Yahaya Idirisu V The State (1967)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

We dismissed this appeal on the 6th January, 1967, and now give our reasons for doing so.

The appellant was convicted by Hague, Ag. J., (High Court, Minna, Northern Nigeria) of culpable homicide punishable with death under section 221 of the Penal Code. The charge stated that on or about the 13th December, 1964, at Dapma Village, he caused the death of one Asibi. At his trial the prosecution adduced evidence to show that the deceased, Asibi was one of three persons killed by the appellant on the night of the 13th December, 1964.

The husband of Asibi (first prosecution witness) was an eye witness to the killing of his wife: he saw the appellant hit the deceased on the head with a pestle after the latter had opened the door of their house in response to the call of the appellant. She died on the spot. The prosecution further adduced evidence to show that after striking the deceased dead with a pestle the appellant went to one Baba Wakali (prosecution witness No. 2) who took him thereafter first to the village head (prosecution witness No. 3) and subsequently to the Sarkin Juwa, the head Chief (prosecution witness No. 4) and to these three the appellant stated that he had killed two persons and a third who was unlikely to survive.

It was given in evidence that after the appellant was arrested he made a statement to the Police in which he said that he had killed two women and a man with a pestle whilst he was repelling the attack on him by the villagers who had called him a thief and were beating him. The appellant gave evidence in his own defence at his trial.

He said much the same as was contained in his statement tothe Police but denied saying that he used a pestle on his victims and stated that he struck at least a female with a stick about one inch thick and three feet six inches long. The learned trial judge did not believe the story of the appellant insofar as he stated that he was attacked by the villagers and that he used a stick of the size described by him to defend himself against the angry villagers.

The judge preferred and accepted the evidence of the prosecution witnesses, especially that of Kpacheye Jibe (first prosecution witness) the husband of the deceased who saw the appellant strike his wife on the head with a pestle, and the several confessions made thereafter by the appellant. He convicted him accordingly: hence this appeal.

In the course of the trial a report, purportedly signed by a medical officer, was put in evidence under section 249(3) of the Criminal Procedure Code Law. The doctor who wrote the report had apparently seen the deceased after her death and examined the corpse and parts of the report stated that the deceased had black curly hair and that she had:-

(i) a contused wound on the right side of the front of the head, 2′ by 1” scalp deep; and

(ii) a lacerated wound at the transverse back of the left side of the head, 2′ by 1½ scalp deep.

When the report was read and interpreted to the appellant, he expressed disagreement with is and counsel appearing for him applied to the judge that the maker of the report be called as a witness. The judge refused the application stating that the interests of justice will not be served by an adjournment of the case to enable a doctor to be called.

Before us on appeal counsel for the appellant contended that the medical report was wrongly admitted as there was no proof that it was made by a medical practitioner: that the judge wrongly relied upon it when the contents were at variance with the oral evidence given by the prosecution witness and accepted by the judge and that the judge wrongly refused to accede to the application of the appellant to call the medical officer as a witness. Section 249(3) provides as follows:-

“(3) (a) A written report by any 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 proving the nature of any injuries received by such person or, where such person has 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.