Gishiwa Gana V. Bornu Native Authority (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Native Courts—Native law and custom—Practice and Procedure—Rules of Evidence—Native Courts Ordinance, section 10A and proviso and section 14—Murder—Defence of provocation—Lack of proof under law observed in Native Court.

Facts

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 ds 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.)

Held

(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.

Appeal dismissed.