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GISHIWA GANA
V.
BORNU NATIVE AUTHORITY
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
20TH DAY OF OCTOBER, 1954
W.A.C.A. NO. 167/1954
2PLR/1954/64 (WACA)
OTHER CITATION(S)
2PLR/1954/64 (WACA)
(1954) XV WACA PP. 587-589
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, AG. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
GISHIWA GANA – Appellant
AND
BORNU NATIVE AUTHORITY – Respondent
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ORIGINATING COURT(S)
Appeal by a prisoner convicted in a Native Court of murder from the dismissal of his appeal in the Supreme Court
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REPRESENTATION
A. O. Odumosu for the Appellant
F. Williams for the Respondent
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CASE SUMMARY
CRIMINAL LAW AND PROCEDURE:– Murder – Defence of provocation – Lack of proof under law observed in Native Court
RELIGION AND LAW – ISLAMIC CRIMINAL LAW:- Charge of murder in a Native Court applying Moslem law – Accused admitting to killing the deceased because of alleged amoral relations with accused’s wife – Evidence deemed acceptable
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PRACTICE AND PROCEDURE ISSUE(S)
COURT:- Native Courts – Native law and custom – Rules of Evidence-Native Courts Ordinance, section 10A and proviso and section 14
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CASE SUMMARY
The appellant was charged with murder in a Native Court applying Moslem law. He admitted killing the deceased and stated that he had found his wife and the deceased coming out of the deceased’s room and taxed the deceased with adultery, whereupon the deceased kicked him, and he stabbed the deceased. His wife stated at the trial that she had, just before, had sexual intercourse with the deceased. The Court found the appellant guilty of murder.
The appeal to the Supreme Court was heard with assessors. Counsel for the Native Authority accepted the facts as stated by the appellant. The assessors, however, advised the Judge that the statement of the appellant that the deceased had kicked him would not be accepted as proof of the fact in a Moslem Court and that he had failed under Islamic law to prove a mitigating circumstance. The Judge held that he was bound by the trial Court’s rules of evidence and could not take something into consideration which was not admissible as evidence under Islamic law; which left the case as a killing without provocation. He dismissed the appeal, and the prisoner appealed further.
Counsel for him submitted that the Judge should have reduced the offence to manslaughter by applying the proviso to section 10A of the Native Courts Ordinance. (The section empowers a Native Court to apply native law and custom in the trial of offences, and the proviso states that no higher punishment shall be imposed than is allowed by the Criminal Code for the offence; and section 14 of the Ordinance provides that, subject to rules made under section 49, the jurisdiction of native courts shall, as regards practice and procedure, be regulated by native law and custom.)
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (Appeal dismissed) that:
(1) The assessors had correctly advised the Judge on the Moslem Maliki law governing the practice and procedure of the trial Court.
(2) The proviso to section 10A of the Native Courts Ordinance merely prohibits a Native Court from imposing a higher sentence than that allowed by the Criminal Code for the offence.
Case cited:-
Tsofo Gubba v. Gwandu Native Authority, a case in the Court of Appeal (unreported).
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
The appellant was convicted of the murder of one Madu Alinma by the Court of the Shehu of Bornu, Bornu Native Authority. He appealed against that conviction to the Supreme Court, and the appeal was heard by Bennett, Ag. J., assisted by two assessors, Chief Alkali M. Bukar Ja’afar and Assistant Chief Alkali Shettima Mohammad. The appellant now appeals to this Court against the decision of the Supreme Court which dismissed his appeal. At the trial the appellant admitted killing Madu Alinma by stabbing him with a knife. In answer to a question put to him by the trial Court, “Why did you kill him?” he made the following statement:-
“I had two wives and on one Sunday I went out with-them on a journey from Bomokiji and we came to Koryel. My senior wife Zara lodged in her mother’s house and my junior wife lodged in M. Garba’s house and myself I lodged in Mamman Shuwa’s house. In the same night, i.e. Sunday, 14th March, 1954, in the midnight I came to the house of my mother-in-law to see my senior wife Zara but I did not find her there. By then my mother-in-law was away and I called out ‘Zara, Zara,’ but she could not answer me.
I then proceeded to Madu Alinma’s house thinking that I would find her there, because the deceased Madu Alinma was my intimate friend and whenever he went to our hamlet he lodged in my house and used to give presents to my wives. When I came to Madu’s house I asked for one shilling change and he replied that he had none. By then I suspected that my wife Zara was with him in the room. I then returned to the house of my mother-in-law searching for my wife but still I did not find her nor even could I find my mother-in-law. I again proceeded to Madu’s house. No sooner had I come than I saw Madu Alinma with my wife coming out of his room. I then said, ‘Oh Madu you are surely unfaithful to your trust.’ Sooner I said so than he hit me with his foot on my right arm. I then at once stabbed him with a knife in his right shoulder and I then forcibly took away from him his ‘Mayafi ‘ and took it to Mamman Shiwa. When I came to. Mamman Shiwa I asked him to take me to his Lawan for I had found Madu with my wife and had stabbed him. We came to the V.H.’s house but I couldn’t find him; we found his Wakili and I stated to him what happened in detail. I was then arrested and the Wakili went to see the victim and then he came back he reported to the D.H. Damaturu. On the following morning, 15th March, 1954, the followers of the D.H. Damaturu came and in the afternoon he died.
“I had the knife with me since my first visit to the deceased’s house. It was not my intention to stab him but when I saw him with my wife I became annoyed and stabbed him.”
and in answer to further questions put to him by the Court he stated that he kept the knife with him all the time as his weapon and that he used it against the deceased because he caught him with his wife and when he remonstrated with the deceased the latter had kicked him.
The wife gave evidence at the trial admitting that she had just finished having sexual intercourse with the deceased when the appellant caught her leaving the room where it had taken place. It seems clear from the evidence that the stabbing then occurred.
Counsel who represented the Native Authority at the hearing of the appeal before the Supreme Court very properly, we think, stated that the prosecution accepted the circumstances as stated by the appellant.
The learned assessors having advised Bennett, J., that the statement of the appellant that the deceased had kicked him would not be accepted as proof of the fact in a Mohammedan Court; and that under Islamic Law he had failed to prove a mitigating circumstance, the learned appellate Judge held that he was bound by the rules of evidence of the Court of first instance and could not take into consideration something which was not admissible as evidence under Mohammedan Law. This left the case as a killing without provocation in law, and he dismissed the appeal.
After most anxious consideration we have reached the conclusion that the learned assessors correctly advised the trial Judge on the Maliki Law which governed the practice and procedure of the trial Court.
Section 14 of the Native Courts Ordinance provides that, subject to such rules as may be made under section 49 of the Ordinance, the jurisdiction conferred on Native Courts shall (as regards practice and procedure) be regulated in accordance with native law and custom.
Counsel whom we assigned to argue the case for the appellant submitted that Bennett, J., erred because he failed to give effect to the proviso to section 10A of the Native Courts Ordinance by reducing the offence to one of manslaughter which, counsel submitted, the proviso enabled him to do. We are unable to agree with that contention. The section in question expressly provides that where any person is charged with an offence against native law and custom, a Native Court may try the case in accordance with native law and custom even though the act or omission constituting the offence may also constitute an offence under the provisions of the Criminal Code or of any other enactment, and the only effect the proviso has is to prohibit a Native Court from imposing a punishment in excess of the maximum punishment permitted by the Criminal Code or other enactment in such cases. It does not empower an appellate court to interfere merely because the rules of evidence and procedure in the Native Court differ from those applicable to other Courts in Nigeria.
We think it desirable to point out that section 10A was inserted in the Native Courts Ordinance by section 2 of Ordinance-No. 2 of 1951, subsequent to the decision of this Court in the case of Tsofo Gubba v. Gwandu Native Authority.
Although the point was not argued at the hearing before us, counsel filed additional grounds of appeal in which he referred to section 5 of Ordinance No. 36 of 1948, paragraph (c) of sub-section (2) of which enabled the Supreme Court if satisfied that, by reason of the application to the case of native law or custom, the decision of the trial Court was unsatisfactory having regard to the provisions of the Criminal Code, to substitute a conviction for manslaughter for one of murder. We need do no more than point out that the whole of Ordinance No. 36 of 1948 was repealed by section 5 of the Native Courts (Amendment) Ordinance,1951.
We are of the opinion that the learned appellate Judge came to a correct conclusion on the law applicable in this case, and since it is our duty to give effect to the law as we find it this appeal must be dismissed.
Appeal dismissed.
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