Hali Hassan v. The State

The instant appeal is against the judgment of the Court of Appeal Sokoto Judicial Division, delivered on March 23, 2017 in appeal NO. CA/S/21C/2015. By the said judgment, the Court below affirmed the judgment of the Sokoto State High Court delivered on November 20, 2014, thereby convicting and sentencing the Appellant to death for the offence of culpable homicide punishable with death, contrary to Section 221(b) of the Penal Code.

BACKGROUND FACTS
The Appellant was arraigned before the trial High Court upon a one count charge, dated December 5, 2012:
CHARGE
That you Hali Hassan on or about 11th day February, 2012, at about 0100hrs at Unguwar Marke Village of Tambuwal Local Government Area of Sokoto State within the Sokoto Judicial division committed the offence of Culpable Homicide to wit: you caused the death of one Hali Nakalangu in which you stabbed him twice on his neck with knife which resulted to his death at the spot with the knowledge that his death will be the probable consequences of your act, you thereby committed an offence punishable under

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Section 221(b) of Penal Code.

The charge was read and explained to the Appellant, to which he pleaded not guilty.

In the course of the trial, a total of four witnesses testified for the Prosecution as PW1, PW2, PW3 and PW4, respectively. The prosecution equally tendered a knife and the Hausa and English versions of the extra-judicial statement of the Appellant, which were admitted as Exhibits A, B & E, respectively.

At the end of the prosecution’s case, the Appellant testified as DW1 in his defence, albeit called no any other witness.

The trial having come to a close, the trial Court adjourned for judgment which was delivered on 20/11/2014, to the conclusive effect:
“On the whole, it is the view of this Court that the prosecutions have proved its case against the Accused person, Hali Hassan and I so hold.
The prosecution having proved the charge of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code against the Accused person, Hali Hassan, the Accused person is thereto hereby convicted as charged.
ALLOCUTUS
M. A. Jamo: we thank the Honourable Court for the well-researched judgment.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; scrollbar-color: var(–thumbBG) var(–scrollbarBG);”>

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Maryam Attahiru:
We equally thank the Honourable Court for the sound judgment.
SENTENCE
Court: The Accused person, Hali Hassan, having been found guilty of the offence of culpable homicide punishable with death contrary to Section 22(b) of the Penal Code, you are hereby sentenced to death. You are to be hanged in the neck till you are dead.
May your soul rest in peace.
SIGNED
HON. JUSTICE M. U DOGON DAJI
(JUDGE)
20/11/2014.

Not unnaturally, the Appellant did not take kindly to the conviction and sentence to death passed thereupon by the trial Court. Thus, he appealed to the Court below vide the Amended Notice of Appeal filed on 05/02/2016.

The Court below dutifully heard the appeal and delivered its judgment on 23/03/2017, to the conclusive effect:
“In the light of the above, the trial Court had adequately considered the defence of provocation raised and acted properly in rejecting the defence for being disproportionate.
I therefore, find no merit in this appeal and I hereby dismiss it. The conviction and sentence of the appellant are accordingly affirmed.”

Thus, against the backdrop of the

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dismissal of his appeal by the Court below, the Appellant has lodged the instant appeal, thereby urging upon this Court to allow the appeal and set aside the concurrent findings of the trial High Court and the Court of Appeal.

Incidentally on the 21/03/2024, when the appeal came up for hearing, the learned Counsel had the opportunity of addressing the Court and adopting the submissions contained in their respective briefs of argument, thus warranting the Court to reserve judgment to today.

The Appellant’s brief of argument was settled by Oluwatosin Abiodun Ajose Esq., on 01/4/2019. At pages 1-2 of the brief, a sole issue has been canvassed for determination:
“Whether in the circumstances of this case, it is proper in law for the Court to have rejected the defence of provocation on the grounds that the reaction of the Appellant was disproportionate to the action with which he was provided of, and that there was enough time for his temper to have cooled down?”

The sole issue has been extensively argued under paragraphs 4.0 to 4.19 (at pages 2-17 of the Appellant’s brief). The Appellant’s learned counsel has deemed it expedient to identify

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what he calls two sub issues for the determination of the appeal:
1. Whether there was enough time for the passion of the Appellant to have cooled before the assault on the deceased which led to (his) death.
2. Whether the mode of retaliation was not proportionate to the act of provocation.

The sub-issue I is extensively discussed under paragraphs 4.2 to 4.8 (at pages 2 to 7 of the Appellant’s brief). It is submitted in the main, that the evidence on record does not support the conclusion reached by the Court below at pages 142, lines 16-17 and 143 lines 1 of the Record of Appeal.

According to the learned Counsel, from the totality of the evidence of PW2, one can come to the conclusion that the distance between the house where the Appellant met the deceased giving his wife money and the scene of the crime are not far apart. See page 23 lines 17-24 of the Record regarding the testimony of the PW2 in question.

It is argued by the learned Counsel, that the scenario painted by the evidence of the PW2 is so vivid and does not leave room for any conjecture, that the PW2 ran out of the house, and that she could see the Appellant holding a

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knife.

According to the learned counsel the logical conclusion, from the evidence of PW2, is that the distance between the house and the scene of crime must be quite short to have enabled the PW2 see the Appellant holding a knife.

Copiously alluding to the testimony of the PW2, (at page 24 lines 31-32 of the Record), it’s posited that the testimony of PW2 “can almost be likened to an eye witness account…” in that her nearness in terms of proximity to both the Appellant and the deceased at the time of the incidence in question, is a key determinant regarding whether there was ample time for the passion of the Appellant to have cooled. See NJOVENS & ORS VS. THE STATE (1973) 8 NSCC 257, @ 279 lines 35-45, UWAEKWEGHINYA VS. THE STATE (2005) 9 NWLR (pt. 130) 227 @ 249-250 paragraphs G-C.

It was posited by the learned Counsel, that in the case at hand, the Appellant’s passion cannot be said to have cooled within the spate of time as explained by PW2 at page 24 lines 18- 19 of the record. See ULUEBEKA VS. THE STATE (2000) 7 NWLR (pt. 665) 404 @ 425 paragraphs A-B; 432 paragraph F.

In the circumstances, the Court is urged to so hold.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; scrollbar-color: var(–thumbBG) var(–scrollbarBG);”>

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The sub-issue 2 is extensively argued at pages 7 to 17 (paragraphs 4.10-4.19) of the brief. It is submitted to the effect, that the mode of exhibition of the provocation or anger by stabbing the deceased twice on the neck by the Appellant, is not disproportionate. See OBAJI VS THE STATE (1965) NSCC Vol. 4, 210, @ 214 lines 47-54; 216 lines 1-8, KUMO VS. THE STATE (1967) NSCC 5, 286 @ 288 lines 42-49; et al.

In the circumstances, the Court is urged to find merit in the appeal, allow same and reduce the Appellant’s conviction for culpable homicide punishable with death to culpable homicide not punishable with death.

Contrariwise, the Respondent’s brief of argument, settled on 14/3/2024 by Professor Bayo Adaralegbe, spans a total of 24 pages. At page 5 of the said brief, the sole issue vis-a-vis the two sub-issues canvassed by the Appellant have been adopted by the Respondent at page 5 of the brief thereof.

The submission regarding the sub issue (a) is contained at pages 5-24 of the Respondent’s brief. In a nutshell, it’s argued that sufficient interval had elapsed for passion to cool, between the time when the Appellant saw the deceased, heard

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the deceased’s explanation, took a knife, chased and stabbed the deceased at the scene of crime.

Further argued, that the defence of provocation would only avail the Appellant in circumstances where the Appellant had reacted instantaneously to the provoking incident before having any time for the passion to cool. See the testimony of PW1; BASIL AKALEZI VS. THE STATE (1993) LPELR-313 (SC), SHUAIBU ABDU VS. THE STATE (2016) LPELR-41461(SC); et al.

It is postulated, that the evidence of PW2 was not conclusive or credible to sustain a finding, that the distance between the house where the Appellant met the Deceased giving his wife money and the scene of the crime are not far apart. According to the learned Counsel, the fact that the Appellant made enquiries, looked for a knife, and then vigorously pursued the Deceased, afforded the Appellant enough time for his passion to cool. See MADUBUCHI GEORGE VS. THE STATE (1993) LPELR-1320 (SC), ABUBAKAR DAN SHALLA VS. THE STATE (2007) LPELR-3034 (SC); et al.

It is posited, that the reliance on the case of NJOVENS VS. THE STATE (1973) NSCC 257 by the Appellant, is unfounded because the PW2 had admitted,

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inter alia, that she did not witness the fight between the Appellant and Deceased. Thus, the Appellant was not close to or at the scene of the crime.

The learned Counsel equally submitted, that the case of ULUEBEKA VS. THE STATE (2000) 7 NWLR (Pt. 665) 404, does not stipulate a standard period of 24 hours for passion to have cooled before this Court could so hold.

In the circumstances, the Court is urged to so hold that the defence of provocation did not avail the Appellant in this case, the Appellant having failed to satisfy any of the conditions stipulated by law in a plethora of decided cases.

The sub-issue (b) is extensively argued (at pages 15 to 22) of the Respondent’s brief. In the main, it’s argued that the Court below was also right in rejecting the Appellant’s defence of provocation on the ground that the mode of the alleged resentment bore no reasonable relationship to the said provocation. See EMMANUEL OGAR AMONG EDOKO VS. THE STATE (2015) LPELR-24402 (SC), DANIEL IBANGA VS. THE STATE (1983) LPELR-1383 (SC), BASIL AKALEZI VS THE STATE (supra). et al.

Further submitted, that the disproportion in the mode of resentment clearly

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proves that the Appellant was acting for a reason other than complete loss of self-control caused by the alleged provocation. Therefore, stabbing the Deceased on the neck, a vital part of his body, revealed that the Appellant intended to kill the deceased. See GANIYU OLATOKUNBO OLADIRAN VS THE STATE (1986) LPELR-2550 (SC), SHUAIBU ABDU VS THE STATE (supra) et al.

The Court is urged to hold, that there was evidence that the Appellant, a Muslim, was exposed to Islamic education which exhorts him to run away from anger. Thus, the authority of KUMO VS. THE STATE (supra), does not apply to the present case. The Court is urged to so hold.

In the circumstances, the Court is urged to hold that the Court below rightly held that the defence of provocation did not avail the Appellant.

On the whole, the Court is urged upon to dismiss the appeal and affirm the decision of the Court below.

Having critically, albeit dispassionately, considered the crucial nature of the appeal, the eloquent submissions of the learned Counsel contained in their respective briefs of argument vis-à-vis the records of appeal, I agree that the two (sub) issues

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canvassed by the Appellant and Respondent herein are germane to the determination of the appeal. Thus, I would adopt them for the determination of the appeal, anon.

ISSUE NO. I
The issue I raises the vexed question of whether there was enough time for the passion of the Appellant to have cooled before the assaulting which led to the death of the Deceased. The issue I is distilled from ground one of the Notice of Appeal.

The vexed judgment of the Court below is contained at pages 129 to 146 of the Record of Appeal. Regarding the extant issue, the Court below was recorded (at pages 140-141 of the Record of Appeal), to have stated that in the instant case, there was no doubt evidence on record in support of the defence of provocation. The Court alluded to the Appellant’s confessional statement (Exhibit “B” and “B1”), wherein the Appellant stated that he killed the Deceased person because he caught him with his wife. According to the Court below:
“Likewise, the trial Court had duly considered the said defence wherein it held that the appellant having vigorously pursued the deceased and stabbed him twice on the neck, the appellant

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was not entitled to the defence of provocation. The trial Court further found that the time the deceased ran away from the appellant was enough time for his passion to cool.”

Invariably, the term provocation (evolved in 15th Century) denotes the act of inciting another to do something especially to commit a crime (offence). Secondly, provocation equally denotes something (e.g. words or actions) that affects a person’s reason and self-control, thereby causing the person to commit a crime impulsively. According to William Lawrence Clark in his HAND BOOK OF CRIMINAL LAW 3rd edition (1915) @ 42:
“Provocation is no ground for exempting one absolutely from criminal responsibility for his acts, but may be ground for mitigating the punishment.
A person who commits a crime cannot escape liability altogether by showing that he was provoked but the fact that a crime was committed under provocation may sometimes be ground for inflicting less severe punishment in cases of homicide and assault.
See BLACK’S LAW DICTIONARY, 11th edition (2019) @ 148, wherein the term ‘adequate provocation’ is aptly defined as something that would cause a reasonable

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person to act without self-control and lose any semblance of premeditated state of mind:
“The usual form of adequate provocation is the heat of passion. Adequate provocation can reduce a criminal charge, as from murder to manslaughter; also termed adequate cause; sudden provocation; indirect provocation; reasonable provocation.”

As alluded to above, the charge against the Appellant at the Court of trial was for culpable Homicide punishable with death, contrary to Section 221(b) of the Penal Code. The Prosecution was under an onerous duty to prove beyond reasonable doubt that:
(1) The death of a human being had occurred;
(2) The death of the deceased was caused by the Appellant;
(3) The Appellant knew or had reason to know that death would be the probable consequence of his act.
See JIBRIL ADA VS THE STATE (2011) 6 NCC (Pt.126) 133, SEGUN AJIBADE VS. THE STATE (2013) 2 NCC 221.

In the instant case, there are concurrent findings of the two Courts below, to the conclusive effect that all the three fundamental ingredients stated above have been duly established by the prosecution against the Appellant beyond reasonable doubt. As

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a matter of fact, the only point of contention is the defence of provocation vehemently put up by the Appellant as the only basis for the sentence of death passed there upon to be commuted to that of culpable homicide not punishable with death.

It was the finding of the trial Court that the defence of provocation could not avail the Appellant owing to the evidence of the PW2 (Zulai Hali), the former wife of the Appellant. The evidence of the PW2 is to the conclusive effect that on 11/02/2012, the Appellant saw the Deceased person giving her money. When the Appellant asked her why the Deceased gave her the money, the PW2 explained that the Deceased borrowed the money from her and that was why he returned same. The PW2 further testified on oath, that after the explanation the Deceased ran away but he was pursued by the Appellant, She later heard some shouting outside her house that the Appellant had killed the Deceased. The PW2 then came out of the house and saw the Appellant holding a blood stained knife.

The evidence of the PW3 was to the effect, that on the fateful day, he was at his farm when one Mamman Sani the Appellant’s Junior brother, told

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him that he was informed by someone that the Appellant had killed the Deceased. The PW3 left his farm and went to the scene of crime where he saw the Deceased person lying in the pool of his blood; he was stabbed on the stomach and neck. The PW3 reported the horrible incident to the police. The Appellant was later arrested by the people of Dogon-Marke village and handed over to the police.

The PW4, Sgt, Muhammad Bawa was the IPO who investigated the case, thereby leading to the prosecution of the Appellant.

In the course of the judgment thereof, the trial Court copiously alluded to Exhibits B & B1 (the extra-judicial statement of the Appellant) at page 63 of the Record:
“I of the above name and address hereby eject to give my statement as follows: I was born and brought up at Unguwar Marke village of Tambuwal Local Government Area, Sokoto State about 52 years ago. I did not attend Western Education, but Islamic School, my occupation is farming I have two wifes, i,e Larai and Zulai on Saturday, 11/2/2012 at about 0800hrs I went to a naming ceremony and came back around 1000hrs, then saw Hali Nakalangu at my house; he was giving my wife Zulai

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money. I then asked him and he said he borrowed money from my wife and that was what he returned I then said I did not believe him. I then took a knife he was running and I was following him. I then stabbed him on his neck twice. He then fell down and died. On allegation that I am the one who killed Hali Nakalangu, honestly I am the one who killed him because I caught him with my wife. That is what I have to state.”

The trial Court’s finding regarding the Appellant’s confessional statement (Exhibits B & B1), was that if the evidence of PW2 and PW3 and Exhibits B & B1 were to be considered together, one would readily come to the conclusion that the confession of the Appellant was indeed true. The Court below (at page 140 of the Record) aptly upheld the finding of the trial Court:
“In the instant case, there was no doubt evidence on record in support of the defence of provocation. In his confessional statement Exhibit “B” and “B1A’ the appellant stated that he kill (sic) the deceased because he caught him with his wife.”

I am of the considered view that, the foregoing finding of the Court below is undoubtedly cogent unassailable and duly

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supported by the facts and evidence on record. In the circumstances, the issue I ought to be and same is hereby resolved against the Appellant.

ISSUE NO. 2
The issue 2 raises the question of whether the mode of retaliation was proportionate to the act of provocation, thereby capable of mitigating the full wrath of the punishment vis-a-vis the sentence of death.

The second issue stems from the finding of the Court below at page 142 of the Record to the effect, inter alia:
“I am in tandem with learned trial judge that from the time when the appellant met the deceased giving money to his wife and when the latter ran away was enough for the former’s passion to cool. It is also my considered view that the mode of resentment did not bear reasonable relationship to the said provocation. In other words, the appellant’s reaction in stabbing the deceased twice on the neck was disproportionate.”

It ought to be stressed, for the avoidance of any lingering doubt, that it is not all aspects of provocation that could warrant the mitigation of crime of culpable homicide punishable with death, to that of culpable homicide not punishable with

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death. This Court has reiterated the trite fundamental doctrine in a plethora of formidable authorities. See MUSA VS THE STATE (2007) 11 NWLR (Pt. 1045) 202 @ 219, NAVY CAPTAIN ODUNLAMI VS. NIGERIAN NAVY (2013) 12 NWLR (Pt. 1367) 20 @ 56. In all those formidable authorities, this Court aptly reiterated the conditions for defence of provocation:
(a) There ought to be some wrongful act or insult.
(b) Such wrongful act or insult must be capable of causing loss of self-control to an ordinary reasonable person.
(c) That act of the defendant was caused by sudden provocation.
(d) That the act of the defendant was committed before there was time for passion to cool; and
(e) That the act of the defendant was proportionate to the provocation arising from the wrongful act or insult.

In the instant case, the Court below assiduously took into consideration the 4th condition alluded to above for the invocation of the defence of provocation, and came to the most inevitable conclusion at page 142 of the Record:
“I have also set out the tests to be applied in determining the effect of provocation and I am in tandem with the learned trial

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judge that from the time when the appellant met the deceased giving money to his wife and when he later ran away was enough for the former’s passion to cool.”

In my considered view, the foregoing finding of the Court below is eloquently unassailable and duly backed up by the records of appeal. In the circumstances, the issue 2 ought to be and same is hereby resolved against the Appellant.

Hence, having resolved both issues 1 and 2 canvassed by the Appellant against him, the appeal resultantly fails, and it is hereby dismissed by me.

The judgment of the Court of Appeal, Sokoto Judicial Division, delivered on March 23, 2017 in Appeal No. CA/S/21C/2015, is hereby affirmed.

Appeal Dismissed.