Nababa Tubale V. The State (1972)

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A. FATAYI-WILLIAMS, J.S.C. 

When we dismissed this appeal at the hearing on 29th May, 1972, we indicated that we would give our reasons for doing so later. We now give those reasons.

On the 10th of January, 1972, Nababa Tubale was convicted of culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code and sentenced to death by Hassan, J., in charge No. NWS/26c/71 in the High Court of the North-Western State sitting at Sokoto.

The case for the prosecution may be summarised as follows.  On 26th May, 1970, at about 9 p.m. Sule Majidaji  (P.W. 6) saw the room of a woman named Nunu at Tubale Village in Isa District on fire. Sule Majidaji, accompanied by one Isa Na Sade (P.W.7) and one Jarbri, (P.W.8), went to Nunu’s room. There, outside the room, they saw Nababa Tubale (the accused) attacking Nunu with a cutlass. He was cutting her “all over her body.” On seeing the three men, the accused ran away. They pursued him and overtook him at the nearby mosque. Alhaji Umaru (P.W.10) one of the village elders, was in the mosque when the accused was caught there by his pursuers. Alhaji Umaru asked the accused why he had attacked and “killed” Nunu; the accused replied that he “killed” Nunu  because Nunu had killed Dan Isa and Yarisa. On hearing this, Alhaji Umaru instructed Majidaji and his companions to take the accused to the house of the Mogaji of the village which they did.

Majidaji then returned to Nunu’s room where he noticed that, although Nunu was still alive, she had multiple wounds on both sides of her waist, below her abdomen, on her head, and on her back. Isa Na Sade (P.W.7) also returned later to Nunu’s room but by this time Nunu was dead.  He also saw the multiple injuries on Nunu’s body. Later that morning, one Mamman Na Magaji  (P.W.9) picked up a cutlass (Exhibit 1) from the grass behind the mosque which he gave to the Magaji to whom the accused had been taken. The cutlass was later handed over to P.C. Tukur Abubakar (P.W.3), the police constable who later investigated the incident.

The following day, that is, 27th May, 1970, one Balarabe Tumbawal (P.W.1) a local Authority Dispensary Attendant of about sixteen years experience, went to Tubale to examine Nunu’s body which was identified to him by Mamman Na -Magaji (P.W.9). P.W.1 described what he saw as follows:-

“I found several injuries on her body. These injuries were on her forehead, right side of the neck, on the right shoulder, on the right side of the wrist, on the back, and on the occipital side. There was dry blood around the injuries. The length of the injury on the right side of the neck measured about three and a half inches. The forehead injury was about two inches in length. The shoulder injury was about two inches in length. The back injury was just like a bruise.”

After examining the body, P.W.1 told Nunu’s relatives to keep it until the police arrived.

The police arrived on 28th May, 1970, a day after the examination of the body by P.W.1. On that day, P.C. Tukur Abubakar (P.W.3) after due investigation, arrested the accused and brought him to the police station at Gusau where, after he had been charged and cautioned, the accused made the statement (Ex. 3A) in which he said inter alia as follows:-

“I Nababa Tubali I know that Nunu has bewitched my mother and father, relative, and daughter, and because of the killing of the daughter that is why I cut her with “ADDA’ cutlass on the shoulder, the back of her head and some four places which I could not remember them, and before I could get her I first put fire on her room then after I finished this work I went to mosque showing my body where Isah my friend came and met me, then they took me to Chief house – ‘Magaji’ of our town Tubali that’s all I can say.”

Eight months later, on 22nd February, 1971, to be precise P.W.3 took the accused to one Alhaji Aliyu Sokoto (P.W.4), an Area Court Judge who is also a Justice of the Peace to whom the accused made another statement (Ex. 4A). In this second confessional statement, the accused confirmed what he had earlier said in his statement (Ex. 3A) and stated that because the deceased killed his mother, daughter, and brother, he set fire to her room on the night of 25th May, 1970, but that the deceased was not in the room at the time. As he was coming out of the room he saw the deceased near the Granary. There he attacked her with a matchet until she fell down. He then ran away but was pursued and caught by his friend Isa near the mosque. Isa then took him to the house of the Magaji of the village from where he was taken to Shinkafi and then to Gusau.

The accused did not give evidence in his defence nor did he call any witnesses to testify on his behalf.

In convicting the accused of the offence charged, the learned trial Judge found as follows:-

“Both in Exhibits 3 and 4 (English translations are Exhibits 3A and 4A) the accused has admitted to inflicting matchet or cutlass wounds on Nunu. This admission of the accused is uncontradicted and I accordingly find as a fact that he did so. There is the evidence of P.W.1 which I accept that Nunu was dead on the 27th May, 1970, and I have no hesitation in finding on the evidence before me that the prosecution have proved beyond reasonable doubt the death of Nunu.”

In dealing with the cause of Nunu’s death, the learned trial Judge said-

“I am quite satisfied that it was the accused that inflicted injuries with a cutlass on parts of Nunu’s body. There is the evidence of several prosecution witnesses of seeing multiple injuries on Nunu, and what is more confirmed by the accused that he cut Nunu with a matchet or cutlass. There is also the undisputed evidence of the nature, number and location of the injuries on Nunu’s body which I have already found caused her death………
The nature of the act itself speaks and manifests the accused’s intention, and the innumerable injuries found on Nunu’s body leave me in no doubt that the accused intended to kill the deceased. I accordingly find that the prosecution have proved beyond reasonable doubt that the act of the accused that caused the death of the deceased was done with the intention of causing death.

Finally I would mention that the accused in his statements said that he cut Nunu with a cutlass because he believed that it was Nunu who bewitched his mother and daughter. In law this could afford no justification for the brutal and savage manner in which the accused cut Nunu.”

Before us on appeal, Mr. Gagi who appeared for the appellant submitted that the learned trial Judge erred in law by relying on the two confessional statements in convicting the appellant in spite of the contradictions and inconsistencies in the evidence of both P.C. Tukur Abubakar (P.W.3) and Alhaji Aliyu Sokoto (P.W.4).

Other than the difference as to the date on which the second confessional statement (Ex. 4A) was taken by P.W.4, we are unable to discern any material inconsistency in the evidence of these two witnesses.

As a matter of fact, P.W.3 admitted that he made a mistake as to the dates on which the appellant made the first statement (Ex. 3A) to him, and the second statement (Ex. 4A) to P.W.4. In any case, as Mallam Aliyu Salman, Ag. Senior State Counsel (North-Western State) who appeared for the respondent had rightly pointed out, even if the two confessional statements were expunged from the record, there would still remain the overwhelming evidence of the eye-witnesses, which the learned trial Judge accepted, of the brutal attack on Nunu by the appellant on the night in question. Added to this is the testimony of Alhaji Umaru (P.W.10) who said that the appellant informed him that “he killed Nunu because she killed Dan Isa and Yarisa.”

As we saw no merit in any of the points urged upon us, we dismissed the appeal.

SC.107/1972