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In The Supreme Court of
On Friday, the 15th day of
February 2008
Before Their Lordships
S.C. 21 2/2004
Between
And
Judgement of the Court
Delivered by
Christopher Mitchell
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 publishable 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 uttered 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 outskirt
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 insults 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 K 1 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 soon. 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-avis 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 ease 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 there from as per his brief of
argument. I now proceed to deal, firstly with the appellant's case as per
his brief of argument.
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.
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 moreso 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 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 tantamount 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 1 has 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 K1
(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 1 - 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-NSCQR
972 at 930
and
Ahmed v. The
State (1998) 1 AIR 77 Furthermore, and rightly in my view, that the acts
or omission of any of the conspirators done in furtherance of the common
design arc 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) 11
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.
2.
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 tine 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 case 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)
2NWLR (pt.750) 225 at 236 para.A.; Obiakor v.
The State (2002)10 NWLR (pt.776) 612 at 628
Upahor 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 he 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 p.w.2,
p.w.5 and p.w.6 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 P.w.2,
P.w.5 and P.w.6 in relation to this question.
Firstly the P.w.2’s
testimony English Translation from Hausa as per the Record al 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 1st 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 Yalliya 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 Sambar; 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 Abdulllah. 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
These accused persons pulled
Abdullah Alh. Umaru towards the road leading to Randali
on the out skirt of Kardi near burial ground. As Abdullah was being
held there in our presence, the 1st accused Mallam Musa just
appeared and said whoever abused the Prophet shall be killed. He read a
verse but I can't bring it as read. On hearing this, Muhammadu Sani (3rd
accused) used a matchet which was with him on Abdullah Alh. Umaru on the
head and Abdullah fell down. Then Abubakar Dan Shalla (5th
accused) slaughtered Abdullah with a knife on the neck just like a goat. I
saw the knife used by 5th accused in slaughtering Abdullah but I
can't describe it as he went away with it. When they were sure that Abdullah
died, they all dispersed and ran away. We too left the corpse and went
home."
P.w.6 in his testimony at p.52
of the record (a translation of his Hausa testimony) runs thus:
"My name is Faruk Suleiman. I
am a farmer. I live at Kardi village. I know the 1st,
2nd; 3rd,
4th, 5th and 6th accused persons. I know
Abdullah Alh. Umaru. He is now dead. I know about
the death of Abdullah because I was in my room when Muhammadu Auwal and
Muhammadu Bello came and told me that somebody from Randali insulted the
Prophet (SAW). myself and my friend went to the
Eastern part of Kardi where we met a group of people from Randali standing
while the person who was accused of insulting the Prophet was being held
apart. I looked and found out that it was Abdullah Alh.
Umaru who was being held by the 3rd and 6th accused
persons. I remained there until Abdullah was killed by the accused
persons and people dispersed. That's all."
The appellant in his
confessional statement at p.35 of the record heir English translation of his
Hausa statement to the police states:
"I could remember on 14/07/99
at about 0l00hrs we were sleeping where we normally gathered and lying in
one place, every night. After eating my dinner, I later went to my house and
drop the plate, then Musa Yaro came and meet me and told me that somebody
named Abdullahi abuse Prophet Mohammed 'S.A.W.' there myself Musa Yaro left
and meet Abdullahi Danada, there we decided to proceed to Randali Village
and meet Garba Soja, on reaching, Musa Yaro asked Garba Soja that we heard
one Abdullahi Alh. Umaru abused Prophet Mohammed 'S.A.W.', then Garba Soja
confirmed to Musa Yaro really late Abdullah Alh. Umar did abused Prophet
Mohammed (SAW) there we proceeded to Wakihn Sarki of Randali named Shehu Dan
Yau. on reaching to Shehu Dan Yau, Musa Yaro
asked him is it true that Abdullahi Alh. Umaru abused Prophet Mohammed
‘S.A.W.’ he said yes it is true, which I was not told the time of
abuse the late did, but Shehu Dan Yau wanted to tell us the type of the
abuse the late made, but Musa Yaro ask him not to tell us. It was there
Shehu Dan Yau told us that he has already send 20 people to go and search
for the 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
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
chose (sic) not give or call any evidence for their defence."
The foregoing findings cannot
be faulted or flawed as the sole 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 co-confederates. In this court the instant
appellant has reopened all the questions dealt with at trial court in
addition to the sole 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
(pt.403) 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 1or 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 LL16-25 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 prosecution 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 LL13-22 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 recognises 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
Mohan 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 lo 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 Alhaji 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 matchcted 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, El, E2, E3, F, Fl, G, G1, H, HI, J and J1 and exhibits K and K1
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 way thereby resulting in the
death of the deceased on the pot" 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 FSC25.
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 Abdulahi 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 LL1-3: "I 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 K1, 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 K1 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 K1 I have showed herein in clear support of the trial court's reliance
on Exhibit K and K1 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 K1 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 case 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 Aboho 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 Abuilahi 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 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 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 0 300 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 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 Raodali."
The pieces
of contradictions with regard to PW 2 as per para.29at 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 Ahdullahi Alh. 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 look 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 Danlarii 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.
30.
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 Damfau., 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 they have to go
looking for him.
31.
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 1st
accused Musa Yaro, one Marnman Dambu, Umaru Kaza (2nd accused),
Abduliahi Ada (4th
Accused), Suleiman Danta Aunabi (6thAccused) 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,
32.
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 moreso 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.I66.
A-B,
at 171 para.D-G.,
Akpabio v. State (1994) 7
NWLR (Pt.359) 655) at 660-661
paras.
G-A,
at 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 Agho 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.5 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 K1 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; Akalezi v.
The State (1993) 2 NWLR (pt.27301
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
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 (SAW). 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 non-starter.
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 ease 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 pica 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 ‘as’ affirmed by the court below.
Judgment Delivered by
Niki Tobi, JSC
The appellant was the 2nd
accused person in the High Court. He was the 6th appellant in the
Court of Appeal. The case of the prosecution against him is that he and some
other person (3rd accused) killed the deceased on the ground of
an allegation that the deceased was blaspheming the Holy Prophet (SAW).
The appellant and others were
charged with criminal conspiracy and culpable homicide contrary to sections
97 and 221(a) of the Penal
Code respectively. He pleaded not guilty to the charges. The learned
trial Judge convicted and sentenced the appellant as charged. He was sent to
the gallows. His appeal to the Court of Appeal was dismissed. He has come to
this court.
Briefs were filed and duly
exchanged. The appellant formulated three issues. The respondent adopted
them. The issues read:
"1.
Whether the prosecution proved the case of conspiracy, abetment and
murder against the appellant.
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