Giremabe Chimora Vs Bornu Native Authority (1961)

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HURLEY, C.J.N.R 

The appellant was tried in the Court of the Shehu of Bornu on a charge of beating one Yerwama to death with a stick and was convicted of culpable homicide punishable with death and sentenced to death. His appeal to the High Court of Northern Nigeria was dismissed and he has appealed to this Court. His grounds of appeal in this Court, which were not his grounds of appeal in the High Court, have been argued together and come to this, that there was no evidence of the cause of death, and no evidence that the deceased died of injuries inflicted on him by the appellant.

The prosecution evidence was that the appellant and the deceased fought one night and were separated. The deceased and the first prosecution witness left for home, followed by the second prosecution witness. On the way the appellant met the deceased and the first witness and hit the deceased with a piece of firewood. The deceased fell to the ground and the appellant hit him a second time and more heavily. The witnesses ran away. The second witness reported to the third witness, who went to the scene with some other men and found the deceased lying there, alive but injured and unable to speak. The witness did not describe the deceased’s injuries. They took the deceased to hospital. The appellant, questioned by the trial court after he had spoken in his defence, said that he knew the deceased was dead. In their judgment the trial court said “Medical evidence proved that the deceased died of the beatings of the accused”. No such evidence and no other evidence of the cause of death, had been adduced in court. In his opening statement, the prosecuting constable, who was not a witness, said that the appellant had died in the hospital after two days’ illness.

There was no evidence that the injuries inflicted on the deceased by the appellant caused the deceased’s death, which is to say that there is no evidence that the appellant killed the deceased. The judgment of the trial court must therefore be set aside. However, we think that this is a proper case for a retrial. Section 30 of the Federal Supreme Court Ordinance enables us to order this case to be retried by a court of competent jurisdiction. We will order that the case be retried before the High Court of the Northern Region. Without deciding whether a conditional order may be made under section 30, we will make the order for retrial unconditional.

We observe that section 185 of the Criminal Procedure Code of the Northern Region provides that no person shall be tried by the High Court unless he has been committed for trial, or a charge is preferred against him by leave of a Judge of the High Court, or a charge of contempt is preferred against him under section 314 or section 315. This Court cannot exercise the powers of a single Judge of the High Court under section 185 to give leave to prefer a charge, and cannot direct a Judge to exercise them. Since a magistrate holding a preliminary inquiry may lawfully discharge the accused instead of committing him for trial, it will not be in accordance with the terms of an unconditional order for retrial made by this Court under section 30 to bring the accused before a magistrate for a preliminary inquiry before bringing him to the High Court for trial.

Therefore the order for retrial must be discharged by bringing the appellant before the High Court for trial otherwise than as provided in section 185. Section 185 of the Criminal Procedure Code is thus inconsistent with section 30 of the Federal Supreme Court Ordinance. By section 64 (4) of the Constitution of the Federation of Nigeria, if any law enacted by the legislature of a Region is inconsistent with any law validly made by the Federal Parliament, the law made by Parliament shall prevail and the Regional law shall, to the extent of the inconsistency, be void. The provisions of section 30 of the Federal Supreme Court Ordinance empowering this Court to order a retrial were validly made by Parliament by virtue of item 44 of Part 1 of the Schedule to the Federal Constitution, as interpreted in section 1 (b) of Part III, being provisions with respect to a matter supplementary to the discharge by the Supreme Court of its appellate functions conferred by the Constitution. The order for retrial will therefore be effective to enable the case to be retried without a preliminary inquiry.

We observe that the charge preferred in the trial court is not suitable for trial in the High Court, but section 208 of the Criminal Procedure Code gives power to amend a charge.

Conviction quashed: Retrial ordered.

Other Citation: (1961) LCN/0903(SC)