IN THE SUPREME COURT OF NIGERIA
IN FRIDAY, THE 15TH DAY OF FEBRUARY 2008
KAZA .............................................................................. APPELLANT
THE STATE .......................................................................... RESPONDENT
Niki Tobi; Sunday Akinola Akintan; Walter Samuel Nkanu Onnoghen; Ibrahim Tanko Muhammad; Christopher M. Chukwuma-Eneh, JJSC
Whether a case of conspiracy, abetment and murder against the appellant had been proved.
Whether the defence of provocation was available to the appellant.
The appellant was charged with five others for criminal conspiracy, abetment, and culpable homicide for killing Abdullahi Alhaji Umaru of Randal village in Kebbi State. The killing was apparently based on an allegation that the deceased had insulted the Holy Prophet Mohammad (SAW). The appellant and his co-accused had taken the deceased to the outskirts of the village, struck him with a cutlass on the head, and then, when he fell, cut his throat. The appellant denied that there had been a conspiracy to kill the deceased, and denied that he abetted the killing. He also claimed that, in any event, the insult had provoked the killing of the deceased and that such killing was justified under the Sharia Law. The appellant was convicted of murder and sentenced to death. His appeal to the Court of Appeal, was dismissed, and the appellant appealed further to the Supreme Court.
Leading judgment by Christopher M. Chukwuma-Eneh, JSC; with N. Tobi, S.A. Akintan, W.S.N. Onnoghen, I.T. Muhammad, JJSC concurring
- Conspiracy inferred from the evidence
Conspiracy, involving the appellant, could correctly have been inferred from the evidence. Per Akintan, JSC at 369; Per Tobi, JSC at 359.
The slaughtering of the deceased was within the scope of a tacit agreement to kill him. This amounted to unimpeachable evidence of a conspiracy to kill him. Per Chukwuma-Eneh, JSC at 339.
- Conspiracy need not presuppose pre-arranged plan
The prosecution did not have to prove that the accused persons were acting in pursuance of a common design of a pre-arranged plan. This was inferable from the surrounding circumstances. Per Chukwuma-Eneh, JSC at 339.
- Abetment proved and distinguished from conspiracy
The prosecution had established that the appellant abetted the offence and that the abetted offence was committed. Per Chukwuma-Eneh, JSC at 339.
Conspiracy was distinguishable from abetment. Prior agreement was necessary in the case of conspiracy, but not in abetment. Although the appellant was a secondary party to the crime, he was rightly convicted and punished as a principal offender. The appellant and the other accused left Kardi village with the avowed intention of causing the death of the deceased. Per Chukwuma-Eneh, JSC at 339.
- Exact nature of insult irrelevant to prove culpability
The fact that the exact nature of the insulting words was not proved did not avail the appellant. It did not matter whether the insult was uttered or whether the alleged insult was pure rumour. The provocative act alleged could not be grounds for the appellant to have killed the deceased. Per Akintan, JSC 369; Per Tobi 359; Per Chukwuma-Eneh, JSC at 339.
- Alleged insult per se insufficient to justify killing
The allegation that the deceased had insulted the Prophet Mohammed (SAW) was insufficient provocation required by law to justify the killing of the deceased. Per Akintan, JSC at 368.
- Meaning of Provocation
Section 22(1) of the Penal Code states that culpable homicide is not punishable with death if the accused mistakenly kills another when deprived of the power of self-control by grave and sudden provocation, provided that the degree of the retaliation must be proportionate to the provocation offered. As the appellant did not give evidence, there could be no basis for considering the defence of provocation. Per Chukwuma-Eneh, JSC at 339.
- Appellant’s act not justified under Sharia, despite insult
While the crime of insulting the Holy Prophet Mohammed (SAW) was punishable by death under Sharia, Islamic law had not left the killing open to private individuals. The offence had to be established through a court of law. The law would set a dangerous precedent if individuals were authorised to take the law into their own hands. Sharia guaranteed and valued the sanctity and dignity of human life. That was why it outlawed unlawful killing. The appellant did not show that he had the requisite authority to take away the life of the deceased. Per Muhammad, JSC at 370.
J.O. Adesina (Mrs) with her, R. Ifayefunmi (Miss) for the appellant
I.K. Sanusi (D.P.P. Ministry of Justice, Kebbi State) for the respondent
The following cases were referred to in this judgment:
Abacha v The State (2002) 11 NSCQR 346
Abara v The State (1981) 2 LNRC 110
Agbaje v Adigun (1993) 1 NWLR (Part 269) 261
Agbo v State (2006) 25 NSCQR 137
Ahmed v The State (1998) 1 ALR 71
Ahmed v The State (1999) 7 NWLR (Part 612) 641
Akalezi v The State (1993) 2 NWLR (Part 2730) 1
Akpabio v The State (1994) 7 NWLR (Part 359) 655
Ani v State (2003) 11 NWLR (Part 830) 142
Araba v State (1981) 2 NRC 110
Atoyebi v Gov. of Oyo State (1994)5 NWLR (Part 344) 290
Attorney-General, Oyo State v Fairlakes Hotel Ltd (1988) 5 NWLR (Part 92) 1
Bankole v Pelu (1995) 8 NWLR (Part 211) 523
Buje v The State (1991) 4 NWLR (Part 185) 287
Bwoshe v The State (1972) 6 SC 93
Chianagu v The State (2002) 2 NWLR (Part 750) 225
Dan Shalla v The State Appeal No. SC 245/2004
Djukpan v Orovuyevbe (1967) 1 All NLR 134
Ekpenyong v The State (1993) 5 NWLR (Part 295) 513
Emeka v State (1998) 7 NWLR (Part 559) 556
Erik Uyo v Attorney-General, Bendel State (1986) 1 NWLR 418
Erin v The State (1994) 6 SCNJ 104
George v The State (1993) 6 SCNJ 249
Idemudia v The State (1992) 7 NWLR 356
Idi v Yau (2001) 10 NWLR (Part 722) 640
Ihuebeka v State (2000) 5 SCNQR 186
Jumbo v Bryanko Internationals Ltd (1995) 6 NWLR (Part 403) 545
Kan Dan Adamu v Kano N.A. (1956) 1 FSC 25
Kanu v The State (1952) 14 WACA 30
Kumu v The State (1967) NSCC Vol. 5, 286
Lado v The State (1999) 9 NWLR (Part 619) 369
Management Enterprises Ltd v Otusanya (1987) 2 NWLR (Part 55) 179
Muminu v The State (1975) 6 SC 79
Nwakwo v State (1990) 2 NWLR (Part 134) 627
Nyam v The State (1964) 1 ANLR 361
Obiakor v The State (2002) 10 NSCQR 972
Obiakor v The State (2002) 10 NWLR (Part 776) 612
Obodo v Olomu (1987) 2 NSCC 824
Onochie v The Republic (1966) 1 ANLR 86
Oyediran v The Republic (1967) NWLR 122
Ozulonye v State (1981) 1 NCR 38
Philip Ekpenyong v The State (1991) 6 NWLR (Part 200) 683
R v Adamu (1944) 10 WACA 161
R v Anderson and Morris (1966) 2 AER 644
R v Isa (1965) ANLR 68
Shade v State (2005) 22 NSCQR 756
Shonde v The State (2005) 12 NWLR (Part 939) 301
Skenconsult v Ukay (1981) 1 SC 6
Ubani v The State (2001) FWLR (Part 44) 483
Uhunmwangho v Okojie (1989) 5 NWLR (Part 122) 471
Uor v Loko (1988) 2 NWLR (Part 77) 430
Upahor v The State (2003) 6 NWLR (Part 816) 23
Waniko v Ade-John (1999) 9 NWLR (Part 619) 401
Wonaka v Sokoto N.A. (1956) NSCC 28
Yakasi v Nigeria Air Force (2002) 15 NWLR (Part 790) 294
DPP v Doot  AC 807;  1 All ER 940
Mancini v The Director of Public Prosecutions 26 CAR 74
Mohan v R  2 AELR 58
The following code was referred to in this judgment:
Penal Code: Ss 45; 96; 97; 85; 221(a)
Chukwuma-Eneh, JSC (Delivered the leading judgment):– This appeal is against the judgment of the Court of Appeal Kaduna Division, that is to say the Court below, delivered on 10 December 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 second accused was jointly arraigned with five 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 December 2007 wherein he has raised four grounds of appeal. In the result the parties have filed and exchanged their Briefs of Argument in this matter. In the appellant’s Brief of Argument three issues for determination have been distilled as follows:–
“(1) Whether the prosecution proved the case of conspiracy, abetment and murder against the appellant.
(2) Whether mere presence at a scene of crime is proof of actual participation in the commission of the crime.
(3) Whether the Defence of provocation and justification avail the appellant.”
The respondent in its Brief of Argument has adopted Issues 1 and 3 of the appellant’s issues for determination as the more proper and salient issues to resolve the appeal.
As the facts of this heinous crime are not in issue, I have culled the facts of the same as vividly and graphically set out in paragraphs 2.1 and 2.2 of the respondent’s Brief of Argument as follows:–
“2.1. On 14 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 (SAW). In consequence thereof the appellant, together with co-accused, at the trial court who were both resident of Kardi, went to 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 (sixth accused in the trial court) and Mohammed Sani (third accused in the trial court). In the interim, Musa Yaro (first accused in the trial court) in conjunction with the appellant (second accused in the trial court) as well as Abdullahi Ada (the fourth accused at the trial court) went to Randali, the village of the deceased, in search of the deceased and clarification of whether the deceased ulter (sic) 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 (SAW) would be carried out on him. Where upon the said village head did not say anything.
2.2 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 insult the prophet should be punished with death. And following this recitation, Mohammed Sani (third accused at trial court) matcheted (sic) 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.”
At the trial, the prosecution called eight witnesses including the brother of the deceased as PW3. In addition, the prosecution before the trial court tendered a total of 18 exhibits including particularly exhibits K and K1 and being appellant’s extra judicial statements to the police to show the appellant’s involvement in the killing of the deceased. The prosecution’s case as can be gathered from the record shows that the first accused gave the instruction to kill the deceased. The third accused cut him down by the neck with a machete and the fifth accused slaughtered the deceased with a knife “like a goat” while being held to the ground by the third and sixth accused. The first, second, fourth and sixth accused persons it is alleged abetted the commission of the crime in a manner that will become clearer anon. Be it noted that the appellant as the second accused in line with the nature of the defence he opted for, before the trial court did not lead any evidence. He rested his case on the prosecution’s case.
On the issues for determination raised by the appellant herein vis-à-vis the background to the judgment of the court below, having gone over the same, I agree with the appellant’s submissions that the four main pillars upon which the court below has predicated its reasoning for its decision are, firstly, that all the accused including the appellant took part and participated in killing the deceased hence they are respectively convicted and sentence accordingly:–
2. That the prosecution has led evidence to prove the essential ingredients of the offences for which the appellant and the co-accused were charged.
3. That the prosecution’s case has dispelled any availability of defences of provocation and justification to the appellant and other accused.
4. That the confessional and voluntary statements of the appellant and other accused to the police were neither denied nor retracted.
The appellant has, as it were, joined issues with the respondent on these findings, as borne out by his four grounds of appeal and the issues raised therefrom as per his brief of argument. I now proceed to deal, firstly with the appellant’s case as per his brief of argument.
The appellant’s case as per his brief of argument is that he went to the scene to witness what was going to happen to the deceased. He submits in this vein that it has not been showed that he used any physical assault against the deceased as was the case with the first accused who as held by the trial court read the punishment from Risala; the third accused who macheted the deceased by the neck or the fifth accused who slaughtered the deceased with a knife. And that on the totality of the evidence of the prosecution witnesses coupled with the extra judicial statement of the accused person and other Exhibits, the prosecution has not established a case of conspiracy, abetment and murder against the appellant beyond reasonable doubt. He submits that there is no basis therefore for his conviction by the trial court on the unproven charge for taking part in killing the deceased. He contends it is a grave error for the court below upholding the finding to the effect that “all the accused persons (including the appellant) herein took part and participated in the unfortunate incident that led to the gruesome murder or killing of the deceased . . .” [words in bracket supplied]. It is strongly contended that as regards the offence of conspiracy in particular the prosecution has failed to establish the existence of any previous agreement to kill the deceased in the face of irrefutable evidence that the accused persons came from different villages and so could not have formed the necessary common intention to ground a charge of conspiracy. Furthermore, that such agreement has to be express albeit to warrant relying on it to convict the appellant. As regards the offences of abetment and murder, it is argued that the prosecution has not proved conclusively either or both of them by evidence, that is to say, beyond reasonable doubt vis-à-vis the ingredients of these offences. The appellant has therefore relied on the cases of Yakasi v Nigeria Air Force (2002) 15 NWLR (Part 790) 294 at 314 paragraphs B–G; Shonde v The State (2005) 12 NWLR (Part 939) 301 at 320 paragraphs H–A for so submitting. The point is made that the appellant could not have conspired all by himself alone to kill the deceased and that the onus is on the prosecution to prove its case in any event against the appellant beyond reasonable doubt and not for the appellant to prove his innocence.
The appellant has claimed entitled on the available evidence before the court to the defences of provocation and justification which, it is urged should have been addressed even moreso suo motu by the courts below. In this respect it has been submitted that the blasphemy, that is, insulting words uttered by the deceased had provoked the appellant and other accused persons as the rumour made it rounds in the neighbourhood and the evident want of enough cooling time with regard to the appellant in the circumstances. It is broached on behalf the appellant the serious question of the contradictory evidence of the prosecution witnesses which as contended by the appellant has thrown the prosecution’s case as under.
I must, however, observe that the appellant has not covered the offences of abetment and culpable homicide punishable with death as well as the defence of justification in his Brief of Argument. This summarises the appellant’s case.
As can be seen the appellant’s case put in a nutshell is one of total failure on the part of the prosecution to prove its case beyond reasonable doubt and that having, as it were, failed in that regard it tantamounts to a miscarriage of justice for the trial court to convict and sentence the appellant for these offences and even more so a grave error for the court below to uphold the said conviction and sentence. Because of the peculiar nature of this case I have taken great care in articulating the appellant’s submissions thereof so expansively on the three issues posed in this case.
The respondent on the other hand, on Issue 1 has submitted that the inference to be drawn from the evidence of PW2, PW5 and PW6 shows that the appellant conspired with other co-accused to kill the deceased. The respondent also has reverted to extra judicial confessional statement of the appellant, that is, Exhibit K1 (English transaction) in which he has outlined his role in this heinous saga of an offence to support the contention that acting in concert with his co-confederates they killed the deceased.
On Issue 1 – that is, the offence of conspiracy under section 97 of the Penal Code, the respondent has submitted that the agreement to kill the deceased has to be inferred from circumstantial evidence of PW2, PW5, and PW6 as per the principle settled in Obiakor v The State (2002) 10 NSCQR 972 at 930 and Ahmed v The State (1998) 1 AIR 71 at 72. Furthermore, and rightly in my view, that the acts or omission of any of the conspirators done in furtherance of the common design are receivable in evidence against any other or others of the conspirators and that the appellant need not have inflicted physical assault on the deceased as propounded in the case of Abacha v The State (2002) 11 NSCQR 346 at 353 to be a party to the offence of conspiracy. The appellant having spent a large chunk of its Brief discussing this issue, I think, I should deal with it firstly.
Having rehearsed over and over again the parties’ cases on this issue as presented in their respective Briefs of Argument on the backdrop of the evidence of the prosecution witnesses thereof, I see no reason for not upholding the respondent’s submission that the prosecution has proved its case of offence of conspiracy as encompassed under section 96 of the Penal Code against the appellant beyond reasonable doubt. Section 97 of the Penal Code, the punishment section of the offence of Criminal Conspiracy provides:–
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death or with imprisonment shall where no express provision is made in this Penal Code for the punishment of such conspiracy be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment for a term not exceeding six months or with a fine or with both.”
Although section 97 is the punishment section it is really section 96 that explicates the import of criminal conspiracy. It is section 96 of the Penal Code that conceptualises the import of criminal conspiracy and for ease of reference it provides that:–
(1) When two or more persons agree to do or cause to be done–
(a) an illegal act; or
(b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.
(2) Notwithstanding the provisions of subsection (1); no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement, or is merely incidental to that object.”
The import of the provisions of section 96 (supra) has been considered in a long line of cases including Chianagu v The State (2002) 2 NWLR (Part 750) 225 at 236 paragraph A; Obiakor v The State (2002) 10 NWLR (Part 776) 612 at 628; Upahor v The State (2003) 6 NWLR (Part 816) 23 at 262 and Idi v Yau (2001) 10 NWLR (Part 722) 640 at 651 and 658. 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) The said act apart from the agreement itself must be 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. In this regard the evidence of PW2, PW5 and PW6 becomes very crucial bearing in mind that the appellant as the second accused before the trial court rested his case on the prosecution’s case. In this regard, I have to examine the evidence of PW2, PW5 and PW6 in relation to this question.
Firstly the PW2’s testimony English Translation from Hausa as per the Record at page 42–44 runs thus (male Muslim, speaks Hausa, affirmed):–
“My name is Aliyu Magga. I live at Randali village in Birnin Kebbi Local Government Area. I am a farmer. I know the first accused Musa Yaro, I know the second accused, the third accused, fifth accused and sixth accused very. I also know one Abdullah Umaru, he is now dead.
I returned to Randali around 3am and was in my house when the first accused Musa Yaro, one Mamman Dambu Umaru Kaza (second accused), Abdullah Ada (fourth accused), Suleiman Danta Aunabi (sixth accused) along with some other people whom I did not know woke me up and that I should come out as I am lucky because they would have killed me if they had not seen Abdullah. When I came out, they asked me whether I knew exactly what Abdullah said about the Prophet and I told them that I didn’t know. I however asked them to go to the house of our village head and we went together. At the house of the village head, I called the attention of one Shehu Yalliya and Ustaz Mamman on what was happening. Then Ustaz Mamman read a verse from the Holy Quran and translated it in Hausa to the first accused and his group which included the other accused persons, that it is not their responsibility to punish a person who insults the Prophet but that it is only the authority that will punish him. The accused persons led by the first accused were not satisfied with the explanation and they just went away towards Kardi village and I followed them. On getting to Danfili within Randali Market one Shehu Yanliyya asked me to go through the motor park so that I can find people who will go with me to Kardi in order to rescue Abdullah even by force. I only got Baba Sambari and Abun Dambu and we proceeded together to Kardi. At then the accused persons and their remaining group members had proceeded to Kardi.
On reaching Kardi near the burial ground we already met the late Abdullah being held by Sule Dan ta Aunabi (sixth accused) and Mohammed Sani (third accused) there were so many people around the scene. At then the first accused was not around. I went very close to where Abdullah was being held and I saw one Abu Maigirgi and Adamu Aljani holding a spear and stick respectively. Ustaz Mamman was also around and he repeated to the accused what he said at Randali that it is not their duty to punish Abdulllah. Then the fifth Accused Dan Shalla came and asked Ustaz Mamman whether he too is not a Muslim. The fifth accused further asked whether Ustaz Mamman was using a tape recorder to record what was happening. I used my torchlight and lit at the tape recorder and only then the fifth accused got satisfied that the recorder was not being used to record the happening.
As this was happening, Abu Dambu came and told me that Abdullah has been slaughtered. Then the accused persons and their group members started shouting (Allahu Akbar) God is great and moved away through a footpath into the town. I thought they were going away with Abdullah and I asked Ustaz Mamman to follow them. But Aba Dambu repeated that we should go home because Abdullah had been slaughtered. The incident happened between 3am and 4am. We proceeded to the exact place where Abdullah was slaughtered and found his corpse close to the footpath near millet stalks dead slaughtered by the neck full of blood and we left him there and went back to Randali. There were more than 50 people at the scene of crime. I only identified those I mentioned because I know them very well and they cannot deny this fact.”
As for PW5 his account of what happened as recorded by the police at page 51 of the record is as follows:–
“My name is Atiku Dan Ayi. I live at Kardi village in Birnin Kebbi Local Government Area. I am a farmer. I know the first, second, third, fourth, fifth and sixth accused persons very well, I know one Abdullahi Alh. Umaru. He is now dead. What I know is that on 14 July 1999 I was at my sleeping place at Kardi when one Mr Bello Dan Nana woke me up and asked me whether I was aware of what was happening and I told him that I didn’t know. He told me that somebody was accused of insulting the Prophet Mohammed (SAW) and asked whether I will go to the place where he was being held. I took my catapult and started going to the scene along with Bello at Shiyar Riyoji where the person who was accused of insulting the Prophet (SAW) was arrested. On my arrival I found that it was Abdullahi Alh. Umaru of Randali village who was being held by the sixth accused Suleiman and the third accused Muhammadu Sani.
These accused persons pulled Abdullah Alh. Umaru towards the road leading to Randali on the outskirt of Kardi near burial ground. As Abdullah was being held there in our presence, the first accused Mallam Musa just appeared and said whoever abused the Prophet shall be killed. He read a verse but I can’t bring it as read. On hearing this, Muhammadu Sani (third accused) used a matchet which was with him on Abdullah Alh. maru on the head and Abdullah fell down. Then Abubakar Dan Shalla (fifth accused) slaughtered Abdullah with a knife on the neck just like a goat. I saw the knife used by fifth accused in slaughtering Abdullah but I can’t describe it as he went away with it. When they were sure that Abdullah died, they all dispersed and ran away. We too left the corpse and went home.”
PW6 in his testimony at page 52 of the record (a translation of his Hausa testimony) runs thus:–
“My name is Faruk Suleiman. I am a farmer. I live at Kardi village. I know the first, second, third, fourth, fifth and sixth accused persons. I know Abdullah Alh. Umaru. He is now dead. I