Habibu Usman V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUSA DATTIJO MUHAMMAD, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Sokoto State High Court, Per Sambo J, convicting and sentencing the Appellant, Habibu Usman, for culpable Homicide punishable with death under section 221 of the pend(sic) code. The judgment is dated 25th April, 2006. The undisputed facts of the case leading to the judgment of the court and this appeal are hereunder supplied immediately.

The Appellant got married to Salamatu, now deceased, in 1992. The two were cousins. Marriages between cousins are allowed in Hausa land where both came from. Like others that had also failed, the one between the Appellant and his deceased wife has had fatal consequences. Beyond the murder of his cousin and wife that he was convicted and sentenced for, and against which conviction and sentence this appeal is all about, serious steps must be taken to heal such deadly injury inflicted on the greater unity the marriage between the Appellant and the deceased was intended to generate!

Before her death, Salamatu had moved to her parents house. This happened on 19th February, 1985. Salamatu was no longer at peace with the Appellant, who, even without the marriage between them, given the sameness of the blood contained in their veins, should have ensured she was at peace. The Appellant would not let go Salamatu, his cousin and wife whom he falsely claimed to adore. Having failed to cultivate and sustain the affection or revive it, the Appellant lost his humanity also. The efforts put by relations to ensure the success of the marriage failed also to register on Habibu’s mind. He was far too gone to understand that affection is never forced. He settled for the beastly paradigm that that which could not be had must be destroyed! On or about 11th March, 1995 and at about 0100 hours , Habibu Usman struck. He left his house, went to his uncle’s house where his estranged wife was staying with her parents. With a knife and a hoe, appellant inflicted the fatal injuries on Salamatu his wife and Aishatu his mother in law. Salamatu died instantly from the injuries she sustained from the Appellant. Aishatu was luckier. She was hospitalized and discharged after three week’s admission.

Appellant was arraigned before, tried, convicted and sentenced by the Sokoto State High Court, for culpable Homicide punishable with death under section 221 of the pend(sic) code. Aggrieved by the decision, the Appellant has, by a notice filed on 16th May, 2006 containing a single ground, appealed to this court.

Parties have filed and exchanged their briefs of argument and same were adopted and relied upon at the hearing of the appeal.

The lone issue distilled in the Appellant’s brief as calling for determination in the appeal reads:-

“Whether the guilt of the Appellant was proved and established beyond reasonable doubt having regard to the evidence adduced before the trial court including the confessional statements, Exhibits P3 and PA3 made by the Appellant.”

The Respondent has distilled two issues at paragraphs 2.1 and 2.2 their of brief. Appellant’s single issue subsumes the respondent’s two issues and provides the basis of our determining this appeal. It is needless, therefore, to reproduce Respondent’s two issues here.

In arguing the appeal, learned Appellant counsel contends that the law places a very heavy burden on the Respondent if conviction of the Appellant under section 221 of the penal code is to be secured. The law requires that the Respondent proves all the ingredients of the offence beyond reasonable doubt which, learned counsel contends, has not been done in the instant case. Relying on Aroyewun v C.O.P (204) 16 NWLR (Pt 899) 414 at 428, Shande v State (2005) 1 NWLR (Pt.907) 218 at 238, Amala v State (2004) NWLR (Pt 888) 520 at 547 and Apugo v State (2006) 16 NWLR (Pt 1002) 227 at 254-255 learned counsel submits that a conviction without the discharge by the Respondent of the burden the law places on them cannot endure.

Learned counsel further argues that PW3 is the Respondent’s star witness. Not even this witness could identify the weapons the Appellant employed in injuring the deceased and Appellant’s mother-in-law. The other witnesses, Learned Counsel also contends, gave hearsay evidence which in law is inadmissible. Most importantly exhibit 3A, the English version of the Appellant’s purported confessional statement as recorded by PW6 from the Appellant, was never read over to the appellant. This rendered it inadmissible, a lapse which can be raised even on appeal. If this is done, it leaves the trial court with no evidence to rely upon in convicting the Appellant. The court’s language, it is argued, remains English making Ex 3 the Hausa version of Appellant’s statement unhelpful. Learned counsel supports his submissions with the decisions in Olalekat v State (2001) 18 NWLR (Pt 746) 793 at 810. and Ojengbede v Esan (2001) 18 NWLR (Pt 771) 290.

Concluding, learned counsel submits that assuming without conceding that Exhibit 3A is admissible, the trial court should not have attached any weight on it as to ground the conviction of the Appellant.

Had the purported confessional statement of the Appellant been discarded, Appellant would not have been convicted. Learned counsel cites and relies on the case of Kwara Investment Co. Ltd. v Garuba (2000) 10 NWLR (Pt 674) 25 at 39. He urges us to resolve the lone issue as well as the appeal in Appellant’s favour and consequentially, set-aside judgment of the lower court.

Learned Respondent counsel concedes that it is the prosecution’s burden in a criminal case to prove the guilt of the accused beyond reasonable doubt. He argues though that the burden has been discharged in the instant case where all the ingredients of the offence of culpable Homicide under section 221 of the penal code for which Appellant is charged has been proved by the prosecution. The evidence of PW2, PW3, PW4, PW5 as well as Exhibit 4, the medical certificate all point to the fact of the death of a human being, Salamatu. The failure of PW3 to identify exhibits 1 & 2, the knife and the hoe used by the Appellant in causing the death of Salamatu, learned counsel contends, is not fatal to the court’s conclusion. Once there is an eye witness or such unequivocal circumstantial evidence of the guilt of the accused, the court can safely convict on it. Counsel relies on Dibie v State (2007) 29 NSCQR (Pt.11) 1431 at 1438. and Alor v State (1996) NWLR (Pt 445) 726 at 729.