Musa Yaro V. State (2007)

LAWGLOBAL HUB Lead Judgment Report

G. A. OGUNTADE, J.S.C

The appellant, Musa Yaro, was the first of six accused persons who were brought before the High Court of Kebbi State, Birnin Kebbi on a three-count charge of criminal conspiracy, abetment and culpable homicide punishable with death contrary to sections 97, 85 and 221 (a) of the Penal Code respectively. On 18/1/2000, the appellant and the five other accused persons charged with him pleaded not guilty to each of the counts. Hearing of the case opened on 19/1/2000. The prosecution called eight witnesses. The appellant elected not to testify or call a witness.

The trial Judge, Ambursa, J, on 24-02-2000 in the judgment, found the appellant and the 5 other accused persons with him guilty of the offence of culpable homicide punishable with death under section 221 (a) of the Penal Code. The appellant was accordingly sentenced to death. The appellant brought an appeal against his conviction before the Court of Appeal, Kaduna (herewith referred to as the court below). The court below, on 10-12-03 in its judgment dismissed the appellant’s appeal and affirmed the judgment of the trial court. The appellant has come before this court on a final appeal. The appellant raised three grounds of appeal. The two issues for determination raised in the three grounds of appeal read:-

“1. Whether the learned Justices of the Court of Appeal ought to confirm the conviction and sentence of the trial court. (This issue is distilled from grounds 1 and 2 of the grounds of appeal).

2. Whether the learned Justices of the Court of appeal were right in raising the issue of defences of justification and provocation without affording the parties the right to be heard on the said issue which they raised suo motu. (This issue is distilled from ground 3 of the grounds of appeal). ”

The respondent in its belief adopted the issues for determination as formulated by the appellant’s counsel in his appellant’s brief.

Let me start by examining the case of evidence as laid before the trial court by the prosecution. It was alleged that a group of persons including the appellant had stated that Abdullar Alhaji Umaru (now deceased) had made certain remarks which were insulting to Prophet Muhammed (S.A.W.) and that the deceased ought to be killed for making such remarks. The deceased was killed and the incident was reported to the police on 14-7-99. The appellant and five other persons were arrested for killing the deceased. The evidence of PW5 on the manner Alhaji Abdullar Umaru was killed is particularly eye-opening – At page 51 of the record he testified thus:-

“What I know is that on 14/7/99, I was at my sleeping place at Kardi when one Mr. Bello Dan Nana woke me up and asked me whether I was aware of what was happening and I told him that I didn’t know. He told me that somebody was accused of insulting the Prophet Mohammed (S.A.W.) and asked whether I will go to the place where he was being held. I took my catapult and started going to the scene along with Bello at Shiyar Riyoji where the person who was accused of insulting the Prophet (S.A.W.) was arrested. On my arrival, I found that it was Abdullahi Alh. Umaru of Randali Village who was being held by the 6th accused Suleiman and the 3rd accused Muhammadu Sani. These accused persons pulled Abdullahi Alh. Umaru towards the road leading to Randali on the outskirt of Kardi near burial ground. As Abdullahi was being held there in our presence, the 1st accused Mallam Musa just appeared and said whoever abused the Prophet shall be killed. He read a verse but I can’t bring it as read. On hearing this, Muhammadu Sani (3rd accused) used a matchet which was with him on Abdullah Alh. Umaru on the head and Abdullahi fell down. Then Abubakar Dan Shalla (5th accused) slaughtered Abdullahi with a knife on the neck just like a goat. I saw the knife used by 5th accused in slaughtering Abdullahi but I can’t describe it as he went away with it. When they were sure that Abdullahi died, they all dispersed and ran away. We too left the corpse and went home.”

As I observed earlier, the appellant elected not to testify at the trial. He called no witness but his statement under caution to the Police was tendered in evidence as exhibits J and J1. In the exhibit J1 (which is the translation of exhibit J from Hausa to English, the appellant had said:-

“After official word of caution, I of the above name and address voluntarily wish to state as follows on 14th July 1999 between the hours of 03.00hr I was together with one Abdullahi Salah and Usman Kaza from there Usman Kaza told me that did I know what is happening. Then I asked him what is going on As result of that Usman Kaza told me that somebody by name Abdullahi Alh. Umaru (deceased) he insulted Prophet Mohammed (S.A.W.) after Usman Kaza told me this, myself and Abdullahi Sallah and Sallah and Usman Kaza we left from Kardi that is our village to Randali village where the incident happened to confirm if it’s true. When reaching Randali village we met Sarki Samari named Mamman Dambu: we asked if it’s true that somebody in this village insulted the Prophet Muhamed ‘S.A.W.’ from there he told us that really it’s true then from there Sarkin Samari namely Mamman Dambu told us that we should go to the house of Abdullahi Alh. Umaru, ‘the deceased’. When we reached to the house of Abdullahi Alh. Umaru who insulted the Prophet Mohammed ‘S.A.W’ from there Mamman Dambu used his torchlight in the house of Abdullahi Alh. Umaru. Then from there we did not see him present as result of that somebody by name Abdullahi Maga and one Garba Soja then gives more full insurance that really this Abdullahi Alh. Umaru insulted the Prophet Mohammed ‘S.A.W’ from there, Garba Soja give advice that we should go and (see) inform Dangaladima. When we meet Dangaladima, he told us that he instructed us to get him arrested for him. That is, Abdullahi Alh. Umaru. When we started going, we met with one Bello Aliyu mai Busa and one Shehu Lambega and the rest of them whom I don’t know even their names. After this, Bello Aliyu told us that they have already arrested him, Abdullahi Alh. Umar. But they hide him somewhere else. But we assign one Adamu Aljani and one Musa Kalle and also Dan Bala Matar Kura to take care of him. When we came to the place where they hide him, they brought him out for us. As a result of that, the people of that village started saying let them kill him. Then from there, I gave a suggestion that they should not kill him until we inform our village head. When I brought this suggesting, myself, Abdullahi Adah and one Usman Kaza we went to the vilIage head we explain after we might explain to the village head ‘Inna Lillahi Wa Inn a Illahi Raju’una. From there we asked our village head what did he see. He do not say anything. From there the village head asked us that what did we see Then from there one of us by name Abdullahi Sallah he made mentioned that anybody who insulted Prophet Muhammed ‘S.A.W.’ they Supposed to kill him. After Abdullahi Sallah made mentioned this in the present of the village head. The village head did not say anything, when we came back from Abdullahi Alh. Umaru who insulted the Prophet Muhammed ‘S.A.W.’ when we started going I brought a quotation in the Holy Quran ‘Waman Sabbah Rasu Lillahi Kutila’ Wala Yako Bahu Taubatahu’ after I might given quotation from the Holy Qur’ an they started beating him. Somebody by name Sani Aci B/Kebbi matcheted him with his cutlass, and also one Abubakar Dan Sallah he slaughtered him, and the rest of the people whom I don’t know their names. But I myself I do not beat Abdullahi Alh. Umaru even at once. But definitely I am the person who brought the quotation from the Holy Qur’an or Risalah. This is all about it. Recorded by Det. Shehu Mohammed. Sign 15/07/99”

(this is as it was in the record)

It is apparent from exhibit J1 above that the appellant only admitted that he read a quotation from the Holy Qur’an before the deceased was killed. He did not admit that he killed the deceased. PW5 however testified that, it was the appellant who pronounced the death sentence on the deceased. Further, the 3rd, 4th, 5th and 6th accused persons who were charged with the appellant in their written statements to the police under caution materially implicated the appellant. The statements of the 3rd, 4th, 5th and 6th accused persons were as given in evidence by PW4 served on the appellant.

In exhibit E3, the 3rd accused said:-

“I of the above given name and address wish to add here that, when Abdullahi Alh. Umaru was caught immediately Musa Yaro finished saying that whoever abused Prophet shall be killed, I suddenly used the cutlass which I collected from Musa Yaro when we were checking for Abdullahi. And immediately I finished matcheting the deceased, I returned back the cutlass to Musa’s house and gave it to his son Nasiru Musa to keep it for his father. That’s all.”

In a part of his statement exhibit F1, the 4th accused said:-