Trial And Conviction Of A Minor For Culpable Homicide Punishable With Death

In the Supreme Court of Nigeria Holden at Abuja On Friday, the 6th day of May, 2022

Before Their Lordships

Mary Ukaego Peter-Odili

Kudirat Motonmori Olatokunbo Kekere-Ekun

Abdu Aboki

Ibrahim Mohammed Musa Saulawa

Tijjani Abubakar

Justices, Supreme Court

SC.18/2015

Between

YUSUF MUSA APPELLANT

AND

THE STATE RESPONDENT

Lead Judgement delivered by Honourable Ibrahim Mohammed Musa Saulawa, JSC)

Facts

The Appellant, who was a minor of 11 years of age, was arraigned before the High Court of Jigawa State on a one-count charge of culpable homicide punishable with death under Section 221(b) of the Penal Code Law applicable in Jigawa State. It was the case of the Prosecution that the Appellant caused the death of one Mohammadu Hamza, by hitting him on the head and other parts of his body with sticks.

The charge proceeded to trial, and the Appellant pleaded not guilty. In support of its case, the Respondent called five witnesses. The Appellant did not call any witness, but rested his case on that of the Prosecution. At the conclusion of the trial, the trial court delivered its judgement in which it convicted the Appellant and sentenced him to death by hanging, notwithstanding that as at the date of the conviction and sentence, the Appellant was a minor.

Dissatisfied, the Appellant filed an appeal before the Court of Appeal. The Court of Appeal affirmed the conviction of the Appellant; however, it substituted the sentence of death passed on him with an order for him to be detained during the pleasure of the Governor of Jigawa State. This was on the basis that, by the provisions of Section 270 of the Criminal Procedure Code of Jigawa State, the Appellant, who was a minor at the time of the commission of the offence, and at the time of his conviction and sentence, ought not to have been sentenced to death, but instead, ordered to be detained at the pleasure of the Governor in compliance with Section 272 of the said Criminal Procedure Code. Still dissatisfied, the Appellant appealed to the Supreme Court.

Issues for Determination

The Supreme Court considered the following issues, in its determination of the appeal:

1. Whether the Court of Appeal properly considered and applied the principles for the defence of provocation, before affirming the conviction of the Appellant.

2. Whether having regard to the provisions of Section 270 of the Criminal Procedure Code, the Court of Appeal was right in law to have upheld the conviction of the Appellant, a minor, for culpable homicide punishable with death, and to have merely commuted the sentence to detention in prison at the pleasure of the Governor.

Arguments

Arguing the first issue, counsel for the Appellant submitted that the Police failed to investigate the assertion by the Appellant in his extra-judicial statement that there was a fight between the Appellant and the deceased, which provided the defence of provocation. He argued that the failure of the Police to investigate the assertion, occasioned a miscarriage of justice against the Appellant. He contended further that the lower court failed to consider available evidence that showed that the deceased was the aggressor, when evaluating the evidence before it. He submitted that the facts adduced at the trial were consistent with a lesser charge of culpable homicide not punishable by death, by doing a rash and negligent act under Section 224 of the Penal Code. He submitted that the Appellant ought to have been sentenced on the said lesser charge.

Countering the submissions above, counsel for the Respondent argued that even though a court is obligated to consider the defences open to an accused person, such defence must only be such as is evident from what is before the court. He cited TAKIDA v STATE (1969) 6 NSCC; OJO v STATE (1973) 8 NSCC 590 at 594. He submitted that the burden of proof of the defence of provocation rests on the Appellant, and the Appellant had failed to discharge same. He contended that there was nothing before the lower court, upon which it could have arrived at any other conclusion from culpable homicide punishable by death.

On the second issue, counsel for the Appellant argued that the two courts below did not apply the proper standard in considering the extent of criminal responsibility to be ascribed to the Appellant in the circumstance of the case. He posited that in both civil and criminal law, the legal capacity/criminal responsibility of a minor is diminished and can never equate to that of an adult by virtue of the mental capacity and level of maturity. He cited NPF v OMOTOSHO (2018) LPELR – 4577 8 (CA). He submitted further that the charge should not have even proceeded to full trial before the High Court of Jigawa State, when it was clear that the Appellant was a juvenile at the relevant time. Responding to the line of reasoning, counsel for the Respondent argued otherwise that, the Appellant being a minor did not exempt him from the sphere of the relevant principle of law to determine whether or not he committed the offence.

Court’s Judgement and Rationale

Determining the first issue, the Court held that although there is an obligation on the court to consider all the defences open to an accused person, however, such defences must only be those that are evidence before the court, and not such as are contrived or imagined. TAKIDA v STATE (1969) 5 NSCC 270. The defence of provocation, like all other defences, cannot hang on the air, without supporting evidence. By virtue of the provisions of Section 139(1) of the Evidence Act, 2011 (in pari materia with Section 141 of the Evidence Act,2004), the burden of proving the defence of provocation lies squarely upon the accused to show that: (i) There was a sudden act of provocation by or from the deceased person; (ii) The Defendant lost self-control as a result of the sudden provocation; (ii) The Defendant acted in the heat of passion, and before there was time for his passion to cool; and (iv) The retaliatory acts were proportionate to the provocation. The Court referred to KAZA v THE STATE (2008) 7 NWLR (Pt. 1085) 125 and SHELDU v THE STATE (2014) LPELR -23018 (SC) at 24-25, Paras. G-C.

The Court acknowledged that although the Appellant did not raise the defence of provocation at the trial court, the trial court properly considered same as a defence open to the Appellant in its evaluation of the Appellant’s extra judicial statement, before it proceeded to convict the Appellant. The lower court also properly considered and applied the legal principles relevant to the defence of provocation, before affirming the Appellant’s conviction. The Court referred to the unchallenged testimony of PW2 as to how she had separated PW1 from the Appellant, and how each of them left the scene of the fight and went their separate ways, and the testimony of PW1 who was an eye witness as to how the Appellant came back and started beating her and the deceased where they were sitting together.

The court agreed with the finding of the Court of Appeal that assuming there was provocation, between the time of the fight and when the deceased was sitting down with PW1, the heat of passion would have subsided for the Appellant to have regained his self-control, such that the retaliatory hitting of the deceased by the Appellant at that time was no longer instantaneous with the provocative incident purportedly offered by the deceased. There was nothing impulsive about the Appellant’s actions, that would justify a finding that the Appellant acted in the heat of passion. Furthermore, the Appellant had stated in Exhibit 1 that the deceased hit him once on his chest and twice on his elbow, and he went for the deceased’s head in retaliation. The retaliatory act of the Appellant and the extent of the injuries inflicted by the Appellant on the deceased whose skull was broken, established that the force used by the Appellant was disproportionate to the provocative incident alleged. It follows therefore that the defence of provocation is not available to the Appellant in the prevailing circumstances of the appeal, in light of the lack of evidential basis for the same.

Considering the second issue, the Apex Court held that the fact that a minor is treated as a person with diminished capacity, does not of itself change the nature of the crime that was committed. It is only a relevant factor, in determining the punishment to be meted out upon conviction. Their Lordships held that the Appellant being a minor who is regarded as a person with diminished capacity at the relevant time, was not exempted from the sphere of the relevant principle of law to determine whether or not he committed the offence. The court is only limited when it comes to the orders it can make, where as in this case, the Appellant has been convicted.

On the Respondent’s argument that the case should not have proceeded to full trial owing to the fact that the Appellant was a juvenile of 11 years of age at the material time, the Court held that it is only the High Court that can embark on trial where a juvenile/young offender is charged for the offence of homicide – AHMADU v STATE (2014) LPELR – 23974 (CA) and Section 12 (1) of the Children and Young Persons Law. By virtue of Sections 270 and 272 of the Criminal Procedure Code of Jigawa State, no sentence of death shall be imposed on a person under seventeen years of age, or on a pregnant woman, and where such person is convicted with an offence punishable by death, the court should order that he rather be detained during the Governor’s pleasure. The Court of Appeal having affirmed the conviction of the Appellant who was under 17 years of age, of culpable homicide punishable by death, was thus right to have commuted the sentence passed on the Appellant, and replaced it with his detention at the pleasure of the Governor.

Appeal Dismissed.

Representation
J.Y. Pam for the Appellant.
Oluwaseyilayo Ojo for the Respondent.