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.