Tukur Saleh V The State (2018)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, JSC

This is an appeal against the judgment of the Court of Appeal, Kaduna Division, delivered on the 19th March 2015 affirming the decision of the Jigawa State High Court dated 4th July 2013 convicting the appellant of the offence of culpable homicide not punishable with death and sentencing him to seven years’ imprisonment. The former court will hereinafter be referred to as the lower court and the latter as the trial court.

The appellant was arraigned at the trial court for knowingly causing the death of one Idi Musa by hitting him with a stick on the head being an offence under Section 221(b) of the Pena! Code Law. The prosecution called and relied on two witnesses to prove its case while the appellant gave evidence for himself with no other witness testifying in his defence. At the end of trial, including addresses of counsel, the trial judge convicted and sentenced the appellant under Section 224 of the Penal Code Law of Jigawa State for the offence of culpable homicide not punishable with death.

Aggrieved by the judgment of the trial court, the appellant appealed to the Court of Appeal on a notice dated and filed on the 30th September 2013 containing four grounds.

This is a further appeal arising from the lower court’s judgment affirming the trial court’s decision. Appellant’s notice of appeal filed on 17-4-201.5 is at pages 106 – 108 of the record of appeal containing two grounds.

Parties have filed and exchanged briefs of argument and on identifying same adopted and relied on them as their arguments for and against the appeal.

At paragraph 2.0, page 7 of the appellant’s brief, the two issues on the basis of which the appeal shall be determined have been distilled thus: –

“1. Whether, in view of the entire circumstances of this case, the Court of Appeal rightly affirmed the judgment of the trial court convicting and sentencing the appellant for culpable homicide not punishable with death. (Grounds one and two).

2. Whether in view of the provision of Section 36(6)(c) and Section 36 (6)(e) of the Constitution of the Federal republic of Nigeria 1999 (as amended) was a breach of the Fundamental Human Rights of the accused person.”

At paragraph 2.1.1, page 3 of the respondent’s brief two similar issues to appellant’s foregoing issues are distilled as calling for resolution in the determination of the appeal. The two issues read: –

“Whether considering the evidence adduced before the trial court the learned Justices of the lower court were right in affirming the judgment of the learned trial judge and upholding the conviction of the appellant. Whether having regards to the circumstances of this case, the fundamental rights of the accused

person as to fair hearing has been breached to occasion a miscarriage of justice as to warrant setting aside the judgment of the trial court.”

On the 1st issue, learned appellant’s counsel submits that their appeal being against the concurrent findings of the two courts below succeeds only if the findings are shown to be perverse. The concurrent findings having not evolved from the evidence on record are, learned counsel contends, on the authority of, inter-alia, Abegunde V. The Ondo State House of Assembly & 11 ors (2015) 4-5 SC (Pt 1) 1 at 21 and 22; Mohammed Ibrahim V. The State (2015) ALL FWLR (Pt 779) 1149 at 1175 and Boniface Adonike V. The State (2015) ALL FWLR (Pt 772) 1631 at 1678 – 1679, perverse. The burden of proving the offence against the appellant, it is argued, rests on the prosecution and does not shift. To prove the charge against the appellant, it is submitted, all the ingredients of the offence under Section 224 for which he has been convicted must be established by the prosecution. The ingredients of the offence have not all been proved. Whereas, it is submitted, the first ingredient, the death of a human being, has ceased to be an issue, there is nothing on record warranting the inference by the two courts below that death of the deceased was caused by the act of the appellant. With neither evidence of the type of stick nor the severity of either appellant’s blow or injury on the deceased with the said stick led by the prosecution, proof of the second ingredient of the offence, it is argued, remains lacking. The reasonable inference from this state of evidence, it is further argued, is that the appellant did not kill the deceased. Prosecution’s failure to tender the autopsy report in proof of the actual cause of death of the deceased as well as the discrepancies in the evidence of PWI and PW2 as to the actual time of the death, it is submitted, all detract from the findings of the two courts that the prosecution has made out its case against the appellant. Learned counsel relies on Aiguareghan V. State (2004) ALL FWLR (Pt 195) 716 at 731.

Further arguing the issue, it is asserted that the prosecution had omitted calling witnesses that would have assisted the appellant’s cause. Had some of them been called, it is contended, they would have proffered evidence to show that the consequence of the appellant’s blow on the deceased was negligible and incapable of causing the latter’s death. Citing Nweka Onah V. State (1985) 3 NWLR (Pt 12) 236, Omuaha V. The State (1995) 3 NWLR (Pt 385) 591 and Abdullahi V. State (2005) ALL FWLR (Pt 263) 698, learned appellant’s counsel submits that the only inference to be made from the prosecution’s failure to call the witnesses is that their evidence would have gone against their case. Learned counsel urges that the conviction of the appellant founded on the defective case of the prosecution be set-aside.

On their 2nd issue, learned appellant’s counsel urges that the court invokes Section 122(2)(m) of the Evidence Act 2011 to take judicial notice of the content of the record of appeal from which it is clear that the appellant speaks and understands only hausa language. The language of the court, it is submitted, is English language. Section 36(6)(c) of the 1999 Constitution, it is contended, mandatorily requires that the appellant be informed in a language he understands the proceedings of the trial court. It is a violation of appellant’s constitutionally guaranteed right not to provide an interpreter for that purpose. The record shows compliance with the requirement, it is argued, only at appellant’s arraignment as recorded at page 9