Yanor & Anor V The State (1965)

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IDIGBE, J.S.C.

The appellants were convicted of the offence of culpable homicide contrary to section 221 of the Penal Code (Northern Nigeria) and each sentenced to death by the High Court, Northern Nigeria (Jones, J.). A summary of the case for the prosecution is as follows. On the 7th July, 1964, an armed crowd entered the premises of the deceased-a tax-collector of Mbavaa in the Tiv Division of Northern Nigeria. The crowd got hold of the deceased, tied a rope around his waist and marched him to a spot near the compound of one Adagba (a “Kindred-head”). As they marched towards the premises of Adagba the deceased pleaded in vain with the crowd for his liberty; and from the crowd there were shouts of. “No, we are going to kill you.” The deceased’s son, P .W.1, pleaded unsuccessfully with the crowd for the liberty of his father and followed them up to the premises of Adagba. There P.W.I met PW2 and PW3 and together they watched, afraid to interfere, while the appellants-members of the crowd-dealt fatal blows on the deceased with large or heavy clubs. The deceased fell down and the rest of the crowd set upon him and beat him to death. P .W.1, PW2 and PW3 came out from their place of hiding, examined the deceased and being satisfied that he was dead, rushed to the police authorities at Gboko and lodged a report. Later the appellants were arrested. In their defence, each denied the charge and set up an alibi. The learned trial judge, after reviewing the evidence before him, accepted the case for the prosecution and found the appellants guilty as stated above.

In the course of the trial, learned counsel for appellants asked for adjournment of the trial as one of the witnesses for the defence was not available in court. This happened on the 12th December, 1964. The learned trial judge granted the application and adjourned further hearing to the 14th December, when the case was again adjourned to the 1st December as the court had been informed that the defence witness would be produced on that day. On the 15th December, a police constable (Patrick Kwaghmande), giving evidence on oath, told the court of his futile attempts to serve the particular defence witness with a witness summons. At the instance of defence counsel, the case was again adjourned to the 18th January, 1965. Thereafter the case was for the same reason and in the presence of defence counsel, adjourned to the 22nd January, 1965 and later, for the same reason, to the 1st of February, 1965.

On the 1st day of February, 1965, police constable Patrick Kwaghmande, giving evidence, told the court of the unsuccessful attempts he made to serve the particular defence witness with a witness summons. He had been to the witness’ village on “several occasions but could not find him.” He had made inquiries about the witness from many people in the village and they had told him that the witness (a man called Usman Iyamegh) “was hiding and came and went secretly” to and from the village. Finally, P C. Kwaghmande said: “I did my best to find him but could not do so.” Although the appellants were present in court, counsel for appellants was absent and the court again adjourned further hearing to the 4th of February, 1965. At the resumed hearing, learned counsel for appellants appeared and after calling one witness for the 1st appellant, made the following observation.

“The next witness for 1st accused is Usman Iyamegh who would not be served. Accused wants him to give evidence, so I ask for an adjournment to have this man served.

(underline supplied).

Counsel gave no indication as to when this witness was likely to be served with the witness summons.

Learned counsel appearing for the State opposed the application saying:-

“Every effort to find this witness has been unsuccessful. There is no likelihood that he will ever be found. The court has complied with section 177 C.P.C. The law does not require an impossibility. Further delay would not be in the interest of justice. It is not known whether this witness is even alive.”

In the course of his ruling refusing this application, the learned judge observed:-

“Every effort has been made to trace this witness. P.C. Patrick Kwaghmande has given evidence that he went several times to find this witness but failed. PC. Patrick has produced the other witnesses and I am satisfied that when he said `I did my best to find him (Usman)’ he spoke the truth. The law does not demand an impossibility, nor can justice best be served by an indefinite adjournment in these circumstances ”

(Underline supplied).

Thereafter, no more was heard of this application and the trial proceeded to conclusion and counsel for appellants addressed the court and it is significant that no complaint was made, in the address of counsel for appellants, of the refusal by the trial judge of the application for adjournment on 4th February, 1965. In this Court, the main ground of appeal argued before us reads:-

“The 1st appellant was prejudiced upon his trial in that he was not defended by a legal practitioner when PC. Patrick gave evidence on 1-2-65 to the effect that a witness for the defence of 1st appellant could not be traced.