Abimbola Sanyaolu v. The State (1976)

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FATAYI-WILLIAMS, J.S.C.

The Accused, now Appellant, was originally charged in the High Court of Kano State sitting at Kano with culpable homicide not punishable with death. After considering the evidence adduced by the Prosecution and the defence put forward by the Accused, the learned trial judge accepted the case for the Prosecution and rejected the defence put forward by the Accused.

He, however, found him not guilty of the offence of culpable homicide not punishable with death but guilty of a lesser offence of causing death when the intention was to cause hurt or grievous hurt only. This lesser offence is punishable under section 225 of the Penal Code. The finding of the learned trial judge in this respect reads:-

I am aware of the fact that the Accused has not been charged with section 225 of the Penal Code. Section 217 of the Criminal Procedure Code empowers a court to convict an Accused of an offence proved even though the Accused was not originally charged with it. But in doing so, the court must be sure that the offence comes within the definition of section 216 of the Criminal Procedure Code that is a single act of such a nature that it is doubtful which of several offences the facts which can be proved will constitute. The act of the Accused is one of causing the death of a person and it may constitute offences under section 221, 224, 225, or 226 of the Penal Code.

I am satisfied beyond doubt that the facts proved by the Prosecution against the Accused constitute an offence under section 225 of the Penal Code and in pursuance of section 217 of the Criminal Procedure Code, I find Accused guilty of that offence and I accordingly convict him of the offence under section 225 of the Penal Code.

The fact proved by the Prosecution and on which the learned trial judge relied may be summarised as follows. At about 8 p.m. on or about the 8th day of October, 1974, at Sabon Gari, Kano, one Lazarus Daduguli (1st P/W) and Joseph Bitmuld (hereinafter referred to as the deceased) were walking back to their house in Brigade where both of them lived. When they reached the junction of Market Road and Onitsha Road, they saw the Accused coming in the opposite direction. Shortly after he had passed the 1st P/W and the deceased, the 1st P/W heard the Accused say What do you mean When the 1st P/W turned round to see what was happening, the Accused gave him a blow on the mouth.

The mouth started to bleed. The Accused then turned on the deceased and gave him a blow on the head. He continued to rain blows on the deceased until the deceased fell down. Even then, he did not stop but continued to beat up the deceased until the deceased could no longer move.

Seeing this, the Accused wanted to run away but the 1st P/W held on to him and thus prevented his escape. Meanwhile, as the deceased appeared to be dead, 1st P/W and the Accused conveyed him in a taxi to the Kano City Hospital. After the deceased had been left in the hospital, a Policeman (4th P/W) who had earlier received a telephone call about the incident and had gone to the hospital as a result, then took the 1st P/W and the Accused to the Sabon Gari Police Station in Kano where each of them made a written statement to the Police.

Dr. Ahmad Tolba Muhammed (2nd P/W) who later performed the post mortem on the body of the deceased testified as follows:-

The corpse had a big heamatoma on the forehead. There was also internal cerebral haemmorhage. I find the cause of death to be due to cerebral haemmorhage. In my opinion, the type of injury I found on the corpse could be caused by using a blunt object on the forehead with a big force. This was enough to cause haemmorhage inside the brain. By blunt object, I mean a fist, falling on the ground, hitting the forehead on the wall.

When cross-examined about this opinion the doctor replied I did not see any bruises on this corpse but haematoma is a bruise in our medical term. I say that there was no laceration on the forehead of the corpse I examined. There was no abrasions or bruise on the corpse I examined. I agree that the haematoma I saw on the corpse was consistent with a bruise sustained after falling on the ground face downwards

In a written statement made to the police after his arrest, the Accused admitted seeing both the 1st P/W and the deceased coming towards him on the day in question and that his shoulder touched that of the deceased. He then gave his own version of what happened thereafter as follows:-

I wanted to say sorry to him, on turning back I received a blow on the mouth by that man who is now lying in the hospital, then the other friend of his joined in beating me, the two of them attacked me fighting me. By this time, I wanted to defend myself, but I could remember that I gave that mans friend a blow, but the man who is now lying in the hospital I did not touch him, he wanted to blow me so I dodged back then he fell on the ground and could not wake up again, then the other man held my shirt I should not move. Then I started calling taxi and his friend also started to call taxi. So, one man came there and stopped taxi for us, then I carried the man on the shoulder to the taxi then on our way reaching the hospital, I carried the man on my shoulder again to the accident ward.

Except for some minor contradictions, his defence on oath was along the same lines. He testified, in effect, that the deceased fell down during the fight when he (the Accused) dodged in order to avoid being hit by the deceased.

In a reserved judgement, the learned trial judge considered the defence put forward by the Accused in the light of the doctors evidence as to the cause of death and observed as follows:-

In considering this and the evidence of the Accused, I find it difficult to believe that a man can fall on the ground with such a force that could cause a haematoma and haemmorhage as a result without sustaining any bruise or abrasions especially considering, as P.Ws. 4 and 5 said, that the place where deceased fell down was a hard surfaced ground. I also find it difficult to believe that the mere fact of dodging could cause the deceased to fall down and sustain such injury as was found on him.

The learned trial judge then convicted the Accused of the lesser offence after finding finally as follows:-

For the reasons stated above, I am unable to believe the Accused that the deceased sustained the injury found on him because he fell down face downwards when the Accused dodged him. P.W.1 is a youngman of about 20 years old. He had some difficulty in giving evidence and sometimes took a minute or two before he started to answer questions in cross-examination. I have however watched him very carefully throughout the time he was giving evidence and I find him to be a truthful witness. I find that his story is more in consonance with the truth than that of the Accused. I believe his story that it was the Accused who beat the deceased on the head until he fell down face downwards. I disbelieve the Accused that he did not beat the deceased but dodged and deceased fell down and sustained the injury found on him.

From the evidence of P.W.2, which I believe, I find that the cause of death of the deceased has been proved when he said that he found the cause of death to be due to cerebral haemmorhage. Also from the evidence of P.W.3, Mrs. Celina Akwashiki which I also believe, I find that the corpse of the deceased was properly identified to P.W.2 before he performed post mortem examination. I accordingly find that Joseph Bitmuk died on or about the 8th of October, 1974 and that he died as a result of the injury he sustained on the same day. I also find that it was the Accused who inflicted the injury on Joseph Bitmuk by beating him on the forehead with his fist.

A blow struck on a head with a fist will not under normal circumstances cause the death of a normal healthy person. I do not think that the Accused beat the deceased with the intention of causing his death. There is no evidence direct or circumstantial to that effect.

In the appeal against the conviction, Mr. Sanyaolu, who appeared for the Appellant, attacked the findings of fact of the learned trial judge who saw and heard all the witnesses including the Accused. He contended that the learned trial judge erred in attaching undue weight to the evidence of the 1st P/W, the only witness, other than the Appellant himself, who gave an eye-witness account of the incident. He referred us to the observation of the learned trial judge about the demeanour of this witness when giving evidence. He also referred to the doctors testimony as to the cause of death. He said the circumstances surrounding the incident are such that the possibility that the 1st P/W might be lying could not be ruled out.

As we have pointed out on a number of occasions, it is not the business of a court of appeal to substitute its own views for the views of the trial judge who saw and heard all the witnesses and who, therefore, was in a better position to assess their credibility or otherwise, evaluate the evidence, and appraise the facts. For this reason, the appeal court should not and would not interfere with the verdict of the judge below unless such verdict is shown to be perverse or is not the result of a proper evaluation of the evidence.

In the case in hand, the learned trial judge saw and heard the 1st P.W. He considered his demeanour in the witness box. In spite of what he observed about his difficulties in testifying, he still believed him and rejected the defence of the Appellant. Once he was believed, the evidence of the 1st P/W, taken together with that of the doctor (2nd P/W) who was also believed, is enough to support the conviction of the Appellant (whose testimony was clearly disbelieved) of an offence under section 225 of the Penal Code, particularly as of the Appellants intention to kill the deceased or to cause him injury likely to cause death, or of any knowledge on his part that hitting the deceased on the head as he did was likely to cause his death.

In our view, and for the reasons which we have given above, all the points canvassed before us on behalf of the Appellant, whether taken separately or together, do not justify our interfering with the verdict. The appeal lacks merit and it is dismissed. The conviction of the Appellant and the sentence passed on him are affirmed.

SC.403/1975