Mamman Bande v. The State (1972)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

The accused was at the High Court of the North-Western State held at Sokoto on 15th October, 1971, convicted of the culpable homicide punishable with death of one Hassan Makera on or about 15th November, 1970, contrary to Section 221(b) of the Penal Code. From that decision, he has now appealed to this court.

The material facts appear from the evidence of Alu Illo (3rd prosecution witness), the sole eye witness, who claimed to have seen the accused strike a blow of considerable force on the head of Hassan Makera with a stick.

He said that, while driving away straying cattle at the scene of the incident, a cattle rearer came and held his gown, and that it was then that he saw the deceased arrive followed by the accused. He said that, without any argument between the two or any form of provocation offered by the deceased, the accused struck the latter a blow on the head with a stick.

The 3rd prosecution witness said that, when the accused started to run away, he gave chase, caught and brought him and the deceased to one Marafa’s house, whence the deceased was taken to the Birnin Kebbi Hospital. He denied in cross-examination that there was any “free for all fight” at the scene, or that the accused had appeared on the scene in an effort to separate those fighting. He agreed that there was no blood when the accused struck Hassan, although the latter remained unconscious from the time he fell down after the blow till he was taken on 15th November, 1970, to hospital where he died nine days later on 23rd November, 1970.

Yesufu Kalachi (4th prosecution witness), the police officer to whom a report was made about 11 a.m. on 15th November, 1970, said that he visited Marafa’s house and later went to Shehu’s farm where he found the deceased lying on the ground unconscious but with a swelling on his head. With the assistance of others he took Hassan to the dispensary at Makera and thence to the police station at Birnin Kebbi to lodge a report. He admitted under cross-examination that he learnt that there was a fight, and told the court that he had known the deceased some six months prior to the date of the incident. He also said that Hassan was taken somewhere from the police station.

Ibro Umaru’s (1st prosecution witness’s) evidence of a statement made by the accused under caution was rejected by the court as not voluntary. The evidence of Dr. Farhat Mefed Lodhi (2nd prosecution witness), medical officer-in-charge of Birnin Kebbi Hospital, was as follows:

“Throughout the month of November 1970, I was at the Birnin Kebbi General Hospital. I performed post mortem examinations in the course of my duties. I remember a person called Alu Illo. I know one Hassan Makera. I can remember that a patient was brought in an unconscious state to the hospital on the 15th November, 1970. This patient died at the hospital. This patient was identified to me as being Hassan Makera by one Alu. Since the patient died in the hospital I did not perform a post-mortem. I made a written report when the facts were fresh in my memory.”

After having been permitted to refresh his memory from the report, 2nd prosecution witness continued:

“Hassan Makera was admitted in an unconscious state. Hassan Makera was suffering from head injuries on admission. On examining him on the 16th November, 1970 I found fracture base of the skull and centre-cranial haemorrhage. I recollect that Hassan Makera had an abrasion of the skull when he was first admitted on the 15th November, 1970. The cause of Hassan Makera’s death was due to peripheral circulatory failure on account of the injuries I have already mentioned. Any blunt instrument like a stick could have caused these injuries. None of these injuries could be self inflicted.”

Under cross-examination 2nd prosecution witness added:

“I cannot remember whether I performed an X-ray of Hassan Makera’s head. When Hassan Makera was brought to the hospital in an unconscious state a series of paraldehyde injections and antibiotic injections were given to him. In addition he was fed by means of intravenous glucose injection. The condition of Hassan Makera did not respond to the treatment. Hassan Makera was in a coma throughout and was delirious till the time of his death. No other injection could have been given if Hassan Makera did not respond to the treatment I have earlier stated. I agree Hassan Makera died on the ninth day of his admission. I agree my report is not based on a post-mortem examination of Hassan Makera.” The defence of the accused was a complete denial of the offence. He testified that on the day in question, he and three others went to the scene as a result of shouts they had heard from some Fulani’s, that in his attempt to separate them he was struck by a Hausaman, and that he never saw the deceased there that day, nor did he assault or beat anyone there. He agreed that 4th prosecution witness took him to Marafa’s house, but the learned trial judge did not accept his suggestion that 3rd prosecution witness tried to implicate him because he was the deceased’s brother. The learned trial Judge summed up the position as follows:

“Having heard the evidence of the prosecution witnesses and of the accused I am satisfied that 3rd prosecution witness was a witness of truth and I accept his evidence. I am satisfied that 3rd prosecution witness was not mistaken in his identification of the accused as being the person that delivered a violent blow with a stick on the head of Hassan Makera. The evidence of 2nd prosecution witness and 4th prosecution witness confirmed the correctness of the evidence of 3rd prosecution witness that Hassan Makera sustained a head injury. I reject the evidence of the accused that he did not see Hassan Makera and also did not strike him a forceful blow on the head with a stick. I accordingly find as a fact that the accused struck Hassan Makera a forceful blow on the head with a stick and that Hassan Makera fell down senseless and so remained till his death nine days later.”

The relevant inquiry was raised by the learned trial judge himself when he asked: “Have the prosecution proved that the act of the accused caused the death of the deceased” But he then proceeded to draw this conclusion:

“It is a fair and reasonable inference that Hassan Makera died a few days later as a result of the act of the accused. I have no hesitation in finding as a fact that it was the act of the accused that caused the death of the deceased.” From the decision of the learned trial Judge convicting the accused of culpable homicide, the present appeal has been brought before this court.

Mr. M. A. Bashua, Learned Counsel for the appellant, asked and was granted leave to argue the following ground of appeal in addition to the original one already filed:

“The Learned trial Judge misdirected himself on the facts and law when he held that ‘It is a fair and reasonable inference that Hassan Makera died a few days later as a result of the act of the accused. I have no hesitation in finding as a fact that it was the act of the accused that caused the death of the deceased’ when it was clear from the evidence before the court that it has not been proved that the deceased died as a result of the act of the accused person.”

The original ground is:

“The decision of the Learned trial Judge is unreasonable or cannot be supported having regard to the evidence.”

Mr. Bashua preferred to argue the additional ground first. He submitted that the Learned trial Judge based his decision on an inference only whereas he should have based it on the evidence, if any, proved before him. Medical evidence showed that there was neither a post-examination of the corpse nor even an X-ray of the skull the injury to which was allegedly said to be the cause of death. There was no visible injury on the deceased, and there was no blood after the striking of the deceased on the head. It is also to be noted that the learned trial judge had observed:

“The stick used by the accused to strike Hassan Makera was not exhibited in this case and there was no evidence of the length, girth and weight of the stick.”

Learned Counsel for the appellant also submitted that whereas there was prosecution evidence that only one blow had been struck on the deceased’s head, the medical evidence was that there were head injuries resulting in “abrasions”, “fracture base of the skull”, and “intra-cranial haemorrhage.” There was no evidence that all these injuries resulted from the one blow struck by the accused. In any case, it is uncertain who inflicted the really fatal one. Learned Counsel reminded the court of the fact that there was evidence that the deceased, while still alive, was carried somewhere other than the dispensary before being brought to the Birnin Kebbi Hospital, so that there was ample opportunity for other causes of these injuries. Learned Counsel finally submitted that although there was evidence of causing grievous bodily harm, there was none to justify the verdict of culpable homicide punishable with death. We think that there is merit in these contentions.

Mr. Kalgo, for the respondent, conceded that the available evidence was not conclusive that it was the accused that caused the fatal injury. We think that the Learned trial Judge’s decisions cannot be supported having regard to the evidence before him. On the facts accepted by the Learned trial Judge, however, we think that the appellant was proved to have caused the deceased grievous hurt and should have been convicted of that offence.

In accordance with Section 27(2) of the Supreme Court Act 1960, we substitute a verdict of guilty of causing grievous hurt contrary to Section 247 of the Penal Code for the verdict of guilty of culpable homicide punishable with death passed on the appellant by the learned trial judge.

The appellant is accordingly convicted and sentenced to a term of two years’ imprisonment to take effect from the date of his conviction in the High Court in Sokoto.

SC.136/1972