Babagana Hamidu v. The State

This is an appeal against the judgment of the Court of Appeal, Kaduna Judicial Division in Appeal No. CA/K/47/C/2012 delivered on 9th April 2014 which affirmed the conviction of the appellant for the offence of culpable homicide punishable with death.

The facts of the matter which culminated in this appeal arose from the arrest of the Appellant on suspicion of causing the death of the deceased. The Appellant after investigations was charged and tried before Hon. Justice P.A. Mahmoud of the Kano State High Court of Justice for the offence of culpable homicide punishable with death, contrary to Section 221(b) of the Penal Code.

Upon conclusion of trial, the trial Judge found the Appellant guilty as charged and consequently sentenced the Appellant to death by hanging.

Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court of Appeal, whereupon his appeal was dismissed, hence, the appeal to this Court.

The Appellant’s Brief of Argument is dated 10th November 2014 and filed on 12th November 2014. Appellant’s counsel

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distilled five issues for determination to wit:
1. Whether the proceeding of both the Trial and indeed the lower Court did accord the Appellant his rights as enshrined under Section 36(6)(b)(c) and (d), and Section 36(11) of the Constitution of the FRN 1999 (as amended).
2. Whether the trial and indeed the lower Court were both right in convicting and sentencing the Appellant primarily on the uncorroborated and involuntary confessional statement (Exhibit 9) of the Appellant.
3. Whether homosexual advances not enough provocation unless life of the Victim is under threat of death.
4. Whether the failure of the trial Court to comply with the requirement of Sections 191 and 194 of the Criminal Procedure Code can be waived by counsel even when such could occasion miscarriage of justice.
5. Was the lower Court right in holding that all that is required to prove homicide is that the death of the deceased was the direct result of the Appellant’s act and no more?

The Respondent’s Brief of Argument is dated 15th December 2014 and filed on 23rd December 2014. Respondent’s counsel formulated four issues for determination thus:
1. Whether

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the Appellant’s right to counsel has been breached considering the attitude of the Appellant in his inconsistent and trickish way of changing counsel.
2. Whether the Court below was right when it affirmed the decision of the lower trial Court in convicting and sentencing the Appellant to death contrary (sic) to Section 221(b) of the Penal Code having regard to circumstantial evidence and the confessional statement of the appellant.
3. Whether the Court below was right in affirming the decision of the trial Court that the purported defence of provocation put up by the Appellant was farfetched and unreasonable.
4. Whether the Court below was right in holding that the appellant was deemed to have waived the alleged noncompliance with Sections 191 and 194 of the Criminal Procedure Code when he did not raise the issue at the earliest opportunity.

A careful examination of the issues as presented by counsel to both parties reveal that they are the same in substance and address various aspects of the decision of the lower Court affirming the conviction and sentence of the Appellant by the trial Court. This appeal will therefore be determined

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on the sole issue of whether the lower Court was right in affirming the conviction and sentence of the Appellant for the offence of culpable homicide punishable with death, contrary to Section 221(b) of the Penal Code. All the arguments as articulated by the parties would be duly considered.

SOLE ISSUE
Whether the lower Court was right in affirming the conviction and sentence of the Appellant for the offence of culpable homicide punishable with death, contrary to Section 221(b) of the Penal Code.

Learned counsel for the Appellant postulated that the commission of the offence by the Appellant was not established beyond a reasonable doubt before the trial Court as required by law. He asserted that the lower Court was wrong to have affirmed the decision of the trial Court primarily on the basis of circumstantial evidence as circumstantial evidence must not only prove the act or conduct of the accused but must also necessarily prove concurrently the intention of the accused to satisfy the ingredient of the offence that the act was done with intention of causing death or that it was done with intention of causing such bodily injury. He also took issue

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with the sufficiency of the circumstantial evidence because of lack of autopsy report which would have established the cause death.

He relied on Section 138(1) of the Evidence Act 2011; Ebenehi v. State (2009) 3 SCNJ 20 at pages 30-31; Michael v. State (2008) ALL FWLR (PT. 431) page 875 at 886,. Ndike v. The State (1994) 9 SCNJ 46 at 56; Ahmed v. The State (2001) 12 SCNJ; and Igabele v. State (2006) ALL FWLR (pt.311) 1797 at 1813 A-C.

Counsel for the Appellant argued that the confession of the Appellant was involuntarily made; that the trial within trial was not properly conducted and did not result in a sound conclusion because the same Investigating Police Officer, who was the main figure in the alleged torture meted on the Appellant that elicited the confession, and the DSP before whom the statement was endorsed were the only witnesses who testified on the Prosecution’s behalf, with other members of the team not being called. He submitted that if the involuntary confession was expunged, then the Appellant would not have been convicted for the offence charged since circumstantial evidence and doctrine of last seen relied on by the lower Court

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cannot in law stand each on their own.

He relied on Obidiozo v. The State (1987) 4 NWLR (pt.67) 74,. Natsaha v. The State (1972) 4 SC.1; and Nguma v. AG Imo State (2014) 2 SCNJ 1 at 22.

Appellant’s counsel posited that the harassment of the Appellant by the deceased vide unwanted homosexual advances was of such a nature as to constitute provocation and that the learned trial Court ought to have examined the defence of provocation as contained in the confessional statement of the Appellant which the trial Court relied on to convict the Appellant. He asserted that the test in determining the effect of provocation is not as held by the lower Court that is, “unless the appellant shows his survival was to kill the deceased” but is whether the provocation temporary deprived the Appellant of the powers of self-control. This is because words of mouth have often times found/held to amount to provocation which could mitigate the penalty on any accused.

He relied on Shande v. State (2005) ALL FWLR (pt. 279) 1342, Uwaekweghinya v. State (2005) ALL FWLR (pt 259) 1911 at 1928; Abdo Anka v Sokoto NA (1963) NNCN.11; and State v. Kabari Munyiewa SC 303.

Learned

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counsel for the Appellant also contended that the fundamental right of the Appellant to a counsel of his choice was infringed on by the trial Court. He stated that the proceedings at the trial Court commenced on 16th October 2006 and ended 21st February 2011, and that throughout the period of the trial, ten counsels appeared at various times and from different law offices for the defense of the Appellant without the Appellant’s approval except Barr. O. Morgan. He submitted that the foregoing was a fallout of the ruling of the trial Court in denying the Appellant adjournment to enable a counsel of his choice in person of Mr. Mshailia to appear for him. He submitted that as a result, the proceedings between the period of 22nd February 2007 and 23rd February 2009, in so far as it infringes on the right of the Appellant to fair hearing and right to counsel of his choice, is null and void.

He relied on Section 36(4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); FRN V. AKUBUEZE (2010) 6 SCNJ 120; Mohamed v. Kano N.A (1968) 1 ALL NLR 424; and Kim v. The State (1992) 4 SCNJ 81.

Appellant’s counsel argued that the failure of the trial Court

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to comply with Sections 191 and 194 of the Criminal Procedure Code by its failure to ensure the Prosecution gives a summary of the case at the end of the trial meant that the Appellant went first and the procedure denied the Appellant’s right to be heard last by the trial Court, having not raised a fresh issue in his reply to warrant the prosecution making a reply on point of law. He also argued that it was this strange procedure that resulted in the Prosecution introducing a new issue-principle of last seen. Counsel asserted that the purpose of Sections 191 and 194 of C.P.C is to give the Appellant sufficient description of the nature and particulars of the charge and give him an opportunity to prepare for his defence as provided by Section 36(6) of the Constitution. He further submitted that the presence of counsel does not absolve the Court from its responsibility to ensure that all necessary steps are taken to arrive at the justice of the case.

He relied on Agoma Achaji & Others v. C.O.P. (1963) NNLR 74 and State v. Falade & Ors (1971) NNLR 109.

On the other hand, learned counsel for the Respondent argued that the trial Court correctly convicted

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the Appellant and the lower Court was right to have upheld the conviction as the conviction was based on circumstantial evidence which left no ground for reasonable doubt, corroborated with the voluntary confession of the Appellant. He referred to the evidence of PW 11 who last saw the deceased with the Appellant on 4/12/2004; the evidence that PW9 saw the Appellant with the deceased’s car in the early hours of the following day of 4/12/2004; the evidence that the Appellant took the deceased’s car to PW8 with blood stains to wash and the evidence that Appellant took the Police to Maiduguri where he hid the deceased’s car and also showed them the spot where he dumped the corpse of the deceased.

He relied on Shazali v. State (1998) NWLR (Pt. 93) 164; Kalu v. State (1993) 6 NWLR (Pt 300) 385.SC: Peter v. State (1997) 12 NWLR (Pt. 531) 1 SC; andAriche v. State (1993) 6 NWLR Pt. 302, 752 at 764.

Counsel for the Respondent asserted that from the evidence, it is clear that the trial Court followed all the laid down criteria in admitting Exhibit 9 (the Appellant’s confessional statement) and there is no reason to disturb the findings made

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thereon. He postulated that the absence of the body is not a defence and there was no need to establish motive so long as it is fully established that the Appellant’s act led to the death and the act resulting in the death was unlawful.

He relied on Nwangbomu v. State (1994) 2 NWLR (Pt. 327) 380 SC; Solola v. State (2005) ALL FWLR (Pt.269) 175; Edamine v. State (1996) 3 NWLR (Pt.438) 530 SC; Emmanuel Nwaebonyi v. State (1994) NWLR (Pt.343); Ariche v. State (1993) 6 NWLR (Pt. 302) 752 SC; in Edim v. State (1972) 4 SC,. Babuga v. State (1996) 7 NWLR Pt. 460, 279 SC; Ubani v. State (2003) 18 NWLR (PT.851) 224 SC; and Nweke v. State (2001) NWLR (Pt. 704) 588 @ 604 -603.

Respondent’s counsel contended that for the defence of provocation to avail the Appellant, he must have experienced a sudden and temporary loss of self-control rendering him subject to passion as to make him for the moment not a master of his mind, which was not present in this instant matter and that the learned trial Judge was right to find that even if the deceased made homosexual advances to the appellant, the force and the weapon-iron rod- used by the Appellant to hit the deceased

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both on his neck and arm was excessive and disproportionate to the alleged provocation.

He relied on George v. State (1993) 6 NWLR (Pt. 29) 41 SC,. and Ekpenyong v. State (1993) NWLR Pt. 295 @ 522.

Counsel further submitted that the Appellant was not denied his right to counsel but that the Appellant sought to hide under the right to frustrate the proceedings. He stated that as discernible from the printed record, the Appellant had many lawyers of his choice, but he only preferred Mr. H. U. Msheila who attended the Court only once.

He relied on Chief Obafemi Awolowo v. The Federal Minister of Internal Affairs & Ors. (1962) LLR 177; Nwambe v. State (1995) NWLR Pt. 385, 403, SC. and Abiriton v. State (2013) 13 NWLR (Pt.1372) 587.

Respondent’s counsel further argued that the mere irregularity, if any, occasioned by the failure to comply with Sections 191 and 194 of the Criminal Procedure Code could not be a basis to truncate the decision of the trial Court as the Appellant has not established how his case was adversely affected; addresses from counsel are a matter of formality and do not determine the decision of the trial Court.

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Appellant’s counsel did not object at trial and the provision of Section 382 of the Criminal Procedure Code is to the effect that such cannot affect a judgment unless the appeal Court or reviewing authority thinks that a failure of justice has in fact been occasioned by such error, omission or irregularity.

He relied on Buraima Ajayi & Others v. Zaria N.A. (1964) NNLR 61; Mohd. Arab v. Bauchi N.A (1965) NNLR 48; State v. Gwonto & 1 Or. (1983) 14 NSCC 104; and Adekunle v. State (2006) 14 NWLR p.1000, 717.

RESOLUTION OF THE ISSUE
There is no gainsaying the fact that in a charge of culpable homicide punishable with death under Section 221(b) of the Penal Code Cap 105 Laws of Kano State 1991, the prosecution has the onus of establishing the following facts beyond reasonable doubt.
1. That the deceased died.
2. That his death was caused by the accused Person.
3. That the act of the accused which caused the death was intentional having the knowledge that death or grievous bodily harm was the probable consequence of the act.
This trite principle of law was restated by this Court in the case of AFOLABI v. STATE (2016)

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LPELR-40300(SC) (Pp 48 -49 Paras C – 8) per Amiru Sanusi, JSC thus:
“It needs to be reiterated here that in order to secure conviction in a charge of culpable homicide punishable with death contrary to Section 221 of the Penal Code, the prosecution has the tasking burden to prove the following ingredients of the offence, namely: (a) That the death of a human being has actually taken place; (b) That such death was caused by the accused. (c) That the act was done with the intention of causing such bodily injury as: (i) the accused knew or had reason to know that death would be the probable and not only likely consequence of his act or (ii) that the accused knew or had reason to know that death would be the probable and not only likely consequence of any bodily injury which the act was intended to cause; Thus, in order to prove that the appellant had actually killed the deceased, the prosecution should adduce credible evidence linking him with the death of the deceased. This means that there should be evidence of positive act or even negative omission of the appellant which caused injury to the deceased and that the death of the deceased was as a result of

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such injuries. See Onah v. State (1998) ACLR 642 at 656.”
See: UDO v. STATE (2016) LPELR-40721(SC); ADAMU v. STATE (2014) LPELR-22696(SC); and JUA v. STATE (2010) LPELR-1637(SC).

The gravamen of the case of the appellant before this Court was that the evidence adduced by the prosecution before the trial Court was insufficient to establish the guilt of the appellant for the offence charged.

It is the contention of the learned counsel for the appellant that the learned trial Judge was wrong in relying on the confessional statement of the appellant in finding him guilty of the charge of murder of the deceased since the alleged confession was not voluntary. Learned counsel further argued that the circumstantial evidence before the trial Court was not compelling and did not point to the appellant as the person that murdered the deceased.

In this instant appeal, the confessional statement of the appellant was admitted by the trial Court as exhibit 9. In it, the appellant describes in detail how he murdered the deceased, what he did with the corpse of the deceased and the steps he took in trying to hide the vehicle of the deceased.

In my view,

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evidence abounds linking the appellant with the commission of the offence and which evidence further corroborates the confessional statement of the appellant. For instance, the PW6, a family friend of the deceased testified that on 4th December 2004, the last day anybody saw the deceased alive, he visited the deceased and had dinner with the appellant and the PWII. The deceased later went out together with the appellant and PWII, leaving the PW6 in the house, who also left for home at around midnight after waiting in vain for the return of the deceased. The PW6 was not cross-examined. The PWII testified that the deceased in the company of the appellant later took him to his house at ‘Jan Blo’ at about 10 p.m. PW9, a petrol seller, testified that when he woke up for the early morning prayers on 5th December 2004, he saw the appellant standing by exhibit 5 which is the car of the deceased with a mechanic and that the appellant bought 20 litres of petrol from him and instructed him to pour some into the tank of the car. The PW9 positively identified exhibit 5 (the deceased’s car). There was also evidence that the appellant took the deceased`s car to PW8 with

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bloodstain to wash and later drove it to Maiduguri where he hides it in the house of the PW2, where it was later recovered when the police was led to the house by the appellant.

All these pieces of evidence led by the Prosecution/Respondent were not materially challenged. I agree with the lower Court that the evidence was so overwhelming and strong against the appellant and gave no room for disbelieving that the appellant was responsible for the murder of the deceased. There is indeed no explanation offered by the appellant apart from a mere denial of the commission of the offence.

The other point taken by the appellant revolves around the absence of the body of the deceased as being detrimental to the respondent’s case. That point is also clearly misconceived in view of the compelling evidence before the Court which established the guilt of the appellant for the offence charge.
The Law is trite that a conviction for murder can be secured without the recovery of the dead body where there is positive evidence that the deceased has been killed as in the instant case.
This Court in the case of HARUNA v. STATE (2022) LPELR-58063(SC) (Pp 10 -11

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Paras C -C) per Chima Centus Nweze, JSC thus:
“Regarding proof of death of a human being, the fact of death may be proved by the production of a post-mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body. However, it is now well settled that a conviction for culpable homicide punishable with death or murder can be made without the recovery of the dead body if there is positive evidence that the deceased has been killed. In effect, the need to carry out a post-mortem examination or for anyone to identify the body of the deceased to a doctor is not a sine qua non in all murder cases, Edim v. State [1972] 4 SC 160, Enewoh v. State [1990] 4 NWLR (pt. 145) 469; Idemudia v. State [1999] 7 NWLR (pt. 610) 202,. Zubairu v. State [2015] 16 NWLR (pt. 1486) 504; Sale v. State [2020] 1 NWLR (pt. 1705) 205. Thus, the identification of a deceased person’s corpse could be by circumstantial evidence but such evidence must be cogent, direct and unequivocal. In effect, the position of learned counsel, though good law, is narrow in its application. It is restricted to situations where the identlty of the body

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meant to be examined by the doctor is shredded in doubt and there is no other evidence to clear the doubt.”
See SALE v. STATE (2019) LPELR-52899(SC).

A careful look at the proceedings before the lower Court reveals that the fundamental right to counsel of the Appellant was not breached. He was afforded enough room to be represented by counsel of his choice which he failed to take advantage of. The law is trite that an Accused Person has the right to counsel of his choice and if such choice is not feasible, then the Court is eminently empowered to appoint a counsel for that Accused.

There is no gainsaying the fact that there exists several safeguards in statute to ensure that an accused person has a fair hearing because he is innocent until proven guilty. The litmus test however for deciding whether such a safeguard has been grievously breached in a manner that would result in a discharge or mistrial is whether such breach results in a miscarriage of justice. A look at the evidence before the trial Court reveals that the failure to fully comply with the provisions of Sections 191 and 194 of the Criminal Procedure Code did not materially affect the

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case of the Appellant at trial and did not result in a miscarriage of justice.
This is more so where as in this case the Appellant was duly represented by counsel who folded his arms and watched the change in procedure but failed to complain. He cannot do so now. See NNAKWE v. STATE (2013) LPELR-20941 (SC).
In resolving this issue, the Court of Appeal at page 322 of the records held thus:
“It is very easy to resolve this issue 2 based on the fact that the appellant was represented by a counsel at the trial Court. The said counsel should have raised an objection at the time of non-compliance with the rules in Sections 191 and 194 of the Criminal Procedure Code he is now complaining of the breach. Since he did not raise his complaint at the earliest opportunity he is deemed to have waived it. I therefore agree with the submission of the respondent that the rule in The State vs. Gwonto (supra) would apply where the appellant was represented by counsel and he was deemed to have waived the procedure.”
I agree with the decision of the lower Court that where counsel for the appellant stood and failed to complain about the procedure adopted by the

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trial Court, he cannot be allowed to raise an objection at this stage. He must be taken to have waive his right to do so.

Learned counsel for the appellant had raised the defence of provocation as a mitigating factor in favour of the appellant. The appellant’s grouse is that the lower Courts did not properly consider the defence of provocation in favour of the appellant.
By the provision of Section 222(1) of the Penal Code applicable in Kano State it is stated thus:
“culpable homicide is not punishable with death if the offender whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident”.
To succeed in the defence, the accused must establish that the act of provocation was “grave and sudden” that he must have been deprived of the power of self control and the extent of retaliation is proportionate to the provocation offered. See GALADIMA VS THE STATE (2012) LPELR 15530 (SC); ISA KASSIM VS THE STATE (2017) LPELR 42586 (SC); ABBAS MUHAMMAD VS THE STATE (2017) LPELR 42098 (SC).

In Exhibit 9, the

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appellant raised the defence of provocation.

He alleged that the deceased made homosexual advances towards him and that when the deceased tried to touch him, he pushed and punched him and that he got out of the vehicle in which they were, got hold of an ‘iron rod and hit the deceased on the head and when the deceased fell down and the appellant believing he wanted to get up hit him once again on his arm. I agree with the lower Courts that even if there was any provocation from the deceased the retaliation was not commensurate with the provocation. It was indeed disproportionate.

In summation, I resolve the lone issue against the appellant. The appeal lacks merit and it is hereby dismissed. The judgment of the Court of Appeal Kaduna Division delivered on 9th April 2014 affirming the conviction and sentence of the appellant to death by hanging by the High Court of Kano State delivered on 21st February 2011 is hereby affirmed.