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Babawuro Usman V. The State (2014)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This appeal is against the Judgment of the Court of Appeal, Holden at Jos on appeal No. CA/J/127C/96 delivered on the 23rd day of March 2004 in which the court substituted a verdict of guilty of the offence of culpable homicide punishable with death under Section 221(a) of the Penal Code for that of the trial Court which on 23rd November, 1995 found appellant guilty of culpable homicide under Section 220(b) of the Penal Code and punishable under Section 224 of the same code and sentenced him to a term of 11 years imprisonment.

Appellant was charged on an information before the Gongola State High Court sitting at Jalingo with a count of culpable homicide punishable with death under Section 221(a) of the Penal Code to which appellant pleaded not guilty.

At the conclusion of trial, the matter was adjourned to 11th May, 1995 for Judgment which was, however, not delivered due to the fact that OLUOTI J. who heard the matter was transferred/deployed to Adamawa State following the creation of Adamawa and Taraba States out of Gongola State vide Decree No. 41 of 1991. The Judgment was therefore delivered on the 24th day of November, 1995.

The facts of the case include the following:

Appellant was married to Aminatu, his wife and lived with her in Jalingo in the then Gongola State, now capital of Taraba State. Sometime in 1990 Appellant killed his said wife, Aminatu. PW1, Abubakar Bakari was appellant’s houseboy and gave uncontroverted evidence of what transpired on the day of the killing, a Saturday night in May, 1990. He told the court that on that night he heard Aminatu Babawuro (now late) crying for a while; that appellant later called PW1 and when PW1 got to the parlour where appellant was in response to the call, PW1 saw the body of Aminatu, appellant’s wife lying there in a pool of blood. Appellant then requested PW1 to assist him in carrying the dead body into a grave which had been dug in the compound of appellant, which he did. Appellant then warned PW1 not to tell anyone that he killed his wife and that if he did, he, PW1, would be responsible for whatever happens to him (PW1) and that he should tell any enquirer after his wife that she had gone to the hospital and was yet to return; that on 2/6/90 appellant left the house leaving his little dog behind which dog went to the grave and dug it exposing the hand of the deceased as at the time of the return of appellant to his compound.

Appellant then went and reported the matter to the police in Jalingo who came and looked at the grave. On the following day policemen returned to the compound and dug the grave and found the body of the deceased which was identified by appellant as that of his wife, Aminatu.

PW6 was a medical doctor who performed a post mortem examination on the body of the deceased after it was dug up and at the grave site. He found that the skin was broken at one point/spot on the neck where there was a straight wound of about 5cm deep and 3cm long and on the right side of the neck. The doctor gave the cause of death, in his opinion, as haemorrhage or excessive loss of blood, from the injury on the neck which might have been caused by a sharp object.

Appellant denied the charge and said nothing whatsoever to contradict the evidence of PW1 or PW6. He told the Court that sometime in May 1990 he reported to the police that his wife was missing from home when he returned from Dong.; that PW1, his houseboy told him that his wife went to buy some medicine from the town but had not returned, that he had also reported the matter to the relation of the wife but no one could tell of her where about; that sometime in June 1990 (01/6/1990) his attention was drawn by a woman who was in his compound to some digging by his little dog which he reported to the police who, upon investigation, dug out what turned out to be the body of his wife.

Learned counsel for appellant Dr. J.Y. Musa has submitted three issues in the appellant brief filed on 17/7/12, for the determination of the appeal. The issues are as follows:-

“(i) Whether the learned justices of the Court of Appeal were right in holding that Oluoti J, who had ceased to be a Judge of the High Court of Taraba State had jurisdiction to try the appellant and convict him (Ground 1)

(ii) Whether the prosecution proved the case of culpable homicide punishable with death against the appellant against the material contradictions in the testimonies of the prosecution witnesses. (Ground 2).

(iii) Whether the learned justices of the Court of Appeal were right in overturning the Judgment of the learned trial judge who had the opportunity of seeing, listening and ascribing probative value to the testimonies of the witnesses (Ground 3).”

In arguing issue 1, learned counsel referred the Court to the provisions of Section 234 of the Constitution of the Federal Republic of Nigeria, 1979, being the then applicable Constitution, and submitted that the territorial jurisdiction of a Court of a State is limited to the territorial boundary of the State concerned; that the learned trial judge haven ceased to be a judge in Taraba State, had no jurisdiction to proceed with the hearing or continue with the hearing and determination of the charge thereby nullifying the judgment, relying on Ndaeyo V. Ogunnaya (1977 – 1978) 11 NSCC 5 at 10; that the provisions of Section 6 of Decree No. 41 of 1991 relied upon by the lower court do not support their position neither are they supported by the case of Chime V. Chime (2001) FWLR (Pt. 39) 1457 on which the court also relied; that “that court” in which the case was to be continued as mentioned in Section 6 of Decree 41 of 1991 is the High Court of Taraba State, not that of Adamawa State where the Judge was deployed to and urged the court to resolve the issue in favour of appellant.