The State V. Musa Danjuma (1997)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The respondent, Musa Danjuma, was arraigned before Ja’afaru J of Kaduna High Court for the offence of culpable homicide punishable with death, contrary to section 221 (b) of the Penal Code. At the end of the trial the learned trial Judge found that the prosecution had failed to prove the essential ingredients of the offence charged and also that he entertained doubt as to whether death was caused by act of the accused, now respondent in this appeal. He found the accused not guilty and discharged and acquitted him.

The State appealed against the decision of the High Court to the Court of Appeal, Kaduna Division. After considering all the submissions made before it the Court of Appeal, per the lead judgment of Ibrahim Tanko Muhammad, J.C.A., allowed the appeal and convicted the respondent of the offence of culpable homicide not punishable with death, contrary to section 224 of the Penal Code.

The court sentenced him to a fine of N5,000.00 or two years imprisonment. The State, armed with two grounds of appeal, further appealed to this court against both the conviction and sentence passed by the Court of Appeal. The following issues have been raised by the appellant’s counsel for the determination of the appeal:

“1. Whether the learned Justices of the Court of Appeal, Kaduna Division rightly exercised its (sic) discretion when it (sic) convicted and sentenced the respondent under Sections 222 (4) and 224 of the Penal Code respectively, when its (sic) findings support section 221 of the Penal Code

2. Whether the learned Justices of the Court of Appeal, Kaduna Division exercised their discretion judicially and judiciously when it (sic) sentenced the respondent to only N5,000.00 (five thousand naira) or two years imprisonment in default for an offence punishable under Section 224 of the Penal Code”.

Learned Counsel for the respondent, Chief Ajala, SAN, in the respondent’s brief, argued that only one issue will encompass the two grounds of appeal. The issue was couched thus:

“Whether the learned Justices of the Court of Appeal were not in error by convicting the respondent for a lesser offence under section 222(4) of the Penal Code and in the exercise of their discretion wrongly sentenced the respondent to a fine of N5,000.00 (Five Thousand Naira) or two years imprisonment in the alternative”.

The facts of this case and the conclusions of the two lower courts call for re-evaluation of the evidence adduced by both sides before the trial court. I will set out the facts so far as they are material to the issues raised in this appeal. For ease of identification and appraisal of the evidence I will refer to the respondent as the accused in this judgment.

The prosecution’s case was presented through six witnesses. The first prosecution’s witness is a police officer, Michael Ochekwu, who, after the police authorities received a petition from the father of the deceased, was detailed to re-investigate the case. He told the trial court that he arrested the accused and recorded his statement under caution. The police officer brought to court some pieces of clothes which were tendered as Exhibit 3. The exhibit was of no value to the prosecution’s case because they were not sent to forensic science laboratory for analysis even though some stains looking like blood were seen on it. The police investigator also received what was alleged to be a blood stained knife and it’s scabbard and passed it over to an exhibit keeper. The knife was tendered as Exhibit 2. The cautioned statement made by the accused is the same as his evidence-in-chief. Therefore the evidence of this police witness has not materially improved the case of the prosecution.

P.W.2, P.C. Ishaku Mayor, was the constable who, on the day of the incident, 8th December, 1993, received a complaint from one Sani Ibrahim that the accused had stabbed the deceased to death. Sani Ibrahim was never called by the prosecution to confirm this story. P.W.2 took the corpse to ABU Teaching Hospital for post mortem examination. One piece of evidence which came from P.W.2 and which supported the defence was that it was the accused who brought a knife and it’s scabbard to the police station. He alleged that it was the knife used by the deceased during the fight.

The next witness was the father of the deceased who narrated how Garba Adamu, P.W.4, and one Sani Ibrahim brought his son after the incident to him and he directed them to take him to the hospital. The deceased had not died by then. In his testimony the father agreed that P.W.4 and Sani Ibrahim were deceased’s friends and that they used to move together.

The evidence given by two witnesses, P.W.4 and P.W.5 is most vital for the case of the prosecution. They are both butchers and were at the scene during the incident. P.W.4 said that he was on a motorcycle together with the deceased when they came to Bayajidda Street, in Kaduna and they saw the accused. He continued in his testimony thus:

“He saw the accused. He waived him. Abubakar asked Musa “should I come and collect my money” Musa said “Yes”. I alighted from the motorcycle. I sat by the side close to the man selling oranges. I saw the accused (Musa) rushed towards Abubakar’s place. On reaching there, Abubakar was to lock the machine. I saw Musa stabbing Abubakar with a knife. Abubakar was shouting and heading towards a hospital by name Alheri, he fell down. People were running. Musa took a different direction. We followed Abubakar where he fell down. We carried him on a motorcycle. We took him to their house, i.e. His father’s house. We saw the father (P.W.3) with some people sitting. We narrated to him what happened and he said we should take him to the Hospital. ”

During cross-examination, P.W.4 admitted that there were many people at the scene. But Sani Mohammed was standing alone on another machine. There was no street light but he saw the accused stabbing the deceased. He however disputed the allegation that he, the deceased and Sani Mohammed belonged to a criminal gang.