Zemba Shivero v. The State (1976)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C.

At the hearing on 17th March, 1976, we dismissed this appeal by the accused against his conviction in the High Court of the North Eastern State, sitting at Yola, of culpable homicide punishable with death. We now give our reasons for doing so.

The facts on which the conviction is based are as follows. Around night time on 28th March, 1972, Gamvo Jegam (3rd P/W) and his friend Yacha Damvisi (4th P/W) were drinking in Jegam’s house in Jegam Village in Jalingo District. Not long after, the accused turned up at the house and asked for a drink. Jegam asked his wife to take the drink to the accused. As Jegam’s wife was carrying the drink to the accused where he was sitting in the house, the accused got up, went to meet Volle Ndojidde (the deceased) who was then coming into the house, and stabbed him with a knife (Exhibit 1) on the ribs. The knife entered Volle’s ribs on one side and came out on the other side. The accused also stabbed the deceased on the neck. After the stabbing, the accused ran away with the knife. Yacha Damvisi (4th P/W) also saw the stabbing of the deceased by the accused.

The following day, around 10.30p.m., the accused went to Jalingo Police Station where he was seen by Police Corporal Bature Dogo (1st P/W) who described what transpired at the Police Station as follows:

“I know the accused. He came to the police station. I saw him sitting outside the police station. I saw him sitting there for quite a long time. I asked him as to what had brought him to the police station. He replied in Mumunye language. As I did not understand Mumunye language, I called P.C. Hamman Jumba who as also on duty with me and who knew Mumunye language so that he could interpret to me what the accused wanted to say. On the strength of what the accused told me through P.C. Hamman Jumba, I asked the accused with what instrument he had stabbed Volle. Accused indicated that he had stabbed with a knife. I asked the accused through the interpreter as to where he had kept the knife. He replied that he had left the knife in the bush in Jalingo town. He told me that he had stabbed Volle at Jegam Village in Jalingo District. He said that the incident took place on 28th March, 1972, at Jegam Village. I asked the accused to show the place where he had left the knife.”

The 1st P/W then described how he recovered the knife as follows:

“Then the accused, P.C. Hamman Jumba, and myself went that very evening to recover the knife. On our way going it became dark. Accused informed me that he could not trace the place where he had left the knife because it was by then nightfall. I returned to the police station with the accused. On the following morning we went again with the accused to recover the knife. The accused took us to the bush near Jalingo town. He took us to a distance of one mile from the town. When we reached the spot accused showed us several trees and stated that he had hidden the knife near one of the trees. Accused started searching for the knife. He then traced the knife from under one tree. He handed the knife to P. C. Hamman Jumba who took charge of it in my presence. Then P. C. Hamman Jumba handed over the knife to me. We then returned to the Police Station. The knife was about 12 inches long. It had a wooden handle with the scabbard.”

Meanwhile, a report of the stabbing had been made at Kunini Police Station by one Ahmadu Ardido Jegam. Ahmadu Jegam also reported that Volle had died ofthe stab wounds. P.C. Apuwa Dba (2nd P/W) to whom the report was made, left immediately for Jegam Village where he saw the dead body of Volle Ndojiddo on the ground outside the house of Gambo Jegam (3rd P/W). P.C. Dba noticed two stab wounds on both sides of Volle’s ribs and a third one on the neck. He also saw Jegam (3rd P/W) and Yacha Damvisi (4th P/W) at the scene but there was no sign of the accused. P.C.Dba then sent a report of the incident to the Jalingo Police Station. Bature Dogo (1st P/W) received the report on his return to the Station with the accused. In consequence of the report, the 1st P/W proceeded to Jegam Village where he also saw the dead body of the deceased with two stab wounds on both sides of his ribs and another stab wound on his neck. He then conveyed the body to the Jalingo General Hospital where Dr. N.A. Hanna, the Medical Superintendent-in-Charge, performed the post-mortem examination. The doctor’s report reads:

“On examination, I found a deep cut wound 8cm” (centimetre) in length on the right side of the chest penetrating the right lung, another deel cut wound 2 inches in length on the left side of the chest penetrating mto the left lung. Such wound on the deceased could be caused by a sharp instrument. The cause of death was due to bleeding caused by the wound. The injuries on the deceased could not be selfinflicted. ”

For some inexplicable reason, P.C. Hamman Jumba, who knew the Mumunye language spoken by the accused and who interpreted what the accused said at the Jalingo Police Station to P.C Bature Dogo (1st P/W), was not called to testify for the prosecution. It must be recalled that the 1st PIW testified that the accused admitted to him through P. C. Hamman Jumba that he had stabbed Volle Ndojidde at Jegam Village and that the incident took place on 28th March, 1972.

Be that as it may, the accused, in his defence, denied the admission he was said to have made to the 1st P/W. He testified instead that he had a wife by name Sido who has seduced by Volle Ndojidde. After she had been seduced, he (the accused) asked the father of Volle to refund the dowry which he had paid for Sido but his father refused. Since then Sido and Volle had been living together in Jegam Village but he (the accused) never went to the village. He then testified specifically about the offence with which he was charged as follows:

“I did not see the deceased and my wife again after she left me. I do not know what happened in Gamvo Jegam’s house. I do not know Gamvo Jegam. Neither do I know the name of the village he came from…………………..Perhaps the deceased Volle inflicted upon himself the fatal wounds. It is not true that I stabbed Volle.”

He also denied that the knife (Ex. 1) with which Volle was stabbed belonged to him although he admitted knowing Bature Dogo (P/W 1) and P.C. Hamman Jumba. He explained how he came to know them as follows:

“It was alleged that I had committed murder. Because of this I went and reported to them. I did not kill Volle. If I had killed him why should I have gone to report to them I did not hand over the knife (Ex. 1) to the policemen. I was far away from these policemen when they traced this knife. I do not know where the knife was found. I have never handled a knife in my life. I did make a statement to the police. I did not change anything. I mean it is not true that I gave a statement to the police at all. It is not true that I killed Volle Ndojidde.”