Legalpedia Citation: (2021-03) Legalpedia 44479 (CA)

In the Court of Appeal

Holden at Yola

Tue Mar 30, 2021

Suit Number: CA/YL/100C/2020

CORAM

CHIDI NWAOMA UWA, JUSTICE COURT OF APPEAL

BITRUS GYARAZAMA SANGA, JUSTICE COURT OF APPEAL

JAMILU YAMMAMA TUKUR, JUSTICE COURT OF APPEAL

CHIDI NWAOMA UWA, JUSTICE COURT OF APPEAL

BITRUS GYARAZAMA SANGA, JUSTICE COURT OF APPEAL

JAMILU YAMMAMA TUKUR, JUSTICE COURT OF APPEAL

PARTIES

ABUBAKAR ABDULKADIR

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, COURT, CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS

The Respondent upon complaint and investigation by the Police, acting on the belief that the Appellant intentionally caused the death of one Ali Gimba a boy of 4 years of age by slaughtering and cutting him into pieces, proffered a one count charge of culpable homicide punishable with death under Section 221 (a) of the Penal Code against the Appellant.

On arraignment, the Appellant pleaded not guilty and trial commenced. At close of trial, in a judgment delivered on 23rd July 2019, the lower Court held that the Prosecution had failed to establish Appellant’s guilt beyond reasonable doubt, with regards to the offence charged, but relying on the provisions of Section 218 (2) of the Criminal Procedure Code, Laws of Taraba State, convicted the Appellant for being in possession of human remains under Section 216 (e) of the Penal Code, Laws of Taraba State; and unlawful possession of human head under Section 219 of the Penal Code, Laws of Taraba State on grounds that the evidence at trial did prove the Appellant’s guilt beyond reasonable doubt and consequently sentenced him to two (2) years imprisonment without an option of fine, and five (5) years imprisonment without an option of fine, respectively, to be served consecutively. Dissatisfied, the Appellant appealed the decision.

HELD

Appeal Dismissed

 

 

ISSUES

1. Whether in view of the evidence on record before the trial Court and the Supreme Court’s decision in the case of Olayinka v. The State (2007) 4 SC (Pt.1) 210, (2007) 9 NWLR (Pt.1040) 561, LPELR-2580(SC) inter alia, the conviction of the Appellant under Sections 216(e) and 219 of the Penal Code, Laws of Taraba State was/is proper?
2. Whether the learned trial judge exercised his discretion judiciously and judicially when he convicted the appellant to 2 and 5 years imprisonment without an option of fine or without taking into consideration the time already spent in custody by the appellant

 

RATIONES DECIDENDI

PRESUMPTION OF INNOCENCE – REQUIREMENT FOR A REBUTTAL OF THE PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON

“The Grundnorm creates a rebuttable presumption of innocence on any person who is charged with the commission of an offence and the Evidence Act 2011 in Sections 131 and135, contains provisions to the effect that in order for the presumption of innocence to be rebutted, the guilt of such accused person must be established beyond reasonable doubt by the Prosecution.

Section. 135 of the Evidence Act 2011 provides thus:

“135.  (1)  If  the  commission  of  a  crime  by  a  party  to any  proceeding is  directly  in  issue  in  any  proceeding  civil  or  criminal,  it must  be  proved  beyond  reasonable  doubt.

(2) The  burden  of  proving  that  any  person  has  been  guilty of a  crime  or  wrongful  act  is,  subject  to  section  139  of  this Act,  on  the  person  who  asserts  it,  whether  the  commission of  such  act  is  or  is  not  directly  in  issue  in  the  action. (3) If  the  prosecution  proves  the  commission  of  a  crime beyond  reasonable  doubt,  the  burden  of  proving reasonable  doubt  is  shifted  on  to  the  defendant.

In line with the above, it is trite law that in order for a Court to convict an accused person of an offence, every ingredient of the offence as gleaned from the law creating the offence must be established by the Prosecution beyond reasonable doubt. The Supreme Court in the case of Obidike V. State (2014) LPELR-22590(SC) per KEKERE-EKUN, J.S.C. (P. 55, paras. A-B), succinctly restated the aforementioned principle of law thus:

“The duty of the prosecution in a criminal trial is to prove its case against the accused persons beyond reasonable doubt. In order to do so it must prove every ingredient of the offence beyond reasonable doubt. See: Yongo vs. C.O.P. (1992) 8 NWLR (Pt.257) 36; (1992) 4 SCNJ 113; Alor v. The State (1997) 4 NWLR (Pt.501) 511.”

SEE: Onwe v. State (2017) LPELR-42589(SC) (Pp. 65-66, Paras. E-A); Orisan v. People Of Lagos State (2019) LPELR-46509(CA); and Uzoma v. State (2013) LPELR-20650(CA).”

PER J.Y. TUKUR, J.C.A

CONVICTION – PROPRIETY OF CONVICTING AN ACCUSED FOR A LESSER OFFENCE OTHER THAN THE ONE CHARGED

“Generally, an Accused person may only be convicted for an offence or charge which he has been informed in the language he understands and which he has pleaded to in accordance with the provisions of Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), but where a Statute provides for conviction of a lesser offence than the one charged and where the particulars and the circumstances of the original offence charged are the same or similar to the lesser offence, if the Judge is convinced that the evidence led by the Prosecution, though not of a nature as to secure conviction for the offence charged, but a lesser offence, the Judge is at liberty to convict for that offence. The Supreme Court in the case of Amadi v. State (2019) LPELR-47041(SC) (Pp. 19-24, Paras. E-C) Per NWEZE, J.S.C., reiterated the propriety of convicting an Accused for a lesser offence other than the one charged thus: “As shown in the leading judgment, the offence created under Section 222 (6) of the Penal Code is a lesser offence compared to the offence under Section 221 of the Code which attracts the death penalty. Above all, the lesser offence under Section 222 (6) (supra) is not only a kindred offence with the actual offence charged, its ingredients are, equally, embedded in the actual charge under Section 221 of the Code (supra), Ezeja v The State [2008] All FWLR (pt. 428) 256, 268 – 269. The Court of Appeal, [lower Court, for short], was, therefore right when it invoked its powe rs under Section 218 (2) of the Criminal Procedure Code to substitute the appellant’s conviction under Section 221 of the Penal Code with a conviction under Section 222 (6) of the Code. In The Nig Air Force v Kamaldeen (2007) LPELR -2010 (SC) 24; C-D, this Court held that: It must be shown that the particulars and the fact and the circumstances of the original offence charged are the same or similar to the lesser offence. See, Okwuwa v. The State (1964) 1 All NLR 366 where this Court stated in a passage thus: The lesser offence is a combination of some of the several particulars making up one offence charged: in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged.” Under our criminal jurisprudence the power of a Court exercising criminal jurisdiction to convict on alternative offences or lesser offences is limited and cannot be exercised outside the limits laid down by law. [Italics supplied for emphasis]. In Agugua v The State (2017) LPELR -4202 (SC) 54 -55; E.A, this Court explained that: …the offence of attempted robbery is a lesser offence than the robbery charged. The ingredients are less onerous to prove. The law is that before an accused can be convicted for a lesser offence, the ingredients of the lesser offence must be subsumed in the original offence charged and the circumstances the lesser offence was committed must be similar to those contained in the offence charged. See The Nigerian Air Force v. Kamaldeen [2007] 2 SC 113.” See: Saliu v. State (2018) LPELR-44064(SC); State V. Iheanachor (2019) LPELR-49301(CA); and Sophiano V. State (2019) LPELR-48952(CA).” PER J.Y. TUKUR, J.C.A

PROOF OF GUILT OF AN ACCUSED PERSON – MEANS BY WHICH THE PROSECUTION MAY ESTABLISH THE GUILT OF AN ACCUSED PERSON

“The Supreme Court in the case of Adamu v. State (2019) LPELR-46902(SC) (P. 59, Paras. A-D) Per MUHAMMAD, J.S.C. reiterated the various means by which the Prosecution may establish the guilt of an Accused thus: “It is long settled that the prosecution on whose shoulders the burden of proving the charge against an accused beyond reasonable doubt may do so in any of or a combination of the three ways, to wit:- (i) By direct evidence from witnesses to the commission of the crime by the accused; (ii) The direct, positive and unequivocal voluntary confessional statement of the accused satisfactorily established as having been made by the accused; (iii) Circumstantial evidence which points to the accused alone as being the perpetrator of the offence. See Emeka V. State (2001) 14 NWLR (PT 734) 666 at 683 and Julius Abirifon V. The State (2013) LPELR – 20807 (SC).” See: Olasehinde V. State (2016) LPELR-41337(CA). PER J.Y. TUKUR, J.C.A

SENTENCING – MEANING OF SENTENCING – CIRCUMSTANCES WHEN AN APPELLATE COURT CAN INTERFERE WITH A SENTENCE IMPOSED BY A TRIAL COURT

“Sentencing is the last stage of a criminal trial that resulted in the conviction of an Accused Person. At this stage, the State acting through the trial Court imposes punishment on the Convict within the ambit of the law. Sentencing as rightly alluded to by both counsel in this appeal is mainly within the jurisdictional competence of a trial Court and the Appellate Court will only interfere with a sentence, which is an exercise of discretionary power of the trial Court where: (i) the discretion was wrongly exercised; (ii) the exercise of the discretion was tainted with substantial irregularity; (iii) there is miscarriage of justice, or (iv) it is in the interest of justice to interfere. See: David v. CP, Plateau State Command (2018) LPELR-44911(SC); and Adejuyigbe v. FRN (2017) LPELR-43801(CA). The provisions of the law which govern the appropriate sentences to pass in these circumstances are contained in Sections 216 (e) and 219 of the penal code, Laws of Taraba State, which provide thus: 216. “whoever- (e) is in possession of or has control over any human remains which are used or are intended to be used in connection with the worship or invocation of any juju, shall be punished with imprisonment which may extend to two years or with fine or with both.” 219. “whoever receives or has in his possession a human head or skull within six months of the same having been separated from the body or skeleton with the intention that such head or skull shall be possessed by any person as a trophy, juju or charm shall be punished with imprisonment which may extend to five years or with fine or with both.” – PER J.Y. TUKUR, J.C.A

PRESUMPTION OF INNOCENCE –

REQUIREMENT FOR A REBUTTAL OF THE PRESUMPTION

 OF INNOCENCE OF AN ACCUSED PERSON

“The Grundnorm creates a rebuttable presumption of innocence on any person who is charged with the commission of an offence and the Evidence Act 2011 in Sections 131 and135, contains provisions to the effect that in order for the presumption of innocence to be rebutted, the guilt of such accused person must be established beyond reasonable doubt by the Prosecution.

Section. 135 of the Evidence Act 2011 provides thus:

“135.  (1)  If  the  commission  of  a  crime  by  a  party  to any  proceeding is  directly  in  issue  in  any  proceeding  civil  or  criminal,  it must  be  proved  beyond  reasonable  doubt.

(2) The  burden  of  proving  that  any  person  has  been  guilty of a  crime  or  wrongful  act  is,  subject  to  section  139  of  this Act,  on  the  person  who  asserts  it,  whether  the  commission of  such  act  is  or  is  not  directly  in  issue  in  the  action. (3) If  the  prosecution  proves  the  commission  of  a  crime beyond  reasonable  doubt,  the  burden  of  proving reasonable  doubt  is  shifted  on  to  the  defendant.

In line with the above, it is trite law that in order for a Court to convict an accused person of an offence, every ingredient of the offence as gleaned from the law creating the offence must be established by the Prosecution beyond reasonable doubt. The Supreme Court in the case of Obidike V. State (2014) LPELR-22590(SC) per KEKERE-EKUN, J.S.C. (P. 55, paras. A-B), succinctly restated the aforementioned principle of law thus:

“The duty of the prosecution in a criminal trial is to prove its case against the accused persons beyond reasonable doubt. In order to do so it must prove every ingredient of the offence beyond reasonable doubt. See: Yongo vs. C.O.P. (1992) 8 NWLR (Pt.257) 36; (1992) 4 SCNJ 113; Alor v. The State (1997) 4 NWLR (Pt.501) 511.”

SEE: Onwe v. State (2017) LPELR-42589(SC) (Pp. 65-66, Paras. E-A); Orisan v. People Of Lagos State (2019) LPELR-46509(CA); and Uzoma v. State (2013) LPELR-20650(CA).”

PER J.Y. TUKUR, J.C.A

CASES CITED

Not Available

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria (as amended) 1999

Criminal Procedure Code, Laws of Taraba State

Evidence Act 2011

Penal Code, Laws of Taraba State

 

 

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