Ibrahim Bature Vs The State (1994)

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ONU, J.S.C.

The appeal herein is sequel to the trial and conviction of the appellant by the High Court of Bauchi State sitting in Bauchi (per Ike Okoye, J.) on 16th September, 1986 for the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code. The facts of the case are briefly that on the 14th day of February, 1985 at Kumo in Bauchi State, the appellant then walking on a road in company of other Fulanis, at about 10.30 p.m., had an altercation with the deceased, police constable Sabaru Garba, then in company of one Aishatu Alhassan. That the appellant stabbed him (the deceased) after both men engaged in a struggle and in the ensuing fight with a knife to his stomach, knowing that death would be the probable consequence of his act. The prosecution called seven witnesses in all while the appellant testified and called one witness for the defence. The trial court, in a well considered judgment, convicted and sentenced the appellant to death.

Being dissatisfied with the decision, the appellant appealed to the Court of Appeal, Jos Judicial Division, (hereinafter referred to as the court below) which, in a reserved judgment, dismissed the appeal on 15th May, 1991. It is against the said judgment that the appellant has now appealed to this court after seeking and obtaining the leave of court for an extension of time to do so on 8th May, 1992.

On 4th November, 1993 when this appeal came up for hearing before us, learned counsel for the appellant, Mr. James, moved his application for leave to argue additional grounds of appeal, to deem those grounds as duly filed and served, extension of time within which to file appellant’s brief already filed and to deem same as properly served. As there was no opposition from Mr. Jauro of counsel to the respondent, the prayers were accordingly granted. Mr. Jauro, on behalf of the respondent then withdrew an application dated 28th September, 1993 which he said was not well grounded. As there was no objection thereto from Mr. James. That application was accordingly struck out. It was at that point in time that Mr. Jauro urged the court to deem the respondent’s brief filed within time to be deemed as duly filed. The court having acceded to his request and both briefs having been hitherto exchanged between the parties, the hearing of the appeal proper was then embarked upon.

On behalf of the appellant in his brief, two issues – a primary and a secondary issue – were submitted for our consideration viz:

1. Primary Issue:

Was the trial High Court which heard this case in the first instance competent to entertain it; and

2. Secondary Issue:

Having regard to the evidence before the trial High Court particularly exhibits A, A1, B, B1 (i.e. the Statement (sic) of the accused) especially when tested as to their truth by examining them in the light of other evidence, were the learned justices of the Court of Appeal right in affirming the judgment of the trial High Court.

The respondent on the other hand in his brief, formulated three issues for determination, all of which in essence, boil down to and coincide with the appellant’s two. For, while respondent’s issues 1 and 2 overlap appellant’s issue 1, its Issue 3 is identical with appellant’s secondary Issue i.e. 2. They are:-

1. Whether leave to prefer a charge against the accused person was granted by the trial High Court as required by section 185(b) of the Criminal Procedure Code.
2. Whether failure to grant the leave vitiates the proceedings and renders it a nullity.
3. Whether the confession by the appellant in his confessional statement to the police is direct, positive and unequivocal and satisfied the test laid down in R. v. Obiasa (1962) 2 SCNLR 402; (1962) 1 All NLR 651.

In the consideration of this appeal, I intend to stick to the appellant’s two issues as submitted.

Issue 1

In the written submission in the appellant’s brief, the kernel of learned counsel’s contention is that the High Court which heard this case at first instance was not competent to entertain the case. He therefore argued, that it is common ground that the offence for which the appellant as accused was tried is triable by the High Court. Thus by section 185(b) of the Criminal Procedure Code Cap.30 of the Laws of Northern Nigeria, 1963 applicable to Bauchi State, “No person shall be tried by the High Court unless a charge is preferred against him without the holding of a preliminary inquiry by leave of a Judge of the High Court.” The procedure for obtaining such leave of a Judge, he maintained, is contained in the criminal procedure (Application for Leave to prefer a charge in the High Court) Rules. 1970. He then argued that it is common ground in this case on appeal that the appellant was not committed for trial to the High Court after the holding of a Preliminary Inquiry. It is therefore clear, he contends, that the condition precedent to the exercise of jurisdiction to try the appellant by the High Court must be obtained – a requirement which is not only mandatory by the use of the word “SHALL” but is also fundamental in that it goes to the root of the entire proceedings. After citing in support thereof the provisions of section 131(1) of the Evidence Act, learned counsel submitted that applying those provisions to those of section 185(b) of the Criminal Procedure Code (Ibid). It becomes clear that when leave of a Judge of the High Court is sought and obtained, evidence of same can only be by reference to the order granting the leave which must ordinarily contain the name of the Judge that grant it as well as the date it was granted. He therefore maintained that looking at the record of appeal herein, pages 1 to 17 contain the application of leave to prefer the charge against the appellant under section 185(b) of the Criminal Procedure Code (Ibid) but that there is nothing to show that the leave sought was granted and if so by whom and on what date. He therefore submitted that the High Court which heard this case had no jurisdiction to entertain it by reason of non-compliance with the condition precedent to the exercise of its jurisdiction. Thus, it is further contended, the court below erred in law in affirming the decision of the said High Court, which to all intents and purposes, amounts to a nullity. Reliance was placed on the cases of Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587; Skenconsult Nig. Ltd & Ors. v. Ukey (1981) 1 S.C.6 at 18 approving Macfoy v. U.A.C. Ltd. (1962) A.C.152. Should the submission succeed added learned counsel, that is the end of the appeal since the competence of a court to try a case is fundamental.

The oral submission of learned counsel at the hearing of the appeal on 4th November, 1993 herein before alluded to, took the same trend as in his written brief. Suffice it to say, that the following dialogue which took place between James, Esq. learned counsel for the appellant and this court, sheds light on the matter as follows:-

Court to Mr. James:- Have you read page 1 of the Record of proceedings (bottom of page) to see a signature there signifying approval to prosecute the case

James: – I have