Katsina Native Administration V. Abdullahi Kogo & Ors (1938)
LawGlobal Hub Judgment Report – West African Court of Appeal
Murder, contra. Mohammedan Law—” Lausau” and ” Kasanzah” —Case remitted by High Court to Native Court for further proof—Judgments thereafter confirmed by High Court.
Held: Procedure correct and appeals dismissed.
There is no need to set out the facts. C. N. S. Pollard for Crown.
W. E. Akaje-Macaulay for first Appellant.
Second Appellant not present.
The following joint judgment was delivered :—
KINGDON, C.J., NIGERIA, CAREY AND GRAHAM PAUL, JJ.
In this case the two appellants, together with a third man named Buzu dan Dangi, were charged before the Court of the Emir of Katsina with the murder of one Mayana. The first and third accused pleaded Not Guilty and the second accused, now the second appellant, pleaded Guilty. Both the second and third had previously confessed. The Court found all three guilty and sentenced them to death. In passing sentence the Court recorded-
” The murder is proved by the statements of the thirty ” witnesses and by the confessions of Momman ” (Zagi) Zara, and Buzu dan Dangi, the accomplice.. ” of Abdullahi Kogo.”
The present two appellants appealed from their convictions to the High Court, and the appeal was heard by Brooke, J., a Judge of exceptional knowledge and experience in the Mohammedan Emirates, assisted by two eminent Mohammedan Assessors. After hearing the appeal the Assessors gave their opinion as follows :—
” (1) Muliammadu Lawal’s opinion :—
” Buzu is not a witness against Abdullahi Kogo : his ” evidence is tainted. The same applies to ” Mamman Zagi Zara. First appellant did not ” confess. There should therefore have been ” two witnesses to complete full proof of the ” actual at or of his confession. Therefor ” the evidence which is that of a number uf
” witnesses who were not eye witnesses only ” reaches the stage of ” lausu ” and there ” should be the oath Kasamah. This does not ” establish ” Kisan gila ” : this can only be ” established by two witnesses. Full proof ” must still be completed by the oath Kasamah. ” No Mohammedan Court in this country has ” changed this procedure.
” (2) M. Alhaji’s opinion :—
” No more than the stage of ” lausau ” has been ” reached. The conjuratores should have been ” called upon to take the oath Kasamah. This ” is most important and is so regarded by all.”
The Judge took the same view and after delivering a fully considered judgment made the following order-
” Case referred to the Court below for full proof to be
” established by the oath of the conjuratores and if
” so established this appeal should stand dismissed.”
The conjuratores duly took the necessary oaths in the Emir’s Court and the High Court then gave a final judgment upholding the convictions.
From that judgment the present two appellants now appeal to this Court.
The amended grounds of appeal filed by the first appellant are as follows :—
” 1. Misdirection.—(i) That the learned Judge of the High Court ” was wrong in law in directing, on an appeal, that the ” witnesses in the Court below should take the oath ” Kasamah ‘ to establish full proof according to Mohammedan ” Law after the conviction of the appellant.
- That the learned Judge of the High Court having ” found as a fact that one of the eye witnesses did make ” conflicting statements should have directed the acquittal ” the appellant.
- That the learned Judge of the High Court was ” wrong in holding that the oath of the Conjurateres ‘ was ” necessary, it having been established that the mortal wounds ” were inflicted by one of the accomplices.
” 2. Misreception.—That the further evidence taken after the ” trial and conviction of the appellant was misreceived.
” 3. Verdict.—That the verdict was against the weight of ” evidence.”
Grounds 1 (i) and 2 are in substance the same. The power to follow the course to which exception is taken appears to be conferred by section 36 of the Native Courts Ordinance, 1933, and by the combined effect of Order 43 rule 7 and Order 44 rule 7 of the Protectorate Courts Rules, 1934.
These grounds therefore fail.