Mudassiru Suleiman V. Kano State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Kano State in Suit No K/16C/2009 delivered by Honourable Justice Yusuf Ubale on the 28th of March, 2012.

The Appellant was arraigned before the lower Court on a one count charge of culpable homicide punishable with death under Section 221 of the Penal Code and he was alleged to have killed one Usman Shehu Aliyu on the 11th day of May, 2008 at Hausawa Quarters in Tarauni Local Government Area of Kano State by stabbing him with a knife on the chest.

The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial.

The Respondent called six witnesses and tendered exhibits in proof of the charge while the Appellant called three witnesses, including himself, in proof his defence. At the conclusion of trial, the lower Court found the Appellant guilty as charged and sentenced him to death. The Appellant was dissatisfied with the judgment of the lower court and he filed a notice of appeal dated the 22nd of May, 2012. The notice of appeal contained five grounds of appeal.

In arguing the appeal before this Court, Counsel to the Appellant presented a brief of arguments dated the 15th of November, 2013 and it was filed on the 21st of November, 2013 and it consisted of thirty three pages. In response, counsel to the Respondent filed a brief of arguments dated the 15th of January, 2014 and it consisted of twenty three pages. At the hearing of the appeal, counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments in arguing the appeal.

Counsel to the Appellant formulated two issues for determination in his brief of arguments and these were:

i. Whether the Respondent has proved the offence of culpable homicide beyond reasonable doubt against the Appellant in this case and the lower Court has rightly convicted and sentenced the accused for the offence.

ii. Whether the trial court properly considered and rightly dismissed the defence of provocation and self defence raised by the accused person in this case.

Counsel to the Respondent agreed, in principle, with the two issues formulated by counsel to the Appellant and counsel only reformulated the first issue for determination to read:

Whether the Respondent has beyond reasonable doubt proved the offence of culpable homicide punishable with death against the Appellant in this case?

In arguing the first issue for determination, Counsel to the Appellant stated that the tenor of the evidence led at trial was that the Appellant stabbed the deceased with a knife on the chest which resulted in the death but that the Respondent led no evidence on the recovery of the knife and no attempt was made to tender the knife in evidence and thus the lower Court was unable to confirm if the instrument used was indeed a knife and could not confirm the cause of death of the deceased.

Counsel stated that this was fatal to the case of the Respondent and that the Respondent therefore failed to prove offence against the Appellant beyond reasonable doubt and the lower Court was wrong to have convicted him and he referred to the cases of Stephenson v. Police (1966) 2 ALL NLR 261, Sunmola Ishola v. The State (1969) 1 NMLR 259, Ignatius Uwa Vs COP (1972) 2 ECSLR 727. Counsel stated further that there was clear evidence on the record that it was the deceased that started the fight that led to the death and that the Appellant had no intention against the deceased and that as such the Respondent failed to establish any malice aforethought which is an essential ingredient of the offence and he quoted extensively from the case of Amayo Vs State 8 NSCQR 431, and referred to the case of Queen Vs Nwaugoagusu (1962) 1 All NLR 294.

Counsel stated that the essential ingredients of the offence against the Appellant must be proved beyond reasonable doubt and that this burden was on the Respondent, and it never shifted, to prove not only that the act of the Appellant could have caused the death but that it certainly did and that if there was a possibility that the deceased died from other causes than the act of the Appellant, the Appellant is entitled to an acquittal and he referred to the cases of Ononuju Vs State (1964) 1 All NLR 5, Onyenankeya Vs State (1964) NMLR 34, amongst others. Counsel stated that cause of death can be proved by direct evidence such as a medical report or by circumstantial evidence and that where medical evidence is inconclusive on whether it was the injury inflicted on a deceased by an accused person that led to the death, the court has a duty to examine the evidence before it and draw necessary inferences and he referred to the cases of Adekunle vs State (1989) 5 NWLR (pt 123) 505, Essien Vs State (1984) 3 SC 14, amongst others. Counsel stated that in the instant case, the Respondent failed to prove an intent to kill on the part of the Appellant and did not establish with certainty the cause of death and that certainty was an essential ingredient in proof of criminal liability and he referred to the cases of R Vs Thomas Torto 12 WACA 93, Gabriel Vs State (1939) 12 SCNJ 33, Ogundiyan Vs State (1991) 4 SCNJ 44, amongst others.