CASE CITATION: ABUBAKAR DAN SHALLA v. THE STATE (2007) 7-10 S.C. 107
DATE OF JUDGMENT: FRIDAY, THE 5TH DAY OF OCTOBER, 2007
COURT: SUPREME COURT
SUIT: SC. 245/2004
CORAM:
- SYLVESTER U ONU, JSC – (Presided)
- OGUNTADE, JSC (Delivered the Leading Judgment)
- MUKHTAR, JSC
- WALTER S. N. ONNOGHEN, JSC
- BRAHIM T. MUHAMMAD, JSC
ISSUE(S): Duty on trial court to consider all the defences open to an accused -guiding principles on discharge of duty thereby -when the defences of justification and provocation may be considered by the trial court
CASE SYNTHESIS
Facts: The appellant and the 5 accused persons charged along with him had heard from some sources that the deceased had some wherein their village made some remarks which were considered insulting to Prophet Mohammed (S.A.W.). The text of the remarks or the exact words employed by the deceased were not given in evidence. The 1st accused had read to the other accused persons including the appellant a passage in the Holy Quran where it was said to be prescribed that any one who insulted Prophet Mohammed (S.A.W.)in the manner the deceased was said to have done deserved to be killed. As adherents to the teaching in the Holy Quran, the appellant and the other accused persons accepted that they had a duty to kill the deceased in effectuating the contents of the Holy Quran. They accordingly slaughtered the deceased by slicing his throat. The appellant, Abubakar Dan Shalla, was the fifth of six accused persons who were brought before the High Court of Kebbi State, Birnin Kebbi on a three-count charge of criminal conspiracy, abatement and culpable homicide contrary to Sections 97, 85 and221(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. Thetrial 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 the Supreme Court on a final appeal. The appellant raised three grounds of appeal out of which two issues were formulated for determination. The said issues are:
- Whether the learned Justices of the Court of A ppeal ought to confirm the conviction and sentence of the appellant by the trial court. (This issue is distilled from grounds 1 and 2 of the grounds of appeal).
- Whether the learned Justices of the Court of Appeal were right in raising the issues of defences of justification and provocation without affording the parties the right to be heard on the said issue raised suo motu. (This issue is distilled from ground 3 of the grounds of appeal).”
OGUNTADE, JSC – 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. In any case, even on the assumption (although without any proof) that the deceased had in some way done any thing or uttered any word which was considered insulting to the Holy Prophet Mohammed (S.A.W.), 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. The facts of this case are rather chilling and leave one wondering why the appellant and the others with him committed this most barbaric act. It cannot escape notice that the victim of this reckless and irresponsible behaviour is another Moslem, an Alhaji. I am greatly pained by the occurrence. In the final conclusion, this appeal fails. It is dismissed. I affirm the judgment of the two courts below.
SYLVESTER U ONU, JSC – It is clear that for the defence of provocation to avail the appellant, the act or utterance of the deceased must be directly offered or directed against the appellant, which was not the case here where it was based on hearsay or rumour. There is no direct or indirect evidence to show that the appellant was provoked by the deceased vide Exhibits G and G1 (the latter being the Hausa and the English translation of the appellant’s statement at pages18-20 thereof, as well as the evidence of P.W.5 at page51 of the record) which is enough to convict the appellant as charged. Consequently, it is manifest that the lone issue before the lower court is clear and related to all the defences.
MUHAMMAD, JSC – I cannot see how these kind of people shall have any respite by the law. What is good for the goose is good for the gander. Life is precious to all and sundry. He who kills by the sword shall die by the sword. I have no sympathy of the banishment of such busy bodies who respect no human life due to their high degree of misapprehension of the law or, should I say, complete ignorance of the law. The appellant failed to convince me through his explanations. But he is free to make further and better explanations to the hang man, though belatedly it may be. I find no merit in this appeal. I dismiss same. I affirm the conviction and sentence of the trial court which were affirmed by the court below.
Held: (Unanimously dismissing the appeal):
That there is no evidence on the record to support the plea of neither justification nor provocation. Indeed, the appellant did not lead any evidence in his own defence. The appellant merely acted on a rumour to carry out an illegal act of slaughtering a human being under the misguided belief that he and the others had a duty under Islamic injunction to kill the deceased for illegally insulting Prophet Mohammad (S.A.W). The alleged provocative words said to have been uttered by the deceased was never placed before the trial court; and the court will not speculate on that. Appeal dismissed
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