YUNUSA v. STATE
(2021)LCN/15911(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Tuesday, September 21, 2021
CA/YL/113C/2020
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
LAWAL ALH. YUNUSA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
ESTABLISHING BEYOND REASONABLE DOUBT AND DISCLOSING EVIDENCE LEAVING NO DOUBT
In his finding the learned trial Judge held, inter alia thus: –
“…To me evidence of PW3 and PW4 reveals and established beyond reasonable doubt that their evidence before this Court emphatically apparently inferred that all the accused persons by their actions as disclosed in evidence leaves no doubt that the accused persons conspired to carry out the illegal act of killing the deceased Alh. Ibrahim Yahaya and Nasiru Ibrahim and injured Abdulkarim a blind man on his head and I so find”. BITRUS GYARAZAMA SANGA, J.C.A.
THE PRINIPLE OF THE DOCTRINE OF STARES DECISIS
Since this appeal emanates from the same judgment resulting from the same charges and conviction by the lower Court, this Court is bound by its judgment in Appeal No. CA/YL/110C/2020: ALH. BAIDO ANGO V. THE STATE delivered on 21/09/2021 based on the well-known principle of stare decisis. In MR. A. O. OSHO & ANOR V. FOREIGN FINANCE CORPORATION & ANOR (1991) LPELR 2801 (SC) the apex Court per OBASEKI, JSC held thus: –
“….. the Court of Appeal is bound by its previous judgment. It is also bound by the judgments of the Supreme Court. The Court of Appeal has not contended the contrary. Since the Court of Appeal sits in 7 divisions, now there exists the danger of decisions delivered in one division conflicting with decisions in another decision.”
See also ELDER P. E. BIKO & ANOR V. SIR UCHE AMAECHI & ORS (2018) LPELR – 45069 (CA) per LOKULO-SODIPE, JCA; CHIEF (PRINCE) OLATUNDE OYEWOLE & ORS V. MR. BASHIRU LASISI & ANOR (2014) LPELR – 23076 (CA) per DANJUMA, JCA; LEYE ADEJUYIGBE V. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR – 43801 (CA) BITRUS GYARAZAMA SANGA, J.C.A.
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Appellant together with AHMADU ALH. YUNUSA, GAMBO ANGO and ALH. BAIDO ANGO were arraigned on a four count charge before the High Court of Justice Taraba State, Jalingo Judicial Division, ISA M. SAMBO J., presiding in Charge No. TRSJ/17C/2017 for the following offences:-
COUNT ONE:
1. Criminal conspiracy punishable under Section 91(1) of the Penal Code.
PARTICULARS OF OFFENCDE:
That you LAWAL ALH. YUNUSA, AHMADU ALH. YUNUSA, GAMBO ANGO and ALH. BAIDO ANGO on or about the 19th day of October, 2016 at Pangri Village in Bali LGA of Taraba State within Jalingo Judicial Division committed an offence to wit; you jointly and severally agreed to attack and killed ALH. IBRAHIM YAHAYA and NASIRU IBRAHIM, causing grievous hurt to ABDULKARIM a blind man on his head and drove your cows into the deceased farm and destroyed guinea corn, beans, maize and soya beans same act was done in furtherance of the agreement.
COUNT TWO:
2. Culpable homicide punishable with death under Section 221(a) of the Penal Code.
PARTICULARS OF OFFENCE:
That you LAWAL ALH. YUNUSA, AHMADU ALH. YUNUSA, GAMBO ANGO and ALH. BAIDO ANGO on or about the 19th day of October, 2016 at Pangri Village in Bali LGA of Taraba State within Jalingo Judicial Division did commit culpable homicide punishable with death to wit; you caused the death of ALH. IBRAHIM YAHAYA and NASIRU IBRAHIM by macheted them with cutlass (sic) with the intention of causing their death and they died.
COUNT THREE:
3. Grievous hurt punishable under Section 248(2) of the Penal Code.
PARTICULARS OF THE OFFENCE:
That you LAWAL ALH. YUNUSA, AHMADU ALH. YUNUSA, GAMBO ANGO and ALH. BAIDO ANGO on or about the 19th day of October, 2016 at Pangri Village in Bali LGA of Taraba State within Jalingo Judicial Division did commit grievous hurt to wit; you injured ABDULKARIM a blind man on his head.
COUNT FOUR:
4. Mischief punishable under Section 327 of the Penal Code.
PARTICULARS OF OFFENCE:
That you LAWAL ALH. YUNUSA, AHMADU ALH. YUNUSA, GAMBO ANGO and ALH. BAIDO ANGO on or about the 19th day of October, 2016 at Pangri Village in Bali LGA of Taraba State within Jalingo Judicial Division did commit mischief to wit; you cause the destruction of guinea corn, beans, maize and Soya beans with your cows knowing fully well that such act is likely to cause wrongful loss and damages to the deceased and his family.
On 19/7/2016 all the accused persons were arraigned and their plea taken. They pleaded “Not guilty” (pages 39 – 40 of the records of appeal).
On 3/8/2016 the prosecution called their first witness.
PW1 is Inspector Clement N. Ismail. He is the Exhibit Keeper with the Nigeria Police Jalingo Command. He collected sacks of soya beans, maize and guinea corn for registration and safe keeping and registered them in the Exhibit Registry with registration No. CER/45/2016. The witness tendered the items in evidence, the learned counsel to the accused persons did not object and the items were admitted in evidence and marked as Exhibit “A”. PW1 was then cross examined by learned counsel to the accused persons. (Pages 41 – 43 of the Records).
On 17th November, 2017, PW2 entered the witness box. He is Sgt. Sa’adu Adamu with Divisional Police Headquarters Bali, Taraba State. He is among a team of police officers who recorded the statements of the accused persons. (Pages 45 – 46 of the Records).
On 9th January, 2018 PW3 entered the witness box. He is Ahmed Ibrahim. His testimony-in-chief is quite revealing, he testified thus:
“I know all the accused persons. I know them because we stay with them at Pangri village. On the 16/10/16 on Wednesday the engine is processing our maize. Myself and my younger brother Nasiru Ibrahim, our father Ibrahim Yahya and Aisha Ibrahim my younger sister and the engine operator one Uba. Then we saw all the accused persons entered our compound without any reason with weapons cutlasses. Then Lawan 1st accused person cut our father on the head and then the 4th accused person cut off our fathers head. Then after that the police arrived then the remaining accused persons descended on me and my younger brother Nasiru. They cut Nasiru Ibrahim on the head, back of his stomach. They also caused me grievous hurt on my hands and legs and my stomach. My younger brother is dead as the result of the attack by the accused persons. One of my elder brothers who is a blind man was cut on the head with cutlass and our younger sister Aisha was cut on the shoulder. My elder brother the blind man’s name is Abdulkarim Ibrahim. They then brought their cattle into our farms. The cattle graze our farms. They went and brought gun and sat in front of our compound”. (page 49 of the Record).
Thereafter PW3 was cross examined by learned counsel to the accused person. (pages 49 – 51 of the Records).
PW4 then entered the witness box. She is Zainab Ibrahim. She was the wife of Alh. Ibrahim Yahaya, deceased, who was alleged to have been macheted to death by the accused persons on 19/1/2016. In her testimony in chief she stated thus: –
“I know all the accused persons. On the 19th October 2016 the accused persons went to our house around 10 A.M. I was sleeping in the room. I was not feeling fine. I heard my husband Ibrahim saying what happened; what happened. I and my daughter rushed out in the room. My daughter’s name is Ai. I could not see my husband and I saw the accused persons unknown to me. He was the first person to be killed. I then started begging the accused persons to stop cutting the members of the family with cutlasses. They should not stop cutting Nasiru my son as they have concluded killing my husband. They did not stop cutting them till they perfected their mission by killing him. After that they brought their cattle inside our farms. Aisha is sick. She is at home since they cut her on the arm. She has never recovered”. (page 51 of the Records).
Thereafter PW4 was cross examined by learned counsel to the accused persons (pages 51 – 52 of the Records).
On 15/5/2018, PW5 entered the witness box. He is Monday Kpandegh a police officer at Bali Police Station. On 19/10/2016 he led a team of policemen to Pangri village upon a complaint by one Alhaji Muazu Ibrahim that his brother Yahaya Ibrahim and nephew Nasiru Ibrahim were macheted to death by accused persons. That they evacuated the corpses of the deceased and conveyed them to general hospital Bali for a post mortem examination. On 20/10/2016 his team arrested the accused persons. He recorded the confessional statement of Lawal Ahaji Yunusa and the statement of Ahmadu Alh. Yunusa in English language which he later translated into Hausa language. That since the statement of Lawal Alh. Yunusa was confessional in nature, he took him before a superior police officer who read same to the accused and he accepted it as his statement. The senior officer then endorsed same after the 1st accused thumb printed the said confessional statement. The confessional statement was tendered in evidence by the prosecuting state counsel, learned counsel to the accused persons did not object and same was admitted in evidence by the learned trial Judge and marked as Exhibit “B1”. PW5 was then cross examined by learned counsel to the accused persons. (pages 57 – 58 of the Records).
PW6 entered the witness box on 7th June, 2018. He is ASP Boomy B. Dogo attached to State C.I.D. Jalingo Homicide Department. He recorded the statement of the 2nd accused Ahmadu Alhaji Yunusa. He took the accused together with his statement before the O.C. Homicide who read it to him and he agreed that it is his statement, that the said O.C. Homicide then counter signed the statement which was tendered in evidence by learned counsel to the prosecution without objection by learned counsel to the accused and marked as Exhibit “B2”. Thereafter the witness was cross examined by learned counsel to the accused persons. (pages 59 – 62 of the records of appeal).
On 4th July, 2018 learned counsel to the prosecution applied to close their case. Application was granted and the case was adjourned to 23/7/2018 for defence.
On 1/11/2018 DW1 entered the witness box. He is the Appellant Lawal Alhaji Yunusa. In his evidence in chief he testified that:
“I did not commit any offence and I am not aware of the said offence. I am in this Court is that I and my teacher went to a herbalist then the herbalist gave me talisman because I was suffering from epilepsy. On our way back we came to a police check point. The police men found me with the talisman on me. The police asked me what I am doing with the talisman. I told them I was sick it was a herbalist that gave it to me. The police said they did not accept my explanation and asked other passengers to go. My teacher pleaded with them they refused. Then they took me to Jatau police station and I was detained in the police station. The police men at the station asked me why I was brought. I narrated the whole story to them. Then they took my statement and I was detained. That’s all I know”. (pages 67 – 68 of the Records).
During cross examination the witness denied everything. In fact he denied knowing the co-accused (including his brother) and PW3 and PW4. He said he was not in Court when PW3 and PW4 testified. He was asked: –
“Question: How did you want the Court to treat your statement if the Court, based on its record shows that when Aisha (PW4) and Ahmed Ibrahim (PW3) testified only when you were in Court. Do you want the Court to take you as a layer?” (sic).
“DW1: I want the Court to regard my evidence as that of the truth”.
“Question: You were in Court when other witnesses testified against you and your co-accused?”
“DW1: Yes I was present when other witnesses testified”. (pages 69 – 70 of the Records).
DW2 then entered the witness box. He is Ahmadu Alh. Yunusa. His testimony in chief and his cross examination are similar to that of DW1. His testimony is at pages 70 – 71 of the Records.
DW3 is Gambo Ango. He testified on 12th December, 2018 that he knows why he is in Court. That it is in respect of murder of one Alhaji Ibrahim Yahaya and Nasiru Ibrahim on 19/10/2016. But he denied committing the offence. He gave a story of being stopped by soldiers in the night of 19/10/2016 who beat him and he became unconscious and when he regained his consciousness he found himself in the police station at Garbabi. That he did not know the other co-accused persons. That:
“Only know one of them. I cannot recall his name. But he is point at 4th accused person”. (pages 72 – 75 of the Records).
DW4 is Baido Alhaji Ango. In his evidence in chief he testified thus: –
“The accused persons standing trial with me are not known to me. But I know the one called Gambo Ango…” pages 75 – 76 of the Records.
During cross examination DW4 testified, inter alia thus: –
“Question: The Statement you made at the police station Bali is the statement tendered by your counsel in this case on your behalf?”
“DW4: I did not tell him anything”.
“Question: You were in Court when Sgt. Sa’ad testified before this Court?”
“DW4: Yes I was around”.
“Question: The said Sgt. Sa’ad said he recorded the statement of DW4”.
“DW4: Yes I was around in the Court”.
“Question: Your counsel tendered the statement evidence”.
“DW4: I am not aware”.
“Question: You said you will identify the statement you made in Bali Police?”
“DW4: Yes by my signature”.
“Learned counsel: I apply to tender the statement of DW4 for identification”.
“Court: The application is granted”.
“DW4: Saw the statement and said it is the one Exhibit “A1”.
“Question: Anybody who tells the Court that Exhibit “A1” is your statement is a liar?”
“DW4: I don’t know”. (pages 75 – 77 of the Records).
On 22/1/2019 DW5 entered the witness box. He is Adamu Mohammed. He testified that he is a teacher and the Appellant was his student. He was in Court to corroborate the testimony of DW1.
DW6 is Musa Bano a 50 years old farmer. He testified that he knows the 4th accused person and was with him the day he was arrested by the police because the 4th accused person was unable to produce his identity card. That he produced his own and was allowed to go. During cross examination DW6 was asked:
“Question: You will not know whether the 4th accused person has committed another offence before then?”
“DW6: I will not know whether he committed another offence.” (pages 80 – 81 of the records of appeal).
DW7 is Abubakar Adamu. He said he is a motorcycle commercial driver at Gazabu village, Bali Local Government Area. He told the trial Court that he knew the second accused, Ahmadu Alhaji Yunusa. His testimony corroborated that of DW2. He was cross examined by learned counsel to the prosecution and then discharged. Learned counsel to the accused persons then closed their case. (Pages 82 – 84 of the Records).
Learned trial Judge adjourned the matter to 12/3/2019 for adoption of written address. However, it was on 10/11/2019 that learned counsel to the parties adopted their written addresses. The learned trial Judge adjourned the case to 20/11/2019 for judgment. However, it was ON 14/8/2020 that the learned trial Judge delivered his judgment. The entire judgment is at pages 109 to 130 of the records of appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
In his judgment the learned trial Judge reviewed the oral and documentary evidence adduced during trial. He then considered the submission by learned counsel to the parties in their respective written addresses. He adopted the lone issue canvassed by learned counsel to the accused persons which is as follows: –
Whether the prosecution has proved its case beyond reasonable doubt as required by Section 138(1) and (2) Evidence Act Cap 112 LFN 2011 as amended?
In his finding the learned trial Judge held, inter alia thus: –
“…To me evidence of PW3 and PW4 reveals and established beyond reasonable doubt that their evidence before this Court emphatically apparently inferred that all the accused persons by their actions as disclosed in evidence leaves no doubt that the accused persons conspired to carry out the illegal act of killing the deceased Alh. Ibrahim Yahaya and Nasiru Ibrahim and injured Abdulkarim a blind man on his head and I so find”.
The learned law Lord held further that: –
“On Count Two – Culpable homicide punishable with death under Section 221(a) Penal Code….. From the information, the evidence and submission before this Court in respect of the 1st – 4th accused persons by the prosecution clearly disclosed the ingredients of the offence. The evidence of PW3 and PW4 clearly disclosed and established that 1st, 2nd, 3rd and 4th accused persons were identified and together seen by PW3 Ahmed Ibrahim when the accused persons were killing his father Ibrahim Yahaya and his brother Nasiru Ibrahim… Still the evidence of PW3 and PW4 actually pinned the 1st, 2nd, 3rd and 4th accused persons to the scene where the deceased persons died as a result of the act of beating and cutting the deceased persons Ibrahim Yahaya and Nasiru Ibrahim on their heads, back, stomach etc…. There is no doubt that the acts of accused persons were intentionally with knowledge that death or grievous harm was it (sic) probable consequences… The intention to kill or cause grievous harm can be inferred from the notice of the weapon used…. The evidence as cogent and satisfactory as they are in support of all the counts i.e. Counts 1 – 4 leave no doubt the deceased persons died and that the 1st, 2nd, 3rd and 4th accused persons caused their death.”
The learned trial Judge concluded his assessment of evidence and held thus: –
“For all that I have said, this Court is fully satisfied beyond any reasonable doubt that deaths of the deceased persons Ibrahim Yahaya and Nasiru Ibrahim was occasioned by the acts of Lawal Alh. Yunusa, Ahmadu Alh. Yunusa, Gambo Ango and Alh. Baido Ango the 1st, 2nd, 3rd and 4th accused persons respectively for causing the death of the deceased persons intentionally by cutting them with cutlasses to death which is a deadly weapon.
In the circumstances, I find the accused persons guilty of causing death of Ibrahim Yahaya and Nasiru Ibrahim as charged under Section 221(a) of the Penal Code. In respect of the offence of voluntarily causing grievous hurt on PW3, Abdulkarim Ibrahim a blind man and Aisha Ibrahim on the evidence before the Court also find (sic) and hold that the prosecution has proved that (sic) all the accused persons guilty of the offences charged in Count 4 as charged.”
Upon pronouncing his finding, the learned trial Judge listened to learned counsel to the convicts in his allocutus on behalf of his clients. He then pronounced his sentence as follows:
“Count 1: You, Lawal Alh. Yunusa, Ahmadu Alh. Yunusa, Gambo Ango and Alh. Baido Ango are hereby convicted and sentence (sic) to 1 year in correctional centre or pay fine of N50,000.00”.
“Count 2: You, Lawal Alh. Yunusa, Ahmadu Alh. Yunusa, Gambo Ango and Alh. Baido Ango are hereby convicted and sentence (sic) for life in correctional centre by virtue of Section 221 (a) of the Penal Code.”
“Count 3: You, Lawal Alh. Yunusa, Ahmadu Alh. Yunusa, Gambo Ango and Alh. Baido Ango are hereby convicted and sentence (sic) to three years in correctional or pay fine of N100,000.00 by virtue of Section 248(2) of the Penal Code”.
“Count 4: You, Lawal Alh. Yunusa, Ahmadu Alh. Yunusa, Gambo Ango and Alh. Baido Ango are hereby convicted and sentence (sic) in correctional centre for 2 years or with fine of N100,000.00 by virtue of Section 377 of the Penal Code”.
“In addition to the sentence, You Lawal Alh. Yunusa, Ahmadu Alh. Yunusa, Gambo Ango and Alh. Baido Ango are to make compensation of N250,000 each to persons injured by the offences i.e. Abdulkarim the blind man, Ahmad Ibrahim and Aishatu Ibrahim under Section 78 of the Penal Code”.
This decision by the learned trial Judge aggrieved the Appellant. He filed a Notice of Appeal containing 9 grounds on 24th August, 2020. (pages 140 – 145 of the records of appeal). The Appellant also filed an Amended Notice of Appeal also containing 9 grounds of appeal on March, 2021 which we deemed as duly filed and served on 16th March, 2021. Records of appeal were compiled and transmitted to this Court on 8th October, 2020. The Appellant’s brief of argument was filed on 19th November, 2020. It was prepared by E. B. Kizito Esq. Learned counsel formulated a lone issue for determination as follows: –
Whether the Prosecution proved beyond reasonable doubt, the ingredients of the offences the Appellant stood trial for, to warrant his conviction by the Honourable Trial Court? (Grounds 1 – 9 of the Grounds of Appeal)
The Respondent’s brief was settled by Hamidu Audu Esq., Director of Public Prosecutions, Attorney General’s Chambers, Ministry of Justice, Jalingo, Taraba State. The Learned DPP adopted the lone issue canvassed by the learned counsel to the appellant.
I have noted that this appeal No. CA/YL/113C/2020 is a sister appeal to appeal No. CA/YL/110C/2020 ALH. BAIDO ANGO V. THE STATE. The appellant in this appeal was the first accused person while Alh. Baido Ango was fourth accused person. The offences and the charges the accused were charged with in Case No. TRSJ/17C/2017 are the same. The same witnesses testified and the exhibits tendered during trial are the same. The judgment delivered by the learned trial Judge on 14th August, 2020 wherein all the four accused persons were found guilty, convicted and sentenced is also the same. The Notice of Appeal containing 9 grounds of appeal at pages 140 to 145 of the records of appeal compiled and transmitted to this Court on 8th October, 2020 is also the same. So also is the Amended Notice of Appeal containing 8 grounds of appeal filed on 9th March, 2021 but deemed properly filed and served on 16th March, 2021.
This Court delivered its judgment in appeal No. CA/YL/110C/2020: ALH. BAIDO ANGO V. THE STATE on 21/09/2021 wherein the conviction and sentence passed on the appellant by the lower Court was affirmed and the appeal dismissed.
Since this appeal emanates from the same judgment resulting from the same charges and conviction by the lower Court, this Court is bound by its judgment in Appeal No. CA/YL/110C/2020: ALH. BAIDO ANGO V. THE STATE delivered on 21/09/2021 based on the well-known principle of stare decisis. In MR. A. O. OSHO & ANOR V. FOREIGN FINANCE CORPORATION & ANOR (1991) LPELR 2801 (SC) the apex Court per OBASEKI, JSC held thus: –
“….. the Court of Appeal is bound by its previous judgment. It is also bound by the judgments of the Supreme Court. The Court of Appeal has not contended the contrary. Since the Court of Appeal sits in 7 divisions, now there exists the danger of decisions delivered in one division conflicting with decisions in another decision.”
See also ELDER P. E. BIKO & ANOR V. SIR UCHE AMAECHI & ORS (2018) LPELR – 45069 (CA) per LOKULO-SODIPE, JCA; CHIEF (PRINCE) OLATUNDE OYEWOLE & ORS V. MR. BASHIRU LASISI & ANOR (2014) LPELR – 23076 (CA) per DANJUMA, JCA; LEYE ADEJUYIGBE V. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR – 43801 (CA) per OGBUINYA, JCA.
Upon considering the judgment of this Court in appeal No. CA/YL/110C/2020: ALH. BAIDO ANGO V. THE STATE delivered on 21/09/2021 whereby this Court affirmed the judgment of the High Court of Justice Taraba State, Jalingo Judicial Division in Case No. TRSJ/17C/2017 delivered on 14th August, 2020 wherein the appellant and his co-accused were convicted and sentenced for the offences of (1) Criminal conspiracy punishable under Section 97(1) of the Penal Code; (2) Culpable homicide punishable with death under Section 221(a) of the Penal Code; (3) Grievous hurt punishable under Section 248(2) of the Penal Code; and (4) Mischief punishable under Section 327 of the Penal Code, it is my judgment that this appeal also lacks merit and it is hereby dismissed. The judgment by the trial Court delivered on 14th August, 2020 in Case No. TRSJ/17C/2017 is affirmed by me.
CHIDI NWAOMA UWA, J.C.A.: I read before now a draft copy of the leading Judgment just delivered by my learned brother BITRUS GYARAZAMA SANGA, JCA. I am in complete agreement with his reasoning and conclusions reached therein which I adopt as mine.
It is for fuller illuminating reasons adduced in the leading judgment that I too hold that the appeal lacks in merit and also dismiss same. Consequently, the judgment of the High Court of Taraba State in Charge No. TRSJ/17C/2017 delivered on 14th day of August, 2020 is hereby affirmed.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother BITRUS GYARAZAMA SANGA, JCA afforded me the opportunity of reading in draft the lead judgment just delivered. My Lord has exhaustively dealt with the issues contained in the lead judgment. I agree entirely with the reasoning and conclusion arrived at in dismissing the appeal and affirming the decision of the lower Court.
Appearances:
E. B. KIZITO, ESQ. For Appellant(s)
HAMIDU AUDU, ESQ. For Respondent(s)
