Introduction
Life is sacred and is considered so in all cultures and civilizations. Hence in many jurisdictions, the willful termination of the life of a human being by another human being is viewed as a grievous offence. The common law at its early stage viewed such a killing as so serious that it was hardly excusable. Except in a few cases, the very fact of causing the death of a human being is already an imputable crime even where one did not intend or foresee death as the result of one’s conduct. It was only later that there came to be a distinction between lawful and unlawful homicide. An example of the case I am considering as it happened under the English Law on the offence of murder is that, the intent to kill or cause grievous harm is sufficient to ground conviction. Hence in the English case of Hyam v. D.P.P, where the “accused jilted by her lover, out of jealousy set her new lover’s house on fire burning her two children to death, and pleading that her only intention was to frighten her out of the neighbourhood, it was held that an intention to cause death or grievous bodily harm is established if it is proven that the accused deliberately and intentionally did an act knowing that it was probable that it would result in the death of or cause grievous bodily harm to the victim, even though he did not desire the result”
The murder case of Maryam Sanda
It is difficult for one who is not a direct eye witness to say what really happened between Bilyaminu of blessed memory and Maryam Sanda on the 19th November 2017, which led to the death of Bilyaminu. This piece is therefore not meant to predetermine the case as the judge who will be seised of the facts would do, but to highlight the legal issues involved and carry out some legal analysis with a comparative thesis of similar murder cases that occurred in Nigeria in the past. Reliance will be placed on some decided cases in order to contextualise the murder of Bilyaminu. It is to be stated from the ontset that whatever opinion expressed here outside the law is that of the writer and should therefore not form the basis of any legal projection of the outcome of the case against Maryam Sanda. The gamuts of the story have been pieced together from social and other print media. And so the significant part of the story is that a murder was allegedly committed on the 19th November 2017. In order to recap the story, I have relied on the online report of The Nigeria Lawyer (the nigerialawyer.com). It reported that the police arraigned before a High Court of the Federal Capital Territory, Jabi, Abuja on charges of culpable homicide, Maryam Sanda, for allegedly stabbing her husband, Bilyaminu Bello Halliru. The charges came under Section 221 for “Culpable homicide punishable with death” and causing “grievous bodily hurt” under Section240 (g) of the Penal Code Law. It was said that Maryam stabbed her husband in the chest with a “broken bottle” as against the initial and other unconfirmed allegation that the stabbing was with a knife. On her plea in court, Maryam has been said to plead not guilty and thus has put the onerous burden of proving her guilt on the prosecution. She has also triggered the constitutional presumption of innocence until proven guilty. Without looking at the morality, emotional, sentimental and cultural dimension of the incident because the law does not necessarily consider all those factors when it is in motion; this is also notwithstanding the fact that human beings are the necessary players in the temple of Justice. While I am not in a position to recount the gruesome incident of the 19th of November 2017 between late Bilyaminu and accused Maryam, one has to look at all the legal ramifications of the matter. Since both Maryam Sanda and Late Bilyaminu Bello Halilu are or were of the Islamic faith, albeit, whether they have deep knowledge of the Shariah or not, I will consider the implication of the murder in the Islamic perspective.
What are the legal issues involved?
This will entail considering the following laws:
1. The provisions of the Penal Code Law under which Maryam is being charged – Sections 221 and 240;
2. The Constitution of the Federal Republic of Nigeria (as amended);
3. The Law of Evidence.
Apart from the foregoing, the court will have to consider the demeanour of the accused and the conduct of the prosecution in all ramifications.
Consideration of the Laws
The Penal Code Law:
OFFENCES AFFECTING THE HUMAN BODY
Offences affecting Life
Sections
220. Whoever causes death-
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death; or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or
(c) by doing a rash or negligent act, commits the offence of culpable homicide. 221. Except in the circumstances mentioned in section 222 of this Penal Code, culpable homicide shall be punished with death-
(a) if the act by which the death is caused is done with the intention of causing death; or
(b) if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.
It should be noted that in accordance with the explanations under the Penal Code on Culpable Homicide Punishable with Death, whether death was the probable or only a likely consequence of an act, or of any bodily injury, is a question of fact.
- (1) Culpable homicide is not punishable with death if the offender whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
- Whoever causes bodily pain, disease or infirmity to a person is said to cause hurt.241. The following kinds of hurt only are designated as grievous-
(a) Emasculation;
(b) Permanent deprivation of the sight of an eye, of the hearing of an ear or the power of speech;
(c) Deprivation of any member or joint;
(d) Destruction or permanent impairing of the powers of any member or joint;
(e) Permanent disfiguration of the head or face;
(f) Fracture or dislocation of a bone or tooth;
(g) Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow this ordinary pursuits.242. Whoever does an act with the intention of thereby causing hurt to a person or with the knowledge that he is likely thereby to cause hurt to a person and does thereby cause hurt to a person is said voluntarily to cause hurt.
The Constitution of the Federal republic of Nigeria, 1999 (as amended) Section(s)
33.(1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.
(2) A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary –
(a) for the defence of any person from unlawful violence or for the defence of property:
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
(c) for the purpose of suppressing a riot, insurrection or mutiny.35 (2) Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.
(3) Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.
(4) Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of –
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
(5) In subsection (4) of this section, the expression “a reasonable time” means –
(a) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometres, a period of one day; and
(b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the court to be reasonable.36(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty; Provided that nothing in this section shall invalidate any law by
reason only that the law imposes upon any such person the burden of proving particular facts.
(6) Every person who is charged with a criminal offence shall be entitled to –
(a) be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioners of his own choice;
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and (e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.The Law of Evidence
The facts of the case;
Investigation processes by the police;
The evidence relied upon, whether direct, confessional statement or circumstantial;
Burden and Standard of Proof;
Witnesses and examination/cross-examination of such witnesses;
Hearsay evidence;
Opinion and Expert evidence;
Forensic evidence.
All the above cited provisions of the relevant laws are easy to read and understand and quite self explanatory and so much time will not be spent here to explain each provision.
Application of the cited provisions of the laws to the case of Maryam Sanda
Since Maryam Sanda has been charged under the above cited provisions of the Penal Code Law; and in view of the fact that under the constitution of the Federal Republic of Nigeria, she is presumed innocent until proven guilty, the case will have to be determined based on the very cogent, convincing, and compelling evidence that will be tendered in court by the Prosecution.
In other words, the entire case depends on the investigation carried out by the Police, the chain of evidence, which must not lose any link and how well the case is presented before the presiding Judge, who as we all know is not a magician or an eye witness. This kind of case succeeds or fails on the weight of evidence adduced by the prosecution and the inability of the lawyers defending Maryam to impinge or debunk the evidence. From the 19th November 2017 that the incident occurred, the place of the incident ought to have been declared a crime scene and sealed off in order to allow the investigating police to gather as much evidence as possible from the crime scene, like the murder weapon if any and finger prints on potential weapons.
Such evidence gathering will include the statement of the accused, interviews of people around if there were witnesses, and if no eye witness or witnesses, then the prosecution will be working on circumstantial evidence and lots of presumptions. Circumstantial evidence is fraught with its own problem and is usually very difficult to use, because there must not be any missing link in the connection of the chain of evidence. Interestingly, Maryam has been said to plead not guilty of the offence of culpable homicide, which presupposes that she intends to exculpate herself using the same circumstantial evidence. It also debunked the initial unconfirmed news that she had confessed, through a confessional statement, to the murder of Bilyaminu. This development set the foundation for a hard and long legal battle between the Prosecution and the Defence. One then wonders that having pleaded not guilty, what will be her defence for the murder if indeed she committed the murder based on the prima facie case that may establish the fact that it was her and no other person committed the murder?
As it is shown in the listing of requirements to ground a conviction of Maryam under Section 221 of the Penal Code, the Prosecution must prove the case beyond reasonable doubts, and what constitute reasonable doubts have been defined over the years through judicial pronouncements. Where are there are doubts, more so that the case will depend so much on circumstantial evidence, the case will be resolved in favour of Maryam Sanda. There are no rooms for mere suspicion or hearsay facts or evidence. They must be concrete prove without any iota of reasonable doubts. Because of the religious inclinations of Maryam and Bilyaminu, most of the sources of evidence would have been disposed, especially the non-delay or prompt burial of Bilyaminu in accordance with Islamic injunctions. In other words, no autopsy or post mortem examination would have been conducted, to determine the actual cause of death. The murder weapon would have been tampered with before the arrival of the investigating police and so many other mishandling of the crime scene. To make matters worse, Maryam at the trial may elect not to testify on her behalf, a situation which our Constitution protects or guaranteed. But depending on the circumstances of the case, this may be counter-productive. These and so many other factors, stacks against the deceased who is not around to state his own case against that of Maryam Sanda. Here lays the difficulty in our law in Nigeria which is based on the Common Law model of England. He who alleges must prove.
Islamic Law Perspective of the Incident
On this perspective, I will place copious reliance on the judgement of Ibrahim Tanko Muhammad, J.S.C. in the case of Abubakar Dan Shalla Versus The state, decided on 5th October 2004 at the Supreme Court, where he retorted, citing Islamic text, that The Prophet (SAW) is reported to have said that the first action to be judged on the Day of Judgment is the spilling of blood. (See Bulugh Al – Maram Min Adiilatil Ahkam by Asqalani, page 244). In another Hadith, he is reported to have said that three things have been made illegal to a Muslim:
(i) to spill the blood of another or deprive him of his life
(ii) to deprive him of his property and
(iii) to deprive him of his honour or integrity
(See Forty Traditions of Imam An-Nawawi).
Conclusion
One hopes that from the abundance of precedents that abound on similar cases in the past, the prosecution will do its job and do it effectively well, devoid of the corruption that has permeated the fabric of police and the Judiciary. And if this case goes in the direction that is unexpected despite the overwhelming evidence to ground conviction or otherwise, the final comfort, as Muslims lies in the knowledge that on judgement day in the afterlife, the first action to be judged on the Day of Judgement is the spilling of blood. Perhaps that may be the consolation of the family of the late Bilyaminu at the end of it all, where the State fails in its responsibility of ensuring that Justice has been served and adequately seen to have been served.
Abayomi Oyelola, mni
Legal Practitioner and public Commentator
