⦿ CASE SUMMARY OF:
Abubakar Dan Shalla v. State (2007) – SC
– Confessional statement;
– Provocation & Justification;
– Voluntary statement;
Abubakar Dan Shalla
(2007) 18 NWLR (Pt.1066) 240 S.C;
(2007) 7-10 S.C. (Pt 107);
(2007) 7-10 S.C. (Pt 107)
⦿ LEAD JUDGEMENT DELIVERED BY:
G. A. Oguntade, J.S.C
* FOR THE APPELLANT
– Dr. A. Amuda-Kannike.
* FOR THE RESPONDENT
– I.K. Sanusi, Esq.; D.P.P., Kebbi State.
⦿ FACT (as relating to the issues)
The appellant, Abubakar Dan Shalla, was the fifth of six accused persons who were brought before the High Court of Kebbi State, Birnin KebbiÂ Â on a three-count charge of criminal conspiracy, abatement and culpable homicide contrary to sections 97, 85 and 221 (a) of the Penal Code respectively. On 18/1/2000, each of the appellant and the five other accused persons charged with him pleaded not guilty to each of the three counts. Hearing of the case opened on 19/1/2000. The prosecution called eight witnesses. The appellant elected not to testify or call a witness. The trial Judge, Ambursa, J. on 24-02-2000, in his judgment found the appellant and the five other accused persons charged with him guilty of the offence of culpable homicide and each was sentenced to death under section 221 (a) of the Penal Code. The appellant brought an appeal against the judgment of the trial court before the Court of Appeal Kaduna (hereinafter referred to as the court below’). The court below, on 10- 12-03 in its judgment dismissed the appeal and affirmed the judgment of the trial court. The appellant has come before this court on a final appeal.
The case of the prosecution against the appellant as put before the trial court. It was alleged that a group of persons of whom the appellant was one, had stated that one Abdullahi Alhaji Umaru (now deceased) made certain remarks which were insulting to Prophet Mohammed (S.A.W.) and that the deceased ought to be killed as prescribed in the Holy Quran for making the alleged remarks. They went in search of the deceased, laid their hands on him and slaughtered him with a knife. The incident was reported to the police on 14-7-99. The appellant and five other persons were arrested for killing the deceased. The evidence of PW5 as to the manner in which Abdullahi Alhaji Umaru was killed is particularly eye-opening.
1. Whether the learned Justices of the Court of Appeal ought to confirm the conviction, and sentence of the appellant by the trial court.
2. Whether the learned Justices of the Court of Appeal were right in raising the issue of defences of justification and provocation without affording the parties the right to be heard on the said issue raised suo motu.
⦿ ARGUMENTS OF PARTIES (SERIALLY IN ACCORDANCE WITH THE ISSUES)
* FOR THE APPELLANT
1. Under the first issue, the argument of counsel is that, as the trial court failed to consider the defences of justification and provocation, which were available to the appellant on the evidence before the trial court, it was the duty of the court below to have set aside the conviction of the appellant and the other accused persons.
2. It was argued that the court below suo motu raised the defences of justification and provocation and proceeded to decide the appeal on that basis without affording the appellant a hearing.
*FOR THE RESPONDENT
1 & 2. Learned counsel for the respondent submitted, that the main issue before the lower court was against the failure of the trial court to consider the defences of justification and provocation which defences were said to have been available to the appellant, and whether the Court of Appeal can examine such defences having regard to the evidence on record, and that the lower court did just that and was justified; that failure of the trial court to consider the defences available to an accused person is only fatal where there is evidence in support of such defences on record as the court is not allowed to speculate on the existence of facts not placed before it; that the evidence against the deceased was based on rumour and there is nothing on record to suggest that the action of the appellant is justified by law and urged the court to dismiss the appeal.
⦿ HOLDING & RATIO DECIDENDI
I have given a very careful consideration to the two issues raised by the appellant in this appeal. Both must be decided against the appellant. The evidence against the appellant by prosecution witnesses was neither challenged nor contradicted. More than that is the admission in exhibits G and G1 by the appellant that he actually slit the throat of the deceased.
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the circumstances of this case, since the trial court was not told the words alleged to have been uttered by the deceased or the act he did which were contrary to the injunctions of Islam as contained in the Holy Quran, and which justifies his killing, the trial court could not be criticized for not engaging in a futile speculation. The court below was therefore not in any error to have held that the defence of justification and provocation were not available to the appellant before the trial court.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It is obvious that the appellant’s second issue is misconceived and amount to a distortion of the true state of things. Appellant’s counsel had himself argued the defences of justification and provocation in his brief. The court below did not therefore need to ask appellant’s counsel to re-argue a point he had previously argued in his brief.
S.45 Penal Code;
S. 222 Penal Code;
S. 97 Penal Code;
Order 1 rule 19(3) and (4) of the Court of Appeal Rules 2002;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
It is settled law that where the trial court failed or neglected to consider the defence of an accused person, an appellate court is at liberty or under duty to consider such defence having regard to the evidence on record. – Onnoghen, JSC. Shalla v. State (2007)
In any case, even on the assumption (although without any proof) that the deceased had in some way done anything or uttered any word which was considered insulting to the Holy Prophet Mohammed (SAW), was it open to the appellant and others with him to constitute themselves into a court of law and pronounce the death sentence on another citizen? Plainly this was jungle justice at its most primitive and callous level. – Oguntade, JSC. Shalla v. State (2007)
Although it is settled law that words alone can constitute provocation depending on the actual words used and their effect or what they mean to a reasonable person having a similar background with the appellant and in the case in hand where the exact insultive words are neither known or disclosed and moreover not even heard from the mouth of the deceased, it will not be possible to determine whether the defence of provocation is open or available to the appellant. – Onu, JSC. Shalla v. State (2007)
We have to always bear in mind that the Court of Appeal, and every appellate court, exists to correct errors in the proceedings, be it procedural or substantive, of the lower court, in accordance with its rules of procedure. In the instant case, the lower court need not call on the parties to address it on the alleged defences allegedly not considered by the trial court when it can, on its own, go through the evidence on record to determine the issue so as to do substantial justice between the parties. – Onnoghen, JSC. Shalla v. State (2007)