Abubakar P. Dajo V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

The Appellant herein and three other accused person were arraigned before the High Court of Adamawa State holden at Yola, charged with conspiracy to beat, stone and shoot security agents with poisoned arrows, which beating, stoning and shooting resulted in the death of one Dahi Doma, a soldier under Section 96 of the Penal Code and punishable under Section 97(1) of the same code. The Appellant was separately charged with culpable homicide punishable under Section 221 of the Penal Code.

At the close of the prosecution’s case, a no case submission was made on behalf of the 3rd and 4th accused persons, as well as the 2nd accused person by their respective counsel. The trial Court upheld the no case submissions in its ruling delivered on the 12th December, 2007, in which the 2nd, 3rd and 4th accused persons were discharged pursuant to Section 191 (3) of the Criminal Procedure Code. The Appellant who was the first accused at the trial Court testified in his defence and closed his case. In a reserved and considered judgment delivered on the 26th June, 2008, Banu ., (as he then was)

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found the Appellant guilty of culpable homicide punishable with death under Section 221 of the Penal Code and sentenced him to death by hanging.

Appellant is dissatisfied with the conviction and sentence. Being aggrieved, he appealed to the Court of Appeal. In a unanimous decision of the justices of the Lower Court that heard the appeal, delivered on the 28th of June, 2012, his appeal was dismissed. The instant appeal is against the decision of the Lower Court. The notice of appeal filed on the 24th September, 2012 contains four grounds of appeal. Parties filed and exchanged briefs of argument. Mr. Taiwo Kupolati, learned counsel for the Appellant, leading Mr. K. U. Ani formulated two issues for determination of this appeal. I reproduce these issues hereunder as follows:

(1) Whether the Court of Appeal was right in affirming the conviction and sentence of the Appellant to death for the offence of culpable homicide pursuant to Section 221(b) of the Penal Code Law, despite the apparent failure of the prosecution to establish all the ingredients of the offence of culpable homicide beyond reasonable doubt.

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(2) Whether the Court of Appeal was right in law when it held that the defence of provocation does not avail the Appellant against the charge of culpable homicide notwithstanding that the Appellant led positive and credible evidence to prove the defence of provocation.

Mr. M. M. Nurudeen, learned counsel for the Respondent submitted two issues for determination of this appeal as follows:-

1. Whether the learned Justices of the Court of Appeal were right to affirm the judgment of the trial Court convicting the appellant for the offence of calpable homicide punishable with death contrary to Section 221 of the Penal Code.
2. Whether the Justices of the Court of Appeal were right to affirm the decision of the trial Court that the defence of provocation was not available to the Appellant.

The issues formulated by parties are similar.

The Appellant being the aggrieved party will have his grievances listened to. For this reason, I shall determine this appeal on the basis of the issues submitted by the Appellant. In doing so, I shall consider them in the order in which they were argued by the Appellant.

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Before I consider the argument of learned counsel on both sides, I will like to set out albeit in brief the facts of this case as reflected in the Appellant’s testimony.