Zubairu v. State (2015)

LawGlobal-Hub Lead Judgement Report

NWALI SYLVESTER NGWUTA, J.S.C.

Appellant was the third of four persons charged with the offence of culpable homicide punishable with death, an offence punishable under Section 221 of the Penal Code. The charge was brought before the Katsina Judicial Division of the High Court of Katsina State on 5th November, 2002.

The chain of events leading to the charge started on the 7th day of April, 2002. The alleged deceased, Murtala Mohammed, was alleged to have had a misunderstanding with the 1st to the 3rd accused persons who beat him up and inflicted injuries on him. It was alleged that as he was being beaten by the 1st to 3rd accused, the deceased said he would break the windscreen of the car belonging to the 4th accused, the father of the 1st to 3rd accused. It was discovered in the morning of the following day, 8th April, 2002, that the windscreen of the said car was broken.

On getting the report of the damage to his car, the 4th accused sent the other accused persons to fetch the deceased to him. He was brought to the home of the 4th accused where he was beaten and detained in the 4th accused person’s house to await the arrival of the Police who had been sent for. When the Police came to take him to the station, the deceased resisted and fell into the gutter wherein he started bathing with the filthy water therein. 

He was eventually taken to the station in a wheelbarrow and from the Police Station he was taken to a hospital where he was alleged to have died the same day. Other than that the deceased died in the hospital nothing was said about what transpired in the Police station or the hospital before he died. 

At the trial, the prosecution fielded ten witnesses including three Police witnesses. The Hausa and English versions of the statement of the 4th accused were admitted in evidence without objection and marked Exhibits A1 and A2, respectively. A challenge to the voluntariness of the statements of the 1st to 3rd accused persons led to trials within trial in which the trial Court rejected the said statements as not voluntarily made.
The defence called seven witnesses and rested its case.

Having considered all the materials placed before him, the learned trial Judge held, inter alia:
“In view of the

foregoing, I hereby convict all the accused persons who are charged jointly before this Court with culpable homicide not punishable with death under S.222(7) of the penal Code which provides:
‘Culpable homicide is not punishable with death when a person causes the death of another by doing any rash or negligent act…’
I hereby sentence each of the four accused persons to 10 (ten) years imprisonment and in addition each one will pay a fine of N20,000 (Twenty thousand naira).”

Not satisfied with the judgment, appellants appealed to the Court of Appeal, Kaduna Judicial Division. Four separate notices of appeal each containing three grounds of appeal were filed, presumably one for each of the four appellants. It would appear that the four appeals were argued together and judgment rendered in the following terms:
“These two issues have been also resolved against the appellants and in favour of the Respondent and I have no difficulty in dismissing this appeal as lacking in merit and sentences made by the Court below.”

Issue one of the three issues formulated by the appellant had earlier been resolved against the appellants. The appellant herein, Musa Zubairu, was not satisfied with the judgment of the Court of Appeal. He appealed to this Court on four grounds, numbered A to D in the notice of appeal filed on 6th January, 2011. 

In compliance with Order 6 Rule 5(1) (a) and 2 of the Supreme Court Rules as amended, the parties, through their respective counsel, filed and exchanged briefs of argument. From the four grounds of appeal, learned Counsel for the appellant formulated the following two issues in his brief for resolution:
“(a) Whether the prosecution (i.e. Respondent herein) proved the offence of culpable homicide not punishable with death to warrant the Court of Appeal upholding and sustaining the conviction of the Appellant under S.222(7) of the Penal Code and sentence passed on the appellant under S.224 of the Penal Code by the learned trial Judge. This is distilled from grounds A, B and C of the Notice and Grounds of Appeal.
(b) Whether the Lower Courts could be said to have properly evaluated the evidence of all the prosecution witnesses when some of the gave merely hearsay and contradictory evidence which are of no probative value in law. This is distilled from Grounds D of the Notice and Ground of Appeal.”

In her own brief of argument, the learned Director of Public Prosecution (DPP), Katsina State Ministry of Justice, adopted the two issues formulated by the appellant. 

Arguing issue one in his brief, learned Counsel for the appellant enumerated the ingredients constituting the offence of culpable homicide, whether or not punishable with death, as follows: 
“(a) That the person in question is dead.
(b) That the death was unlawfully caused by act of the accused, and 
(c) That the accused intended to kill the deceased or to cause him grievous bodily harm.”
He relied on Young Uke Uwa v. State (2002) 4 SCNJ 282 at 293.

He submitted that the burden of proof on the prosecution never shifts and that the prosecution has to prove not only that the act of the accused could have caused the death of the deceased, but that it certainly did cause the death of the victim. He contended that if there was the possibility that the deceased died from cause other than the act of the accused, the accused is entitled to an acquittal. Learned Counsel referred to the evidence of PW2, PW3, PW5 and PW6 relied on by the trial Court to convict the appellant and argued that none of the witnesses who testified to the alleged beating of the deceased was able to link his death with the beating.