Abdullahi Umar V The State (2014)
LAWGLOBAL HUB Lead Judgment Report
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, J.S.C.
This is an appeal against the decision of the Court of Appeal, Sokoto Division hereinafter called the lower court. The latter court unanimously dismissed the appeal by the appellant herein and affirmed the judgment of the trial court which convicted the appellant and sentenced him to death. There are therefore two concurrent decisions of the two lower courts.
CHARGE
“That you Abdullahi Umar on or about 2355hrs at Emir Yahaya Road Sokoto judicial Division did commit the offence of culpable homicide punishable with death in that you caused the death of one Jamilu Muhammed by stabbing him with a scissors on the chest with the knowledge that his death would be the probable and not only likely consequence of your act and thereby committed an offence punishable under section 221 (b) of the Penal code”.
The accused person, now Appellant, pleaded not guilty to the charge. It was stated in the record of proceedings that the accused person/Appellant “speaks hausa”.
The prosecution called three witnesses who testified on their behalf and closed its case. The accused person testified as Dw1 and called no witness. Parties then addressed the court.
The defence counsel addressed the high court, now trial court, and submitted that the prosecution failed to prove all the ingredients of murder against the accused person. The defence further stated that the prosecution could not adduce evidence to show that the accused intentionally caused the death of Jamilu Muhammed with the knowledge that the injury caused to the deceased would cause his death. He said and urged that the trial court should give the benefit of the accident to the accused person and to discharge and acquit him under Section 48 of the penal code.
The prosecution also addressed that court and urged the trial court to find the accused guilty, convict and sentence him to death. Since the prosecution according to the prosecution, proved all the ingredients of the offence of murder, the court should convict the accused person as charged.
After the conclusions of evidence and addresses in a reserved judgment, the trial court delivered its judgment convicting the accused person and sentenced him to death.
“Looking at the circumstances of this case, with respect, it cannot be said that the act of the accused of stabbing the deceased was done without any criminal intention or knowledge or that it was done in the course of doing a lawful act and in a lawful manner and by lawful means. From the foregoing it is my considered view that the prosecution had proved this ingredient by establishing that there was an intention to cause grievous bodily harm by the accused see Uche v. The State (supra).
In the circumstance therefore, having carefully examined the entire evidence presented before me including consideration of some possible defences opened to the accused which I found do not avail him from the circumstances of the case, leading to the conclusion that the accused caused the death of Jamilu Muhammed (Now deceased) by stabbing him on the ribs with a scissors. I therefore hold that the prosecution has proved its case against the accused beyond any reasonable doubt.
I find the accused guilty for the offence of culpable homicide punishable with death contrary to section 221 (b) of the penal code as charged, and I convict him accordingly.
Dissatisfied with the judgment of the trial court the Appellant un-successfully appealed to the Court of Appeal Sokoto Division and filed a Notice of Appeal containing one single ground of appeal thus:-
“The decision of the trial court is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced at the trial”.
The lower court after considering the record of appeal and submissions and the addresses of counsel to the parties in a considered judgment dismissed the appeal of the Appellant.
Ahmed Belgore JCA read the lead judgment of the court. He has this to say on page 116:-
“… I do not see how section 48 of the penal code assists the case of the Appellant. It cannot be argued in this case that the act of the Appellant in causing the death of the deceased was lawful. Neither can it be argued that he had acted in a lawful manner nor can it be said that he employed a lawful means in causing the death of the deceased. I find the finding by the lower court to be unassailable and I have no reason to disturb the same as I find the findings not to be perverse. The appeal fails and it is accordingly hereby dismissed”.
Per Ahmed Belgore JCA.
Being dissatisfied with the above judgment the Appellant appealed to the Supreme Court and filed a Notice of appeal containing one single ground of appeal, thus:-
“The learned justices of the Court of Appeal erred in law when they held that Section 48 of the penal code does not assist the appellant in that it cannot be argued that his (appellant’s) act of causing the death of deceased was lawful, neither can it be argued that Appellant acted in a lawful manner nor can it be said that he employed lawful means in causing the death of the deceased.
PARTICULAR OF ERROR
- There was evidence at the trial court as borne out of the records that the death of the deceased was accidental and not intentional and same was the plank of the Appellant’s argument at the Court of Appeal.
- PW3 testified that the Appellant intended to stab him but he dodged and Appellant ended up stabbing the deceased instead and that it was the deceased destiny.
In accordance with our rules the parties have filed and served their respective briefs of argument which were adopted on 13/3/14.
The Appellant formulated one issue as follows:-
a. Whether the guilt of the Appellant was proved and established beyond reasonable doubt having regard to the evidence adduced at the trial to warrant the conviction of the Appellant under section 221 (b) of the penal code as affirmed by the Court of Appeal.
The respondent in turn distilled the following single issue thus:-
“Whether the defence of accident under Section 48 of the penal code avails the appellant in the circumstances of this case as to adversely affect the conviction and sentence of the appellant”.
In the course of arguing the issue the Appellant’s counsel has this to say:
‘This issue arises from sole ground of the appeal and deals with the affirmation of the Court of Appeal of the conviction of the Appellant under section 221 (b) of the Penal code having regard to the evidence before the court’. He said that Section 221 (b) of the penal code states: –
“…… Except in the circumstances mentioned in section 222 culpable homicide shall be punishable with death.
b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended.
(Underling ours)
Learned counsel for the Appellant contended that for the prosecution to secure conviction under the above section it is trite that three ingredients are required to be proved and must co-exist.
The three elements are thus:-
a) That the death of a human being has occurred.
b) That such death was caused by the accused.
c) That the act was done with the intention of causing death or that it was done with the intention of causing such bodily injury as;
- The accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause. Learned counsel cited in support the case of Dare Bada v. State (1991) 8 NWLR (pt 208) 134 at 144 para – E – H. Counsel then submitted that the key operative word in the above section is intention.
Intention of causing death.
Death being likely consequence of the act or bodily injury which the act was intended to cause.
(underlining for emphasis).
Various definitions of intention were stated by the Appellant’s counsel to the effect that intention is the willingness to bring about something planned or foreseen. It was the contention of the Appellant that the deceased Jamilu was not the intended target in the use of the scissors. The evidence of Pw3, both in chief and under cross-examination confirmed that the accused had no reason to stab Jamilu Mohammad on that day. Under cross-examination, the PW3 maintained that “the injury sustained by Jamilu came as a destiny”.
My lords it was the argument of both the Appellant and the witness (Pw2) that the deceased was not meant to be killed by the accused. Counsel maintained that the trial court accepted the above position of the witness and the accused and stated in its judgment that “the appellant was trying to stab Pw 3 who dodged and the scissors landed on the deceased.
The appellant’s counsel further contended that there was no evidence to show that the accused intended to hit the Pw 3 at the delicate parts of the body therefore he the appellant cannot be said to have intended death or had cause to believe that death would be probable or likely consequence of the act or any bodily injury. He finally contended that taking everything into consideration including the definition of intention defined by the Black’s law dictionary, it is obvious that the Appellant had no purpose or design to kill the deceased. He had no foreknowledge of the act or desire to cause the death of deceased. Based on the above argument and contentions the Appellant’s counsel submitted that the prosecution could not prove all the ingredients of that offence to warrant the conviction of the accused for culpable homicide punishable with death under Section 221 (b) of the penal code. He lamented that both the trial court and lower court held that the Appellant was not covered by the defence of Section 48 of the penal code.
My lords, the Respondent at the outset, submitted that the appellant’s issue for determination as framed in his brief of argument is at variance with his ground of appeal and the arguments submitted in his brief. The submissions of the Respondent’s counsel my lords, are these that the Appellant failed to formulate issue from the grounds of appeal.
The law is this that issues are distilled or formulated from the ground or grounds of appeal and from no other. One cannot lawfully formulate issue or issues from the particulars of the ground of appeal. If he or she does that in the eyes of the law there is no issue worth considering.
The worst part of it is that the appellant argued the grounds of appeal as framed. It is with this badly framed grounds of appeal that the Appellant faulted the finding or decision of the learned justices of the lower court for agreeing with the learned trial judge that the defence of accident under Section 48 of the penal code did not avail the appellant. The stance taken by the Appellant appears to be confusing.
Learned counsel for the Respondent again submitted that how can the Appellant ask this court to determine, “in such ground” which has no issue formulated, whether the guilt of the Appellant has been proved and established beyond reasonable doubt having regard to the evidence. This is a confused situation we therefore urged this court to discountenance the Appellant’s issue as raised in his brief and to determine this appeal on the respondent’s sole issue. Certainly the issue, so called, formulated by the appellant does not relate to his ground of appeal and it has to be discountenanced. Learned counsel for the respondent Inuwa Abdulkadir A-G Sokoto State, (who signed the respondent’s brief) cited in support of the above argument and submissions the following decided cases of the Supreme Court as follows:-
a. Odeh V. Federal Republic of Nigeria (2008) 3 – 4 SC 147 at pages 159/160.
“Every issue for determination must be formulated from and related to or distilled from a competent ground of appeal. In other words, an issue not distilled from any of the grounds of an appeal is incompetent and must be discountenanced together with the argument or arguments advanced there-under. I accordingly strike out the third issue and all the arguments canvassed by the Appellant on it”.
In a more clear tone on this issue the apex court in the case Agbakoba v. INEC 12 SC. (part III) page 198 to 199 my learned brother Chukwuma-Eneh JSC has this to say:-
However, it is settled as in the case of Sha v. Kwan (2000) 5 SC. 178; (2000) FWLR (pt II) 1798, as in so many other decided cases of this court that the main purpose of formulating issues for determination is to enable the parties get focused on the real questions in controversy in the ground (s) of appeal. In any appeal in this court only issues formulated within the parameters of the grounds of appeal and stemming from the decision appealed from are competent to be ventilated. See: Oniah v. Onyia (1989) 2 SC. (pt.1) 69; (1989) 2 SCNJ 69. An issue could cover one or more grounds of appeal and therefore, if an issue is not related to any ground of appeal as the 2 here, it becomes irrelevant and liable to be struck out as it goes to no issue. See: Ogbuanyinya v. Okudo (1990) 7 SC (Pt 1) 66; (1990) 4 NWLR (pt 146) 551 at 568. It is settled that an appellate court as this court, I must emphasize, determines appeal before it solely on the issues formulated from the grounds of appeal filed in the appeal before it. Consequently, where as it is being urged here that no competent issue has been raised from ground 3 it is settled, it would be deemed abandoned and to be discountenanced. In other words, the court should not hear any submissions or arguments in regard to a ground of appeal from which no issue has been raised. I refer and rely on the following decided cases for the foregoing conclusions. See: Attorney-General Anambra State V. Onuselogu Enterprises Ltd. (1987) 4 NWLR (pt. 66) 547; Oniah V. Onyia (1989) 2 SC. (pt. 1) 69; (1989) 1 NWLR (pt. 99) 514; Adelaja V. Fanoiki (1990) 3 SC. (pt 1) 130; (1990) 2 NWLR (pt 131) 137 at 148; Nzekwe V. Nzekwe (1989) 3 SC. (pt II) 76; (1989) 2 NWLR (pt. 104) 373 at 423; Momodu V. Momoh (1991) 2 SC. 1; (1991) 1 NWLR (169) 608 at 621; Onifade V. Olayiwola (1990) 11 – 12 SC. 1; (1990) 7 NWLR (pt. 161) 130; John Bankole & Ors. V. Mojidi Pelu & Ors. (1991) 11 – 12 SC.116; (1991) 8 NWLR (pt 24) 523 at 537″.
However, learned counsel for the respondent contended that learned trial judge made at least two important findings that were considered by the justices of the lower court in affirming the conviction of the appellant by the trial court. It would be reproduced by me in this judgment thus:-
“on the third ingredient of the offence of culpable homicide punishable with death, it is trite law that such cases as in the instant case, it is sufficient for the prosecution to established (sic) an intention to cause grievous bodily harm, even though such intention might (sic) fail short of an intention to kill or to endanger life…. see page 74 of the record”.
Secondly on page 77 of the records say, or holds:-
“The defence of accident sought to be relied upon by the defence is also untenable in my view, since all the ingredient (sic) that would entitled (sic) the accused to benefit from that defence has not being (sic) proved…
Looking at the circumstances of this case, with respect, it (sic) cannot be said that the act of the accused of stabbing the deceased was done without any criminal intention or knowledge or that it was done in the course of doing a lawful act and in a lawful manner and by lawful means.”
The learned judge concluded thus:-
“In the circumstance therefore, having carefully examined the entire evidence presented before me including consideration of some possible defences opened (sic) to the accused which I found do not avail him, from the circumstances of the case, leading to the conclusion that the accused caused the death of Jamilu Muhammed (now deceased) by stabbing him on the rips (sic) with a scissor (SIC). I therefore hold that the prosecution has proved its case against the accused belong (sic) any reasonable doubt. I find the accused guilty of the offence of culpable homicide as charge (sic), and I convict him accordingly”. Per Sifawa J., on pages 77 – 78 of the records.
The lower court unanimously affirmed the conviction and sentence of the appellant Ahmed Belgore JSC has this to say:-
“It has been argued for the appellant, in few words, that he did not intend to cause the death of the deceased and that what had happened was accidental”.
Ekanem Esq; learned counsel for the defence, made a thorough research and came up with a definition of intention as provided by Black’s Law Dictionary thus intention is “the willingness to bring about something planned or foreseen”.
My lords, learned counsel to the appellant submitted that the testimonies, both of Pw 3 and of the appellant, agreed that the deceased was not an intended target. In fact learned counsel was saying that it was a case of “transferred malice” or accident.
Learned justices of the court below rightly in my view, debunked the position taken by the appellant. It is clear that the appeal lacks merit. I resolve that issue in favour of the prosecution. There is no way this court can set aside the concurrent findings of the two lower courts, which are not perverse. It would be extremely difficult to do so. – Enang v. Adu (1981) 11 – 12 SC; (1981) 11 – 12 SC (reprint) 17; See also the case of Igwe v. State (1982) 9 SC 174. Isibor V. State (2002) 2 SC (pt. 11) 110.
I have to admit that I am impressed by the position taken by the respondent’s counsel Inuwa Abdul-Kadir Esq., and I accept it as correct the case he cited Alhassan Maiyaki v. The State (2008) 7 SC 128 at 152.
My lords I seek permission to digress a bit that after we reserved judgment on 13/3/14 and after our usual conference we could not agree on whether the appeal shall be allowed or dismissed in view of the allegation by the appellant’s counsel Mr. Ekanem that the accused/appellant at the trial indicated that he speaks hausa. He contended that the trial court did not assign an interpreter to the Appellant and that the language is in English. Our panel then asked the parties and their respective counsel to address us which they did on 13/3/2014.
On that day Nnamonso Ekanem Esq. adopted his brief dated and filed on 24/6/11. He urged this court to allow the appeal and set aside the judgment of the lower court and to discharge and acquit the appellant.
The respondent adopted their respondent’s brief of argument and urged this court to dismiss the appeal.
Learned counsel for the Appellant insisted that the confessional statement of the accused at the trial court was not regularly and properly admitted since it was not translated into the courts language which is English. He again referred to page 16 of the records and argued that on the face of the records the charge was not translated from English, the courts language, to Hausa the language of the Appellant.
Learned Respondent’s counsel Mr. Nuhu, the Hon. Attorney General of Sokoto State contended that going by page 16 of the records, the Registrar of the trial court affirmed to translate Hausa to English. There was infact no such translation; however, there are numerous decisions of the Supreme Court not to record verbatim what the accused person has to say.
Learned Attorney-General admitted that there is no such recording on translation. This legally means there is an irregularity which cannot in law vitiate the proceedings. He relied on the following decisions:-
- Onyia v. The State (2008) 12 SCNJ (pt. II) p 610 at 631 – 640;
- Sampson Nkemiju Uwaekweghnya V. The State (2005) M. J. S. C. p1
In the trial court this issue was held to the satisfaction of the judicial stakeholders. In the famous case of Shinfida v. Commissioner of Police (1970 – 1972) LRNN pages 113 – 117 it was held that when services of an interpreter are used it is mandatory by virtue of Section 242 (2) Criminal procedure for the record to name the interpreter and state the languages to and from which he interpreted, and that he was sworn or affirmed to do so. That was not done here.
Section 242 (2) Criminal procedure code now makes it mandatory for the record of any criminal proceedings at which an interpreter has been used to “state the name of the interpreter, the languages which and in which he interprets and the fact that he has been bound in accordance with the provisions of sub-section (1) to state the true interpretation of the evidence. This is so especially if the Appellant has made it a ground of appeal. In the case of Shinfida v. COP (supra) that court found that the proceedings were never interpreted to the Appellant, the law then is therefore behind him and he is justified to make that lapse a ground of appeal. The appeal was then allowed, Buraimole Ajayi v. The State (1964) NNLR 61.
In that case of Jerome Akpanor & 3 Ors V. The State (2002) JSCN P.110.
The charge or information shall be read over and explained to the accused/Appellant in a language that he understands to the satisfaction of the court by the Registrar or other officer of the court. That court continued and held that failure to comply with these conditions would render the whole trial nullity.
It goes on to state that the record of the court must show that this procedure is followed. It is a good practice, the court says, for the trial court to specifically record that:-
“Charge was read and fully explained to the accused to the satisfaction of the court”.
In the case, supra, it was stated that it was the submission of the appellant that the proceedings of that date did not comply with conditions (2) and (4). It was contended that there is nothing on record to show in which language the charge was read to the appellant before he was asked to plead thereto.
It was also argued that there was nothing on record to show that the charge was fully read and explained to the appellant to the satisfaction of the court. It was submitted that non-compliance with these requirements rendered the trial a nullity. The Appellant relied on the following cases:-
i. Eyorokoromo v. The State (1976) 6 – 9 SC 3.
ii. Kajubo v. The State (1988) 1 NWLR (pt.73) 72.
Having read the provisions of Section 242 (2) and (4) and the provision of Evidence Act thereof and having considered the arguments and the submissions of both counsel I discovered that there is no strict compliance with the requirements of that Section 242 (2) and (4) of the C. P. C.
However when asked by the court the accused stated that he understands the charge and pleaded not guilty to charge as read and explained to him. I refer to page 16 of the record. It was also deduced that the language of that trial court is English.
The accused indicated that he speaks Hausa language. The record also stated that one H. S. Kuwwa appeared for the accused. In that situation the failure of the court to strictly follow and apply the requirements of section 242 (2) (4) C. P. C cannot vitiate the proceedings. It is a mere irregularity in the proceedings.
The position therefore taken by Mr. Nnamonso Ekanem, cannot hold water. Same is dismissed. The proceedings can be accepted as fair and correct. The appellant’s issue lacks merit same is hereby dismissed. That lone issue is resolved against the appellant. The appeal therefore is devoid of any merit same is dismissed.
SC.186/2011
