The Supreme Court on Friday discharged and acquitted Yusuf Musa who was convicted of murder at the age of 12.
Delivering judgment, Justice Ejembi Eko held that the appeal had merit.
Eko, who read the lead judgment prepared by Justice Olukayode Ariwoola, said both the Jigawa High Court and the Court of Appeal Kaduna, should have handled the matter better than they did.
According to him, no legal precedence supports the decision of the court of appeal which orders the detention of the appellant at the pleasure of the state governor.
He also said sufficient evidence was not adduced to warrant the conviction and sentencing of a minor to death by hanging.
According to him, the court of appeal had done well to have dismissed the death sentence but was wrong to have ordered the indefinite detention of the appellant. “The appeal is meritorious and, therefore, the appellant is discharged and acquitted,’’ the judge said.
The appeal was against the judgment of the Court of Appeal, Kaduna, delivered on June 27, 2014.
The lower court had ordered that the appellant remained in detention at the state governor’s pleasure as the appellant was 12 years at the time of his conviction and sentence by the trial court.
The appellant was arraigned before Justice Ubale Taura for the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code applicable to the state.
The trial court however activated the full wrath of the law by convicting and sentencing the appellant to death by hanging on Dec. 23, 2008.
The court of appeal however partially upheld the judgment of the trial court by dismissing the death sentence passed on the appellant and ordering his indefinite detention by the governor.
The appellant was accused of doing an illegal act by hitting one Muhammed Hamza on the head and other parts of the body with a stick which led to his death.
Musa (appellant) had however pleaded not guilty to the charges as according to him, his action against the deceased was a self defence and not with intention to kill him.
The appellant had asked the court to determine whether the lower court evaluated the evidence and defence of provocation raised in his extra-judicial statement before affirming the decision of the trial court.
He also asked the court to determine whether from the facts and circumstance of his case the lower court was right in ordering that a minor be detained in prison at the pleasure of the governor.
Mr Damian Dodo (SAN), counsel to the appellant, argued that culpable homicide was not punishable with death if the offender’s action was triggered by clear provocation.
He further argued that the trial judge and the justices of the appeal court did not properly consider the issue of provocation as provided in Section 222 (1) of the penal code.
Dodo had also submitted that there were material contradictions in the inadmissible evidence of the prosecution witnesses.
Mr Musa Imam, the prosecutor, on his part, submitted that the defence of provocation could not be hung on the air without supporting evidence.
Imam argued that such defence could not also be built on scanty foundations as done by the appellant.
He submitted that it was the duty of the accused person to adduce credible or positive evidence to support the alleged provocation.
“Where the accused person fails to adduce evidence in support of his defence, as in the present case, the trial court has to rely on the evidence before it adduced by the prosecution,’’ he said.
He said the appellant did not raise any defence of provocation at the trial court, adding that the trial judge “suo moto’’ raised it for him.
He further submitted that the judge went ahead to consider and evaluate same and found out that it could not avail the appellant.