Dominic Princent & Anor V. The State (2002)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C.

The appellants were on the 4th day of October, 1989, arraigned before the High Court of Justice, Kano State, holden at Kano charged with the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code.

The particulars of the offence charged, as amended, read as follows:

“That you Dominic Princent and Michael Udoh on or about the 1st day of Januar,1989 at Tsamiya brigade quarters in Kano Municipal Local Government Area within the Kano Judicial Division had formed a common intention to commit culpable homicide punishable with death in furtherance of which you caused the death of one Joseph Egbe by doing an illegal act, to wit; hitting him with iron rod, water pipe, axe and knife on the back of his head, face and other parts of the body with the knowledge that death will be the probable consequence of your act and you thereby committed an offence punishable under section 221(b) read with section 79 of the Penal Code.”

Each of the two accused persons pleaded not guilty to the charge and the prosecution called a total of 8 witnesses and tendered several exhibits at the trial. The accused persons under affirmation testified on their own behalf and called one witness.

At the conclusion of the addresses of learned counsel, the learned trial Judge, Tijani Abubakar, J., as he then was, pursuant to the provisions of section 208 of the Criminal Procedure Code, Cap. 30, Laws of Northern Nigeria directed an amendment of the charge in the interest of justice to reflect an averment of joint act on the part of both accused persons under section 79 of the Penal Code. Following this amendment, a fresh plea of both accused persons was taken accordingly. Thereafter, and on the application of learned defence counsel, two prosecution witnesses, to wit, P.W.3 and P.W. 6 were recalled and further cross examined. At the end of this exercise, learned counsel for the accused persons, again on his application, was granted leave to further address the court in the light of the amendment and the evidence before the court. The substance of the case as presented by the prosecution is that the 1st appellant was the boy friend of P.W.5, one Miss Rita Eru. P.W.5 invited the 1st appellant to her residence with a view to their celebrating the New Year festivities together on the 1st January, 1989. The 1st appellant accepted this invitation. On the appointed date, the 1st appellant went to the residence of P.W.5 as arranged with his brother, the 2nd appellant. They were accompanied by D.W.3, Sylvester Aguko, who is one of their friends. While they were there, the deceased, one Joseph Egbe and his friend, Albert Eka, who testified as P.W.3 in this case, arrived. They both came from Igede in Benue State as well as P.W.5 and her two sisters. They met the two appellants together with P.W5 and her two sisters, P.W.4 and P.W 6. in the room of the said P.W5. The deceased and P.W3 greeted the appellants in the English language. The deceased then went ahead to greet P.W.5 and her two sisters in their Igede language. The 2nd appellant insisted that the deceased should not converse in their native language but in English. P.W.3 replied that they were not speaking to the appellants but that they were merely greeting P.W. 4 their sister in their Igede language and that at all events they would soon take their leave. At this juncture, the 2nd appellant slapped P.W3 on his face. As the deceased queried why the 2nd appellant slapped P.W.3, he, too, received his own slap from the 1st appellant and a fight ensued between the appellants of the one part and the deceased with P.W.3 of the other part. They were immediately separated and the fight was terminated. Thereafter the appellants together with D.W3 left the premises to return home. All thought that was the end of the unfortunate incident. But it was not to be. The deceased and P.W.3 continued their conversation with P.W.5 and her sisters.

The deceased and P.W.3 were now about to go home when from nowhere the appellants came back to the premises armed with very dangerous weapons which included exhibits 4A, 4B and 4C. The 1st appellant was armed with an iron rod whilst the 2nd appellant held an iron pipe. The appellants suddenly charged on the deceased and P.W3. The 1st appellant hit the deceased on the forehead with the iron rod, exhibit 4A, whilst the 2nd appellant hit him at the back of his head with the iron pipe, exhibit 4B. The deceased as a result of this sudden attack instantly fell on the ground. Cold water was poured on him. He was rushed to the Murtala Mohammed Hospital, Kano where the medical doctor on duty pronounced him dead. In the opinion of P.W.8, the medical doctor who performed post mortem examination on the body of the late Joseph Egbe soon after the incident, confirmed that the death was as a result of fracture of the skull and internal bleeding following the head injuries sustained by the deceased. The case of the defence was that there was only one fight between them and the deceased with P.W.3 and that the latter party were at all material time the aggressors. They denied using the weapons exhibits 4A, 4B or 4C to assault the deceased. The 1st appellant claimed that it was P.W3 who first slapped him. The 2nd appellant, on the other hand, claimed that P.W4 hit him during the fight with a high heeled shoe. She wanted to hit him a second time but he dodged and the shoe landed on the deceased. The appellants maintained that they never returned to the premises of P.W.5 a second time after the fight was stopped and they left the scene.

The learned trial Judge after an exhaustive review of the evidence on the 22nd day of October, 1990 found both appellants guilty of the offence of culpable homicide punishable with death as charged and accordingly sentenced them to death as prescribed by law. In his judgment, the learned trial Judge accepted as established the evidence of the prosecution witnesses against both accused persons. The defence evidence was dismissed as unreliable. Said he:

“The oral evidence of the defence (D.W1 and D.W2) is materially inconsistent with their statements, exhibits 1, 2 and 4 respectively. Consequently, I regard their evidence as unreliable.”

Of the prosecution’s case, the learned trial Judge commented.

“I believe that when the first fight was separated, the accused left the house. The deceased and P.W. 3 were about to go when the accused came back and attacked him as a result of which he fell unconscious”.

He went on:

“The evidence before me which I believe is that the unarmed deceased did not fight back. He fell unconscious after the attack. The accused are the aggressors they left the scene only to get armed and return to fight.”

He concluded: