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ASHARARU DAN SAURI BAMAINA
KANO NATIVE AUTHORITY
FEDERAL SUPREME CO URT OF NIGERIA
13TH APRIL, 1956
BEFORE THEIR LORDSHIPS:
SIR STAFFORD FOSTER-SUTTON, F.C.J. (Presided and Read the Judgment of the Court)
OLUMUYIWA JIBOWU, F.J.
MYLES JOHN ABBOTT, AG. F.J.
L.O. V. ANIONWU – for Appellant
I.G. MCLEAN, Crown Counsel – for Respondent.
CRIMINAL LAW AND PROCEDURE: – Murder – Plea of accident – Evidence of deliberate act – Hitting a 7 year old with hoe on base of head – Whether provocation is a defence – how considered
SHARIA LAW: – Murder – Wilful murder – When deemed proved under muslim law – Duty of appellate court thereto
PRACTICE AND PROCEDURE: – APPEAL- Raising a point for the first time in Federal Supreme Court – Propriety of
PRACTICE AND PROCEDURE: – APPEAL – Ground of appeal – Need for issues for determination to connect therewith – Raising a point not in ground of appeal – Attitude of court.
CHILDREN AND WOMEN LAW:- Children and Right to Life – Murder of a 7 year old – Killed for spilling millet flour and putting sand into it on a farm – Whether act of child qualifies as provocation – How treated
FOSTER-SUTTON, F.C.J. (Presiding and Delivering the Judgment of the Court):
The appellant was convicted by the Court of the Emir of Kano of the murder of a boy seven years of age.
The appellant admitted slapping the boy twice on the face, and then hitting him a blow on the back with the handle of a hoe. According to the appellant the boy died on the spot and he then proceeded to bury him.
When asked by the trial Court why he slapped the boy and struck him with the hoe handle the appellant replied: “We went to the farm together. We had breakfast and left the millet flour in the shade. I went and worked till it was about noon, then I came to take the flour and I found that he spilt it and put some dust in it.”
An appeal to the High Court was dismissed, and the case is now before us on a further appeal.
The main ground of appeal argued in the Court below was that the killing was accidental, not deliberate.
The Emir’s Court held that under Muslim Law wilful murder had been proved against the appellant, and the assessors advised the High Court to the same effect. In our view there was clearly evidence to justify that conclusion.
A blow deliberately delivered on the back with the handle of a hoe with such force as to immediately cause death can hardly be described as accidental. If a heavy weapon of that nature is deliberately used with force on the body of another it is no defence thereafter to say “I did not mean to kill.”
Counsel for the appellant intimated that he did not quarrel with the findings of the Court below, but he submitted that the deceased’s mother, who in the absence of any relative on the father’s side, claimed retaliation was incompetent under Muslim Law to do so. The point was not taken before the Emir’s Court or before the High Court, nor was it included in the grounds of appeal to this Court. In these circumstances, since it did not affect the merits of the case, we declined to allow the point to be further argued before us.
It follows that, in our view, there is no substance in this appeal which is accordingly dismissed.
JIBOWU, F.J.: I concur.
ABBOTT, AG. F.J.: I concur.