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In The Supreme Court of
On Friday, the 5th day of October
2007
Before Their Lordships
S.C. 245/2004
Between
And
Judgement of the Court
Delivered by
George Adesola
Oguntade
J.S.C.
The appellant, Abubalar
Dan Shalla, was the fifth of six accused person
who were brought before the High Court of Kebbi
State, Birnin Kebbi
on a three-count charge of criminal conspiracy, abatement and culpable
homicide contrary to Sections 97, 85
and 221 (a) of the Penal Code respectively. On 18/1/2000, each of the
appellant and the five other accused persons charged with him pleaded not
guilty to each of the three counts. Hearing of the case opened on 19/1/2000.
The prosecution called eight witnesses. The appellant elected not to testify
or call a witness.
The trial judge,
Ambursa J, on 24-02-2000, in his judgment found
the appellant and the five others accused persons charged with him guilty of
the offence of culpable homicide and each was sentenced to death under
Section 221 (a) of the Penal Code.
The appellant brought an appeal against the judgment of the trial court
before the Court of Appeal,
The appellant has come before
this court on a final appeal. The appellant raised three grounds of appeal
out of which two issues were formulated for determination.
The said issues are:
“1.
Whether the learned justices of the Court of Appeal ought to confirm
the conviction and sentence of the appellant by the trial court.
This issue is distilled from grounds 1 and 2 of the grounds of appeal.)
2.
Whether the learned justices of the Court of Appeal were right in
raising the issue of defences of justification and provocation without
affording the parties the right to be heard on the said issue raised
suo motu.
(This issue is distilled from ground 3 of the grounds of appeal).”
The respondent in its brief
adopted the issues for determination as formulated by the appellant's
counsel in the appellant's brief.
Let me start by examining the
case of the prosecution against the appellant as put before the trial court.
It was alleged that a group of persons of whom the appellant was one had
stated that one Abdullar
Alhaji Umaru (now deceased) made certain
remarks which were insulting to Prophet Muhammed
(S.A.W.) and that the deceased ought to be killed as prescribed in the Holy
Quran for making the alleged remarks. They went in search of the deceased,
laid their hands on him and slaughtered him with a knife. The incident was
reported to the police on 14-7-99. The appellant and five other persons were
arrested for killing the deceased. The evidence of P.W.5 as to the manner in
which Abdullahi Alhaji
Umaru was killed is particularly eye-opening. At page 51 of the
record, he testified thus:
"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
As I observed earlier, the
appellant elected not to testify at the trial. He called no witness but his
statement under caution to the police was tendered in evidence as Exhibits G
and Gl. The statement of the appellant exhibit Gl
reads thus:
"On Wednesday 14/7/99 at about
2000hrs after Isha'i prayers, I sat down at the frontage of Mosque at
Faransi Area of Kardi then one Musa
Yaro of Kardi came and met me with an
information that, someone abused Prophet Mohammed at
Randali village which he is not sure, but he will try to find out at
Randali. On hearing that, I stood up and went
inside my house and carried knife along with me, and I moved to
Randali. On reaching there, I went straight to
one Shugaban Samari
for conformation about the abusing of Prophet Mohammed and he assured me
that, the issue is true, and that there were witnesses to testify but he did
not tell me the kind of abuse. And from there, I heard someone saying, that
Abdullahi Alh. Umaru
who abused the Prophet had been arrested at Kardi, and then I quickly went
back to Kardi and met Abdullahi who was together with
Adamu Aljani, Kalli
Odita and others whom I was not able to know
then. Then we later sent the following: Musa Yaro,
Usman Kaza and Abdullahi
Ada to the village head of Kardi to know what is happening in his
village. As they returned back from the village head's
house. Musa Yaro made some quotation in
Risalah which means that, who ever abused Prophet Mohammed shall be killed,
and then people started beating Abdullahi Alh.
Urnaru, and Mohammadu
Sani machete him and he fell down, then I
removed the knife that was in my possession with my right hand and
slaughtered him "deceased" just along
It is apparent that the
evidence of P.W.5 as to how the deceased was killed and in particular as to
the fact that it was the appellant who actually slaughtered the deceased was
unchallenged. More
than that however, the appellant in exhibit Gl
narrated how the deceased was apprehended, his alleged offence and the
manner the appellant himself killed the deceased.
The case against the appellant
boils down to this: The appellant and the 5 accused persons charged along
with him had heard from some sources that the deceased had somewhere in
their village made some remarks which were considered insulting to Prophet
Mohammed (S.A.W.). The text of the remarks or the exact
words employed by the deceased were not given in evidence. The 1st
accused had read to the other accused persons including the appellant a
passage in the Holy Quran where it was said to be prescribed that any one
who insulted Prophet Mohammed (S.A.W.) in the manner the deceased was said
to have done deserved to be killed. As adherents to the teaching in the Holy
Quran, the appellant and the other accused persons accepted that they had a
duty to kill the deceased in effectuating the contents of the Holy Quran.
They accordingly slaughtered the deceased by slicing his throat.
In the manner the appellant
and the other accused persons behaved during their trial by not calling
evidence to deny the allegations against them; and by in fact admitting that
they killed the deceased, there is no doubt that they laboured under a
notion that they had a duty under Islamic injunction to kill the deceased.
At pages 74 - 76 of the record
of proceedings, the trial judge in his judgment said inter alia:
"It is worthy to note that the
backbone of this case is the testimony of PWS 2, 3, 5 and 6.
Exhibit D and the confessional and voluntary statements
of the accused persons in Exhibits E, F, G, H, J and K. Each one of
the accused persons admitted taking part and remaining at the scene where
Abdullah Alh. Umaru
was killed in a brutal manner. Each of them narrated fully the role he
played. The 3rd accused admitted striking the deceased with a
machete on the neck, the 5th accused admitted slaughtering the
deceased with a knife, the 6th accused admitted holding and
pulling the deceased to the last destination, the 1st accused
admitted giving the authority to kill the deceased while the 2nd
and 4th accused admitted going up and down to ensure that the
deceased was punished. I have carefully examined these statements and found
that they are at all material times in corroboration of the evidence of the
prosecution witnesses on the account of the death of Abdullah
Alh.
Umaru. I noted that the statements
were duly endorsed by a superior police officer and were tendered without
objection. I found the statement of each of the accused persons positive,
direct voluntary and consistent.
From the evidence adduced the accused persons had every opportunity
to commit the offence. In Kanu v The
State (1952) 14 WACA 30, 32 Combey J. said:
'A voluntary confession of
guilt, if it be fully consistent and probable, is justly regarded as
evidence of the high test and most satisfactory whenever there is
independent proof that a criminal act has 'been committed by someone.'
In the case at hand there is
evidence that Abdullah Umaru was brutally killed
and there is the confession of the accused persons to that effect.
In Phillip Ekpenyong v The
State (1991) 6 NWLR (Pt.200) pages 683, 704 the Court of Appeal held:-
‘A person may be convicted on
his own confession alone, there being no law against it. The law is that if
a man makes a free and voluntary confession which is direct and positive
and is properly proved, the court may if it thinks fit, convict him of any
crime upon it .... once a statement complies with
the law and the rules governing the method for taking it and it is tendered
and not objected to by the defence whereby it was admitted as an Exhibit,
then it is a good evidence and no amount of retraction will vitiate its
admission as a voluntary statement.'
I am satisfied that the
confessional statements of the accused persons were voluntary, free, direct,
positive, properly recorded, tendered and admitted in evidence. I see no
reason to decline acting on them
.............
Therefore in this particular
case the onus is on the accused
persons to prove that they have a right in the Quran or Risala to kill
Abdullah Alh.
Umaru. Further
more the accused persons did not raise or suggest any defence, their
voluntary statements did not suggest any defence and there is no doubt about
this. The evidence adduced by the Prosecution remained uncontradicted and
unchallenged, positive and direct. In
Nasarmi v.
The State (1969) F.S.C. I also observed that
the witnesses who testified for the Prosecution gave direct evidence in
support of the case for Prosecution and were found to be witnesses of truth.
I accept their testimony."
In affirming the judgment of
the trial court, the court below at pages 118-120 of the record reasoned
thus:
"What is in dispute and on the
crucial point stemming from the appellants submissions under the lone issue
is the alleged failure of the learned trial judge to consider in his
judgment all the possible or available defences open to the appellants.
Amongst these possible or available defences, as suggested in the appellants
brief, are the defences of justifications and
provocation. I have given due and careful consideration to the
submissions in the two briefs on the issue. In its resolution, I will begin
by stating or rather restating the settled principle of law on the topic
raised under it to the effect that while the trial court is under an
obligation or has duty to consider all the defences possible or available to
the accused (appellants) on the facts even though they appear to be stupid
improbable or unfounded, and whether or not they were specifically raised by
the appellant, it (i.e. the trial court) cannot give him (the said
appellant) the benefit of defences which were not supported or reflected by
the evidence on record -See Abara v.
The State (supra) at p. 117
of the report; Ekpenyong v.
The State (supra) at p. 525 of the report;
Udofia v. D.P.P. (1955) 15 WACA 73;
Sanusi v. State Digest of Supreme Court cases vol. 10 p.348;
Nwuzoke v.The State
(1988) 1 NWLR (Pt. 72) 52.9; R. V. Bio (1945) 11 WACA 46 at 48;
Asanya v. State (1991) 3 NWLR (Pt. 180)
442 at 451 and Ogunleye v.
The State supra). As a corollary to
the above rule or principle, the trial court is only under an obligation or
duty to consider such defence(s) open to an accused person only as disclosed
or supported by the evidence on the printed record. Thus in Ekpenyong
v. State (supra) it was held that a court of law will not presume or
speculate on the existence of facts not placed before it and that accused
person is usually required or recommended to give his evidence viva voce
rather than adopting his previous extra judicial statement for his
defence or resting his case on the evidence of the prosecution as done by
the appellants in the instance case. Moreover the defence of provocation as
asserted by the appellants in the present case like all other defences
cannot hang in the air without supporting evidence. Nor can it be built on
scanty foundations. In order to establish it, it is the duty of the accused
person to adduce credible and positive evidence to support the alleged
provocation. Where the accused person fails to adduce evidence in support of
his defence as in the present case, the trial court has to rely on the
evidence before it as adduced by the prosecution. It must be noted that in
the present case, before the trial court instead of the learned counsel for
the appellants to call evidence in support of their two defences as
canvassed in their brief of arguments, or at least to pinpoint the elements
constituting such defences from the evidence adduced by the prosecution upon
which they relied, he failed to do so and such failure in my humble view
shows that he did not perform his proper role or function in the defence of
his clients (i.e. the appellants)."
Was the court below in error
to have affirmed the judgment of the trial court in the circumstances
narrated above? I now examine the issues for determination formulated by the
appellant.
Under the first issue, the
argument of counsel is that, as the trial court failed to consider the
defences of justification and provocation, which were available to the
appellant on the evidence before the trial court, it was the duty of the
court below to have set aside the conviction of the appellant and the other
accused persons. Counsel referred to Williams v. State [1992] 8 NWLR
(Pt.261) 515 at 522; Araba v. State [1981] 2 NCR
110 at 125; R vs. Fadina [1958] SCNLR 250;
Udofia v. The State [1984]
12 SC 139; Ojo v. The
State [1972] 12 SC 147; Ogunleye v. The
State [1991] 3 NWLR (Part
177) 1
at 3 and
Opeyemi v.
The State [1985] 2 NWLR (Pt.5) 101.
It was finally argued under
issue 1 that the court below should have ordered a retrial.
The appellant's counsel under
the second issue for determination argued that the court below eventually
went on to consider the defences of justification and provocation but that
when it did, it had not allowed the appellant an opportunity to address it
on the matter. It was argued that the court below
suo motu raised the defences
of justification and provocation and proceeded to decide the appeal on that
basis without affording the appellant a hearing. Counsel relied on
Badmus v.
Abegunde [1999] 71LRCN 2912: Oshodi v.
Eyifunmi [2000] 80 LRCN 2877. Counsel
finally urged the court to allow the appeal on the ground that the approach
of the court below amounted to a denial to the appellant of his right to
fair hearing as enshrined in section
36 of the 1999 Constitution of
In reacting to appellant's
first issue; it is important to bear in mind that, at the proceedings before
the trial court, there was not a shred of evidence as to what the deceased
had done or what words he uttered which was considered by the appellant and
other accused persons as constituting an insult to Prophet Mohammed
(S.A.W.).
Now in Takida v. State [1969] 1 All N.L.R. 270 at 273-274,
this Court per Coker C.J.F.
said:
"No court is bound to
speculate on what possible defences can be open to a person accused before
it but where in a trial for homicide, the evidence suggests a line of
defence, it is the duty of the court to consider and deal with that defence
whether or not the accused or his counsel expressly raised that defence by
the legal terminology ascribed to it by lawyers."
See also
Williams v. The State [1992] 8
NWLR (Pt.261) 515 at 522; Udofia v.
The State [1984] 12 SC 139
and Oyo v.
The State [1972] 12 S.C. 141. That approach
however, does not enable the court to consider fanciful or imaginary
defences which could not possibly be available to an accused person on the
evidence before the court. See
Abara v. The State [1981] 2
NCR 110 at 125.
Ekpenyong v. The State [1993]
5 NWLR (Pt-295) 513 at 522; Asanya v. State
[1991] 3 NWLR (Pt. 180) 442 at 451. In the circumstances of this
case, since the trial court was not told the words alleged to have been
uttered by the deceased or the act he did which were contrary to the
injunctions of Islam as contained in the Holy Quran, and which justifies his
killing, the trial court could not be criticized for not engaging in a
futile speculation. The court below was therefore not in any error to have
held that the defences of justification and provocation were not available
to the appellant before the trial court.
The second issue for
determination is inexorably linked with the first issue. The court below
having held that the defences of justification and provocation were not
available to the appellant still went on to consider the applicability of
those defences in the circumstances of this case. It was this occurrence
that the appellant's counsel not relied upon under the second issue as
denying the appellant a right to fair hearing on the ground that the
appellant's counsel was not first heard on the point. Ordinarily, it would
be unnecessary to consider the second issue since I have made the point that
it was not even necessary to consider the defences since the evidence did
not directly or indirectly raise them. I only consider the 2nd
issue ex abundati
cautello.
At pages 12 - 13 of the
appellant's brief, counsel before us argued thus:
"4:17
With due respect to the Learned Justices of the Court of Appeal, we
submit that from their pronouncement above, they have conceded that the
learned trial judge ought to but refused to consider the defences of
justifications and provocation as raised by the Appellant.
4:18
We submit also that it is not in doubt with due respect to the
learned Justices of the Court of Appeal, that the lone issue raised by the
Appellant counsel before them was not considered at all, rather the new
issue raised suo
motu as to whether the defences of justifications and provocation
endure in favour of the Appellant was the basis upon which the Appellant
appeal was eventually dismissed.
4:19
We submit that it is the law that where
the court raise an issue suo
muto, it ought to call on the parties to
address it on such issue.
We refer to:
Badmus
v. Abegunde (1999) 71 LRCN Page 2912;
Oshodi v. Eyifunmi
(2000) 80 LRCN page 2877
4:20
We further submit that because the learned Justices of the Court of
Appeal did not call on the parties to address on this new issue raised by
the court suo
motu, as seen above and the failure to consider the lone issue as
raised by the Appellant counsel in his brief of argument before the Court of
Appeal, it is tantamount to breaching the fundamental right of the Appellant
to fair hearing as guaranteed under the Constitution of the Federal Republic
of Nigeria by virtue of section 36 of
the 1999 Constitution."
Counsel has however overlooked
the fact that in the appellant's brief before the court below at pages
85-86, it was argued thus:
"In the court below, there is
abundant evidence on the record showing that the Appellant was involved in
the death of the deceased and that the deceased was so killed as retaliation
for allegedly insulting Holy Prophet Mohammed. In this respect, reference
must be made to the voluntary statement of the Appellant as contained in
pages 18-21 of the record. The said voluntary statements of the Appellant
both in Hausa Language and its English translation were admitted in Evidence
as Exhibits G and Gl respectively - See page 49
of the record. In addition, the evidence of PW2 at pages 42-44, the evidence
of PW5 at pages 51 and 52 and the evidence of PW6 at page 52 are all to the
effect that the Appellant was involved in the death of the deceased because
of the allegation that the deceased insulted Holy Prophet Mohammed (S.A.W.).
It is submitted that as per
the record before the trial court, the Appellant is entitled to a
consideration of the defence of justification by law as provided for in
section 45 of the penal code as well as the defence of provocation as
provided for in section 222(1) of the
penal code.
In Exhibits G and
Gl, it is shown that the Appellant is a Moslem
by religion. Therefore, for the deceased to have insulted the Prophet as
alleged by the Appellant would inevitably invite a consideration of these
defences in favour of the Appellant before a verdict as to the guilt or
otherwise of the Appellant is reached. In considering whether an act or
speech is capable of provoking a person to commit the office of murder or
homicide, the accused's background and station in life should be taken into
account - See Akalezi v.
The State [1993] 2 NWLR (Pt.273) page 1 at 14;
Ekpen-yong v. The
State [1993] 5 NWLR (Pt.295) page 513 at 522
and Ubani
v. The State [2001) FWLR (Pt. 44) page 483 at.
490.
In the course of his address
before the Court below, the learned counsel for the Appellant specifically
invited the learned trial judge to consider the defences open to the
Appellant in view of the evidence before the Court. At page 59 of the
record, the said Counsel formulated the 2nd issue for
determination before the Court below thus:-
'Has the prosecution proved
that there is no defence to the lst-6th accused
persons in respect of the charges against them?'
In elaborating on this issue
on page 60 lines 29 and 30 and on page 61, line 1, the said learned counsel
for the Appellant submitted thus:-
'On the second issue for
determination, it is our submission that it is not enough for the
prosecution to establish elements of section 221 P.C. but the prosecution
must exclude the existence of any defence to the accused persons.’”
It was to the above arguments
by appellant's counsel before it that the court below was reacting; when at
pages 124-125 of the record it said:
"In all their voluntary and
cautioned statements to the Police (which in my view amounts to a voluntary
confession) in Exhibits E-K, the appellants confessed to the killing or
causing the death of the deceased through their joint (or mob) act on the
fateful day because they heard the rumour (which was not even confirmed)
that he had insulted or blasphemed the Holy Prophet (S.A.W.). The actual
words of insult allegedly uttered by the deceased were not known. The
appellants along with others (now at large) however constituted themselves
into a fanatical Islamic vanguard or a religious vigilante groups and upon
hearing the rumour took it upon them to go in search of the deceased who was
alleged to have insulted the Holy Prophet (S.A.W.). Even before seeing or
hearing him, they had already passed a sentence or judgment against him that
he must be killed for his offence under Sharia as recommended in both the
Quran and Risala. They even made a threat to kill his master PW2 by name
Aliyu Magga who they believed was hiding the
alleged culprit in his place if he was not found. When they went to the
Village Head of Randali to whom they reported
the matter and who did not approve their plan to kill the deceased they
still proceeded in their crusade to execute their planned or premeditated
murder of the said deceased. Even when they were advised by one Ustaz
Mamman that it was not their responsibility but
that of the court or judge to punish the deceased as a person who insulted
the Holy Prophet they shunned that advise and described the Ustaz as a non
Muslim himself and went on with their plan to kill the deceased.
The crucial question to ask on
the above facts confessed by the appellants themselves and supported or
corroborated by the testimonies of the prosecution witnesses (PW2, 3, 4 and
5) is whether or not the appellants were justified in killing the deceased
for his alleged insult of the Holy Prophet (SAW). This depends on or calls
for a further and second question of whether they acted in good faith. Thus
the essential element required for the defence of justification under
S.45 of the Penal Code is that
the accused must act in good faith and must exercise due inquiry on his
belief before his action can or will be justified - See the comment in the
annotated copy of the Penal Code at
page 241 thereof. In this regard although an honest and reasonable
mistake of fact may be excusable under the defence of justification, a
mistake of law is not so excusable. In any case as in the case of
witchcraft, the standard of living or the position in life of the accused
person as well as the manner of life of the community have to be considered
by the court - See Lado v.
The State [1999] 9 NWLR (Pt.619) 369 at 381; R. v.
Adamu [1944] 10 WACA 161;
Akalezi v. The State (supra) and Ekpenyong V, the State
(supra) at p. 522 of the report). Thus the standard or test for the
justification of the act of the accused person under section 45 should be an
objective one like that of the provocation. This is why I agree with the
respondent’s submission that the defence of justification sought to be
invoked or benefited from by the appellants in the present case should not
be isolated from or stand on its own but must be tied to that of the
provocation"
It is obvious that the
appellant's second issue is misconceived and amount to a distortion of the
true state of things. Appellant's counsel had himself argued the defences of
justification and provocation. The court below did not therefore need to ask
appellant's counsel to re-argue a point he had previously argued in his
brief.
I have given a very careful
consideration to the two issues raised by the appellant in this appeal. Both
must be decided against the appellant. The evidence against the appellant by
prosecution witnesses was neither challenged nor contradicted. More than
that is the admission in exhibits G and Gl by
the appellant that he actually slit the throat of the deceased.
In any case, even on the
assumption (although without any proof) that the deceased had in some way
done any thing or uttered any word which was considered insulting to the
Holy Prophet Mohammed (S.A.W.), was it open to the appellant and others with
him to constitute themselves into a court of law and pronounce the death
sentence on another citizen? Plainly, this was jungle justice at its most
primitive and callous level. The facts of this case are rather chilling and
leave one wondering why the appellant and the others with him committed this
most barbaric act. It cannot escape notice that the victim of this reckless
and irresponsible behaviour is another Moslem, an
Alhaji. I am greatly pained by the occurrence.
In the final conclusion, this
appeal fails. It is dismissed. I affirm the judgment of the two courts
below.
Judgement delivered by
Sylvester Umaru
Onu,
J.S.C.
This is an appeal against the
judgment of the Court of Appeal of the 10th day of December, 2003
that dismissed the appellant's appeal by affirming the conviction and death
sentence passed on him by the trial High Court (per
Arnbursa, J-).
It is against the said
judgment that the Appellant has filed this appeal based on three grounds of
appeal out of which two issues were submitted as arising for our
determination, to wit:
1.
Whether the learned Justices of the Court of Appeal ought to confirm
the conviction and sentences of the Appellant by the trial court. (This
issue is distilled from grounds 1 and 2 of the grounds of Appeal.)
2.
Whether the Learned Justices of the Court of Appeal were right in
raising the issue of defences of justification and provocation without
affording the parties the right to be heard on the said issue they raised
suo motu.
(This issue is distilled from ground 3 of the grounds of Appeal).
The Respondent formulated
identical issues to those identified above by the Appellants for
determination.
In my treatment of these
issues of this appeal, I wish to adopt the Appellant's two issues, thus:
Issue 1
It is submitted on behalf of
the Appellant on this issue that he is entitled to a consideration of the
defence of justification by law, as provided under
section 45 of the Penal Code, as
well as defence of provocation under
section 222(1) of the Penal Code considering the content of Exhibits G
and Gl of pages 18:20 of the record
and also in the evidence of PW5 at pages 51-52 of the record raised in the
defences of justification and provocation which ought to been considered by
the trial court.
It is further submitted on
behalf of the Appellant that failure of the trial court to consider the
defences open or available to an accused person amounts to or is tantamount
to a failure by the prosecution to prove the offence(s) alleged against the
accused person beyond reasonable doubt and also a miscarriage of justice.
It is also submitted on behalf
of the Appellant that the finding of the Court of Appeal quoted in paragraph
4.6 of Appellant's Brief of Argument as well the conduct of the court below
in carrying out the examination of the said two defences by itself at pages
124-137 as not proper and the main issue formulated before the court was not
considered.
It was also submitted that the
learned counsel for the Appellant misconceived the whole issues when he
considered the lone issue for determination before the court below which he
formulated and adopted by the Respondent at pages 86 and 94 of the record
which queried:
"Did the Appellant
suffer any miscarriage of justice
when the court below
refused to consider several
defences available to the Appellant
on the record before
convicting the Appellant as charged?”
This lone issue,
it is
contended, is wide and that the
court below is bound to look
into all the defences available in the record which was
adduced before the
trial court before it can make
such findings.
It is further submitted that
the question whether the Appellant was prejudiced by the finding of the
lower court cannot be reached without evaluating the evidence available on
the record and that what the court below did and its finding does not cause
any miscarriage of justice to the Appellant and was right and that doing so
is not raising any issue suo
motu.
Learned counsel for the
Appellant next submitted that the main issue before the lower court was
against the failure of the trial court to consider the defences of
justification and provocation which are said to be either available or
raised by the defence, and whether the court below can examine such defences
and make a finding thereof.
Now, to
the proper issues for determination.
Issue No.1
asks whether
or not the court below was right when
it, went
ahead and
evaluated evidence
with regard
to defences open or
available to the Appellant
which ought to have been done by the trial court, having regard to
Order 1 Rule 19 paragraphs 3 and 4 of
its Rules.
It is submitted that having
regard to Order 1 Rule 19
paragraphs 3 and 4 of the
Court of Appeal Rules, 2002
the Court of Appeal has power to make such findings, since it reads:
"19(3)
The court shall have to draw inferences of
fact and to give any judgment and make any order which ought to have been
given or made, and make such further or other orders as the case may
require.
(4)
The powers of the court under the foregoing provision of this rule
may be exercise notwithstanding that
no notice of appeal or respondents notice has been given in respect
of any particular part of the decision of the lower
court.................and the court may make any order on such terms as the
court thinks just, to ensure the determination on merits of the real
question in controversy between the parties.”
See the case of
Namsoh
v. State (1993) 5 NWLR (Pt.292) 129 at 143 where this
Honourable court held that where a trial court failed to consider the
defence of an accused person, an appellate court can consider such defence
with alt available evidence on the record.
In the case in hand the court
below did exactly what is required of it by this Honourable court as per the
decision in Takida v.
State
(1969) 1 All NWLR 53 and
State
v. Ajie
(2000) 3 NSCQR 53.
I am in entire agreement with
the Appellant's submission that failure of the trial court to consider the
defences available or open to an accused person is only fatal where there is
evidence in support of such defence(s) in the record of the trial court and
a court of law will not presume or speculate on the exercise of facts not
placed before it and that accused person is usually required or recommended
to give his evidence viva voce rather than adopting his previous
extra judicial statement for his defence or resting his case on the evidence
of the prosecution as decided in the case of
Ekpeyong
v. State
(1993) 5 NWLR (Pt.295) 513 at 522.
Issue No.2
This issue which relates to
Ground 3 of the Grounds of Appeal asks whether or not the court below
rightly held that the defences of justification and provocation as provided
under sections 45 and 222(1) of the
Penal Code respectively are not available to the Appellant.
I agree with the Respondent's
submission that the Appellant will be entitled to the defence of
justification after satisfying the conditions set up by
section 45 of the Penal Code
which provide:
"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 by
law, in good faith believes himself to be justified by law in doing it."
The Appellant will be entitled
for the defence of justification where: -
(i)
His action is justified by law;
(ii)
His action was done as a result of mistake of fact not mistake of
law; and
(iii)
He acted in good faith believing himself
to be justified by law in doing it.
As
can be gleaned from the record of proceedings of the trial court the
only evidence against the deceased is based on the rumour the Appellant
overheard or hearsay allegation that he (deceased) had insulted the Holy
Prophet in a neighbouring village Raudali of
Birnin Kebbi Local
Government Area of Kebbi State. I am in
agreement with the submission of the Respondent that there is no evidence of
any kind emanating from the Penal Code or Sharia disclosed in the record of
proceedings to show that Appellant's action is justified by law having
regard to his back ground and opinion or non-approval of his village Head
and one Ustaz Mamman who were members of the
same community, class, standard in life and live with Appellant. Moreover,
the Appellant's act of killing the deceased cannot be said to amount to a
mistake of fact in good faith as he has no authority to execute or slaughter
the deceased as he did. Thus, I agree with the Respondent that from the
evidence adduced before the trial court and available on record the
Appellant cannot be entitled to a defence of justification, because the
court cannot give the Appellant the benefit of defence which was not
reflected or supported by the evidence on the record.
See Abara
v.
The State
(1981) 2 NRC
110 at 117.
I agree with the Respondent's
submission that the Appellant will only be entitled to the defence of
provocation under section 222(1) of
the Penal Code where he established the ingredients therein. The section
reads;
"222
(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 the person who gave the provocation or causes the death of any
other person by mistake or accident.”
The Appellant will be entitled
to the defence of provocation when he shows by evidence in the trial court
that:
(i)
The act of provocation must be grave and sudden;
(ii)
The Appellant must have lost self control actual and reasonable;
(iii)
The degree of relation by the Appellant must be proportionate to the
provocation offered.
See the case of
Ihuebeka v. The
State (2000) 5 SCNQR 186 (Vol.2).
Moreover, in the case herein
there is no evidence whatsoever in the record of proceedings to establish
that the Appellant was provoked by the deceased. What the record rather
depicts is the overhearing of the rumour from co-accused, Musa
Yaro, that the deceased insulted the Holy
Prophet and how the Appellant and the co-accused went to one
Shugaban Samari to
confirm to them that that allegation was true by setting out the insultive
words used or uttered. Although it is settled law that words alone can
constitute provocation depending on the actual words used and their effect
or what they mean to a reasonable person having a similar background with
the Appellant and in the ease in hand where the exact insultive words are
neither know or disclosed and moreover not even heard from the mouth of the
deceased, it will not be possible to determine whether the defence of
provocation is open or available to the Appellant. See the case of
Ahmed v. The
State
(1999) 7 NWLR (Pt.612) 641 at 684. Clearly, the
provocation act done or reported by one person - the co-accused {Musa
Yaro) cannot be a ground for the Appellant to
kill the deceased. See
Idemudia
v. State (1992) 7 NWLR 356. And going
by the definition of provocation as postulated in the case of
Lado
v.
State
(supra) at page 385.
It is clear that for the
defence of provocation to avail the Appellant, the act or utterance of the
deceased must be directly offered or directed against the Appellant, which
was not the case here where it was based on hearsay or rumour. There is no
direct or indirect evidence to show that the Appellant was provoked by the
deceased vide Exhibit G and Gl (the latter being
the Hausa and the English translation of the Appellant's statement at pages
18-20 thereof as well as the evidence of PW5 at page 51 of the record) which
is enough to convict the Appellant as charged. Consequently, it is manifest
that the lone issue before the lower court is clear and related to all the
defences available from the record
and the Appellant in his Brief of Argument at pages 85-90 had
canvassed all its argument on
defences of justification
and provocation and the Respondent in its Brief of Argument at pages
94-99 of the record. Thus, I am
of the view that the court
below did not raise any issue suo
motu as submitted
by the
Appellant.
For the above reasons
and those fully contained in the
leading judgment of my
learned brother Oguntade, JSC, I find no merit in this
appeal which I too
unhesitating dismiss. I affirm the
conviction and sentences of
the two courts below.
Judgement delivered by
Aloma
Mariam Mukhtar,
J.S.C.
The appellant together with
five others pleaded not guilty to the charges of criminal conspiracy
contrary to section 97 of the Penal
Code, and culpable homicide punishable with death contrary to
section 221 of the Penal Code.
The appellant was found guilty of the two offences and he was accordingly
convicted and sentenced to death. In exercise of his constitutional right
the appellant who was then the 5th accused person appealed to the
Court of Appeal. The Court of Appeal dismissed the appeal and affirmed the
conviction and sentence of the trial court. Aggrieved by the decision the
appellant appealed to this court on three grounds of appeal. Briefs of
argument were exchanged by learned counsel, and these were adopted at the
hearing of the appeal. The two issues for determination raised in the
appellant's brief of argument are:-
"1.
Whether the learned Justices of the Court of Appeal ought to confirm
the conviction and sentence of the Appellant by the trial court.
2.
Whether the learned Justices of the Court of Appeal were right in
raising the issue of defences of justifications and provocation without
affording the parties the right to be heard on the said issue raised
suo motu."
The issues raised by the
respondent are:-
"Issue No. 1
Whether or not the Court of
Appeal was right when it went ahead and evaluated evidence with regard to
defences available to the Appellant which ought to have been done by the
trial Court, having regard to Order 1
Rule 19 paragraphs 3 and 4 of its Rules..........
Issue No. 2
Whether or not the Court of
Appeal rightly held that the defences of Justification and Provocation as
provided under Sections 45 and 222
(1) of the Penal Code respectively were not available to the
Appellant......."
The argument of learned
counsel for the appellant is that the trial court did not consider the
defences which the accused may be entitled to on the evidence before it, and
in the circumstance the court below should not have confirmed the conviction
of the trial court. Particularly learned counsel placed reliance on the case
of Williams v. State 1992 8 NWLR part
261 page 515, which emphasise the need to
consider any defence available to an accused person. It is instructive to
note that in this case the appellant did not give evidence in his defence,
whereas in the former case the accused person testified in his defence.
Indeed, in the instant case,
the defence relied on by the appellant is contained in his voluntary caution
statement to the police, Exhibit "G” the relevant portion of which, reads as
follows:-
".................. I sat down
at the frontage of Mosque at Faransi Area of
Kardi then one Musa, Yaro of Kardi came and met
me with an information that, someone abused
Prophet Mohammed at
There was no defence raised by
the appellant, and so there was nothing in that direction for the trial
court to consider. As a matter
of fact, the learned trial judge in his judgment considered the voluntary
statements of the accused, and (which were most confessional) which included
Exhibit 'G', as is illustrated by the following excerpt of the judgment,
which reads thus;-
"Therefore in this particular
case the onus is on the accused
persons to prove that they have a right in the Quran or Risala to kill
Abdullah Alh.
Umaru. Further
more the accused persons did not raise or suggest any defence, their
voluntary statements did not suggest any defence, and there is no doubt
about this. The evidence adduced by the prosecution remained uncontradicted
and unchallenged, positive and direct."
So if I may ask, what defences
is the learned counsel for the appellant making heavy weather of. Then, in
spite of the absence of any defence, the appellant in his brief of argument
in the Court of Appeal raised the following issue in his appellant's brief
of argument, which reads thus:-
"Did the Appellant suffer any
miscarriage of justice when the court below refused to consider the several
defences available to the Appellant on the record before convicting the
appellant as charged."
The Court of Appeal in its
judgment considered these so called defences as follows:-
"In the case of the appellant
(sic) who have no authority or warrant whatsoever to adjudicate under both
the Common law and Sharia, they constituted themselves into a Kangaroo court
in order to realize their purpose or plan to kill the deceased. The only
evidence against the deceased was the rumour they overheard or hearsay
allegation that he had insulted the Holy Prophet."
On the issue of provocation
discussed and found on by the court below, I am of the view that the sole
issue raised by the appellant in the court below, which I have already
reproduced supra sufficiently covered the question of provocation, which the
court below was at liberty to consider. It should be noted that that single
issue referred to 'defences' and not 'defence', so the Court of Appeal was
perfectly in order to consider the defence of provocation as it did in the
lead judgment. In the light of the foregoing I fail to see how this appeal
can succeed. I have read in advance the lead judgment delivered by my
learned brother Oguntade, J.S.C, and I am in complete agreement with the
reasoning and conclusion reached therein, that the appeal lacks merit and
deserves to be dismissed in its entirety. I abide by the consequential order
made in the lead judgment.
Judgment delivered by
Walter Samuel Nkanu
Onnoghen,
J.S.C.
This is an appeal against the
judgment of the Court of Appeal Holden at
The facts of the case are
simple and straight forward.
On the I4th day of
July, 1999 a rumour went round the villages of Randali
and Kardi, both in Birnin
Kebbi Local Government Area of Kebbi
State, that one Abdullahi Alhaji
Umaru, now late of
Following the capture of the
deceased, Abdullahi Alhaji
Umaru, by the mob, one Musa Yaro, a
co-accused with the appellant, now appellant in S.C/244/2004 read some
quotations in Risalah
to the effect that whoever abused Prophet Mohammed shall be
killed, as a result of which the mob started to beat up the deceased with
the appellant eventually using his knife to slaughter the deceased. The
facts are not disputed neither did the appellant testify in his defence at
the trial. At the conclusion of the trial, the learned trial judge found the
appellant and Musa Yaro, guilty of culpable
homicide and sentenced them to death.
Being dissatisfied with that
judgement, appellant appealed to the Court of Appeal in which the sole issue
for determination was:
"Did the appellants suffer
any miscarriage of justice when the Court below refused to consider the
several defences available to the Appellants (sic) on the record
before convicting the Appellants as charged."
As stated earlier in this
judgment, the lower court resolved the issue against the appellant and
dismissed the appeal. It is against that decision that the instant appeal
has been lodged in this Court, the issues for determination of which have
been identified in the appellant's brief of argument filed on 13/9/05 and
adopted in argument of the appeal on 5/7/07 as follows;-
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