Appeal Court.
Appeals from High Court
exercising appellate
jurisdiction.
Murder,
contra. Mohammedan Law-" Lausau"
and" Kasamah" -Case remitted by
High Court to Native Court for
further proof-Judgments
thereafter confirmed by High
Court.
Held:
Procedure correct and appeals
dismissed.
There is no
need to set out the facts. C.
N. S. Pollard for Crown.
W. E.Akaje-Macaulay
for first Appellant. Second
Appellant not present.
The following
joint judgment was delivered;-
KINGDON, C.J.,
NIGERIA, CAREY AND GRAHAM PAUL,
JJ.
In this case
the two appellants, together
with a third man named Buzu dan
Dangi, were charged before the
Court of the Emir of Katsina
with the murder of one Mayana.
The first and third accused
pleaded Not Guilty and the
second accused, now the second
appellant, pleaded Guilty. Both
the second and third had
previously confessed. The Court
found all three guilty and
sentenced them to death. In
passing sentence the Court
recorded-
" The murder
is proved by the statements of
the thirty "witnesses and by the
confessions of Momman " (Zagi)
Zara, and Buzu dan Dangi, the
accomplices " of Abdullahi Kogo."
The present
two appellants appealed from
their convictions to the High
Court, and the appeal was heard
by Brooke, J., a Judge of
exceptional knowledge and
experience in the Mohammedan
Emirates, assisted by two
eminent Mohammedan Assessors.
After hearing the appeal the
Assessors gave their opinion as
follows:-
" (1)
Muhammadu LawaI's opinion;-
" Buzu is not
a witness against Abdullahi Kogo;
his "evidence is tainted. The
same applies to " Mamman Zagi
Zara. First appellant did not
"confess. There should therefore
have been "two witnesses to
complete full proof of the
"actual ad or of his confession.
Therefore "the evidence which is
that of a number of "witnesses
who were not eye witnesses only
"reaches the stage of "lausu"
and there Native. " should be
the oath Kasamah. This does not
establish "Kisan gila": this can
only be "established by two
witnesses. Full proof " must
still be completed by the oath
Kasamah. Kogo
" No
Mohammedan Court in this country
has "changed this procedure
" (2) M.
Alhaji's opinion:-
" No more
than the stage of "lausau" has
been. "reached. The conjuratores
should have been " called upon
to take the oath Kasamah. This "
is most important and is so
regarded by all."
The Judge
took the same view and after
delivering a fully considered
judgment made the following
order-
" Case
referred to the Court below for
full proof to be " established
by the oath of the conjuratores
and if
" so
established this appeal should
stand dismissed."
The
conjuratores duly took the
necessary oaths in the Emir's
Court and the High Court then
gave a final judgment upholding
the convictions.
From that
judgment the present two
appellants now appeal to this
Court.
The amended
grounds of appeal filed by the
first appellant are as follows:-
"1.
Misdirection.-(i) That the
learned Judge of the High Court
"was wrong in law in directing,
on an appeal, that the
"witnesses in the Court below
should take the oath " , Kasamah
' to establish full proof
according to Mohammedan " Law
after the conviction of the
appellant.
" (ii) That
the learned Judge of the High
Court having "found as a fact
that one of the eye witnesses
did make " conflicting
statements should have directed
the acquittal .of " the
appellant.
" (iii)
That the learned Judge of
the High Court was "wrong in
holding that the oath of the 'Conjuratores'
was " necessary, it having been
established that the mortal
wounds " were inflicted by one
of the accomplices.
"2.
Misreception.-That the
further evidence taken after the
" trial and conviction of the
appellant was misreceived.
"3.
erdict.-That the verdict was
against the weight of "
evidence."
Grounds 1 U)
and 2 are in substance the same.
The power to follow the course
to which exception is taken
appears to be conferred by
section 36 of the Native Courts
Ordinance, 1933, and by the
combined effect of Order 43 rule
7 and Order 44 rule 7 of the
Protectorate Courts Rules, 1934.
