Usman Kaza V. The State (2008)
LAWGLOBAL HUB Lead Judgment Report
CHUKWUMA-ENEH, J.S.C.
This appeal is against the judgment of the Court of Appeal Kaduna Division, that is to say the Court below, delivered on 10/12/2003 which while dismissing the appellant’s (Usman Kaza) appeal affirmed his conviction and sentence by hanging passed on him (the appellant) by the trial court (Kebbi State High Court of Justice). In the trial court the appellant as the 2nd accused was jointly arraigned with 5 others for criminal conspiracy, abetment and culpable homicide punishable with death under Sections 97,85 and 221(a) of the Penal Code respectively.
Being aggrieved by the decision of the court below the appellant finally has appealed to this court by a Notice of Appeal filed on 27/12/2007 wherein he has raised four grounds of appeal. In the result the parties have filed and exchanged their briefs of argument in this matter. In the appellant’s brief of argument, three issues for determination have been distilled as follows:
“(1) Whether the prosecution proved the case of conspiracy, abetment and murder against the appellant.
(2) Whether mere presence at a scene of crime proof of actual participation in the commission of the crime.
(3) Whether the defence of provocation and justification avail the appellant.”
The respondent in its brief of argument has adopted issues 1 and 3 of the appellant’s issues for determination as the more proper and salient issues to resolve the appeal.
As the facts of this heinous crime are not in issue, I have culled the facts of the same as vividly and graphically set out in paras. 2.1 and 2.2 of the respondent’s brief of argument as follows:
“2.1. On the 14th day of July, 1999, a rumour was spread in Kardi and Randali villages of Birnin Kebbi Local Government Area of Kebbi State of Nigeria that one Abdullahi Alhaji Umaru of Randali village (the deceased) insulted the Holy Prophet Muhammad (S.A.W). In consequence thereof the appellant, together with co-accused, at the trial court who were ‘both resident of Kardi, went Randali in search of the deceased. The deceased was arrested on this account and taken to the outskirt of Kardi village near the village burial ground and kept in the custody of Suleiman Dan Ta Annabi (6th accused in the trial court) and Mohammed Sani (3rd accused in the trial court). In the interim, Musa Yaro (1st accused in the trial court) in conjunction with the appellant (2nd accused in the trial court) as well as Abdullahi Ada (the 4th accused at the trial court) went to Randali, the village of the deceased, in search of the deceased and clarification of whether the deceased ulter the insult or not after the arrest of the deceased they went to the house of the village head at Kardi to inform him that the deceased was caught and the prescribed death punishment of whoever insulted the Holy Prophet Muhammad (S.A.W.) would be carried out on him. Where upon the said village head did not say anything.
2.2 The appellant, Musa Yaro and Abdullahi Ada returned to the out-skirt of the village where the deceased was held captive under the custody of Mohammed Sani and Suleiman Dan Ta Annabi. On getting to the place, Musa Yaro read a portion of the Risala to the effect that whoever insult the prophet should be punished with death. And following this recitation, Mohammed Sani (3rd accused at trial court) matcheted the deceased on the neck and also the appellant as a result of which the deceased fell down and was slaughtered by the neck with a knife by Abubakar Dan Shalla and the deceased died and thereafter the appellant and his co-accused at the trial dispersed from the scene.”
At the trial, the prosecution called 8 witnesses including the brother of the deceased as p.w.3. In addition, the prosecution before the trial court tendered a total of 18 exhibits including particularly exhibits K and K1 and being appellant’s extra judicial statements to the police to show the appellant’s involvement in the killing of the deceased. The prosecution’s case as can be gathered from the Record shows that the 1st accused gave the instruction to kill the deceased. The 3rd accused cut him down by the neck with a matchet and the 5th accused slaughtered the deceased with a knife “like a goat’ while being held to the ground by the 3rd and 6th accused. The 1st, 2nd, 4th and 6th accused persons it is alleged abetted the commission of the crime in a manner that will become clearer anon. Be it noted that the appellant as the 2nd accused in line with the nature of the defence he opted for, before the trial court did not lead any evidence. He rested his case on the prosecution’s case.
On the issues for determination raised by the appellant herein vis-a-vis the background to the judgment of the court below, having gone over the same, I agree with the appellant’s submissions that the four main pillars upon which the court below has predicated its reasoning for its decision are, firstly, that all the accused including the appellant took part and participated in killing the deceased hence they are respectively convicted and sentence accordingly.
2.That the prosecution has led evidence to prove the essential ingredients of the offences for which the appellant and the co-accused were charged.
3.That the prosecution’s case has dispelled any availability of defences of provocation and justification to the appellant and other accused.
4.That the confessional and voluntary statements of the appellant and other accused to the police were neither denied nor retracted.
The appellant has, as it were, joined issues with the respondent on these findings, as borne out by his four grounds of appeal and the issues raised therefrom as per his brief of argument. I now proceed to deal, firstly with the brief of arguement.The appellant’s case as per his brief of argument is that he went to the scene to witness what was going to happen to the deceased. He submits in this vein that it has not been showed that he used any physical assault against the deceased as was the case with the 1st accused who as held by the trial court read the punishment from Risala; the 3rd accused who matcheted the deceased by the neck or the 5th accused who slaughtered the deceased with a knife. And that on the totality of the evidence of the prosecution witnesses coupled with the extra judicial statement of the accused person and other Exhibits, the prosecution has not established a case of conspiracy, abetment and murder against the appellant beyond reasonable doubt. He submits that there is no basis therefore for his conviction by the trial court on the unproven charge for taking part in killing the deceased. He contends it is a grave error for the court below upholding the finding to the effect that “all the accused persons (including the appellant) herein took part and participated in the unfortunate incident that led to the gruesome murder or killing of the deceased … ” [words in bracket supplied] It is strongly contended that as regards the offence of conspiracy in particular the prosecution has failed to establish the existence of any previous agreement to kill the deceased in the face of irrefutable evidence that the accused persons came from different villages and so could not have formed the necessary common intention to ground a charge of conspiracy. Furthermore, that such agreement has to be express albeit to warrant relying on it to convict the appellant. As regards the offences of abetment and murder, it is argued that the prosecution has not proved conclusively either or both of them by evidence, that is to say, beyond reasonable doubt vis-a-vis the ingredients of these offences. The appellant has therefore relied on the cases of Yakasi v. Nigeria Air Force (2002) 15 NWLR (pt.790) 294 at 314 paras. B-G, Shonde v. The State (2005) 12 NWLR (pt.939) 301 at 320 Paras. H-A for so submitting. The point is made that the appellant could not have conspired all by himself alone to kill the deceased and that the onus is on the prosecution to prove its case in any event against the appellant beyond reasonable doubt and not for the appellant to prove his innocence.
The appellant has claimed entitled on the available evidence before the court to the defences of provocation and justification which, it is urged should have been addressed even more so suo motu by the courts below. In this respect it has been submitted that the blasphemy, that is, insultive words uttered by the deceased had provoked the appellant and other accused persons as the rumour made it rounds in the neighbourhood and the evident want of enough cooling time with regard to the appellant in the circumstances. It is broached on behalf by the appellant the serious question of the contradictory evidence of the prosecution witnesses which as contended by the appellant has thrown the prosecution’s case asunder.
I must, however, observe that the appellant has not covered the offences of abetment and culpable homicide punishable with death as well as the defence of justification in his brief of argument. This summarises the appellant’s case.
As can be seen the appellant’s case put in a nutshell is one of total failure on the part of the prosecution to prove its case beyond reasonable doubt and that having, as it were, failed in that regard it tantamounts to a miscarriage of justice for the trial court to convict and sentence the appellant for these offences and even moreso a grave error for the court below to uphold the said conviction and sentence. Because of the peculiar nature of this case I have taken great care in articulating the appellant’s submissions thereof so expansively on the three issues posed in this case.
The respondent on the other hand, on issues I have submitted that the inference to be drawn from the evidence of P.W.2, P.W.5 and p.w.6 shows that the appellant conspired with other co-accused to kill the deceased. The respondent also has reverted to extra judicial confessional statement of the appellant, that is, Exhibit K 1 (English transaction) in which he has outlined his role in this heinous saga of an offence to support the contention that acting in concert with his co-confederates they killed the deceased.
On Issue I – that is, the offence of conspiracy under Section 97 of the Penal Code, the respondent has submitted that the agreement to kill the deceased has to be inferred from circumstantial evidence of P.W.2, P.W.5, and p.w.6 as per the principle settled in Obiakor v. The State (2002) 10 NSCQR 972 at 930 and Ahmed v. The State (1998) 1 AIR 71 at 72. Furthermore, and rightly in my view, that the acts or omission of any of the conspirators done in furtherance of the common design are receivable in evidence against any other or others of the conspirators and that the appellant need not have inflicted physical assault on the deceased as propounded in the case of Abacha v. The State (2002) II NSCQR 346 at 353 to be a party to the offence of conspiracy. The appellant having spent a large chunk of its brief discussing this issue, I think, I should deal with it firstly.
Having rehearsed over and over again the parties cases on this issue as presented in their respective briefs of argument on the backdrop of the evidence of the prosecution witnesses thereof, I see no reason for not upholding the respondent’s submission that the prosecution has proved its case of offence of conspiracy as encompassed under Section 96 of the Penal Code against the appellant beyond reasonable doubt. Section 97 of the Penal Code, the punishment section of the offence of Criminal Conspiracy provides:
“97(1) whoever is a party to a criminal conspiracy to commit an offence punishable with death or with imprisonment shall where no express .provision is made in this Penal Code for the punishment of such conspiracy be punished in the same manner as if he had abetted such offence.
- Whoever is a partly to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment for a term not exceeding six months or with a fine or with both.
Although Section 97 is the punishment section it is really section 96 that explicates the import of criminal conspiracy. It is Section 96 of the Penal Code that conceptionalises the import of criminal conspiracy and for ease of reference it provides that:
“96(1) When two or more persons agree to do or cause to be done –
(a) an illegal act, or
(b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.
(2) Notwithstanding the provisions of subsection (1); no agreement except an agreement to commit on offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement, or is merely incidental to that object.”
The import of the provisions of Section 96 supra has been considered in a long line of cases including Chianagu v. The State (2002) 2 NWLR (pt.750) 225 at 236 para.A.; Obiakor v. The State (2002) 10 NWLR (pt.776) 612 at 628 Upahar v. The State (2003) 6 NWLR (pt.816) 23 at 262 and Idi v. Yau (2001) 10 NWLR (pt.722) 640 at 651 and 658. These cases in summary establish that to secure the conviction of an accused on a charge of conspiracy it must be proved beyond reasonable doubt that:-
(1) The agreement to commit an offence – an illegal act is between two or more persons.
(2) That the said act apart from the agreement itself must be express in furtherance of the agreement.
However, authorities abound to the effect that agreements under Section 96 of the Penal Code can be inferred from circumstantial evidence. In this regard the evidence of PW2, PW5 and PW6 becomes very crucial bearing in mind that the appellant as the 2nd accused before the trial court rested his case on the prosecution’s case. In this regard, I have to examine the evidence of PW2, PW 5 and PW6 in relation to this question. Firstly the PW2’s testimony English Translation from Hausa as per the Record at page 42-44 runs thus: (male Muslim, speaks Hausa, affirmed).
“My name is Aliyu Magga. I live at Randali village in Birnin Kebbi Local Government Area. I am a farmer. I know the Ist accused Musa Yaro, I know the 2nd accused, the 3rd accused, 5th accused and 6th accused very. I also know one Abdullah Umaru. He is now dead.
I returned to Randali around 3:00 am and was in my house when the 1st accused Musa Yaro, one Mamman Dambu Umaru Kaza (2nd accused), Abdullah Ada (4th Accused), Suleiman Danta Aunabi (6th Accused) along with some other people whom I did not know woke me up and that I should come out as I am lucky because they would have killed me if they had not seen Abdullah. When I came out, they asked me whether I knew exactly what Abdullah said about the Prophet and I told them that I didn’t know. I however asked them to go to the house of our village head and we went together. At the house of the village head, I called the attention of one Shehu Yanliyya and Ustaz Mamman on what was happening. Then Ustaz Mamman read a verse from the Holy Quran and translated it in Hausa to the 1st accused and his group which included the other accused persons, that it is not their responsibility to punish a person who insults the Prophet but that it is only the authority that will punish him. The accused persons led by the 1st accused were not satisfied with the explanation and they just went away towards Kardi village and I followed them. On getting to Danfili within Randali Market one Shehu Yanliyya asked me to go through the motor park so that I can find people who will go with me to Kardi in order to rescue Abdullah even by force. I only got Baba Sambari and Abun Dambu and we proceeded together to Kardi. At then the accused persons and their remaining group members had proceeded to Kardi.
On reaching Kardi near the burial ground we already met the late Abdullah being held by Sule Dan ta Aunabi (6th accused) and Mohammed Sani (3rd accused) there were so many people around the scene. At then the 1st accused was not around. I went very close to where Abdullah was being held and I saw one Abu Maigirgi and Adamu Aljani holding a spear and stick respectively. Ustaz Mamman was also around and he repeated to the accused what he said at Randali that it is not their duty to punish Abdullah. Then the 5th accused Dan Shalla came and asked Ustaz Mamman whether he too is not a Muslim. The 5th accused further asked whether Ustaz Mamman was using a tape recorder to record what was happening. I used my torchlight and lit at the tape recorder and only then the 5th accused got satisfied that the recorder was not being used to record the happening.
As this was happening, Abu Dambu came and told me that Abdullah has been slaughtered. Then the accused persons and their group members started shouting (Allahu Akbar) God is great and moved away through a footpath into the town. I thought they were going away with Abdullah and I asked Ustaz Mamman to follow them. But Aba Dambu repeated that we should go home because Abdullah had been slaughtered. The incident happened between 3:00 am and 4:00 am. We proceeded to the exact place where Abdullah was slaughtered and found his corpse close to the footpath near millet stalks dead slaughtered by the neck full of blood and we left him there and went back to Randali. There were more than 50 people at the scene of crime. I only identified those I mentioned because I know them very well and they cannot deny this fact.”
As for P.W.5 his account of what happened as recorded by the police at p.51 of the record is as follows:
“My name is Atiku Dan Ayi. I live at Kardi village in Birnin Kebbi Local Government Area. I am a farmer. I know the 1st, 2nd, 3rd, 4th, 5th and 6th accused persons very well, I know one Abdullahi Alh. Umaru. He is now dead. What I know is that on 14/7/99 I was at my sleeping place at Kardi when one Mr. Bello Dan Nana woke me up and asked me whether I was aware of what was happening and I told him that I didn’t know. He told me that somebody was accused of insulting the Prophet Mohammed (SAW) and asked whether I will go to the place where he was being held. I took my catapult and started going to the scene along with Bello at Shiyar Riyoji where the person who was accused of insulting the Prophet (SAW) was arrested. On my arrival I found that it was Abdullahi Alh. Umaru of Randali village who was being held by the 6th accused Suleiman and the 3rd accused Muhammadu Sani, boy and arrest him and brought to him, then we decided to come back to our village Kardi, on our way back home, we meet with some of our Village boys on the road who told us that the boy have been arrested that is Abdullahi Alh. Umaru inside Kardi township, we proceeded to the place, on reaching there the late Abdullahi Alh. Umaru alive, while the following persons surrounded him. (I) Kalli Musa (2) Adamu Aljani (3) Shehu Danbega (4) Dan Bala Matar Kura (5) Abubakar Dan Shallah (6) and Sani Aci B/Kebbi from there I and Musa Yaro and Abdullahi Danada went to the Village Head of Kardi. Then Musa Yaro asked the Village Head whether he is aware of what is happening The Village Head replied him no, there Musa Yaro told the village Head that there is a boy of Randali who abuse Prophet Mohammed ‘SAW’, then the Village Head asked Musa Yaro what is the next line of action Musa Yaro told the Village Head that whoever abused Prophet Mohammed ‘S.A.W.’, God said he should be killed. Then the Village Head said should do mercy on us. We then returned back to where Abdullahi Alh. Umaru is arrested, before we could reach those people who arrested him took him to the bush on reaching the bush, then Musa Yaro read a word from the Qu’ran saying ‘Masabba Rasullilahi Kutoilla, that is to say whoever abuse Prophet Mohammed “SAW”, Islamic Law says he should be killed. Immediately Musa Yaro said this one Sani Aci BlKebbi macheted the said Abdullahi Alh. Umaru with cutlass, he fell down, then when he fell down Abubukar Dan Shallah slaughtered the boy with a knife as we were there he Musa Yaro was in possession of a iron stick while I was with torchlight. That is all I have to state.”
The trial court in its review and findings on the prosecution’s case against the appellant vis-a-vis the charge of conspiracy at p.67 LL6-14 stated thus;
“In the case of the 2nd accused person the evidence against him is that he was among the group that went to Randali on inquiry and subsequently returned to Kardi in search of the deceased. After the deceased was arrested he was also among the people who came to the house of the Village Head of Kardi to inform him what was going on. He was further among the group that come (sic) back to the place where the deceased was being held and remained there until the deceased was killed. This is supported by the testimony of PWs 2, 5 and 6 and the voluntary statement of the accused himself as in Exhibit K. This evidence too is uncontradicted and unchallenged. I am therefore satisfied that the 2nd accused took part in the conspiracy to kill the deceased.”
Concluding this aspect of its review and findings of the prosecution’s case of the 1st to 6th accused persons i.e. including the instant appellant the trial court from the third paragraph at p.68 of the record rightly in my view held that:
“From the above, it is evident that there is direct evidence of conspiracy against all the accused persons as in their voluntary statement and testimony of p.w.2 who told the court how the accused persons confronted him and even threatened to kill him in place of the deceased at the earliest stage. Furthermore the circumstances of this case are inferable to the only conclusion that the accused persons conspired to kill the deceased. In the case of Onochie v. The Republic (1966) 1 ANLR 86 it was held that the proof of conspiracy can even be inferred from the circumstance of a case.”
The court below on the other hand in agreeing with the foregoing abstract has observed at p.117 of LL5-16 thus:
” …. it is not in dispute that all the appellants took part and participated in the unfortunate incident that led to the gruesome murder or killing of the deceased by name Abdullahi Alhaji Umaru for the alleged (but unproven) use of abusive, defaming or insultive words against the Holy Prophet Mohammed (SAW). The prosecution has led evidence to prove the essential ingredients of the offences for which the appellants were charged including their confessional and voluntary statements to the Police which was neither denied nor retracted from by the said appellants. It is also to be noted as rightly pointed by the learned trial judge and as reflected by the record that the appellants rested their case on the evidence adduced by the prosecution and chosed (sic) not give or call any evidence for their defence.”
The foregoing findings cannot be faulted or flawed as the sale issue taken before the court below by the appellant ranged on whether the appellant suffered any miscarriage of justice when the trial court refused to consider possible several defences open to the appellant and his confederates. In this court the instant appellant has reopened all the questions dealt with at trial court in addition to the sale issue in the Court below. This act of chopping and changing a party’s case at every stage of the hierarchy of the courts as here has been frowned upon and roundly condemned in the case of Jumbo v. Bryanko internationals Ltd (1995) 6 NWLR (ptA03) 545 at 555-6. I have ignored this anomaly, as this is a murder case.
The findings of both courts below as stated above, I must again emphasis, are unimpeachable. It certainly cannot be contested on the facts of this case that the fatal act, that is to say, the heinous act of slaughtering the deceased like a goat by the 5th accused person and even before then hacking him (the deceased) down with a matchet by the 3rd accused person with the common intention of causing him grievous bodily harm and kill him are outside the scope or tacit agreement of the accused persons to kill the deceased albeit in furtherance of their common intention to kill him for insulting the Prophet Mohammed. Again, it is an unchallenged fact that the appellant was present at and aiding and abetting the others of them including the 3rd and 5th accused persons particularly in the execution of the gruesome slaughtering of the deceased. It is my view that in such circumstances as here the prosecution does not have to prove that the accused persons were acting in pursuance of a common design of a prearranged plan. It is inferable from the surrounding circumstances. My reasoning here certainly begs the question – What did the accused persons agree to do Pertinently, this is so in that if what the appellant and the other accused persons agreed to do is, on the facts known to them, an unlawful act they are guilty of conspiracy and cannot excuse themselves by unfoundedly contending that owing to their ignorance of the law they did not realise as per their Religious persuasion that such act is a crime. I have here anticipated appellant’s claim to the defence of justification. I shall return to it later. All the same, I hold that the appellant is rightly convicted of the offence of conspiracy.
On the offence of abetment – this is covered under Section 85 of the Penal Code and it provides as follows:
“85 Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by this Penal Code or by any other law for the time being in force for the punishment of such abetment, be punished with punishment provided for the offence.
The clear purport of the above provisions of Section 85 of the Penal Code is clear to the extent that to secure the conviction of an accused person as the appellant here the prosecution has the responsibility to establish as follows:
(1) that the accused abetted the offence
(2) that the abetted offence was committed in consequence of the abetment (These stipulations flow naturally from the definition of abetment as per the foregoing provisions).
I have set out in extenso the evidence of P.W.2, P.W.5 and P.W.6 herein in so far as they are relevant to establish this offence and I shall revert to them anon. The trial court at p.69 LL 16-25 of the record has found as regards this offence as follows:
“In respect of the 2nd and 4th accused persons, it is in evidence that after the arrest of the deceased, they ordered for his detention until their return. It is also in evidence that they told the Village Head of Kardi what was to happen to the deceased and acted as strong supporters of the 1st accused following him closely. It was when they came to (sic) scene of crime that the deceased was callously killed. The acts of the 2nd and 4th accused persons were supported by the voluntary statement of the accused persons in Exhibits K and F respectively and the testimony of p.w.2. I am in agreement with the learned counsel for the prosecution that the ups and downs and final arrest of the deceased by the accused persons facilitated his killing. I am satisfied that the prosecutions have proved beyond reasonable doubt the charge of abatement (sic) against the 2nd and 4th accused persons.”
This finding cannot be faulted as it has brought to the fore the complicity and indeed the liability of the appellant for aiding and abetting the commission of the heinous crime. The court below as per the record has not adverted to nor made any specific findings on this question apart from its overview of the offences for which the appellant was charged as per my excerpt above i.e. as per p.117 LL5-16 of the record. As I observed herein this question has not been raised as an issue for determination before the court below hence it did not consider it.
For my part I must turn to examining this question by scrutinising the distinction between the offences of conspiracy and abetment as properly accentuated by the trial court in its judgment at p.66 LL 13-22 of the record where it said thus:
“I am of the view that from the nature of the provisions of Section 85 and 97 of the Penal Code the two provisions are distinct. Conspiracy is distinguished from abatement (sic) in that the crime consists of simply in the agreement or confederacy to do some act, no matter whether it is done or not. In the other (i.e. abatement) (sic) the intention to do a criminal act is not a crime itself until something is done amounting to do or attempting to do some act to carry out the intention. More so the offence of abatement (sic) deals only with offenders who may be described as accessories before the fact and at the fact. Abattors (sic) must have committed acts or omissions which must take place in pursuance of the conspiracy. I therefore find the two charges as framed by the prosecutions are distinct.”
This is a correct statement of the law on the distinction between conspiracy vis-a.-vis abetment and I uphold it. The exposition recognizes the distinction between the persons otherwise known as principals in the first degree who actually did the criminal act and those other parties or co-confederates who are secondary parties present at and assisting in the commission of the felony, for example by keeping watch. And so conspiracy is distinguishable from abetment; the two offences have different ingredients, in the case of conspiracy prior agreement is necessary, it is not so in abetment. See Mohun v. R (1967) 2 AELR 58.
I have followed meticulously the evidence of P.W.2, P.W.5 and P.W.6 as per the record indicating that the appellant and his co-accused persons were present at and assisting in the commission of the offence of killing the deceased by slaughtering him. Although the appellant is apparently a secondary party to this crime according to the law he has been rightly convicted and punished as a principal offender (i.e. as the 3rd and 5th accused persons) who did the criminal act, and I so hold.
I now turn to the offence of culpable homicide punishable with death under section 221 (a) of the Penal Code which section provides as follows:
“221(a) Except in the circumstances mentioned in section 222 culpable homicide shall be punished with death –
(b) If the act by which the death is caused is done with the intention of causing death.”
By the foregoing provision the prosecution is to establish the following elements beyond reasonable doubt to secure conviction to wit;-
(a) That there was a death of human being
(b) That the death was caused by the act of the accused person
(c) That the act of the accused person was done with intention of causing death.
At the trial of the appellant and his co-confederates the evidence of P.W.2, P.W.3, p.w 4, P.W.5 and Exhibit D as per the prosecution witnesses as found by the trial court has established beyond reasonable doubt all the above ingredients of the offence of culpable homicide punishable with death to secure the conviction and sentence of the appellant by hanging. On the first element the prosecution has proved the death of the deceased being i.e. Abdullahi AJhaji Umaru, P.w.3, a brother to the deceased testified to the effect that he came to Kardi village and found the corpse of his brother who had been slaughtered. P.W.2, P.W. 4, P.W.5 and P.W.6 all testified that the deceased was severely beaten and matcheted by the neck and eventually slaughtered to death by cutting his throat. This gruesome and chilling account of this callous murder was further corroborated by Exhibit D – the medical report and Exhibits E, E I, E2, E3, F, F1, G, G1, H, HI, J and J 1 and exhibits K and K I in particular that is, the extra judicial statements of the accused person confessing to the crime.
On the 2nd element – as rightly found by the trial court, it was the appellant and other accused persons who killed the deceased. I have expatiated on this aspect of the crime above and I need not even then flog that aspect of the case any further see: R. v. Isa (1965) ANLR 68 and Erik Uyo v. AIG Bendel State (1986) 1 NWLR 48.
The appellant as the 2nd accused person made a confessional statement Exhibits K and K1 so also did other accused persons charged along with the appellant – this was corroborated in every material particular by the testimonies of p.w.2, p.w.5 and p.w.6 and Exhibit D. Exh. D has described the injuries inflicted on the deceased thus: ” ….. severe signs of violence around the neck – cutting all the blood vessels around the neck and the air wav thereby resulting in the death of the deceased on the spot.” There can be no doubt that the conviction of the appellant and 5 other accused persons for causing the death of the deceased is well grounded. See Bwoshe v. The State (1972) 6 SC 93, Kan Dan Adamu v. Kano N.A. (1956) 1 FSC 25.
On the 3rd ingredient i.e. whether the act was done with intention of causing death. All the accused persons it is agreed were present at the scene of the crime and each of them including the appellant assisted in the commission of the offence of slaughtering the deceased. The evidence as per the record has acknowledged signs of violence around the neck region of the deceased, cutting of all the blood vessels and the air ways as per Exhibit D. The murder weapons, that is to say, the matchet and the knife Exhibit A used by the 3rd and 5th accused persons respectively are no toys. These are dangerous weapons that can cause grievous bodily harm and as they did here. P.W.3 has testified as to how the deceased was cut with a matchet by the 3rd accused who struck him down by the neck with a matchet and slaughtered by the 5th accused with a knife while the other accused persons including the appellants abetted the crime. The accused persons including the appellant intended not only to cause the deceased grievous bodily harm but to kill him: See George v. The State (1993) 6 SCNJ 249 at 257. From all accounts of this matter the appellant and his co-confederates must have intended the consequences of their act and must take the consequences. As for the appellant, the 1st and 4th accused persons the prosecution’s case has showed them not to have used any physical assault against the deceased. The trial court nonetheless and rightly for that matter found conclusively that all accused persons i.e. 1st to the 6th were joint actors i.e. participes in criminis. In discussing their complicity and liability in this matter the law is settled that where persons have embarked on a joint enterprise, each is liable criminally for the act done in pursuance of the joint enterprise and even including unusual consequences arising from the execution of the joint enterprise see R v. Anderson and Morris (1966) 2 AER 644; Nyam v. The State (1964) 1 ANLR 361 and Buje v. The State (1991) 4 NWLR (pt.185) 287 at 298-304. It is clear that right from the outset of this despicable saga that the appellant and the other accused persons left Kardi village with the avowed intention apparently fired by the unproven rumour that Abdullahi Alhaji Umaru had insulted Prophet Mohammed to put the deceased to death.
The trial court therefore, rightly in my view held thus: “at p.74 LLI3: “1 am therefore satisfied that 1st, 2nd and 4th accused persons (including the appellant) were equally guilty under section 221 (a) of the Penal Code. I found that the act of accused persons was done with the intention of causing the death of the deceased.” (words in bracket supplied) And I agree and also so hold.”
Reverting to the confessional statement of the appellant Exhibits K and KI, I agree with the submissions of the respondent and also the finding of the trial court that the confessional statement of the appellant as per Exhibits K and K 1 has remained as proved by the prosecution positive, direct, voluntary and consistent confession as to the offences charged and that from the prosecution’s case which the trial court rightly accepted that the appellant had every opportunity as well as all of his co-confederates to commit the offence of murder see: Kanu v. The State (1952) 14 WACA 30 at 32. There are factors external to Exhibits K and KI. I have showed herein in clear support of the trial court’s reliance on Exhibit K and K I to convict the appellant. And as held by the trial court I see no reason therefore, declining to act on appellant’s confessional statement again, particularly when it has been endorsed by a superior police officer attesting to its voluntariness and was tendered at the trial without any objection. In regard to the appellant, Exhibit K and K 1 have not been retracted. The confessional statement is so conclusive as to sustain by itself alone the conviction of the appellant
The appellant has raised questions of contradictions in the testimonies of the prosecution’s witnesses as regards 2nd, 5th and 6th witnesses so much so that I cannot gloss over it. He has dwelt passionately on P.W.2’s evidence as per Exhibit C and his oral testimony before the trial court. Exhibit C, the critical exhibit in this regard, for ease of reference reads as follows:
“I of the above given name and address wish to state that: on Wednesday 14/7/99 at about 2000 hours when I was coming from Randali Garrage, heading to market field, I met with one Mamman Abobo who gist me that Abdullahi Alh. Umaru was said to have abused Prophet Mohammed and that me being his friend shall find a solution to how the friend Abullahi will escape that the issue had even reach the village head but he was not found at home. On hearing this information I later saw Abdullahi then I invited him to his mother Amarya Alh. Umaru and then demanded transport money from the mother to enable Abdullahi leave the town to some where, but the mother said that she have no money to give Abdullahi then I later advice Abdullahi to park his properties and go. Immediately we finish discussing one Shugaban Samari arrive with Dan Ashibi and Oanladi Umaru Giwa and called me, as I went Abdullahi left then these ‘3’ persons still went to the town telling people that I asked Abdullahi to go, and that if they did not see Abdullahi, I will be held responsible with that, I ran to Kardi to find out from one of his friend called Bello Aliyu and Bello told me that he did not see Abdullahi then I told him about the incident that happened, and I also advised him that in case if he see Abdullahi let him take him to the Police Station, or hide him somewhere and ran to inform Inspector Sule Dogon Yaro that my life is in danger that people says if they did not see Abdullahi, they will hold me responsible and that Abdullahi abused Prophet Mohammed, and if he is seen he should be arrested and hidden, then the Inspector told me that he will take care, then I went back to Randali when I was in my room sleeping at about 03 00 hours Mallam Musa Yaro, Shugaban Samari and others came and woke me up and they told me that I was lucky that they have arrested Abdullahi and that did I witness that kind of insult altered to the Prophet I said no, then they all left.
And I later went and woke Shehu Yalliya and Mamman Dan Mallam and went to Kardi to rescue Abdullahi. As we reached Kardi, we met people surrounded with Abdullahi then Mamman Dan Malami who was in possession of tape recorder warned the crowed that, Islamically it is not right to touch whoever abused Prophet Mohammed, but that such person should be taken to the authority concerned. But they insisted, that Mamman Dan Mallam is a fake Moslem they attempted to damage his tape. We made our effort to rescue the deceased, but we were too limited. And after the struggling, one Abu Magaji drew my attention to one side arguing on why Abdullahi must be killed, then one Abu Danbu whom we went together to rescue the deceased later came and informed me that, we have to go home because they have killed Abdullahi then we left back to Randali.”
The pieces of contradictions with regard to P.W 2 as per para.29 at p.20 to para. 32 of the appellant’s brief read thus:
“29. In Exhibit C, he told the police that he invited him (Abdullah) to his mother Amarya Alh. Umaru and then demanded transport money from the mother in his evidence in chief he said On hearing this I returned to the motor park where I met Abdullahi Umaru and called him and went with him to his mother’s place along with one of the brothers of the deceased called Kallamu part of the spicing of his evidence is that. In his evidence in chief is that while he forgot immediately the incident took place to mention that deceased’s brother Kallamu was with him when he took the deceased’s mother, he remembered it in his evidence in chief in Exhibit C he said One Shugaban Samari arrive with Dan Ashibi and Danladi Umaru Giwa and called me, as I went Abdullahi left then these ‘3’ persons still went to the town telling people that I asked Abdullahi to go and that if they did not see Abdullahi I will be held responsible.
- In his evidence in chief he said: ‘the mother did not give him the money. As we were coming out we met with 3 people namely Mamman Dambu. Dan Ashibi and Daladi Umaru Giwa and they asked me to follow them. We went to the motor park where they looked for Abdullahi but he was not seen as he sneaked away when we were going to the Garage’.
The ‘we’ that ‘were coming out’ including the deceased since he was the one that was taken to his mother’s place. How come he PW2 was seen and deceased was not seen that the have to go looking for him.
3 I. In Exhibit C PW2 wrote:
When I was in my room sleeping at about 0300hrs Mallam Musa Yaro, Shagab and Samari and others. But in spicing up his evidence and in an attempt to rope in the Appellant said I returned to Randali around 3.00am and was in my house when the Ist accused Musa Yaro, one Mamman Dambu, Umaru Kaza (2nd accused), Abdullahi Ada (4th Accused), Suleiman Danta Aunabi (6th Accused) along with some other people whom I did not know woke me up and that I should come out:one begins to wonder why the PW2 failed to mention the names of the 2nd accused person (Appellant) in his Exhibit C which was a statement made two days after the incident but suddenly remember this name in his oral evidence on 19th January, 2000 almost six months after the incident.
- This witness alleged that he along with some other persons attempted to rescue the deceased but that while were still trying to rescue the deceased, somebody came to inform him that the deceased had been killed. One then wonders where this witness was trying to rescue the deceased that somebody has to come from somewhere to inform him that the deceased whom this witness was trying to rescue had been killed.”
It is submitted that these alleged contradictions go to the root of the entirety of the prosecution’s case against the appellant and ought to have been countenanced by the trial court and even more so by the court below. And, that if it had been upheld it would have left the prosecution’s case weak, insufficient and unreliable and devoid of any credible materials to sustain the conviction of the appellant. See Ani v. State (2003) 11 NWLR (pt.830) 142 at 162 paras. B-D, pt. 166. A-B, at 171 para. D-G., Akpabio v. The State (1994) 7 NWLR (Pt.359) 655) at 660-661 Paras. G-A, at 664 paras.D-E.
Respectfully, I think the appellant’s complaints here amount to no more than a storm in the tea cup. I entirely agree with the respondent’s statement of the law at paragraph 7.4 of the respondent’s brief of argument on this question to the effect that
“there can only be contradictory evidence where a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated not when there is just a minor discrepancy between them. Thus, for any conflict or contradiction in the evidence of the prosecution witnesses to be fatal to the case, it must be fundamental to the main issues before the court ….. ” See Agbo v. The State.
I have more or less rehearsed the areas of contradictions as raised as per the appellant’s brief of argument vis-a-vis the evidence of the prosecution’s witnesses at the trial court and I find no such conflicts or contradictions but minor discrepancies or inconsistencies in the testimonies of P.W.2 and P.W.S at the trial in terms of chronology or sequence of events. This is only natural in a case of this kind and they are as can be expected in human affairs. There is no merit on this question and I reject the insinuation.
In the result, issue I is resoundingly resolved against the appellant.
On issue 3 i.e. on whether the defences of provocation and justification avail the appellant, if I may add, on the peculiar circumstances of this case. The appellant in his brief of argument has left no stone unturned in making his point in this regard. It is trite law that a court trying a criminal case as here must consider all the defences raised by the accused and all other defences which surfaced in the evidence before the court however slight or minor. See: Ahmed v. The State (1999) 7 NWLR (pt.612) 641 at 679 para. D. Having taken the point in this regard, the appellant has, therefore submitted that the killing of the deceased was done in retaliation for insulting Prophet Mohammed as clearly borne out by Exhibits K and K I i.e. the voluntary statements of the appellant.
It is settled that for an accused as the appellant here to avail himself of this defence he has to satisfy certain conditions as stipulated under S.45 of the Penal Code which reads as follows:
“45 Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be justified by law in doing it.”
The conditions for the defence of justification to apply arising from the foregoing provisions are:
“(1) That the criminal act is justified by law
(2) That the criminal act was done as a result of mistake of fact not mistake of law.
(3) That the act was done in good faith believing same to be justified by law in doing it.”
See: Lado v. The State (1999) 9 NWLR (pt.619) 369 at 381; R v. Adamu (1944) 10 WACA 161; Aka1ezi v. The State (1993) 2 NWLR (pt.2730 1 at 14; Ubani v. The State (2001) FWLR (pt.44) 483 at 490; Ekpenyong v.The State (1993) 5 NWLR (pt.295) 513 at 522. I hold the view that the appellant’s claim to the defence of justification is wrong footed on the premises that he cannot excuse himself of this heinous crime by contending that owing to his ignorance of the law he did not realise that the act of killing the deceased on the peculiar facts of this matter is a crime. After all, entitlement to this defence has to be rooted in good faith, which is not the case here.
It is also, significant here that the only evidence the appellant and his co-confederates have against the deceased is the unproven rumour that the appellant and his co-accused overheard, that is, hearsay allegation that the deceased had insulted Prophet Mohammed in a neighbouring village of Randali. And it is noteworthy that what constitutes the content of the insult so far has remained a mirage to the courts below and so also this has disabled the respondent to refute it. Even then, on this ground alone, in my respective view, it is not open to the courts below to speculate on the words of the abusive insult. I therefore hold that there is no iota of evidence in the prosecution’s case including Exhibit K and Kl on the appellant’s confessional statement to sustain a plea of justification for the dastardly act of killing the deceased by slaughtering him like a goat, I therefore, agree with the respondent’s submission that the courts below cannot give the appellant the benefit of this defence as it is not supported by evidence on the record: see Abara v. The State (1981) 2 LNRC 110 at 117.
The appellant also has taken issue with the failure of the courts below to give due consideration to the defence of provocation. Section 221 (1) of the Penal Code has provided for this defence and it reads:
“221(1) Culpable homicide is not punishable with death if the offender whilst deprived of the power of self control by grave and sudden provocation causes the death of any other person by mistake or accident.”
Therefore, for the appellant or an accused person to avail himself of this defence he has to establish by evidence the following conditions to wit:
“(a) That the act of provocation is grave and sudden
(b) That accused lost self control, actual and reasonable
(c) The degree of retaliation by the accused person must be proportionate to the provocation offered. See Ihuebek v. The State (2006) 5 SCNCR 186 (vol.2) and Shande v. The State (2005) 22 NSCQR 756. ”
Again, if I must repeat, this defence as in the case of justification cannot be taken or indeed discussed in vacuo. By its peculiar nature it must be predicated upon the evidence accepted by the court. Again, if I must repeat, and even more importantly the evidence upon which the appellant as well as his co-accused has rooted his plea of provocation is the overhearing of the rumour making rounds in Randali village that the deceased insulted Prophet Mohammed (SA W). As I stated earlier the exact insultive words have not been proved to the courts below as there is no evidence to that effect and so it is a fundamental flaw and must fail. The appellant, if I may recall, did not give evidence in his own defence at the trial having rested his case on the prosecution’s case. Meaning in effect that the defence of provocation is as founded, if at all, as per the case of the prosecution. And in the absence of the exact insultive words uttered by the deceased about Prophet Mohammed there can be no basis for considering the defence of provocation; it is even not clear to whom the insultive words were uttered certainly not to the appellant. He has not contended that the words were directed to him. I wonder if the defence of provocation could avail him on these facts. It cannot in this instance be taken in vacuo as it would tantamount to working on mere speculation and so, it is a nonstarter.
On the foregoing basis it is not possible to determine whether the defence avails the appellant. See Ahmed v. The State (1999) 7 NWLR (pt.612) 641 at 684. Idemudia v. The State (1992) 7 NWLR 356.
Therefore, it does not arise for consideration in this case whether the insultive words were even uttered to the appellant or could be sustained on mere rumour. Even more so, the provocative act as reported by the co-accused, Musa Yaro, the 1st accused, cannot in law be a ground for the appellant to kill the deceased, it is too far fetched to say the least.
In conclusion, I find no merit in the appeal; the court below rightly in my view rejected the plea of provocation as it is on the whole highly speculative. I also resolve this issue against the appellant.
Finally, this appeal is unmeritorious. I dismiss it and uphold the conviction and sentence passed on the appellant by the trial court is affirmed by the court below.
SC.212/2004
