Madu Manama V. Bornu Native Authority (1964)

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ADEMOLA JSC

The appellant was convicted in the Shehu of Bornus Court of the offence of culpable homicide punishable with death under Section 221 (a) of the Penal Code: he was sentenced to death. His appeal to the High Court of the Jos Judicial Division failed and he has now appealed to this Court

On the facts, there is no merit in the appeal; the appellant was found guilty of murdering his wife who he alleged had stolen his bag containing money and a gown. Counsel for the appellant did not seek to argue the appeal on the facts; he filed and argued only one additional ground of appeal which is as follows:-

‘The trial of the appellant was a nullity on the basis that the witnesses for the prosecution neither took oath nor made affirmation before they gave their evidence.’

The record of proceedings in the Shehus Court clearly shows that none of the six witnesses (including the accused) who gave evidence before the Court were at any time made to take oath or made affirmation. It was submitted this is contrary to the spirit of the Common Law and against Sees. 229, 230 and 39 I of the Criminal Procedure Code, none of which dispense with the taking of an oath.

With regard to the argument about the Common Law, it is enough to say that the Shehu of Bornus Court is not bound by the Common Law of England and the arguments on this point need no further consideration by this Court. The Shehu of Bomus Court is a Grade A Native Court and has power to try any offence under the Penal Code (see Sec. 12 of the Criminal Procedure Code and Appendix A).

Sec. 5( 1) of the Criminal Procedure Code Law enacts that ‘All offences under the Penal Code shall be investigated, inquired into and otherwise dealt with according to the provisions contained in the Criminal Procedure Code.’ Counsel referred us to the Provisions of Sections 229, 230 and 391 of the Procedure Code and argued that as these provisions were not observed, and the witnesses before the Court were not sworn, the trial was a nullity.

Sections 229 and 230 of the Criminal Procedure Code are as follows:-

‘229 (1) Every witness giving evidence in any inquiry or trial under this Criminal Procedure Code may be called upon to take an oath or make a solemn affirmation that he will speak the truth.

(2) The evidence of any person, who by reason of youth or ignorance or otherwise is in the opinion of the court unable to understand the nature of an oath, may be received without the taking of an oath or making of an affirmation if in the opinion of the court he is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.

230. No witness, if he refuses to take an oath or make a solemn affirmation, shall be compelled to do so or asked his for so refusing but the court shall record in such a case the nature of the oath or affirmation proposed, and the fact of the refusal of the witness together with any reason which the witness may voluntarily give for his refusal.”

It is clear that these two provisions of the code relate to trials in the High Court and the Magistrates Courts and have no reference whatever to Native Courts. So, they are not applicable in this case.

Sec.391, however, refers specifically to trials in the Native Courts. The relevant sub-sections are(1) and (2), and are as follows:-

“391. (1) In taking evidence in any criminal matter a native court may test the credibility of any witness by examination.

(2) Notwithstanding the provisions of this Criminal Procedure Code or of any other written law, a native court may in its discretion invite any witness to take an oath as to the truth of his evidence or any part thereof either before he gives such evidence or any part thereof either before he gives such evidence or at any subsequent stage of the proceedings and if such witness refuses to take any such oath the court may draw such inference from such refusal as it thinks just.”

Counsel for the appellant submitted that the correct interpretation to be applied to sub-section (2) above is that it is obligatory on the part of the Native Court to administer the oath to witnesses before it, but that the oath need not necessarily be administered before the witness gives his evidence-it may be administered before or at any subsequent stage of the proceedings.

We are unable to agree with Mr. Cole’s view of the interpretation of Sec. 391(2) of the Criminal Procedure Code. The section, in our view, gives a discretion to the Native Court to invite a witness, “either before he gives his evidence or at any subsequent stage of the proceedings’ to take an oath as to the truth of what he was going to say or what he had said: again a witness may be invited to take an oath as to a particular portion of his evidence only.

It is not obligatory on the part of the Court to do so; it is a matter of discretion for the court whether or not it will invite the witness to take an oath. It must be made clear, however, that the matter is not left to the whims of the Court, but it is discretion to be exercised in appropriate cases.

This ground of appeal must therefore fail and the appeal before us is hereby dismissed. 

Other Citation: (1964) LCN/1147(SC)