Nafiu Rabiu V Kano State (1980)

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IDIGBE, J.S.C. 

In these proceedings the appellant is one Nafiu Rabiu of Dawaki Road, Nasarawa, Kano and the respondent is the State of kano. We have before us an appeal from a judgment of the Federal Court of Appeal holden at Kaduna (Nasir P., Kazeem and Nnaemeka-Agu, JJCA.,) which allowed the appeal of the State of Kano from the judgment of the High Court of Kano State (Jones, CJ.,) whereby the appellant was discharged and acquitted at the end of his trial, in the State High court, on a criminal charge of culpable homicide (punishable with death) of his wife, Hajiya Fati Mohammadu Nafiu, on the 10th day of May, 1979.

The appellant contends that the Federal Court of Appeal (hereinafter, called the Court of Appeal) has no jurisdiction to entertain the appeal which came before it, and consequently erred in law when by its judgment delivered on the 5th day of May, 1980, it reversed the decision of the High Court of Kano State and convicted the appellant of an offence of culpable homicide (not punishable with death).

I will set out the facts so far as they are material to the issues raised in this appeal. On the 9th May, 1979, the appellant and his wife (Hajiya Fati Mohammadu Nafiu, hereafter referred to simply as “the deceased”), and three of their friends had dinner in the garden of their residence at 13 Dawaki Road Nasarawa, Kano. The District Head of Jahun (P.W.4) one of their guests was the last to leave the residence, and this was between the hours of 10p.m. and 11p.m. P.W.4 in his evidence said that when he left the deceased and the appellant, the former “was quite alright.” This evidence was also confirmed by two employees of the appellant, P. w. 3 (the driver) and P.W.2 (the cook) who said in his evidence, “I left Hajiya Fati in good health, joking………”

There is evidence that when the last of the invitees left 13 Dawaki Road, all other employees of the appellant had retired to their various homes; that is, after P. W.4 (the District Head of jahun) had gone, the appellant and the deceased were the only persons left in the garden. It is pertinent to mention that there is evidence that, at the request of the appellant, P.W.3 who usually kept the key of the only entrance to the premises (i.e. the gate) handed that key to the appellant who offered to lock the gate when the last of the invitees should leave the party. It is in evidence that the only employee of the appellant who lived within the premises (13 Dawaki Road) in the “Boys quarters” is the driver (P.W.3). He had no key to any of the doors leading into the main or principal house (occupied by the deceased and the appellant). P.W. 2 (the cook) had a key that could only let him in from the premises into the kitchen; he had no key that could let him into any other part of the principal or main house.

In the morning of 10th May, 1979, P. W. 2 (the cook) came to the premises at the hour he usually reported for duty, he could not enter as the gate was still locked. He saw P.W.3 (the driver), who normally kept the key to this gate, standing outside the main house but within the premises; he did not have the key to the gate. After waiting for about two hours, the appellant gave to P.W.3 the relevant key; this was about 10 a.m. The appellant was still inside the main house but threw the key to P.W.3 from one of the windows. A little later the appellant called on P.W.2 (who was now within the premises) to open the kitchen door adding that he had misplaced the key to the “front door”, this is, the main entrance into the principal house. Later, appellant came out of the house carrying a brief case and some quantity of “soiled blankets and clothes” which P.W.3, (at his appellant’s request) later placed into the boot of one of his cars (a Peugeot 504). The driver (P.W.3) later, on the instructions of the appellant, drove his other car ( a Mercedes-Benz saloon) to the Kano Airport to make the same (i.e. the car) available to the appellant’s mother-in-law who was, as the appellant claimed, due to arrive in kano from Niamey, by air, that morning. The appellant later drove away in the Peugeot 504 car; however, he told P.W.2 (the cook), before driving away in the Peugeot car, to give to the deceased, who in the meantime was – according to the appellant – still asleep, whatever she required, whenever she woke up. Before he drove away in the Peugeot car, the appellant also gave to P.W.2 the key of the door leading from the kitchen into the lounge and other parts of the main house; it was the first occasion, since the employment of P.W.2 that he had possession of this key. On his return from the Kano Airport P.W.3 reported to the appellant at his office which is located in some other part of kano city; the appellant asked him to take the Peugeot car to a mechanic as it needed some repair. Before taking the Peugeot car to the mechanic the driver P.W.3 examined the boot in order to remove “the soiled blankets and clothes” he had earlier placed there that morning before the car was driven away by the appellant; the soiled blankets and clothes, however, were no longer there.

About 2 p.m. of the same day P.W.8 (another driver in the employment of the appellant) on the instructions of the appellant brought his (appellant’s) children from another part of Kano to the house to call on their mother (the deceased). The children having been let into the house by P.W.2 went into their mother’s room, on the first floor to call on her. Later the children called out on P.W.2 saying that they tried to wake up their mother but she failed to respond to their call. P.W.2 advised that they should all wait for the return of the appellant, who arrived in his Mercedes saloon car shortly after P.W. 2 had given this advice. They all went into the room and discovered that Hajiya Fati Mohammadu Nafiu was dead.

In his judgment the learned trial Judge Jones, CJ., was of the view that the medical evidence on the cause of death was unsatisfactory and did not establish the cause of death. He was unable therefore to find it proved beyond reasonable doubt that the appellant had, as stated in the information, preferred against him, killed his wife by “strangulation”. Accordingly, the appellant was “acquitted and discharged.” As this appeal will, in the end, turn on the reasonable view which can be taken of the medical evidence before the trial court I will deal later in this judgment with that evidence. Dissatisfied with this decision, the prosecutor (the State of Kano) appealed to the Court of Appeal. The main contentions of the appellant in opposition to the respondent’s appeal in that court, as it appears to me from the record, are as follows:-

(1) the prosecutor in Kano State has a right to appeal only on a point of law; he does not have a right of appeal on grounds of facts, or mixed law and facts. The former right is available to him by virtue of sub-section (2) of Section 284 of the Criminal Procedure Code of the Northern States (hereafter referred to simply as “the C.P.C.”) applicable in Kano State and (i.e. together with) sub-section (1) (b) of Section 220 of the 1979 Constitution of the Federal (hereafter referred to simply as “1979 Constitution”). He disagreed with the submission of the respondent (then, the appellant) that a right of appeal on a point of law alone is available to the prosecutor under subsections (1) (a) and (1) (b) of Section 220 of the 1979 Constitution; a right of appeal on grounds of law under sub-section (1) (b) of the Constitution, he submitted, is available only in a non-final decision. According to the appellant, a right of appeal on grounds of facts or mixed law and facts is not available to the prosecutor unless he could bring himself within the provisions of sub-section (a) of Section 222 of the 1979 Constitution. He contended that:

(1) Under the 1979 Constitution there is a general right of appeal (i.e a right of appeal not only on grounds of law but also on grounds of facts and/or mixed law and facts) from a final decision of the High Court, sitting at first instance, only by virtue of the provisions of sub-section (1) (a) of the 1979 Constitution. In Criminal proceedings, such a general right of appeal is available generally to an accused person. it can, he submitted also, be exercised by the Attorney-general of the federation or of a State only by virtue of the provisions of sub-section (a) of Section 222 of the Constitution; and by virtue of the said provisions such a general right of appeal is also available to “any other person or authority” if and when it is specifically assigned to such “other person or authority”, or whenever it can be shown that the exercise of such a general right of appeal by such “other person or authority” has been “prescribed” in any other legislation not inconsistent with the provisions of the 1979 Constitution: and he contended that the provisions of sub-section (2) of Section 284 of the C.P.C. do not in any way qualify as a “prescription” under sub-section (a) of Section 222 aforesaid.

(2) Since none of the grounds on which the State of Kano appealed to the Court of Appeal is one of law, and since, further, the appeal before that court is not one brought “by the Attorney-General” under the provisions of sub-section (a) of Section 222 of the Constitution, the appellant submitted that the appeal is incompetent. In the circumstances, since the Court of Appeal had not the necessary jurisdiction to entertain the appeal, it ought to have been dismissed.

In fairness to their Lordships of the Court of Appeal, I think it is proper to point out, at this stage, that the issue relating to the prosecutor’s right of appeal from a judgment or order of acquittal by the High Court sitting at first instance, was raised incidentally in the course of a challenge made generally on the jurisdiction of the Court of Appeal to entertain the appeal; which challenge in any event, was made rather belatedly. Indeed, both the learned counsel for the appellant and the respondent had on each side argued extensively on matters relating not only to law but also to facts as well as mixed law and facts before learned counsel for the respondent in that court (Cheif Williams) took the points which I have set out above. Not having been taken up in limine, Mr. Kehinde Sofola, learned counsel for the appellant (respondent herein) did not give detailed or effective reply to the submissions thereon by Chief Williams. Their Lordships of the Court of Appeal, therefore, did not have (as we have had in this court) the benefit of a full argument on the issue. In the circumstances, their Lordships of the Court of Appeal were also obliged to deal, in their several judgments, with the arguments on fact as well as mixed law and facts placed before them. Chief Williams has repeated the above contentions in this court; he, however, added more and I will set out and consider them later in this judgment.

However, their Lordships of the Court of Appeal having given due consideration to the above contentions, took the view that the prosecutor in Kano State, and in all states to which the provisions of Section 284 of the C.P.C. are applicable, has a right of appeal from an order of acquittal made by a State High Court sitting at first instance in criminal proceedings. In their Lordships’ view that right of appeal is exercisable by the prosecutor only in respect of a point of law arising from such an order; and the right stems from the provisions of sub-section (2) of Section 284 of the C.P.C. and sub-section (1) (b) of Section 220 of the 1979 Constitution, the earlier sub-section not being inconsistent with the latter. It was their view also that the right of appeal given to the prosecutor under sub-section (2) of Section 284 of the C.P.C. is preserved under the 1979 Constitution by virtue of sub-section (a) of Section 222 of the said Constitution. The view can be gathered from a passage in the leading judgment of the learned President (Nasir P.) with which their Lordships (Kazeem and Nnaemeka-Agu, JJCA.,) concurred; and it reads:

“……..It seems quite clear from the provisions of Section 284 (2) of the C. P. C. that a prosecutor in Kano State may appeal to this court as of right against acquittals on any question of law from a decision of the High Court sitting at first instance. In my view that power was given to the prosecutor by virtue of the last portion of Section 222 (a) of the Constitution which enables the person or authority at whose instance an appeal in criminal proceedings can be lodged subject of course to the powers of the Attorney-General of Kano State under Section 191 of the Constitution to take over and or discontinue such proceedings. This power exercisable by the prosecutor under Section 284 (2) C.P. C. is in pari materia with the powers contained in Section 220 (1) (b) of the Constitution. Hence in my view there is no conflict between the powers contained in the two sections. Consequently, I am of the opinion that a prosecutor may appeal as of right to this court both under the Criminal Procedure Code of Kano State where the grounds of appeal involve questions of law alone against decisions in any criminal proceedings. The term ‘decision’ has been interpreted in Section 277 of the Constitution to mean ‘in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.’ In view of this definition, the contention of Chief Williams [learned counsel for the respondent in the Court of Appeal] that Section 220 (1) (b) of the Constitution only permits of an appeal in non-final decisions is untenable……..” (square brackets and underlining supplied by me.)