Adamu Yidi Kawo Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C. 

On the 6th of May, 1971, Wheeler, J., in the Kano High Court in Charge No. K/20/1971 convicted Adamu Yidi Kawo of culpable homicide punishable with death contrary to Section 221 of the Penal Code and sentenced him to death, and on the 5th of April, 1972, we dismissed his appeal therefrom and now give our reasons for so doing.

The prosecution’s case was that the accused had complained to the Village Head that the deceased had put an evil spell on the accused’s brother called Gada and as a result Gada had become seriously ill. He asked the Village Head to visit Gada with the deceased and the accused so that the deceased could release Gada from the spell which he had cast on him. When the Village Head refused to intervene, the accused drew a cutlass and struck the deceased on the neck causing him to fall to the ground and, after bleeding heavily, to die there on the spot shortly thereafter.

The 1st, 2nd and 3rd P.W. were all present and gave evidence that this was what happened and they were believed by the learned trial Judge. The accused made a statement (Exhibit 3), which the learned trial Judge believed, in which he said inter alia:

“Ward Head refused to take me to representative of the Village Head he said too that he has nothing to do in my request as to force Zango to cross over Gada being powerless on that line Gada was become conscious and I became angry as they said to go to the Village Head but we went to the Village Head who settle the matter among us but I became angry and I did not take patient that was when I drew out my sword and stabbed Zango on his neck then those who were there have me beaten and take my sword from me by force and on that time I was beaten severely and I don’t know who took my sword among them that is all”.

The accused gave evidence at his trial in which he said that after the Village Head had refused to help what happened was that:

“I was still crying as we left. As I went my head turned and I could not remember what I was doing. As we went P.W.3 was followed by P.W.1 and then P.W.2 and then the deceased. I was about 15 yards behind P.W.3. I was first in front of Zango. While we followed them, Zango was saying to me ‘have you seen the result of your complaint, nothing has been done and your brother will perish and I will probably meet you myself’. This conversation with Zango was in Fulani.

I asked him why he would harm me. He said it was because I had complained about him. It was a brief conversation. I was still crying and Zango was still taunting me, I then committed this incident without intention or knowledge. Zango had said when he saw me crying that it was just the beginning, and then the incident had occurred. As Zango passed me, he brushed against me.

I thought he was beating me and I got frightened. I made a blow at him. I had not gone to the village head with the intention of quarelling. I had not set out with the intention of killing Zango. I had been using my knife to cut wood and therefore took it with me to the market. It is a tradition in our village for men to go about with knives. I was carrying my knives openly as Zango was carrying his sword.

I made a statement to the police; I did not tell them about Zango brushing against me as they did not ask me. I did not intend to do any harm to Zango.

Cross Exam: I have heard of Sarkin Maya; I did not consult him. I gave him 1 pounds because the village head invited him to go and see Gada, my brother. I was not happy because he was ill. I did not intend to kill Zango. I was displeased when I was asked to go by the village head”.

The learned trial Judge however disbelieved the accused’s story that he was taunted by the deceased or that the deceased brushed against him as the accused had never said this in his statement and neither the 1st, 2nd nor 3rd P.W. said this is what happened. He found that the accused alone was armed that day and that no question of self-defence arose. He rejected the submission that the accused’s belief that the deceased had caused his brother’s illness could amount to provocation in law and rightly in our view put the legal position when in his judgment he said:

“I accept the accused was upset by the way the village head dealt with his complaint but even superimposing that against the background of the accused’s belief in the cause of his brother’s illness, that conduct of the village head cannot be regarded in law as constituting provocation, sufficient to reduce the killing to the offence of culpable homicide not punishable with death. It is enough to say that Section 222 (1) of the Penal Code requires that the person killing should have given the provocation unless another person was killed by mistake or accident which, of course is not the situation here.”

The learned trial Judge then referred to Mamman Kusu v. Sokoto N.A. unreported but noted in Richardson’s “Notes on the Penal Code Law” at page 152 which was F.S.C. 276/62 of 2nd of November, 1962, and where the Federal Supreme Court in fact said:

“It is a sad story of the wife believing firmly that her illness and suffering were due to someone having cast a spell on her, and of the husband believing it in his turn and becoming goaded at last to the point of killing the person thought to be responsible for the suffering of his wife. The law does not accept that sort of belief as an excuse. It was right to convict the appellant and sentence him to death” He accordingly rejected the defence of provocation.

Mr. Akinrele was unable to urge anything on behalf of the appellant and, as we were of the view that the accused was rightly convicted of culpable homicide punishable with death, we dismissed his appeal. We would only draw attention to the recommendation for mercy that the learned trial Judge made when he said:

“I shall make a recommendation of mercy in this case, pursuant to Section 199 of the C.P.C as I am satisfied the accused firmly believed that the grave illness of his brother was caused by an evil spell cast upon him by the deceased.”

and this we would wish to endorse.

Other Citation: (1972) LCN/1452(SC)