Umaru Gwandu V. N.A Gwandu (1962) LLJR-SC

Umaru Gwandu V. N.A Gwandu (1962)

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BAIRAMIAN JSC

Umaru Gwandu was tried before the Emir of Gwandu’s Court on the prosecutor’s statement that he had killed a woman by the name of Rabi. There is no dispute that he threw a mortar at her head as she lay asleep during the night; she was found groaning and senseless, with blood coming out of her ears, nose, and mouth. The appellant told one Yari that he had “used a mortar and killed her and that she did not even move.” In fact, she did not die until many hours later. He did not dispute the evidence given at the trial, and he agreed that he had killed Rabi. A mortar was brought to the Court of trial; he agreed it was the one he had used.

The judgment was –

Umaru, this Court sentence you to death as you did kill Rabi.

He appealed to the High Court, and counsel represented him at the hearing. There is this note by the Court:-

Real question is whether this culpable homicide punishable with death or not punishable with death. Cannot decide without seeing mortar and considering size and weight. But mortar not exhibited to us. Therefore we order that hearing be adjourned to next sessions at Kano and call for mortar.

The notes at the adjourned hearing are important:-

”Nzekwu

Appellant says he does not recognise mortar.

“Ardo

Have policeman who can identify.

“Mamman Nassarawa, P.C. 51, Gwandu N.A. Police says in answer to court.

I was present when appellant was tried by Emir of Gwandu. A mortar was produced at trial. I have brought a mortar here from Gwandu. Chief of Gwandu N.A. Police gave it to me to bring. I recognise it as mortar produced at trial.

“Nzekwu

Accepts mortar as one produced at trial.”

The learned counsel who argued the appeal from the High Court before us has pointed to that passage in the notes and criticized it on two grounds:-

one is that that was taking evidence of a witness who was not sworn; the other is that the High Court accepted an admission made by counsel, which is not possible in criminal cases. He has pointed to passages in the judgment as showing that it proceeds on the basis that the mortar used by the appellant was sufficiently identified as the mortar brought by the policeman, and that it was a large and heavy mortar which when thrown or used as a weapon was capable of causing death; and he has argued that the High Court made a mistake, in that respect which affected its decision that it was a case of culpable homicide punishable with death. Those submissions were accepted by the learned counsel who appeared for the respondent at the hearing.

We have read the judgment under appeal with care, and also the proceedings in the trial Court. The trial Court made no finding that it was a case under section 221 (a) or (b) of the Penal Code; and no light is thrown from the notes of the trial Court on the size and weight of the mortar admitted by the appellant at his trial. It was the High Court that decided that the case fell under section 221(b), and recorded a conviction to that effect, stating that the Court did so by virtue of the powers conferred by Section 70(1)(b)(iii) of the Native Courts Law. In so far as the judgment of the High Court is affected by the view that the mortar brought by the policeman was the mortar used, there are the criticisms of it which have been stated already.

It is clear that the High Court was taking evidence on the identity of the mortar. We are accustomed to all evidence being on oath or affirmation in the South, but the Northern Region has a procedure of its own; it would be wiser to leave the point to some other occasion when the point is argued after preparation by counsel who have experience of the procedure in the North. Be it assumed, merely for the sake of argument, that the Court could have heard the policeman without asking him to be sworn. His counsel erred in accepting that it was the mortar used and identified at the trial by the appellant. He should have asked leave to examine the policeman; and on the rule of audi alteram partem, if his client himself wished to give evidence on the identity of the mortar – which he was denying in the High Court – the Court might have had to consider whether it would not be right to hear him and let him call evidence about the mortar if he so wished. Counsel was not really happy about it; even after he said that he agreed it was the mortar, a little lower down the notes say that he submitted it was not the mortar which the appellant threw, and then again that it was the mortar produced at the trial.

The procedure in the High Court over the mortar was with respect un-satisfactory. Whether it was the mortar was not settled in a satisfactory manner. On the other hand, having regard to the nice distinction between a “likely” and a “probable” consequence of an act, on which the sentence is decided, whether it shall or shall not be one of death; and to the fact that the High Court noted that that could not be decided without seeing the mortar and considering its size and weight: we think that it would not be safe, in view of the unsatisfactory identification of the mortar, to allow the sentence of death to stand. We therefore substitute a conviction of culpable homicide under sections 220 and 222, and sentence the appellant under section 224 of the Penal Code to imprisonment for life.

Appeal allowed: Conviction of Culpable Homicide not punishable with death substituted: Sentence reduced.

Other Citation: (1962) LCN/1012(SC)