa and called
me, as I went Abdullahi left then these '3' persons still went to the town
telling people that I asked Abdullahi to go and that if they did not see
Abdullahi I will be held responsible.
30.
In his evidence in chief he said: 'the mother did not give him the
money As we were coming out we met with 3 people
namely Mamman Damfau., Dan Ashibi and Daladi Umaru Giwa and they asked me to
follow them. We went to the motor park where, they looked for Abdullahi but
he was not seen as he sneaked away when we were going to the Garage'.
The 'we'
that 'were coming out' including the deceased since he was the one that was
taken to his mother's place.
How come he PW2 was seen and deceased was not seen that they have to go
looking for him.
31.
In Exhibit C PW2 wrote:
When I was
in my room sleeping at about 0300hrs Mallam Musa Yaro, Shagab and Samari and
others. But in
spicing up his evidence and in an attempt to rope in the Appellant said 'I
returned to Randali around 3.00am and was in my house when the 1st
accused Musa Yaro, one Marnman Dambu, Umaru Kaza (2nd accused),
Abduliahi Ada (4th
Accused), Suleiman Danta Aunabi (6thAccused) along with some
Other people whom I did not know woke me up and that I should come out one
begins to wonder why the PW2 failed to mention the names of the 2nd
accused person (Appellant) in his Exhibit C which was a
statement made two days after the incident but suddenly remember this name
in his oral evidence on 19th January, 2000 almost six months
after the incident,
32.
This witness alleged that he along with some other persons attempted
to rescue the deceased but that while were still trying to rescue the
deceased, somebody came to inform him that the deceased had been killed. One
then wonders where this witness was trying to rescue the deceased that
somebody has to come from somewhere to inform him that the deceased whom
this witness was trying to rescue had been killed."
It is submitted that these
alleged contradictions go to the root of the entirety of the prosecution's
case against the appellant and ought to have been countenanced by the trial
court and even moreso by the court below. And, that if it had been upheld it
would have left the prosecution's case weak, insufficient and unreliable and
devoid of any credible materials to sustain the conviction of the appellant.
See Ani v. State (2003) 11 NWLR
(pt.830) 142 at 162 paras.
B-D, pt.I66.
A-B,
at 171 para.D-G.,
Akpabio v. State (1994) 7
NWLR (Pt.359) 655) at 660-661
paras.
G-A,
at paras. D-E.
Respectfully, I think the
appellant's complaints here amount to no more than a storm in the tea cup. I
entirely agree with the respondent's statement of the law at paragraph 7.4
of the respondent's brief of argument on this question to the effect that
"there can only be
contradictory evidence where a piece of evidence contradicts another when it
affirms the opposite of what that other evidence has stated not when there
is just a minor discrepancy between them. Thus, for any conflict or
contradiction in the evidence of the prosecution witnesses to be fatal to
the case, it must be fundamental to the main issues before the court."
See Agho v.
The State
I have more or less rehearsed
the areas of contradictions as raised as per the appellant's brief of
argument vis-a-vis the evidence of the prosecution's witnesses at the trial
court and I find no such conflicts or contradictions but minor discrepancies
or inconsistencies in the testimonies of p.w.2 and p.w.5 at the trial in
terms of chronology or sequence of events. This is only natural in a case of
this kind and they are as can be expected in human affairs. There is no
merit on this question and I reject the insinuation.
In the result issue I is
resoundingly resolved against the appellant.
On issue 3 i.e. on
whether the defences of provocation and justification avail the appellant,
if I may add, on the peculiar circumstances of this case. The appellant in
his brief of argument has left no stone unturned in making his point in this
regard. It is trite law that a court trying a criminal case as here must
consider all the defences raised by the accused and all other defences which
surfaced in the evidence before the court however slight or minor. See:
Ahmed v.
The State (1999) 7
NWLR (pt.612) 641 at
679 para. D. Having taken the point in this regard, the appellant
has, therefore submitted that the killing of the deceased was done in
retaliation for insulting Prophet Mohammed as clearly borne out by Exhibits
K and K1 i.e. the voluntary statements of the appellant.
It is settled that for an
accused as the appellant here to avail himself of this defence he has to
satisfy certain conditions as stipulated under S.45 of the Penal Code which
reads 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."
The conditions for the defence
of justification to apply arising from the foregoing provisions are:
"(1)
That the criminal act is justified by law
(2)
That the criminal act was done as a result of mistake of fact not
mistake of law.
(3)
That the act was done in good faith believing same to be justified by
law in doing it."
See: Lado v.
The State (1999) 9
NWLR (pt.619) 369 at 381;
R v.
Adamu (1944) 10
WACA 161; Akalezi v.
The State (1993) 2 NWLR (pt.27301
at
14; Ubani v.
The State (2001)
FWLR (pt.44) 483 at
490; Ekpenyong v. The State (1993)
5
NWLR (pt.295)
513
at 522. I hold the view that the appellant's claim to the
defence of justification is wrong footed on the premises that he cannot
excuse himself of this heinous crime by contending that owing to his
ignorance of the law he did not realise that the act of killing the deceased
on the peculiar facts of this matter is a crime. After all entitlement to
this defence has to be rooted in good faith, which is not the case here.
It is also significant here
that the only evidence the appellant and his co-confederates have against
the deceased is the unproven rumour that the appellant and his co-accused
overheard, that is, hearsay allegation that the deceased had insulted
Prophet Mohammed in a neighbouring
The appellant also has taken
issue with the failure of the courts below to give due consideration to the
defence of provocation. Section 221(1) of the Penal Code has provided for
this defence and it reads:
"221(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 any other person by mistake or accident,"
Therefore, for the appellant
or an accused person to avail himself of this defence he has to establish by
evidence the following conditions to wit:
"(a)
That the act of provocation is grave and sudden
(b)
That accused lost self control, actual and reasonable
(c)
The degree of retaliation by the accused person must be proportionate
to the provocation offered. See
Ihuebek v.
The State
(2006) 5 SCNCR 186
(vol.2)
and
Shande v. The State
(2005) 22 NSCQR 756.
"
Again, if I must repeat, this
defence as in the case of justification cannot be taken or indeed discussed
in vacuo. By its peculiar nature it must be predicated upon the evidence
accepted by the court. Again, if I must repeat, and even more importantly
the evidence upon which the appellant as well as his co-accused has rooted
his plea of provocation is the overhearing of the rumour making rounds in
Randali village that the deceased insulted Prophet Mohammed (SAW). As I
stated earlier the exact insultive words have not been proved to the courts
below as there is no evidence to that effect and so it is a fundamental flaw
and must fail. The appellant, if I may recall, did not give evidence in his
own defence at the trial having rested his case on the prosecution's case.
Meaning in effect that the defence of provocation is as
founded, if at all, as per the case of the prosecution. And in the
absence of the exact insultive words uttered by the deceased about Prophet
Mohammed there can be no basis for considering the defence of provocation;
it is even not clear to whom the insultive words were uttered certainly not
to the appellant. He has not contended that the words were directed to him.
I wonder if the defence of provocation could avail him on these facts. It
cannot in this instance be taken in vacuo as it would tantamount to working
on mere speculation and so, it is a non-starter.
On the foregoing basis it is
not possible to determine whether the defence avails the appellant.
See Ahmed v. The
State (1999) 7 NWLR (pt.612) 641 at 684. Idemudia
v. The State (1992) 7 NWLR. 356.
Therefore, it does not arise for consideration in this ease whether the
insultive words were even uttered to the appellant or could be sustained on
mere rumour. Even more so, the provocative act as reported by the
co-accused, Musa Yaro, the 1st accused, cannot in law be a ground
for the appellant to kill the deceased, it is too far fetched to say the
least.
In conclusion, I find no merit
in the appeal; the court below rightly in my view rejected the pica of
provocation as it is on the whole highly speculative. I also resolve this
issue against the appellant.
Finally, this appeal is
unmeritorious. I dismiss, it and uphold the conviction and sentence passed
on the appellant by the trial court ‘as’ affirmed by the court below.
Judgment Delivered by
Niki Tobi, JSC
The appellant was the 2nd
accused person in the High Court. He was the 6th appellant in the
Court of Appeal. The case of the prosecution against him is that he and some
other person (3rd accused) killed the deceased on the ground of
an allegation that the deceased was blaspheming the Holy Prophet (SAW).
The appellant and others were
charged with criminal conspiracy and culpable homicide contrary to sections
97 and 221(a) of the Penal
Code respectively. He pleaded not guilty to the charges. The learned
trial Judge convicted and sentenced the appellant as charged. He was sent to
the gallows. His appeal to the Court of Appeal was dismissed. He has come to
this court.
Briefs were filed and duly
exchanged. The appellant formulated three issues. The respondent adopted
them. The issues read:
"1.
Whether the prosecution proved the case of conspiracy, abetment and
murder against the appellant.
2.
Whether mere presence at a scene of crime proof of actual
participation in the commission of the crime.
3.
Whether the defences of provocation and justification avail the
appellant."
Arguing
Issues Nos.1and 2 together,
learned counsel for the
appellant, Mrs J O. Adesina,
reproduced sections 85, 97(1) and
221(a) of the Penal Code and contended that it is vital that persons
accused of criminal conspiracy
must have
agreed to
do or
caused to
be done Agreement,
counsel contended, is
therefore the live wire of criminal conspiracy.
He cited Chianagu v.State
(2002) 2 NWLR (Pt 750) 225 at 236;
Obiakor v. State (2002) 10 NWLR (Pt 776) 612 at 628, Upahar v.State (2003) 6
NWLR (Pt. 816) 230 and Idi v. Yau (2001) 10 NWLR (Pt 722) 640 at 651.
Referring to the statements of
the appellant, 1st accused, 3rd accused, 4th
accused, 5th accused, Exhibits K, J1, E-E3, F1 and G1
respectively, learned counsel submitted that the essence of conspiracy
is the fact of combination by agreement, which may be implied. The
conspiracy arises and the offence is committed as soon as the agreement is
made and the offence continues to be committed so long as the combination
persists, that is, until the conspiratorial agreement is terminated by
completion of its performance or by abandonment or frustration or however it
may be. The actus
For the appellant's conviction
for the offence of conspiracy to be sustained, the prosecution has to prove
the ingredients of the offence against him. The prosecution has to first
establish that there was an agreement to kill the deceased or the essential
ingredients of the offence. Citing
Yakasai v. Nigerian Air Force
(2002) 15 NWLR (Pt. 790) 294 at 314, learned counsel argued that the
appellant could not have conspired with himself and teleguided his
conspiracy to others for execution On the burden of proof placed on the
prosecution, counsel cited Shonde v.
State (2005) 12 NWLR (Pt 939) 301
at 320. He pointed out that PW2 contradicted himself in his statement to
the police (Exhibit C) and his oral testimony in court and argued
that the contradictions go to the root of the entire case and therefore
cannot be waived as mere discrepancies He cited
Ani v. State (2003) 11 NWLR (Pt. 830)
142 and Akpabio v. State (1994) 7 NWLR (Pt. 359) 635
Taking the evidence of PW5,
learned counsel contended that it is not a crime just to be present at the
scene of crime. He cited Nwakwo v.
State (1990) 2 NWLR (Pt. 134) 627
at 636. He pointed out that PW6 did not say anything relevant on the
offence of conspiracy against the appellant and so the Court of Appeal was
in serious error to have affirmed the appellant's conviction for criminal
conspiracy He cited Emeka v.State
(1998) 7 NWLR (Pt 559) 556 at 583.
Counsel submitted on Issue No.
3 that a court trying a criminal case must consider all the defences raised
by the accused and all other defences surfaced in the evidence before the
court however slight. Citing Ahmed v.
State (1999) 7 NWLR (Pt. 612) 641, learned counsel argued that the
defence of provocation availed the appellant. He urged the court to quash
the conviction of the appellant and allow the appeal on the ground that the
defence of provocation availed the appellant.
Learned counsel for the respondent,
Mr I. K Sanusi, submitted on Issue No. 1 that the prosecution will
only secure conviction against the appellant on the offence of conspiracy
under section 97 of the Penal Code
where it is established the following elements beyond reasonable doubt:
(a)
The agreement between two or more persons to commit an illegal act
(b)
That some act besides the agreement between one or more persons in
furtherance of the agreement.
Counsel contended that because
of the nature of the offence of conspiracy, it is rarely or seldom proved by
direct evidence but by circumstantial evidence and inference from certain
proved facts. He cited Obiakor.
V State (2002) 10
NSCQR 972 and Ahmed v. State (1998) 1 ALR 71.
He said that the only inference which can be drawn from the evidence of PW2,
5 and 6 is that the appellant conspired with others (five co-accused
persons) at the trial to Kill the deceased He also relied on the
confessional statement of (he appellant. Relying on
Abacha v. State (2002) 11 NSCQR 346
at 353, learned counsel contended that the prosecution had adduced
enough evidence to convict the appellant for the offence of conspiracy under
section 97 of the Penal Code and was therefore rightly convicted by the
trial Judge.
On the offence of abetment,
counsel contended that the prosecution will be entitled to conviction if it
established the following elements beyond reasonable doubt: (a) The accused
abets the offence; (b) The abetted offence was committed in the consequence
of the abetment. He referred to the evidence of PW2 and 5 as well as the
confessional statement of the appellant and-submitted that there is enough
evidence in the record to convict the appellant for the offence of abetment
under section 85 of the Penal Code.
On the offence of culpable
homicide punishable with death, learned counsel submitted that the
prosecution is to establish the following elements beyond reasonable doubt
before securing conviction, viz: (a) That there was a death of human
being, (b) that the death was caused by the act of the accused (c) That the
act of the accused was done with intention of causing death. Relying on the
evidence of PW2, 3, 4, 5 and Exhibit 0, counsel submitted that the
appellant was rightly convicted of the offence He argued that there was no
material contradiction in the evidence of the prosecution witnesses which
may warrant the setting aside the conviction and sentence passed on the
appellant He cited Agbo v. State
(2006) 25 NSCQR 137 at 143.
On the defences of
justification and provocation, learned counsel submitted that they were not
made out by the appellant. He cited
Araba v. State (1981) 2 NRC 110
at 117
lhuebeka v. State (2000) 5 SCNQR 186; Shade v. State (2005) 22 NSCQR
756, Ahmed v.State (1999) 7 NWLR (Pt. 612) 641 and Idemudia v. State (1992)
7 NWLR 356. He urged the court to dismiss the appeal.
Black's Law Dictionary
defines conspiracy as a
combination or confederacy between two or more persons formed for the
purpose of committing, by their joint efforts, some unlawful or criminal
act, or some act which is lawful in itself, but becomes unlawful when done
by the concerted action of the conspirators, or for the purpose of using
criminal or unlawful means to the commission of an act not in itself
unlawful See
Black's Law Dictionary (Sixth
edition) page 309.
This most comprehensive
definition says it all. The bottom line of the offence is the execution of
an unlawful purpose by an unlawful means, and that unlawful purpose is the
criminality involved. While the words "combination" and "confederacy" may in
general parlance generally convey the same meaning with conspiracy, the
latter parts ways with the former in one basic respect and it is the doing
of an unlawful or an illegal act. While I concede that the unlawful or
illegal nature of an act could also be found in combination and confederacy,
that is better reserved to conspiracy in criminal law, as an agreement
between two or more persons to behave in a manner that will invariably or
automatically constitute the commission of an offence by two persons or by
at least one of them The offence of conspiracy can only be committed if
there is a meeting of two or more minds. The offence cannot be committed by
one person because that person cannot be convicted as a conspirator, the
meaning of which is one involved in a conspiracy.
In my view, the offence of
conspiracy is not necessarily said to be committed only when an accused
person in his confessional statement said "I conspired with a co-accused to
commit the offence." He needs not use the exact word, conspire. On the
contrary, the offence could be said to be committed by the action or conduct
of the accused person. While two or more persons committing the same offence
may not always give rise to the commission of the offence, it could be so in
a number of cases. In the offence of conspiracy, the mens rea is not
easy to locate as it is mostly, if not invariably, buried in secrecy And so,
the actus reus of the offence which is easier to locate can draw the
mens rea to the open, and make it possible for the court to find
inculpatory evidence.
From the above, I sift the
following ingredients of the offence of conspiracy:
(i)
There must be an agreement of two or more persons.
In other words, there must be a meeting of two or more minds,
(ii)
The persons must plan lo carry out an unlawful or illegal act, which
is an offence.
(iii)
Bare agreement to commit an offence is sufficient.
(iv)
An
agreement to commit a civil wrong does not give rise to the offence, as
section 97(1) of the Penal Code provides only for criminal conspiracy.
(v)
One person cannot commit the offence of conspiracy because he cannot
be convicted as a conspirator.
(vi)
A
conspiracy is complete if there are acts on the part of an accused person
which lead the trial court to the conclusion that he and others were engaged
in accomplishing a common object or objective.
I go to the offence of
abetment. Abetment is an act of encouraging, inciting or aiding another. The
verb variant "abet" means to encourage, incite or set another on to commit a
crime. An abettor is an instigator, or setter on; one who promotes or
procures a crime to be committed See Black's Law Dictionary (Sixth edition)
page 5. Abetment is easier to prove than conspiracy because it entails or
involves more overt actions.
For an accused person to be
convicted of abetment, under section 85 of the Penal Code, the prosecution
must prove the following ingredients (i) That there was an encouragement,
incitement, setting on, instigation, promotion or procurement of offence,
(ii) Any of the above acts must be positive and unequivocal specifically
addressed to the commission of the offence, (iii) The act abetted must be
committed in consequence1 of the abetment, (iv) An accused person
could be convicted of the offence of abetment on proof by the prosecution of
any of the acts mentioned in (i) above. In other words, the acts mentioned
in (i) above are in the alternative and not cumulative.
An encouragement here means an
act of making someone to feel brave or confident enough to do something by
giving active approval in support of the crime. Incitement also has the
element of encouragement. By incitement, the person is provoked by a strong
passion or feeling to commit an offence. The word "set" is a word of quite a
number of synonyms. The two words "set on" connote the semblance of causing
to attack or chase like one may say the fisherman prepared
the bate to set on the fish. It also has the
element of antagonism. An
instigation, the act of instigating, means something happening
by the action or conduct of a person, who is the starter.
By the act of instigation,
the co-accused is propelled or gingered to commit an offence I think I can
stop here I need not go to the "promotion" or "procurement" as they are
parasitic on the above words I have examined in the sense of bringing into
being or fruition the main offence. I do not think
will be going outside section 85 of the Penal Code if I say that the
above exercise of etymology is within the section and should be so
construed; the words put separately.
I go to the offence of
culpable homicide.
The ingredients to the offence of culpable homicide punishable with death
under the Penal Code are as follows: (a) the death of the victim, the
deceased; (b) the death was a result of the act
of the accused
person; (c) that the
accused knew that his act will result in death or did not care whether the
death of the deceased will result from his act. As it is, the actus
Was there any evidence of
conspiracy and abetment? Was there any evidence of culpable homicide
punishable with death? Learned counsel for the appellant submitted that
there was no evidence of conspiracy and abetment arid that there was
adequate defence to the offence of culpable homicide punishable with death.
Learned counsel for the respondent took the opposite position. Who is right?
PW2, in his evidence in-chief said at pages
42 and 43 of the Record.
"I returned to Randeli around
3.00 am and was in my house when the 1st accused Musa Yaro, one
Mamman Darnbu, Umaru Kaza (2nd accused), Abduliah Ada (4th
accused), Suleiman Danta Aunabi (6th accused) along with some
other people whom I did not know woke me up and that I should come out as I
am lucky because they would have killed me if they had not seen Abdullah.
When I came out, they asked me whether I knew exactly what Abdullah said
about the Prophet and I told them that I didn't know. I however asked them
to go to the house of our Village Head and we went together. At the house of
the Village Head, I called the attention of one Shehu Yalliya and Ustaz Mam
man on what was happening. Then Ustaz Mamman read a verse from the Holy
Quran and translated it in Hausa to the 1st accused and his group
which included the other accused persons, that if is riot their
responsibility to punish a person who insults the Prophet but that it is
only the authority that will punish him. The accused persons led by the 1st
accused were not satisfied with the explanation and they just went away
towards
Under cross-examination,
witness said at page 44 of the Record:
"It was the 1st, 2nd
and 4th accused persons who went to the house of the Kardi
Village Head to inform him that they were going
to kill Abdullahi"
The appellant in his statement
to the police translated from Hausa to English language,
Exhibit K1 said that
upon an information by the 1st accused
that the deceased abused Prophet Mohammed, he and the 1st and 4th
accused wont to the scene of crime in Kardi Village They met the deceased
alive. The deceased was thereafter surrounded by the 1st, 5th,
6th accused and some other persons. Although the village head
asked for mercy, 1st accused read a word from the Qu'ran saying
Masabba Rasullihahi Kutoilla
which means whoever abused Prophet Mohammed "SAW" God said he
should be killed. Immediately 1st accused said that 3rd
accused macheted the deceased with cutlass and he fell down. 5th
accused person slaughtered the deceased with a knife While this was
going on, 1st accused was in possession of an iron stick and
appellant was with a torchlight.
I see a clear act of
conspiracy and abetment of the offence of culpable homicide punishable by
death on the part of the appellant.
The conspiracy started right from the moment
1st accused
person told the appellant in that fateful night that the deceased abused
Prophet Mohammed. In the trip to
The following is the most
significant and telling aspect of the statement of the appellant at page 36
of the Record:
"We then returned back to
where Abdullahi Alh. Urnaru is (sic) arrested before we could reach those
people who arrested him took him to the bush. On reaching the bush, Musa
Yaro read a word from the Qu'ran saying 'Musabba Rasullilahi Kutoilla' that
is to say who ever abused Prophet Mohammed SAW, God said he should be
killed. Immediately Musa Yaro said this one Sani Aci B/Kabbi macheted the
said Abdullahi Alh Umaru with cutlass. He fell down. Then when he fell down
Abubakar Dan Shallah slaughtered the boy with a Knife. As we were there he
Musa Yaro was in possession of an iron stick while I was with torchlight."
The crime was committed at
night and that was why the appellant was with torchlight to produce light.
Can appellant really provide any exculpatory evidence in the light of his
own inculpatory evidence? Although appellant did not say in his statement
what he used the torchlight for it is clear that it was to provide light for
3rd and 5th accused persons to kill the deceased. The
actus reus of culpable homicide punishable with death is the causing
of death of a person in rerum natura The confessional statement of
the appellant and the evidence of the prosecution witnesses particularly PW2
pinpoint the appellant in the commission of the offences he was charged with
And what is more, Exhibit D is not even helpful to the appellant.
And that takes me to the
defences of justification and provocation. Both are defences in the Penal
Code Justification conveys the usual dictionary meaning in the Penal Code.
It connotes just, and lawful excuse or reason for acting in a particular way
or failing to act in a particular way. In the defence of justification, the
accused person is saying that there was sufficient reason for the act of
killing. Black law Dictionary defines justifiable homicide at page
865 as "killing of another in self-defence when danger of death or serious
bodily injury exists." Although there is no definition of justifiable
homicide in the Penal Code, it is my view that it conveys similar meaning.
The Court of Appeal went into
the defence in admirable detail. The court took time and pains to analyse
the relevant principles of Sharia on the defence. I will quote the court
in extenso at page 125 of the Record:
“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. 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 applying the
above principles of law on the defence of justification to the facts and
circumstances of the case at hand, 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 inflicted 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. 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 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
anybody 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”
Sharia is a stable
jurisprudence built on the tenets of fair hearing An
accused person cannot, in principle, be convicted without being heard. And
what is more, a hearing must be before a judicially recognised adjudicatory
body, not a collective body of local persons out to do jungle justice; a
kangaroo court. These are the
points very correctly made by the Court of Appeal. Appellant and others
paraded primitive and uncouth justice and meted same on the deceased clearly
outside the rule of law. And so I entirely agree with the Court of Appeal
that there was no justification for the killing of the deceased.
Provocation is the second
defence. Provocation is an action or conduct which arises suddenly in the
heat of anger. Such action or
conduct is precipitated by resentment, rage or furry on the part of
the accused person to the person that offered the provocation. Because of
the anger, resentment, rage or furry, the accused person suddenly and
temporarily loses his passion and self-control; a state of mind which
results in the commission of the offence There can hardly be provocation in
respect of words or acts spoken or done in the absence of the accused. This
is because words spoken or acts done in the absence of the accused will not
precipitate any sudden anger, resentment, rage, or furry, as there is time
for passions to cool. The very act of reportage of the words or acts of the
accused should materially reduce or drown the anger, resentment, rage or
furry of the accused. The test of provocation is objective, not subjective.
It is the test of the reasonable man not the test of the particular accused.
Therefore in the determination whether there was provocation, the court will
consider whether a reasonable man in the street or situation of the-accused
would have been provoked to commit the offence. There arc no hard and fast
rules for determining provocation Each case will be determined in the light
of the peculiar facts The accused person must show that he killed the victim
in the heat of passion caused by grave and sudden provocation on the part of
the deceased and that there was no time for his passion to cool A defence of
provocation will not avail an accused person if there is evidence that there
was a recess or a possible recess in the mind of the accused for passion to
cool. Similarly, defence of provocation will not avail an accused if there
is evidence of organised or premeditated vendetta.
In considering the defence,
the Court of Appeal said at pages 133. 135 and 136 of the Record:
"I have already said that
words alone can constitute provocation depending on the position in life and
primitiveness of the accused and society However in no way under our law can
words said to be uttered to another person who merely reported to the
accused be capable of causing provocation on the said accused against the
alleged utterer (deceased) who was not even around at the lime of the report
of the said words to the accused by the third party. Applying the above
principles or rules on provocation to the facts and circumstances of the
present case, there is no doubt that all the above ingredients for the
defence were not satisfied by the appellants or were missing from the
established facts in the record. The alleged provocative or insultive words
were not shown to have been directed against them by the deceased and not
uttered in their presence or to their hearing."
I entirely agree with the
Court of Appeal. If is clear from the evidence before the court, and
particularly the confessional statement of the appellant, that the alleged
abuse of the Prophet was reported to the appellant In other words, the
deceased did not abuse the Prophet to the face and hearing of the appellant.
I would like to think that
from the moment the 1st accused fold the appellant of the abuse
to the time they got to the scene of crime, passion ought to have cooled. It
is my feeling that the pleas of the Village Head ought to have cooled the
passion of a reasonable man in the circumstances Here was a traditional
ruler who pleaded for the deceased but to no avail The passion did not cool
but it ought to have cooled The passion did not cool because it was
premeditated plan on the part of the appellant and the others to kill the
deceased. To them, the deceased must pay the price of abusing the Prophet In
the circumstances, the defence of provocation is not available to the
appellant, and I so hold.
In conclusion, I agree with my
learned brother, Chukwuma-Eneh, JSC, that the appeal should be dismissed. I
therefore dismiss the appeal.
Judgment Delivered by
Sunday
Akinola Akintan.
J.S.C
The appellant was tried along
with 5 others at Kebbi Slate High Court for criminal conspiracy, abetment
and culpable homicide punishable with death under sections
97, 85 and 221 (a) of the Penal Code
respectively. He was found guilty, convicted and sentenced to death by
hanging. His appeal to the Court of Appeal was dismissed. The present appeal
is from the judgment of the Court of Appeal.
The brief facts of the case
are that the appellant and 5 others killed Abdullahi Alhaji Umaru of Randali
village in Birnin Kebbi Local Government Area of Kebbi State on 14th
July, 1999. Their action was based on an allegation that the said victim was
accused of insulting the Holy Prophet Mohammad (S.A.W). The appellant and
his co-accused got the man arrested and took him to a place on the outskirt
of the village. There, one of them first struck him with a cutlass on the
head. The man fell down and with a knife, one the accused persons
slaughtered the man by cutting his throat while the others held him down and
it was when they were sure that the man had died that they abandoned the
corpse and dispersed.
The appellant did not deny the
act at their joint trial. He made a confessional statement which was
admitted at the trial. The trial court found him and his co-accused guilty
as charged. Each of them was accordingly sentenced to death by hanging.
Their appeal to the Court of Appeal was dismissed. The
present appeal for the judgment of the Court of Appeal, Kaduna Division.
The two main points seriously
canvassed in this are whether the prosecution proved the case of conspiracy,
abetment and murder against the appellant and whether the defence of
provocation was not available to the appellant.
On the question whether
conspiracy was proved, I believe that the evidence led by the prosecution
relating to the meeting of the appellant and his co-accused person as soon
as they learnt of the allegation they made against deceased which also led
them to the house of the District head where they complained to the district
head, are sufficient evidence upon which conspiracy could rightly be
inferred.
As to whether the defence of
provocation was available to the appellant, I do not see how the allegation
that their victim insulted the Holy Prophet Mohammad (S.A.W) could be
regarded as causing sufficient provocation as required by law to justify
their action of killing their victim. The evidence led was to the effect
that the allegation of insulting the Holy Prophet came to them as a rumour.
None of the man's accusers gave the exact insulting words spoken by the
deceased and it was not shown that their action was an immediate and
uncontrollable reaction to the act of the deceased. That was not the
position because the man was led to a place on the outskirt of the village
where they slaughtered him. In the result, the defence of provocation could
not be available to the appellant.
I had the privilege of reading
the draft of the leading judgment prepared by my learned brother,
Chuwuma-Eneh, JSC. For the above reasons and the fuller reasons given in the
lead judgment, I also hold that there is no merit in the appeal and I
accordingly dismiss it.
Judgment Delivered by
Walter Samuel Nkanu Qnnoghen
The deceased,
Abdullahi Alhaji Umaru
was alleged to have insulted the
Holy Prophet Mohammed,
(SAW) as a result of which the appellant, in the company of other
accused persons sought for and, arrested the deceased who was taken to a
burial ground in the outskirts of Kardi village and slaughtered, like a
goat.
The actual words uttered by
the deceased which were considered to be an insult on the said Holy Prophet
have not been stated neither is it the case of the defence that the
appellant heard the deceased utter the alleged insult. It was a simple case
of religious fanaticism yet the Learned Counsel for the appellant has argued
that the defences of provocation and justification are open to the appellant
by virtue of which he ought not to have been
convicted and sentenced to death for the offence of murder.
It is settled law that the
defence of provocation avails an accused person who is able to establish, by
credible evidence at the trial, that:
(a)
The act of provocation was grave and sudden;
(b)
That the accused lost his self-control, actual and reasonable, and;
(c)
That the degree of retaliation by the accused was proportionate to
the provocation offered by the deceased.
As stated earlier in this
judgment there is no evidence on record that the appellant was provoked by
the deceased. I should not be understood as saying that words alone cannot
constitute provocation. It does, depending on the actual words used and
their effect(s) or what they mean to a reasonable person having similar
background with the person provoked. Here, as slated earlier, the exact
words are unknown neither did the appellant hear the deceased utter the
alleged insult. One then wonders how the appellant could have been provoked
by the alleged insult on the holy prophet.
Just as there is no evidence
of provocation on record worth considering, there is none of justification
either.
In short, I agree with the
reasoning and conclusion of my learned brother
CHUKUWMA-ENEH, JSC
in his lead judgment of which I had the privilege of a preview that the
appeal is without merit and should be dismissed.
I accordingly dismiss same and affirm the judgment of the lower
courts. Appeal dismissed.
Judgment delivered by
Ibrahim Tanko Muhammad JSC
This is a sister appeal to
SC. 245/2004 which originated from the Kebbi State High Court of Justice
via the Court of Appeal, Kaduna. The appellant,
along with five others were charged before the trial court for the offences
of criminal conspiracy, abetment and culpable homicide punishable with death
under Sections 97, 85 and 221 (a) of the Penal Code respectively. The trial
court found the appellant guilty, convicted him and sentenced him to death
by hanging. In the court below the appellant lost the appeal. The judgment
of the trial court was affirmed. He now appealed to this court.
After settlement of briefs,
the appellant identified three issues from the four grounds of appeal he set
out in his Notice of Appeal. The issues are:
1.
Whether the prosecution proved the case of conspiracy, abetment and
murder against the appellant.
2.
Whether mere presence at a scene of crime proof of actual
participation in the commission of the crime (sic).
3.
Whether the defences of provocation and justification avail the
appellant.
On the proof of Conspiracy,
Abetment and Culpable Homicide Punishable with Death as preferred against
the appellant, who was the 2nd accused person at the trial court,
the trial court made the following findings:
(a)
On Conspiracy:
“In the case of the 2nd accused person the evidence against him
is that he was among the group that went to Randali on inquiry and
subsequently returned to Kardi in search of the deceased. After the deceased
was arrested he was also among the people who came to the house of the
Village Head of Kardi to inform him what was going on. He was further among
the group that came back to the place "where the deceased was being held and
remained there until the deceased was killed. This is supported by the
testimony of PWS 2, 5 and 6 and the voluntary statement of the accused
himself as in Exhibit K. This evidence too is un-contradicted and
unchanged. I am therefore satisfied that the 2nd accused took
part in the conspiracy to kill the deceased”.
"From the above, it is evident that there is direct evidence of conspiracy
against all the accused persons as in their voluntary statements and the
testimony of PW2 who told the court how the accused, persons confronted him
and even threatened to kill him place(sic) of the deceased at the earliest
stage. Furthermore the circumstances of this case are inferable to the only
conclusion that the accused persons conspired to kill the deceased, In the
case of Onochie v. The Republic (1966)1 All N.L.R 86 it was held that
the proof of conspiracy can even be inferred from the circumstances of a
case.
Furthermore, it should be made clear that once the prosecution succeed in
proving the existence of conspiracy, as in this case at hand, evidence
admissible against one conspirator is also admissible against the other. See
the cases of Oyediran v.
The Republic
(1967) NWLR 122,
Erin v.The State (1994)6
SCNJ 104, 106 and Muminu
v. The State (1975) 6 S.C, 7.
Thus in the present case the only inference one can draw from the testimony
of PWS 2, 5 and 6 and the voluntary statements of the accused persons in
Exhibits E, F, G, H, J and K is that the 1st, 2nd, 5th
and 6th accused
persons conspired and killed Abduliah Alh. Umaru.
"In the result, I find the 1st, 2nd, 3rd 5th
and 6th accused persons guilty of the offence of Criminal
Conspiracy contrary to Section 97 of the Penal. Code and convict each as
charge.
I
find the 1st,
2nd, 3rd,
and 4th accused persons guilty of the offence of culpable
Homicide punishable with death contrary to Section 85 penal (sic) Code and
punishable under Section 221 (a) of the same law (sic) I convict each as
charged.
I
also find the 1st, 2nd 3rd, 4th,
accused persons guilty of the offence Culpable Homicide punishable with
death contrary to Section 221(a) of the penal Code and convicted each as
charged. '
(b)
On Abatement:
“In respect of the 2nd and 4th accused persons, it is
in evidence that after the arrest of the deceased, they ordered for his
detention until their return. It is also in evidence that they told the
Village head of Kardi what was to happen to the deceased and acted as strong
supporters of the 1st accused following him closely. It was when
they came to scene (sic) of crime that the deceased was callously killed.
The acts of the 2nd and 4th accused persons were
supported by the voluntary statement of the accused persons in Exhibits K
and F respectively and the testimony of PW2. I am in agreement with learned
counsel for the prosecution that the ups and downs and find arrest of the
deceased by the accused persons facilitated his killing. I am satisfied that
the prosecution have proved beyond reasonable doubt the charge of abatement
against the 2nd and 4th accused, persons. "
(c)
On Culpable Homicide Punishable With Death:
"Learned
Taking all these into consideration I am in no doubt that the death of human
being, Abdullah Alhaji Umaru actually took place ".
The learned P.S.C submitted that the death of the said Abdullah Alh. Umaru
was caused by the accused persons. It is a necessary requirement of law that
in a case of Culpable Homicide there must be proof beyond reasonable doubt
that it was the accused persons who killed the deceased or that the deceased
died in consequence of the act of the accused persons as held in R. Isa
(1961) ALL NLR 68
and Erik Uyo v.
A.G. Bendel States (1986)1 NWLR 418. The 1st
accused in his confessional statement as in Exhibit J and J1said-
".........
after
I have recited this verse they started beating him. Then one person called
Sani Ali B/kebbi cut him with a matchet. Then one Abubakar Dan Sallah
slaughtered him. And other people who I don't even know. I didn’t beat
Abdullah Alh. Umaru even ones, But definitely I was the one who read the
verse from the book of Risala...
"It is evident that statements which formed the version of the accused
persons to what took place was rightly
corroborated by the testimony of PW2, PW3, PW4, PW5, PW6 and Exhibit D.
There is no doubt that the accused persons were among the people who
inflicted the injuries
observed on
the neck
of the deceased which were described m Exhibit D as ''severe signs of
violence around the neck - cutting all the blood vessels around the neck and
the air way " thereby resulting into the death of Abdullah on the spot. In
the circumstances it is conclusive proof that it was the accused persons who
caused the death of Abdullah Alh. Umaru. I refer
to the case of Bwoshe
v. The State (1972).
6 S.C.93,
Kato Dan Adamu v.
Kano N.A.
(1956)
1.
F.S.C
25.
I there hold that the death of Abdullah Alh. Umaru was caused by the 1st,
2nd, 3rd, 4th, 5th and 6th
accused persons ".
'I also find the 1st, 2nd, 3rd, 4th,
5th and 6th accused persons guilty of the offence
Culpable Homicide punishable with death contrary to Section 221 (a) of the
penal Code and convicted each as charge'.
In the court below, it is
clear from the record of appeal that of the three grounds of appeal filed,
two of which were later abandoned, and the sole issue formulated on the
single ground remaining, there was no challenge by the appellant against the
findings of fact as set out above. This means that those findings were
conceded by the appellant as there was no appeal against them. I therefore,
fail to see the rationale in making those findings to form issues before
this court. I do not think
there was any leave sought or granted the appellant to raise and argue new
points not raised and argued before the court below. The same applied to
issue No.2. The law is trite that this court shall not permit a party
to raise and argue any new issue which the court below did not have the
benefit of considering except where leave to do so was sought and obtained.
It is to be noted that the
appellate jurisdiction of the Supreme Court is inter alia, to review the
decisions of the Court of Appeal. If therefore, an issue did not arise for
the determination of the Court of Appeal; such an issue may not form the
basis of an appeal to the Supreme Court. However, the Supreme Court will
exercise its discretion to allow such fresh issue or question to be raised
for the first time in that court if;
(i)
It involves a substantial point of law substantive or procedural
(ii)
all the facts in support of such new issue
or question are before it and
(iii)
a proper application for such issue cr
question to be raised Is brought before that court.
See: Atoyebi
v.
Gov. of Oyo State
(1994)5 NWLR (Pt344 ) 290 at
365 C-F; Uhunmwangko v. Okojie
(1989) 5 NWLR (pt122) 471;
Djukpan v. Orovuyevbe
(1967) 1 All NLR, 134; Uor v. Loko (1983) 2 NWLR (pt 77) 430; A-G Oyo
State v. Fairlakes
Hotel Ltd. (1988) 5 NWLR (pt 92)1; Bankole v. Petu (1995) 8 NWLR (pt
211) 523; Management Enterprises
Ltd. V. Otusanya (1987) 2 NWLR (pt55) 179.
See:
Sken Consult v. Ukay (1981)
1 SC 6; Agbaje V. Adigun
(1993) 1 NWLR (Pt) 269; Waniko v.
Ada-John (1999) 9 NWLR (pt 619) 401.
It is my humble view that grounds 4 and 3 of
the grounds of appeal from which issues 1 and 2 were formulated
respectively, are incompetent. Consequent upon that I, thereby strike out
grounds 4 and 3 and issues 1 and 2
and arguments in respect thereof of the appellant's issues being
incompetent. Issue 3 of the appellant's issues is on the defences of
provocation and justification whether they avail the appellant. I find it
pertinent to repeat what I earlier said in the case of
Dan Shalla v. The state Appeal
No.
SC.245/2004, delivered on the 5th day of October,
2007, and now reported in 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 any body 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 of the
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 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 issues were by and large, raised and argued by the learned counsel
for the accused/appellant. It is 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
counsel's address. Although not an evidence in itself, counsel's address
forms part of fee case. See:
Obodo v. Olomu (1987)
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 earned
out by the accused or where he failed to cany 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 mat an accused
standing trial before a criminal court such as the appellant will be
entitled to 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."
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,
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 effect of provocation on a reasonable man, as was laid down by the
court of Criminal Appeal Lesbini 11 CAR 7. In applying the test, it
is of particular importance to take into account the instrument with which
the homicide was affected; 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. 5,286.
On the main, the free and
voluntary confessional statement of the appellant alone is enough to send
him to the gallow. Listen to what he said:
"I of the above name and address wish to state as follows: I could remember
on 14/7/99 at about 0l00hrs we were sleeping where we normally gathered
(sic) and lying in one place, every night. After eating my dinner, I later
went to my house and drop the plate, then Musa yaro came and meet (sic) me
and told me that somebody named Abduilahi abuse (sic) Prophet Mohammed
"S.W.A" there myself Musa Yaro left and meet (sic) Abdullahi Danada, there
we decided to proceed to Randali Village and meet (sic) Garba Soja, on
reaching, Musa Yaro asked Garba Soja that we heard one Abdullahi Aih. Umaru
abused Prophet Mohammed "S.W.A ", then Garba Soja confirmed to Musa Yaro
realty late Abdullahi Alh. Umaru did abused (sic) Prophet Mohammed (S.A.W)
there we proceeded to Waldlin Sana of Randali named Shehu Dan Yau, on
reaching to Shehu Danyau, Musa Yaro asked him is it true that Abdullahi Alh.
Umaru abused Prophet Mohammed "S.A.W" he said yes it is true, which I was
not told the time of abuse the late did, (sic) but Shehu Dan Yau wanted to
tell us the type of the abuse the late made, but Musa yaro ask (sic) him not
to tell us. It was there Shehu
Danyau told us that he has already sent 20 people to go and search for the
boy and arrest him and brought him, then we decided to come back to our
village Kardi, on way back home, we meet (sic) with some of our Village boys
on the road who told us that the boy have (sic) been arrested that is
Abdullahi Alh. Umaru inside
A litany of authorities lays the rule that
voluntary confession can fetch conviction. See:
Kanu v. the State (1952) 14 WACA, 30
at page 32; Philip Ekpenyong v. The
State (1991) 6 NWLR (Pt.200) 583 at p. 704.
I think
I should observe that
although this case like
D Shalla v. The State (supra) is Sharia in nature, it was decided
under the Common Law Principles, I should not delve much into the Islamic
principles relating to such a case. I will limit my
observation to what the court below said on 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 Risata, 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 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 offences. Islamic
religion is not 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 anybody 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 of 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 -naby)
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_0ne may be put to death for homicide unless he is convicted by
(1) adequate testimony (bavvinat), or(2) his own admission (igrar), or (3)
as sworn indictment (oasama) if that is necessary
.........."
(Underlining 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 ii 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 (Yam'm) - see Athamarud 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 Prophet 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 attract no punishment or sanction at all. So it is
necessary for the Qadi to exercise caution and exert 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 Salmon 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 appellants who
have no authority or warrant whatsoever to adjudicate under both the
common law and Sharia, they constituted themselves into a Kangaro court in
order to realize their purpose or plan to kill the deceased. Their only
evidence against the deceased was the rumour they overhead 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 proposed 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
appellants, it will easily be seen that the said appellant were not acting
under an honest misapprehension or 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 motive based on their ideological concept as Muslim Brothers
-which is a Shii 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 pass 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. 11
by Sheikh Salih Abd Alsami
Al-Azhari, page 132; Wonaka
v. Sokoto N. A. supra.
The trite position of the Jaw
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 Adawi
Vol. 2 pages 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 Oudah in his
criminal law of Islam vol. 111; (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 of 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 hudood
and penal punishments. Such punishments can 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 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 ii provides in
chapter 6 (
“And do not kill the souls 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: Bulusgh
- AI - Maram Min Adillatil
Ahkam by Asqalani,
page 244). In another Hadith the Prophet 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 Annawawi)
The appellant in this appeal
did not show to 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 a 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
kind of people shall have any respite by the law.
What is good for the goose is good for the gender. 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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