3PLR – SANI BUJE V. THE STATE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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SANI BUJE

V.

THE STATE

COURT OF APPEAL, (JOS DIVISION)

THURSDAY, 21ST MARCH, 1991

SUIT NO. CA/J/ 138/90

3PLR/1991/71 (CA)

 

 

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

EMMANUEL TAKON NDOMA-EGBA, J.C.A. (Presided)

YEKINI OLAYIWOLA ADIO, J.C.A. (Read the Leading Judgment)

OBINNAYA ANUNOBI OKEZIE J.C.A.

 

REPRESENTATION

P.A. Bello, ESQ. – for the Appellant

A.A. Adamu, Senior State Counsel 1, Borno State Ministry of Justice – for the Respondent

 

OTHER ISSUES

CRIMINAL LAW AND PROCEDURE:– Murder –  Proof of – What prosecution must prove – When medical evidence can be dispensed with – How intent can be proved

CRIMINAL LAW AND PROCEDURE:– Aiding and Abetting a crime punishable by death (Culpable homicide)  – Whether a person can be properly convicted for abetting where only formally charged with the principal offence

CRIMINAL LAW AND PROCEDURE – EVIDENCE:– Confession – Meaning of – Circumstantial evidence

CHILDREN AND WOMEN LAW: Women and Justice Administration – Boyfriend of young woman killed by men whose advances she had rejected in the past – How treated

  

 

MAIN JUDGEMENT

ADIO, J.C.A. (Delivering the Leading Judgment):

The charge preferred against the appellant in the High Court, Borno State, Potiskum Judicial Division, was culpable homicide punishable with death under section 221(b) of the Penal Code. The allegation was that on or about the 23rd day of September, 1987, he, at Santalma Village, caused the death of one Mai-Ulu by doing an act, to wit, cut his throat with an axe with the knowledge that his death would be the probable consequence of the act.

 

One Mariama Yayi Ali, p.w.4., was once the girl-friend of the appellant and was the girl-friend of the deceased at the time of the incident. Two other men, Abubakar and Musa, made love advances to the said Mariama which she rejected. About mid-night of the day of the incident, the appellant, Abubakar, and Musa went to the scene of the incident at Santalma Village and waited there until about 1 a.m. when Mariama and the deceased were passing through there, as usual, to somewhere within the village. The appellant, Abubakar and Musa attacked Mariama and the deceased. The appellant, with the aid of a stick, pursued Mariama and was beating her with the stick until she ran into the house of her uncle in the area. When it was dawn, the corpse of the deceased, with a cut or wound on the throat, was found at the scene of the incident.

 

The appellant made statement to the police on two different occasions on the matter. The statements are Exhibits “PBI” and ”PB3.” He gave oral evidence. The appellant told the court that on the day in question, Abubakar asked him to help him (Abubakar) to arrest Mariama and the deceased because they were making “unlawful friendship.” He refused, at first, but after some persuasion by Musa he agreed to do so. Three of them (the appellant, Abubakar and Musa) went and waited on the road which they knew Mariama and the deceased used to pass through whenever the deceased went to see Mariama. When Mariama and the deceased reached the spot, the appellant pointed his touchlight to them so as to reveal their identities. Then Abubakar and the, deceased started fighting. The appellant, allegedly separated them and then pursued Mariama, beating her with a stick, until she entered the house of her uncle. The appellant then went home and did not return to the scene of the incident. He heard when it was dawn that the deceased had been killed. At the instance of Abubakar and Musa who promised to give him the amount of N 1,000.00, the appellant said that he left the village and went into hiding for five months to prevent him from revealing what happened to the police. Abubakar and Musa did not keep their promise and the appellant was eventually arrested by the police.

 

The learned trial Judge after giving consideration to the evidence before him and to the submissions of the learned counsel for the prosecution and for the defence, found the appellant guilty of abetting the offence, convicted him accord­ingly, and sentenced him to death. He held that the appellant abetted the offence. He also held that as the appellant was an abetter who was present when the offence was being committed he was a principal offender. Dissatisfied with the judgment, the appellant has appealed to the court against the judgment.

 

The notice and the grounds of appeal are at pages 38 and 39 of the record of proceedings. The grounds of appeal, without their particulars, are as follows:

­”1.     It was an error in law for the lower court to convict the appellant for the offence with which he was not charged.

2. It was an error in law for the lower court to treat Exhibits ‘PB 1’ and ‘PB3’ which were the appellant’s statements to the police, as confessional statements on which the appellant was convicted.
3. The lower court erred in law in finding the appellant guilty of the offence of aiding and abetting when it has not been proved beyond reasonable doubt that the offence of culpable homicide (punishable with death) had actually been committed.
4. The judgment is unreasonable and unwarranted having regard to the evidence.”

 

The parties duly filed and exchanged briefs. Three issues were identified for determination in the brief of each party. They are substantially the same. The second issue, which is whether the statements made by the appellant to the police were confessional statements, can be treated under the third issue. There are, therefore, in my view, two issues (the first and the third issues) for determination for the purposes of this appeal and they are as follows:­

(1)     Whether, having regard to section 217 of the Criminal Procedure Code, the learned trial judge was right to convict the appellant under section 90 of the Penal Code for abetting culpable homicide punishable with death, when the charge preferred against the appellant was culpable homicide punishable with death under section 221 (b) of the Penal Code.

(2)     Whether, from the totality of the evidence before the lower court, the prosecution proved beyond reasonable doubt that the appellant committed the offence of abetting, under section 9(l of the Penal Code, of culpable homicide punishable with death.

 

I will consider the question raised under the second issue first because if the prosecution did not prove beyond reasonable doubt that the appellant committed the offence of abetting, under section 90 of the Penal Code, of culpable homicide punishable with death, the conviction of the appellant cannot be sustained if even, in law, there is power to convict for abetting, under section 90 of the Penal Code, of the offence of culpable homicide punishable with death when the charge preferred against an accused is culpable homicide punishable with death under section 221 (b of the Penal Code. The learned trial judge after making references to the evidence on the various aspect of the matter, including the statements, Exhibits “PB I” and “PB3,” which the appellant made to the police, held that the aforesaid statements were confessional statements. In any case, the statements formed part of the evidence before the learned trial judge. The view of the learned trial judge on the totality of the evidence before him in relation to the appellant was, inter alia, as follows:­

“I now move into the act and conduct of the accused from the view point of the confessional statements, exhibits ‘PB1’ and `PB3′. Briefly, the accused was actively involved in the plan to kill the deceased. Towards the execution of the plan, he was armed with a touch light and a stick, not a cane as he claimed, before he went in company of Abubakar (Bukar) Mailafiya and Shaibu Musa to the scene of the incident where the three of them waylaid the deceased and Mariama Yayi from about I a.m. to 2 a.m. on the day of the inci­dent …… … The accused played a vital role at the scene when he used his lit touchlight to and did identify or ascertain the identity of the deceased and Mariama Yayi before the three of them dealt with both of them … In my opinion, these facts emanating from his own confessions in Exhibits ‘PB I’ and ‘PB3’ sustain the guilt and convic­tion of the accused.”

 

After making reference to and setting out the provisions of sections 83, 84, 85 and 90 of the Penal Code, the learned trial judge, on the effect of the presence of the appellant at the scene of the incident when the offence was being committed and his participation in the attack on the deceased at the initial stage, stated, inter alia. as follows:­

“I will pause here, if I may, and emphasise that the presence or personal physical or actual participation of the abetter is immaterial went to the scene of the incident at Santalma Village and waited there until about 1 a.m. when Mariama and the deceased were passing through there, as usual, to somewhere within the village. The appellant, Abubakar and Musa attacked Mariama and the deceased. The appellant, with the aid of a stick, pursued Mariama and was beating her with the stick until she ran into the house of her uncle in the area. When it was dawn, the corpse of the deceased, with a cut or wound on the throat, was found at the scene of the incident

 

The appellant made statement to the police on two different occasions on the matter. The statements are Exhibits “PB1”and”P133.” He gave oral evidence. The appellant told the court that on the day in question, Abubakar asked him to help him (Abubakar) to arrest Mariama and the deceased because they were making “unlawful friendship.” He refused, at first, but after some persuasion by Musa he agreed to do so. Three of them (the appellant, Abubakar and Musa) went and waited on the road which they knew Mariama and the deceased used to pass through whenever the deceased went to see Mariama. When Manama and the deceased reached the spot, the appellant pointed his touchlight to them so as to reveal their identities. Then Abubakar and the, deceased started fighting. The appellant­ allegedly separated them and them pursued Mariama, beating her with a stick, until she entered the house other uncle. The appellant then went home and did not return to the scene of the incident. He heard when it was dawn that the deceased had been killed. At the instance of Abubakar and Musa who promised to give him the sum of N1,000.00, the appellant said that he left the village and went into hiding for five months to prevent him from revealing what happened to the police. Abubakar and Musa did not keep their promise and the appellant was eventually arrested by the police.

 

The learned trial Judge after giving consideration to the evidence before him and to the submissions of the learned counsel for the prosecution and for the defence, found the appellant guilty of abetting the offence, convicted him accord­ingly, and sentenced him to death. He held that the appellant abetted the offence. He also held that as the appellant was an abetter who was present when the offence was being committed he was a principal offender. Dissatisfied with the judgment, the appellant has appealed to the court against the judgment.

 

The notice and the grounds of appeal are at pages 38 and 39 of the record of proceedings. The grounds of appeal, without their particulars, are as follows:

­”1.     It was an error in law for the lower court to convict the appellant for the offence with which he was not charged.

2. It was an error in law for the lower court to treat Exhibits ‘PB 1’ and ‘P1;3’ which were the appellant’s statements to the police, as confessional statements on which the appellant was convicted.
3. The lower court erred in law in finding the appellant guilty of the offence of aiding and abetting when it has not been proved beyond reasonable doubt that the offence of culpable homicide (punishable with death) had actually been committed.
4. The judgment is unreasonable and unwarranted having regard to the evidence.”

 

The parties duly filed and exchanged briefs. Three issues were identified for determination in the brief of each party. They are substantially the same. The second issue, which is whether the statements made by the appellant to the police were confessional statements, can be treated under the third issue. There are, therefore, in my view, two issues (the first and the third issues) for determination for the purposes of this appeal and they are as follows:­

(1)     Whether, having regard to section 217 of the Criminal Procedure Code, the learned trial judge was right to convict the appellant under section 90 of the Penal Code for abetting culpable homicide punishable with death, when the charge preferred against the appellant was culpable homicide punishable with death under section 221 (b) of the Penal Code.

(2)     Whether, from the totality of the evidence before the lower court, the prosecution proved beyond reasonable doubt that the appellant committed the offence of abetting, under section 90 of the Penal Code, of culpable homicide punishable with death.

 

I will consider the question raised under the second issue first because if the prosecution did not proved beyond reasonable doubt that the appellant committed the offence of abetting, under section 90 of the Penal Code, of culpable homicide punishable with death, the conviction of the appellant cannot be sustained if even, in law, there is power to convict for abetting, under section 90 of the Penal Code, of the offence of culpable homicide punishable with death when the charge preferred against an accused is culpable homicide punishable with death under section 221 (b) of the Penal Code. The learned trial judge after making references to the evidence on the various aspect of the matter, including the statements, Exhibits “PB1” and “PB3,” which the appellant made to the police, held that the aforesaid statements were confessional statements. In any case, the statements formed part of the evidence before the learned trial judge. The view of the learned trial judge on the totality of the evidence before him in relation to the appellant was, inter alia, as follows:­

“I now move into the act and conduct of the accused from the view point of the confessional statements, exhibits `PBI’ and ‘PB3’. Briefly, the accused was actively involved in the plan to kill the deceased. Towards the execution of the plan, he was armed with a touch light and a stick, not a cane as he claimed, before he went in company of Abubakar (Bukar) Mailafiya and Shaibu Musa to the scene of the incident where the three of them waylaid the deceased and Manama Yayi from about I a.m. to 2 a.m. on the day of the inci­dent … The accused played a vital role at the scene when he used his lit touchligh to and did identify or ascertain the identity of the deceased and Mariama Yayi before the three of them dealt with both of them … In my opinion, these facts emanating from his own confessions in Exhibits `PB1’ and ‘PB3’ sustain the guilt and convic­tion of the accused.”

 

After making reference to and setting out the provisions of sections 83, 84, 85 and 90 of the Penal Code, the learned trial judge, on the effect of the presence of the appellant at the scene of the incident when the offence was being committed and his participation in the attack on the deceased at the initial stage, stated, infer alia, as follows:­

“I will pause here, if I may, and emphasize that the presence or personal physical or actual participation of the abetter is immaterial where he remains as such up to the time of abatement. His presence or absence may determine his degree of participation as e.g. principal in the first degree or otherwise. This is amplified in section 90 … by his own showing in Exhibit’ PB3′, the accused is at least an abettor and being present at the scene when the offence was committed was principal in the first degree …

Again in Exhibit ‘PB1’, the accused and the two others aforemen­tioned jointly in the first instance before he chased Mariama Yayi away, attacked her and the deceased. The accused thereby became directly involved in the death of the deceased. The deceased was found dead as earlier described with wound on his throat … I share the same view; and I have already shown that the accused is to this extent, as an abettor, a principal in the first degree. If the accused is an abettor as I have held, it does not matter what role he played in the physical execution of the act. that caused the death in question. So, it does not matter whether he physically, or actually in person used an axe on the deceased to or did cause the throat -wound aforesaid. I am satisfied that the accused and others inflicted the said wound on the deceased, and that the deceased died as a result of the wound.”

 

The learned trial judge then pointed out that the circumstantial evidence in this case was conclusive and sufficient to establish the guilt of the appellant. He also pointed out that intention to kill could be inferred from the nature of the wound, the type of the weapon used and the part of the body of the deceased where the wound was inflicted and that, in any case, express intention (intention to kill)could be found in the two statements (Exhibits ‘PB1’ and ‘PB3’) which the appellant made to the police. He stated that the defences of provocation and self-defence were not available to the appellant and came to the conclusion that on the totality of the evidence before him the prosecution had proved its case beyond reasonable doubt.

 

On the question whether the statements made by the appellant, Exhibits ‘PB1’ and ‘PB3’, were confessional statements, the submission in the appellant’s brief was that as the appellant was charged with a crime, a statement made by him to be regarded as a confessional statement must contain an admission of the crime or at best suggest the inference of admission. It was argued that the appellant never admitted, in the said statement, cutting the throat of the deceased. It was submitted in the respondent’s brief that the aforesaid statements were, having regard to their contents, confessional as the appellant admitted therein that he conspired (agreed) with the other persons to kill the deceased and that he did something to facilitate the commission of the crime. In order to fully understand this aspect of the matter it is necessary to set out the relevant parts of the statements. In the first statement, Exhibit “PB1,” the appellant stated, inter alia, as follows:­

“On the 23/9/87 at about 2100hrs I was asleep in my house … one Bukar Mailafiya … come and waked (sic) me up with the complain that sometimes ago he caught (sic) Maiulu now deceased with Mariama Yayi ‘f’ for adultery (sic) that l should help him go and attack Maiulu and break his leg … they convince (sic) me from there I fol­lowed Bukar Mailafiya and Shaibu Musa to a nearby bush that’s route in which Maiulu deceased and Mariama Yayi ‘f’ normally (sic) followed to their loging (sic) on getting to the bush Shaibu Musa stood at the road Bukar Mailafiya hide (sic) himself inside millet at the northern side while I was at the southern side, while there Shaibu Musa who was at the main road informed us that see them coming, that is Maiulu … and Mairama Yayi ‘f, immediately they came near us I flashed touchlight on them, we then came out three of us and attacked them. Bukar Mailafiya and Shaibu Musa started beating Maiulu … with sticks while I pursued Mariama Yayi ‘f were (sic) her with a stick I didn’t reach the scene again from there I ran inside millet farm. On the very midnight I had (sic) that Maiulu … was killed the case was reported to the police … Bukar and Shaibu Musa then arraigned ((sic) that they are (sic) going to contribute N1,000 that’s N500 each to enable me parked (sic) to unknown place … After I had left with the promise of N1,000 I later came back to collect the said money … I decided to come back to Santalma so as to be arrested to enable me … the whole thing …”

The statement, Exhibit “PB3”, which the appellant made to the police was even more revealing. In it, the appellant stated, inter alia, as follows:­

– “On the 23/9/87 at- about 2300hrs 1 was sleeping one Abubakar Mailafrya came to my house and woke me up from sleeping. He told me that he caught one Maiulu of Kaibi village with his father’s wife name Mariama Yayi `fat santalma village. He told me that we should go and stop Maiulu in order not to go away with his father’s wife … I, Abubakar Mailafrya and Shaibu Musa went to where Maiulu and Mariama was (sic). When we were going to Mariama Yayi `f house we met her and Maiulu deceased on the way. When Shaibu Musa sights (sic) them, he said they are (sic) coming. I and Abubakar Mailaftya lay ambush in the millet while Shaibu Musa was standing on the road. When they came to where we were I flashed (sic) my touchlight on them. I drove Mariama Yayi away I even caned her with a stick. Abubakar Mailafiya and Shaibu Musa started beating Maiulu deceased with stick. The deceased shouted nobody to help him. The deceased was killed by Abubakar Mailafiya and Shaibu Musa. The deceased was killed near Yaro Dari’s house. Yari Dari is (sic) Maiulu’s friend … The touchlight I came to the police station with is the one I used (on the deceased) in flashing on the deceased and Yayi before the deceased was killed … When Abubakar Mailafiya came to Santalma village, he and Shaibu Musa told me to run out of Santalma village in case our secret will be revealed:… I helped Abubakar Mailafiya and Shaibu Musa in killing Maiulu by driving Mariama Yayi away when Abubakar and Shaibu Musa were killing Maiulu. The aim of my driving Mariama Yayi away was that nobody will know our secret. I once friend Mariama Yayi sometime ago. I told Bulama Yerima Jatau that I, Abubakar, Shaibu have planned to break Maiulu’s leg and kill him because of theft of domestic animals he involved himself and love affairs he has (sic) with Mariama Yayi. The Bulama did not say anything. I left his place. It was the day the deceased was killed in the night. I Abubakar, Mailafiya and Shuaibu Musa have cheated me to involve me in this matter. They refused to pay me the N 1,000. that is all.” (Italics mine).

 

A confession is an admission made by an accused stating or suggesting that he committed the crime which is subject of the charge preferred against him. It is an acknowledgment of the crime by the accused. See lkemson v. The State, (1989) 3 N.W.L.R. (Pt. 110) 455 at 476. The submission of the learned counsel for the appellant did not take into account the legal implication or effect of the things which the appellant stated in the aforesaid statements that he (appellant) did either alone or in combination with two other persons, Abubakar and Musa, in the matter. In the first statement, Exhibit ’PB 1′, the appellant stated, inter alia, that Abubakar requested him (appellant) to help in attacking and breaking the legs of the deceased. He (appellant) agreed and he went with Abubakar and Musa to the scene of the incident where they laid an ambush for the deceased and Mariama. It was dark and it was the appellant who flashed his torchlight on the deceased and Mariama to identify them. They (the appellant, Abubakar and Musa) then attacked the deceased and Mariama. He gave the impression that all he did was to chase Mariama away to her uncle’s house and that he did not return to the scene of the incident. Even with the situation as stated by the appellant in the aforesaid statement (Exhibit ‘PB I’) there are some legal implications, which will be dealt with later, in relation to the parts which the appellant said that he played in the matter.

 

Indeed, the role which the appellant played in the matter can be fully understood by reading the statement, Exhibit ‘PB I’ together with the second statement, Exhibit ‘PB3’. Certain things stated in Exhibit ‘PB 1’ which appeared to be ambiguous were clarified in the second statement, Exhibit ’PB3′. In Exhibit ‘PB I’ the appellant only stated that the request of Abubakar to him was merely that he should assist in attacking and breaking the legs of the deceased. In the second statement, Exhibit’ PB3′, what the appellant said was that three of them (appellant, Abubakar and Musa) planned to break the leg of the deceased and to kill him and that the same day that he (appellant) told Bulama Yerima latau about the aforesaid plan, the deceased was killed in the night. The impression which the appellant gave in the first statement was that he was not there when the deceased was killed as he had pursued Mariama to her uncle’s house and that from there he went home and did not return to the scene of the incident. In the second statement, Exhibit ‘PB3’, the appellant stated his reason for driving Mariama away from the scene of the incident; it was to prevent Mariama from knowing “their secret,” that is, the secret of the appellant, Abubakar and Musa. The appellant stated categorically in the aforesaid statement that he flashed his touchlight on the deceased and Marianna before Abubakar and Musa killed the deceased. He also stated that he helped Abubakar and Musa in killing the deceased by driving Mariama away when Abubakar and Musa were killing the deceased.

 

If indeed, the appellant, as stated in Exhibit ‘PB3’, and two other persons planned to break the leg of the deceased and to kill him, then the killing of the deceased was in furtherance of a common intention. The guilt or otherwise of the appellant is not what is being dealt with. here and what the appellant said in the statement was not evidence against the two other persons. The position is that, prima facie, section 79 of the Penal Code applies in the circumstances of this case.

If two or more persons intentionally do a thing jointly it is the same as if each had done it individually. Each person is not only liable for his own acts but also for the sum of-the acts of his fellow conspirators in furtherance of the common intention. Further, the appellant stated in Exhibit ‘PB3’ that he flashed his touchlight on the deceased and Mariama before the deceased was killed-by the other^– two persons. Certainly, the flashing of the touchlight on the deceased by the appellant was to reveal the identity of the deceased to facilitate his being killed by the other persons. That was not all, the appellant stated further in Exhibit “PB3” that he assisted the two other persons in killing the deceased by driving Mariama away when they (the aforesaid two persons) were killing the deceased so that nobody would know ‘their secret’, that is, the secret of the appellant, Abubakar and Musa. Prima facie, section 90 of the Penal Code becomes applicable as the appellant who was an abettor was present when the aforesaid two persons were killing the deceased. He thus, prima facie, became a principal offender. Actual presence plus prior abetment means of participation in the offence. Further, when any person aids the commission of an offence by being present at the scene not as a mere on looker but with the purpose of aiding and assisting any other person or persons committing the offence, he is equally guilty of committing the offence as a principal. See Nyam v. The State (1964) 1 All N.L.R. 361. What is important in relation to the contents of the aforesaid statements, Exhibit ‘PBI’ and ‘PB3’, is that they contained an admission of the unlawful killing of the deceased in circumstances in which the appellant was, at least, a principal offender. In the circumstance, the learned trial judge was right in holding that the aforesaid statements were confessional statements.

 

The learned trial judge then set out the conditions which should be complied with before a statement made by an accused can support a conviction. He pointed out, after applying the tests, that the two statements satisfied the relevant tests. He expressed the view, which was correct, that the statements were free, voluntary, direct and positive. He also pointed out, rightly in any view, that the salient or essential things stated in the statements were confirmed or corroborated by evidence outside the statements. For example, the appellant was categorical and he stated clearly in the second statement, Exhibit ‘PB3’, that the deceased was killed immediately after the deceased and Mariama had been ambushed by the appellant, Abubakar and Musa at the scene of the incident. The question then is whether the aforesaid assertion about the killing of the deceased and the time of the killing was true. There was also his (appellant’s) assertion in the aforesaid statement that the deceased was killed by Abubakar and Musa. The question whether the appellant himself did not actually participate physically in the killing of the deceased is a matter in relation to which the appellant had tried to absolve himself. Whether he succeeded in doing so will later be dealt with. What is important, at this stage, is whether his assertion that Abubakar and Musa killed the deceased was confirmed or corroborated. In this connection, the position is that if Mr. A was last seen alive with Mr. B and the next thing that happened was the discovery of the corpse of Mr. A, the irresistible inference is that Mr. A was killed by Mr. B. The onus will then be on Mr. B to offer explanation for the purpose of showing_. that he was not the one who killed Mr. A. In lgho v. The State (1978) 3 S.C. 87, the deceased was last seen alive with the appellant who gave her a ride on the back of his bicycle. The corpse of the deceased was later found that night.

 

The conviction of the appellant for the murder of the deceased was upheld by the Supreme Court. The same conclusion was reached in Amusa v. The State (1987) 4 S.C. 99 in which on the 10/ 1 /78 the appellant went out with the deceased and from that day no one saw the deceased alive until his corpse was discovered on the 21/ If78. The inference was that the appellant killed the deceased. In the present case, the incident occurred after mid-night but before dawn. The deceased was alive when he and Mariama were waylaid or ambushed at the scene of the incident. The corpse of the deceased was later discovered at dawn. The irresistible inference is that he was killed by the appellant, Abubakar and Musa with whom the deceased was last seen alive, which confirmed the assertion of the appellant in the statement (Exhibit ‘PB3’) that Abubakar and Musa killed the deceased that night. Even if one accepts the evidence of the appellant that he was beating Mariama and driving her away when Abubakar and Musa were killing the deceased because he (appellant) did not want Mariama to know ‘their secret’, the inference is that there was an understanding or agreement among the appellant, Abubakar and Musa to kill the deceased and that the killing of the deceased by them that night was pursuant to the understanding or agreement which confirmed the assertion of the appellant in the aforesaid second statement that they (appellant, Abubakar and Musa)planned to kill the deceased. The deceased, according to the appellant in the said statement, was killed in the night of the day on which he (appellant) told Bulama Jatau that they (appellant, Abubakar and Musa) planned to break the leg of the deceased and to kill him.

 

In order to succeed in a charge of culpable homicide punishable with death under section 221 (b) of the Penal Code, the prosecution must prove that the deceased is dead; that the death resulted from the act of the accused; and 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. See Bakare v. The State (1987) 1 N.W.L.R. (Pt.52) 579. The submission in the appellant’s brief was that the essential ingredients of the offence of culpable homicide punishable with death were not proved beyond reasonable doubt. The respondent submitted that the death of the_. deceased was not in dispute and it was argued that there was evidence that the appellant was involved in the killing of the deceased. There was evidence that the deceased was waylaid and attacked at the scene of the incident during the mid­night and that his corpse was later found there at dawn. In other words, the deceased died on the spot. In the circumstance, medical evidence is unnecessary because when a man is attacked with a lethal weapon and dies on the spot it is not necessary to prove the cause of death as it can properly be inferred that wound inflicted caused the death. See Bakuri v. The State (1965) N.M.L.R. 163. In the present case, the appellant and others waylaid the deceased after midnight_. and at dawn the 3rd p.w. found an axe and the corpse of the deceased, with a wound on the neck, at or near the scene of the incident. There was, therefore, no doubt, as the learned trial Judge found, that the deceased was dead.

 

On the question whether the death resulted from the act of the appellant, the submission in the appellant’s brief was that there was no evidence that the appellant cut the throat of the deceased. Here, there is a misconception on the part of the appellant. Reference has been made to what and what were done by the appellant and/or the other two persons involved in the killing of the deceased. The criminal liability of the appellant was because he was, in law, a principal offender as he was an abettor who was present when the crime was being committed. I have, elsewhere, set out the legal consequences. So, as pointed out by the learned trial judge, it could or could not be that the appellant was the actual person who cut the throat of the deceased with a sharp object or instrument like an axe. What was essential, in this connection, was that the person or persons that the appellant aided or abetted, in the commission of the crime, killed the deceased. That evidence was before the court and particularly in the confessional statement of the appellant, Exhibit ‘PB3’.

 

The next question for consideration relates to the intention of the appellant and of the other two persons involved in the killing of the deceased. Here again it is necessary to state that the criminal liability of the appellant was based on his being a principal offender who was an abettor present when the offence was being committed. Intent can be proved positively by proof of the declaration of the accused as to his intent or inferentially. See Bakare’s case (supra). The learned trial judge, after pointing out that all the circumstances of the case are relevant, including the nature of the wound, type of weapon used, and where the wound was inflicted, stated that express intention could be found in the statements of the appellant, Exhibits “PBI” and °PB3.” The appellant stated categorically in Exhibit ‘PB3’ that they (appellant, Abubakar and Musa) planned to break the leg of the deceased and to kill him and that he (appellant) informed the Bulama Jatau about it. The deceased was killed in the night of the day that he (appellant) informed the Bulama about it. The learned trial judge was, therefore, right in holding that the appellant had the necessary intention.

 

The learned trial judge, after holding that the defences of self-defence and provocation were not available to the appellant, concluded that the prosecution had proved its case against the appellant beyond reasonable doubt. The onus is on the prosecution to prove its case against the accused beyond reasonable doubt. The onus does not, however, require the prosecution to prove the guilt of the accused beyond any shadow of doubt. It is, therefore, enough if the judge is satisfied that the evidence before him is sufficient to establish the guilt of the accused. See Bakare’s case (supra). The oral evidence of the appellant was that he and two other persons were at the scene of the incident on the day in question ‘in order to arrest or catch the deceased’ making friendship with Mariama, p.w.4. When the deceased and Mariama (p.w.4) got there, he (appellant) flashed his touchlight on them. The appellant testified further that after he had flashed his touch light to identify the deceased and Mariama, the two other persons there (Abubakar and Musa) and the deceased started to fight. He (appellant) separated them and then, with a stick, he drove Mariama away from the scene up to her uncle’s (Yaro Dara’s) house. From there he went to his own house. Later, at dawn, he heard that the two aforesaid other persons had been arrested. Upon their release on bail on.the same day, they came to him (appellant) and urged him to run away so that he might not reveal their secret. Mariama, p.w.4, confirmed that she and the deceased were waylaid by the appellant and the two other persons at the scene of the incident on the day in question and that the appellant flashed his touch light on her and the deceased. She pointed out that thereafter the two other persons (Abubakar and Musa) were arguing and quarelling with the deceased. The deceased fell down and those beating him ran into the bush. It was the aforesaid two persons who were fighting the deceased while the appellant drove her away with a stick up to her uncle’s house. Her uncle was Yaro Dara(p.w.5)and, according to her, the incident happened somewhere between her (p.w.4’s) house and the house of p.w.5. Yarn Data (p.w.5) confirmed that the appellant pursued Mariama to his house about mid-night of the day in question.

 

The evidence of Mariama that the two other persons were beating the deceased and then when the deceased fell down the said two persons ran away represented the true version of what happened. That evidence is supported by the categorical assertion in the appellant’s statement (Exhibit ‘PB3’), that the deceased was killed by the aforesaid two other persons and that he was driving away Mariam when the said two other persons were killing the deceased. The evidence of Mariama that Abubakar and Musa were beating the deceased and that the incident happened somewhere between her house and the house of Yaro Dara, her uncle (p. w.5) is supported by the assertion of the appellant in Exhibit’ PB3′ that the deceased was being beaten by Abubakar and Musa and that he was killed near the house of Yaro Dara. The evidence of the appellant that after driving Mariama to her uncle’s house he (appellant) went home and did not return to the scene was meant to make it appear that the appellant did know that the deceased was killed by the two persons beating him. If he went home, as he wanted the court to believe, he would not have known the person or persons who killed the deceased and the place where the deceased was killed. However, his clear assertion in Exhibit ’PB3′ was that Abubakar and Musa killed the deceased and that the deceased was killed near Yaro Dara’s house. Further, the request of Abubakar and Musa to the appellant to leave the village so that he might not reveal their secret would not have been necessary or made if he (appellant) did not know that the aforesaid two persons had killed the deceased. The true position was that the appellant witnessed the killing of the deceased and was present at the place where the incident occurred. When the evidence of Mariama (p.w.4) who was also at the scene of the incident before she was driven away by the appellant; of Yaro Dara (p.w.5) who confirmed that Mariama was driven to his house by the appellant in the mid-night of the day in question; of Bulama Jaunt (p.w.3) who discovered the corpse of the deceased at dawn, are considered along with the things said by the appellant in the statements made by him (Exhibit “PBI” and “PB3”) the evidence against the appellant becomes very overwhelming.

 

I have already stated the legal implication of the appellant and the other two persons being the persons with whom the deceased was last seen alive. It may be argued that the fact that the deceased was last seen alive with the appellant and the other two persons was merely circumstantial evidence but circumstantial evidence may ground a conviction where it is unequivocal, positive and points irresistibly to the guilt of the accused person. See Oladejo v. The State, (1987) 3 N.W.L.R. (Pt.61) 419 in which part of the evidence led by the prosecution against the appellant in that case was that the deceased was last seen alive with him.

 

The prosecution having, inter alia, established that the deceased was last seen alive with the appellant and two other persons during the midnight of the day in question after the appellant had flashed his touchlight at him to identify him; that there and then, at the place where the deceased was last seen alive with them, the appellant and the said two persons attacked the deceased and his companion (Mariama); that Mariama was driven away by the appellant; that later at dawn the corpse of the deceased, with wound on his neck, was found at or near the scene of the incident; and that the appellant, as abettor of the aforesaid offence, was present when the deceased was being killed, the learned trial judge was right in holding that the prosecution had proved its case against the appellant beyond reasonable doubt. He was also right in imposing upon the appellant the punishment (sentence of death) prescribed under section 221(b)of the Penal Code. Once an abettor is found to be present at the commission of the offence he abetted, he automatically becomes a principal offender and it is mandatory on the trial court to convict him of the main offence and not its abetment. See Peter & Anor., v. The State, (1977) N.M.L.R. 81.

 

I now come to the question raised under the first issue above. The appellant was charged with culpable homicide punishable with death under section 221 (b) of the Penal Code. The learned trial Judge held that, from the evidence before him, it was established that the appellant was a principal offender as an abettor under section 90 of the Penal Code. For that reason, he imposed the punishment prescribed under section 221(6) of the Penal Code by sentencing the appellant to death. The relevant question is whether the learned trial judge was right in holding that the appellant was an abettor under section 90 of the Penal Code when the charge preferred against the appellant was culpable homicide punishable with death under section 221 (b) of the Penal Code. The submission in the appellant’s brief was that a trial court had no power, in law, to convict and sentence an accused for an offence with which he was not charged. It was argued that the appellant had no opportunity to defend himself in relation to the offence of abetting. The submission in the respondent’s brief was that by virtue of section 217 of the Criminal Procedure Code if an accused might, on the facts, be charged with a substantive offence or its abetment he might be convicted of abetment though the charge preferred against him was for the substantive offence. It was argued that the evidence adduced in support of the charge for the substantive offence gave sufficient notice to the appellant of all the facts which constituted abetment. A person charged with a substantive offence can be convicted of abetment of the offence if the facts justify such a conviction and the circumstances bring the case under section 217 of the Criminal Procedure Code. In order to convict an accused person by virtue of section 217 of the Criminal Procedure Code of an offence with which he has not been charged, the court must satisfy itself that the charge to which he pleaded gave him notice of the particulars of the offence for which he may be convicted, and that there was doubt as to which of the several offences the facts, which can be proved, would constitute. See Sanda v. Commissioner of Police, (1974) N.N.L.R.73. It is necessary, in this connection, to set out the provisions of sections 216 and 217 of the Criminal Procedure Code. They are as follows:­

216. If a single actor series of acts is of such a nature that i t is doubtful which of several different offences the facts which can be proved will constitute, the accused may be charged with having committed all or any one or more of such offences and any number of such charges may be tried together; or he may be charged in the alternative with having committed someone or other of the said offences.
217. If in the case mentioned in section 216 the accused is charged with one offence and it appears in evidence that he committed a different offence with which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it.”

 

The facts in this case, as revealed by the evidence led by the prosecution at the trial of the appellant, have already been set out. One Mariama was once the girl friend of the appellant and was the girl friend of the deceased at the time of the incident. Abubakar and Musa made love advances to Marianna which she rejected. About midnight on the day of the incident, the appellant, Abubakar and Musa went to the scene of the incident and waited there until about 1 a.m. when Mariama and the deceased were passing through there, as usual, to somewhere. The appellant, Abubakar and Musa waylaid the deceased and Mariama and attacked them after the appellant had flashed his touchlight on them to identify them. The appellant, with the aid of a stick, pursued Mariama and was beating her with it until she ran into the house of her uncle in the area. When it was dawn, the corpse of the deceased, with a cut or wound on the throat, was found at the scene of the incident. The prosecution also tendered in evidence the confessional statements, Exhibits “PB1” and “PB3,” made by the appellant, which set out what and what the appellant and/or the other persons did in connection with the killing of the deceased. I have already set out the contents of the statements. In particular, it was stated in Exhibit `PB3′ that the appellant and the two other persons planned to kill the deceased; that the appellant drove Mariama away while the two other persons were killing the deceased; and that the appellant did so, so that Mariama might not know their secret. At the time of framing the charge of culpable homicide punishable with death under section 221 (b) of the Penal Code against the appellant, it was also possible to frame a charge, on the same facts available, under section 79 of the Code for acts done by several persons in furtherance of common intention, section 83 of the Code for abetment, and section 90 of the Code as the appellant as abettor of the offence was present when the offence was being committed. The facts, especially those stated in the confessional statements, were not in doubt. What was in doubt was about which of the several offences mentioned above, the facts which could be proved, would constitute. In Nyam & Ors. v. The Stare, (1964) 1 All N.L.R. 361, the appellants were charged with culpable homicide punishable with death under section 221 (b) of the Penal Code. Some of them were convicted of culpable homicide under section 221 by virtue of section 79 of the Code. Their appeal against their conviction was not pressed and the Supreme Court dismissed it. The Court stated that their learned counsel was right not to urge anything in their favour. Similarly, the Supreme Court in Okahichi & Ors. v. The State (1975) 3 S.C. 135 substituted a conviction of “screening an offender” under section 167 of the Penal Code for a conviction of culpable homicide punishable with death under section 221 of the Penal Code. The conclusion to which I have come, in view of the authorities, is that where an accused is charged with the offence of culpable homicide punishable with death under section 221 of the Penal Code it is proper to convict the accused for the abetment of the offence under section 90 of the Penal Code without first drafting a charge if the facts justify such a conviction and in circumstances bringing the case under section 217 of the Criminal Procedure Code.

 

The answer to the question raised under the first issue is in the affirmative. The facts in this case sufficiently gave the appellant particulars of the offence for which he was convicted. He not only had the opportunity to but did defend himself in relation to that offence. It cannot justifiably be said that the appellant was misled in his defence by the absence of a charge or that there has been a failure of justice so as to warrant the application of section 222 of the Criminal Procedure Code.

 

The appeal does not succeed. It is hereby dismissed. The conviction and sentence imposed by the learned trial judge on the appellant are hereby affirmed.

 

 

NDOMA-EGBA, J.C.A.:

I had the privilege of reading in draft the lead judgment . prepared and just read by my learned brother, Adio, J.C.A. I agree that the appeal should be dismissed. It is accordingly dismissed by me in its entirety.

 

 

OKEZIE, J.C.A.:

I have read before now the judgment of my learned brother, Adio, J.C.A. and with I entirely agree.

 

The appeal of the appellant fails and it is hereby dismissed. The conviction and sentence imposed by learned trial judge are hereby affirmed.

 

Appeal dismissed