The State V. Kasimu Ibrahim & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH O. AKEJU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the High Court of Jigawa State holden at Ringim contained in the Ruling delivered on 28th July, 2010 in charge No. JDU/04C/2010 – The State V. Abubakar Abdullahi & 3 Ors., wherein the three respondents in this appeal as the 2nd, 3rd and 4th accused persons were charged with one Abubakar Abdullahi for the following offences:

1. That you, Abubakar Abdullahi ‘M’, Kasimu Ibrahim ‘M’, Hussaini Umar ‘M’ and Alhaji Auwulu Sule Kila ‘M’ on or about the 24th day of October 2009 at Kila town, Gwaram Local Government Area within Jigawa Judicial Division agreed to commit an offence of culpable homicide to wit; causing the death of Zainab Tanimu 3 years old and thereby committed an offence punishable under section 97 of the Penal Code Cap. 107 Laws of Jigawa State 1998.
2. That you, Abubakar Abdullahi ‘M’ Kasimu Ibrahim ‘M’ Hussaini Umar ‘M’ on or about the 24rh day of October, 2009 at Kila town, Gwaram Local Government Area within the Jigawa Judicial Division committed culpable homicide punishable with death in that you caused the death of one Zainab Tanimu 3 years old by severing her head from her body and you thereby committed an offence punishable under Section 221 (a) of the Penal Code Cap 107 Laws of Jigawa State of Nigeria 1998.
3. That you, Alhaji Auwulu Sule Kila ‘M’ on or about the 17th day of October, 2009 at Kila town, Gwaram Local Government Area within the Jigawa Judicial Division instigated Abubakar Abdullahi, Kasimu Ibrahim and Hussaini Umar to commit culpable homicide by asking them to bring human head to you for a fee of three million Naira (N3,000,000.00) and you thereby committed an offence punishable under Section 85 of the Penal Code Cap 107 Laws of Jigawa State of Nigeria.

The prosecution had sought to establish the allegations in the charge by oral and documentary evidence of the 12 persons cited in the list of prosecution witnesses that accompanied the charge. At the proceedings of 9th February, 2010, the four accused persons were arraigned following the leave granted by court to prefer charge against them, and each of them pleaded not guilty to the respective counts against him.

The prosecution adduced both oral and documentary evidence through the 11 eleven witnesses called in support of the charge. The evidence of these 11 witnesses who testified as PW1 – PW11 can be found on pages 4 – 67 of the record of appeal. Thereafter two witnesses testified as DW1 and DW2 for the defence on pages 68 – 75 of the record before the case was adjourned to 22/7/2010 at which proceedings the court was informed of a motion on Notice filed for an order directing that Applicants (the accused persons) be released on bail pending the hearing and final determination of the case. The motion was argued.

Delivering the Ruling on that application on 28/7/10, the learned judge of High Court of Jigawa State (Now called the trial court) held on pages 93 -94 as follows:

“Be that as it may, this court suo motu is of the candid view that the 2nd 3rd and 4th accused persons are entitled to enjoy their freedom in with the provisions of Section 191 (3) of the C.P.C. Sections 35 and 36 of the 1999 Constitution of the Federal Republic of Nigeria. For failure to show sufficient evidence against 2nd 3rd and 4th accused person by the prosecution they are hereby discharged under S. 191 (3) of the C.P.C. they should not be rearrested without the leave of this court in fact since charges are framed against them and the plea taken their case falls within the provision of S. 164 of the C.P.C. i.e. their discharge amount to an acquittal.

On the issue of bail, of the remaining accused applicant i.e. 1st accused person due to the nature and gravity of the offence as charged and the severity of the punishments to be imposed on conviction and the fear or likelihood he may not appear to face his trial. The 1st accused is here by refused bail he should be remanded.”

Against that ruling, the appellant commenced the instant appeal by filing Notice of Appeal, and in prosecution thereof the Appellant’s Brief of Argument prepared by Yakubu A.H. Ruba, Hon. Attorney-General of Jigawa State was filed on 17/5/2013.

The Respondents’ Brief of Argument settled by Murtala Musa Esq. was filed on 11/01/14 but deemed filed on 21/1/14.

The Appellant has raised two issues for determination which the respondents adopted. These issues are:

1. Whether the trial court was right to have discharged and acquitted the respondents at that stage of the trial.
2. Whether it is right for the trial court to have granted a relief suo motu without giving the appellant an opportunity to address the court.

On the 1st issue, the appellant submitted that the learned trial judge was wrong to have ordered the discharge and acquittal of the respondents whose application was for an interim or provisional order, citing the case of OGBAEGBE V. FBN PLC [2005] 18 NWLR [Pt. 967] 357. It was submitted that the learned trial judge failed to consider the relevant factors in an application for bail but relied on Section 191 Criminal Procedure Code Laws of Jigawa State to discharge and acquit the respondents.

It was contended that the trial Court called upon the respondents to rebut the evidence against them at the end of the prosecution’s case and did not discharge them (respondents) apparently because he felt satisfied that the respondents had a case to answer and for the meaning of Section 191 (3), the case of COTEENA INT. LTD, V. I.M.B. LTD. [2006] 9 NWLR (Pt.985) 275 was cited. It was submitted that once a judge has satisfied himself that the accused has a case to answer at the end of prosecution’s case, that satisfaction can only be rebutted by evidence from the defence.

The learned Attorney General submitted that a court must be cautious when deciding interlocutory matters in a case so as to avoid taking a decision on the substantive matter; PDP V. ABUBAKAR [2007] 3 NWLR [Pt.1022] 515; GROUP DANONE V. VOLTIC (NIG) LTD. [2008] 7 NWLR [Pt.1087].

On this issue the respondents contended that unlike Civil Proceedings, all doubts in Criminal cases are resolved in favour of the accused person and the court must consider all laws that are favourable to the accused notwithstanding that counsel did not refer to such laws. It was further contended that the learned trial judge reviewed the cases on bail but held “in his wisdom” that the prosecution failed to give credible evidence against the 2nd, 3rd and 4th accused persons under Section 191 (3) of CPC and discharged them pursuant to Sections 164, 191 (3) CPC and Section 35 and 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) after hearing all the prosecution witnesses though bail had earlier been refused to the accused persons. The learned counsel submitted that the relevant circumstances as stated in UMARU V. STATE VOL. 4 NCC 141 must be considered, and in the instant case a retrial will only give the appellant a second chance and create difficulty for the respondents. It was argued that the appellant relied on circumstantial evidence which did not meet the required conditions because as held in EBENECHI V. STATE [2000] ALL FWLR [Pt. 486] 1825, circumstantial evidence must be positive, unequivocal and conclusive that the accused person committed the offence. It was submitted with the authority of FAAN V. GREENSTONE LTD. [2009] ALL FWLR [Pt. 500] 741 that this court acting under Section 15 of the Court of Appeal Act possesses full jurisdiction over proceedings of the trial Court.