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USUMAN ACIDA
V.
THE KING
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
27TH DAY OF APRIL, 1950
2PLR/1950/16 (WACA)
OTHER CITATION(S)
2PLR/1950/16 (WACA)
(1950) XIII WACA PP. 48 – 52
LEX (1950) – XIII WACA 48-52
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
AMES, Ag. C.J., NIGERIA
LEWEY, J.A.
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BETWEEN:
USUMAN ACIDA – Appellant
AND
THE KING – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CR.APP.3186/50
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REPRESENTATION
A. O. Thomas (Jnr.) — for Appellant
Ridehalgh, Acting Attorney-General — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE – HOMICIDE:- Prosecution of a homicide by a Mohammedan Court – Power/discretion of a Judge to set aside the decision of a Native Court and to order a re-trial – Exercise of such power in respect of Mohammed in Courts under section 5(2) of the Native Courts Ordinance – Attorney-General’s direction to Supreme Court to review under section 5(1) of such Ordinance not necessary in homicide cases
ISLAMIC/SHARIA LAW:- Decision of Mohammedan Court over homicide – Power of review by Supreme Court – How properly exercised
ADMINISTRATIVE AND GOVERNMENT LAW:- Attorney-General’s direction in the prosecution of offences under section 5(1) of the Native Courts Ordinance – Whether necessary only in offences other than homicide
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PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER:- Interpretation of the word “decision” in section 5(2) of the Native Courts Ordinance – Judge empowered to review both conviction and sentence – Meaning of words “not satisfactory” in section 5(2) – Whether Judge’s discretion not unfettered
INTERPRETATION OF STATUTES:- Punctuation(s) – Whether not to be taken as part of statute – Proper treatment of
WORDS AND PHRASES:- “Decision” – “Conviction” – Meaning of
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CASE SUMMARY
The appellant was convicted of murder by the native Mohammedan Court and sentenced to five years’ imprisonment, the question, according to the native law and custom, whether death penalty should be imposed being in most cases dependent upon the election of the next of kin of the deceased. He did not appeal, but the proceedings were sent to the Supreme Court for review in accordance with the provisions of section 5 (2) of the Native Courts Ordinance. Hubbard, J., set aside the decision of the Sultan’s Court and ordered a re-trial before himself. At the trial the appellant was charged with and convicted of murder and sentenced to death.
The question for this Court to decide was whether the Judge had power to set aside the decision of the Native Court and order a re-trial, and further, whether he exercised these powers correctly.
In the course of the arguments the meaning of the word “decision” was discussed, and also the construction to be placed upon the words “unsatisfactory trial”, which appear in section 5(2) of the said Ordinance. The Court also considered whether the intervention of the Attorney-General was necessary before the Supreme Court exercised its powers to review and to order re-trial, and the circumstances in which such powers should be exercised.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. In homicide cases the Supreme Court was empowered to review and to order a re-trial and a direction by the Attorney-General was not a prerequisite to the exercise of such powers. The powers were exercisable when the trial was not satisfactory and applied in respect to any “decision” of the trial Court. The word decision includes “sentence”. The Attorney-General’s direction is necessary only in offences other than homicide
2. Where the prisoner is properly convicted of homicide and sentenced to death by a Native Court in accordance with Mohammedan Law, a higher Court is not empowered to interfere with the verdict or sentence. The operation of the section as it stands is calculated to undermine the fabric of the Moslem Courts and to impair their prestige. But the remedy lies in the hands of the Legislature and not the judiciary. The Legislature has seen fit to encase the Judge’s discretion in a strait-jacket, and the Legislature alone can remove it.
3. A trial is unsatisfactory where the penalty inflicted widely diverges from that prescribed by the Criminal Code. If a Judge feels constrained to hold that the decision is unsatisfactory he has no further discretion and it becomes mandatory upon him to set aside the Native Court’s decision.
4. The cause and necessity of a statute may be discovered firstly by considering the state of the law at the time when it was passed.
5. Until about a century ago statutes had no punctuation. They have it nowadays, but even so, punctuation is not to be taken as part of a statute.
Cases referred to:
(1) Photographic Co. v. Comptroller-General of Patents (1898), A.G. 571 at 576.
(2) South Eastern Railway Company v. The Railway Commissioners, 5 Q.B.D. 217 at 240.
(3) Gubba v. Gwandu Native Authority, 12 W.A.C.A. 141.
(4) Bornu Native Authority v. Abatcha Magudama, W.A.C.A. Judgments, January-May, 1946, 12.
(5) Rex v. Banbury, 1 A. & E. 142.
(6) Cox v. Hakes (1890), 15 A.C. 506, at 528.
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MAIN JUDGMENT
The following Judgement was delivered:
BLACKALL, P.
This is an appeal against a conviction of murder. The grounds of appeal as originally filed were against the conviction in the Supreme Court before Hubbard, J., but by leave of this Court these were withdrawn and the following ground of appeal substituted:
“That the procedure adopted in the review and re-trial was wrong in law and the re-trial was therefore a nullity.”
The question for this Court to decide, therefore, is whether the Judge had power to set aside the decision of the Native Court before whom the appellant was originally tried, and order a re-trial, and further whether he exercised those powers correctly. The powers in question are contained in the Native Courts Ordinance (No. 36/1948), section 5(2). That section deals with every class of offence tried by Native Courts, but as the only Native Courts that have jurisdiction to try charges of homicide are the Mohammedan Courts, this decision in effect is concerned only with such Courts.
Coming to the facts, the appellant was convicted by the Court of the Sultan of Sokoto, Grade “A”, on what is described in the English translation as a charge of murder. There is, however, no such distinction in Mohammedan law between murder and manslaughter as obtains under English law. All killings are homicides, the question whether the death penalty should be imposed being, in most cases, dependent upon the election of the next of kin of the deceased. No criticism has been levied against the correctness of the proceedings in the Sultan’s Court. The appellant, as appears from a certificate by the District Officer, fully understood the charge and pleaded guilty; he was quite satisfied with the sentence, and although he had the right to appeal against his conviction by the Sultan’s Court, he did not do so. But section 5, Ordinance 36/1948, requires that in all cases of homicide tried in Native Courts the proceedings shall be sent to the Supreme Court for review, and Hubbard, J., set aside the decision of the Sultan’s Court and ordered a re-trial, which took place before himself. At that trial the appellant was charged with and convicted of murder.
Let us now consider the meaning of section 5(2) of Ordinance No. 361/948. That section provides that if a Judge of the Supreme Court is satisfied that by reason of the application to the case of native law or custom, the decision of the Court of first instance is not satisfactory, having regard to the provisions of the Criminal Code applicable in the circumstances, he shall set aside the decision and may, inter alia, order a re-trial. The section is not free from ambiguity, and it is therefore proper for this Court to consider previous legislation and the defects which the present Ordinance was designed to cure.
As Lord Halsbury, L.C., said in Eastman Photographic Co. v. Comptroller General of Patents (1):-
“To construe the statute now in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy.”
The cause and necessity of a statute may be discovered firstly by considering the state of the law at the time when it was passed. As Lush, J., observed in the South-Eastern Railway Company v. The Railway Commissioners (2):-
“For while we are to collect what the legislature intended from what it has said, we must look, not at one phrase or one section only, but at the whole of the Act, and must read it by the light which the state of the law at the time throws upon it.”
In considering the history of the legislation under review the Court had the assistance of the Acting Attorney-General who argued the appeal on behalf of the respondent. He traced the origin of the defects which led up to the enactment of Ordinance 36/1948, to an amendment made to section 4 of the Criminal Code in 1933. Prior thereto the obligation upon Courts of law in Nigeria to administer the Criminal Code did not apply to Native Tribunals, but the words “other than a Native Tribunal” in section 4 of the Code (upon which the exemption depended) were deleted by the Criminal Code (Amendment) Ordinance, 1933. Although according to the Objects and Reasons appended to the Bill the draftsman merely intended to prevent the Native Courts imposing punishment for offences under the Criminal Code in excess of these permitted by the code, the amendment was found to entail more far-reaching consequences when it came to be judicially interpreted.
In the case of Gubba v. Gwandu Native, Authority (3), it was held that where a Native Court exercises its jurisdiction in relation to an act which constitutes an offence under the Criminal Code, it must exercise it in accordance with the provision of the Code. It was further held that the West African Court of Appeal had no power to substitute a verdict of manslaughter where the Native Court had convicted of homicide and imposed a death sentence.
It had been previously held by this Court in the case of Bornu Native Authority v. Abatcha Magudama (4), that where the prisoner is properly convicted of homicide and sentenced to death by a Native Court in accordance with Mohammedan Law, this Court is not empowered to interfere with the verdict or sentence.
To remove the defects disclosed by these decisions Ordinance No. 36/1948 was enacted and it is, therefore, to be interpreted in the light of the foregoing.
I now proceed to deal with the arguments of Counsel. Mr. Thomas, for the appellant, submitted in the first place that as the review took place before the amendments to section 5(1) of Ordinance No. 36/1948 were made by Ordinance 21/1949, the direction of the Attorney-General was a prerequisite and since he had not given it, the Supreme Court had no jurisdiction to review the proceedings of the Native Court.
The amendments in question were designed to improve the punctuation of section 5(1), which admittedly was very faulty, but we have to consider what, despite the faulty punctuation, was the true meaning of the sub-section. Until about a century ago statutes had no punctuation. They have it nowadays, but even so, punctuation is not to be taken as part of a statute. To quote Willes, J.:
“These appendages, which though useful as a guide to a hasty enquirer, ought not to be relied upon in construing Acts of Parliament (Clayto, v. Green, 1868, L.R. 3 C.P. 511, 522).”
The original punctuation of the sub-section was obviously wrong, for as it stood it did not make sense, but having carefully considered the phraseology of section 5(1), we have come to the conclusion that the Attorney-General’s direction is necessary only in offences other than homicide; This ground, therefore, fails.
It was further submitted that in section 5(2) the word “decision” should be interpreted as “conviction” and does not include sentence. In support of this Mr Thomas urged that paragraph (c) of the sub-section would otherwise be otiose, and he also referred the Court to section 4(a)(iv) of the Ordinance which reads:-
“That the Court may substitute any other decision (whether as to guilt or punishment) which the Court in the first instance could have made.”
He submitted that the words in brackets indicate that without them the word “decision” would have a more restricted meaning. From these premises he argued that since on the evidence the Native Court properly found the appellant guilty of murder, the Supreme Court had no power under section 5(2) to consider the sentence. The argument is an attractive one, and we have given it very careful consideration, but have come to the conclusion that it cannot be sustained. The word “decision” is a popular – not a technical – word, and its meaning must be discovered from the context. It is, in fact, frequently used to include both finding and sentence, and this occurs in the Native Courts Ordinances. Thus, section 31(1) of the Native Courts Ordinance (Cap. 142) provides that any person aggrieved by an order or decision of a Native Court may appeal. There is no mention of sentence in that sub-section, but when we tum to section 4(a)(iv) – the very provision to which Mr Thomas referred – we find that it allows the Appeal Court to substitute any other decision whether as to guilt or punishment. This indicates that the word “decision” in section 31(1) of Cap. 142 was intended by the Legislature to include “sentence”.
Apart from this, the narrow interpretation sought to be placed on the word “decision” would defeat the intention of the Legislature. One object of Ordinance 36/1948 was to cure the defects disclosed in the Gubba case, i.e. the inability of the Appellate Court to substitute imprisonment for death in appropriate cases. But the words of a statute when there is a doubt about the meaning, are to be understood in the sense which best harmonises with the objects the Legislature had in view. We have therefore reached the conclusion that section 5(2) does enable the Judge to review both conviction and sentence.
Upon what principle, then, should the Judge exercise his power of review? Hubbard, J., before making the order in this case, heard Crown Counsel on behalf of the Attorney-General as provided by section 5(3). He stressed the view that, as the accused, if tried by the Supreme Court, would have been sentenced to death, the sentence of five years imposed by the Native Court should be regarded as “not satisfactory” within the meaning of section 5 (2).
The learned Judge, with some reluctance, as he said, adopted this argument and held that “any divergence of’ penalty so wide as to be considered unsatisfactory is a proper subject for review”. In the present case the divergence was a sentence of five years’ imprisonment compared with death, but even if a longer term had been imposed, this Court would find it difficult to hold that a Judge would be wrong should he take the view that there is a wide divergence between imprisonment, however prolonged, and loss of life.
As the Acting Attorney-General appeared in support of the conviction, he was bound to support the Order for re-trial and inferentially Crown Counsel’s arguments. But he invited this Court to lay down a principle for the future guidance of Judges in exercising these powers, that would enable them to construe the section in a wider and more liberal sense than that for which the learned Crown Counsel contended.
The Attorney-General suggested that Judges be enjoined to adopt the principle followed by the Judicial Committee of the Privy Council when dealing with applications for special leave to appeal in criminal cases, i.e. that the Judge should not set aside the decision of a Native Court unless it were shown that by some violation of the principles of natural justice or otherwise: substantial and grave injustice had been done. But where the law provides that special leave to appeal has to be obtained, the Court has a wide and unfettered discretion. That is the position of the Privy Council in regard to appeals in criminal matters and of the Nigerian Courts in certain cases, e.g. section 4(b)(i) of the West African Court of Appeal Ordinance (Cap. 229). But what we have to consider is whether the Supreme Court has such a wide discretion under section 1(2) of Ordinance 36/1948.
It is instructive in this connection to compare the discretion given to the Attorney-General under the same section. Section 5(1) provides that cases other than homicide are to be reviewed only if the Attorney-General so directs.
The Attorney-General’s discretion is, therefore, entirely untrammelled. I make no complaint about that; it is a salutary provision. But let us compare it with the discretion that the Legislature in its wisdom has given to the Judge under section 5(2).
It is true that under that sub-section the Judge is required to set aside the decision of the Native Court only “if satisfied that it is not satisfactory”. If that phrase had stood alone, the Judge would have a wide discretion, but it does not, for his discretion is qualified and restricted both by the words that precede and the words that follow.
In the first place, the “unsatisfactory” character of the Native Court’s decision must be due to the application of Native law and custom, however correctly applied. In the second place, the criterion of whether the decision was unsatisfactory is to be the provisions of the Criminal Code applicable in the circumstances. The Legislature has therefore provided a yard-stick, viz, the extent to which the decision of the Native Court approximates to or departs from the relevant section of the Criminal Code.
Moreover, if a Judge feels constrained to hold that the decision was “unsatisfactory” within the meaning of the sub-section, he has no further discretion in the matter; it becomes mandatory upon him to set aside the Native Court’s decision for the sub-section says he “shall”, not he “may” do so..
It will be seen, then, that the discretion given to the Judge is “cribbed, cabined and confined”, and is vastly different to the wide discretion vested in the Attorney-General. We do not think, therefore, that this Court could with propriety invite the Judges of Courts below to exercise their discretion under section 5 (2) in the wider sense suggested by the learned Attorney-General.
The rule of construction is to intend the Legislature to have meant what they have actually expressed (R. v. Banbury (5)), and this is so even where the Court is satisfied that the Legislature did not contemplate the consequences of the enactment. Thus Lord Herschell in Cox v. Hakes (6), said:-
“It is not easy to exaggerate the magnitude of this change; nevertheless, it must be admitted that if language of the Legislature, interpreted according to the recognised canons of construction, involves this result, your Lordships must frankly yield to it, even if you should be satisfied that it was not in the contemplation of the Legislature.”
I may say that this Court regrets it is unable to adopt the Attorney-General’s suggestion, for we realise that the operation of the section as it stands is calculated to undermine the fabric of the Moslem Courts and to impair their prestige. But the remedy lies in the hands of the Legislature and not the judiciary. The Legislature has seen fit to encase the Judge’s discretion in a strait-jacket, and the Legislature alone can remove it.
As the validity of the Judge’s Order for review was the only point argued, and as this Court holds it was properly made, that disposes of the appeal.
The appellant clearly laboured under the superstitious belief that the deceased had bewitched his brother. That in his eyes, would be a great provocation, but as his Counsel realised, it could not be a defence under the Criminal Code, though it is a matter which will doubtless be taken into consideration in another quarter which is not bound by the strict rules of law.
The appeal is dismissed.
Appeal dismissed.