The State V. Babawuro Usman (2004)

LawGlobal-Hub Lead Judgment Report

IFEYINWA CECILIA NZEAKO, J.C.A.

On the 24th of November, 1995, Oluoti, 1., sitting at the High Court of Justice,  Jalingo, Taraba State, delivered judgment in charge No. GGSJ/10c/90. The accused, the respondent in the main appeal herein, was  found guilty of the offence of culpable homicide pursuant to section 220(b) of the Penal Code punishable under section 224 of the  Code. He was sentenced to 11 years imprisonment. This was not the offence for which he was arraigned. The charge was for the  offence of culpable homicide punishable with death, under section 221(a) of the Penal Code. It related to the accused, causing the  death of his wife, Aminatu Babawuro. Dissatisfied with the judgment of the High Court, the State appealed to this court on four (4)  grounds.

The appellant, that is to say the State, filed its brief of argument on 28/10/96. It took the convict/respondent over six years before  taking any steps towards reacting to the appeal. He obtained leave of this court for extension of time to cross-appeal and to file his  brief of argument on 13/1/2003. His notice of cross-appeal and his cross-appellant’s brief were both filed on 10/2/2003.
In reaction to the cross-respondent’s brief of argument, the appellant/cross-respondent filed a cross-respondent’s brief on  17/4/2003.

When the appeal came up for hearing on 13/1/04, learned Counsel for the appellant, S. Haruna, Esq., Director of Public Prosecution,  (DPP) Taraba State, adopted his brief of argument. He urged this court to allow the appeal. He also adopted his cross-respondent’s  brief and urged the court to dismiss the cross-appeal.

For the respondent/cross-appellant, learned Counsel M. Igbokwe, Esq., adopted his brief of argument and the cross-appellant’s brief  filed on 12/4/2003. He also urged the court to examine paragraphs 5.3 and 5.4 of the cross-respondent’s brief of argument. He  submitted that the contents ought to move the court to allow the cross-appeal and dismiss the main appeal, as they portray an  agreement between the appellant’s and respondent’s submissions regarding miscarriage of justice caused the delay by the trial  court in delivering’ the judgment.

He submitted that the case of Chime v. Chime (2001) 1 SC (Pt.11) 1; (2001) 3 NWLR (Pt. 701) 527, relied on by the appellant’s  Counsel on the issue of jurisdiction is distinguishable and, he urged this court not to follow it. Learned Counsel sought and obtained  leave to cite an additional authority, the case of Emenamaya v. Okoroji (1987) 2 NWLR (Pt. 59) 6 at 15 SC, which should be applied.

Mr. Haruna replied that the miscarriage of justice complained of was not against the respondent and that the similarity in the  submissions of both parties must be viewed against that. In their briefs of argument, learned Counsel for the parties had identified  issues for determination. For the main appeal, the appellant’s two issues are distilled as follows:
(d) Whether or not, the learned trial Judge was justified in law, in holding that “intention to cause death” the mens rea for the offence  of culpable homicide with death under section 221(a) of the Penal Code had not been proved by the prosecution beyond reasonable  doubt to ground a conviction of the accused under the said charge as laid. (From grounds 1 and 4).
(e) Whether or not, the trial court was correct in law, to have veered-off course and to act on speculations and possibilities, rather  than on the concrete evidence before it in arriving at the conclusion as it did that the accused was not guilty of the offence charged,  but guilty of culpable homicide under section 220(b) of the Penal Code punishable under section 224 of the Penal Code, when it  found that none of the exceptions under section 222 of the Penal Code applied. (From grounds 2 and 3).

For the respondent/cross-appellant, the following 2 issues were distilled from the 4 grounds of appeal and the cross-appeal:
1. From the main appeal:-
Did the prosecution prove its case against the accused/respondent, beyond all reasonable doubt to ground a conviction under  section 221(a) of the Penal Code?
2. From the cross-appeal:-
Was the proceedings in this case and the judgment entered therein a nullity?

The appellant/cross-respondent viz the State, which filed its cross-respondent’s brief of argument on 17/4/03 had also identified two  issues from the cross-appeal, thus:-
A. Whether or not, the entire proceedings in this case and the judgment entered on 24th October, 1995, convicting the  cross-appellant was a nullity. (From ground 1 of the cross-appeal).

B. Whether or not, the failure of the learned trial Judge to comply with the provisions of section 258(1) of the 1979 Constitution,  occasioned any miscarriage of justice against the cross-appellant thereby, rendering the entire proceedings a nullity. (From ground 2  of the cross-appeal).
Before taking up the issues, let me recount some of the facts relevant to this matter.

The respondent/cross-appellant, the accused in the court below, was charged under section 221(a) of the Penal Code with the  offence of culpable homicide punishable with death for killing his wife, Aminatu, sometime in 1990, in Jalingo, within Jalingo Judicial  Division. Jalingo, was then in Gongola State. It is now in Taraba State of Nigeria, being its capital. The prosecution called 6  witnesses who testified at the trial. Among the witnesses, PW1, Abubakar Bakari who was the houseboy of the accused, gave  uncontradicted evidence of what transpired. He testified that on a Saturday night, in the month of May, 1990, he heard Aminatu  Babawuro, the wife of the accused crying. The crying later stopped.

The accused later called him, PW1. When he came into the  parlour of the accused’s house, in response, he saw the dead body of Aminatu, the accused’s wife lying there in a pool of blood. The  accused asked him to help him carry the corpse into a grave. The grave already dug was in the compound of the accused. This, he  did. The accused warned him not to tell any one that he had killed his wife and that if he did, whatever happened to him, he would  have himself to blame. He should tell anyone who enquired after his wife that she had gone to the hospital and had not returned.  PW1 further testified that on the 2nd of June, 1990, the accused went out of his house, leaving his little dog. The dog then went to the  grave, where the deceased was buried and started digging and before the accused returned, the dog had reached the hand of the  corpse. Then, the accused went to the Nigeria Police in Jalingo and reported and a policeman came back with him to the house and  looked at the grave. The police came back the next morning with other policemen to the accused’s compound and dug the grave and  found the body which the accused said was that of his wife, Aminatu.
Thereupon, PW1 was taken to the police station with the accused.

PW6, was a medical doctor, who performed a post-mortem examination of the body of the deceased, Aminatu after it was dug out.  This is another vital evidence. The corpse, found in the grave about 2 feet deep, was examined there. When it was taken out, it was in  an advanced state of decomposition. The skin was broken at one spot on the neck, there, being a straight wound, about 5cm deep  and 3cm long and on the right side of the neck. In the doctor’s opinion, death was caused by severe blood loss (hemorrhage) from  the injury on the neck which might have been caused by a sharp object. Other prosecution witnesses, PW2, 3, 4 and 5 also testified.

For the defence, the accused testified for himself and called no witness. His evidence was a denial of the charge. He said nothing  whatsoever about the evidence of PW1 or PW6. His testimony was to the effect that sometime in May, 1990, he reported to the police,  the missing of his wife from home. He could not find her at home, where he left her in the morning, when he went to Dong. Although,  his house boy, PW1 had informed him that she left home saying she was going to get some medicine from the town, she had not  returned. He said he had reported this to her relations, but no one knew her whereabouts. Sometime in June, about 1/6/90, his  attention was drawn by a woman who was in his compound to some digging by his little dog. The dog had been digging out  something which was causing some stench from a spot in his compound. This he reported to the police and when three (3)  policemen came to investigate, what they dug out turned out to be his wife’s dead body.
Under cross-examination, regarding the testimony of PW1, the accused did not address the evidence.