ABDULLAHI MUSA v. THE STATE (2012)

ABDULLAHI MUSA v. THE STATE

(2012)LCN/5563(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of July, 2012

CA/K/313C/2011

RATIO

JUSTICE: ON WHOM LIES THE BURDEN OF PROVING MISCARRIAGE OF JUSTICE

The Supreme Court in LAWAL v. THE STATE (1965 – 1966) 4 NSCC 111, 113 – 117 adopted the principle stated by LORD SIMON, LORD CHANCELLOR IN STIELAND V. D.P.P. (1944) A.C. 315, 327 – 328 and held that miscarriage of justice had occurred. In LAWAL V. STATE, it was held that

“If no inadmissible evidence had been received it would have been for the appellant to satisfy the court that there had been miscarriage of justice……… PER AHMED OLAREWAJU BELGORE, J.C.A.

COURT: PRIMARY DUTY OF A COURT SEISED OF A CRIMINAL TRIAL

It was held by the Supreme Court that the primary duty of a Court seised of a criminal trial is to consider the defence raised by the accused person and any defences apparent from the totality of the evidence adduced in the case. PER AHMED OLAREWAJU BELGORE, J.C.A.

JUSTICES

ABOKI ABDU Justice of The Court of Appeal of Nigeria

AHMED OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

Between

ABDULLAHI MUSA Appellant(s)

AND

THE STATE Respondent(s)

AHMED OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment): This is a case of homicide where the accused person (now “The Appellant’) was charged before Kano State High Court (Now “The Lower Court’) presided over by Honourable Tani Y. Hassah, J. The charge reads thus –
“That you Abdullahi Musa on or about 28th November, 1998 about 06:30 hours at Hajj Camp Market Fagge Local Government, Kano State within Kano Judicial Division committed the offence of culpable homicide punishable with death in that you caused the death of one SHU’AIBU MUHAMMED by doing an act to wit: beating and stabbing to death on the forehead and neck with the knowledge that his death would be probable and not only likely consequence of your act and thereby committed an offence punishable under section 221(b) of the penal law”.
The case was first mentioned in court on the 16th day of November, 2000. On 11th November, 2002, the learned trial judge was informed about the mental condition of the Appellant and an order was made instantly directing the Registrar of the court to write a letter to Psychiatric Doctorat Dawanau Hospital for the observation of the state of health of the Appellant.
The Psychiatric Doctor was also directed to inform the court about his opinion about the mental condition of the Appellant. Thereafter, the case suffered services of adjournments spanning the period from 11th November, 2002 to 30th October, 2008 before the plea of the Appellant was taken.
The medical opinion issued by the medical Director, Kano State Psychiatric Hospital, Dawanau was stamped “RECEIVED” at the foot of page 1 of the report on 4th February, 2003. I have checked the entire record but could not find any further report about the mental condition of the Appellant, except that Mrs. B. B. Wudil, learned counsel for the State, informed the lower Court on 30th October, 2008 in the following manner –
*WUDIL:- case for mention. We ask that the plea of the accused be taken as he is now fit for trial”.
In response, S. M. Al-Hassan Esq., for the Appellant, responded thus –
“We are ready”.
Thereafter, the record for the day’s proceedings show the following:-
*COURT:- The charge is read to the accused in Hausa Language and he said he understood the content.
ACCUSED’S REPLY:- I am not guilty.
WUDIL:- The accused person plea not guilty to the charge. We are applying for a date for Hearing.
AL-HASSAN:- No objection.
COURT:- Case is adjourned to 24th November, 2008 for Hearing.
Signed:-
Hon. Judge
30th October, 2009″.
The first prosecution witness, PW1 was taken on 4th February, 2009. The taking of this witness, a Police Officer, was consequent upon an application by the prosecution anchored on section 237 (1) (b) of the Criminal Procedure Code because the witness who was supposed to testify had left service. Through this witness a statement of the Appellant was tendered and without objection from the defence it was admitted in evidence as Exhibit “A”. Exhibit “A” was dated 21st December, 1998. PW2 was taken on the 2nd day of April, 2009. He is one Surajo Ibrahim. He is a businessman and was the Chairman of the Hajj Camp Market, Kano who was informed that the Appellant had slaughtered the guard, Mallam Shu’aibu. He went there and with other people saw the corpse of the deceased and they went to Airport Police Division and reported the matter. He stated he and one Inuwa Kassim (late) and Nasiru Suleiman Kofa reported to the Police. According to him, the Appellant could not be found at that time but he was subsequently arrested when two days later one Alhaji Sule spotted him around “railway” and reported to the Police at metro and when he told “us” at the camp “we” reported to Airport Police Division.
It was at this stage that the learned counsel for the prosecution applied to tender the statement of the Appellant from the Bar, because the I.P.O, who was to testify next could not be traced and that when the list of all Police Officers was gone through, his name could not be traced. This was objected to by the defence on the ground that the defence would not be able to cross examine the witness. At this stage, learned counsel for the prosecution sought an adjournment to enable her produce her authority for the application. When the court re-covered on 4th May, 2009, learned counsel for the prosecution informed the court that the statement she wanted to tender from the Bar was not that of the Appellant but that of the I.P.O. The defence vehemently objected to the application, but the lower court under the banner of relevancy overruled the defence and admitted the statement in evidence as Exhibit “B”. Thereupon, the prosecution closed their case.
The Appellant testified in his own defence as DW1. He said his name is Abdullahi Musa and he was about 37 years old. He denied killing Shu’aibu Muhammed. All he could remember was that he was arrested by a traffic warden at Bata, Sabon Gari, Kano and taken to Railway Police Station. At the point of his arrest and at the Railway Police Station, he was not informed of the offence he committed and he was not asked to make a statement. From railway Police Station he was taken to Airport Police Station by a Police Officer, At the Airport Police Station he was not told the offence he had committed but some people came to tell him that what he did was wrong. It was one Kauri Man, Yawale and another person who told him what he did was wrong because he killed their guard, Shu’aibu. These people are members of our Union at the Hajj Camp. He was taken to the State C.I.D, until he heard it from some people there. At the C.I.D. he was not asked any question and did not make any statement, but he was given a paper to thumb print which he did. He had earlier told the court that he is an illiterate. He could not remember when he was taken to Gidan Murtala; could not remember when he started coming to court; and could not remember when his lawyer visited him at the prison. He could not recall when he asked the lower court to be given soap to wash his cloths. He had earlier told the lower court that he was a car washer at the Hajj Camp.
Under cross-examination, the Appellant told the court that he is a native of Kazaure and he used to visit Kazaure after 3 or 4 months. He is married and has a daughter, Fatima whose age he did not know but said he got married about 20 years when he was testifying.
No witness testified for the defence apart from the Appellant himself.
Final addresses, in writing, were adopted on the 19th day of June, 2009 and the matter was adjoined to 29th day of June, 2009 for judgment.
The judgment of the lower court was delivered on 29th June, 2009 whereby the learned trial judge found the Appellant guilty as charged and convicted him accordingly.
The lower court finally reduced the punishment to that of manslaughter and sentenced the Appellant to life imprisonment.
By leave of this Honourable Court granted on the 10th day of October, 2011, a notice of appeal containing 14 grounds of appeal was filed on the 18th day of October, 2011 challenging the judgment of the lower court.
Parties filed their respective brief and adopted same at the hearing of the appeal. In the Appellant’s Brief of Argument, settled by Nassir Abdu Dangiri, five issue are formulated, namely –
(i) Whether the addition of the word “DANSUDAN” or Alhaji Abdu Dansudu to the name of the accused/appellant which is an alias of the accused/appellant qualify or amount to or tantamount to alteration or amendment to the charge requiring the trial court to call on their (sic) accused/appellant to plead to a fresh charge.
(ii) Whether the evidence called or given by the prosecution showing that the accused/appellant was a man of bad character, given to acts of violence who killed his wife and friend when the accused/appellant was not standing trial for those offences do not amount to miscarriage of justice against the accused/appellant.
(iii) Whether the fact that there was a fight between the deceased and the accused/appellant which the prosecution and the Police refused and for failed to investigate is not enough ground for the learned trial judge to convict and sentence the appellant to lesser terms of imprisonment instead of life sentence
(iv) Whether the trial court properly considered all the defences available to the accused/appellant before convicting and sentencing him to life imprisonment.
(v) Whether from the facts and circumstances of this case especially the failure of the trial judge to consider the issue of the mental condition of the appellant, the trial judge was right in holing that prosecution has proved its case against the accused/appellant beyond reasonable doubt.
In the Respondent’s Brief of Argument, settled by Suraj Sa’eda Esq. learned Solicitor General, Ministry of Justice, Kano State, for the Respondent, the issues as formulated for the Appellants were adopted and argued.
Learned Counsel for the Appellant argued issues i and ii separately and argued issues iii, iv and v together.
ISSUE No, 1
It is submitted for the Appellant that since the Appellant stated under cross – examination that “Apart from Abdullahi Musa, I am also called Dansudan—” and he also earlier in his statement to the Police, Exhibit A, stated that he is also called or known as Alhaji Abdu Dansudu, the charge should have been read over to him in order to take a fresh or new plea from him because the introduction of these two names which are an alias amounts or tantamounts to an alteration or amendment of the original charge. It is submitted that the continuation of the trial of the Appellant after the addition of word “Dansudan” rendered his trial null and void on the ground of non-compliance with the provisions of sections 207 and 208 of the Criminal Procedure Code (CPC) Cap. 37, Laws of Kano State, 1991. It is further submitted that failure to comply with the provisions of these two sections must lead to (or carry its inevitable consequences, relying on ERONINI V. THE QUEEN (1953) W.A.C.A, 366, 369 quoted with approval by the Supreme Court in OKEGBU v. THE STATE (1979-81) 12 NSCC 151, 156, 157 – 159, 160, 169 – 169 – 171 AND 177. It is submitted that a fresh or new plea ought to have been taken.
On this issue, it is submitted for the Respondent that the charge was not amended or altered at all and the Court is urged to so hold.
ISSUE II
It is submitted that the learned trial judge was wrong to have alluded to the portion of Exhibit A which portrays the Appellant as a person of bad character as it is an error of judgment on the part of the learned trial judge since the evidence of bad character was not in issue and was irrelevant to the charge upon which the Appellant was being tried. Reliance is placed on LAWAL V. THE STATE (1965- 1966) 4 NSCC 111, 113 – 117 and sections 68, 69, 72 and 160 of the Evidence Act, Cap. EI4, Laws of the Federation, 2004.
It is urged that this issue be resolved in favour of the Appellant.
For the Respondent, it is submitted that the prosecution did not give or call evidence to show that the Appellant was of bad character and that the matter of bad character is contained in the confessional statement of the Appellant, which was admitted without objections. It is submitted that the evidence of bad character came from the mouth of the Appellant, as it were since it is contained in his own confessional statement, Exhibit A. It is urged that the issue be held against the Appellant. It is also submitted that the learned trial judge was right to convict on the confessional statement alone, citing in support the case of NWACHUKWU V. THE STATE (2002) 12 NWLR (Pt.782) 543, 572.
ISSUE III, IV AND V
It is submitted that the issue of bad character weighed heavily in the mind of the learned trial judge to the extent that he failed to give consideration to his finding at page 84 of the record where he had captured from Exhibit A the fact that there was a misunderstanding between the Appellant and the deceased. It is submitted that if the learned trial judge had adverted his mind to the fact that there was no eye witness and if he had not allowed himself to be carried away by the evidence of bad character, he would have resolved the issue of the fighting in favour of the Appellant. It is submitted, for the Appellant, that if the learned trial judge had given consideration to issue of the misunderstanding and the fight between the deceased and the Appellant he would have given a consideration to the defence of provocation as evident from Exhibit A. It is also submitted that the Police failed to investigate the allegation of a fight between the Appellant and the deceased. Learned Counsel for the Appellant relied on AREMU V. THE STATE (1984) ALL NLR 314, 316 and 317 which he urged should be applied mutantis mutandis to the facts of the instant case.
It is urged that these issues be resolved in favour of the Appellant and that the appeal be allowed.
It is submitted, for the Respondent, that it is difficult to see what the Appellant is quarrelling about since the learned trial judge found him guilty and convicted him for the offence of culpable homicide punishable with death and yet sentenced him to life imprisonment. It is submitted that the sentence of life imprisonment is a punishment for manslaughter and not for homicide punishable with death. It is further submitted that the learned trial judge did not take into account any issue of the Appellant’s bad character as the lower court limited itself to the crime at issue, It is also submitted that the lower court has considered all possible defences and nothing availed the Appellant.
It is urged that these three issues be resolved against the Appellant. It is submitted that for the defence of insanity to avail the Appellant, it has to be credibly raised by him, otherwise it is bound to fail on the authority of GUOBADIA V. STATE (2004) 6 NWLR (Pt.718) 360, It is further submitted that the onus to prove insanity rests upon the Appellant, Reliance is placed on the Supreme Court authority in EDOHO V. STATE (2010) 14 NWLR (Pt.1214) 651, 684.
It is finally urged that the appeal be dismissed in its entirety and that the conviction and sentence of the Appellant be affirmed,
There is no doubt that learned counsel for the Appellant was under a misconceived impression in calling for the plea of the Appellant to be taken afresh because of an alleged alteration or amendment to the charge. The prosecution never asked for the amendment of the charge and the lower court did not make any amendment to the charge upon which the Appellant was prosecuted and convicted. I do not find in the record where such an amendment or alteration took place. That is my answer to issue (i).
With regard to issue (ii), the allusion by the prosecution and the learned trial judge to the bad character of the Appellant, based on Exhibit “A” is wrong and in bad state. This is so because, evidence of bad character of the Appellant was irrelevant to the consideration of his conviction and sentence since he did not give evidence of good character. The evidence of his bad character was not in issue before the lower court and the allusion to it as quoted by the learned trial judge is wrong. There is no doubt that this has influenced the opinion of the lower court in passing sentence. This is clearly contrary to the proviso to section 160 of the Evidence Act, The learned judge ought to have stopped learned counsel for the prosecution from reference to the part of Exhibit “A” which tends to give evidence of the Appellant’s bad character. In the instant case, it was the learned trial judge who went on to quote extensively from Exhibit *A” in order to show the bad character of the Appellant.
The Supreme Court in LAWAL v. THE STATE (1965 – 1966) 4 NSCC 111, 113 – 117 adopted the principle stated by LORD SIMON, LORD CHANCELLOR IN STIELAND V. D.P.P. (1944) A.C. 315, 327 – 328 and held that miscarriage of justice had occurred. In LAWAL V. STATE, it was held that
“If no inadmissible evidence had been received it would have been for the appellant to satisfy the court that there had been miscarriage of justice………
In this case, the appellant has shown that there was a wrong decision on a question of law and this entitles him to have conviction set aside”.
It was further held that –
“The inadmissible evidence did not merely go to bad character in general but to vital question of who was the aggressor, since it leads to show that the appellant was a person given to the use of unlawful violence”.
Ordinarily, this should have led to the appeal being allowed on this issue and the conviction being set aside, but the consideration of the remaining issues will determine the course of action to take.
On issues (iii), (iv) and (v), I think the learned counsel for the Appellant must have been involved in a terrible mix up when at page 30, paragraph 4.20, lines B – 5 stated thus-
“… Then the learned trial judge erred in law in convicting and sentencing the appellant to death by hanging”.
The learned trial judge only convicted the appellant for man slaughter after finding him guilty of an offence of culpable homicide punishable with death. He also sentenced the Appellant to life imprisonment and not to death by hanging as stated by learned counsel for the Appellant.
It should be noted that there was no eye witness in this ease. The closest we have to what had happened was the evidence of PW2 who categorically stated that he was informed by some others. He did not mention the persons who informed him and the prosecution did not call any. His evidence as to who killed the deceased was, at best, hearsay which is not admissible in evidence. The lower court relied, in the main, on the confessional statement of the Appellant, Exhibit ‘A’ and the alleged statement of a mysterious I.P.O. whose name could not be traced in the list of Police Officer and which statement was admitted despite a serious objection to its admissibility by the defence. The learned trial judge admitted the statement in evidence on the excuse of relevancy saying that the most important thing was the weight to be attached to it. It was admitted as Exhibit B. The learned trial judge freely quoted from and relied on this exhibit, even when the defence did not have the opportunity to cross-examine the alleged maker. The Lower Court was not informed of the circumstances leading to the making of Exhibit B; and this is very relevant.
The learned trial judge considered the issue of the mental condition of the Appellant, in passing. He had ordered, early in the proceedings, that the Appellant be taken to the psychiatric hospital for a psychiatric doctor to examine him and to furnish a report of his findings. A report was furnished in 2003, in writing but it was simply filed away in the case file while the state Counsel informed the Court of the report. Upon this information, the lower court further directed that the Appellant be taken back to the hospital for treatment. Nothing was said about it afterwards except that the prosecution Counsel told the Court that the Appellant was not receiving treatment because there was not one to foot the bill. It was suddenly on 30th October, 2008 that the prosecution informed the court that the appellant was now fit to stand trial and the plea of the appellant was there and than taken. Nothing more was heard about the mental condition of the appellant. I find nothing in the record to support the allegation that the appellant was at that time fit to stand trial.
It is also true that the issue of fighting was alluded to by the learned trial judge while considering the statement of the appellant, Exhibit ‘A’ which suggested a defence of provocation, The learned trial judge did not give a consideration to this possible line of defence. In OPISHE V. THE STATE (1971) NSCC 51.
It was held by the Supreme Court that the primary duty of a Court seised of a criminal trial is to consider the defence raised by the accused person and any defences apparent from the totality of the evidence adduced in the case.
One thing stands out clearly in this case and that is that the confessional statement of the Appellant, wherein he admitted the commission of the offence for which he was charged, was admitted without objection and throughout the proceedings before the Lower Court and this court, the defence has not denied making the statement except for the evidence of the Appellant in the witnesses box that no statement was taken from him, The learned trial judge finding that this was an attempt to retract or recite from the statement, Exhibit ‘A’ is correct, because that was not the stage to recite from the statement that was admitted without objection
It is in the light of the confession contained in Exhibit ‘A’ that I agree with the learned trial judge in finding the Appellant guilty as charged, I also agree that the Appellant’s rightly convicted for man slaughter, considering the circumstances of this case.
I, however, do not see the rationale for the sentence of life imprisonment in this case.
In the circumstance, I affirm the conviction of the Appellant by the learned trial judge, Honourable Justice Tani Y. Hussan of the Kano High court for the offence of manslaughter, I also set aside the sentence for life imprisonment and substitute for same a sentence of 20 years imprisonment commencing from the 30th day of November, 1998 when the Appellant was taken into custody,
The appeal is allowed in part.