A Ji Tombe V. Bornu Native Authority (1950)

LawGlobal Hub Judgment Report – West African Court of Appeal

Conviction of murder by Native Court where no evidence of death of person murdered—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.

Facts

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.

Held

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. His defence could have been no different on a charge of attempted murder. The Court substituted for the conviction of murder a conviction of attempted murder.

Appeal allowed. Verdict of attempted murder substituted for verdict of murder.