CORAM

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PARTIES

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TUKUR SALEH APPELLANTS

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THE STATE RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant was arraigned at the Jigawa State High Court, for knowingly causing the death of one Idi Musa by hitting him with a stick on the head being an offence under Section 221(b) of the Penal Code Law. The Prosecution called and relied on two witnesses to prove its case while the Appellant gave evidence for himself with no other witness testifying in his defence. At the end of trial, including addresses of counsel, the trial judge convicted and sentenced the Appellant under Section 224 of the Penal Code Law of Jigawa State for the offence of culpable homicide not punishable with death. Aggrieved by the judgment of the trial court, the Appellant appealed to the Court of Appeal, where the decision of the trial court was affirmed. This is a further appeal arising from the lower court’s judgment affirming the trial court’s decision.

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HELD

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Appeal Dismissed

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ISSUES

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1. Whether, in view of the entire circumstances of this case, the Court of Appeal rightly affirmed the judgment of the trial court convicting and sentencing the appellant for culpable homicide not punishable with death?

2. Whether in view of the provision of Section 36(6)(c) and Section 36 (6)(e) of the Constitution of the Federal republic of Nigeria 1999 (as amended) was a breach of the Fundamental Human Rights of the accused person?

 

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RATIONES DECIDENDI

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APPEAL- CONDITIONS FOR A SUCCESSFUL APPEAL

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“My lords, appeals are won and lost on the basis of misapprehension of fact and/or misapplication of the law to the ascertained facts by the court which decision is being appealed against. Thus an appeal only succeeds where either or both mistake(s) in the decision on appeal as well as the miscarriage of justice the very mistake occasioned are demonstrated by the appellant. Otherwise, the appeal being unmeritorious, is eventually dismissed.”

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PERVERSE FINDINGS- WHETHER PERVERSE FINDINGS CAN SUSTAIN A JUDGMENT

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“It is indeed the law that perverse findings cannot sustain a judgment on appeal. See Jolayemi & ors V. Alaoye and anor (2004) LPELR-1625 (SC); Alhaji Mohammed Mamman V. Federal Republic of Nigeria (2013) LPELR-20082 (SC).”

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FINDINGS OF FACT -INSTANCE WHEN AN APPELLATE COURT WOULD INTERFER WITH THE FINDINGS OF FACTS BY LOWER COURTS

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“I agree with learned counsel that if these complaints are made out against the lower court’s decision being reviewed this Court will be duty bound to intervene and set-aside the lower court’s findings which ignore the evidence before it or arise in breach of the Constitution. See Baridam V. The State (1994) LPELR-753 (SC) and Udor V. State (2014) LPELR-23064 (SC).
CULPABLE HOMICIDE PUNISHABLE WITH DEATH- SECTION 221 0F THE PENAL CODE
“It is common ground that the appellant was arraigned at the trial court under Section 221 of the Penal Code for being responsible for the death of Idi Musa and liable on conviction to death sentence. The Section provides:
221 Except in the circumstances mentioned in Section 222 culpable homicide shall be punishable with death-
If the act by which death is caused is done with the intention of causing death or
If the doer of the act knew or had reason to know the 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.”

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OFFENCE OF CULPABLE HOMICIDE – INGREDIENT OF THE OFFENCE OF CULPABLE HOMICIDE NOT PUNISHABLE WITH DEATH THAT A PROSECUTION MUST PROVE – SECTION 222(4) AND (7) OF THE PENAL CODE

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The Penal Code in Section 222(4) and (7) provide:
“Section 222-
(4) Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.
(7) Culpable homicide is not punishable with death when a person causes the death of another by doing any rash or negligent act.”
Section 220(C) of the Penal Code had provided thus: –
“Section 220 Whoever causes death: –
(C) by doing a rash or negligent act, commits the offence of culpable homicide.
Both counsel rightly agree that a conviction for the offence of culpable homicide not punishable with death under Section 222(4) and or (7) of the Penal Code enures to the prosecution on their proving beyond doubt: –
The death of the deceased.
The act of the accused that caused the death of the deceased.
That the act of the accused was in the course of a sudden fight and undue advantage was taken by the accused or that death was caused by accused person’s rash or negligent act.”

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CONTRADICTIONS IN THE EVIDENCE OF PROSECUTION WITNESSES – EFFECT OF MATERIAL CONTRADICTIONS IN THE EVIDENCE OF PROSECUTION WITNESSES

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“It is trite that material contradictions in the evidence of the prosecution witnesses may disentitle the trial court from convicting an accused person.”

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CRIMINAL TRIAL – IMPLICATION OF A FAILURE TO TIMEOUSLY RAISE AN OBJECTION TO AN UNLAWFUL PROCEDURE ADOPTED AT TRIAL

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“It is trite that where an accused who was represented by a counsel failed to raise an objection to an unlawful procedure at trial, he will not be allowed to raise same on appeal level. In Jurwode V. The State (2000) 15 NWLR (Pt 691) 467 at 488 this Court particularly held:-
The appellant was not prejudiced at all… since neither himself nor his counsel ever at any time raised any objection to the absence of an alleged interpreter. Failure of a party as in the instant case, to object to the adverse procedure adopted at the trial debars him from raising it later.
See also Marcel Nnakwe V. The State (2013) LPELR-20941 (SC).”

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FINDINGS OF FACTS – ATTITUDE OF APPELLATE COURTS TO FINDINGS OF FACTS BY A TRIAL COURT

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“There is a rebuttable presumption that findings and conclusions of a trial Court are correct because there is not much an appellate Court can do when an Appeal turns on the issue of credibility. It is that Court that saw the witnesses, heard them and watched their demeanour that is in a position to believe or disbelieve them; that advantage can never be recaptured by an appellate Court- see Sugh V. State (1988) 1 NWLR (Pt. 77) 475 and Adelumola V. The State (1988) 1 NWLR (Pt. 73) 683.

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PROOF OF CAUSE OF DEATH – WHETHER IT IS IN ALL CASES THAT MEDICAL EVIDENCE IS NECESSARY TO PROVE THE CAUSE OF DEATH OF A DECEASED PERSON

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“It is settled that where a man is attacked and he dies in similar circumstances, it can be inferred that it was the wound inflicted that caused the death – see Ben V. State (2006) 16 NWLR (Pt 1006) 582, wherein Akintan, JSC, said:
In cases, where a man was attacked with lethal weapon, and he died on the spot, cause of death can properly be inferred that the wound inflicted caused the death. Put in another form, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where death is instantaneous or nearly so.
Katsina-Alu, JSC (as he then was), further observed therein as follows:
The Appellant struck the deceased on the head. He fell down unconscious, never regained consciousness until he died a few hours later in hospital. Medical evidence was not necessary to determine the cause of death in the circumstances of this case. It could properly be inferred that the wound inflicted caused the death of the deceased.”

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TENDERING OF EVIDENCE- WHETHER A FAILURE TO TENDER IN EVIDENCE THE WEAPON USED IN THE COMMISSION OF AN OFFENCE IS FATAL

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“This court has in a number of decided cases, held that the failure by the prosecutor to produce and tender in evidence the weapon used in the commission of an offence is not fatal, provided there is circumstantial evidence strong enough to point to the accused as theperpetrator of the crime. See Olayinka v State (2007)9 NWLR (Pt. 10401561. Victor v State (2013)12 NWLR (Pt. 1369)465, State v Umaru (2014) LPELR 224 (Sic).”

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CASES CITED

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None

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STATUTES REFERRED TO

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

Evidence Act 2011

Penal Code Law

 

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