Rabi Amadi V. The State (2019)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Kaduna Division, hereinafter referred to as the lower Court, delivered on the 20th August 2014, setting aside appellant’s conviction and sentence under Section 221 of the Penal Code Law of Katsina State by the Katsina State High Court, the trial Court, and substituting same with a conviction under Section 222(6) of the Penal Code Law and sentencing the appellant to five years imprisonment.
The brief facts of the case is that the appellant was charged at the trial Court under Section 221 of the Penal Code for causing the death of her one day old baby by burying him alive.
To prove its case against the appellant, the respondent called three witnesses and tendered five exhibits.
The appellant testified in her own defence.
At the end of trial, the Court found the appellant guilty as charged and sentenced her to death.
Dissatisfied with the trial Court’s judgment, she appealed to the lower Court on a notice of appeal dated 14th November 2013 containing five grounds.
1
At pages 140 – 141 of the record of appeal, the lower Court having held that the appellant lacked balanced mind arising from the depression associated with her giving birth to the baby, concluded its judgment as follows:-
“As has earlier been observed, the trial Court did not avail the Appellant or consider the defence under the provision of Section 222(6) which have a bearing on the case. The parties at the hearing of this appeal were given opportunity to address the Court on this issue. Therefore. it will be proper if this Court intervenes and substitutes the conviction and sentence imposed on the Appellant to one under Section 222 (6) of the Penal Code. See; GBAGBARIGHA VS. TORUEMI (2013) 6 NWLR (PT. 1350) PG. 289 at 310……
ln the instant case. from the circumstances of the case and the evidence before the trial Court conviction under Section 222 (6) should have been most proper.
A community reading of the provision of Sections 217 and 218 of the Criminal Procedure Code indicate to me that this Court has the power to substitute a conviction for a lesser offence than the offence charged whenever it is appropriate to do so.
2
The conviction in the judgment of Katsina State High Court Justice in Suit No: KTH/DM/3C/2011 delivered on 8th October, 2012 by l. B. Ahmed J. is hereby set aside and substituted with a conviction of the Appellant under Section 222 (6) of the Penal Code. The Appellant is accordingly sentenced to 5 years imprisonment with effect from the date of her arrest and detention in the year 2010.”
(Underlining mine for emphasis)’
It is against the foregoing decision of the lower Court that the instant appeal has been filed on 18th September 2014 containing two grounds.
Parties have filed and exchanged briefs of argument which were adopted and relied upon at the hearing of the appeal.
At page 3 of the appellant’s brief of argument, the following two issues have been distilled as arising for the determination of the appeal. The two issues read:-
“(i) Whether in the light of several and fundamental conflicting and inadmissible evidences, it was justifiable for the Lower Appellate Court to convict Appellant on charge under Section 222 (6) of the Penal Code. (Distilled from ground one of the appeal).
(ii) Whether in the face of clear findings by the Lower
3
Appellate Court, it was justifiable to charge the Appellant under Section 222 (6) of the Penal Code. (Distilled from ground two of the appeal)”
The respondent has adopted the foregoing appellant’s issues as calling for determination in the appeal.
In truth, appellant’s grouse in this appeal is whether the Lower Court has the jurisdiction of substituting appellants conviction under Section 221 of the Penal Code Law with one under Section 222 (6) of the same statute.
On the two issues, learned appellant’s counsel Gideon Musa Kuttu Esq submits that from the lower Court’s findings at pages 123 to 134 of the record of appeal it is evident that the respondent has not proved all the ingredients of the offence under Section 222 (6) of the Penal Code. It is mandatory, it is argued, for the respondent to prove all the ingredients of the offence under Section 222 (6] of the Penal Code by virtue of which appellant’s conviction and sentence by the trial Court pursuant to Section 221 of the same code is substituted by the lower Court. Outside the statements of the appellant, exhibits 4A and 4B, the lower Court found not to be confessional, it is contended, there
4
is neither direct nor circumstantial evidence linking the appellant with the death of her child.
The medical report on the cause of death of the child as well as the picture of the corpse of the child, it is further submitted, are all found by the lower Court to be speculative. The lower Court’s resolve to substitute appellant’s conviction and sentence for causing the death of her child by the trial Court with a conviction under Section 222 (6) of the Penal Code being erroneous and prejudicial to the appellant, it is further contended, is not sustainable by the Court’s purported resort to Section 179(1) and (2) of the Penal Code Relying on OKOH V. STATE (2014) 8 NWLR {PT 1410} 502 at 535, ONUCHUKWU V. STATE (1998} 4 NWLR (PT547} 575 and more so ODEH V. FRN (2008) 13 NWLR (PT1103) 1 at 25, learned counsel urges the resolution of the issues in appellant’s favour and the success of her appeal.
In reply, learned respondent’s counsel, Zakawanu Garuba Esq, submits that the lower Court is competent to convict the appellant for a lesser offence than that she was convicted for by the trial Court if the conviction is supported
5
by the evidence on record. Learned counsel refers to AKWULE V. THE QUEEN (1963) 1 ALL NLR 193, JOHN NWACHUKWU V. THE STATE (1986) LPELR – 2085 (SC) and ONOGWU V. THE STATE (1995) 6 NWLR (PT401) 276. The lower Court draws its jurisdiction to so substitute appellant’s conviction by the trial Court for a conviction for a lesser offence, it is contended, from Order 4 Rule 3 of the Court of Appeal Rules 2016, Section 19(4) of the Court of Appeal Act 2010 as amended as well as Sections 217 and 218 of the Criminal Procedure Code.
It is further submitted that the lower Court did properly evaluate the evidence on record and arrived at the right conclusion that the evidence does not sustain appellants conviction for culpable homicide punishable by death under Section 221 of the Penal Code as imposed by the trial Court.
Having exercised its powers to retry the case based on the evidence on record, it is contended, the lower Court was duty bound to set-aside a verdict that is unwarranted and in its place substitute the correct one as allowed by the relevant statutes and rules of Court. The Court’s power to do so and the manner the power is to be exercised, it is
6
submitted, have all been spelt out in many decisions of the lower Court as well as the Supreme Court. Learned counsel relies on ALHAJI JIBRIN OKABICHI & ORS V. THE STATE (1975) 9 NSCC 124, OLADIPUPO V. STATE (1993) 6 NWLR (PT 298) 131 at 136, MOHAMMADU V. COP (1969) 1 ALL NLR 465, OGIDI V. COP (1960) 5 FSC 251 and EKPENYONG V. THE STATE (1967) ALL NLR 285.
Concluding, learned respondent’s counsel submits, the evidence on record, contrary to appellants contention, shows proof of all the ingredients of the offence under Section 222(6) of the Penal Code the lower Court substituted appellant’s conviction by the trial Court under Section 221 of the Penal Code for. The lower Court’s decision in the circumstance, it is further submitted, cannot be faulted. Learned counsel urges that the issues be resolved against the appellant and his unmeritorious appeal dismissed.
It is beyond contention that the issue the appeal raises, whether or not an appellate Court can substitute a conviction for a lesser offence for an aggravated offence an appellant is charged and convicted for by the trial Court, has long been settled. In restating the principle, it is necessary to refer to
7
the adjectival provisions learned respondent’s counsel submits confer the lower Court the jurisdiction of substituting the trial Court’s conviction for the aggravated offence he is charged with for a conviction for the lesser offence.
In this wise, Section 218 of the Criminal Procedure Code, Order 4 Rule 3 of the Court of Appeal Rules and Section 15 of the Court of Appeal Act are hereinunder reproduced for ease of reference:-
“Section 218 of the Criminal Procedure Code:
(1) When a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduced it to a lesser offence, he may be convicted of the lesser offence.
Order 4 Rule 3
The Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such
8
further or other order(s) as the case may require including any order as to costs.
Section 16 of the Court of Appeal Act
- The Court of Appeal may, from time to time, make any Order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and… generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of first instance and may rehear the case in whole or in Part……” (Underlining supplied for emphasis).
A combined reading of the foregoing brings out the fact that the lower Court, in the exercise of its appellate jurisdiction, may invoke the powers conferred in the trial Court under Section 218 (2) of the Criminal Procedure Code. The trial Court’s power under Section 218 (2) of the Criminal Procedure Code to convict for a lesser offence that was proved in place of the aggravated offence charged is, by
9
operation of the law, amenable to the lower Court by virtue of Order 4 Rule 3 of its rules and Section 16 of the Court of Appeal Act, and in the case of the Supreme Court, see Section 22 of the Supreme Court and Order 8 Rules 11 and 12 of the Supreme Court Rules, available to both appellate Courts. Thus by virtue of Order 4 Rule 3 and Section 16 of the Court of Appeal Act the lower Court, on the basis of the evidence on record, having found that the appellant has committed a lesser offence to the aggravated offences he is charged with, is empowered to substitute appellant’s wrong conviction for the aggravated offence by the trial Court regardless of the fact that he is not charged with the lesser offence. In the same vein, this Court is empowered as well, at the end hearing the instant appeal, an appeal being a continuation of trial, to further affirm the lower Court’s decision the subject matter of the instant appeal.
Certainly, an appellate Court’s exercise of its statutory powers to substitute a conviction for a lesser offence under Section 218 (2) of the Criminal Procedure Code for conviction for an aggravated offence does not render the Court’s decision perverse.
10
See ONOGWU V. THE STATE (1995) 6 NWLR (PT.401) 276, OGU V. QUEEN (1963) 2 SCNLR 74 and ODEH V. FEDERAL REPUBLIC OF NIGERIA (2008) LPELR – 2205 (SC).
Learned appellant’s counsel has argued that the lower Court has erred in the exercise of its jurisdiction under the extant adjectival statutes, that in the absence of evidence on record to sustain conviction even for the lesser offence, the lower Court’s perverse decision cannot persist. Having occasioned miscarriage of justice this Court, it is further submitted, is entitled to set the judgment aside.
Learned respondent’s counsel submits, and correctly too, that the record of appeal does not support appellant counsel’s submission. Evidence abound, learned counsel further contends, which shows beyond doubt that the appellant, at best, had participated in burying her one day old baby even though at the time of the commission post natal depression.
I am in complete agreement with learned respondent’s counsel that it is evident from the record of appeal that the prosecution has made out the lesser offence under Section 222 (6) of the Penal Code the lower Court substituted her
11
conviction for in place of the aggravated offence of culpable homicide punishable under Section 221 of the Penal Code. At the trial Court, see pages 41 – 42 of the record, the appellant testified partly as follows:-
“………….. Lawal Maikudi, PW3 asked for water to drink from me which I refused. Reaching my home he sent one girl to go and call me to his home. I went there and he told me that he will marry me, he then have (sic) sexual intercourse with me, as a result of which I became pregnant……….. I informed the said Lawal Maikudi that I was pregnant. He denied and he insisted that he was not responsible until l delivered a male child my female friend went and informed Lawal Maikudi I delivered the child……. Lawal Maikudi asked me to go and bury the child.. I went together with Lawal Maikudito a spot where he dug the ground and buried him alive.
From appellant’s foregoing testimony the fact that she participated in burying her child of under the age of twelve month which act led to the death of the child, ceases to be in doubt. In the particular circumstance of the instant case, medical report or any further proof of death of the child
12
ceases to be a necessity. The child was buried and the body has not been retrieved. By necessary implication, the appellant by her evidence, has not only admitted the fact of the death of the child but the fact of her being a party to his murder.
At page 138 of the record of appeal the lower Court has made a crucial finding thus:-
“From the testimonies of the prosecution’s witnesses, the evidence of DW1 (the Appellant) above and her confessional statements there is no doubt that the deceased was the Appellant’s own baby (child) and he died just within a day after his birth. lt is also very clear from the facts and evidence in the instant case that the Appellant had no balanced state of the mind which might have been aggravated or disturbed by reason of her giving birth to the child out of wedlock. Therefore, the Appellant ought to have been charged under Section 222 (6)of the Penal Code. I so hold.”
It is instructive to note that there is no appeal against the foregoing lower Court’s profound finding. It is elementary that where a finding in the judgment of the Court being reviewed has not been appealed against, the appellant is
13
deemed to have admitted such a finding and this Court is perfectly entitled to rely on the finding in its decision. See FIRST BANK OF NIGERIA V. ALEXANDER N, OZOKWERE (2013) LPELR 21897 (SC), JIMOH MICHAEL V. STATE (2008) LPELR–1874 (SC), IDIOK V. STATE (2008) LPELR 1423 (SC) and DURBAR HOTEL PLC V. ITYOUGH & ORS (2016) LPELR 42560 (SC).
Now, Section 221 of the Penal Code under which the trial Court convicted the appellant reads:-
“221 Except in the circumstances mentioned in Section 222, culpable homicide shall be punished with death
(a) If the act by which the death is caused is done with the intention of causing death; or
(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 to cause.”
Under the section, therefore, the appellant is guilty of an offence if he commits an act which causes death with the intention of killing or if he knew or had reason to know that death would be the probable consequent of his act. SeeAOR NYAM & ORS V. THE STATE (1964) LPELR 25187
14
(SC) and USMAN KAZA V. THE STATE (2008) LPELR 1683 (SC).
Section 222 (6) by virtue of which the lower Court substituted appellant’s conviction under Section 221 of the same code provides:-
“Culpable Homicide is not punishable with death where a woman intentionally caused the death of her child under the age of 12 months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.”
The question to answer here is whether the offence under Section 222 (6) is lesser than the one provided for under Section 221 of the same Code to justify the lower Court’s invocation of its powers under Section 218 (2) of the Criminal Procedure Code of substituting the trial Court’s conviction of the appellant under the latter section of the penal code with one under the former section of the very code
I am of the firm and considered view that the offence under Section 222 (6) of the Penal Code is lesser than the offence under Section 221 of the same code. If not anything, the
15
offence under Section 222 (6), unlike the one under Section 221, does not attract the death penalty.
While considering Section 179 (2) of the Criminal Procedure Act, that is in pari materia with Section 218 (2) of the Criminal Procedure Code under reference, this Court in JOHN NWACHUKWU V. THE STATE (1986) LPELR-2085 (SC) dwelt on a lesser offence thus:-
“In TORHAMBA V. POLICE (1956) N.R.N.L.R. at p. 94, the Court had attempted to give a guide as to the determination of what constitutes a lesser offence. It was said- ‘a lesser offence is a combination of some of the several particulars making up the offence charged, in other words the particulars constituting the lesser offence are carved out of the particulars of the offence charged… when one is considering action under Section 179, one should write out the particulars of which the offence charged consists and see whether it is possible to delete some words out of these particulars and have a residue of particulars making up the leaser offence of which it is proposed to convict. An authoritative example is furnished by the case of COORAY V. THE QUEEN (1953) 2 WLR 965; (1953) A.C. 407.” (Underlining supplied for emphasis)
16
Evidence abound from the record of appeal:-
(i) That appellant’s child has died.
(ii) That the death of the deceased resulted from the act of the appellant.
(iii) That the act of the appellant, burying the deceased alive, was intentional, done with the knowledge that death was its probable consequence:
(iv) That at the time of the act the appellant had not recovered from the effect of giving birth to the deceased.
The 1st 3rd ingredients of the offence under Section 222 (6) of the Penal Code are clearly subsumed under Section 221 of the same code to come within the definition of a lesser offence proffered by this Court. See IBRAHIM V. STATE (1991) LPELR 1404 (SC), EZEJA V. STATE (2008) LPELR 1202 (SC) and NWACHUKWU V. STATE (supra). In addition, and more fundamentally the offence under Section 222 (6) attracts, as earlier indicated in this judgment, is lesser than the punishment under Section 221. This disentitles one from agreeing with learned appellant’s counsel that the lower Court’s decision that is supported by evidence on record and in consequence to the Court’s
17
correct invocation of its statutory powers in relation to the evidence is perverse. It is not. ATOLAGBE V. SHORUN (1985) LPELR 592 (SC) and EMEKA V. STATE (2014) LPELR 23020 (SC).
It is for all the foregoing reasons that one resolves the issue in this appeal against the appellant and dismisses the unmeritorious appeal. The lower Court’s judgment is resultantly, hereby affirmed.
SC.901/2014
