Umaru Buyu Vs The State (1972)

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ELIAS, CJN.

The accused was convicted by Hague, Ag. J., at the High Court, Maiduguri, on October 18, 1971, of the culpable homicide of Jauro Kadiri on or about October 10, 1969, at Dunkurumi village, in that he unlawfully caused the death of the said Jauro Kadiri by hitting him with a stick on his face and skull contrary to Section 221 of the Penal Code. On May 26, 1972, we dismissed his appeal against the conviction and now give our reasons for so doing.

According to the prosecution, one moonlit night about two years previous to the date of trial, the deceased was in front of his house after a meal, with a number of other persons, when the accused, his son-in-law who had apparently a grudge against him because he thought that his father-in-law was about to dissolve the marriage between him and his daughter, came along carrying a bamboo stick with which he beat the father-in-law who was then lying asleep.

The 3rd P.W., Manu Lafdo, testified that “he was sure it was accused who had struck Jauro Kadiri”, that “he was carrying a bamboo tree”, that he “knew him well and the moon was almost full” and that he “heard the sound of blows and saw accused beating Jauro who, after being struck, tried to rise but fell back.”

The 4th P.W., Musa Dunkurumi, also gave evidence that he saw Jauro struck by the accused and agreed in cross-examination that the deceased had lodged a complaint (with an Area Court Judge) concerning his daughter’s marriage to the accused. The accused’s wife, Toka Jauro, who although the wife of a potentially polygamous marriage was a competent witness for the prosecution, gave evidence to the effect that, on the night in question, she was bringing water out of the house to give to her father when some 10 or 12 feet away she saw the accused strike her father, cutting his head on and near the right ear. This witness also admitted that her father wanted to dissolve her marriage with the accused contrary to the latter’s wishes, and that she herself was in favour of divorce because the accused had beaten her four times. According to the 7th P.W., P.C. Baba Ada, Jauro Kadiri, whom he had known for some ten years previously, died on October 24, 1969. He further testified as follows:-

“When asked by Cpl. Adamu where he had gone accused replied “I went to Hamman Kojalawa’s house” and he agreed he had taken a stick. Accused then produced from his house a long and thick bamboo stick which had been received in evidence during this trial and marked ‘Exhibit A’.” Dr. J.M. Malhatra, who conducted a post-mortem examination on the deceased on October 26, 1969, said he was of the opinion that the deceased died the previous day “as the body was still fresh.”

He further said

“Apart from a fractured jaw bone on the right side, there were swellings on the right parietal and temporal regions of the skull. There was a complete fracture of the right temple and a small piece of bone had separated from the skull. Blood was observed on the brain surface and the cause of death was given as fracture of the skull with shock and haemorrhage, all the injuries being consistent with having been caused by a heavy, blunt weapon, except the cut on the right ear, which was attributed to something sharp.”

The learned trial Judge observed:

“These last mentioned injuries are unexplained, but I find without hesitation that the fatal injuries were inflicted by a blunt weapon such as Exhibit A”.

Throughout the trial, the accused denied responsibility for his father-in-law’s death claiming in his statement to the police that, at the material time, he was at Kojalawa with Hamman Kadiri, the 6th P.W., who testified that he saw accused at Kojalawa on returning home after dark, although there was moon light.

The 6th P.W. also testified that the accused asked for Buba, the 6th P.W.’s junior brother who was not there then, that he and the accused conversed together and had some food before the accused went away, carrying nothing with him. The accused said that Kojalawa was about 11/2 miles from his home, that he left Hamman’s farm at about 11 p.m., that he did not want to be separated from his wife but that he had had nothing to do with his father-in-law’s death. The learned trial Judge’s finding are as follows:

“I accept that accused visited 6th P.W., on the evening his (accused’s ) father-in-law was fatally clubbed with a blunt instrument. I do not however accept that evidence of alibi prevails over the compelling and utterly convincing evidence given by 2nd, 3rd, 4th and 5th prosecution witnesses. I am satisfied on overwhelming evidence that after leaving Kojalawa accused took his stick (Exhibit A) and went to his father-in-law’s house with the fixed intention of beating him to death and did so. The prosecution has in all respects discharged the burden of proof which lay upon it. The accused was motivated by hatred of his father-in-law because of the latter’s effort to break up his marriage. Having observed the demeanour of the accused in the witness box I find him to be a person lacking in intelligence and imagination. This largely accounts for his stupidity in taking his father-in-law’s life while witnesses were present on a night when he could be (and was) identified by moon light.”

Mr. R.O. Gaji, counsel for the appellant, sought and was granted permission to file and argue three additional grounds of appeal, the four grounds including the original being as follows: “(i) that the decision is unreasonable and cannot be supported having regard to the evidence: (ii) that the lower court erred in law in treating and relying on the stick referred to in the judgment of the lower court as an exhibit when it was neither tendered nor admitted as an exhibit during the proceedings; and this was to the detriment of the appellant; (iii) that the learned Judge should, in law, not have allowed that 1st witness for the prosecution to refer to and use the type -written notes not made by him, the witness, contemporaneously with and at the autopsy on the body of one Jauro Kadiri, and the court thereby erred in law in its judgment on the evidence based on the typed notes; and (iv) that the learned Judge erred in law in holding on the evidence before the court that the prosecution in all respects discharged the burden of proof which lay upon it. Mr. Gaji chose to argue grounds (ii) to (iv) first. He contended, firstly, that the learned trial Judge should not have relied on the stick which was neither tendered nor admitted as an exhibit and, secondly, that P.W.1 should not have been allowed to refer to the type-written notes which were not made by him contemporaneously with and at the autopsy on the body of Jauro Kadiri, since if he was to use the notes to refresh his memory, he must comply with Section 251 of the Evidence Law.

We think, however, that the learned counsel’s objection to the treating of the stick as an exhibit would have been valid had the defence itself not put it in evidence and cross-examined a prosecution witness on it. We also think that his second objection that the type-written notes could only be used in compliance with Section 251 of the Evidence Law is not well-founded, in view of the provision of Section 249 of the Criminal Procedure Code which reads:

“249 (1) The evidence of any medical officer or registered medical practitioner taken on oath before a court in the presence of the accused may be read in evidence in any inquiry, trial or other proceeding under this Criminal Procedure Code although he is not called as a witness.

(2) The court may if it thinks fit summon such medical officer or registered medical practitioner to appear before it as a witness.

(3) (a) A written report by a medical officer or registered medical practitioner after he has examined any person or the body of any person may at the discretion of the court be admitted in evidence for the purpose of providing the nature of any injuries received by such person or where such person had died, the nature of the injuries received by such person and, where possible, the physical cause of his death.

(b) On the admission of such report the same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the court.

(c) If by reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical officer or registered medical practitioner shall attend and give evidence in person the court shall summon such medical officer or registered medical practitioner to appear as a witness.”

Finally, Mr. Gaji submitted that the prosecution had failed to discharge the burden of proof laid upon it by Section 137 of the Evidence Law of the Northern States. On this point, we agree with the learned trial Judge’s conclusion that, on the evidence before him, the prosecution has proved the guilt of the appellant beyond reasonable doubt.

We accordingly dismissed the appeal.

Other Citation: (1972) LCN/1414(SC)