Mahammadu Bello V The State (1968)

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COKER, J.S.C.

The appellant was at the High Court Maiduguri, convicted of culpable homicide punishable with death under section 221 of the Penal Code. The case against him was that on or about the 4th day of March, 1967, at Garga Village, in Damaturu District of the North Eastern State he shot one Garba Dan Mai with an arrow on the back and thereby caused his death. The appellant did not himself give evidence at his trial, but learned counsel who represented him submitted firstly that a confessional statement alleged to have been made by him should not be accepted as reliable by the court and secondly that as there was no eye-witness to the shooting of the arrow on the deceased the court should consider the evidence insufficient to support the charge.

A dispensary attendant, Kagu Maina, who saw the corpse of the deceased a few days after his death testified to the presence in the middle of his back of a wound which looked like that caused by an arrow and measuring about two inches deep and a quarter of an inch wide. He also stated that such a wound could have caused his death. Another witness, Ado Sarkin Pawa, with whom the deceased had been sitting shortly before his death, saw his corpse immediately after he was shot with an arrow stuck to his back; the witness also at the same time saw the appellant behind the corpse of the deceased holding a bow and a quiver of arrows. Another villager also gave evidence that she saw the corpse of the deceased where he fell and she virtually agreed that death of the deceased was instantaneous.

The father of the appellant, who testified for the prosecution stated that earlier on the evening of his death he had seen the deceased come into his (the witness’s) compound and on greeting him the deceased abused his “mother’s private parts.” He thanked him and went off but he was not annoyed. His son, the appellant, was not present on the occasion. After shooting the deceased the appellant returned to his house and kept himself inside. He was subsequently arrested by one of the village farmers, Bulama Sale Garba, and handed over to the police. He then made a statement which was admitted in evidence as exhibit ‘1’. The statement is as follows:-

“On Saturday 4/3/67 at about 16.00 hours in the evening I was sleeping when I heard women in our compound crying then I asked what are they crying for then they said Garba abused (sic) my father that is why they were sitting down talking from there I returned to house carried my quiver and bow, came to them when I came I did not talk to them I pulled out my arrow and shot him at the back then I went into the house and sit down, from there Lamido and his sons came and arrested me even I saw Garba’s death only one shot that caused his end, that was what killed him. That is all”.

The learned trial judge concluded that the statement exhibit ‘1’, was voluntarily made by the appellant and accepted it as his own account of the incident and observed that in it the appellant “does not excuse his act”. He further stated in his judgment thus.

“I find cause of death, fact of death, identity of deceased, place and approximate time of death, identify of killer, lack of justification, all proved beyond any doubt. I find accused guilty”.He accordingly convicted him as charged.

Before us learned counsel for the appellant submitted that once the statement, exhibit ‘1’, is accepted, as indeed it was, the court should have found provocation established and should not have convicted the appellant under section 221 but of the lesser offence of unlawful killing not punishable with death. Counsel referred us to the case of R. v. Edache (1962) N.M.L.R. 56 where it was held in effect that there are circumstances In which words alone could amount to such provocation as to justify a verdict on a reduced offence.

We are of the view that no circumstances exist in the present case to justify such a course of action. In this case, besides, the abusive words complained of were not given in evidence and it is significant that the appellant was not present when it was alleged by his father that the deceased abused him. In those circumstances we see no basis for the contention that the appellant acted under such provocation as on the spur of the moment would deprive him of the necessary self-control and the learned judge was right in taking the view that there was no evidence justifying a reduction of the offence.

Learned counsel for the appellant further argued that the judgment did not com-ply with the provisions of section 269(2) of the Criminal Procedure Code. The section reads:-

“269 (1)

(2) If the judgment is a judgment of conviction it shall specify the offence of which and the section of the Penal Code or other law under which the accused is convicted and the punishment to which he is sentenced”.

Counsel did not specify which of the ingredients of the subsection had been infringed, but seemed to argue on the basis that the including portion of the judgment should contain or repeat those facts.

Section 269(2) does not say this, and it will be a sufficient compliance with it In the judgment the court has specified the facts to which the subsection refers. It is needless to say that the judgment in this case does contain all these facts. We do not agree that this point was well made against the judgment.

For these reasons we dismissed the appeal at the hearing on the 25th November, 1968.

Other Citation: (1968) LCN/1570(SC)