Legalpedia Citation: (2025-01) Legalpedia 28984 (CA)

In the Court of Appeal

HOLDEN AT KADUNA

Wed Jan 29, 2025

Suit Number: CA/K/34/C/2024

CORAM

Onyekachi Aja Otisi Justice of the Court of Appeal

Sybil Onyeji Nwaka Gbagi Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

PARTIES

THE STATE

APPELLANTS

ABDULAZEEZ ALI

RESPONDENTS

AREA(S) OF LAW

CRIMINAL LAW, CONSTITUTIONAL LAW, EVIDENCE, PENAL CODE, CULPABLE HOMICIDE, APPEAL, PRACTICE AND PROCEDURE, SENTENCING

SUMMARY OF FACTS

This case revolves around an appeal by the State against the judgment of the Kaduna State High Court in suit no: KDH/KAD/36C/2016. The Respondent (Abdulazeez Ali) was originally charged with culpable homicide punishable with death under Section 221 of the Penal Code Law, 1991, for causing the death of Safiya Abubakar Sabo by shooting her with his T06 Service Rifle on October 31, 2015. The Respondent was arraigned on June 22, 2016, and pleaded not guilty to the charge.

During the trial, the Appellant called six witnesses and tendered several exhibits, while the Respondent testified as DW1 in his own defense. The prosecution presented evidence that the Respondent had shot the deceased three times – in her right arm, chest, and stomach – at their residence in Police Mobile Force Barracks, Kakuri, Kaduna. Witnesses testified that after the shooting, the Respondent was heard saying, “I have killed Maman Zainab, let them kill me too,” before fleeing the scene.

The trial court, in its judgment, found the Respondent guilty of culpable homicide not punishable with death under Section 224 of the Penal Code (rather than the more serious charge of culpable homicide punishable with death), and sentenced him to ten years imprisonment with a fine of Five Hundred Thousand Naira (N500,000.00). The State, being dissatisfied with this decision, appealed to the Court of Appeal, arguing that the prosecution had proved all elements of the more serious charge.

HELD

1. The appeal was allowed.
2. The Court of Appeal held that the prosecution had successfully proved all three ingredients of culpable homicide punishable with death beyond reasonable doubt: that the deceased died, that her death resulted from the act of the Respondent, and that the act was intentional with knowledge that death or grievous bodily harm was its probable consequence.
3. The Court set aside the judgment of the trial Court delivered on March 2, 2021, which had convicted the Respondent of the lesser offense of culpable homicide not punishable by death.
4. The Court of Appeal convicted the Respondent of culpable homicide punishable with death under Section 221(a) of the Penal Code Law of Kaduna State 1991 and imposed the mandatory death sentence prescribed by law.

ISSUES

Whether the trial Court was wrong when it held that the prosecution was only able to prove the offence of culpable homicide not punishable with death rather than the offence of culpable homicide punishable with death and therefore sentenced the respondent to only 10 years imprisonment.

RATIONES DECIDENDI

CULPABLE HOMICIDE PUNISHABLE WITH DEATH – INGREDIENTS TO BE PROVED BEYOND REASONABLE DOUBT:

“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
MUSLIM SULE HASSAN, J.C.A.

METHODS OF PROVING GUILT IN CRIMINAL PROCEEDINGS – RECOGNIZED METHODS UNDER NIGERIAN LAW

“It
is also important to state that in criminal proceedings 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 MUSLIM SULE HASSAN, J.C.A.

SUFFICIENCY OF EYEWITNESS TESTIMONY – ESTABLISHING THE ELEMENTS OF CULPABLE HOMICIDE:

“PW2
in Evidence said he saw the respondent carrying a gun (Exhibit 2) and saw him
shoot at the deceased. PW3 corroborate the evidence of PW2 that after the
shooting and her return to the scene of the crime, she saw the respondent with
the gun (Exhibit 2), coming out of the house with smoke coming out of the gun
he was holding. That the respondent said: ‘I have killed Maman Zainab, let them
kill me too.'” – Per MUSLIM SULE HASSAN, J.C.A.

CONFESSIONAL STATEMENT – ADMISSIBILITY AND EVIDENTIARY VALUE

:
“In the case of Sule Musa v. State (2018) LPELR-43846 (SC) cited by the
Appellant’s Counsel. The Apex Court held. ‘Exhibit A is the appellant’s
confessional statement. It was admitted in evidence without any objection from
the appellant or his counsel. The effect of not objecting when his confessional
statement was admitted is that the statement was voluntarily made.’ In this
case, Exhibit 1 which was voluntarily made was properly admitted without any
objection. In the said Exhibit 1, the respondent confessed to killing his wife
the deceased and gave details of how it happened.” – Per MUSLIM SULE
HASSAN, J.C.A.

KNOWLEDGE OF CONSEQUENCES OF DEADLY WEAPONS – INTENTION IN CULPABLE HOMICIDE

:
“It is common knowledge that a rifle/gun/pistol or any other such weapon
are not toys and that their use on human body can and do often inflict serious
and grievous injuries which can and do often lead to fatal consequences
including death. It is therefore expected that a reasonable man would know that
shooting another human being with such a weapon as a rifle, would very likely
lead to very grievous bodily harm and also very likely to death also. In the
instant case, and from the circumstances surrounding the case, I am convinced
that the respondent, being a policeman, albeit, a dismissed one, had knowledge
that a rifle is a weapon that can be used and is sometimes used for that
purpose…” – Per MUSLIM SULE HASSAN, J.C.A.

CREDIBILITY OF WITNESS TESTIMONY – ROLE OF TRIAL JUDGE IN ASSESSMENT:

“It
is trite law that where credibility of a witness is in issue, the person who is
in the vantage position to decide it will be the one who heard evidence on both
sides and watched the demeanor of the witnesses. In other words, a person who
did not take part when witnesses were called by the complainant and the
defendant cannot be in a position to decide who has told the truth from the
person who was lying. See Olayori Muyideen, Esq. v. Nigerian Bar Association
& Anor. (2021) LPELR-55885 (SC) page 23.” – Per MUSLIM SULE HASSAN,
J.C.A.

BURDEN OF PROOF IN CRIMINAL TRIALS – STANDARD OF PROOF BEYOND REASONABLE DOUBT:

“The
burden of proof in criminal trials rests on the prosecution, and by virtue of
the provisions of Section 135(1) of the Evidence Act 2011, the prosecution must
prove its case beyond reasonable doubt. See Ogundiyan v. State (1991) 1 NSCC
448, The State v. Ajie (2000) 3 NSCQR 83, (2000) 7 S.C. (pt. 1) 24, Bolanle v.
State (2005) 11 NLR (PT 936), Ebeinwe v. State (2011) LPELR-985(SC) at pages
14-15, (2011) Pt. 1. MJSC 27, State v. Shehu (2024) LPELR-62197(SC) Effiom v.
State (2024) LPELR-61790(SC), Uwa v. State (2013) LPELR- 20329(CA).” – Per
ONYEKACHI AJA OTISI, J.C.A.

PROOF BEYOND REASONABLE DOUBT – SUFFICIENCY OF CREDIBLE EVIDENCE:

“‘Proof
beyond reasonable doubt’ simply means that there is credible evidence upon
which the Court can safely convict, even if it is upon the evidence of a single
witness. Afolalu v State (2010) 6 – 7 MJSC 187, Chukwunyere v. State (2017)
LPELR-43725(SC), Iliyasu v. State (2024) LPELR-62971(SC). It is only when all
the ingredients of an offence have been clearly established and proved by the
prosecution that the offence is proved beyond reasonable doubt. Yongo &
Anor v. C.O.P (1992) LPELR-3528(SC), Osetola v. State (2012) LPELR-9348(SC),
Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523, Ajayi v. State (2013) 2-3
MJSC (PT 1) 59.” – Per ONYEKACHI AJA OTISI, J.C.A.

METHODS OF ESTABLISHING CULPABLE HOMICIDE – ACCEPTABLE FORMS OF EVIDENCE

:
“The evidence required to establish the offence can be grouped into three.
1. Direct evidence of an eye witness, 2. Circumstantial evidence; and 3.
Confessional statement, or 4. By the combination of all or any of the above
methods. See Onyenye v. State (2012) LPELR-7866 (SC), Umar v. State (2014)
LPELR-23190(SC), Ugboji v. State (2017) LPELR-43427(SC), Iliyasu v. State
(2024) LPELR-62971(SC).” – Per ONYEKACHI AJA OTISI, J.C.A.

CONSTITUTIONAL RIGHT TO LEGAL REPRESENTATION – EFFECT ON ADMISSIBILITY OF CONFESSIONAL STATEMENT:

“Learned
Counsel for the Respondent had argued erroneously that the confessional
statement of the Respondent breached or flagrantly violated the constitutional
right of the accused to a consultation with the legal practitioner or any
person of his choice before the making of the statement ab-initio. He relied on
the provisions of Section 35 (2) of the Constitution of the Federal Republic of
Nigeria, 1999 (as altered)… The Respondent was represented by counsel at the
trial Court when the confessional Statement Exhibit 1 was tendered and admitted
in Evidence without objection by his Counsel. The Constitutional right of the
Respondent was safe guarded from the record throughout the trial of the
Respondent at the lower Court. This objection is without merit and is hereby
dismiss.” – Per MUSLIM SULE HASSAN, J.C.A.

MANDATORY SENTENCE IN CULPABLE HOMICIDE – ABSENCE OF JUDICIAL DISCRETION:

“The
law is trite by plethora of judicial authorities that 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 Law. See also the case of HARUNA
JIMOH AYOMITAN V. THE STATE (2018) LPELR-45700 (CA) Pages 48-49.” – Per
MUSLIM SULE HASSAN, J.C.A. 

CULPABLE HOMICIDE PUNISHABLE WITH DEATH – STATUTORY PROVISION AND PRESCRIBED PUNISHMENT

“I
am in complete agreement with the submission of learned counsel for the
Appellant that the punishment prescribed by law for culpable homicide
punishable with death is the maximum sentence of death and which the trial
Court has no discretion to vary it. Section 221 (a) of the Penal Code Law of
Kaduna State provides as follows: ‘Except in the circumstances mentioned in
Section 191, culpable homicide shall be punished with death: a. Where the act
by which the death is caused is done with the intention of causing death; or b.
Where the doer of the act knew or had reason to know that death would be the
probable and not only a likely consequence of the act or of any bodily injury
which the act was intended to cause.'” – Per MUSLIM SULE HASSAN, J.C.A.

PROSECUTION’S BURDEN IN CRIMINAL CASES – NUMBER OF WITNESSES REQUIRED

“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.” – Per MUSLIM SULE HASSAN, J.C.A.

CASES CITED

STATUTES REFERRED TO

• Penal Code Law of Kaduna State, 1991
• Evidence Act, 2011
• Constitution of the Federal Republic of Nigeria, 1999 (as altered)
• Kaduna State Administration of Criminal Justice Law, 2017
• Criminal Procedure Code of Northern Nigeria

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