Legalpedia Citation: (2023-04) Legalpedia 04772 (CA)

In the Court of Appeal

KADUNA JUDICIAL DIVISION

Wed Apr 5, 2023

Suit Number: CA/K/226C/C/2021

CORAM

Chidi Nwaoma Uwa JCA

AMINA AUDI WAMBAI JCA

Muslim Sule Hassan JCA

PARTIES

ISIYA HUDU

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

The Prosecution at the trial court through five witnesses claimed that the Appellant and his co- accused persons attacked the house of PW5, the father of Yakubu Yasha’u and pulled same down.

The PW1, PW2 and PW3 vividly stated that they were standing and watching as the Appellant and his co-accused attacked Yakubu Yasha’u with sticks and one of them was holding a cutlass. They continued beating him with the stick and when he attempted to run a way, one of them threw his stick at him and he fell down and they cut his head with cutlass and left him in his pool of blood and ran away. The brother of Yakubu was called and he requested that Yakubu Yasha’u be taken to the hospital and he later died.

The Appellant’s claim from his testimony which defer from his statement to the police is that he is a student of ABU Zaria and that he was sent on an errand by his dad when on his way he was arrested by Police men and taken to the police station. According to Appellant he did not partake in the pulling down of the house of PW5, the father of Yakubu Yasha’u, neither did he attacked Yakubu Yasha’u.

The trial court convicted the Appellant and sentenced him to one year imprisonment without option of fine and death by hanging or lethal injection. Aggrieved by the decision, the Appellant made this appeal.

 

HELD

Appeal dismissed

ISSUES

Ø hether having regards to the totality of the evidence adduced by the prosecution, the learned trial judge was right to have convicted and sentenced the Appellant for the offense charged?

 

RATIONES DECIDENDI

PROSECUTION – DUTY OF THE PROSECUTION IN CRIMINAL PROCEEDINGS

In criminal proceedings the law is settled that the Prosecution is not under an obligation to call horde of witnesses. All that it is required to do is to dislodge the presumption of innocence accorded the accused under Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended and proving all the ingredients or elements of the offence or offences for which a Defendant is charged beyond reasonable doubt as provided in Section 135(1) of the Evidence Act beyond reasonable doubt. Evidence of a sole witness where it’s positive, direct and fixed the Defendant with the commission of offence(s) charged will suffice.

In SEBASTIAN S. YONGO & ANOR V. COP (1992) 8 NWLR (Pt. 257) page 36 at 50 Per KUTUGI, JSC later CJN (of blessed memory) said:

‘’In criminal proceedings the onus is always on the prosecution to establish the guilt of the Accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.’’ – Per M. S. Hassan, JCA

OFFENCE – WAYS OF PROVING THE COMPONENTS OR ELEMENTS OF AN OFFENCE

The settled position of the law is that when a charge contains the offence of conspiracy along with the substantive offence, the Court should deal with the substantive charge first before proceeding with the conspiracy count. See the case of ADESINA V. THE STATE (2016) LPELR-40028 (SC).

In criminal proceedings the trite position of the law is that the prosecution is under a duty to prove the components or elements of the offence for which the Defendant is charged and this can be proven vide any of the following methods:

1. By evidence of an eye witness or witnesses;

2. Through the confessional statement of the accused or defendant;

3. Through circumstantial evidence.

See SHUAIBU ABDU V. THE STATE (2017) 7 NWLR (Pt. 1564) 171 at 186 per SANUSI, JSC. – Per M. S. Hassan, JCA

 

MISCHIEF – ESSENTIAL INGREDIENTS OF THE OFFENCE OF MISCHIEF

Section 327 of the Penal Code provides: ‘’whoever commits mischief shall be punished with imprisonment for a term which may extend to two years or with fine or with both.’’ For the prosecution to succeed under this Section he must prove the following essential ingredients:

1. That the accused committed mischief;

2. That it destroyed/damage a building;

3. That the building was originally used either as a place of worship or a human dwelling house or a place for the custody of property; and

4. It is sufficient if he intends to cause or knows that he is likely to cause wrongful loss or damage to any person by injuring any property whether it belongs to that person or not. –Per M. S. Hassan, JCA

CONSPIRACY – MEANING AND ELEMENTS OF CONSPIRACY

In order to prove conspiracy, it is not necessary that there should be direct communication between each conspirator and every other. All that need be established is that the criminal design alleged is common to all of them. Proof of how they connected with or amongst themselves or that the connection was made is not necessary for there could even be cases where one conspirator may be in one town and the other in another town and they never have seen each other but there could be acts on both sides which could lead the trial Court to the inference. See ERIM v. THE STATE (1994) 5 NWLR (Pt. 346) 522 at 533. According to TOBI JCA later JSC (of blessed memory) in SHODIYA V. THE STATE (1992) 3 NWLR (Pt. 230) 457 at 499:

‘’Legally conspiracy simply means the meeting of two or more minds to carry out an unlawful purpose or to carry out a lawful purpose in an unlawful way. In effect, the purpose of the meeting of the two minds or more minds is to commit an offence. While the law does not require the physical meeting of the minds in a predetermined or known place, as the offence of conspiracy could be committed by written communication, the prosecution must establish that the criminal minds really met somewhere to hatch a crime.’’

For the prosecution to succeed in proving the offence of conspiracy, it must prove the conspiracy as described in the charge and that the accused were engaged in it or prove the circumstances from which the judge may presume or infer it. It may not always be proved by direct evidence as it is generally a matter of inference deduced from certain criminal acts and conducts of the parties accused, done or carried out in pursuance of an apparent criminal purpose in common between them. See IKEMSON V. THE STATE (1989) 3 NWLR (Pt. 110) 455. – Per M. S. Hassan, JCA

CULPABLE HOMICIDE – INGREDIENTS OF CULPABLE HOMICIDE

The ingredients of Culpable Homicide punishable with death under Section 221 of the Penal Code Law and which the prosecution must prove beyond reasonable doubt are as follows:

1. The deceased died;

2. The death of the deceased resulted from the act of the Accused/Defendant; and

3. The Accused/Defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. See Section 221 of the Penal Code and the case of UMARU SANI v. THE STATE (2017) LPELR- 43475 (SC) Page 5 per AUGIE, JSC. –Per M. S. Hassan, JCA

WEAPON – FAILURE TO TENDER WEAPON USED IN A CRIME

The correct position of the law is that failure to tender the offensive weapon used in the commission of a crime cannot result in the acquittal of a defendant this is because of the strong possibility of the defendant to destroy, throw or do away with the offensive weapon after the commission of the crime in order to exculpate himself from criminal responsibility. See TERLUMEN GIKI V. THE STATE (2018) LPELR-43604 (SC) page 27. – Per M. S. Hassan, JCA

SENTENCE – CONDUCT OF AN APPELLATE COURT REGARDING A TRIAL COURT’S SENTENCE

An appellate Court has jurisdiction to set aside or reduce a sentence if it finds in the record substantial evidence of mitigating circumstances in favour of the defendant. Where a trial Court imposed a sentence in punishment, but it is in accordance with the provision of the Penal Code the appellate Court has no business interfering with such discretion. – Per M. S. Hassan, JCA

SENTENCE – CONDUCT OF JUDGES WHEN IMPOSING SENTENCES

Where a Statute provides a statutory minimum for an offence, a trial Judge is not permitted to impose a sentence below the statutory minimum. The discretion of a trial Judge in sentencing operates only when the statute provides for a statutory maximum in sentencing. In such a case,there is a degree of flexibility in the range of the sentencing pendulum between a discretionary minimum and a maximum sentence that could not be exceeded. In this case the learned trial Judge has no discretion the punishment of Culpable Homicide Punishable with death is fixed by law. See Section 221 of the Penal Code. See also the case of HARUNA JIMOH AYOMITAN V. THE STATE (2018) LPELR-45700 (CA) Pages 48-49. – Per M. S. Hassan, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Penal Code
3.  Evidence Act

CLICK HERE TO READ FULL JUDGMENT