Audu Yusuf V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BABA ALKALI BA’ABA, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the Kaduna State High Court, Kaduna State Judicial Division delivered on the 3rd day of June, 2006 by Hon. Justice A. A. Othman whereby the appellant was convicted and sentenced to death by hanging for the offence of culpable homicide punishable with death under Section 221 of the Penal Code as contained at pages 79 – 94 of the printed record.

The appellant, being dissatisfied with the judgment of the lower court, filed five grounds of appeal against the judgment to be found at pages 96 – 99 of the printed record.

The brief facts of the case are as follows:

The appellant, Audu Yusuf, was charged along with one Lawal Musa, on a three count charge of conspiracy, armed robbery and culpable homicide punishable with death contrary to Section 5(b), 1(2)(a) of the Robbery and Firearms (Special Provision) Act, Cap. 398, Laws of the Federation of Nigeria 1990 and Section 221 of the Penal Code. The said charges are contained at pages 2 – 8 of the printed record. The trial commenced before High Court No.4, Kaduna presided over by Hon. Justice Umaru Adamu, where the charges were read and explained to the accused and their plea taken. However, the case was transferred to another Judge upon the retirement of the former Judge hence the case started de novo.

The respondent’s application to amend counts one and two of the charges namely criminal conspiracy and armed robbery contrary to Section 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap.398, Laws of the Federation of Nigeria 1990, were read and explained to the accused persons who pleaded not guilty as shown at page 30 of the printed record. However, it appears from the printed record that the 3rd count charge of culpable homicide punishable with death was neither read nor explained to the appellant. The appellant plea was therefore not taken in respect of the 3rd count charge of culpable homicide punishable with death contrary to Section 221 of the Penal Code.

The prosecution opened its case and called three witnesses and tendered four Exhibits in evidence to prove it’s case while the appellant testified on his own behalf. At the conclusion of the trial, the appellant, was discharged and acquitted on the charges of criminal conspiracy and armed robbery but was convicted for the offence of culpable homicide punishable with death as contained at pages 88 – 94 of the printed record, where the learned trial Judge, inter alia, held:

“The unchallenged testimony of PW1 goes to confirm that it was the same 1st accused that was responsible for the death the said Shuaibu Lawal. I find the defence of DW1 unacceptable because the evidence of PW1 and PW2 has not been challenged in anyway. From the fore going therefore I did not find the 2nd accused person guilty on the charge of culpable Homicide and the 1st count charges because he has been exonerated by the 1st accused and there is nothing before to believe otherwise he is therefore, hereby, discharged on all the 3 count charges. The 1st accused however, I find him guilty of he offence of murder of Shuaibu Lawal under Section 221 Penal Code on account on evidence of PW1 and PW2 which remained unchallenged and convict him accordingly. There was no way the deceased could have been found without the assistance and cooperation of the 1st accused who gave an account of how the deceased was killed in which he fully participated. I find him guilty and convict him accordingly… The law did not give me any latitude in the offence like this convict must be punished in accordance with the law. The punishment attracts death penalty. I therefore, hereby, sentence him to death at the leisure of the executive governor of Kaduna State.”

Being dissatisfied with the judgment, the appellant filed a notice of appeal containing five grounds of appeal to be found at pages 97-98 of the printed record.

Briefs of argument were filed and exchanged by the parties in accordance with the rules of Practice and Procedure of this Court. At the hearing of the appeal which came up for hearing on the 13th day of April, 2010, counsel to the parties adopted their respective briefs and advanced oral argument in amplification of their respective briefs.

The learned counsel for the appellant, A.T. Kehinde, Esq, formulated three issues for determination of this appeal as follows:-

“(i) Whether the failure to properly arraign the appellant in court, and his plea taken on the offence of culpable homicide was not germane to the entire proceedings upon which the appellant was convicted and subsequently sentenced to death.

(ii) Whether from the totality of the evidence adduced at the trial the prosecution has sufficiently proved beyond reasonable doubt the guilt of the appellant to justify his conviction and sentence to death.

(iii) Whether the trial and conviction of the appellant on the evidence of P.W1 and P.W2 without any consideration of the evidence of the appellant was not a truncation of his constitutional right of fair hearing.”