Alhaji Salisu Babuga Vs The State (1996)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, JSC. 

At the Kano High Court, the appellant was tried and convicted of culpable homicide punishable by death under section 221 of the Penal Code Law. The victim of the offence (hereinafter referred to as “the deceased”) Mamuda Gambo, was a neighbour of the appellant and P.W.1, Haruna Mohammed at Fagge, Kano.

The prosecution’s case at the trial Court is that on 13th October, 1989, along Hadejia Road, Kano at a beer parlour of a place called Lilly White Hotel, the P.W. 1 and the deceased were having some drinks and after a while the appellant, Alhaji Salisu Babuga came in and greeted them followed by his buying more drinks for them. Later, the appellant invited P.W. 1 and the deceased for a trip to Bagauda Lake Hotel on a “picknic”, which the two seemed to have enthusiastically accepted. This was after the two had some beer to drink at Lilly White Hotel. The appellant, the P.W. 1 and the deceased entered into the appellant’s car, driven by the appellant himself. The car is of Peugeot 505 Saloon make, in white paint and the three headed southwards out of Kano to Bagauda Dam.

A few kilometres to Bagauda Dam, the appellant stopped and said he would like to ease himself, his two companions, i.e. P.W. 1 and the deceased, also came out and walked a little in front of the car to urinate. As they squatted to do this, the appellant suddenly entered the car and put it into gear whereby it accelerated towards the deceased and P.W.1. The deceased was not fast enough to escape as the car knocked him down and went over him while P.W.1 ran out of the way. After running over the deceased, the appellant halted and put the car into reverse gear whereby it ran over the deceased a second time. The appellant dragged the body of the deceased into the car and then pursued the P.W. 1. He caught up with the P.W. 1 held him and dragged him back to the car all along with threat of dire consequences.

The seats inside the car were smeared with the deceased’s blood; so also were the dresses worn by the appellant and the P.W. 1.

With the corpse of the deceased on the front seat and the P.W. 1 on the back seat, the appellant reversed and accelerated towards the Kano-Zaria highway. Getting to the junction of Bagauda and Kano-Zaria highway, the appellant never turned northwards to Kano but southwards along the highway going to Zaria. On getting to a place near the village of Kasuwar Dogo, the appellant stopped, dragged out the corpse of the deceased and threw it into a pond made out of an excavated ground. After doing this the appellant ordered P.W. 1 to come to the front seat and he had to sit on the blood of the deceased and they drove back to Kano. The appellant, all along the way warned P.W. 1 not to reveal the incident to anybody, otherwise he would have to deal with him too. At Fogge, Kano, the appellant drove straight to the garage of his house and through it took the P.W. 1 into his house. How the P.W.1 was taken to the appellant’s house is graphically explained in the P.W.1’s evidence thus:-

“The accused told me that I should not tell what happened to anybody even my own brother. He threatened to kill me physically himself or through the native medicine men. When we reached the accused person’s house at Faggae, the accused opened his garage and parked the car. He then opened the door to his house through the garage. The accused compelled me to follow him to his house for when I asked him to drop me on the way, the accused refused. I followed the accused to his house at Fagge. I agreed to follow the accused to his house for I was afraid for the accused had threatened to kill me. When I went into the accused person’s house, he locked me in the house and went out. The accused then came back carrying some clothes with him. The clothes which I was wearing had been stained with blood and so the accused gave me a shirt to change the shirt.

The accused asked me to wash my pair of trousers which had been stained at the bottom part. I washed the trousers in the tap at the centre of the house. It was the blood of the deceased that stained my clothes when I sat on the front seat. When I finished changing my clothes, the accused person refused me to go. He said that he would only allow me to go home after people had gone to bed. When most people had gone to bed the accused allowed me to go home at about 12 midnight. When I went home, I could not sleep and I wanted to get some sleeping tablets but I could not for it was already late in the night.”

So the P.W. 1 was a virtual prisoner with the appellant on the day of the incident up to sometime late into the night when he was released to go home. He could not sleep with the tragedy fresh in his mind. In the morning, he summoned courage and went to the appellant’s father, the D.W. 2, Alhaji Umaru Babuga and told him of the incident whereby the deceased was killed by the appellant. He also told him of the threat of the appellant that he would kill him. In the evening the appellant went to the P.W. 1 and told him that D.W. 1 and his mother (appellant’s mother) wanted to see him; the P.W.1 never honoured the invitation.

Three days after the gory killing, the appellant confronted the P.W.1 again, accusing him of having reported the incident to his father (D.W.2) and that D.W. 2 was very angry with him. He there and then advised that P.W. 1 should leave for foreign land, that he would foot the bill of his journey and sojourn. He obtained a passport for the P.W. 1, though in his elder brother’s name but with his (P.W.1’s) real photograph in it. The passport was exhibited at the trial. The appellant also got three documents signed by the P.W. 1 that he lent to P.W. 1 the sum of N 10,000.00 “which he will use against the P.W. 1.” The P.W.1 was at the material period a student at College of Education, Kumbotso but the appellant had suggested to him the possibility of a transfer to Gumel Advanced Teachers’ College.

Thereafter, P.W.1 became restless and started all ploys to evade meeting with the appellant. The opportunity to be away from the appellant was offered when the P.W. 1 was to go on teaching practice; he left Kano area for Danbatta. The P.W. 1 then narrated his situation thereafter thus:

“I chose to do my teaching practice at Government Girls Secondary School Danbatta and that was where I did my teaching practice. That period was the only peace I ever had when we came back from the teaching practice, I was a bit O.K. because the accused was not disturbing me at that time. I then started to nurse some feelings of fear that anything could happen to me. I started avoiding keeping companies. One day, I was with some people when the accused came to look for me. He was directed to one house where he was told that I was playing draught. The accused met me and told me that he was suspecting that I would reveal the secret anytime from then. I told him that I would not reveal the secret. He said that he did not trust me and so told me that if I wanted him to believe me, I should write another letter stating that I needed another loan of N10,000.00. I wrote the 3rd letter and gave to the accused person. I did not get the money from the accused.

I was afraid and so that is why I was complying with the accused person’s orders of writing letters to him as he asked me to do. Accused used to call some mallams. After all these I started to feel disturbed and so my elder brother realized that I was not all well – that things were not well with me. I began to have nightmares in my sleep. I started dreaming of having been charged with murder before a court. Sometimes I found myself in prison in the dream. When my elder brother realized that I was being disturbed, he asked me to tell him what happened. I then told my elder brother what happened. My elder brother said that we should report the matter to the police. I told him that we should not report the matter to the police because the family of the accused would kill me if we reported the matter to the police, my elder brother asked me to meet him in his place of work on the 8th of June, 1990.

I went to my elder brother’s place of work on 8/6/90 as he asked me to do. When I went to my elder brother’s working place, we went to the State C.I.D. and made a report of the incident. When I told the police what happened they said that they had a similar case filed with them.”

P.W. 1 took the police to the scene of the killing and to the pond where the corpse of the deceased was thrown where it floated putrefied three days later.

One would wonder whether the appellant acted in a sudden passion of sadism or had a motive for the killing. The grandfather of the deceased, P.W.2 Alhaji Inda Mudi Mohammed, explained. Apparently there was no love lost between the appellant and the deceased, so is the evidence of P.W.2. The appellant had bragged to the deceased that his father (D.W. 2) brought P.W. 2 to Kano. In the presence of D.W. 2, the deceased and the appellant, the P.W. 2 said openly that when in 1925 he came to Kano, D. W. 2 had no money to feed himself sufficiently much less to bring somebody to Kano, he said inter alia.

“I told the accused to call his father so that I would ask him – the accused person’s father. I told the accused that when I came to Kano in 1925 the accused person’s father had no money to bring anybody to Kano at the time. At the time the father of the accused was only selling eight sticks of matches for a farthing. That time two packets were being sold for 1/2d. The father of the accused person was also there and I asked the accused to ask his father in his presence there. The accused was telling the late Gambo that the house in which I live was given to me free person’s father. I asked the father of the accused in the presence of the accused to tell me If I was owing him any money because of the house in which I live. The father of the accused told me in the presence of the accused that I was not owing any money.

I told the deceased to keep off from the accused. If he wanted to converse with somebody, he should not go to the accused but that he should look for another person. I warned the deceased to keep off the accused for he the accused had at one time cut the vein in the hand of the deceased person’s senior brother.

P.W. 2 then said he warned the deceased not to associate with the appellant due to the awkward behaviour of the appellant. It was three or four days after this that the deceased disappeared. It is remarkable that this witness, for all the damaging evidence he gave about the motive, was not cross-examined by the defence on the big issue but only as to the age of the deceased and how he searched for the deceased.

The defence of the appellant is a total denial. His father denied P. W. 1 ever told him anything about the killing of the deceased. The appellant himself denied ever going to Lilly White Hotel or to Bagauda He had no answer to the documents purporting the P.W. 1 owed him money or about the passport he procured for the P.W. 1.

The P.W. 1 took the police to the scene of crime and to where the corpse of the deceased was thrown into a pond and found putrefied and floating the third day; but that was about nine months after the gruesome killing took place. The medical reports – there are two of them – never mentioned the name of the person whose corpse was examined. The doctor who submitted the report was not called and the cause of death was not mentioned in any of the reports. It must be mentioned that the report the appellant now wishes to attack was tendered at the hearing of the appeal in the Court of Appeal, with leave, by the defence; but no foundation was laid to attach the report to the deceased because it was the report of an unknown person and the corpse was examined on 11th October, 1989, two days at least before the incident of the deceased’s death. That medical report, Exhibit SB 1 could not have been referring to the deceased whose death was some days after the report. The second report did not give the date the post-mortem examination was performed and it bore no name of the person whose corpse was examined, it merely refers to “unknown person, male.”

The trial Judge, after a thorough review of all the evidence before him, came to the conclusion that the appellant indeed killed the deceased and did everything P.W. 1 attributed to him. He entered against him a verdict of guilty and sentenced him to death under S. 221 of the Penal Code. The Court of Appeal dismissed the appellant’s appeal and thus the appeal to the Supreme Court.

The appellant raised the following issues for determination:

(i) “Whether the Court of Appeal was right in stating that the trial Court rightly rejected the Medical evidence in this case in the light of the evidence of P.W. 1 the star prosecution witness.

(ii) Whether the failure on the part of the prosecution to call Yusuf Mohammed and the Medical Officer is fatal to the prosecution’s case.

(iii) Whether the Court of Appeal rightly held that the evidence of P.W.1 was properly assessed by the trial court.

(iv) Whether the incident was an accident.”

The medical evidence at best referred to a dead body but there was no shred of evidence to link it with the deceased. The P.W.1 gave clear evidence that the deceased was killed on 13th October, 1989. Exhibit 2 had no date on it and nobody identified the corpse as that of the deceased just like Exhibit 2, Exhibit SB 1 refers to an examination by the doctor of a corpse of an unknown person, but on 11th October, 1989. There was no evidence to link the two reports, one tendered by the prosecution, the other by the defence with the body of the deceased. The contention is that failure to call the medical officer to testify was fatal to the prosecution’s case under S. 148(d) Evidence Act; now S. 149(d) Evidence Act 1990 (Cap. 112 Laws of the Federation of Nigeria 1990) which reads:

“149. The court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume:-

(a)………………………………………………………..

(b)……………………………………………………….

(c)………………………………………………………..

(d) that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

(e)……………………………………………………..

The question this Court will address itself to is whether the evidence was withheld in this particular case. It must be explained clearly that there is a world of difference between a witness and the evidence a witness gives. The medical officer produced evidence i.e. Exhibits 2 and SB1 and those two documents as evidence were before the trial court, one tendered by the prosecution, the other by the defence. The medical officer was a potential witness whose evidence in the form of the two reports was before the trial court; he as a witness could not be called evidence as envisaged in section 149(d) (supra). The medical Officer’s evidence was produced before the court and was not withheld. The next question is whether the two medical reports could be admitted in evidence without the doctor himself being called. The answer is in S. 249 Criminal Procedure Code applicable in Kano State providing as follows:

“249(1) The evidence of any medical officer or registered medical practitioner taken on oath before a court in the presence of the accused may be read in any inquiry, trial or other proceeding under this Criminal Procedure Code although he is not called as a witness.

(2) The court may if it thinks fit summon such medical officer or registered medical practitioner to appear before it as a witness.

(3)(a) A written report by any medical officer or registered medical practitioner may at the discretion of the court be admitted in evidence for the purpose of proving the nature of any injuries received by and the physical cause of death of any person who has been examined by him.

(b) On the admission of such report the same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the court.

(c) If by reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical officer or registered medical practitioner shall attend and give evidence in person the court shall summon such medical officer or registered medical practitioner to appear as a witness.”

Exhibits 2 and SB l were properly received in evidence and the Court never thought it fit to call the doctor because there could be no evidence to contradict the Exhibits. There was no disagreement on the Exhibits at the trial to justify invocation of S. 249(3) (c) of the Criminal Procedure Code (supra) as the two documents were tendered without objection.

As for the failure of the prosecution to call one Yusuf Mohammed, the brother of P.W. 1 who took the P.W. 1 to make a report to the Police in June 1990 one is at a loss to know what useful purpose his evidence would have served. P.W.1 related vividly his situation since the date of the homicide and how his brother noticed his abnormal habit. He also testified that the appellant suggested the name of Yusuf Mohammed for the passport even though the photograph it carries is that of P.W. 1. The best evidence this Yusuf Mohammed could give would be a repetition of what P.W. 1 said to the Court about his role; perhaps he would do nothing more than relating what he noticed and that he took P.W. 1 to the police to lodge a complaint.

I have earlier adverted to the two medical reports – Exhibits 2 and SB 1 and reiterate that the two have not been linked with the deceased person. None of the reports carries the name of the deceased nor the date of death and the only one carrying the date of the post mortem examination refers to days before the death of the deceased and cannot by any shred of imagination refer to the deceased and therefore irrelevant to this case. Again Exhibit SB1 was only tendered by leave at the Court of Appeal, it never helped that Court either.

As for the evidence of P.W. 1 the record is replete with the dilemma and fear he was put into. Here was a man who narrowly escaped being killed and was virtually a captive of the appellant both physically and psychologically. He was next-door neighbour of the appellant and he tried to avoid him but the appellant kept on coming and threatening him. The opportunity he had to keep away never deterred the appellant who kept on stalking him. He started having nightmares and frightening dreams of being in prism for murder. He was withdrawing from the public and this attracted the attention of his elder brother who relieved him of the nine months old burden by taking him to the police to report. The trial Court assessed this evidence and that of the defence and came to the conclusion that the appellant indeed killed the deceased.

The P.W. 1 in his evidence in chief stated clearly what happened on the road to Bagauda on 13th October, 1989, leading to the death of the deceased. He saw how the appellant drove his car over the deceased; at that stage he could not say whether it was an accident or a deliberate act to kill. But with the deceased obviously on the ground and perhaps dead or seriously injured, the appellant engaged the car in reverse gear and went over the deceased a second time, whereby he obviously died, no reasonable inference other than a desire to kill could be had. Thus the trial Court as well as the Court of Appeal held the act of the appellant to be a deliberate act to kill and not an accident. These two concurrent findings of fact could not be assailed on the whole evidence in the record.

In all prosecution of criminal offences, the burden on the prosecution is to prove beyond reasonable doubt the guilt of the accused. See: Section 138(1) Evidence Act (Cap. 112) Laws of Federation of Nigeria 1990. Onubogu v. The State (1974) 9 SC 1 at 20. All material witnesses to prove a case and ingredients of the offence must be put in evidence before the trial court. In all cases where culpable homicide is in issue, it is very essential that the Court receive evidence, in very certain terms, that the deceased died as a result of the act of the accused person. Where the circumstances of the attack on the deceased are clear, the injuries inflicted upon him as a result of the attack are graphically described to lead to no other conclusion than that the deceased died as a result of the attack and the injuries, the Court can convict even if there is no medical evidence and even if the body of to deceased is not recovered. Ogundipe & Ors. v. The Queen (1954) XIV WACA 465.

The two medical reports in this trial are irrelevant to this case as I have earlier explained but the evidence of P.W. 1 is so clear and convincing that the trial Court that had the opportunity of listening to it believed it. No corroboration is necessary. The case of Onah v. The State (1985) 3 NWLR (Pt.12) 236 has no relevance o this case as P.W. 1’s evidence was not based on ipse dixit of Yusuf Mohammed who was not a witness; had Yusuf Mohammed been called. His evidence would not have been more than what the P.W. 1 told him that led him to take P.W. 1 to the police to lodge a report.

It must be stated that the trial court meticulously reviewed the evidence and came to a decision the Court of Appeal could not upturn. Nothing canvassed before this Court has changed that position. The prosecution’s case was proved beyond reasonable doubt that the Court of Appeal had no reason to interfere with the verdict of the trial Court. Nothing advanced on this appeal has succeeded in changing the fate of this case. I find no merit in this appeal and I accordingly dismiss it. The judgment of the Court of Appeal upholding the conviction of the appellant for culpable homicide under S. 221 of the Penal Code and the sentence of death passed by the trial Court are hereby affirmed.

OGUNDARE, JSC.

I have had a preview of the judgment of my learned brother Belgore, JSC. just delivered. I agree with him that this appeal is totally lacking in merit.

The main issues raised in this appeal relate to the rejection of the medical evidence adduced at the trial and the failure to call P.W. 1’s brother, Yusuf Mohammed and the Medical Officer who performed the post mortem to testify at the trial. On the issue of the medical evidence, both Exhibits SB 1 and 2 tendered at the trial and the Court of Appeal respectively are worthless.

Neither of the two medical reports can be said to relate to the deceased and both appear to contradict each other, thus making it more difficult to conclude that they were made in respect of the same post mortem examination.

Exhibit SB 1 was tendered at the trial without objection. In it the post mortem examination was said to have been conducted at 5.15p.m. on 11/10/89 on the corpse of an unknown male person. The findings are stated as follows:-

“On examination, the entire body was bloated up rotten and foul smelling. The face covered with dried altered blood with old laceration (stab) wounds on the forehead and medio-sternal region. The eyes were bulging and covered with dry altered blood. Abdomen had bursted and intestines bulging outside, gangrenous and some parts rotten.”

and the cause of death was put as “Multiple stab incisions inflicted on the body resulting to hemorrhage. “

In Exhibit 2 tendered at the Court of Appeal by the appellant the date of the holding of the post mortem was not stated although the report itself was dated 24/10/89, the medical findings read:-

“Stab wounds on the forehead-sternal region, (sic). Entire face and body covered with dried altered blood. Abdomen bursted and intestine bulged outside.”

The date of death was said to be unknown nor was the cause of death as found by the Medical Officer stated. Both reports would appear to have been signed by the same Medical Officer. It is not surprising from the nature of these reports that the two Courts below found none of them of any assistance in the determination of the guilt or otherwise of the appellant. I cannot see how it could be said that the failure to call the Medical Officer who made such useless reports could be said to occasion any miscarriage of justice.

From the evidence of P.W. 1, his brother Yusuf Mohammed noticed that his brother was disturbed and questioned him as to the cause of his disturbed mind. P.W. 1 told his brother certain things in consequence of which the latter took P.W. 1 to the police. At the trial Yusuf Mohammed was not called to testify. It is now being contended in the appeal before us that the failure to call him was fatal to the case for the prosecution. With profound respect to the learned leading counsel to the appellant, Ayodele, SAN, I cannot subscribe to this submission. Whatever P.W. 1 told Yusuf Mohammed in respect of what the appellant did on the fateful day would only be hear-say if narrated by Yusuf Mohammed and would thus be inadmissible as evidence in Court. That Mohammed observed that P.W. 1 was disturbed would only be a matter of opinion of Mohammed. In sum, I cannot see how the failure to call Mohammed to testify could be said to be fatal to the case for the prosecution. P.W. 1 who was a witness to the events that led to the death of the deceased had testified in court. His evidence was accepted by the learned trial Judge. I do not see how Mohammed could have materially affected that evidence.

On the totality of the credible evidence before the court, I cannot see how this Court would justifiably interfere with the findings of facts made by the two Courts below.

I therefore, find no merit in this appeal which I accordingly dismiss. I affirm the conviction of the appellant for murder and the sentence of death passed on him.

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Other Citation: (1996) LCN/2668(SC)