Ilu Garba Vs The State (1972)
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SOWEMIMO, AG. JSC.
We now give our reasons for dismissing this appeal which was heard on the 5th of April, 1972.
The accused was charged with culpable homicide punishable with death contrary to Section 221 of the Penal Code. The particulars of the charge were that the accused on or about the 27th April, 1969,“caused the death of Hamadu Adamu by doing an act, that is, you shot him with an arrow on the left side of the neck with the intention of causing his death.” The incident took place at Ngelshongel Village in Fune District in the North Eastern State.
The appellant was tried before Hague, Ag. J., at the Maiduguri High Court and on 7th July, 1971, he was found guilty and sentenced to death. It is against this conviction that he has appealed to this court.
The facts as found by the learned trial Judge are as follows. The 2nd P. W., one Danso Chindo, went in the evening of the material date to fetch water from a well. On her way there she heard the accused shout the name of the deceased, Amadu, and she observed that the accused had shot the deceased with an arrow at the base of the neck. The arrow head was still hanging from the neck of the deceased. The accused then dragged this witness into the bush to prevent her from reporting the incident at the village. The 2nd P.W. said that, as she was being dragged, the 6th P.W., Umaru Ali, met them. Both 2nd and 6th P.Ws. agreed in their evidence that the accused was carrying a bow and a quiver containing some arrows.
The 2nd P.W. said in the presence of 6th P.W. that the accused had killed someone and, if she the 2nd P.W. did not follow the accused, she also would be killed.
On the evening of the day of the incident the 3rd P.W., one Mohammadu Bagga, said that the deceased came to him with an arrow sticking out of the base of his neck. He asked the deceased twice what had happened, but he was unable to reply. He pulled out the arrow from the neck of the deceased and observed a hole in the wound. Both he and the deceased then went out to look for medicine to apply to the wound, but the deceased collapsed and died before any medicine could be procured. He stated that a friend of the deceased’s father had brought an antidote for the deceased to take but that, by that time, “his jaw had set close” and he could not take it. He left the corpose of the deceased at the scene just as an uncle of the deceased and a Dispensary Attendant arrived.
The 1st P.W. is one Bata Dikwa, a dispensary attendant, who had had 23 years’ experience after his training at the Maiduguri General Hospital which included the examination of corpses. He was at the material date, 28th April, 1969, stationed at Damagun. On receipt of a report at 1 p.m. of that day he proceeded to Ngelshongel which was about 38 miles to Damagun. He arrived there at 6 p.m. and saw the corpse of the deceased.
He took a ‘probe’ with him and examined the wound which he found on the deceased. He described his observation thus:-
“ I uncovered a cloth from the body and examined it. Near the left side at the bottom of his neck there was a wound. It was 21/2 inches deep, half an inch wide and half an inch long. I saw no external blood. I then authorised burial.”
According to 1st P.W. the nearest hospital to Damagun is at Potiskum which is about 58 miles away. As he had no transport he could not convey the corpse to the General Hospital, Potiskum, for examination by a doctor.
The village Head, one Alhaji Buba, gave evidence as the 10th P.W. On receipt of a report he visited the scene where he saw the corpse of the deceased. He observed a wound at the base of the neck and also saw an arrow by the side of the body. The 1st P.W. was then also at the scene beside the body. He then went in search of the accused whom he found with 2nd P.W. and one other person. In his evidence he said that the accused admitted that he shot the deceased because whenever he the accused had occasion to travel out, the deceased “used to go and sleep” with his wife. He then took the accused to Damagun and handed him over to the Sergeant of the Local Authority Police. The 11th P. W., one Mohammed Kawalji, accompanied the accused and the 10th P.W. to Damagun and later to Maiduguri. He acted as interpreter when the accused volunteered a statement to the Police. The accused spoke in Fulani, which was interpreted by him to the police officer in Kanuri, but which was recorded in Hausa. He identified Exhibit A as being a correct statement of the accused which he had interpreted. Exhibit 2 (English translation) reads:-
“I, Ilu Garba I said this with my own mouth, I shot Hammadu Adamu with one arrow near his neck at Ngelshongel and died. What made me to shoot him was that about two years ago now Hammadu was chasing my wife Lami and I saw them with my own eyes. That’s why I shot him.”
Exhibit A2 was made on 4th August, 1969. On the 5th July, 1971, the accused gave evidence in his defence at the trial and denied the contents of Exhibit A. He stated that all that he told the investigating Police Officer was that he had not committed any offence. He denied all that 2nd P. W., 6th P. W. and 10th P. W. stated in court. He said that he was on his way to a well to fetch water for his cattle when he was arrested and that he carried no weapon except a small stick.
The learned trial Judge reviewed the evidence of both the prosecution and the defence and concluded thus:-
“It is a troublesome point in this case that the bow alleged used was never produced and there are discrepancies concerning what accused carried at various times during the incident described by the witnesses. This aspect of the case is unsatisfactory, but I accept what 2nd P.W. said as substantially true. It is obvious she must have been in a distressed condition at her treatment, consequently did not notice at which stage accused abandoned his bow and remaining arrows. I find that he must have done this before 10th P.W. apprehended him, because taking the case as a whole the guilty (guilt) of the accused is overwhelmingly proved and beyond any reasonable doubt it was by his act that the deceased was intentionally shot and killed. There will be a conviction under Section 221 of the Penal Code.”
He then sentenced him to death.
On appeal before us Mr. F. O. Akinrele, the learned counsel for the appellant said that he had nothing to urge in favour of the appellant. On the evidence before the High Court and the findings of the learned trial Judge we are of the view that he had come to a correct verdict. For these reasons we dismissed the appeal.
We observe with some concern the period which the appellant spent in custody between his arrest which was sometime in April, 1969, and his trial at the High Court, Maiduguri which commenced on 14th April, 1971, a period of about two years and two months. We have had occasion in the past to draw attention to this unjustifiably long period of keeping accused persons in custody awaiting trial. In this appeal there is nothing in the record explaining or justifying the long delay.
We wish that this situation should be brought to the notice of the authorities concerned in order to obviate any recurrence. We also wish to re-emphasise that it is of the essence of criminal justice, especially in a capital offence, that there should be a speedy trial.
Other Citations: (1972) LCN/1461(SC)
