SANUSI HAMZA V. THE STATE

In the Court of Appeal

KADUNA JUDICIAL DIVISION

Wed Apr 5, 2023

Suit Number: CA/K/226A/C/2021

CORAM

Chidi Nwaoma Uwa JCA

AMINA AUDI WAMBAI JCA

Muslim Sule Hassan JCA

PARTIES

SANUSI HAMZA

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, JUDGMENT, 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, on the day of the pulling down of the house of the father of Yakubu Yasha’u and the death of Yakubu Yasha’u, he travelled to Makarfi, and on his way back, his vehicle broke down and he never return home until 10:00pm that day when he was arrested and taken to the police station where he made a statement and he was brought to court.

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 Whether the judgment of the lower court delivered on the 6th of August, 2020 outside the 3 months prescribed under Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) has occasioned a miscarriage of justice and that it is a nullity?

Ø Whether 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

JUDGMENT – EFFECT OF LATE DELIVERY OF JUDGMENT – THE NEED TO ESTABLISH THAT THE LATE DELIVERY OF JUDGMENT HAS OCCASSIONED A MISCARRIAGE OF JUSTICE

The correct position of the law in the light of Section 294 (5) of the 1999 Constitution (as amended) is that a judgment will not be invalidated or nullified for non-compliance with the provision of Section 294 (1) of the Constitution, unless and until an Appellate Court is satisfied that the party complaining of such non-compliance has shown that he has suffered a miscarriage of justice by reason of the late delivery of the judgment. See AKOMA V. OSENWOKWU (2014) 11 NWLR (Pt. 1419) 462. In determining the miscarriage of justice envisaged under Section 294 (5) of the Constitution, either of the parties in the suit must register a complaint, to show that the delay in delivering the judgment by the trial Court, from the time when the final addresses were adopted to the date of the judgment has affected the Court’s perception, appreciation and evaluation of the case. It is imperative to note that even where a party is aggrieved for late delivery of judgment, he needs more than Section 294 (1) of the Constitution to succeed on appeal. In the case of AKOME V. OSENWOKWU (Supra) per Galadima, JSC stated on page 488 as follows: ‘’The true position of the law, in the light of the foregoing provision, is that a party should not just go on appeal merely on the ground that the judgment he wants to set aside was delivered outside the three months (90 days) period. He will have to fight the appeal on all known grounds of appeal which can render the judgment unsuitable; not by merely on the assessment of facts.’’ His Lordship went on to hold that: ‘’The delay per se does not lead to a judgment being vitiated or nullified. The delay must occasion a miscarriage of justice too in such a conclusion. In other words, it has to be established that the delay occasioned a miscarriage of justice in that the trial Judge did not take a proper advantage of having seen or heard the witnesses testify or that he had let his impressions of the trial due to such inordinate delay.’’ – Per M. S. Hassan, JCA

CONSPIRACY – WHEN AN INDICTMENT CONTAINS A CHARGE OF CONSPIRACY

…I shall consider count two the substantive offence before coming back to count two the conspiracy count, this is in line with the Supreme Court directive in the case of ADESINA v. THE STATE (2016) LPELR-40028 (SC), My lord, Ariwoola, JSC said: ‘’It has been settled that the appropriate thing to do when an indictment contains a charge of conspiracy along with the substantive charge is to deal with the main charge first and then proceed later to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy.’’ – Per M. S. Hassan, JCA

PROOF – THE BURDEN OF PROOF AND HOW THE BURDEN SHIFTS

It is the bounden duty of the Prosecution under the statute and the Constitution to prove or establish the guilt of the Defendant/Accused beyond reasonable doubt. The Prosecution must establish the elements or ingredients constituting the offence for which the Accused is charged. The Defendant enjoys the presumption of innocence and as such no onus lies on the Defendant to establish his innocence. Conversely when the Prosecution establishes the ingredients of offence charged then evidential onus is on the Defendant to cast doubt on the case of the Prosecution. – Per M. S. Hassan, JCA

PROOF – BURDEN AND STANDARD OF PROOF OF THE COMMISSION OF A CRIME – WAYS OF PROVING THE GUILT OF AN ACCUSED

Section 135 (1), (2) and (3) of the Evidence Act provides:

‘’(1) 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 assert 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 the defendant.’’

This provision must be read along with Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides that: ‘’Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.’’

Thus the prosecution is under a duty to prove the components or elements of the offence for which the Accused/Defendant is charged. This can be proved vide any of the following methods viz:

By evidence of an eye witness or witnesses;

Through the confessional statement of the accused or Defendant;

Through circumstantial evidence.

See the cases of Shuaibu Abdu v. The State (2017) 7 NWLR (Pt. 1564) 171 at 186, per SANUSI,JSC, S.S. Yongo & Anor v. COP (1992) 8 NWLR (Pt. 257) 36 at 50 per KUTIGI, JSC later CJN (ofblessed memory) – Per M. S. Hassan, JCA

MISCHIEF – 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.’’

The prosecution under this section must prove the following essential ingredients of the offence:

That the accused committed mischief.

That it destroyed/damage a building and

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.

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 – TO PROVE THE OFFENCE 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 may 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.

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 THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH

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:

The deceased died;

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

III. 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 AU – Per M. S. Hassan, JCAThe 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:

The deceased died;

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

EVIDENCE – EYE-WITNESS EVIDENCE

…evidence of eye witnesses can be used by the prosecution to prove the commission of crime.– Per M. S. Hassan, JCA

CONSPIRACY – HOW COURTS ESTABLISH CONSPIRACY

…it is always difficult to prove the offence of conspiracy by direct evidence and as such the Courts have from time immemorial resorted to drawing inferences from facts and circumstances of each case based on oral and documentary evidence proffered and tendered by prosecution. There must be evidence and incidence of agreement to commit the alleged offence. – Per M. S. Hassan, JCA

EVIDENCE – FAILURE TO TENDER OFFENSIVE WEAPON USED IN COMMISSION OF A CRIME IN EVIDENCE

The correct position of the law as rightly observed by the learned trial Judge at page 229 of the record is that the failure to tender the offensive weapon used in the commission of a crime cannot result in the acquittal of a defendant 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 PETER-ODILI, JSC. – Per M. S. Hassan, JCA

SENTENCE – CONDUCT OF APPELLATE COURTS WHEN SENTENCE IS ACCORDING TO PROVISIONS OF STATUTES

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 accused/defendant. Where a trial Court imposed a sentence in punishment, but it is in accordance with the provisions of the Penal Code the appellate Court has no business in interfering with such discretion. – Per M. S. Hassan, JCA

SENTENCE – CONDUCT OF JUDGES WHEN STATUTE PROVIDES A MINIMUM OR MAXIMUM SENTENCE – DISCRETION OF JUDGES

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 the instant appeal 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 OWOADE, JCA. – Per M. S.Hassan, JCA