HABIBU USMAN v THE STATE (2013)

In The Supreme Court of Nigeria

On Friday, the 17th day of May, 2013

SC.193/2010

Before Their Lordships

MAHMUD MOHAMMED Justice of The Supreme Court of Nigeria

JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria

BODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria


Between

HABIBU USMAN- Appellant

AND

THE STATE –Respondent

…………………….A…………………….

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): The Appellant is a native of Haragawa Village in Illellah Local Government Area of Sokoto state and was married to the deceased Salamatu Habibu. The marriage was contracted in 1992. On or about the 17th February, 1995, the deceased left their matrimonial home purportedly to fetch water and proceeded to her parent’s home. Mediation efforts to reconcile the couple faired. On or about the 11th of March, 1995, the deceased died of injuries inflicted on her with the allegation on the Appellant to have caused her death. He was charged before the High Court Sokoto for culpable homicide punishable with death under Section 221 of the penal Code. The Appellant was tried and convicted of the charge and sentenced to death by the Honourable Justice D. B. Sambo on the 16th May, 2006 and in dissatisfaction, Appellant appealed to the Sokoto Division of the Court of Appeal hereinafter also called the Court below. That court on the 8th April, 2010 dismissed the appeal and affirmed the judgment of the trial High court.Further dissatisfied, the Appellant filed a Notice of Appeal containing a lone ground.
On the 21st February, 2013 date of hearing, learned counsel for the Appellant adopted his Brief of Argument settled by N. Ekanem filed on 2/7/10. In the Brief was distilled a single issue which is thus:-
Whether the guilt of the Appellant was established and proved beyond reasonableness of the Court of Appeal decision affirming the conviction of the Appellant having regard to the evidence before the court.
Learned counsel for the Respondent adopted the Brief of Argument settled by Inuwa Abdul-Kadir, Attorney General of Sokoto state which Brief was filed on 11/3/,and deemed filed on 6/7/11. A single issue was also framed for the determination of the Appeal and it is stated as follows:-
Whether the Court of Appeal was right in law in upholding the decision of the trial court that the Appellant committed culpable homicide punishable with death regards being had to the evidence adduced before the Court.
This issue as formulated by the Respondent seem better constructed for use even though in substance it is similar to what the Appellant was trying to put across which in effect is whether the evidence adduced met the standard of proof in a criminal proceedings upon which the Appellant was found guilty for culpable Homicide punishable with death.
In his arguments, learned counsel for the Appellant stated that the prosecution bears the burden of proving the guilt of the accused person beyond reasonable doubt and failure to do so or where any of the ingredients of the offence is lacking the accused is discharged and acquitted. He restated the ingredients of the offence of culpable homicide punishable with death under section 221 of the Penal Code under which the Accused/Appellant was charged. He cited the cases of Aroyewun v Commissioner of Police (2004) 16 NWLR (pt.899) 414 at 438; Shande v State (2055) 1 NWLR (pt. 907) 218 at 238.
He went on to say that for a conviction to endure the prosecution in a situation as the present, has a duty to establish the cause of death with certainty and to show that it was the accused that caused that death. He referred to Apuso v State (2006) 16 NWLR (Pt. 1002) 227 at 254 – 255.
Going on, learned counsel said that from the statement of PW3 who was stating his evidence on the assumption that Appellant wounded the deceased and pW3,s wife just because he saw Appellant and saw the wounded persons. Also under that assumption is that the Appellant killed the deceased. That the circumstance did not point to the Appellant and no one else as being the culprit. He relied on Apugo v The State (2006) 16 NWLR (pt.1002) 227 at 254; Aroyewun v. COP (2004) 16 NWLR (Pt.899) 414 at 432.
He concluded by saying that the guilt of the Appellant was not proved beyond reasonable doubt having regard to the evidence before the court and so the Appellant is entitled to a discharge and acquittal.
Learned counsel for the Respondent said it was not disputed that Salamatu died, this from the evidence of PW2, PW3, PW4, PW5, PW6 and also Exhibits 3, 3A and 4 confessional statements of the Appellant and the medical report. He said the inevitable conclusion a rational person would come to and which the courts below did is that the accused person caused the death of the deceased. That it is misleading to suggest that Appellant must be seen committing the offence before he can be convicted of the said offence. Also that in the confessional statements, the Appellant gave such graphic details which have to be taken as true. He cited Ejiofor v. The state (2006) NSCQR (Pt. 1) 209 at 212; Saburi Adebayo v A.G., Ogun (2008) 3 NCC 305 at 308.
That from the evidence before the court, the Appellant was well connected with the offence unequivocally and directly with the objects that caused the injuries on the deceased which resulted in her death.
The position of the Appellant as x-rayed by the submissions of learned counsel on his behalf is that while not disputing the fact of the death albeit violent death of the estranged wife of the Appellant named Salamatu, but that there was an absence of a linkage between that death or cause of it to the appellant. That in the circumstance, the ingredients of the offence of culpable homicide contrary to Section 221 of the penal code cannot be said to have been established beyond reasonable doubt.
That stance, learned counsel for the Respondent robustly rejected stating that there were numerous pieces of evidence pointing irresistibly to the only conclusion that it was the Appellant who killed the said Salamatu. On that posture, Respondent’s counsel urges this court to take the same path as the concurrent findings of the trial court and the Court of Appeal.
Having put across the divergent views of the opposing counsel, the next thing to do is to restate. what the prosecution must do to establish the offence of culpable Homicide punishable with death, without delay, I would say the prosecution faced with that duty of proof of the offence aforesaid must prove all the ingredients of the offence as contained in section 221, of the penal code which ingredients must co-exist none missing. These vital components of the offence are stated hereunder as:-
1. That the deceased had died.
2. That the death of the deceased had resulted from the act of the accused person.
3. That the act or omission of accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See Yaki v State (2008) 7 SC 128 at 129; Shande v State

…………………….B…………………….

(2005) 1 NWLR (pt.907) 218 at 238.The principles guiding the question, whether or not the ingredients of the offence had been established have been stated above at the risk of over – emphasis, the next hurdle would be if those ingredients are present here. Indeed, the fact of the death of Salamatu in a violent way is not disputed, what is in dispute is that, that death was as a result of the act of the Appellant intentionally done with the knowledge that death or grievous bodily harm would be the result. In this regard, the confessional statements of the Appellant, Exhibits 3 and 34 showed in graphic details what happened on the day of the unfortunate incident and how the appellant submitted himself to PW2 for protection. On his part in his testimony at the Court of trial, PW2 said:-
“In 1995, I can recall the accused Habibu met me in the night knocking at my door. I woke up and met with him the accused. I asked him who he was and he said he was Habibu of Harangawa village. t asked him what had happened, he said he had come for an assistance because he had wounded his wife and mother-in-law. He said he came for protection because he sensed people would look for him for retaliation. I took him to a house, tied him and left him there for protection. After a while, people came to report the accused and I told them that the accused had already reported himself to me and under detention. The people went back. I therefore left my place to the scene at Tungan Zango and there, I met policemen with their Motor Vehicles. I informed the police whereabout of the accused. I eventually handed the accused to the police, that is all.”
The evidence of pW2 was well connected with that of PW3 which went thus:-
“On the fateful day in 1995, I was in my house and Salamatu was with her mother Aishatu sleeping. I heard a sound outside, I came out and I met accused after he had wounded Salamatu and my wife Aishatu. I chased him but he ran away. I came back and invited my brother who came and met Salamatu who was already dead but her mother was wounded. Salamatu was wounded at the neck. The accused used a hoe on the head of Aishatu who was bleeding. Salamatu died while Aishatu was seriously wounded. We later went to hospital. The hospital released the body of Salamatu while the mother was in hospital for 3 weeks. Before this time, the accused had reported to the village head and was detained…….. The accused used a knife on the neck of Salamatu. The hoe was used on Aishatu. After all these, the accused ran away leaving the knife and hoe.”
The hoe and knife were tendered and admitted as Exhibits 1 and 2, then, taken along with the extra – judicial statements of the accused/appellant which are confessional with details crystal clear and juxta-posed with the testimonies of Pw2 and PW3 quoted above, no other conclusion can be made than that the accused person intentionally caused the death of the deceased.
For effect, it needs be said that the confessional statements of the appellant fully descriptive of what transpired were sufficient for a court after warning itself to make a finding of guilt based on proof beyond reasonable doubt. It is all the more damning when those two confessional statements are corroborated by the evidence of the witnesses PW2, PW3, PW4, PW5 and PW6 inclusive of the medical report, Exhibit 4 which tallied with the description of the fatal wound. I would like to refer to Tobi JSC in Saburi Adebayo v A.G., Ogun State (2008) 3 NCC 305 at 308 where he stated thus:
“Confession is the best evidence in criminal law. In it, the accused admits that he committed the offence for which he is charged. For this purpose, the accused is the figurative horse’s mouth. There cannot be a better evidence.”
Assuming there were no confessional statements, there are a surfeit of evidence circumstantial on which the Court would justifiably make a finding of guilt and a conviction against the Appellant. In this regard, I shall place reliance on Ijioffor v. State (2006) 6 NSCQR (pt.1) 209 at 212 wherein Ejiwunmi JSC said:-
“Circumstantial evidence is receivable in criminal as well as civil cases, and indeed the necessity of admitting such evidence is more obvious in the former than the latter for in criminal cases, the possibility of proving the matter charged by the direct and positive testimony of eye witnesses or by conclusive documents is much more rare than in civil cases….. On the other hand, it has always been said that the circumstantial evidence is very often the best evidence. It is the evidence of surrounding circumstances which by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.” Those quoted words of Ejiwunmi JSC of blessed memory were not only intended for what he was confronted with in that case cited but for a day and circumstances such as the present appeal.
It is in the light of that and the foregoing that it can inexorably be concluded that the cause of death of the deceased is placed squarely on the Appellant and the concurrent findings of the two Courts below cannot be interfered with or upset as they remain rock solid the correct findings of what was on ground.
Clearly, this appeal lacks merit and I have no difficulty in dismissing it and affirming the decision, conviction and sentence of the trial High Court as affirmed by the Appeal Court.
Appeal dismissed.MAHMUD MOHAMMED, J.S.C.: The appeal is from the decision of Court of Appeal Sokoto given on 8th April, 2010 dismissing the Appellant’s appeal from his conviction and sentence by the trial High Court Sokoto for the offence of culpable homicide punishable with death under section 221(b) of the Penal Code and sentenced to death on 24th April, 2006.
The Appellant was married to the deceased who was also his relation. There was a dispute between the couple leading the deceased to leave the Appellant’s house. The Appellant on 11th March, 1995 went to his wife’s house and attacked her with a knife and a hoe inflicting injuries on her and her mother. The deceased died instantly and the Appellant confessed to the killing of the deceased to prevent her from marrying some other persons. The mother of the deceased survived the attack. There was enough evidence to support the conviction of the Appellant for the offence of culpable homicide punishable with death.
The Appellant’s appeal was heard and dismissed by the Court of Appeal Sokoto Division. The Appellant has now further appealed to this Court on only one issue of whether or not there was enough evidence adduced by the prosecution to support his conviction for the offence of culpable homicide punishable with death, beyond reasonable doubt.
It is observed that this appeal is against the concurrent findings of fact of the trial court and the Court of Appeal. I find no reason whatsoever to interfere with such findings. Consequently, I entirely agree with my learned brother Peter-Odili, JSC in the lead judgment which I had the chance of reading before today that this appeal must fail. Accordingly, I also dismiss the appeal and further affirm the conviction and sentence of death imposed on the Appellant for the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code by the trial High Court Sokoto and affirmed

…………………….C…………………….

by the Court of Appeal Sokoto in its judgment of 8th February, 2010.

JOHN AFOLABI FABIYI, J.S.C.: I have had a preview of the judgment just delivered by my learned brother – Peter-Odili, JSC. I agree with the reason therein advanced to arrive at the conclusion that the appeal lacks merit and should be dismissed.
The appellant was charged at the trial High Court Sokoto for the offence of culpable homicide contrary to section 221 of the Penal Code in that he caused the death of Salamatu – his wife. On 27th May, 2003, the charge was duly read and explained to the appellant and he pleaded not guilty. The learned trial judge garnered evidence and was duly addressed by learned counsel on both sides. In the judgment delivered on 25th April 2006, the appellant was found guilty. He was convicted and sentenced to death by hanging; for unlawfully causing the death of Salamatu – his wife.
The appellant felt unhappy and appealed to the Court of Appeal, Sokoto Division (the court below) which heard the appeal and dismissed it on 8th April, 2010. The appellant has further decided to appeal to this court.
Briefs of argument were filed and exchanged by the parties. On 21st February, 2013 when the appeal was heard, the briefs of argument were adopted and relied upon by counsel on each side of the divide. On behalf of the appellant, the only issue formulated for determination of the appeal reads as follows:-
“Whether the guilt of the appellant was established and proved beyond reasonable doubt having regard to the evidence adduced at the trial court and affirmed by the Court of Appeal.”
On behalf of the respondent, the only issue crafted for determination reads as follows:-
“Whether the Court of Appeal was right in law in upholding the decision of the trial court that the appellant committed culpable homicide punishable with death regards been had to the evidence adduced before the court.”
In this appeal, the parties are ad idem that the onus of proof is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. This is a proposition evolved by Lord Sankey, LC in Woolmington v. DPP (1935) AC 485. It has been codified by the applicable section 138(1) of the Evidence Act. However, proof beyond reasonable doubt is not proof beyond all iota of doubt. See: Nasiru v. The State (supra) at page 98.Parties are also at one that for the prosecution to succeed in establishing the offence of culpable homicide punishable with death, it must prove all the ingredients of the offence.
The three (3) ingredients which must co-exist together are:-
1. That the deceased had died.
2. That the death of the deceased had resulted from the act of the accused person.
3. That the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See: Yaki v. The State (2008) 7 SC 128; Shande v. The State (2005) 1 NWLR (Pt. 907) 218 at 238; Ogba v The State (1992) 2 NWLR (Pt.222) 164.
No one can, with honesty of purpose, dispute that Salamatu is dead. Same was established through the evidence of PW2 and PW3. The medical report in Exhibit 4 affirmed same. And to cap it, the appellant also admitted same in Exhibits 3 and 34, his extra judicial statement.
Learned counsel for the appellant maintained that the prosecution failed to link the appellant with the commission of the offence because no one saw him committing the offence. This, clearly, is a misconception on the part of the appellant’s counsel. This is because it is not only by viva voce evidence of a witness who was directly present at the locus criminis that can be relied upon by the prosecution. In this matter, the prosecution tendered Exhibits 3 and 3A – appellant’s cautioned statement in which he made a clean breath of what transpired that fateful night when he went to attack the deceased with knife and hit his mother-in-law with hoe on the head under the cover of night at precisely 1.00 am. He confessed that he later submitted himself to PW2 for protection for fear of retaliation. Human nature, in its infinite telepathy is so constituted that no one would declare something against his own interest unless it were true.
In short, as pronounced by this court in Saburi Adebayo v. Attorney-General Ogun State (2008) NWLR (Pt. 1085) 201 at 221, per Niki Tobi, JSC ‘confession is the best evidence in criminal law. In it the accused admits that he committed the offence for which his is charged. For this purpose, the accused is the figurative horse’s mouth. There cannot be a better evidence’.
Apart from the above, there is the evidence of PW2 that the appellant, after the sanguine act, rushed to his house to say that he had wounded his wife; Salamatu and mother-in-law and wanted protection because he sensed that people would look for him for retaliation. There is also the evidence of PW3 who met the appellant after wounding Salamatu and his mother-in-law. He chased the appellant who ran away. He came back and invited his brother – PW4 who came and met Salamatu who was already dead and her mother was wounded. PW3 said Salamatu was wounded on her neck with knife. A hoe was used to hit Aishatu, his wife; the appellant ran away leaving the knife and hoe behind.
It has always been said that circumstantial evidence is, very often, the best evidence. It is the evidence of surrounding circumstances which by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. See: Ijiofor v. The State (2006) 6 NSCQR (Pt.1) 209.
With the evidence of PW2 and PW3 which was believed by the trial judge and affirmed by the court below, the confessions in Exhibits 3 and 3A by the appellant, the medical report in Exhibit A which confirmed cause of death of Salamatu to be due to injuries sustained from the unjustified attack by the appellant, there is evidence of surrounding circumstances which by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics, that the act of the appellant caused the death of Salamatu. This is circumstantial evidence which nailed the appellant who failed to exculpate himself.
This was graphically captured by M. D. Muhammad, JCA (as he then was) in the lead judgment when he concluded as follows:-

…………………….D…………………….

“In the foregoing, the court below has, beyond appellant’s confessional statement and as desired by practice, resorted to evidence in the testimonies of PW2 and PW3 reproduced above to convict the appellant. The court’s judgment arrived at on the basis of such cogent and overwhelming evidence is unassailable. It must endure. See: Edet Obasi v. The State (1965) NMLR 119, Yesufu v. The State (1976) 6 SC 167 at 173 and Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538.”
I wish to say it in passing that the findings of fact by the two lower courts are concurrent. They have not been shown to be perverse in any respect. Such evidence must endure; no doubt. This court does not form the habit of interfering in such a situation. See: Shorumo v. The State (2010) 12 SC (Pt. 1) 73 at 96, 102; Igwe v. The State (1982) 9 SC 114.
No doubt, the prosecution proved the case against the appellant beyond reasonable doubt. It was a rather sanguine act which cannot be explained by any rational being. All the essential ingredients of the offence charged have been clearly established. See: Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at 523.
For the above reasons and those carefully adumbrated in the lead judgment, I too feel that the appeal is devoid of merit and should be dismissed. I order accordingly and endorse all the consequential orders in the lead judgment.

KUMAI BAYANG AKA’AHS, J.S.C.: I was privileged to read the draft of the judgment of my learned brother Peter – Odili JSC. I agree with the resolution of the lone issue raised that the appeal lacks merit and should accordingly fail.
There is no dispute that Saramatu Habibu is dead. The evidence revealed that the appellant used a knife to slash the deceased’s neck. He also hit the mother of the deceased with a hoe on the head. Both the knife and hoe were tendered as Exhibits- Apart from this the appellant reported himself to PW2, who is the village head and sought for protection. PW3 testified to the fact that he tried to apprehend the appellant after he had inflicted the fatal injury on the deceased but he escaped and ran to PW2’s house.
The appellant also admitted injuring the deceased but stated that he hit her once on the head with the hoe. The injury he inflicted on the deceased was such that he knew that death would result or that the injury was so grievous that death was the likely consequence of his action. The action was premeditated. It is little wonder that Salamatu died almost instantaneously.
He was therefore rightly convicted of culpable homicide and sentenced to death by hanging. His appeal to the court below was rightly dismissed. I find no merit whatsoever in this appeal and it is dismissed. I further affirm the judgment of the court below and dismiss the appeal for lack of merit whatsoever. The conviction and death by hanging passed on the appellant is further affirmed.

Appearances

Nnamouso Etanem, Iniabasi Udobong. For Appellant

AND

Nuhu Adamu, (A.G. Sokoto), Zulai Bello Miss, Acting Director Legal Drafting, Maryam Attahiru, State Counsel II, Yahaya Abubakar State Counsel II. For Respondent

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