Molo Hu V. The State (1972) LLJR-SC

Molo Hu V. The State (1972)

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UDO UDOMA, J.S.C. 

On 26th May, 1972, we dismissed this appeal for the reasons which we now give.

The appellants, Molo Hu and Ba Hune, were convicted in the High Court of the North-Eastern State, holden at Maiduguri, of culpable homicide punishable with death under Section 221 of the Penal Code in that they caused the death of Gumsora Gwambe, by beating him with sticks knowing that death would be the probable consequence of their act contrary to Section 220 of the Penal Code. They were sentenced to death. They appealed to this Court.

At the trial in the High Court before Hague, (Ag. J.), eight witnesses testified for the prosecution. The appellants did not themselves give evidence. They relied on the statements made by each of them under caution to the Police during the investigation of the case. Each of the statements was admitted in the proceedings and marked respectively Exhibits ‘A2′ and B2’ (English translation); and each of the appellants also called one witness to testify in his favour.

The case for the prosecution briefly is that on or about 7th May, 1970, Gumsora Gwambe, (later deceased) a soldier on leave, went to Mujulu Market in Mubi Division. He was in his army uniform. There occurred a disagreement which subsequently developed into a quarrel over Kolanuts between him and one Aminu. The quarrel resulted in a fight in which several people in the market took part. This was brought about principally because in reporting the quarrel to one Danile Anzibe, the half brother of the second appellant, Aminu had told him that the soldier, Gumsora Gwambe, that is, had threatened to beat him (Aminu) up. In consequence of that report, Daniel Anzibe went and slapped Gumsora Gwambe on the right cheek, which slap the latter was quick to return. Thereupon Daniel Anzibe picked up a stick and hit Gumsora Gwambe on the back of his head, which caused a deep wound under the base of his skull.  Gumsora Gwambe fell down. While on the ground, several people started to beat Gumsora Gwambe.  Daniel Anzibe struck him another blow on the crown of the head, which caused a deep wound on his head.

On seeing what was going on, Ndamasa Mujulu (PW.1), who described himself as the brother of Gumsora Gwambe, intervened. He stopped the fight, separated the people and extricated Gumsora Gwambe from the clutches of his assailants. He helped him unto his feet from the ground and assisted him to leave the market with the intention of returning home.  Gumsora Gwambe immediately set out on his homeward journey accompanied by Ndamasa Mujulu (P.W.1).  He walked, albeit staggeringly as a result of the beating he had received in the market, but nonetheless by himself, from the market to Mizza village – a distance of some two miles. All along the road he was engaged in conversation with Ndamasa Mujulu (P.W.1).  At Mizza, the two appellants, each of whom was armed with a large stick, suddenly emerged from the grass bush wherein they were lying in wait for Gumsora Gwambe.  They both immediately confronted Gumsora Gwambe who was then still in the company of Ndamasa Mujulu (P.W.1) and the following dialogue took place between the first appellant and Ndamasa Mujulu (P.W.1):-

First Appellant:             “I learnt there was a fight in the market.”
Ndamasa Mujulu:         “Yes! But now it is over.”
First Appellant:           “Go, we will beat the man.”
(apparent reference to Gumsora Gwambe)
Ndamasa Mujulu:         “Why”

And without answering that final question, the two appellants fell upon Gumsora Gwambe and began to beat him with the sticks with which they were armed.  Determined to see the end of it all, Ndamasa Mujulu (P.W.1) remained at the spot while the first and second appellants continued to beat Gumsora Gwambe, who was at that time already laid low on the ground as a result of the beating.

When the appellants noticed that Ndamasa Mujulu (P.W.1) was still standing there watching them, the first appellant went in for him. He gave Ndamasa Mujulu (P.W.1)  a slap, which caused the latter to shout for help.  Jauro Kapathi (P.W.2) of Mizza village, a Ward Head, attracted by the shout for help went to the scene of the incident. On arrival, Jauro Kapathi (P.W.2) observed Gumsora Gwambe lying on the ground. He noticed also that he was still being beaten with sticks by the first and second appellants. Gumsora Gwambe was then lying on the right side of his body while the appellants were beating him on the left side of his head and his ribs. Gumsora Gwambe’s body was then covered with blood.  His head was fractured; both his arms were broken; and there was blood also on the ground. Jauro Kapathi (P.W.2) and Ndamasa Mujulu (P.W.1) and both of them succeeded in lifting Gumsora Gwambe off the ground, but the latter could neither walk nor talk. Jauro Kapathi (P.W.2) and Ndamasa Mujulu (PW.1) decided to report the matter to the village head, and did so. For that purpose, Jauro Kapathi (P.W.2) conveyed Ndamasa Mujulu (P.W.1) on his bicycle to the village head. The whole of the episode of the beating of Gumsora Gwambe at Mizza took place towards the evening. Shortly after both Jauro Kapathi (P.W.2) and Ndamasa Mujulu (P.W.1) had left for the village head, Buba Sara Gumba (P.W.6), the senior brother of Gumsora Gwambe with his other relatives went to the spot and conveyed the dead body of Gumsora Gwambe to their home in Kiriya.

The following day, that is, on 8th May, 1970, the matter was reported to the police. Corporal Ibrahim Dauda (P.W.7) together with three other Constables and a Dispensary Attendant, Musa Abdullahi (P.W.4) immediately went to Kiriya Village. There the body of Gumsora Gwambe was examined by the Dispensary Attendant; and afterwards, on the order of Corporal Ibrahim Dauda (P.W.7), the body was interred in the village. The appellants were later arrested and charged and, after due caution, made the statements, Exhibits ‘A’ and ‘B2’ respectively, in the proceedings.

In his statement, Exhibit ‘A2’, the first appellant put up a plea of alibi whereas the second appellant, in his statement, Exhibit ‘B2’, while in substance admitting having seen the fight at the market in the first instance, nevertheless, denied ever taking part in it or ever at any time taking part in beating Gumsora Gwambe subsequently thereafter. Thus the defences consisted of an alibi on the part of the first appellant and of an outright denial of having taken part at all at any time in the beating of Gumsora Gwambe on the part of the second appellant.

In support of his alibi which, incidentally, was rejected by the learned trial Judge, the first appellant called one witness, Yaro Mujulu, a youth of about 17 years of age. His evidence which the learned trial Judge described as unconvincing was disbelieved. In his testimony in support of the second appellant, Dogo Dauba, his only witness, admitted that he was in the market together with the second appellant throughout the first fight and that the second appellant did not take part at all in it. He said he saw Gumsora Gwambe leaving the market after the fight and walking towards Mizza.  He said that he noticed him staggering, falling and getting up but all the same, persistently continuing in his journey towards Mizza.  He said he did not, however, follow him in his journey.

In his judgment, the learned trial Judge examined the evidence given by each witness in the case. He gave careful consideration to the evidence as a whole, and, after resolving a number of discrepancies in favour of the appellants, accepted the case of the prosecution. He placed great reliance on the evidence of Ndamasa Mujulu (P.W.1) and Jauro Kapathi (P.W.2) whom he described as witnesses who were closer to the incidents leading to the death of Gumsora Gwambe.

In dealing with the point as to the condition of Gumsora Gwambe after the fight in the market and as to the effect of the attack on him at Mizza, the learned trial Judge held the view that, while it was not possible to say with precision if Gumsora Gwambe was already in a dying condition when he left Mujulu market, it was, however, possible to say categorically that his chance of survival was totally extinguished by the attack on him in the Mizza area, and that the injuries inflicted upon him there were more dastardly.

We think that this analysis of the evidence on the part of the learned trial Judge was most favourable to the appellants. It seems to us quite clear that, on the evidence accepted by the learned trial Judge, it was inaccurate to describe Gumsora Gwambe as a dying man as a result of the incident in the market. Surely a dying man could not possibly have been able to walk on his own unaided for a distance of two miles, that is, from Mujulu market to Mizza where the attack which was undoubtedly the immediate cause of his death took place. The evidence is clear that Gumsora Gwambe was ambushed and the injuries inflicted upon him were premeditated. The inescapable inference must be that the purpose of the ambush and the attack at Mizza was to kill him because he had escaped being killed in the market.

We would agree with the learned trial Judge that Gumsora Gwambe’s chance of survival, if his condition after the incident in the market could warrant such a description (which we think not, there being no evidence that he was in a dying state), was destroyed by the despicable attack made upon him by the appellants, who must have known that death would certainly and not merely be probably result. There can be no doubt that they had intended that death should be the consequence of their attack on Gumsora Gwambe. We were, the opinion that the appellants were rightly convicted, accordingly dismissed the appeal.

SC.77/1972