MUHAMMAD v. KANO STATE (2022)

MUHAMMAD v. KANO STATE

(2022)LCN/17148(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Thursday, October 27, 2022

CA/KN/124/C/2017

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

ALIYU MUHAMMAD APPELANT(S)

And

KANO STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURTS CAN ASSUMES THAT AN ACCUSED PERSON DOES NOT UNDERSTAND THE LANGUAGE OF THE COURT

The law is well settled to the effect that Courts are not in a position to know by themselves or even assume that an accused person does not understand the language of the Court so it is the duty of the accused person and his counsel to inform it that the accused person does not understand the language in which a witness is testifying and if they fail to claim that right at the trial Court, they may not be able to raise it on appeal. See Mallam Madu v. State (1997) LPELR-1808 (SC); R. v. Eguabor (1962) ALL N.L.R. 285; Paul Onyia v. State (2008) LPELR-2743 (SC) p.10-11. In Madu’s case (supra) Adio, J.S.C., after a thorough review of the cases on the point, stated the position of the law on the issue thus at p.16-17:
“The well established practice in relation to provision of an interpreter in superior Courts mentioned above, the question of providing an accused person with an interpreter will only arise under Section 33(6) of the Constitution of the Federal Republic of Nigeria, 1979, where the accused person cannot understand the language used at the trial of the offence. As the Court cannot reasonably assume or presume that every accused person in criminal proceedings before it would not understand the language used at the trial, it is the duty of the accused person or his counsel, acting on his behalf, to bring to the notice of the Court the fact that he does not understand the language in which the trial is conducted, otherwise it will be assumed that he has no cause for that complaint. See State v. Gwonto (1983) 1NSCC 104; (1983) SCNLR 142. The fact that the accused does not understand the language in which the trial is being conducted is a fact well known to the accused and it is for him or his counsel to take the initiative of bringing it to the notice of the Court at the earliest opportunity or as soon as the situation has arisen. If he does not claim the right at the proper time, before any damage is done, he may not be able to have a valid complaint afterwards, for example, on appeal.” PER UGO, J.C.A.

THE POSITION OF LAW ON THE DOCTRINE OF LAST SEEN

The answer to this question can only go one way: for the prosecution not only got the right offender, it also proved beyond all reasonable doubt (if not even beyond all shadow of doubt) his guilt. In the first place, the lower Court, it must be noted, found appellant guilty first on the doctrine of last seen. By that doctrine the law presumes that the person last seen with a deceased person before his death is responsible for his death, provided the circumstantial evidence is also overwhelming and points at no other person or persons but him. It is thus up to such accused person, in this case appellant, to rebut the presumption by giving an acceptable explanation as to how the latter met his death. See Oladapo v. State (2020) 1 SCNJ 91; (2020) 7 NWLR (Pt. 1723) 238 AT 251. PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): Appellant and two other persons – Jamilu Mohammad and Basiru Musa – were charged before the High Court of Kano State with the offences of conspiracy, kidnapping and culpable homicide punishable with death contrary to Sections 97(1), 273 and 221 of the Penal Code Law of Kano State. Appellant was the second accused person in that charge while Jamilu Mohammad and Basiru Musa were 1st and 3rd accused persons respectively in all three counts of the charge. The subject of their said crimes is a little kid called Aliyu Aminu Ahmed (alias Hadan or Haidar). He was just about five to six years old at the time of his kidnapping and eventual killing by appellant and his cohorts, which was said to have taken place on 4/03/2014.

Among six witnesses called by the prosecution to prove its charges was the deceased’s father, Alhaji Aminu Mohammad, a business man. He testified as the prosecution’s third witness (P.W.3). Appellant’s own elder brother, Umar Mohammad, testified as P.W.1, while one Yusuf Lawan, a 21-year-old electric generator repairer, testified as (P.W.2). Mr. Lawan, P.W.2 swore in his testimony that at about 4pm on the fateful 04/03/2014 day of the kidnapping of the deceased, he was returning a customer’s power generator to him when he saw appellant holding a small boy of about six years old, who he, P.W2, said he did not know.

Umar Mohammad (P.W.3), the businessman father of the deceased, commenced his testimony by saying that he knew all three accused persons; that he had in fact previously seen 1st accused person Jamilu on three occasions in front of his house and when asked what he was doing there, 1st accused replied that he was a scrap collector. He said he there and then warned 1st accused not to come near his house again and even instructed his guardsmen not to allow him in front of his house. The next time he saw 1st accused and his co-accused persons including appellant, he said, was at the State Security Department Office following his arrest with appellant for the kidnapping and killing of his now deceased son, Haidar. He had this to say on the utterances and conduct of appellant and his co-accused persons at the State Security Department Office when he met them there: ‘It was there I got to hear their argument accusing each other. I also know the 2nd accused person (appellant) at the office of the SSS and I was able to recognize his voice as the person who called me on phone and have been communicating with him over the kidnap of my son.” (Italics mine)

As regards the events of 04/3/2014, he testified that he received a phone call from his wife at about 6.30pm that the deceased had still not returned from school and all search conducted for him both at his school and the neighborhood had proved abortive. P.W.3 said he went to the school and inquired from a girl who used to go to school with the deceased but she told him that one Primary 4 pupil took him out. When pictures of the Primary 4 pupils of the school were shown to the girl, she was unable to identify the particular boy among them. He was still in the school when he received a phone call that someone had brought a letter to his house containing instruction that if his child was missing he should contact one Mai Anguwar through telephone number 08168971435 contained in the same letter. That letter was tendered in evidence as Exhibit A. He called the number but it was switched off so he sent a text message and called again and the phone was picked. He introduced himself and the person on the other end told him that he wanted to assist him; that his boss had brought one boy called Haidar for him to keep and when his boss returned he came with a woman and he overheard them negotiating for the sale of the boy and the woman bought the boy for ₦30m; that he wished to assist P.W.3 and asked him how much he would pay him. P.W.3 said he offered ₦500,000.00. Finally, they agreed on ₦2m. The person asked whether he had the money that night but P.W.3 pleaded with him to give him his son; that he would give him the money in the morning but the person refused. He said he received another call from a different number in which the caller asked him how early he could give them the money but he again pleaded with the caller to give him his boy that night; that he was even ready to give him something as mortgage, but the caller refused. He said he gave the phone numbers to a relative of his who works with the State Security Services. He was later sent a Guaranty Trust Bank (GTB) account, which account later turned out to belong to appellant’s elder Umar Muhammad (PW1), to deposit the ransom. He reported the matter to the police and was instructed by the SSS to deposit the money with the GTB account, with them assuring him that they had tracked the persons. In the next morning, P.W.3 received a call again inquiring whether he had deposited the ransom as agreed. That call, he was emphatic, was from appellant who he further said had been the same person speaking with on the matter all along. He replied appellant that he was on his way and went to bank to transfer the ₦2m to the GTB account of P.W1. After he had deposited the money, appellant, he said, called him to inform him that the deceased had been injected and was fainting so he should hurry up and deposit the money, to which he replied that he had already done. Appellant later called again and when he asked if he, appellant, had seen the money, appellant told him that he wanted to tell him something; that he, P.W.3 should forgive him. He replied that until he saw his son he would not be able to forgive him. Appellant insisted that he forgive him first. Appellant still pleaded for his forgiveness, told him where his son was and then switched off his phone. Appellant phoned him again and asked him to go to an uncompleted building near a brick factory in a place called Kuregeni to pick his son. He passed this new information to the SSS who also accompanied him to the said uncompleted building but did not find the deceased there. The D.P.O. Mariri Police station he said later called to inform him that they had found a corpse so he should come and identify it. When he went, he saw a corpse inside a sack which turned out to be the corpse of his son with his eyes full of blood. He added that the Police took the deceased to the hospital for autopsy but he collected the corpse from them and buried it.

The girl, who he earlier referred to as the one that used to escort the deceased to school, he said, was his house-help called Hajara. When she was taken to the SSS, he said she was able to recognize appellant as the person who took the deceased from his school on the fateful 04/03/2014. He said her parents have since taken her away from him out of fear that appellant could kill her, she having identified appellant.
Under cross-examination, PW3 confirmed among others it was appellant that called him on phone; that he was able to identify appellant by his voice; that appellant spoke to him about 15 times on phone. He said he was not aware that appellant was a student of his son’s school, but he saw him donning that school’s uniform at the SSS office upon his arrest. He clarified in cross-examination that the deceased was not taken to hospital; that he, P.W.3, was not a medical doctor but he saw injection marks on his deceased son’ corpse with the eyes also bulging.

Appellant’s elder brother, P.W.1, who like P.W.3 and P.W. 2 also testified in Hausa language, in his evidence confirmed how appellant called him to give him his GTbank account number for a friend of appellant to pay in money and how he later saw, to his astonishment, ₦2m being paid to his account on the 5th of March 2014, which tallies with the day P.W.3 said he paid the ransom for his son to that same account.

P.W.4 and 5 from the Police and SSS respectively confirmed the evidence of the P.W.3 as regards the parts they played in the incident and how the deceased’s body was recovered.
The last witness for the prosecution was P.W.6 from the National Population Commission to confirm the death of the deceased, registration of that death and to tender the Certificate of Death.

Appellant and his co-accused persons testified in their defence and called no witnesses to support their testimonies denying the offences. Appellant denied having anything to do with the kidnapping or death of the deceased or even knowing or speaking to P.W.3. He however confirmed his elder brother P.W1’s testimony that on 5/3/2014 he, appellant, actually called P.W.1 and asked for his Gtbank account to help a friend, who appellant in his defence claimed was one Luqman of Bayero University Kano, pay funds into it. He said P.W.1 actually called later to confirm that the said amount was paid. Appellant said he had no idea of where his said friend Luqman was presently; that he, appellant did not even know him before the incident; that he did not make the statement, Exhibit C, accredited to him by the S.S.S. Officer. He said the S.S.S. Officer, P.W.5, wrote in Exhibit C by himself and put in there whatever he felt like putting.

In her judgment of 23rd October 2016, Amina Adamu Aliyu, J., of the High Court of Justice of Kano had no difficulty finding that the prosecution had proved its case against appellant and his two co-accused persons and so convicted them as charged. She anchored her decision first on the criminal law doctrine of last seen and on the totality of the circumstantial evidence adduced by the prosecution. She summarized her decision this way:
“On the whole the accused persons have been able (sic: unable) to rebut the presumption (that) being the last persons to have seen the deceased alive they were either the ones that killed him or know who the killers are. I do not believe them to be witnesses of truth.
“In the light of the overwhelming evidence against the accused persons, I am satisfied that the accused persons were the ones that caused the death of the deceased by injection of lethal chemical and strangulation.
“The prosecution has therefore proved their case against the accused persons for the offences of conspiracy, kidnapping and culpable homicide punishable contrary to Section 221 of the Penal Code, Sections 273 and 933 of the Penal Code.”

Dissatisfied, appellant has lodged the instant appeal of six Grounds to this Court against it and formulated the following three issues for determination:
1. Whether he (appellant) had fair hearing and fair trial having regard to the entire circumstances of his trial, conviction and sentence to death.
2. Whether the trial Court was right in convicting him for the offence of conspiracy and culpable homicide punishable contrary to Sections 97 and 22(b) of the Penal Code Law of Kano State 1991 having regard to the fact that there was no evidence of expert to ascertain cause of the deceased’s death.
3. Whether the prosecution proved the three offences against him beyond reasonable doubt.

Appellant argued his issue 1 from two fronts. First, he listed the three ingredients of the offence of culpable homicide punishable with death namely that the deceased died; that the death of the deceased was caused by him; and that his act or omission which caused the deceased’s death was intentional with knowledge that death or grievous bodily harm was its probable consequence. He then submitted that no single witness linked him to the death of the deceased; that rather, the case of the prosecution was based on speculation and suspicion which cannot be the basis of conviction. He argued that in the face of the ambiguity as to cause of death of the deceased, the trial Judge was duty bound to resolve the ambiguity in his favour and not convict him as he did.

The second limb of his argument on this same issue was that P.W.1, P.W.2, P.W.3 and P.W.6 all testified in Hausa Language yet no translation was provided for him; that where an accused does not understand the language of the Court and was not interpreted to him, it vitiates the entire proceedings.

On issue 2, appellant again argued that medical evidence was necessary in the case to ascertain the cause of death of the deceased or link him to it but was not adduced; that there was also no evidence of common design between him and the other accused persons to commit culpable homicide so the trial Court was again wrong.

On issue 3, he again argued that the prosecution did not prove its case beyond reasonable doubt against him; that the prosecution’s case, particularly the evidence of P.W.2, was full of material and irreconcilable contradictions; that whereas P.W.2 claimed he had several telephone conversations with him, P.W.2 also admitted that he had never seen him for even once. He said the conflicts in the evidence adduced by the prosecution created serious doubt on the case of the prosecution which should have been resolved in his favour.

The State did not respond to the appeal so the appeal will be determined on appellant’s arguments alone.

In my opinion, the appeal raises only the following two issues:
1. Whether appellant was denied fair hearing/trial by reason of the lower Court’s omission to provide him an interpreter in respect of the testimony of P.W.1, P.W.2, P.W.3, and 6 who all testified in Hausa Language.
2. Whether the prosecution did not prove its case beyond reasonable doubt against him and the trial Court wrong in convicting him on the three charges.

Issue 1: As regards the first issue posed by him, appellant seems to have taken for granted that the Court can assume that an accused person does not understand the language of the Court or in which witnesses before it testified even without the accused person making any such complaint to it.

Here, the evidence is that appellant was the last person to be seen with the deceased Haidar before his death. That was testified to by P.W.2 who swore that he saw appellant holding the deceased around 3.00 pm of the very 04/3/2014 the deceased was kidnapped and therefore failed to return home after school. Appellant’s counsel never suggested in cross-examination that P.W.2 did not see him or that P.W.2 had any reason to testify falsely against him.

In addition is also the evidence of P.W.3 on appellant’s repeated communications with him on telephone regarding payment of ransom for his deceased son, which communications P.W.3 further swore continued even after the death of the deceased with appellant even pleading for P.W.3’s pardon for what had to his knowledge befallen the deceased even after P.W.3 had paid the ₦2m ransom demanded by appellant. Counsel to appellant made some arguments about P.W.3 admitting that he never saw appellant all through the said discussions so P.W.3 may not be in a position to properly identify appellant as the person that spoke with him.

Counsel seems not to realize that identification of a person takes diverse forms including identification by voice alone: see Archibong v. State (2000) 14 NWLR (Pt. 1000) 349 AT 371 (S.C). He also seems to have conveniently overlooked P.W.3’s further evidence that he met appellant and his co-accused person’s at the S.S.S. office accusing each other of complicity in the offences. P.W.3 was not cross-examined on that by appellant’s counsel, meaning that it is not disputed by appellant.

There is also the evidence of appellant’s own brother, P.W.1, as to how appellant prevailed on him to make available to him his GTB account for the ₦2m deposit ransom. That deposit, which was paid, has since turned out to be the ransom for the deceased paid by P.W.3. P.W.1’s unchallenged evidence that P.W.3 actually made the said ₦2m deposit and appellant even called him to confirm it, to the extent that even when P.W.1 quoted a wrong figure as the amount deposited, appellant corrected him by telling him that he must be mistaken, that what was deposited into his account was ₦2m and not the lesser amounts P.W.1 thought he saw. Appellant could have only had that knowledge of the exact amount deposited in P.W.1’s account as a result of his prior communications with the depositor, in this case P.W.3.

Appellant in his witness statement also confirmed most of these pieces of evidence.

All of these not only point unequivocally at appellant as one of the co-conspirators in the kidnapping and eventual killing of the deceased but even its mastermind, I therefore have no difficulty supporting the judgment of the High Court of Kano State that Respondent proved its charges against appellant beyond all reasonable doubt and the lower Court correct in its judgment convicting him as charged.

In the result, I find this appeal completely lacking in merit and hereby dismiss it and affirm the judgment of the lower Court.

ITA GEORGE MBABA, J.C.A.: I agree completely with the reasoning and conclusion of my learned brother, B. M. Ugo, JCA, in the leading Judgment, that this Appeal is devoid of merit and should be dismissed. It is accordingly dismissed by me.

The depth of depravity of the mind of Appellant and his cohorts for subjecting a little infant child to a torturing death, in the course of kidnap and seeking to extract ransom (and even when the ransom had been paid) is frightfully devilish, especially in the face of Appellant’s foolish and unintelligent denial of the crime, in Court, instead of breaking down in regret and repentance!

It is indeed very sad that the lure of money (Mammon) has become so strong, in recent times, to induce such brutish conducts as kidnapping and brutal killings by young ambitious persons who want easy money! The Holy Scripture (the Bible) has already said it all, that the love of money is at the root of all evil – 1 Timothy 6:10.

I too dismiss the Appeal.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA, I am in complete agreement with the reasoning and conclusion reached that this appeal is unmeritorious and it ought to be dismissed as lacking in merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.