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AYUBA DAN RUFAI FAGOJI
KANO NATIVE AUTHORITY
FEDERAL SUPREME COURT OF NIGERIA
23RD NOVEMBER, 1956
CRIMINAL APPEAL NO.218/1956
BEFORE THEIR LORDSHIPS:
OLUMUYIWA JIBOWU, AG. F.C.J. (Presided)
NAGEON DE LESTANG, F.J.
PERCY CYRIL HUBBARD, AG. F.J. (Read the Judgment of the Court)
Appellant Not Represented
KAZEEM, Crown Counsel -for Respondent.
CRIMINAL LAW AND PROCEDURE:- Willful or intentional homicide – Convicted by the Emir of Kano’s Grade A Court and sentenced to death – absence of the defence of provocation under sharia law – whether Court of Appeal has any power by itself to substitute a finding of manslaughter for murder; or to direct a retrial before a Court administering the Criminal Code so that the appellant could be found guilty of manslaughter only
CRIMINAL LAW AND PROCEDURE:- High Court – Power to order retrial in Common Law Courts of cases of murder tried in Native Courts – Section 67 Northern Region Native Courts Law
SHARIA LAW – MURDER: Sentencing – Death penalty – effect of the absence of the defence of provocation under Sharia law
HUMAN RIGHT:- Prisoner convicted under Sharia Law – when sentenced to death in circumstance where plea of provocation would have availed him reducing same to manslaughter – refusal of appellate court to intervene]
PRACTICE AND PROCEDURE – APPEAL:- High Court – Power to order retrial in Common Law Courts of cases of murder tried in Native Courts – S.67 Northern Region Native Courts Law
HUBBARD, AG. F.J. (Delivering the judgment of the Court):
The appellant was convicted of wilful or intentional homicide by the Emir of Kano’s Grade A Court and sentenced to death on the 14th June, 1956.
He appealed against the conviction to the High Court of the Northern Region of Nigeria, which dismissed his appeal. From this dismissal he now appeals to this Court on grounds of law based on provocation.
This appeal must fail because the defence of provocation reducing murder to manslaughter does not exist in Moslem law, the law under which the appellant was tried, nor had the Court of Appeal any power either itself to substitute a finding of manslaughter for murder; or to direct a retrial before a Court administering the Criminal Code so that the appellant could be found guilty of manslaughter only. This Court has dealt at length with these matters in its judgment in fato Tsamiya v. The Bauchi Native Administration (1956) NRLR 73 where all its reasons were given in detail.
This appeal is, accordingly, dismissed.
JIBOWU, AG. F.C.J.: I concur.
DE LESTANG, F.J.: I concur.