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).
- 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
of the record. Subsequently, it is submitted, appellant was not so obliged even in the absence of his counsel. Non-compliance with the constitutional provision, it is contended, goes to the root of the entire trial and same be nullified. Learned appellant’s counsel relies on Adigun V. Attorney General of Oyo State (1987) 1 NSCC 346, Psychiatric Hospital Management Board V. Edosa (2001) 5 NWLR (Pt 707) 612 at 622 – 628, App V. Ogunsola (2002) 5 NWLR (Pt 761) 484 and Ojugbo V. Una (2002) 9 SCNJ 12 at 22.
On the whole, it is urged that the two issues be resolved against the respondent and the appeal allowed.
Responding to appellant’s arguments under the 1st issue, learned respondent’s counsel concedes that it is respondent’s burden to establish beyond reasonable doubt all the ingredients of the offence under Section 224 of the Penal Code Law for which appellant is convicted. In the evidence of PWI and PW2 at pages 17 and 23 which the appellant as DWI corroborates under cross-examination at page 28 of the same
record, submits counsel, lie proof of the 1st and 2nd ingredients of the offence. The trial court’s finding at page 41 of the printed record arising from the evidence which the lower court affirmed, it is further submitted, is beyond reproach. On the last ingredient of the offence, learned counsel contends, the lower court is right to have relied on the decisions of this Court in, inter-alia, Shosimbo V. The State (1974) ALL NLR 603 and Idowu V. The State (2000) 12 NWLR (Pt 680) 48 at 95 in also affirming the trial court’s finding thereon. The evidence of PW1 at pages 17 – 18 and PW2 at pages 23 – 24 of the record vis-a-vis the evidence of the appellant at pages 17 and 29 of the record, it is submitted, also provide the proof of the third ingredient of the offence. Though there was a fight between the deceased and the appellant the law did not entitle the latter to hit the former in the manner he did and which, it is argued, led to the death of the deceased.
In a further response on the issue, learned counsel contends that given the cogent, reliable and authentic oral evidence on the stick the appellant caused the death of idi Musa with, the non-production of the very stick is not prejudicial to the prosecution’s case. The lower court learned counsel submits, cannot be faulted in its reliance on its earlier decision in AAttah V. State (2009) 15 NWLR (Pt 1164) 284 at 303 and the Supreme Court’s decision in Garba V. The State (2000) 6 NWLR (Pt 661) 378 in its finding that failure to tender the weapon used in causing the death of Idi Musa is not fatal to the prosecution’s case.
On the 2nd issue, learned respondent’s counsel submits that the breach of fair hearing the appellant purports to raise around the issue of interpretation of the proceedings from English to Hausa language which the appellant understood is not supported by the printed record of the appeal. Assuming without conceding that there was such an error, it is contended, the error could not have detracted the court from full consideration of the matter before it. A perusal of the record shows clearly as endorsed from page 9 thereof, that the proceedings were adequately interpreted to the hearing and understanding of the appellant at arraignment and when PW1 and PW2 testified at pages 17 – 23 of the record of appeal. By Section 168(1) of the Evidence Act 2011 as interpreted in Akpan V. The State (2002) 12 NWLR (Pt 780) 189 at 202, Nwachukwu V. The State (2002) 12 NWLR (Pt 782) 543 and N.A.F. V. James (2002) 18 NWLR (Pt 798) 295 at 319, the entire record of appeal enjoys the presumption of regularity. In any event, the appellant who was represented by counsel throughout his trial and failed to complain about the non- provision of an interpreter cannot make it an issue now. The law as stated in State V. Gwanto & ors (1983) 14 NSCC 104, Udo V. The State (2006) 15 NWLR (Pt 1001) 179 and Agaragara V. FRN (2007) 2 NWLR (Pt 1019) 586 at 602, learned counsel submits, is not on the side of the appellant.
As a whole, it is urged that the two issues be resolved against the appellant and in consequence the appeal dismissed.
My lords, appeals are won and lost on the basis of misapprehension of fact and/or misapplication of the law to the ascertained facts by the court which decision is being appealed against. Thus an appeal only succeeds where either or both mistake(s) in the decision on appeal as well as the miscarriage of justice the very mistake occasioned are demonstrated by the appellant. Otherwise, the appeal being unmeritorious, is eventually dismissed. Aware of this trite principle, counsel in the instant appeal rightly agree that only perverse findings in the judgment being reviewed which occasioned miscarriage of justice are set aside by the appellate court. It is indeed the law that perverse findings cannot sustain a judgment on appeal. See Jolayemi & ors V. Alaoye and anor (2004) LPELR-1625 (SC); Alhaji Mohammed Mamman V. Federal Republic of Nigeria (2013) LPELR-20082 (SC).
In the instant case, the appellant argues that the respondent having not discharged the burden of proof the law places on it by establishing all the ingredients of the offence of culpable homicide not punishable with death, the lower court is wrong to have affirmed appellant’s conviction by the trial court
under Section 224 of the Penal Code. It is further asserted that the trial court’s failure to provide the appellant an interpreter to translate proceedings into the language he understood constitutes a breach of his right to fair hearing as guaranteed under Section 36 of the 1999 Constitution as amended.
I agree with learned counsel that if these complaints are made out against the lower court’s decision being reviewed this Court will be duty bound to intervene and set-aside the lower court’s findings which ignore the evidence before it or arise in breach of the Constitution. See Baridam V. The State (1994) LPELR-753 (SC) and Udor V. State (2014) LPELR-23064 (SC).
Under his 1st issue, appellant’s grudge is that from the evidence on record nowhere has his act been shown to be the cause of death of Idi Musa in respect of whose death he has been convicted under Section 224 of the Penal Code. Appellant’s conviction in the absence of proof of this essential ingredient of the offence under Section 224 of the Penal Code, it is contended, cannot be sustained. Having been denied the opportunity of seeing the stick the appellant hit the deceased with and or an autopsy report as to the cause of death, it is submitted, the two courts below have erred in their concurrent findings that the prosecution has proved its case beyond reasonable doubt against the appellant. Appellant also avers that the contradiction in the evidence led by the prosecution makes reliance on it impossible. I am unable to appreciate these submissions. Instead, I agree with learned respondent’s counsel that the arguments are misconceived.
It is common ground that the appellant was arraigned at the trial court under Section 221 of the Penal Code for being responsible for the death of Idi Musa and liable on conviction to death sentence. The Section provides:
“221 Except in the circumstances mentioned in Section 222 culpable homicide shall be punishable with death-
(a)If the act by which death is caused is done with the intention of causing death or
(b)If the doer of the act knew or had reason to know the death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.”
The Penal Code in Section 222(4) and (7) provide:
(4) Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.
(7) Culpable homicide is not punishable with death when a person causes the death of another by doing any rash or negligent act.”
Section 220(C) of the Penal Code had provided thus: –
“Section 220 Whoever causes death: –
(C) by doing a rash or negligent act, commits the offence of culpable homicide.”
A cumulative reading of the foregoing Sections justifies the conclusion that an accused person shown to have caused the death of a human being in any of the situations under subsection 4 or 7 of Section 222 of the Penal Code is punishable under Section 224 of the code which provides thus:
“224 Whoever commits culpable homicide not punishable with death, shall be punished with imprisonment for life or for any less term or with fine or with both.”
Both counsel rightly agree that a conviction for the offence of culpable homicide not punishable with death under Section 222(4) and or (7) of the Penal Code enures to the prosecution on their proving beyond doubt: –
(a)The death of the deceased.
(b)The act of the accused that caused the death of the deceased.
(c)That the act of the accused was in the course of a sudden fight and undue advantage was taken by the accused or that death was caused by accused person’s rash or negligent act.
Learned respondent counsel’s reliance on Jammal V. The State (1999) 12 NWLR (Pt 632) 583 and Notes on the Penal Code Law, 4th Edition, annotated by S.S. Richardson 1987 in support of his submission to this end is apposite.
In the instant case, the respondent had relied on the evidence of PWI and PW2, all eye witnesses, to establish that the appellant who was in a quarrel with the deceased had hit the latter with a stick thereby causing him to fall and die. As DWI, the appellant had admitted under cross-examination as follows: –
“After hitting the deceased, I left him and went back home. It was thirty minutes after the incident that I heard Idi Musa had died.”
Having evaluated the evidence of PWI, PW2 and DWI, the trial court at page 41 of the printed record inferred as follows: –
“The proximity of the beating with a stick and the death of Idi Musa was so close and interconnected as to leave no room for any doubt that Idi Musa had died immediately after being hit by the accused or within a very short time after the beating.”
In affirming the trial court’s foregoing finding and more, the lower court held at page 99 of the printed record thus; –
“………(E)ven from the account given by the accused himself in court, the deceased only used his stick to hit him on the fingers of his hand … if the deceased had brandished or attempted to use a more dangerous weapon than a stick against the accused, or even used the stick to hit the accused on a more sensitive part of the body other than the fingers of his hands, then the court could conclude that the accused was in fear of an imminent death or a mortal danger that would warrant the killing of the deceased. But even in his own account the accused callously walked away and went home after hitting the deceased.
The whole picture given by the accused did not amount to an impression of saving his life from a mortal enemy, but dealing with an impudent rival in grazing cows who refused to heed an earlier warning from him. (see pages 43 – 45 of the records).”
The court concluded at page 100 of the print record thus: –
“The evidence led in this matter showed that the act of the Appellant in hitting the deceased on his head with a stick was unlawful, unauthorized and inexcusable in law and it was rash and reckless without due regard or consideration for its consequences. The Respondent thus led credible and cogent evidence to establish the third and fourth ingredients of the offence of culpable homicide not punishable with death beyond reasonable doubt.”
The foregoing concurrent findings of the two lower courts are the basis of appellant’s complaint and submissions under his first issue for the determination of the appeal. \ remain unimpressed with these submissions.
It is trite that material contradictions in the evidence of the prosecution witnesses may disentitle the trial court from convicting an accused person. It does not however lie in the mouth of the appellant who had himself admitted committing the offence to make any issue of the evidence of PWI and PW2 as to the cause of the death of Idi Musa. One further agrees with learned respondent’s counsel that failure to tender the stick the appellant hit the deceased with in the particular circumstance of the instant case is not fatal to the case of the respondent. The appellant had admitted not only what he hit the deceased with but the potency of the weapon as well. See Fatai Olayinka V. State (2007) 9 NWLR (Pt 1040) 561, Victor V. State (2013) 12 NWLR (Pt 1369) 465 and The People of Lagos State V. Umaru (2014) LPELR-22466 (SC).
In sum, the evidence on record, which the appellant even here failed to disparage, establishes the fact of death of Idi Musa as a result of appellant’s rash and negligent act of fatally hitting the deceased with a stick on his head. The concurrent findings of both courts in relation to his conviction under Section 224 of the Penal Code that have not been shown by the appellant to be perverse must resultantly persist. See Ibrahim V. Osunde & ors. LPELR-1411 (SC) and Yesufu V. Adema (2010) LPELR-3523 (SC). In resolving appellant’s first issue against him, the concurrent findings are accordingly further affirmed.
Finally, appellant’s 2nd issue is equally bereft of any substance. It is trite that where an accused who was represented by counsel failed to raise an objection to an unlawful procedure at trial, he will not be allowed to raise same on appeal level. In Jurwode V. The State (2000) 15 NWLR (Pt 691) 467 at 488 this Court particularly held: –
“The appellant was not prejudiced at all… since neither himself nor his counsel ever at any time raised any objection to the absence of an alleged interpreter. Failure of a party as in the instant case, to object to the adverse procedure adopted at the trial debars him from raising it later.”
See also Marcel Nnakwe V. The State (2013) LPELR-20941 (SC).
Being bound by the foregoing decisions necessitates that one finds no merit in appellant’s submissions under his second issue and resolves same against him too.
On the whole, I find no merit in the appeal and dismiss same. The concurrent decisions of the two courts convicting and sentencing him under Section 224 of the Penal Code for the death of Idi Musa are hereby further affirmed.