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Usman Kaza v. The State (S.C. 212/2004, 15th day of February 2008)

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➥ CASE SUMMARY OF:
Usman Kaza v. The State (S.C. 212/2004, 15th day of February 2008)

by Branham Chima.

➥ ISSUES RAISED
Prophet Muhammad;
Conspiracy;
Abetment;
Murder.

➥ CASE FACT/HISTORY
On the 14th day of July, 1999 a rumour was spread in Kardi and Randali villages of Birnin Kebbi Local Government Area of Kebbi State of Nigeria that one Abdullahi Alhaji Umaru of Randali village (the deceased) insulted the Holy Prophet Muhammad (S.A.W). In consequence thereof the appellant, together with co-accused, at the trial court who were both resident of Kardi, went Randali in search of the deceased. The deceased was arrested on this account and taken to the outskirt of Kardi village near the village burial ground and kept in the custody of Suleiman Dan Ta Annabi (6th accused in the trial court) and Mohammed Sani (3rd accused in the trial court). In the interim, Musa Yaro (1st accused in the trial court) in conjunction with the appellant (2nd accused in the trial court) as well as Abdullahi Ada (the 4th accused at the trial court) went to Randali, the village of the deceased, in search of the deceased and clarification of whether the deceased uttered the insult or not after the arrest of the deceased they went to the house of the village head at Kardi to inform him that the deceased was caught and the prescribed death punishment of whoever insulted the Holy Prophet Muhammad (S.A.W.) would be carried out on him, Where upon the said village head did not say anything. The appellant, Musa Yaro and Abdullahi Ada returned to the outskirt of the village where the deceased was held captive under the custody of Mohammed Sani and Suleiman Dan Ta Annabi. On getting to the place, Musa Yaro read a portion of the Risala to the effect that whoever insults the prophet should be punished with death. And following this recitation, Mohammed Sani (3rd accused at trial court) matcheted the deceased on the neck and also the appellant as a result of which the deceased fell down and was slaughtered by the neck with a knife by Abubakar Dan Shalla and the deceased died and thereafter the appellant and his co-accused at the trial dispersed from the scene.

This appeal is against the judgment of the Court of Appeal Kaduna Division, that is to say the Court below, delivered on 10/12/2003 which while dismissing the appellant’s (Usman Kaza) appeal affirmed his conviction and sentence by hanging passed on him (the appellant) by the trial court (Kebbi State High Court of Justice). In the trial court the appellant as the 2nd accused was jointly arraigned with 5 others for Criminal conspiracy, abetment and culpable homicide publishable with death under Sections 97, 85 and 221 (a) of the Penal Code respectively. Being aggrieved by the decision of the court below the appellant finally has appealed to this court by a Notice of Appeal filed on 27/12/2007.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]

↪️ I. Whether the Respondent proved his case of conspiracy against the Appellant?

RESOLUTION: IN RESPONDENT’S FAVOUR.
[CONSPIRACY WAS PROVED AGAINST THE APPELLANT
‘The trial court in its review and findings on the prosecution’s case against the appellant vis-a-vis the charge of conspiracy at p.67 LL6-14 stated thus;
 “In the case of the 2nd accused person the evidence against him is that he was among the group that went to Randali on inquiry and subsequently returned to Kardi in search of the deceased. After the deceased was arrested he was also among the people who came to the house of the Village Head of Kardi to inform him what was going on. He was further among the group that come (sic) back to the place where the deceased was being held and remained there until the deceased was killed. This is supported by the testimony of PWs 2, 5 and 6 and the voluntary statement of the accused himself as in Exhibit K. This evidence too is uncontradicted and unchallenged. I am therefore satisfied that the 2nd accused took part in the conspiracy to kill the deceased.”’

‘The court below on the other hand in agreeing with the foregoing abstract has observed at p.117 of LL5-16 thus: “…. it is not in dispute that all the appellants took part and participated in the unfortunate incident that led to the gruesome murder or killing of the deceased by name Abdullahi Alhaji Umaru for the alleged (but unproven) use of abusive, defaming or insultive words against the Holy Prophet Mohammed (SAW). The prosecution has led evidence to prove the essential ingredients of the offences for which the appellants were charged including their confessional and voluntary statements to the Police which was neither denied nor retracted from by the said appellants. It is also to be noted as rightly pointed by the learned trial judge and as reflected by the record that the appellants rested their case on the evidence adduced by the prosecution and chose (sic) not give or call any evidence for their defence.”’

‘The findings of both courts below as stated above, I must again emphasis, are unimpeachable. It certainly cannot be contested on the facts of this case that the fatal act, that is to say, the heinous act of slaughtering the deceased like a goat by the 5th accused person and even before then hacking him (the deceased) down with a matchet by the 3rd accused person with the common intention of causing him grievous bodily harm and kill him are outside the scope or tacit agreement of the accused persons to kill the deceased albeit in furtherance of their common intention to kill him for insulting the Prophet Mohammed. Again, it is an unchallenged fact that the appellant was present at and aiding and abetting the others of them including the 3rd and 5th accused persons particularly in the execution of the gruesome slaughtering of the deceased. It is my view that in such circumstances as here the prosecution does not have to prove that the accused persons were acting in pursuance of a common design of a prearranged plan; it is inferable from the surrounding circumstances. My reasoning here certainly begs the question – What did the accused persons agree to do? Pertinently, this is so in that if what the appellant and the other accused persons agreed to do is, on the facts known to them, an unlawful act they are guilty of conspiracy and cannot excuse themselves by unfoundedly contending that owing to their ignorance of the law they did not realise as per their Religious persuasion that such act is a crime. I have here anticipated appellant’s claim to the defence of justification. I shall return to it later. All the same, I hold that the appellant is rightly convicted of the offence of conspiracy.’]
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↪️ II. Whether the Respondent proved the case of abetment against the accused?

RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE CHARGE OF ABETMENT WAS PROVED AGAINST THE ACCUSED
‘The trial court at p.69 LL16-25 of the record has found as regards this offence as follows:
 “In respect of the 2nd and 4th accused persons, it is in evidence that after the arrest of the deceased, they ordered for his detention until their return. It is also in evidence that they told the Village Head of Kardi what was to happen to the deceased and acted as strong supporters of the 1st accused following him closely. It was when they came to (sic) scene of crime that the deceased was callously killed. The acts of the 2nd and 4th accused persons were supported by the voluntary statement of the accused persons in Exhibits K and F respectively and the testimony of p.w.2. I am in agreement with the learned counsel for the prosecution that the ups and downs and final arrest of the deceased by the accused persons facilitated his killing. I am satisfied that the prosecution have proved beyond reasonable doubt the charge of abatement (sic) against the 2nd and 4th accused persons.”’
‘This finding cannot be faulted as it has brought to the fore the complicity and indeed the liability of the appellant for aiding and abetting the commission of the heinous crime. The court below as per the record has not adverted to nor made any specific findings on this question apart from its overview of the offences for which the appellant was charged as per my excerpt above i.e. as per p.117 LL5-16 of the record. As I observed herein this question has not been raised as an issue for determination before the court below hence it did not consider it.’]
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↪️ III. Whether the charge of culpable homicide was proved against the Appellant?

Available:  Akeredolu & Anor v. Mimiko & Ors. (2013) - SC

RESOLUTION: IN RESPONDENT’S FAVOUR.
[CULPABLE HOMICIDE WAS PROVED AGAINST THE APPELLANT
‘The prosecution is to establish the following elements beyond reasonable doubt to secure conviction lo wit;-
 (a)        That there was a death of human being
 (b)        That the death was caused   by the act of the accused Person
 (c)        That the act of the accused person was done with intention of causing death.’

‘At the trial of the appellant and his co-confederates the evidence of p.w.2, p.w.3, p.w.4, p.w.5 and Exhibit D as per the prosecution witnesses as found by the trial court has established beyond reasonable doubt all the above ingredients of the offence of culpable homicide punishable with death to secure the conviction and sentence of the appellant by hanging. On the first element the prosecution has proved the death of the deceased being i.e. Abdullahi Alhaji Umaru, P.w.3, a brother to the deceased testified to the effect that he came to Kardi village and found the corpse of his brother who had been slaughtered. P.w.2, p.w.4, p.w.5 and p.w.6 all testified that the deceased was severely beaten and matchcted by the neck and eventually slaughtered to death by cutting his throat. This gruesome and chilling account of this callous murder was further corroborated by Exhibit D – the medical report and Exhibits E, El, E2, E3, F, Fl, G, G1, H, HI, J and J1 and exhibits K and K1 in particular that is, the extra judicial statements of the accused person confessing to the crime.
 On the 2nd element – as rightly found by the trial court, it was the appellant and other accused persons who killed the deceased. I have expatiated on this aspect of the crime above and I need not even then flog that aspect of the case any further see: R v. Isa (1965) ANLR 68 and Erik Uyo v. AIG Bendel State (1986) 1 NWLR 48.’

THE APPELLANT PARTICIPATED IN THE CRIMINAL ACT
‘All the accused persons it is agreed were present at the scene of the crime and each of them including the appellant assisted in the commission of the offence of slaughtering the deceased. The evidence as per the record has acknowledged signs of violence around the neck region of the deceased, cutting of all the blood vessels and the air ways as per Exhibit D. The murder weapons, that is to say, the matchet and the knife Exhibit A used by the 3rd and 5th accused persons respectively are no toys. These are dangerous weapons that can cause grievous bodily harm and as they did here. P.w.3 has testified as to how the deceased was cut with a matchet by the 3rd accused who struck him down by the neck with a matchet and slaughtered by the 5th accused with a knife while the other accused persons including the appellants abetted the crime. The accused persons including the appellant intended not only to cause the deceased grievous bodily harm but to kill him.  See George v. The State (1993) 6 SCNJ 249 at 257. From all accounts of this matter the appellant and his co-confederates must have intended the consequences of their act and must take the consequences. As for the appellant, the 1st and 4th accused persons the prosecution’s case has showed them not to have used any physical assault against the deceased. The trial court nonetheless and rightly for that matter found conclusively that all accused persons i.e. 1st to the 6th were joint actors i.e. participes in criminis. In discussing their complicity and liability in this matter the law is settled that where persons have embarked on a joint enterprise, each is liable criminally for the act done in pursuance of the joint enterprise and even including unusual consequences arising from the execution of the joint enterprise see R v. Anderson and Morris (1966) 2 AER 644; Nyam v. The State (1964) 1 ANLR 361 and Buje v. The State (1991) 4 NWLR (pt.185) 287 at 298-304.  It is clear that right from the outset of this despicable saga that the appellant and the other accused persons left Kardi village with the avowed intention apparently fired by the unproven rumour that Abdulahi Alhaji Umaru had insulted Prophet Mohammed to put the deceased to death.’]
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↪️ IV. Whether the defence of justification avails the Appellant?

RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE APPELLANT DID NOT ACT IN GOOD FATE; DEFENCE DOES NOT AVAIL APPELLANT
‘I hold the view that the appellant’s claim to the defence of justification is wrong footed on the premises that he cannot excuse himself of this heinous crime by contending that owing to his ignorance of the law he did not realise that the act of killing the deceased on the peculiar facts of this matter is a crime. After all entitlement to this defence has to be rooted in good faith, which is not the case here. It is also significant here that the only evidence the appellant and his co-confederates have against the deceased is the unproven rumour that the appellant and his co-accused overheard, that is, hearsay allegation that the deceased had insulted Prophet Mohammed in a neighbouring village of Randah. And it is noteworthy that what constitutes the content of the insult so far has remained a mirage to the courts below and so also this has disabled the respondent to refute it. Even then, on this ground alone, in my respective view, it is not open to the courts below to speculate on the words of the abusive insult. I therefore hold that there is no iota of evidence in the prosecution’s case including Exhibit K and K1 on the appellant’s confessional statement to sustain a plea of justification for the dastardly act of killing the deceased by slaughtering him like a goat, I therefore, agree with the respondent’s submission that the courts below cannot give the appellant the benefit of this defence as it is not supported by evidence on the record: see Abara v. The State (1981) 2 LNRC 110 at 117.’
‘Again, if I must repeat, this defence as in the case of justification cannot be taken or indeed discussed in vacuo. By its peculiar nature it must be predicated upon the evidence accepted by the court. Again, if I must repeat, and even more importantly the evidence upon which the appellant as well as his co-accused has rooted his plea of provocation is the overhearing of the rumour making rounds in Randali village that the deceased insulted Prophet Mohammed (SAW). As I stated earlier the exact insultive words have not been proved to the courts below as there is no evidence to that effect and so it is a fundamental flaw and must fail. The appellant, if I may recall, did not give evidence in his own defence at the trial having rested his case on the prosecution’s case.  Meaning in effect that the defence of provocation is as founded, if at all, as per the case of the prosecution.  And in the absence of the exact insultive words uttered by the deceased about Prophet Mohammed there can be no basis for considering the defence of provocation; it is even not clear to whom the insultive words were uttered certainly not to the appellant. He has not contended that the words were directed to him. I wonder if the defence of provocation could avail him on these facts. It cannot in this instance be taken in vacuo as it would tantamount to working on mere speculation and so, it is a non-starter.’
‘Sharia is a stable jurisprudence built on the tenets of fair hearing An accused person cannot, in principle, be convicted without being heard. And what is more, a hearing must be before a judicially recognised adjudicatory body, not a collective body of local persons out to do jungle justice; a kangaroo court.   These are the points very correctly made by the Court of Appeal. Appellant and others paraded primitive and uncouth justice and meted same on the deceased clearly outside the rule of law. And so I entirely agree with the Court of Appeal that there was no justification for the killing of the deceased.’]
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✓ DECISION:
‘In conclusion, I find no merit in the appeal; the court below rightly in my view rejected the pica of provocation as it is on the whole highly speculative. I also resolve this issue against the appellant. Finally, this appeal is unmeritorious. I dismiss, it and uphold the conviction and sentence passed on the appellant by the trial court ‘as’ affirmed by the court below.’

Available:  Remilekun Olaiya v. Mrs. Cornelia T. Olaiya & Ors. (2002) - SC

➥ FURTHER DICTA:
⦿ CRIMINAL CONSPIRACY CAN BE INFERRED FROM CIRCUMSTANTIAL EVIDENCE
These cases in summary establish that to secure the conviction of an accused on a charge of conspiracy it must be proved beyond reasonable doubt that:- (1) The agreement to commit an offence – an illegal act is between two or more persons. (2) That the said act apart from the agreement itself must he express in furtherance of the agreement. However, authorities abound to the effect that agreements under Section 96 of the Penal Code can be inferred from circumstantial evidence. — C.M. Chukwuma-Eneh JSC.

⦿ DISTINCTION BETWEEN CONSPIRACY AND ABETMENT
For my part I must turn to examining this question by scrutinising the distinction between the offences of conspiracy and abetment as properly accentuated by the trial court in its judgment at p.66 LL13-22 of the record where it said thus: “I am of the view that from the nature of the provisions of Section 85 and 97 of the Penal Code the two provisions are distinct. Conspiracy is distinguished from abatement (sic) in that the crime consists of simply in the agreement or confederacy to do some act, no matter whether it is done or not. In the other (i.e. abatement) (sic) the intention to do a criminal act is not a crime itself until something is done amounting to do or attempting to do some act to carry out the intention. More so the offence of abatement (sic) deals only with offenders who may be described as accessories before the fact and at the fact. Abattors (sic) must have committed acts or omissions which must take place in pursuance of the conspiracy. I therefore find the two charges as framed by the prosecutions are distinct.”.This is a correct statement of the law on the distinction between conspiracy vis-a-vis abetment and I uphold it. — C.M. Chukwuma-Eneh JSC.

⦿ THERE IS CONTRADICTION WHEN TESTIMONIES AFFIRM DIRECT OPPOSITES
I entirely agree with the respondent’s statement of the law at paragraph 7.4 of the respondent’s brief of argument on this question to the effect that “there can only be contradictory evidence where a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated not when there is just a minor discrepancy between them. Thus, for any conflict or contradiction in the evidence of the prosecution witnesses to be fatal to the case, it must be fundamental to the main issues before the court.”  See Agho v. The State. — C.M. Chukwuma-Eneh JSC.

⦿ DEFENCE OF JUSTIFICATION BY LAW
 It is settled that for an accused as the appellant here to avail himself of this defence he has to satisfy certain conditions as stipulated under S.45 of the Penal Code which reads as follows: 45. Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be justified by law in doing it.” The conditions for the defence of justification to apply arising from the foregoing provisions are: “(1) That the criminal act is justified by law (2) That the criminal act was done as a result of mistake of fact not mistake of law. (3) That the act was done in good faith believing same to be justified by law in doing it.” — C.M. Chukwuma-Eneh JSC.

⦿ OFFENCE OF CONSPIRACY CANNOT BE COMMITTED BY ONE PERSON
Black’s Law Dictionary defines conspiracy as a combination or confederacy between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful   See Black’s Law Dictionary (Sixth edition) page 309. This most comprehensive definition says it all. The bottom line of the offence is the execution of an unlawful purpose by an unlawful means, and that unlawful purpose is the criminality involved. While the words “combination” and “confederacy” may in general parlance generally convey the same meaning with conspiracy, the latter parts ways with the former in one basic respect and it is the doing of an unlawful or an illegal act. While I concede that the unlawful or illegal nature of an act could also be found in combination and confederacy, that is better reserved to conspiracy in criminal law, as an agreement between two or more persons to behave in a manner that will invariably or automatically constitute the commission of an offence by two persons or by at least one of them The offence of conspiracy can only be committed if there is a meeting of two or more minds. The offence cannot be committed by one person because that person cannot be convicted as a conspirator, the meaning of which is one involved in a conspiracy. — Niki Tobi JSC.

Available:  A.G, Ogun State v. A.G, Federation (1982)

⦿ INGREDIENTS OF CONSPIRACY
From the above, I sift the following ingredients of the offence of conspiracy:
 (i) There must be an agreement of two or more persons. In other words, there must be a meeting of two or more minds, (ii) The persons must plan lo carry out an unlawful or illegal act, which is an offence. (iii) Bare agreement to commit an offence is sufficient.
 (iv) An agreement to commit a civil wrong does not give rise to the offence, as section 97(1) of the Penal Code provides only for criminal conspiracy. (v) One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator.
 (vi) A conspiracy is complete if there are acts on the part of an accused person which lead the trial court to the conclusion that he and others were engaged in accomplishing a common object or objective. — Niki Tobi JSC.

⦿ ABETMENT IS ENCOURAGING SOMEONE TO COMMIT AN OFFENCE
For an accused person to be convicted of abetment, under section 85 of the Penal Code, the prosecution must prove the following ingredients (i) That there was an encouragement, incitement, setting on, instigation, promotion or procurement of offence, (ii) Any of the above acts must be positive and unequivocal specifically addressed to the commission of the offence, (iii) The act abetted must be committed in consequence1 of the abetment, (iv) An accused person could be convicted of the offence of abetment on proof by the prosecution of any of the acts mentioned in (i) above. In other words, the acts mentioned in (i) above are in the alternative and not cumulative.
 An encouragement here means an act of making someone to feel brave or confident enough to do something by giving active approval in support of the crime. Incitement also has the element of encouragement. By incitement, the person is provoked by a strong passion or feeling to commit an offence. The word “set” is a word of quite a number of synonyms. The two words “set on” connote the semblance of causing to attack or chase like one may say the fisherman prepared the bate to set on the fish. It also has the element of antagonism.  An  instigation, the act of instigating, means something happening by the action or conduct of a person, who is the starter.  By the act of instigation, the co-accused is propelled or gingered to commit an offence I think I can stop here I need not go to the “promotion” or “procurement” as they are parasitic on the above words I have examined in the sense of bringing into being or fruition the main offence. I do not think  will be going outside section 85 of the Penal Code if I say that the above exercise of etymology is within the section and should be so construed; the words put separately. — Niki Tobi JSC.

⦿ OFFENCE OF CULPABLE HOMICIDE
I go to the offence of culpable homicide. The ingredients to the offence of culpable homicide punishable with death under the Penal Code are as follows: (a) the death of the victim, the deceased; (b) the death was a result of the act of the accused person; (c) that the accused knew that his act will result in death or did not care whether the death of the deceased will result from his act. As it is, the actus reus of the offence of culpable homicide punishable with death is the act of killing and the killing must be the deceased If there is evidence that another person, not the particular deceased was killed, the accused will be discharged and acquitted. Of course, the death of the deceased must be directly traced or traceable to the act of the accused person. An accused person will not be convicted if the deceased died, not as a result of the act of the accused, but from any other way. Of the three ingredients, the third is the most difficult to determine It is my view that trial Judges will use the objective test and not the subjective test in determining criminal responsibility or liability And in considering the above ingredients the court will examine carefully the totality of the conduct of the accused and not acts of the deceased in isolation. — Niki Tobi JSC.

⦿ THERE CAN HARDLY BE PROVOCATION IN RESPECT OF WORDS DONE IN ABSENCE OF THE ACCUSED
There can hardly be provocation in respect of words or acts spoken or done in the absence of the accused. This is because words spoken or acts done in the absence of the accused will not precipitate any sudden anger, resentment, rage, or furry, as there is time for passions to cool. The very act of reportage of the words or acts of the accused should materially reduce or drown the anger, resentment, rage or furry of the accused. The test of provocation is objective, not subjective. — Niki Tobi JSC.

⦿ NEW ISSUES CANNOT BE RAISED FOR THE FIRST TIME AT THE SUPREME COURT; EXCEPTIONS EXIST
The law is trite that this court shall not permit a party to raise and argue any new issue which the court below did not have the benefit of considering except where leave to do so was sought and obtained. It is to be noted that the appellate jurisdiction of the Supreme Court is inter alia, to review the decisions of the Court of Appeal. If therefore, an issue did not arise for the determination of the Court of Appeal; such an issue may not form the basis of an appeal to the Supreme Court. However, the Supreme Court will exercise its discretion to allow such fresh issue or question to be raised for the first time in that court if; (i)         It involves a substantial point of law substantive or procedural; (ii)        all the facts in support of such new issue or question are before it and; (iii) a proper application for such issue cr question to be raised Is brought before that court. See: Atoyebi v. Gov. of Oyo State (1994)5 NWLR (Pt344 ) 290 at 365 C-F; Uhunmwangko v. Okojie (1989) 5 NWLR (pt122) 471; Djukpan v. Orovuyevbe (1967) 1 All NLR, 134; Uor v. Loko (1983) 2 NWLR (pt 77) 430; A-G Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (pt 92)1; Bankole v. Petu (1995) 8 NWLR (pt 211) 523; Management Enterprises Ltd. V. Otusanya (1987) 2 NWLR (pt55) 179. See: Sken Consult v. Ukay (1981) 1 SC 6; Agbaje V. Adigun (1993) 1 NWLR (Pt) 269; Waniko v. Ada-John (1999) 9 NWLR (pt 619) 401. — I.T. Muhammad JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Christopher Mitchell Chukwuma-Eneh J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mrs J.O. Adesina.

⦿ FOR THE RESPONDENT(S)
I.K. Sanusi.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

End

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