Dabo Fulani And Anor V Bornu N.A. (1966)

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BRETT, J.S.C.

The appellants were tried in the Court of the Shehu of Bomu and convicted of culpable homicide punishable with death, the offence being described as one contrary to section 221 (a) of the Penal Code. The High Court dismissed their appeal, but substituted a conviction under section 221 (b) of the Code, and they appealed to this Court. There was ample evidence to warrant the trial court’s findings of fact, which were that the appellants waylaid a party of three adults and one young girl who were returning home from the Boro Kiji market, with intent to rob them; that in furtherance of this intent each of them shot arrows from his bow in the direction of the victims, that an arrow struck Bello in the stomach, penetrating too far to be drawn out, and that Bello died of the wound soon after reaching home. The appellants were tracked to their own homes, and some of the stolen property was found at Njobdi Fulanis house; each of them confessed both at the time of his arrest and at the trial that he had taken part in the robbery misled into supposing that they were only being charged with robbery.

We are, however, of the opinion that the charge as framed alleged at most a culpable homicide as defined in section 220 of the Code and not the more serious form of culpable homicide which is defined in section 221 and is punishable with death. The reference to section 220 probably meant too little to the appellants to be misleading in itself, but we consider that the charge as explained to them should either have alleged one of the intentions set out in section 221, one of which must be proved if the offence is to be punishable with death, or at least have made it plain that the offence charged carried liability to the penalty of death. In the High Court it would not be permissible to convict of culpable homicide punishable with death on a charge worded as the charge in the present case was, and although section 387 of the Criminal Procedure Code makes a formal charge unnecessary in a native court it is not to be used as justifying a charge which is capable of misleading an accused person as to the ingredients of the offence alleged against him. We are unable to say if the appellants were in fact misled, but there is a real possibility that they might have denied acting with either of the intentions set out in section 221 of the Penal Code if this had been put plainly in issue, and we find it impossible to uphold the conviction as it stands.

Section 79 of the Penal Code deals with liability for joint acts, and we were addressed on its applicability in a case like this, where it is not proved which of the appellants shot the arrow which killed Bello. It seems too clear for argument that the appellants had a common intention to rob, and that each of them shot arrows in furtherance of that intention, so that we are satisfied that each of them may properly be convicted of culpable homicide in consequence of the death of Bello.

Alhaji Razaq referred to two Indian decisions, but so far as we can judge from the summaries of them in Gour’s Penal Law of India and Ratanlal’s Law of Crimes they do not support the submission that section 79 does not make the appellants jointly liable for the criminal act of killing Bello. Even if they did, this Court cannot attach high persuasive value to editorial summaries of isolated decisions on the Indian Penal Code when full reports of the decisions are not available. With unfeigned respect for the learned and industrious editors of these commentaries on the Indian Penal Code, and for the judges who have interpreted that Code, we should be surrendering our own independence of judgment if we were to rely on a decision on the meaning of such a section as section 79 without having had the opportunity of studying the whole of the reasoning on which the decision was based or of considering whether it was consistent with other decisions on the same point.

The convictions under section 221 of the Penal Code and the sentences of death are set aside. Instead we convict the appellants of culpable homicide not punishable with death and at a later date we shall pass sentence. In their grounds of appeal in this Court the appellants raised for the first time the plea that they were juveniles; Dabo Fulani alleges that he is aged 13 and Njobdi that he is aged 14. They were present on the hearing of their appeals in the High Court as well as at the trial at first instance, and if their ages are as they now state we think it unlikely that neither of these courts should have observed the fact.

However it is a matter on which certainty is necessary in view of section 71 of the Penal Code, and we shall appoint a special commissioner under section 33 (d) of the Supreme Court Act, to take evidence on oath to determine the ages of the appellants and report to this Court.

The parties will be informed of the time and place of the commissioner’s sitting and both the appellants and the State will be at liberty to call evidence.

The appellants will remain in prison until sentence has been passed.

Other Citation: (1966) LCN/1302(SC)