TSOFO GUBBA
V.
GWANDU NATIVE AUTHORITY

JELR 80773 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
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Other Citations
1946-49 12 WACA 141-147
CORAM
HARRAGIN, C.J. (GOLD COAST), VERITY, C.J. (NIGERIA), LUCIE-SMITH, C.J. (SIERRA LEONE)
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native courts ordinance
magudama abatcha
bornu native authority v
present case
learned judge
majority judgment
native courts
verdict of the native court
west african court of appeal
provisions of this ordinance
sections
african court of appeal
facts of that case
first instance
judgment of the supreme court
learned judge of the supreme court
particular issues
provisions of the criminal code
such cause
wrong conclusion
criminal law
direct reference
express provisions of the code
grave concern
mutatis mutandis
such express provision

Verity, C.J. This is an appeal from a judgment of the Supreme Court dismissing an appeal thereto from a conviction for murder and sentence of death in the Court of the Emir of Gwandu, a Grade “A” Native Court, within the meaning of section 8 of the Native Courts Ordinance, 1933.

It will be convenient to say at once that we are in full agreement with the learned Judge of the Supreme Court that the evidence in the Native Court, while it established wilful homicide as understood by native law and custom recognised in that Court, established no more than the crime of manslaughter as defined by sections 317 and 318 of the Criminal Code of Nigeria. The question as to whether upon the evidence it should not have been found that the appellant acted in self-defence was raised at the hearing of the appeal to this Court, but we are satisfied that a verdict (If acquittal on this ground could not have been sustained by the evidence.

In the course of his judgment the learned Judge made reference to the case of the Bornu Native Authority v. Magudama Abatcha (1), which he interprets as an authority for the conclusion that a verdict of death for murder in a Native Court, found in accordance with the native law and custom administered by that Court must be upheld, where if the appellant had been tried in the Supreme Court the verdict would probably have been manslaughter. Although the learned Judge in the present case was satisfied, as are we, that if tried in the Supreme Court a verdict of manslaughter would have been the appropriate verdict, he felt himself bound by the decision to which he referred, and therefore dismissed the appeal.

The first ground of appeal argued before us is;- That the judgment of the majority of the Judges of the West African Court of Appeal in Bornu Native Authority v. Magudama Abatcha (W.A.C.A. 2326) on which the learned Judge of the Supreme Court relied in this case is not good law.”

Counsel cited a number of cases in support of his submission that it is open to this Court to differ from and if necessary overrule an earlier judgment in appropriate circumstances. It is desirable that before expressing any view on this aspect of the matter we should determine what is in our opinion the law of Nigeria on the subject of the law to be administered by a Native Court in this connection and what is the relation of the Supreme Court and the West African Court of Appeal thereto. It will then be possible to decide whether the case referred to is consistent with our present opinion, or can be distinguished there from or should be overruled thereby in accordance with the established principles upon which one Court may reconsider and if necessary overrule the decision of another Court of co-ordinate jurisdiction. The law to be administered by a Native Court is prescribed by section 10 of the Native Courts Ordinance which provides:

“(1) Subject to the provisions of this Ordinance a Native Court shall administer :

“(a) the native law and custom prevailing in the area of the jurisdiction of the Court, so far as it is not repugnant to natural justice or morality or inconsistent with any provisions of any other Ordinance;

“(b) the provisions of any Ordinance which the Court may be authorized to enforce by an Order under section 11 ;

“(c) the provisions of all rules or orders made under the Native Authority Ordinance, 1933, or under the repealed Native Authority Ordinance and the provisions of all rules orders or bye-laws made by a Native Authority under any other Ordinance.

“(2) For offences against any native law or custom a Native Court may, subject to the provisions of this Ordinance, impose a fine or imprisonment or both, or may inflict any punishment authorized by native law or custom, provided it does not involve mutilation or torture, and is not repugnant to natural justice and humanity.”

Counsel for the appellant drew our attention to the provisions of sections 2 and 4 of the Criminal Code, the relevant parts of which provide as follows:-

“2. (1) The provisions contained in the Code of Criminal Law set forth in the Schedule to this Ordinance, and hereinafter called ‘the code ‘ shall be the law of Nigeria with respect to the several matters therein dealt with.

“4. No person shall be liable to be tried or punished in any Court in Nigeria for an offence except under the express provisions of the Code, or some other Ordinance, or of some Order in Council made by His Majesty for Nigeria, or under the express provisions of some statute of the Imperial Parliament which is in force in, or forms part of the law of, Nigeria.”

It was further submitted, on behalf of the appellant, that the intention of the legislature to apply the provisions of the latter section to proceedings in Native Courts is made clear by the fact that the exclusion of its application to a Native Tribunal expressly enacted in the earlier Criminal Code Ordinance, 1917, was specifically repealed by an amending Ordinance No. 56 of 1933. With this submission we agree.

The effect of these enactments in relation to the issue in this case is, in our opinion, that while a Native Court is empowered by section 10 (1) (a) to administer the native law and custom prevailing in the area of its jurisdiction it can only do so in so far as that law and custom is not inconsistent with the provisions of any other Ordinance, and that no person is liable to be tried or punished in a Native Court for an offence against the Criminal Code or other Ordinance except under the provisions of the Criminal Code or other Ordinance.

Section 10 (2) of the Native Courts Ordinance does, it is true, make such express provision, in that it enacts that “for offences against any native law or custom a Native Court may” impose certain sentences as therein prescribed. In our opinion this sub-section, read together with the provisions of the other relevant enactments to which we have referred, means no more than that, where an act constitutes an offence against native law and custom but does not constitute any offence against the Criminal Code or other Ordinance of Nigeria, the Native Court is empowered to inflict the penalty appropriate by native law and custom, subject to the restrictions prescribed by the section. To interpret this section of the Native Courts Ordinance so as to empower Native Courts to administer native law and custom in relation to offences created by the Criminal Code would, in our view, deprive of all effect that amendment of the Criminal Code Ordinance which repealed the exclusion of Native Tribunals from the operation of section 4 of the Criminal Code and would, in our opinion, offend against the established canons of interpretation of statutes. We have therefore reached the conclusion that where, by virtue of the provisions of the Native Courts Ordinance and of the appropriate warrant under section 8 thereof, a Native Court exercises its jurisdiction in relation to an act which constitutes an offence against the Criminal Code, whether or not it is also an offence against native law and custom, it is required to exercise that jurisdiction in a manner not inconsistent, that is to say, in accordance, with the provisions of the Code.

Applying these principles to the present case we find that the appellant was tried before the Native Court on a charge of murder, an offence against section 316 of the Criminal Code by which section the offence is both constituted and defined. By section 318 of the Code it is provided that:

“Where a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation and before there is time for his passion to cool, he is guilty of manslaughter only.”

In the trial of the appellant on the charge of Murder the Native Court was required, as we have held, to administer the provisions of the Code, that is to say, they .were required to determine whether the accused was guilty of the offence charged within the meaning of section 316 or whether he were guilty of the offence of manslaughter only within the meaning of section 318, or whether he were not guilty of an offence under either section. In point of fact they confined their determination to an issue which, in our view, was not before them, that is to say, whether the appellant was guilty of an offence analogous to that of murder according to the native law and custom prevailing within the area of their jurisdiction, and based upon Mohammedan Law of the Maliki School. By applying the appropriate rule thereunder, having found that the appellant had done the act which caused death in circumstances which amounted to a Wilful homicide under Maliki Law, the Native Court proceeded to inflict the penalty prescribed by that school of Mohammedan Law, that is to say, retaliation, or sentence of death, at the discretion of the father of the deceased. In thus applying the principles of native law and custom to the trial of a charge for an offence against the Criminal Code, the Native Court, in our opinion, erred and upon the facts established to their satisfaction came to a wrong conclusion in law and imposed a penalty unauthorised by the Code.

We would ,turn to the position of the Supreme Court in relation to the appeal which came before it. The learned Judge, while conscious of grave concern at the course he felt impelled to pursue, considered himself bound by the decision of this Court in Bornu Native Authority v. Magudama Abatcha (1). With the greatest respect for the learned Judges of this Court who heard that appeal we cannot conceal from ourselves the fact that neither the judgment of the majority of the Court nor that of the dissenting minority is in every respect satisfactory authority for determining the issues raised in the present case. In the judgment of the majority, having assumed that the law to be applied was Maliki law and having held that the procedure followed was that sanctioned by section 14 of the Native Courts Ordinance, the Court proceeded to deal with two questions of procedure and evidence. Having decided these two points, rightly in our view if we may say so with due respect, in accordance with the rules of Maliki law under the provisions of section 14, the Court proceeded to deal with an application by both Counsel for the appellant and Counsel for the Crown, that a verdict  of manslaughter should be substituted for that of murder. The judgment of the majority proceeds: “But it is clear that the whole of his (the appellant’s) statement was not accepted by the Court and there was evidence that there were two knife wounds in the back of the deceased. ..Even if we have power to substitute finding of manslaughter (as to which no argument was heard) under section 11 of Ordinance No. 47 of 1933 we do not feel that we should be justified in interfering with the verdict of the Native Court in which it was held that wilful homicide had been committed and full proof was constituted under Native Law and Custom.”

It is to be observed that in the earlier part of the judgment the words “in this case it is Maliki law” would appear to have direct reference to the succeeding words of the paragraph in which they are used, which deal with no more than the procedure followed by the Native Court in regard to the admission of evidence. It is further to be observed that, in dealing with the question of the substitution of a verdict of manslaughter for that of murder, the majority of judges decided no more than that in the circumstances of that particular case the nature of the evidence and the Native Court’s view thereof did not justify the Court of Appeal in interfering with the verdict.

The learned judges in their majority judgment did not give final consideration nor did they arrive at a finding as to the point directly in issue in the present case, that is to say, what is the substantive law to be administered by the Native Court in relation to a charge of murder, nor were their minds directed to the provisions of sections 2 and 4 of the Criminal Code which form, in our opinion, the crucial enactment in this regard. It is for this reason that we have expressed the view that the majority judgment is not a satisfactory nor conclusive authority for the determination of the present issue. That it has been deemed to be such appears not only from the judgment of the learned judge of the Supreme Court in the present appeal but also from the terms of the dissenting judgment of Ames, in that case. But although the tenor of the majority judgment may indicate a leaning in that direction we are unable to find in its express terms more than would justify the conclusion that it is intended to decide the particular issues raised by the facts of that case and of that case only.

The learned judge, who dissented from the majority judgment, did indeed give consideration to the more general issue and we are in agreement with his conclusion that “a native law and custom by which a man can be sentenced to death for homicide which is not proved to be murder is inconsistent with those death of the Criminal Code of Nigeria which define murder and manslaughter and prescribe those offences (including murder) for which alone a sentence of death can be imposed “. We share with the learned judge the difficulty experienced by him in deciding what the Supreme Court should have done in the circumstances which have arisen in this case. We are not, however, of the I opinion that this difficulty is insurmountable, though the conclusion at which we must arrive cannot be considered altogether satisfactory and we would invite the attention of the appropriate authority to the effect of the existing legislation.

The power of the Supreme Court on appeal from a Native Court is prescribed by section 40 (1) of the Native Courts Ordinance as follows:- “40. (1)... the Supreme Court. in the exercise of (its) appellate jurisdiction under this Ordinance may-

“(a) after re-hearing the whole case or not, make any such order or pass any such sentence as the court of first instance could have made or passed in such cause or matter,

“(b) order any such cause or matter to be re-heard before the court of first instance or before any other Native Court or before any Magistrate’s Court.”

t is clear that the Supreme Court is not empowered under this section to substitute for the verdict of the Native Court any other verdict which the Native Court could have given in the first instance, and that it could not therefore have substituted a verdict of manslaughter for that of murder for we are unable to hold that in this section the words “order” or “sentence “include” verdict”.

By section 40 (1) (b), however, the Supreme Court had power to order the case to be re-heard before the court of first instance, when, doubtless, the Native Court would have followed the law as expressed in the judgment of the Supreme Court by which such order for re-hearing would have been effected. (On the other hand, the Supreme Court might have exercised its power, as indicated by Ames, J., of ordering a re-hearing before a Magistrate’s Court which would have proceeded to deal therewith under the provisions of the relevant Ordinance conferring jurisdiction upon it.) In the alternative, it may be within the power of the Supreme Court to quash the conviction and set aside the sentence, although, strangely enough no such power is specifically conferred upon the Supreme Court, which in criminal matters would appear to extend to no more than passing a different sentence or ordering are-hearing.

In the present case, however, the Supreme Court dismissed the appeal and we are mainly concerned not with what other course the Court might have pursued, but with what course this Court should pursue in the matter now before it.

By section 34 of the Native Courts Ordinance:- “An appeal shall lie to the West African Court of Appeal from the order or decision of the Supreme Court given on appeal from a Native Court of first instance subject to the conditions and in accordance with the provisions of the West African Court of Appeal Ordinance.” Section 10 of the Ordinance, referred to in the above section, provides that a person convicted in a Native Court may appeal to the Court of Appeal in certain circumstances.

“Provided that (he) shall not have a right of appeal to the Court of Appeal: “(a) unless he had a right of appeal against his conviction to the Supreme Court and has exercised such right and the Supreme Court has upheld the conviction or has substituted therefor a conviction for another offence.” By the same section it is further provided that:- “Where the Supreme Court on hearing an appeal thereto by a person convicted in a Native Court has substituted for the conviction in the Native Court a conviction for some other offence, the appeal to the Court of Appeal shall proceed and the provisions of this Ordinance shall, mutatis mutandis, apply in the same manner as if such finding and conviction were a verdict of and conviction by the Supreme Court and as if the Supreme Court was the Court by which the appellant was tried and convicted.”

It is worthy of note that in each of the provisos to this section it is assumed that the Supreme Court has the power to substitute for the conviction of the Native Court a conviction for some other offence, but we have searched in vain for any such power in the Native Courts Ordinance upon which the appellate jurisdiction of the Supreme Court in this connection is based. By section 12 (2) of the West African Court of Appeal Ordinance it is provided that:-

“Where an appellant has been convicted of an offence and the Judge who tried him or the Jury (as the case may be) could on the information or charge have found him guilty of some other offence, and on the finding of the Judge or Jury it appears to the Court of Appeal that the Judge or Jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by such Judge or Jury a verdict of guilty of that other offence and pass such sentence in substitution for that passed at the trial as may be warranted in law for that offence, not being a sentence of greater severity.

It is quite clear that, had the present case been tried before a Judge or Jury, this Court would have the power of substitution prescribed by the foregoing sub-section, or had the Supreme Court power of substitution and had it exercised such power this Court night have proceeded under the second proviso to section 10 of the Ordinance. We are unable, however, to read sub-section 2 of section 12 to include in the words “Judge or Jury (as the case may be) “ reference to a Native Court and this is not such a case as is contemplated by the second proviso to section 10.

In these circumstances there is no course open to this Court other than that prescribed by section 11 (1) of the West African Court of Appeal Ordinance, and, finding that the verdict of the Native Court should be set aside on the ground that it cannot be supported, having regard to the evidence in that the conviction is one of murder while the evidence supports no more than a conviction for manslaughter, this appeal is allowed and the conviction quashed and sentence set aside.

Appeal allowed.