CHIROMA GIREMABE v BORNU NATIVE AUTHORITY (FSC 207/1961) [1961] NGSC 31 (11 August 1961)




                               (1961) All N.L.R. 489


Division: Federal Supreme Court

Date of Judgment: 11th August, 1961

Case Number: FSC 207/1961

Before: Brett, AG. C.J.F. 

              Hurley, C.J.N.R.

              Bellamy, AG. C.J. Lagos

Courts-Supreme Court-Retrial-Federal Supreme Court Ordinance, 1960 (No. 12 of 1960) Section 302.

Appeal from conviction and sentence.

The appellant was convicted in the court of the Shehu of Bornu on a charge of culpable homicide punishable by death. Evidence was adduced that the appellant struck the deceased twice with a piece of firewood and that the deceased was taken to a hospital where he died two days later. The record disclosed no evidence to the effect that the injuries inflicted by the appellant caused the deceased's death, although, in the course of his Judgment, the Trial Judge stated, that medical evidence had proved that the deceased died as a result of the assault by the appellant. On appeal the High Court confirmed the conviction.

The appellant appealed to the Federal Supreme Court.


(1)     Where, on appeal from a conviction by the High Court of Culpable Homicide punishable with Death, the record of the trial discloses evidence of severe assault by the accused person upon the deceased shortly before his death, but fails to disclose any evidence that the deceased died as a result of the injuries received in the assault, the Supreme Court will quash the conviction and order a retrial before the High Court, under the proviso to subsection (1) of section 30 of the Federal Supreme Court Ordinance.

(2)     The Federal Supreme Court cannot exercise the power of a High Court Judge under section 185 of the Northern Region Criminal Procedure Code and give leave that an accused be charged before the High Court, but it can order a retrial by the High Court under section 30 of the Federal Supreme Court Ordinance, 1960.

(3)     Where a law validly made by the Federal Legislature confers a power which is absent in a corresponding Regional Law, section 64(4) of the Constitution of the Federation will operate to amend the Regional Law to such an extent as to give effect to the power conferred by the law enacted by the Federal Legislature.

Conviction quashed, Re-trial ordered.

Constitutions, Ordinances and laws referred to:-

Nigeria (Constitution) Order in Council, Second Schedule: Constitution of the Federation, section 64(4), Schedule:

Part I, item 44; Part III, item 1(b).

N.R. Criminal Procedure Code (N.R. No. 11 of 1960) sections 185, 314, 315.

Federal Supreme Court Ordinance, 1960 (No. 12 of 1960) section 30.

APPEAL from the High Court (North).

Cole for the Appellant.

Oshodi for the Respondent

Hurley, C.J.N.R. (delivering the Judgment of the court):-The appellant was tried in the court of the Shehu of Bornu on a charge of beating one Yerwama to death with a stick and was convicted of culpable homicide punishable with death and sentenced to death. His appeal to the High Court of Northern Nigeria was dismissed and he has appealed to this Court. His grounds of appeal in this Court, which were not his grounds of appeal in the High Court, have been argued together and come to this, that there was no evidence of the cause of death, and no evidence that the deceased died of injuries inflicted on him by the appellant.

The prosecution evidence was that the appellant and the deceased fought one night and were separated. The deceased and the first prosecution witness left for home, followed by the second prosecution witness. On the way the appellant met the deceased and the first witness and hit the deceased with a piece of firewood. The deceased fell to the ground and the appellant hit him a second time and more heavily. The witnesses ran away. The second witness reported to the third witness, who went to the scene with some other men and found the deceased lying there, alive but injured and unable to speak. The witness did not describe the deceased's injuries. They took the deceased to hospital. The appellant, questioned by the trial court after he had spoken in his defence, said that he knew the deceased was dead. In their Judgment the trial court said "Medical evidence proved that the deceased died of the beatings of the accused." No such evidence and no other evidence of the cause of death, had been adduced in court. In his opening statement, the prosecuting constable, who was not a witness, said that the appellant had died in the hospital after two days' illness.

There was no evidence that the injuries inflicted on the deceased by the appellant caused the deceased's death, which is to say that there is no evidence that the appellant killed the deceased. The Judgment of the trial court must therefore be set aside. However, we think that this is a proper case for a retrial. Section 30 of the Federal Supreme Court Ordinance enables us to order this case to be retried by a court of competent jurisdiction. We will order that the case be retried before the High Court of the Northern Region. Without deciding whether a conditional order may be made under section 30, we will make the order for retrial unconditional. We observe that section 185 of the Criminal Procedure Code of the Northern Region provides that no person shall be tried by the High Court unless he has been committed for trial, or a charge is preferred against him by leave of a Judge of the High Court, or a charge of contempt is preferred against him under section 314 or section 315. This Court cannot exercise the powers of a single Judge of the High Court under section 185 to give leave to prefer a charge, and cannot direct a Judge to exercise them. Since a magistrate holding a preliminary inquiry may lawfully discharge the accused instead of committing him for trial, it will not be in accordance with the terms of an unconditional order for retrial made by this Court under section 30 to bring the accused before a magistrate for a preliminary inquiry before bringing him to the High Court for trial. Therefore the order for retrial must be discharged by bringing the appellant before the High Court for trial otherwise than as provided in section 185. Section 185 of the Criminal Procedure Code is thus inconsistent with section 30 of the Federal Supreme Court Ordinance. By section 64(4) of the Constitution of the Federation of Nigeria, if any law enacted by the legislature of a Region is inconsistent with any law validly made by the Federal Parliament, the law made by Parliament shall prevail and the Regional law shall, to the extent of the inconsistency, be void. The provisions of section 30 of the Federal Supreme Court Ordinance empowering this Court to order a retrial were validly made by Parliament by virtue of item 44 of Part I of the Schedule to the Federal Constitution, as interpreted in section 1(b) of Part III, being provisions with respect to a matter supplementary to the discharge by the Supreme Court of its appellate functions conferred by the Constitution. The order for retrial will therefore be effective to enable the case to be retried without a preliminary inquiry.

We observe that the charge preferred in the trial court is not suitable for trial in the High Court, but section 208 of the Criminal Procedure Code gives power to amend a charge.

Conviction quashed: Retrial ordered.

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