Isa Mamman & Ors V. The State

LawGlobal-Hub Lead Judgment Report

A. R. Alexander, C.J.N.

The four above-named appellants were tried in the High Court of the former North-Western State holden at Sokoto before Uthman Mohammed, Acting Judge, on a charge of culpable homicide punishable with death under Section 221(b) of the Penal Code.

The particulars of the offence were that on or about the 10th day of June, 1973 in a farm at Wadaya Village of Gwadabawa District within the North-Western Judicial Division they committed culpable homicide punishable with death by causing the death of Alhaji Tudu by beating him with axes and sticks with the knowledge that his death would be the probable consequence of their acts.

The learned trial Judge found the 1st appellant Isa Mamman, the 3rd appellant Ahmadu Dan-Alu, and the 4th appellant Mamman Dan Mai-Karfi, guilty of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code and convicted them accordingly and sentenced them to death. He further found the 2nd appellant Mamman Dan-Hashi guilty of abetment of culpable homicide punishable with death under Section 221(b) of the Penal Code and convicted him accordingly and sentenced him to death. Each of the four appellants appealed against his conviction and sentence.

It should be mentioned here that the 1st appellant was the 1st accused at the trial, the 2nd appellant was the 2nd accused, the 3rd appellant was the 4th accused and the 4th appellant the 5th accused. The 3rd accused was at the close of the trial convicted of the offence of hurt contrary to Section 246 of the Penal Code and sentenced to a prison term of six months. However, he did not appeal.

The evidence adduced by the prosecution at the trial was as follows. On Sunday the 10th day of June, 1973, the deceased Alhaji Tudu went in a vehicle with nine other persons to a farm near Wadaya Village. There was at the material time an outstanding dispute between the deceased Alhaji Tudu and the 2nd appellant, Mamman Dan-Hashi, over the farm. He reached the farm and met the appellants and others already on the farm planting seeds. The driver of the vehicle stopped it and Alhaji Tudu alighted. The 1st and 4th appellants, who are both sons of the 2nd appellant, got hold of Alhaji Tudu while the 3rd appellant who is the junior brother of the 2nd appellant, struck him on the head with an axe. The deceased fell down and died on the spot. The written report of the State Pathologist, Dr. Yacoub (who performed the post-mortem examination but was not called as a witness) was admitted in evidence under Section 249(3) of the Criminal Procedure Code as Exhibit D1. He found the following injuries-

(1)bleeding from the nose;

(2)bleeding from the mouth;

(3)bleeding from the right ear;

(4)depressed comminuted fracture of right side of occipital bone and right temporal bone;

(5)laceration of brain tissue together with laceration of scalp tissue.

He certified the cause of death and stated that in his opinion death was due to shock due to brain injury. The learned trial Judge thoroughly analysed such discrepancies as there were in the evidence of the prosecution witnesses and, quite rightly in our view, did not find any of them material.

The 1st appellant, Isa Mamman, did not testify on oath in his defence but in his written statement to the Police, Exhibit H2 he said that the deceased instructed his people to kill everybody on the farm, and that it was when one of the servants of the deceased by name Maidama struck at him with a stick that the stick mistakenly struck the deceased. The learned trial judge rightly, in our view, disbelieved this evidence and referred to it as a “frame-up”.

The 3rd appellant, Ahmadu Dan-Alu, also did not testify on oath in his defence, but in his written statement to the Police, Exhibit 2, he said that it was one Audu Wanzame who “cut” the deceased with the axe. His defence was also, in our view, rightly disbelieved by the learned trial Judge having regard to the overwhelming evidence that it was the 3rd appellant himself who struck the deceased a fatal blow with the pointed end of an axe.

The 4th appellant, Mamman Dan Mai-Karfi, denied being at the farm at the material time and relied on the defence of alibi. Again, having regard to the overwhelming evidence of the eye-witnesses of the incident, especially the evidence of Mu’azu, also called Nataro, P.W.9 – under cross-examination – that the 4th appellant knew him and that he knew the 4th appellant before the incident, the learned trial Judge, quite rightly in our view, rejected this defence of alibi as “fiction”.

Having accepted the case for the prosecution and rejected the respective defences of the 1st, 3rd, and 4th appellants, and based his findings of fact on the evidence adduced by the prosecution, the learned trial Judge could have come to no other conclusion but that the 1st, 3rd, and 4th appellants were guilty as charged and they were accordingly rightly convicted and sentenced to death. Their appeals were therefore dismissed and their convictions and sentences affirmed.

However, in regard to the 2nd appellant, Mamman Dan-Hashi, the learned trial Judge said in his judgment –

“I am satisfied also that the evidence adduced by the prosecution has established a case of abetment to culpable homicide punishable with death under Section 221(b) of the Penal Code against the 2nd accused person, Mamman Dan-Hashi. The 2nd accused has been shown by circumstantial evidence to have instigated his two sons and two brothers to kill Alhaji Tudu, an attempt of which he had done earlier with a horse without success. I entertain no doubt in coming to the conclusion that the 2nd accused has abetted Isa Mamman (1st accused) Mamman Dan Mai-Karfi (5th accused) and Ahmadu Dan-Alu (4th accused) in killing Alhaji Tudu. As I have found Isa Mamman (1st accused) Mamman Dan Mai-Karfi (5th accused) and Ahmadu Dan-Alu (4th accused) guilty of causing the death of Alhaji Tudu, I hereby find the 2nd accused Mamman Dan-Hashi guilty of abetting Isa Mamman (1st accused) Mamman Dan Mai-Karfi (5th accused) and Ahmadu Dan-Alu (4th accused) of the said offence and convict him accordingly.”

Now ‘abetment’ is defined in Section 83 of the Penal Code as follows –

“A person abets the doing of a thing, who –

(a)instigates any person to do that thing; or

(b)engages with one or more other person or persons in any conspiracy for the doing of that thing; or

(c)intentionally aids or facilitates by any act or illegal omission the doing of that thing.”

The evidence on which the learned trial Judge based his findings against the 2nd appellant in regard to “abetment” and “instigation” consists of –

(1)the evidence that the 2nd appellant had sometime before the incident galloped his horse and knocked over the deceased, Alhaji Tudu who was admitted into Sokoto General Hospital where he received treatment for the injuries thereby sustained;

(2)the evidence that a case against the 2nd appellant arising therefrom was to have been heard on Monday, the 11th of June 1973 and that the deceased was killed on the day before by the 1st, 3rd and 4th appellant;

(3)the evidence that the 1st and 4th appellants are his sons and the 3rd appellant his junior brother;

(4)the evidence that the 2nd appellant admitted that he had an outstanding dispute with the deceased over the farm at which the deceased was killed.

On the basis of this evidence which was accepted by the learned trial Judge he presumed that the 2nd appellant (who was the 2nd accused at the trial) had instigated the other appellants to kill the deceased because, according to him “all these accused persons could be under his control and influence”. He went on to say in his judgment –

“I am therefore of the view that there is strong circumstantial evidence that the 2nd accused Mamman Dan-Hashi had instigated and therefore abetted the murder of the deceased.”

He however conceded that –

“There is no reliable evidence that the 2nd accused had physically participated in the killing.”

He went on to observe –

“In this case the 2nd accused who lives at Tajaye Village was seen immediately after the murder of Alhaji Tudu in Wadaya Village which is a few yards away from the farm where the deceased was killed, —– P.W.7 said that the 2nd accused was in a very hostile mood when he met him.

The District Head conveyed the 2nd accused among others to Gwadabawa. This establishes to me that the 2nd accused was at the time of the killing of Alhaji Tudu within the vicinity of Wadaya Village. His presence there, which is not the village he lives has given a strong inference that it was not coincidental — I am satisfied that there is reliable circumstantial evidence for me to infer that the 2nd accused had instigated the 1st accused, the 3rd accused, the 4th accused, and the 5th accused to kill Alhaji Tudu.”

Learned counsel for the 2nd appellant argued two grounds of appeal as follows –

(1) “that the decision is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence, and

(2) that the learned trial Judge misdirected himself generally on the principles of law relating to circumstantial evidence in criminal cases, and this misdirection occasioned miscarriage of justice.”

He contended that the evidence adduced at the trial against the 2nd appellant was too remote and did not connect him with the incident before the trial court. He submitted that the finding by the learned trial Judge that the 2nd appellant “was at the time of the killing of Alhaji Tudu within the vicinity of Wadaya Village” was too vague, and that there was no evidence to indicate more precisely the distance the 2nd appellant actually was from the scene of the crime at the material time, so as to show whether or not he could have had the opportunity to participate or abet. The incident in regard to the galloping of the horse by the 2nd appellant over the deceased, thereby causing him physical injury was, he argued, too remote from the incident before the trial court. The 2nd appellant, in his defence, denied on oath knowing anything about the matter and the trial court conceded that there was no reliable evidence that the 2nd appellant had physically participated in the killing.

The learned Acting Deputy Solicitor-General, Sokoto State, was unable to advance any argument of substance and ultimately conceded that he could not support the conviction and sentence of the 2nd appellant.

In our view, although there may have been evidence of motive (the dispute over the farm) and malice or illwill towards the deceased (the incident of the galloping horse) there was no reliable evidence of opportunity, and certainly no evidence whatever of any act or omission, speech or utterance, on the part of the 2nd appellant that could connect him either direct or indirectly with the commission of the offence of culpable homicide punishable with death, with which the appellants were charged, or with abetment of any such offence.

In R. v. Moses (1960) 5 FSC 187, R. v. Ororosokodo (1960) 5 FSC 208, and Abieke and Ezere v. The State (1975) 9-11 S.C. 97, this court was of the opinion that the evidence adduced by the prosecution fell short of the standard required by law. In the present case we were clearly and firmly of the view that the evidence relied on by the learned trial Judge as circumstantial evidence and as being sufficient to support a conviction for abetment of culpable homicide punishable with death related to no more than mere circumstances of suspicion, and that there was no evidence to support the conviction.

For the foregoing reasons, we allowed the appeal of the 2nd appellant, Mamman Dan-Hashi, set aside his conviction, and directed that a verdict of committal be entered, in his case.

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SC.383/75