Babagana Hamidu v. The State (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

JAMILU YAMMAMA TUKUR, JSC (Delivering the leading judgment)

This is an appeal against the judgment of the Court of Appeal, Kaduna Judicial Division in appeal No. CA/K/47/C/2012 delivered on 9th April 2014 which affirmed the conviction of the appellant for the offence of culpable homicide punishable with death.

The facts of the matter which culminated in this appeal arose from the arrest of the appellant on suspicion of causing the death of the deceased.

The appellant after investigations was charged and tried before Hon. Justice P.A. Mahmoud of the Kano State High Court of Justice for the offence of culpable homicide punishable with death, contrary to section 221(b) of the Penal Code.

Upon conclusion of trial, the trial Judge found the appellant guilty as charged and consequently sentenced the appellant to death by hanging.

Dissatisfied with the decision of the trial court, the appellant appealed to the Court of Appeal, whereupon his appeal was dismissed, hence, the appeal to this court.

The appellant’s brief of argument is dated 10th November 2014 and filed on 12th November 2014. Appellant’s counsel distilled five issues for determination to wit:

1. Whether the proceeding of both the trial and indeed the lower court did accord the appellant his rights as enshrined under section 36(6)(b) (c) and (d), and section 36(11) of the Constitution of the FRN, 1999 (as amended).
2. Whether the trial and indeed the lower court were both right in convicting and sentencing the appellant primarily on the uncorroborated and involuntary confessional statement (exhibit 9) of the appellant.
3. Whether homosexual advances not enough provocation unless life of the victim is under threat of death.
4. Whether the failure of the trial court to comply with the requirement of sections 191 and 194 of the Criminal Procedure Code can be waived by counsel even when such could occasion miscarriage of justice.
5. Was the lower court right in holding that all that is required to prove homicide is that the death of the deceased was the direct result of the appellant’s act and no more?

The respondent’s brief of argument is dated 15th December 2014 and filed on 23rd December 2014. Respondent’s counsel formulated four issues for determination thus:

1. Whether the appellants right to counsel has been breached considering the attitude of the appellant in his inconsistent and trickish way of changing counsel.
2. Whether the court below was right when it affirmed the decision of the lower trial court in convicting and sentencing the appellant to death contrary (sic) to section 221(b) of the Penal Code having regard to circumstantial evidence and the confessional statement of the appellant.
3. Whether the court below was right in affirming the decision of the trial court that the purported defence of provocation put up by the appellant was farfetched and unreasonable.
4. Whether the court below was right in holding that the appellant was deemed to have waived the alleged noncompliance with sections 191 and 194 of the Criminal Procedure Code when he did not raise the issue at the earliest opportunity.

A careful examination of the issues as presented by counsel to both parties reveal that they are the same in substance and address various aspects of the decision of the lower court affirming the conviction and sentence of the appellant by the trial court. This appeal will therefore be determined on the sole issue of whether the lower court was right in affirming the conviction and sentence of the appellant for the offence of culpable homicide punishable with death, contrary to section 221(b) of the Penal Code. All the arguments as articulated by the parties would be duly considered.

Sole issue

Whether the lower court was right in affirming the conviction and sentence of the appellant for the offence of culpable homicide punishable with death, contrary to section 221(b) of the Penal Code.

Learned counsel for the appellant postulated that the commission of the offence by the appellant was not established beyond a reasonable doubt before the trial court as required by law.

He asserted that the lower court was wrong to have affirmed the decision of the trial court primarily on the basis of circumstantial evidence as circumstantial evidence must not only prove the act or conduct of the accused but must also necessarily prove concurrently the intention of the accused to satisfy the ingredient of the offence that the act was done with intention of causing death or that it was done with intention of causing such bodily injury.

He also took issue with the sufficiency of the circumstantial evidence because of lack of autopsy report which would have established the cause of death.