Muhammadu Dan Juma Dasi V The State (1970)

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LEWIS, J.S.C. 

On the 16th November, 1970, we dismissed this appeal from a conviction of culpable homicide punishable with death contrary to section 221 of the Penal Code by Bate, S.P.J., on the 4th June, 1970, in the High Court of Benue Plateau State sitting at Jos in Charge No. JD/IC/70 and we now give our reasons for so doing.

The learned trial Judge carefully considered the evidence before him and accepted that the evidence of the prosecution witnesses established that on the 9th November, 1969, the accused in Jos killed a boy Isiaku aged about 12 years with a sword. The mother (2nd P.W.) of the deceased was one such witness and she said that she saw the accused run upstairs with a sword in his hand to her apartment where her son Isiaku was and later saw the accused running down and she went to the apartment and found her son dead from a bleeding wound.

Laruba (3rd P.W.) who lived in the same compound was another witness whose evidence was accepted by the learned trial Judge and she said that she saw the accused with a sword in hand enter the room where there were two children one of whom was Isiaku. Finally, Juma a school girl aged 6 who gave unsworn evidence which the learned trial Judge accepted said that the accused entered, with what she described as a long knife, the room next door to her where Isiaku was writing and later she saw the accused come down with blood on the long knife. Yet another prosecution witness (5th P.W.) gave evidence that on the day in question, namely, the 9th November, 1969, the accused threatened him with a sword.

The accused admitted taking his sword in self- defence as he said to the 5th P.W. but denied hitting him with it or using it on the deceased. The 7th P.W. a police constable found the accused on the day in question cutting a bicycle with a sword but he managed to take it away from him and took the accused to the police station. A doctor (1st P.W.) examined the corpse of the deceased on the 10th November, 1969, and found that the deceased suffered a deep cut considered with a cut inflicted by a sharp edged instrument and that death had followed from loss of blood and shock.

A Doctor Fom was called as a defence witness but he said that the accused would know that when he was killing the deceased he was doing wrong and that he was not insane at any rate shortly before his trial. In this regard the learned trial Judge considered and rejected a defence of insanity. The learned trial Judge also considered whether the accused suffered any provocation and held that he received none from the deceased and that even if, as the accused alone said, he had been teased and abused by the 2nd P.W. and her children this could not justify the killing of the deceased with a sword as that would have been entirely disproportionate to any such provocation.

On the evidence the learned trial Judge accordingly convicted the accused and Mr. Thanni was unable to urge anything before us on his behalf. He did however draw attention to the fact that according to the record after convicting the accused the learned trial Judge sentenced him to death.

He did not however according to the record comply with section 273 of the Criminal Procedure Code and direct that he be hanged by the neck till he be dead. We had cause to deal with such a situation previously in Gano v. The State SC.182/68 of the 29th November, 1968, here in Kaduna when we indicated that the learned trial Judge in that case should have given that direction but that as that was the only sentence that could have been passed the failure to do so was doubtless due to the inadvertence of the learned trial Judge who was not functus officio to correct the error himself.

We accordingly directed that the matter should be brought to his attention so that he might rectify his error and the same will apply here and though we dismissed the appeal on the 16th November, 1970, for the reasons that we have now given, we direct that this matter be brought to the attention of Bate, S.P.J. so that in similar fashion to the case of Gano v. The State (supra) he may add to his judgment the words:-
“The accused shall be hanged by the neck till he is dead.”

SC.206/70