Babawuro Usman V. The State (2014)
LAWGLOBAL HUB Lead Judgment Report
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.
This appeal is against the Judgment of the Court of Appeal, Holden at Jos on appeal No. CA/J/127C/96 delivered on the 23rd day of March 2004 in which the court substituted a verdict of guilty of the offence of culpable homicide punishable with death under Section 221(a) of the Penal Code for that of the trial Court which on 23rd November, 1995 found appellant guilty of culpable homicide under Section 220(b) of the Penal Code and punishable under Section 224 of the same code and sentenced him to a term of 11 years imprisonment.
Appellant was charged on an information before the Gongola State High Court sitting at Jalingo with a count of culpable homicide punishable with death under Section 221(a) of the Penal Code to which appellant pleaded not guilty.
At the conclusion of trial, the matter was adjourned to 11th May, 1995 for Judgment which was, however, not delivered due to the fact that OLUOTI J. who heard the matter was transferred/deployed to Adamawa State following the creation of Adamawa and Taraba States out of Gongola State vide Decree No. 41 of 1991. The Judgment was therefore delivered on the 24th day of November, 1995.
The facts of the case include the following:
Appellant was married to Aminatu, his wife and lived with her in Jalingo in the then Gongola State, now capital of Taraba State. Sometime in 1990 Appellant killed his said wife, Aminatu. PW1, Abubakar Bakari was appellant’s houseboy and gave uncontroverted evidence of what transpired on the day of the killing, a Saturday night in May, 1990. He told the court that on that night he heard Aminatu Babawuro (now late) crying for a while; that appellant later called PW1 and when PW1 got to the parlour where appellant was in response to the call, PW1 saw the body of Aminatu, appellant’s wife lying there in a pool of blood. Appellant then requested PW1 to assist him in carrying the dead body into a grave which had been dug in the compound of appellant, which he did. Appellant then warned PW1 not to tell anyone that he killed his wife and that if he did, he, PW1, would be responsible for whatever happens to him (PW1) and that he should tell any enquirer after his wife that she had gone to the hospital and was yet to return; that on 2/6/90 appellant left the house leaving his little dog behind which dog went to the grave and dug it exposing the hand of the deceased as at the time of the return of appellant to his compound.
Appellant then went and reported the matter to the police in Jalingo who came and looked at the grave. On the following day policemen returned to the compound and dug the grave and found the body of the deceased which was identified by appellant as that of his wife, Aminatu.
PW6 was a medical doctor who performed a post mortem examination on the body of the deceased after it was dug up and at the grave site. He found that the skin was broken at one point/spot on the neck where there was a straight wound of about 5cm deep and 3cm long and on the right side of the neck. The doctor gave the cause of death, in his opinion, as haemorrhage or excessive loss of blood, from the injury on the neck which might have been caused by a sharp object.
Appellant denied the charge and said nothing whatsoever to contradict the evidence of PW1 or PW6. He told the Court that sometime in May 1990 he reported to the police that his wife was missing from home when he returned from Dong.; that PW1, his houseboy told him that his wife went to buy some medicine from the town but had not returned, that he had also reported the matter to the relation of the wife but no one could tell of her where about; that sometime in June 1990 (01/6/1990) his attention was drawn by a woman who was in his compound to some digging by his little dog which he reported to the police who, upon investigation, dug out what turned out to be the body of his wife.
Learned counsel for appellant Dr. J.Y. Musa has submitted three issues in the appellant brief filed on 17/7/12, for the determination of the appeal. The issues are as follows:-
“(i) Whether the learned justices of the Court of Appeal were right in holding that Oluoti J, who had ceased to be a Judge of the High Court of Taraba State had jurisdiction to try the appellant and convict him (Ground 1)
(ii) Whether the prosecution proved the case of culpable homicide punishable with death against the appellant against the material contradictions in the testimonies of the prosecution witnesses. (Ground 2).
(iii) Whether the learned justices of the Court of Appeal were right in overturning the Judgment of the learned trial judge who had the opportunity of seeing, listening and ascribing probative value to the testimonies of the witnesses (Ground 3).”
In arguing issue 1, learned counsel referred the Court to the provisions of Section 234 of the Constitution of the Federal Republic of Nigeria, 1979, being the then applicable Constitution, and submitted that the territorial jurisdiction of a Court of a State is limited to the territorial boundary of the State concerned; that the learned trial judge haven ceased to be a judge in Taraba State, had no jurisdiction to proceed with the hearing or continue with the hearing and determination of the charge thereby nullifying the judgment, relying on Ndaeyo V. Ogunnaya (1977 – 1978) 11 NSCC 5 at 10; that the provisions of Section 6 of Decree No. 41 of 1991 relied upon by the lower court do not support their position neither are they supported by the case of Chime V. Chime (2001) FWLR (Pt. 39) 1457 on which the court also relied; that “that court” in which the case was to be continued as mentioned in Section 6 of Decree 41 of 1991 is the High Court of Taraba State, not that of Adamawa State where the Judge was deployed to and urged the court to resolve the issue in favour of appellant.
On his part, learned counsel for respondent S. Harunna Esq. in the respondent brief filed on 17/8/12 submitted that the court below was correct when it dismissed the cross-appeal of appellant on the issue based on the provisions of Section 6 of Decree No. 41 of 1991 and the decision of this Court in the case of Chime V. Chime (2001) 1 S.C. (Pt. 11) 1 at 13 and that no miscarriage of justice has been occasioned to the appellant; that this case is not distinguishable from the case of Chime Vs Chime, supra and urged the court to apply same to the facts of this case and resolve the issue against appellant.
Section 6 of Decree No. 41 also known as States (Creation and Constitutional Provisions) Decree, 1991 provides as follows:
“Any proceeding pending before any Court of a State immediately before the commencement of his Decree may after commencement be continued before that court and shall not adversely be affected by the provisions of this Decree”
The above provision has been interpreted and applied by this court in the case of Chime Vs Chime (2001) 3 NWLR (Pt. 701) 52 at 552 where appellants therein canvassed the point that the trial Judge had no jurisdiction to continue to entertain the case since the area where the land in dispute was situate had been carved out of the old State in which the State originated, the Judge not being an indigene of the new State.
In resolving the above issue (point) this court, per IGUH JSC at page 552 stated thus:
“In other words, Ubaezeonu J, as he then was, before whom the case was pending before the commencement of the relevant Decree was vested with ample jurisdiction to continue with the hearing of the suit in his court after the commencement of the Decree.
I entirely agree with the submission of learned counsel for the respondents, Chief Ugolo, that if it was the intendment of Section 6 of Decree No. 41 of 1991 that pending cases shall be tried de novo by another Judge of Enugu State origin, the expression that the trial of such cases may, after the commencement of the Decree, “be continued before that court and shall not be adversely affected by the provisions of the Decree” should not have been used.
This is because, the hearing of a part – heard case taken over by another Judge is not ‘continued before the new Judge’ but shall be started de novo by such new Judge in accordance with the basic principles of our law. It is my view, therefore, that the hearing of the present suit which was pending before Ubaezeonu J, as he then was, immediately before the commencement of Decree No. 41 of 1991 may after such commencement be continued before that court, quite rightly, pursuant to the provisions of Section 6 of that Decree”.
It is clear and I hold the view that the relevant facts of the instant case are on all four with those of Chime Vs Chime, supra. In the instant case the charge was pending before the Gongola State High Court where Oluoti J presided prior to the creation of Adamawa and Taraba States therefrom (i.e. from Gongola State), like Enugu and Anambra States being created out of the old Anambra State which originally encompassed both (new) States. As at the time of creation of the new States Oluoti J, sat in Jalingo to hear the case, which, after the creation of States, became the capital of Taraba State. With the creation of the States, however, Oluoti J was deployed to Adamawa State, no longer being an indigene of Taraba State just like Ubaezeonu J, as he then was. It was from Adamawa State that the learned trial Judge returned to Jalingo to deliver the Judgment now on further appeal before us.
I therefore hold the strong view that the decision of this court in the case of Chime V. Chime supra applies to the facts and circumstances of this case and consequently relevant for the determination of the issue under consideration as same is in no way distinguishable. No miscarriage of justice has been alleged by appellant neither can one find any thread of same in this case resulting from the application of the provisions of the said Section 6 of Decree 41 of 1991 to make it necessary for this court to interfere with the finding and holding in that respect by the lower court.
The position of the law relevant to the facts of this case being as stated above, I have no hesitation, whatsoever, in finding no merit in the issue under consideration which is accordingly resolved against appellant.
On issue 2, it is the submission of learned counsel that the prosecution failed to prove the charge against appellant beyond reasonable doubt, particularly, as the case of the prosecution is full of contradictions; that the contradictions are material and include the following:-
That PW1 gave evidence that appellant killed his wife in June while PW1 and (PW3 claimed that it was on 1st June 1990 that they saw something and went with appellant to the house of DCO; that PW4 said they saw a mattress stained with blood at the backyard of appellant in May 1990, but PW5 said he was assigned a case of missing person by his DCO on 13/5/90 while at the same time he testified that on 2/6/1990 he was in the company of the DCO and other police men who investigated and dug up the dead body of the deceased in the compound of the appellant, that the date of 2/6/1990 was what PW6 said he performed the post mortem examination on the dead body of the deceased; that the charge said the deceased was killed on or about the 12th day of May, 1990; that PW1 cannot be telling the truth as to what he saw or the role he played in the death of the deceased which, he claimed, occurred in June 1990, which raises doubts to be resolved in favour of the appellant, relying on Okeke V. Attorney-General Bendel State (1986) 2 NWLR (Pt. 24) 648, Onubogu V. Queen (1974) 1 S.C. 1. Learned counsel then urged the court to resolve the issue in favour of appellant.
On his part, learned counsel for respondent stated that the lower courts never found any material contradiction in the evidence of the prosecution witnesses; that the respondent proved the charge against appellant beyond reasonable doubt and that his conviction and sentence were thus justified in law; that the prosecution proved the death of the deceased; that it was appellant that caused the death and that the appellant intended to kill the deceased, relying on Sule V. The State (2009) 171 LRCN 1 at 1. Ogbo V. The State (1997) 2 NWLR (Pt. 222) 164: Nwaeze V. The State (1996) 2 NWLR (Pt. 428) 1 at 11 etc; that the evidence of PW1 to the effect that he saw the dead body in the month of June was rejected by the trial Judge at pp. 43 – 44 of the record and the court accepted the version that the incident took place in May, 1990 which was also agreed upon by the appellant in his statement, exhibit ‘A’, that appellant is raising the issue of contradiction for the first time in this court and without the requisite leave of the court, which, makes the issue incompetent.
It is note worthy that learned counsel for appellant did not file a reply brief in reaction to the argument of counsel for respondent that the issue of contradiction in the evidence of prosecution witnesses, to wit, the date the crime was allegedly committed, was a fresh issue which is being raised for the first time before this court and for which the leave of this court must be sought and obtained. This submission by learned counsel for respondent is very crucial and needed to be reacted to, one way or the other. It is settled law that when a party wishes to raise a fresh issue before an appellate court, he must first and foremost, seek and obtain the leave of that court to raise and argue the point(s) intended to be so raised. Where no leave of the court is sought and obtained, the fresh point/issue so raised and argued is, in the eyes of the law, incompetent and liable to be struck out. Leave to raise and argue a fresh point/issue is therefore a condition precedent to the competence of the issue and of the court concerned to entertain and determine same.
I hold the considered view that by not reacting to the crucial submission of counsel for respondent on the need to seek and obtain the leave of this court to raise and argue the issue of contradictions on the evidence of prosecution witnesses, which is a fresh issue being raised and argued for the first time before this court, appellant is deemed to have conceded the point being made by the respondent. I therefore hold that appellant’s issue 2 being a fresh issue raised without the leave of this court is incompetent in law and is consequently liable to be struck out.
The above notwithstanding, the issue of contradiction in the evidence of the witnesses, as regards the date of the offence, was adequately considered and resolved by the learned trial Judge at pages 43 – 44 of the record inter alia as follows:
“(i) The next matter for consideration is the day or date the alleged offence took place. The charge reads in part “BABAWURO USMAN on or about the 12th day of May, 1990.”
(ii) That date was a Saturday. PW1 testified that he saw the dead body on one Saturday in the month of June. Under cross – examination he repeated the month of June. I have above rejected this piece of evidence. PW2, Alhaji Buba Usman, spoke of 1st June 1990 when the accused informed him of his finding in his house relating to the grave. PW3, Alhaji Aiti Umaru, spoke in the same vein.
(iii) PW4 is Joshua Idrisu. He testified in part that: thus:
“I know the accused …. I also know one David Bako. I knew him because in May 1990 he came to me at the said lodge and informed me that he has seen one mattress in between the compound of the accused and our lodge … we went and I saw the mattress and found it was stained with blood…”
Accused testified in part thus:
“There was a neighbor who told me that he saw a mattress that was thrown there.”
(iv) In his cautionary statement to the Police Exhibit ‘A’, English translation, Exhibit ‘A1’ the accused said in part thus:
“On the 13/5/90 at about 0900 hrs I left to Dong market…and leave my wife in the house and when I came back I did not meet my wife … I continue searching for her up to night time, then I came back home, then one of my neighbor called me and told me that whether the Dunlop that was lying in my backyards, belong to me I did not take notice because some thing is worrying and in small time I went out to continue searching for her and when I returned at about 2100 hrs I discovered that my Dunlop mattress and my wife properties were scattered and thrown to my backyards”.
(v) Both the accused and PW4 agree on a certain day in May 1990. That I believe was the month the accused’s wife died. The accused testified and mentioned 1989. I think he made a mistake. Considering other pieces of evidence, I disbelieve that portion of his evidence viz 1989. I accept the date in the cautionary statement viz 13th May 1990.”
From the above, it is very clear that the issue of contradiction as to the date of the commission of the offence was perfectly resolved by the learned trial Judge and it never came up to be dealt with by the lower court. I am very much satisfied with the way the trial Judge dealt with the issue. In the circumstance, issue two is hereby struck out for being grossly incompetent and a complete waste of time of this court.
On issue 3, it is the contention of learned counsel for appellant that the lower court was in error in overturning the Judgment of the trial court having regard to the principle of law that evaluation of evidence and the ascription of probative value thereto reside within the province of the trial court that saw, heard and assessed the witnesses, relying on Mafimisebi Vs Ettuwa (2012) 411 FWLR (Pt. 355) 562 at 605, C.D.C. Nig. Ltd. Vs. SCOA (Nig.) Ltd: (2007) All FWLR (Pt.363) 1 at 41 – 42; that the trial court found that intention to kill the deceased was not proved though he agreed that the deceased was stabbed on the neck; that the lower court ought not to have interfered with the findings of the trial Judge and urged the court to resolve the issue in favour of appellant and allow the appeal.
In his reaction to the submission of learned counsel for appellant on the issue under consideration, learned counsel for the respondent submitted that the lower court was right in overturning the decision of the learned trial Judge who failed to make proper use of the opportunity of seeing, hearing and observing the witnesses at the trial and to exercise his discretion properly, and, that the judge drew wrong conclusions from accepted evidence resulting in a miscarriage of justice, relying on Onwugbufor V. Okoye (1996) SCNJI at 33; that the issue before the lower court was not on the demeanour of the witnesses or the trial Judges impression of them but on drawing of correct inferences from the accepted evidence on the record; that the evidence of PW1 and PW6, which the trial Judge accepted as being truthful, was enough for that court to have drawn correct inferences and conclusions to hold that the charge as laid had been proved beyond reasonable doubt and urged the court to resolve the issue against appellant and dismiss the appeal.
I agree with the submission of learned counsel for appellant that it is settled law that evaluation of evidence and ascription of probative value, thereto remains within the province of the trial Judge who saw, heard and observed the demeanour of the witnesses.
The question is, what is the finding of the trial Judge in relation to intention to kill the deceased by the appellant having regards to the facts and circumstances of the case At pages 48 – 50 of the record, the learned trial Judge came to the following conclusion, inter alia-
“In the case before me, death was caused instantaneously by a stabbing on the neck. The weapon whether formidable or not was not produced. The wind pipe, veins and arteries were not reported by the medical officer. In the circumstances of this case, I hold that intention to cause death has not been proved;
If a weapon is used the question will generally resolve itself by a consideration of the weapon used, the part of the deceased’s body where it was struck and the amount of force used. As I have observed earlier the weapon was not produced, the stab injury was on the neck and the amount of force used cannot be determined. I have to decide that on the evidence I cannot be certain with the degree of certainty demanded by a criminal charge of such seriousness that death was the probable result of the stabbing.”
What is the reaction of the lower court to the above conclusion by the learned trial Judge It can be found at pages 176 – 177 of the record where the court had this to say:
“In the case before us there can be no doubt that these matters when taken into account clearly reveal the intent to kill, manifest in cutting the neck of this 20 years old pregnant girl. With the pool of blood in which the deceased was seen by PW1 and loss of blood identified and sharp instrument used highlighted by the doctor PW6 as the caused (sic) of death, the amount of force applied is easily identified. It is so much as caused instant death of the victim whose crying PW1 was hearing and about 30 minutes after the crying stopped, he was invited by the accused to come and help him carry to a waiting grave in his enclosed compound, the body of the deceased then lying in a pool of her own blood.
In summary, the intention to kill her or the mens rea, of the killer is, without doubt, clearly proved so also is the cause and her death. One thing I must state firmly is that the evidence before the court below and on record support and warrant a conviction under Section 221(1) of the Penal Code.
There is no evidence to support the trial court’s finding. It is indeed an error in law which calls for interference from this court. See Rabiu V. The State (1980) 8 – 11 S.C. 130 at 172: Agbeyegbe Vs. Inspector-General of Police 15 WACA 37.
The law is that where there was evidence before the trial Judge from which he could, reasonably, have come to the conclusion to which he did, the verdict must stand R v. Onusade (1964) NWLR 67 also in (1964) All NLR 233,
If it is a verdict which no reasonable jury could have come to, and I believe taking into account the evidences before the trial court, the Court of Appeal may reverse it – See R V. Olagunju (1961) All NLR 21. It is my view that that is the case, in this matter.
I see nothing obviously or even inherently improbable about the evidence of PW1, to warrant the speculation gone into by the trial court. In taking it upon himself to raise points which could cause doubts as to the credibility of the witness and proceed to use them, the trial court has only given cause for a miscarriage of justice fatal to the prosecution.
Although it is not the function of the Court of Appeal to retry the case based on the record of proceedings before it, yet it has a duty not to allow a verdict which is entirely unwarranted, as herein, to stand”
From the passages reproduced from the respective Judgments of the lower courts the question is, which of them is correct in law
The facts of the case clearly shows that the case is based solely on circumstantial evidence.
It is settled law that to sustain a conviction on the basis of circumstantial evidence, the circumstances relied upon by the prosecution must be direct and must lead unequivocally and indisputably to the guilt of the appellant; that the circumstantial evidence sufficient to support a conviction in criminal trial especially murder, must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner and no one else, is the murderer. The facts must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
In the instant case, it is not in dispute that it was the act of appellant that resulted in the death of his ‘dear’ wife. What the trial Judge used in reducing the punishment of culpable homicide punishable with death under Section 221 (a) of the Penal Code, as charged, to culpable homicide under Section 220(b) of the Penal Code and punishable under Section 224 of the said Code, is that the court did not see or find any mens rea in the act of the appellant which resulted in the death of the deceased because:
“…The weapon whether formidable or not was not produced. The wind pine, vein and the arteries were not reported upon by the medical officer. In the circumstances of this case I hold that intention to cause death has not been proved”
despite the fact that the Judge had immediately before the above, found as a fact that:
“In the case before me the death was caused instantaneously by a stabbing on the neck” – See pages 48 – 49 of the record.
Haven found that the death of the deceased was caused by the stabbing on the neck by the appellant which resulted in instantaneous death of the deceased, one wonders how else the intention of appellant to kill the deceased in the circumstances as found by the learned trial Judge can be best demonstrated. Does a man who stabs a person on the neck resulting in instantaneous death wish the deceased to live or die Does the amount of force used in the stabbing on the neck matter when the probable result of such stabbing on the neck is death
I hold the strong view that the intention of appellant to cause the death of his wife can easily be inferred from the established facts of the case as accepted by the lower courts and that the lower court was right in overturning the decision of the trial Judge and substituting thereto its own decision which I find and hold as very much in accord with the facts as established in evidence and the law applicable thereto.
Where it is evident, as in the instant case, that the evaluation was defective the appellate court has a duty to examine the grounds on which the conclusions and inferences of the trial court were based and to re-evaluate the evidence and take a different view: See Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 360; (1985) 4 S.C. (Pt. 1) 250.
I therefore resolve issue 3 against the appellant and accordingly dismiss the appeal for lack of merit.
Appeal dismissed.
SC.95/2012