Tsofo Gubba V. Gwandu Native Authority (1947)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law and Procedure—Trials before Native Courts of offences against
the Nigeria Criminal Code—Method of exercise of this jurisdiction—Native
Courts Ordinance, section 10—Criminal Code, sections 2 (1) and 4—Moham-
medan Law—Substantive Law to be administered by a Native Court trying a
charge of murder—Powers of Supreme Court on appeal from Native Courts—
Native Courts Ordinance, section 36 (1)—Appeal to West African Court of
Appeal—Native Courts Ordinance, sation 30—West African Court of Appeal
Ordinance, section 10—Right of appeal—Substitution by Supreme Gam of
conviction for another offence—West African Court of Appeal Ordinance,
sections 12 (2) and 11 (1).

Facts

The appellant was convicted of murder and sentenced to death by a Grade ” A ” Native Court. He appealed to the Supreme Court where the Appellate Judge, though satisfied that the evidence proved no more than manslaughter, nevertheless upheld the conviction and sentence of the Native Court, feeling himself bound by the majority decision of the West African Court of Appeal (Baker, Ag. C.J., and Brooke, J.: Ames, J. dissentiente) in Bornu Native Authority v. Magudama Abatcha (1).

The appellant then appealed to the West African Court of Appeal.

Held

(i) The legislature intended that section 4 of the Criminal Code should apply to proceedings in Native Courts;

2. no person is liable to be tried or punished in a Native Court for an offence against the Criminal Code or other Ordinance except under the provisions of that Code or other Ordinance;
3. section 10 (2) of the Native Courts Ordinance empowers a Native k;ourt, subject to the restrictions imposed by the section, to inflict for an act constituting an offence against native law and custom but not constituting an offence against the Criminal Code or other Ordinance of Nigeria, the penalty appropriate by native law and custom;
4. where a Native Court exercises jurisdiction in relation to an act which constitutes an offence both against the Criminal Code or other Ordinance, and against native law and custom, the Native Court must exercise that jurisdiction in accordance with the provisions of the Criminal Code or other Ordinance;
5. the Native Court in this case therefore erred in applying the principles of Mohammedan Law in coming to their verdict, the charge being one of murder, came to a wrong conclusion in law, and imposed a penalty unauthorised by the Criminal Code ;
6. the majority judgment in Bornu Native Authority v. Magudama Abatcha (1) at the most was intended to decide the particular issues raised by the facts of that case;
7. the Native Courts Ordinance does not empower the Supreme Court to substitute for the verdict of the Native Court any other verdict which the Native Court could have given in the first instance, and
8. this in spite of the wording of section 10 of the West African Court
9. of Appeal Ordinance which assumes the existence of such a power;
10. section 12 (2) of the West African Court of Appeal Ordinance does not give the West African Court of Appeal the power of substitution because the words ” Judge . . . or Jury ” (as the case may be) do not mean a Native Court;
11. section 11 (1) of the West African Court of Appeal Ordinance must therefore be applied.

Appeal allowed.