Tambari Maijamaa V. The State (1964)
LawGlobal-Hub Lead Judgment Report
Per BAIRAMIAN, J. S. C
This appellant and another person who has not appealed were convicted by Bate, J. of culpable homicide punishable with death for causing the death of Mohammadu Argumma Isawa at Kawari on 9th August, 1961.
The deceased was a Native Authority policeman; he drove out of the market at Kawari a number of Fulanis to stop them fighting; they came back together and struck him with their sticks a number of blows on the head – eight blows on the head which broke his skull, and a blow or two elsewhere on the body – and he died. The assailants were twenty or more, and they made a concerted attack; the appellant and his co-defendant were among them, and each struck the deceased with a stick. The learned trial Judge states in his judgment (at p.19, 1.32)-
“The evidence does not enable me to say who struck the fatal blow or blows. But section 79 provides that-
‘When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.’.. .
There is no direct evidence with regard to the first accused (namely the appellant) that he discussed any plan to attack Argumma but the inference is inescapable from the evidence of the second and third prosecution witnesses that both accused must have done so and that they acted with a common intention. The attack on Argumma was a criminal act and both accused, since they took part in it, in furtherance of the common-intention of the attackers are by reason of section 79 liable for that act.
The act constitutes culpable homicide punishable with death within the meaning of section 221 of the Penal Code. It must be apparent to the meanest intelligence that death would be the probable and not only a likely consequence of an attack by over twenty people armed with sticks. The two accused and other people who attacked Argumma must have known this or had reason to know it.”
The provision in section 221 reads as follows:
“221. Except in the circumstances mentioned in section 222 culpable homicide shall be punished with death
(a) if the act by which the death is caused is done with the intention of causing death; or
(b) if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.
Explanation. Whether death was the probable or only a likely consequence of an act or of any bodily injury, is a question of fact.”
Section 19 explains the difference between a likely and a probable consequence: a likely consequence is one which would cause no surprise to a reasonable man; a probable consequence is one which would be considered by a reasonable man to be the natural and normal effect of the act.
Thus a person is guilty of capital homicide if he does an act which kills with the intention of killing, or if he knew or had reason to know that death would be the probable consequence of his act. Consequently if two or more persons do acts together which cause death with the intention of causing death, they are guilty of capital homicide within paragraph (a); or if two or more persons in furtherance of their common intention do acts which they knew or had reason to know would cause death as the probable consequence of their acts, they would be guilty of capital homicide within paragraph (b).
That seems to be the reasoning followed by the learned trial Judge, who was of the view that section 79 applied to the present case. We agree with his reasoning and his view, and need say no more.
The appeal of Tambari Maijamaa from the conviction and sentence passed in the High Court of the Northern Region on the 12th December, 1963 in Charge No. JD/91C/1963 is dismissed.
Other Citation: (1964) LCN/1128(SC)
