Abimbola Sanyaolu v. The State (1976)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C.

The Accused, now Appellant, was originally charged in the High Court of Kano State sitting at Kano with culpable homicide not punishable with death. After considering the evidence adduced by the Prosecution and the defence put forward by the Accused, the learned trial judge accepted the case for the Prosecution and rejected the defence put forward by the Accused.

He, however, found him not guilty of the offence of culpable homicide not punishable with death but guilty of a lesser offence of causing death when the intention was to cause hurt or grievous hurt only. This lesser offence is punishable under section 225 of the Penal Code. The finding of the learned trial judge in this respect reads:-

I am aware of the fact that the Accused has not been charged with section 225 of the Penal Code. Section 217 of the Criminal Procedure Code empowers a court to convict an Accused of an offence proved even though the Accused was not originally charged with it. But in doing so, the court must be sure that the offence comes within the definition of section 216 of the Criminal Procedure Code that is a single act of such a nature that it is doubtful which of several offences the facts which can be proved will constitute. The act of the Accused is one of causing the death of a person and it may constitute offences under section 221, 224, 225, or 226 of the Penal Code.

I am satisfied beyond doubt that the facts proved by the Prosecution against the Accused constitute an offence under section 225 of the Penal Code and in pursuance of section 217 of the Criminal Procedure Code, I find Accused guilty of that offence and I accordingly convict him of the offence under section 225 of the Penal Code.

The fact proved by the Prosecution and on which the learned trial judge relied may be summarised as follows. At about 8 p.m. on or about the 8th day of October, 1974, at Sabon Gari, Kano, one Lazarus Daduguli (1st P/W) and Joseph Bitmuld (hereinafter referred to as the deceased) were walking back to their house in Brigade where both of them lived. When they reached the junction of Market Road and Onitsha Road, they saw the Accused coming in the opposite direction. Shortly after he had passed the 1st P/W and the deceased, the 1st P/W heard the Accused say What do you mean When the 1st P/W turned round to see what was happening, the Accused gave him a blow on the mouth.

The mouth started to bleed. The Accused then turned on the deceased and gave him a blow on the head. He continued to rain blows on the deceased until the deceased fell down. Even then, he did not stop but continued to beat up the deceased until the deceased could no longer move.

Seeing this, the Accused wanted to run away but the 1st P/W held on to him and thus prevented his escape. Meanwhile, as the deceased appeared to be dead, 1st P/W and the Accused conveyed him in a taxi to the Kano City Hospital. After the deceased had been left in the hospital, a Policeman (4th P/W) who had earlier received a telephone call about the incident and had gone to the hospital as a result, then took the 1st P/W and the Accused to the Sabon Gari Police Station in Kano where each of them made a written statement to the Police.

Dr. Ahmad Tolba Muhammed (2nd P/W) who later performed the post mortem on the body of the deceased testified as follows:-

The corpse had a big heamatoma on the forehead. There was also internal cerebral haemmorhage. I find the cause of death to be due to cerebral haemmorhage. In my opinion, the type of injury I found on the corpse could be caused by using a blunt object on the forehead with a big force. This was enough to cause haemmorhage inside the brain. By blunt object, I mean a fist, falling on the ground, hitting the forehead on the wall.

When cross-examined about this opinion the doctor replied I did not see any bruises on this corpse but haematoma is a bruise in our medical term. I say that there was no laceration on the forehead of the corpse I examined. There was no abrasions or bruise on the corpse I examined. I agree that the haematoma I saw on the corpse was consistent with a bruise sustained after falling on the ground face downwards

In a written statement made to the police after his arrest, the Accused admitted seeing both the 1st P/W and the deceased coming towards him on the day in question and that his shoulder touched that of the deceased. He then gave his own version of what happened thereafter as follows:-

I wanted to say sorry to him, on turning back I received a blow on the mouth by that man who is now lying in the hospital, then the other friend of his joined in beating me, the two of them attacked me fighting me. By this time, I wanted to defend myself, but I could remember that I gave that mans friend a blow, but the man who is now lying in the hospital I did not touch him, he wanted to blow me so I dodged back then he fell on the ground and could not wake up again, then the other man held my shirt I should not move. Then I started calling taxi and his friend also started to call taxi. So, one man came there and stopped taxi for us, then I carried the man on the shoulder to the taxi then on our way reaching the hospital, I carried the man on my shoulder again to the accident ward.

Except for some minor contradictions, his defence on oath was along the same lines. He testified, in effect, that the deceased fell down during the fight when he (the Accused) dodged in order to avoid being hit by the deceased.