Sahalatu Shazali V. The State (1988)
LawGlobal-Hub Lead Judgment Report
G. O. AGBAJE, J.S.C.
The appellant, Sahalatu Shazali, was arraigned in a Kano High Court on a charge of culpable homicide punishable with death under section 221(a) of the Penal Code and, in the alternative, on a charge of mischief by fire with intent to destroy a house punishable under section 337 of the same Penal Code.
The case was tried by Fernandez, J. The prosecution led evidence in support of the offences alleged to have been committed by the appellant. The appellant led no evidence at all for the defence. In short, the defence rested its case on the evidence adduced by the prosecution.
The learned trial Judge in his judgment delivered on 9th August, 1984 found the appellant guilty of culpable homicide punishable with death as charged, and, accordingly sentenced her to death. No verdict or sentence was returned by the learned trial Judge on the alternative charge of mischief by fire. Nothing turns on this on this appeal. So I will say nothing more about it.
The appellant appealed unsuccessfully against her conviction and sentence to the Court of Appeal, Kaduna Division, coram Wali, J.C.A. (as he then was) Maidama and Ogundere, JJ.C.A. In his lead judgment given on 31st March, 1987 and in which Wali, J.C.A. (as he then was) and Maidama, J.C.A. concurred Ogundere, J.C.A. said inter alia:-
First: “In this case the prosecution rested its case not so much on circumstantial evidence but on the confession of the appellant and the evidence of the two infant children of the appellant which learned trial Judge accepted in proof of the case. Although parts of her own statement and the evidence of P.W.3 and P.W.4 require some explanation from the appellant, she chose, as she is entitled to do under the law, to rest her case on that of the prosecution.”
Second: “In this case the appellant gave no explanation as to why she made no effort, as her son did, to force the door open to let her husband out of the burning loose, as the brigands she said she saw were out of sight, or made no effort to wake up her husband as she did for her children, before the house was on fire. Her actions therefore, corroborate her own confession and the evidence of her children PW3 and P.W.4. The only inference that one could draw is that the appellant deliberately planned the death of her husband, among other reasons, that the husband resented the several men which the appellant brought into the house in his absence in respect of which she was asked to visit a family friend to caution her in that regard.”
Third: The next question to consider, since we must accept both the good and the bad in her statement. is whether the conviction will hold in view of the fact that she said armed men stood over her and forced her to set fire to her room. Under Section 57 of the Penal Code. that is not a defence. It provides as follows:-
“57, Except culpable homicide and offences against the State punishable with death, no act is an offence which is done by a person who is compelled to do it by threats which at the time of doing it reasonably cause the apprehension that instant death to that person will otherwise he the consequence: Provided that the person doing the act did not, of his own accord or from apprehension of harm to himself short of instant death, place himself in the situation by which he because subject to such compulsion.”
Ogundere, J.C.A. then dismissed the appellant’s appeal to the Court of Appeal.
The appellant has now appealed further to this court against the judgment of the Court of Appeal Kaduna Division, dismissing her appeal to that court anti affirming her conviction and the death sentence passed on her by Fernandez. J. sitting at a Kano High Court.
In this court briefs of arguments were filed by the appellant and the respondent, the State. In the appellant’s brief of arguments filed on her behalf by her counsel. Mr. Ajala the issues arising for determination in this appeal have been identified as follows:-
“1. Whether, in a serious case of culpable homicide punishable with death, it is safe for the trial Court, as affirmed by the Court of Appeal, to conveniently rely on the evidence of P.W.3 Audu Shazali and P.W.4 Ibrahim Alhaji Shazali, 11 years and 13 years old respectively, and of tender years, who were the children of both the deceased and the appellant, in convicting the appellant accordingly, without warning itself of the danger and risk inherent in acting on such evidence, which was not corroborated.
- Whether the conduct of the appellant on the night of the incident was enough corroboration of the evidence of the children aforesaid.
- Whether the written statement of the appellant, admitted and marked as Exhibit B. was a confessional statement as such.
- Whether, in the absence of proof beyond reasonable doubt, of the essential elements of the offence as charged under Section 221(a) of the Penal Code and the particulars of the charge itself, does the facts of the case amount to circumstantial evidence cogent, compelling, complete, unequivocal and strong enough to lead to the conviction of the appellant.
- Whether, having regard to the totality of evidence before the Court and the circumstances of this case, the appellant is entitled to a conviction for a lesser offence of culpable homicide not punishable with death under Section 224 of the Penal Code.
- Whether the decision of the lower court can he supported, having regard to the evidence.”
The respondent, the State, in its brief of arguments filed by the learned Director of Public Prosecution, Kano State v. Borodo has, for its part, identified tilt’ issues arising for determination in this appeal as follows:-
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