Umar Mustapha Usman V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR DATTI YAHAYA, J.C.A.(Delivering the Leading Judgment)

This appeal arose from the judgment of the High Court of Kogi State, Lokoja, delivered on the 25/3/09 convicting the appellant for the offence of culpable homicide punishable with death, and sentencing him to death by hanging.

The appellant was at the trial court, charged and tried for the offence of culpable homicide contrary to Section 221(a) of the Penal Code. The facts are that on the 10th day of November, 2007, at Lokoja, the appellant approached his father (the deceased) and requested for a cutlass to enable him to clear grass around the house. When the deceased father obliged him, the appellant used the cutlass to inflict “several matchet cuts” on the deceased’s head and face until he died on the spot. Thereupon, the appellant came out brandishing the cutlass which was stained with blood and singing. People feared to approach him. He then cleaned the cutlass and ran away

At the trial, the prosecution called five witnesses and tendered three exhibits. Exhibit 1 is the negative and postcard of the deceased father in a pool of blood, Exhibit 2 is the statement of the appellant recorded at “C” Division of the Nigeria Police Lokoja and Exhibit 3 is the statement of the appellant recorded at the State C.I.D. office, Lokoja.

When the prosecution concluded its case, the appellant gave evidence on his own behalf and also called two witnesses which included his mother.

It is the dissatisfaction with the judgment delivered on 25/3/09 that prompted the appellant to appeal to this court on ten grounds of appeal in the Notice of Appeal filed on the 22/6/09. From these ten grounds, the Appellant, in his Brief of Argument deemed filed on the 23/2/12 by his counsel, C. I Enweluzo, distilled two Issues for determination to be –

1. Whether the prosecution had proved the offence of culpable Homicide punishable with death under Section 221(a) of the Penal Code to warrant the conviction and sentence passed on the Appellant by the learned trial judge.
2. Whether the learned trial judge was right in holding that the defence of insanity does not avail and/or relieve the appellant of criminal liability with regard to the offence for which the appellant was charged at the lower court.

The Respondent’s brief was filed by H.E. Yusuf, the learned Deputy Director of Public Prosecution, on the 22nd of March, 2012. The two issues indentified therein, are: –

1. Whether form the totality of the evidence adduced at the trial, the prosecution has proved the ingredients of the offence of culpable homicide punishable with death contrary to Section 221(a) of the Penal Code beyond reasonable doubt.
2. Whether the defence of insanity which the appellant relied upon, avails him having regard to the circumstances of this case.

The appellant’s Reply Brief was abandoned by the appellant’s counsel on the date of the hearing of this appeal on 12/11/12. It is struck out.

I shall utilise the two Issues identified by the appellant to resolve this appeal.

ISSUE NO. 1

Whether the prosecution had proved the offence of culpable homicide punishable with death under Section 221(a) of the Penal Code to warrant the conviction and sentence passed on the appellant by the learned trial judge.

Learned counsel for the appellant submitted on this Issue, that apart from the three ingredients of the offence of culpable homicide punishable with death enumerated as (i) that the deceased died (ii) his death was caused by the accused and (iii) that the act or omission of the accused and death of the deceased was either intentional or done with the knowledge that death or grievous hurt was a probable consequence, the charge against the accused, must have been properly done, otherwise there cannot be proof “beyond all reasonable doubt”. He referred to OKEKE VS. STATE (2003) 15 NWLR (Pt. 842) 25 at 95 – 96 H – E. Learned counsel submitted that the evidence of PW1, PW4 and PW5, Exhibit 1 and 1 (a) and the evidence of the accused all clearly establish that the deceased has died and that it was the appellant that caused the death. He however agued that the prosecution had failed to prove beyond all reasonable doubt that the act of the appellant which caused the death of the deceased was either intentional or done with the knowledge that death or grievous hurt was a probable consequence. He referred to the evidence of PWs 2, 3 4 and 5 and submitted that none of them was in the room when the killing took place and so none of them could say that the appellant intentionally caused the death of the deceased. Instead counsel argued, the evidence of PW2 and the appellant, show that the appellant and his deceased father were on cordial terms with loving concern for each other and so there could not be any intention to kill him.

Learned counsel for the appellant also argued that the appellant was denied his Constitutional right to have the nature of the offence explained to him in detail and in the language he understands when his statement was to be taken, thereby violating Section 36(6)(a) of the 1999 Constitution. The effect, he argued, is that there was no proper charge and so there could not have been proof beyond all reasonable doubt. He referred to OYEGBU VS. STATE (1995) 4 NWLR (Pt. 391) 510; QUEEN VS. WILCOX (1961) 2 SCNLR 296; STATE VS. OKORO (1964) 1 ALL NLR 423 and OKEKE VS STATE (2003) 15 NWLR (Pt. 842) 25.

In his reply, learned counsel for the respondent, submitted on the authorities of AMALA VS. THE STATE (2004) 6 SCNJ 79 at 88; STATE VS. OLATUNJI (2003) 2 SCNJ 65 and OBIAKORA VS. THE STATE (2002) SCNJ 193 at 202, that the onus is on the prosecution to prove the offence beyond reasonable doubt and that it had done so in this instance. He referred to the evidence of PW1, PW4, PW5 and the appellant, to submit that these have established the two ingredients of the offence beyond reasonable doubt, since they show that one Mustapha Usman, the deceased, had died and that it was the appellant that was responsible for the death. Learned counsel also cited EHOT VS. STATE (1993) 5 SCNJ 65 at 77 – 78 and BUBA VS. THE STATE (1994) 7 – 8 SCNJ 472 at 478 to submit that a person is said to intend the natural consequences of his act. Here he argued, the appellant’s act of striking the deceased with a cutlass in his head and face, shows that he intended to cause the death of the deceased. This proves the third ingredient of the offence he said and urged us to resolve the Issue in favour of the respondent.