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AJI TOMBE
V.
BORNU NATIVE AUTHORITY
WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
23RD DAY OF MAY, 1951
2PLR/1951/53 (WACA)
OTHER CITATION(S)
2PLR/1951/53 (WACA)
(1951) XIII WACA PP. 217-218
LEX (1951) – XIII WACA PP. 217-218
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
LEWEY, J.A.
DE COMARMOND, S.P.J.
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BETWEEN
AJI TOMBE – Applicant
AND
BORNU NATIVE AUTHORITY – Respondent
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ORIGINATING COURT(S)
Application for Leave to Appeal, W.A.C.A. CR. APP.3468
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REPRESENTTATION
Akiteye — for Appellant
Egbuna — for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Conviction of murder by Native Court where no evidence of death of person murder – Section 40A of the Native Courts Ordinance (Cap 142) – Circumstances in which, under that section, any appellate Court may substitute any decision which trial Court could have made on facts disclosed.
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CASE SUMMARY
The applicant was convicted of murder by a Native Court. The question arose as to what course this Court should pursue and section 40A of the Native Courts Ordinance (Cap. 142) was considered. This section provides that any appellate Court may substitute any decision which the trial Court could have made on the facts disclosed, provided it is satisfied that the defence before trial Court would not have been affected by the substitution.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal while Verdict of attempted murder substituted for verdict of murder) that:
1. Upon the facts of the case, as disclosed by the record, the trial court must have found that the appellant inflicted the injuries with the intent to kill or do grievous bodily harm.
2. Had it been proved that the victim had died, there would be no doubt that the appellant had been properly convicted of murder.
3. The appellant’s defence would have been the same had the charge been that of attempted murder instead of murder.
4. The West African Court of Appeal has ample authority to substitute any decision which the Court of first instance could have made on the facts disclosed, provided, the appellate Court is satisfied that the defence before the Court of first instance would not have been affected by the substitution.
Conviction of murder substituted for a conviction of attempted murder.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C.J.
This is an application for leave to appeal from a conviction for murder. The Counsel assigned to argue this application submitted on behalf of the applicant, that there was no evidence of the death of the person with whose murder he was charged. It is conceded by the Crown that there does not appear on the record any direct evidence of the death of the person whom he is alleged to have murdered. In these circumstances the question arises as to what course this Court should pursue.
Section 40A of the Native Courts Ordinance (Cap 142) provides that any Court exercising appellate jurisdiction may:-
“substitute any other decision . . . which the Court of first instance could have made on the facts disclosed by the evidence, but so that, by the decision so substituted, the appellant shall not be found guilty of any offence with which he was not charged before the Court of first instance, unless the appellant Court or authority is satisfied that the defence of the appellant before the Court of first instance would not have been substantially affected if he had been so charged.”
This provision cuts through a good many of the more technical provisions in regard to the substitution of one conviction for another in cases tried before the Supreme Court, and it appears to us that it gives ample authority for this Court to substitute any decision which the Court of first instance could have made on the facts disclosed, provided, we are satisfied that the defence before the Court of first instance would not have been affected by the substitution.
It appeared to us that the defence of the applicant could not have been substantially affected had he been charged with the crime of attempted murder. There can be no doubt that upon the facts of the case as disclosed by the record, facts which have been amply proved, the Court found and must have found on the evidence before it that the appellant inflicted injuries and that he inflicted them with the intent to kill or do grievous bodily harm.
Had it been proved that the man had died there would be no doubt that the applicant had been properly convicted of murder. That he struck the man with the intent to kill him appears to us to be established by the evidence beyond all doubt. His defence could have been no different had the charge been that of attempted murder instead of murder.
In these circumstances, therefore, this Court will substitute for the conviction for murder a conviction for attempted murder and for the sentence of death a sentence of ten years imprisonment with hard labour.
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Arthur Lewey, J.A.
I agree.
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M. DE. COMARMOND S.P.J.
I agree.
Appeal allowed. Verdict of attempted murder substituted for verdict of murder.
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