Ames, Ag. C.J. The appellant was convicted in the Court of the Emir of Katsina of a capital offence of homicide and sentenced to death. He appealed to the Supreme Court, but his appeal was dismissed, and he now appeals to this Court.
His trial started in the Native Court on 11th November of last year. The constitution of the Court was this: The Waziri of Katsina was the President, and the Kaura and the Chief Alkali were the two members. The Emir did not take part; he was away from Katsina.
The charge is shown by the record to have been this:-
“He was charged with the murder of Machedo of Runka,” and the particulars of the charge are shown to have been these:-
“On Tuesday, 24th October, 1949, a quarrel occurred between Mallam Beti and Sarkin Filani Machido and Narabi. Narabi wounded Mallam Beti five times with a matchet. The matchet was dropped and picked up by Mallam Beti, who struck a backhanded blow at Machido with it, inflicting a fatal wound. Machido died that day.”
The Court heard four witnesses on the 11th November, the first day of the trial (the principal witnesses in the case against the appellant) and adjourned till the next day, when another witness was heard and the appellant himself also.
The appellant made a long statement and answered questions put to him by the Court. His case was substantially what was alleged in the particulars of the charge, and was briefly this: Cattle of his had been sent away to be inoculated and the Sarkin Fulani (the first witness and father of the deceased) had warned him that after their return they should not be allowed to mix with his (Sarkin Fulani's) herd which had not been inoculated. Unfortunately, after their return one of his (the appellant's) servants released them after milking to go and graze, that being the usual practice, and they went and mixed with the Sarkin Fulani's cattle. This led to a quarrel between the appellant and the Sarkin Fulani and his two sons, in which the latter three attacked the appellant. One of the sons hit and wounded the appellant five times with a matchet, but then the matchet dropped and the appellant picked it up and struck the other son with it, and it was this blow which caused his death later that day.
This is (as has already been said the same as the particulars of the charge against him. His case was that the others tried to kill him (and at the most it would have been manslaughter in the circumstances as alleged by the particulars of the charge and the appellant's defence).
This was what took place on the second day of the trial and the Court adjourned till the 17th November. On the 17th another witness was heard, and the proceedings were adjourned until the 9th December.
By the 9th December the Emir had returned, and so he presided at the further proceedings of the trial, and it was he who passed sentence at the end of the trial. The record does not show whether the former President retired or continued to sit, or whether only two or all three of those, who till then had formed the Court, continued to sit as members. Even if they all continued, the Court became a different Court when the Emir joined it, and so the trial ought to have been started again de novo.
What may be called an attempt to do this was made, because, as the record states and shows, “these witnesses” (who had been heard) and “who were dismissed as the Emir was away. . .were. . .recalled from their towns to give evidence.”
Unfortunately, although all except one were recalled, none of them gave their evidence again; and they were only asked a few questions by the Court. The one who was not recalled was a very material witness, a wife of the deceased who professed to have been an eye witness to what had happened. The appellant also was not recalled; and so the President (from 9th December onwards), who eventually pronounced the judgment, had not heard the appellant's evidence at all.
In addition to the recalling and putting some few questions to the former witnesses, eight other witnesses were called. All this took a long time and the case was before the Court on 15th December, 20th December, 29th December, 5th January, 10th January, 14th January, on which last date it was adjourned to enable a knife to be looked for. No knife was found, and on the 9th February the Court gave judgment, and on the 11th February sentence was passed (exactly four months after the first day of the trial).
After the change in the constitution of the Court on the 9th December of the proceedings were concerned with what weapon the appellant used, whether a matchet or a knife, and whether he was wounded before or after he struck the deceased, and whether at the same or a different place from where he wounded the deceased.
It should be pointed out here that it was conclusively proved that the appellant was wounded five times by one of the Sarkin Fulani's sons (and the Court ordered the latter to pay £13 compensation).
The evidence given against the appellant was contradictory in important particulars as Mr. David has pointed out in his argument. For example, a witness (apparently a disinterested one) denied that the deceased's wife was present.
In the result the Court (as is stated in their judgment) disbelieved the appellant's version of what happened (although the President had not heard him give his evidence) and found the facts to be that a quarrel arose and because of the quarrel the appellant stabbed the deceased with a knife, and that the appellant was afterwards and at a different place attacked and wounded with a matchet by the brother of the deceased. These findings of fact are entirely different from the facts which had been alleged in the particulars of the charge at the beginning of the trial four months before.
The question of the effect on the proceedings of an alteration in the constitution of a Court during a trial has been considered by this Court before now.
In 1936 this Court held in Nana Esseli Tawiah III v. Kwesi Ewudzi (1) that, where certain members of the Tribunal who gave judgment were not present during the whole of the proceedings, the trial was a nullity.
In 1937, in the case of Akosua Otwiwa and Another v. Adjoa Kwaseko (2), this Court held that, as the constitution of the Court of trial had been varied on different date of the hearing, the trial was a nullity.
In 1943, in the case of Madam Vakoh Chapman v. C.F.A.D. and Another (3), it was stated as obiter that a judgment, which was relied on for a plea of res judicata and which had been given by a Tribunal of which some of the members had not sat to hear the evidence, could no doubt have been set aside on appeal for that reason if there had been an appeal. (But there had not been an appeal.)
All the above decisions were about proceedings in Native Courts, but that is only by chance; and the principle would apply to any Court. They also all happen to be about civil cases. There is not, as far as we are aware, any decision of this Court on the same question about a criminal trial. But in our opinion the principle applies equally to a criminal trial.
There is a reported decision of 1936 of the High Court of the Protectorate to this effect. It is the case of Egba N.A. v. A. L. Adeyanju (4). That was a criminal trial in a Native Court. The Court at the start was constituted by the President and two members; later on the two members wire changed and later again they were changed again (to different ones and not back to the former two). The President sat throughout the trial. The accused was convicted; he appealed to the Native Court of Appeal but his appeal was dismissed, and he further appealed to the High Court.
In the High Court it was held (Graham, Paul, J.) that a conviction obtained in such circumstances was bad and must be quashed; and also that even if such procedure were in accordance with native law and custom it was not such native law and custom as that Court should uphold, as it was repugnant to natural justice, good conscience and equity.
With this decision we respectfully agree and we adopt it. We think it essential that all the members of the Court which gives the judgment in a criminal case should have heard all the evidence. And as this does not appear to have been so in this case now under consideration, in so far as the circumstances of its trial are apparent to us, we are of opinion that the appeal must be allowed and the conviction quashed.
Appeal allowed.