ISIAKU LALLUWA AUTA (APPELLANT)
THE STATE (RESPONDENT)
(1975) All N.L.R. 163
Division: Supreme Court
Date of Judgment: 11th April, 1975
Before: Coker, Fatayi-Williams and Irikefe JJ.S.C.
APPEAL from the High Court, Kaduna.
The accused was charged before and convicted by the Kaduna High Court with culpable homicide punishable with death, under S. 221 Penal Code; but was discharged and acquitted on another charge of voluntarily causing grievous hurt under S. 247 Penal Code.
What happened was that some goats belonging to accused's father strayed onto deceased's farm and damaged his crops. Deceased requested accused's father to tie them up.
Apparently angered by this request accused's father called the accused to come out and beat the deceased to death. Whereupon accused hit the deceased on the neck with a stick, the latter fell down bleeding from the nose, mouth and ear. While still writhing on the ground, accused's father set upon him and stabbed him on the head with a sword and under the eye with a knife. The deceased died on the spot soon after the attack.
The learned trial Judge found that there was no common intention between the accused and his father to attack deceased but held that there was the same or similar intention. He also held deceased's death was caused either by the act of the accused, or by that of the father, or by the combined effect of both, but made no finding as to which actually accused death. On appeal to the Supreme Court,
(1) that accused's confessional statement has not been properly admitted, and that even if it had been properly admitted, its evidential value is negligible and no weight should have been attached to it at all; and that the learned trial Judge erred in basing his conviction of the accused on the said confessional statement.
(2) that having found that there was no common intention the learned trial Judge erred with regard to the circumstances and to the provisions of sections 79 and 80 Penal Code, in holding that the accused and his father had the same or similar intention to kill the deceased particularly as he himself could not tell who of the two actually struck the fatal blow; and as no medical evidence (although there was post-mortem) was adduced to show the cause of death; and
(3) that having convicted the accused of culpable homicide punishable with death, proceedings in the second charge of causing grievous hurt should have been stayed as provided for in S. 220 (1) Criminal Procedure Code; that the accused should not have been acquitted and discharged on that charge; because if he had not been so acquitted and discharged this Court would have had to consider its stand with respect to that charge.
Appeal allowed, appellant discharged and acquitted.
Cases referred to:
Nasir v. King Emperor (1948) All India Reports (Cal) 324 at 425 and 326.
Adam Alli v. King Emperor (1927) All India Law Reports (Cal) 324 at 325 and 326.
Statutes referred to:
Penal Code, Cap. 89 laws of 'Northern States of Nigeria. SS. 79, 80, 221 and 247.
Evidence Act, Cap. 62 Laws of the Federation, SS. 137 and 138; Criminal Procedure Code, S. 220 (1).
APPEAL from the High Court, Kaduna.
SUIT NO. S.C. 408/74.
Mr M. A. Bashua for the Accused/Appellant.
Mr I.A. Salami, Senior State Counsel, North-Central State for the Respondent.
FATAYI-WILLIAMS, J.S.C. (Delivering the Judgment of the court)- At the Kaduna High Court, the accused, now appellant, pleaded not guilty to two offences preferred against him under sections 221 and 247 of the Penal Code of the Northern States of Nigeria. In the first count he was charged under section 221 with culpable homicide punishable with death. The particulars of the first count state that he intentionally caused the death of one Yusufu Jafaru by hitting him with a stick. In the second count, he was charged with voluntarily causing grievous hurt to the said Yusufu Jafaru.
After considering the evidence led by the prosecution and the defence put forward by the accused, the learned trial Judge found the accused guilty of culpable homicide punishable with death as charged and convicted him accordingly. He, however, found him not guilty of voluntarily causing grievous hurt and acquitted and discharged him of that offence.
At the hearing of the appeal against his conviction on the first count on 20th March, 1975, we allowed the appeal, set aside the conviction, and ordered that he should be acquitted and discharged. We now give our reasons for doing so.
Only two of the witnesses called by the prosecution (both husband and wife) gave eye-witness accounts of what happened and these may be summarised as follows. On the day of the incident, some goats belonging to one Hassan, the father of the accused, strayed on to the farm of Yusufu Jafaru (hereinafter referred to as the deceased) and damaged his crops. The deceased who was Hassan's son-in-law then requested Hassan to tie up his goats. Apparently angered by this request, Hassan called the accused to come out and beat the deceased to death. The accused then picked up a stick (described as rough edged and as thick as a man's wrist) and hit the deceased on the neck with it. The deceased fell down and bled from the nose, mouth and ear. While the deceased was still writhing on the ground, Hassan set upon him and stabbed him on the head with a sword. He also stabbed him under the eye with a knife and said to him "talk". Hassan stabbed the deceased less than a minute after he had been hit with the stick by the accused. The deceased died on the spot soon after the attack. The accused and his father ran away and he was not arrested until some time later. After his arrest the accused made a written statement Ex. 1. It is a confessional statement and we shall have more to say about it later.
The accused testified in his defence. He denied hitting the deceased. He explained that after the exchange of insults between the deceased and his father, the deceased ran into his room and brought out a cutlass and a hoe. His father then called on him to come out and protect him from the deceased. He (accused) picked up a stick and went to the deceased who aimed a blow at him with his cutlass. He fended the blow with his stick and the stick was broken into two. He then ran away with the deceased in hot pursuit. While he was being pursued, the deceased stumbled, fell on the cutlass he was carrying, and injured himself on the stomach as a result.
In the course of his reserved judgment, the learned trial Judge observed that neither the stick with which the accused hit the deceased nor the sword used by his father was tendered in evidence by the prosecution. There was also no medical evidence as to cause of death.
The learned trial Judge, after summarising the evidence adduced by the prosecution, further observed as follows:-
"Accused's evidence differs from Exhibit 1 in two respects. In his evidence he did not hit the deceased; in Exhibit 1 he admitted doing so. In his evidence he said nothing about his father stabbing the deceased; in Exhibit 1 he said his father stabbed deceased with a sword... It is not clear at what stage deceased died. P.W. 1 said Jafaru was already dead before Hassan stabbed him; P.W. 2 said when Hassan stabbed him he was on the verge of death. In my view there are sufficient circumstances which overwhelmingly justify the presumption that Jafaru died either as a result of the blow with the stick or a stab with the sword or the combined effect of both. I say this because of the weapon used-a; sword and a rough edged stick as thick as a man's wrist and also because of the part of the body attacked, the head and the neck and also the time between which the acts were committed. These factors plus the fact that death occurred soon after the acts lead to the inevitable presumption that death was caused either by accused's act or Hassan's act or a combined effect of both. In arriving at this conclusion, I make it clear that I do not accept accused's story that he did not hit the deceased; he admits doing so in Ex. 1. I accept that he did. The prosecution witnesses' evidence gives the impression that there was no exchange of words before Hassan and accused attacked the deceased but I believe the story of the accused that there was and that both Hassan, accused and the deceased were, just before the attack, engaged in an exchange of abuses."
(The italics are ours.)
The learned trial Judge then considered the complicity of the accused and his father when they attacked the deceased and found as follows:-
"In the circumstances of this case I am of the opinion that there was no common intention to kill the deceased. There may however be the same or similar intention but certainly not common intention."
(The italics are ours.)
After comparing the provisions of sections 79 and 80 of the Penal Code (Cap. 89, Laws of the Northern States of Nigeria), the learned trial Judge observed that while section 79 deals with an act following a common intention, section 80 deals with an act following NOT a common but a similar or like intention. He then convicted the accused of culpable homicide punishable with death after finding finally as follows:-
"There are very strong circumstances in this case to justify the presumption that accused and his father had the same intention, i.e. to kill the deceased." (The italics are ours).
The accused has now appealed against his conviction on the following grounds:-
"(1) The learned trial Judge was wrong in law in putting the onus of proof on the accused person in the trial within trial.
(2) The learned trial Judge was wrong in law in admitting the statement-Exhibit 1 when the prosecution failed to adduce any evidence in proof of the fact that the statement was voluntarily made by the accused person.
(3) The learned trial Judge was wrong in law in convicting the accused person having found that there was no common intention between the accused and his father Hassan and particularly when it was not proved that the deceased died as a result of the act of the accused.
(4) The learned trial Judge was wrong in law in convicting the accused person of the murder when the cause of death was not proved beyond reasonable doubt and particularly when it is not proved that it was the act of the accused person that caused the death of the deceased.
(5) The decision is unwarranted and cannot be supported having regard to the evidence."
The complaint in grounds one and two of the grounds of appeal relates to the testimony of one Diga Moh (5th P/W) the police constable who wrote down the written statement (Ex. 1) made by the accused. Apparently when the 5th P/W was about to tender the statement, learned Counsel for the accused objected to it on the ground that "it was involuntarily made and duress made on accused by witness to extort it." As a result of this objection it became necessary for the learned trial Judge to "hold a trial" within the main trial in order to determine whether the statement was voluntary or not. Although the police constable (5th P/W) was the one who asserted that the statement was voluntary and on whom, therefore, lay the onus of proving that it was, the record shows that it was the accused who first testified in the trial within the trial; he said that he was threatened with a stick and a gun before he made the statement which was then taken down by the 5th P/W. Because the 5th P/W did not testify first, as he should have done, as to the circumstances under which the statement was recorded, the learned trial Judge, no doubt realising the irregularity in procedure, observed after the accused had testified as follows:-
"The procedure for a trial within a trial is as follows: as soon as the defence objects to the admission of a statement and trial within trial is ordered the defence shall begin by cross-examining the witness in the box. After this they will adduce evidence to establish their grounds of objection. If in the cause of adducing this evidence they mention the name or names of some people who in the prosecution's view are necessary to rebut the defence allegation, the prosecution are entitled to call the people.
What happened in this case however is this: that when the objection was raised the defence did not cross-examine the witness and the court inadvertently ordered the witness to step down from the box. The defence then proceeded to call their witness to establish the grounds of their objection. It seems to me that in the interest of both parties the defence shall be given a chance to cross-examine 5th P/W and this shall be done. On the question whether the prosecution shall be entitled to call another witness I see nothing prejudicial to the defence if this is done and I will since in this case the name of the superior officer has featured prominently in the story of both sides it is only just that he be called and I will give the prosecution an opportunity to call him."
The 5th P/W was then cross-examined. He denied asking the accused to tell him the truth and said that all he did was to invite the accused to come and make a statement. Earlier in his examination-in-Chief during the trial within the trial, the accused had testified that after the statement had been recorded by the 5th P/W, he was taken to a superior police officer who read "the documents" to him. It was because of this that the learned trial Judge indicated that he would give the prosecution an opportunity to call the superior police officer. Although the learned trial Judge adjourned the hearing twice to enable this superior police officer to be produced by the prosecution, he was never produced and could not, therefore, testify in support of the contention of the 5th P/W that the statement was voluntary. The learned trial Judge, nevertheless, ruled that the statement was voluntary and admitted it in evidence.
There were many irregularities in the conduct of the hearing of "the trial within the trial." In the first place, the onus is on the prosecution which asserted that the statement was voluntary to prove that it was so made and they should have started. (See sections 137 and 138 of the Evidence Act, Cap. 62 Laws of the Federation). By making the accused person start, they have shifted, no doubt wrongly, the onus placed upon them on to him. Even when the 5th P/W had been cross-examined and re-examined, he said nothing about the circumstances surrounding the making of the statement (Ex. 1) He merely denied that he compelled the accused to tell the truth. He said nothing about the threat with a stick and a gun. Although the 5th P/W stated in his evidence during the main trial that he took the confessional statement along with the accused to his superior officer, one Mr Y. Y. Tarfa, an Assistant Superintendent of Police, who was alleged to have read the statement to the accused, and to have asked him if he made it, and to whom the accused confirmed that he did, this superior police officer was never called. In the face of all these irregularities, the evidential value of this confessional statement, assuming it was properly admitted in evidence (although we pointed out that it was not), is negligible and no weight should have been attached to it at all.
There is no doubt that the learned trial Judge, when considering the defence of the accused, attached considerable weight to this confessional statement (Ex. 1) and it is difficult not to come to the conclusion that that was one of the main reasons, if not the principal reason, for rejecting the defence put forward by the accused in his oral testimony. In this connection we recall what he said about the defence. it reads;
"Accused's evidence differs from Ex. 1 in two respects. In his evidence he did not hit the deceased; in Ex. 1 he admitted doing so. In his evidence he said nothing about his father stabbing the deceased; in Ex. 1 he said his father stabbed the deceased with a sword."
After concluding that the death of the deceased was caused either by the act of the accused or by his father's act or by the combined effect of both, the learned trial Judge observed further as follows:-
"I make it clear that I do not accept accused's story that he did not hit the deceased; he admits doing so in Exhibit 1. I accept that he did."
In effect, the learned trial Judge found that the accused hit the deceased because he admitted doing so in Exhibit 1. It is impossible to know whether he would not have come to a different conclusion had this confessional statement not been admitted in evidence, particularly as the learned trial Judge himself had indicated in his judgment that he preferred the evidence of the accused to that of the two eye-witnesses (P/Ws 1 and 2) as to whether or not there was an exchange of abuses between the deceased, Hassan, and the accused, before the alleged attack on the deceased. We find that the complaint about the irregularity of admitting Ex. 1 in evidence is justified.
We will now proceed to deal with the remaining three grounds of appeal. Earlier in his judgment the learned trial Judge found that there was no common intention between the accused and his father to kill the deceased. Later, however, he found that both of them had the same intention. We are, of course, unable to follow the reasoning of the learned trial Judge in this respect. If there was no common intention on their part, how could he then have held in the particular circumstances of this case when all the events leading to the death of the deceased happened almost at once, that they had the same intention? Moreover, having found that the death of the deceased was caused "either by accused's act or Hassan's act, or the combined effect of both", we do not see how he could have been so categorical in his finding that the "accused intended to kill and towards the achievement of this intention he hit a defenceless man." It must be remembered that neither the stick nor the sword was produced by the prosecution for his inspection and reason was given for the non-production. Finally, although Bako Musa Yamusa (3rd P/W) testified that he took the body of the deceased to the Malumfashi Hospital where he identified the body to the doctor, that doctor was not called (and his absence was not explained) to testify as to whether it was the stick or the sword or both which caused the injuries and whether it was these injuries or some other affliction which cause the death of the deceased.
In coming to the rather contradictory conclusion to which we have referred above, the learned trial Judge appeared to have confused the provisions of section 80 of the Penal Code with those of section 79. The two sections read:-
"79. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
80. Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention."
Thus, in the case of section 79, when the existence of a common intention between all the several persons who committed the criminal act and the criminal act itself are established, each of such persons would be liable for the entire criminal act; such criminal act includes all acts contemplated by the participants or which would ordinarily be done in furtherance of that common intention but not the unpremeditated acts of a participant. (See Nasir v. King Emperor (1948) All India Reports (All) 229 where a similar provision in section 34 of the Indian Penal Code was considered). In other words, this section deals with the liability of several persons committing a criminal act with a common intention. Section 80 (which is the same as section 35 of the Indian Penal Code), on the other hand, deals with persons concerned in an act which is only an offence if done with a criminal knowledge or intention; the criterion of liability of each person concerned in the doing of such an act depends on his individual knowledge or intention; Thus, if A and B beat C who dies as a result, and A intended to kill but B only intended to cause grievous hurt and did not know that his act would cause death or such bodily injury as was likely to result in death, A would be guilty of culpable homicide punishable with death, and B of voluntarily causing grievous hurt. (See Adam Alli v. King Emperor (1927) All India Reports (Cal) 324 at pages 325 and 326). In other words, if several persons join in an act, each manifestly having a different intention or knowledge, each is liable only according to his own intention or knowledge and no more.
In the case in hand, it was unnecessary, in our view, for the learned trial Judge to speculate about the intention of the accused (and that of his father who was not before the court) in order to determine his guilt or innocence of the offences charged. However, having speculated about his intention at length and come to the conclusion that the accused and his father had no common intention, the logical consequences must follow. In this connection, it must be recalled that the evidence is that the accused hit the deceased with a stick while his father stabbed him with a more lethal weapon, a sword. The accused said it was a small stick while the two eye-witnesses (P.W.'s 1 and 2) said the stick was as thick as an ordinary man's wrist. The stick was not produced and no explanation was given for its non-production. Although the body of the deceased was examined by a doctor, the doctor was not called to testify as the cause of death and no explanation was given as to why he was not called. From the evidence available and which the learned trial Judge accepted, however, it is, at least, manifest that by attacking the deceased with a stick, the accused must be deemed to intend to cause him some grievous hurt and he could have been found guilty of that offence. But as the learned trial Judge had acquitted and discharged him of this lesser offence, this Court is unable to interfere with that verdict. For future guidance, however, we wish to refer to the provisions of section 220 subsection (1) of the Criminal Procedure Code which reads:-
"220 (1) When a charge containing more heads than one is framed against the same person, and when a conviction has been obtained on one or more of them, the complainant or the officer conducting the prosecution may, with the consent of the court, withdraw the remaining charge or charges, or the court of its own accord may stay the inquiry into, or trial of such charge or charges."
(The italics are ours.)
It only remains for us to add that had the learned trial Judge stayed proceedings in respect of the second charge instead of finding the accused not guilty of it, this Court would have had to reconsider its stand with respect to that charge.
Be that as it may, we were of the view, nevertheless, that having regard to the totality of the evidence adduced before the learned trial Judge and in particular to the considerable weight which he obviously attached to the confessional statement (Ex. 1), the finding that there was no common intention between the accused and his father, the inability of the learned trial Judge to determine whether it was the sword or the stick (or a combination of both) which caused the death of the deceased, and the absence of the crucial medical evidence as to the cause of death, we came to the conclusion at the hearing of the appeal that it would be unsafe to allow the conviction of the accused for culpable homicide punishable with death to stand. We therefore allowed the appeal, set aside the conviction, and acquitted and discharged him.