⦿ CASE SUMMARY OF:
Nafiu Rabiu v. Kano State (1980) – SC
– Right to appeal;
– Constitutional Interpretation;
– Culpable Homicide;
(1980) 11 iLAW/SC.49/1980;
(1980) 8-11 S.C.;
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Chief Williams, SAN
* FOR THE RESPONDENT
– Mr Kehinde Sofola, SAN
⦿ FACT (as relating to the issues)
On the 9th May, 1979, the appellant and his wife (Hajiya Fati Mohammadu Nafiu, hereafter referred to simply as “the deceased”), and three of their friends had dinner in the garden of their residence at 13 Dawaki Road Nasarawa, Kano. The District Head of Jahun (P.W.4) one of their guests was the last to leave the residence, and this was between the hours of 10p.m. and 11p.m. P.W.4 in his evidence said that when he left the deceased and the appellant, the former “was quite alright”. This evidence was also confirmed by two employees of the appellant, P.W.3 (the driver) and P.W.2 (the cook) who said in his evidence, “I left Hajiya Fati in good health, joking…”.
There is evidence that when the last of the invitees left 13 Dawaki Road, all other employees of the appellant had retired to their various homes; that is, after P.W.4 (the District Head of jahun) had gone, the appellant and the deceased were the only persons left in the garden. It is pertinent to mention that there is evidence that, at the request of the appellant, P.W.3 who usually kept the key of the only entrance to the premises (i.e. the gate) handed that key to the appellant who offered to lock the gate when the last of the invitees should leave the party. It is in evidence that the only employee of the appellant who lived within the premises (13 Dawaki Road) in the “Boys quarters” is the driver (P.W.3). He had no key to any of the doors leading into the main or principal house (occupied by the deceased and the appellant). P.W. 2 (the cook) had a key that could only let him in from the premises into the kitchen; he had no key that could let him into any other part of the principal or main house.
In the morning of 10th May, 1979, P.W.2 (the cook) came to the premises at the hour he usually reported for duty, he could not enter as the gate was still locked. He saw P.W.3 (the driver), who normally kept the key to this gate, standing outside the main house but within the premises; he did not have the key to the gate. After waiting for about two hours, the appellant gave to P.W.3 the relevant key; this was about 10 a.m. The appellant was still inside the main house but threw the key to P.W.3 from one of the windows. A little later the appellant called on P.W.2 (who was now within the premises) to open the kitchen door adding that he had misplaced the key to the “front door”, this is, the main entrance into the principal house. Later, appellant came out of the house carrying a brief case and some quantity of “soiled blankets and clothes” which P.W.3, (at his appellant’s request) later placed into the boot of one of his cars (a Peugeot 504). The driver (P.W.3) later, on the instructions of the appellant, drove his other car (a Mercedes-Benz saloon) to the Kano Airport to make the same (i.e. the car) available to the appellant’s mother-in-law who was, as the appellant claimed, due to arrive in Kano from Niamey, by air, that morning.
The appellant later drove away in the Peugeot 504 car; however, he told P.W.2 (the cook), before driving away in the Peugeot car, to give to the deceased, who in the meantime was – according to the appellant – still asleep, whatever she required, whenever she woke up. Before he drove away in the Peugeot car, the appellant also gave to P.W.2 the key of the door leading from the kitchen into the lounge and other parts of the main house; it was the first occasion, since the employment of P.W.2 that he had possession of this key. On his return from the Kano Airport P.W.3 reported to the appellant at his office which is located in some other part of Kano city; the appellant asked him to take the Peugeot car to a mechanic as it needed some repair. Before taking the Peugeot car to the mechanic the driver P.W.3 examined the boot in order to remove “the soiled blankets and clothes” he had earlier placed there that morning before the car was driven away by the appellant; the soiled blankets and clothes, however, were no longer there. About 2 p.m. of the same day P.W.8 (another driver in the employment of the appellant) on the instructions of the appellant brought his (appellant’s) children from another part of Kano to the house to call on their mother (the deceased). The children having been let into the house by P.W.2 went into their mother’s room, on the first floor to call on her. Later the children called out on P.W.2 saying that they tried to wake up their mother but she failed to respond to their call. P.W.2 advised that they should all wait for the return of the appellant, who arrived in his Mercedes saloon car shortly after P.W.2 had given this advice. They all went into the room and discovered that Hajiya Fati Mohammadu Nafiu was dead.
In his judgment the learned trial Judge, Jones, CJ., was of the view that the medical evidence on the cause of death was unsatisfactory and did not establish the cause of death. He was unable therefore to find it proved beyond reasonable doubt that the appellant had, as stated in the information, preferred against him, killed his wife by “strangulation”. Accordingly, the appellant was “acquitted and discharged.”
Dissatisfied with this decision, the prosecutor (the State of Kano) appealed to the Court of Appeal. The main contentions of the appellant in opposition to the respondent’s appeal in that court, as it appears to me from the record, are as follows: (1) the prosecutor in Kano State has a right to appeal only on a point of law; he does not have a right of appeal on grounds of facts, or mixed law and facts. (2) Since none of the grounds on which the State of Kano appealed to the Court of Appeal is one of law, and since, further, the appeal before that court is not one brought “by the Attorney-General” under the provisions of sub-section (a) of Section 222 of the Constitution, the appellant submitted that the appeal is incompetent.
In the trial court, that court came to the conclusion that it cannot find it proved beyond reasonable doubt that death was due to strangulation. Accordingly, it did not find the charge against the appellant proved, whereupon the appellant was acquitted and discharged of the charge of culpable homicide, punishable with death, of his wife (the deceased).
On appeal by the prosecution from the trial court’s judgment, the Court of Appeal reversed this verdict and substituted one of guilty of culpable homicide not punishable with death and sentenced the appellant to a term of 4 years imprisonment.
In the Supreme Court, there was a cross-appeal by the prosecution in which it contended that the court of appeal ought to have found it proved that the appellant was guilty of culpable homicide punishable with death. This cross-appeal was, in the course of argument of the main appeal before us, withdrawn by the prosecution; and it was accordingly struck out.
The principal contention of the appellant before us is that most of the grounds argued by the prosecution in the Court of Appeal dealt with facts and some, at best, dealt with mixed law and facts; and it was submitted to us that it was not open to the prosecution to argue such grounds of appeal under sub-section 2 of Section 284 of the C.P.C.
1. Has the Federal Court of Appeal jurisdiction to entertain an appeal at the instance of the prosecution from a verdict of acquittal in the High Court?
2. If the answer to question (1) is in the affirmative, does such an appeal lie on questions of law only or on questions of fact as well?
3. On the primary facts proved or given in evidence, is the conclusion of the learned Chief Judge that death was not due to strangulation (which is one of secondary fact) one which a reasonable jury or a judge sitting as a jury can reach?
⦿ HOLDING & RATIO DECIDENDI
1. For ISSUE 1 & 2, the Supreme Court held that the Prosecutor has a right of appeal and that such right exist on point of law only, respectively.
i. The exercise by the Legislature in Section 284(2) demonstrates a case where a State Legislature bearing in mind the existing rights under the Constitution decides to create a new right of appeal not ordinarily or directly available to the Prosecutor; and also bearing in mind, as is evident from the provisions of sub-section (1) of Section 284 of the C.P.C., that whatever right it creates must not be inconsistent with the Constitution existing at the time of its enactment, proceeds to create the new right of appeal. Since it expressly provides a right of appeal from decisions of the High Court sitting at first instance [as opposed to decisions of that court on a ‘double appeal’ in Section 284 (2)], that section cannot be read with Section 220(1)(b) of the 1979 Constitution (which as I have stated earlier on deals with ‘double appeals’ and interlocutory matters); but must be read together with Section 220(1)(a) which deals with decisions of the High Court given at first instance, that is, sitting at first instance. What the Legislature of the State has done is that it has deliberately given an additional but deliberately limited new right of appeal (i.e. a right of appeal, from decisions of the High Court at first instance, only on a point of law). It, however, has not given an inconsistent right. Had the State Legislature, for example, proceeded to create a new right of appeal on a point of law by leave of court (instead of, as it has done, as of right) then such a provision will now clearly offend the clear provisions of Section 220(1) of the 1979 Constitution and will, without any shadow of doubt, be inconsistent with it and, consequently, invalid. It is, however, my view that the validity of Section 284(2) of the C.P.C. is preserved under the new Constitution by virtue of sub-section (1)(g)(v) of Section 220 thereof. [Yekini Onigbeden v. Ishola Balogun (1975) 1 all NLR 233 at 241; National Employers Mutual General Insurance Association v. Uchav (1973) 1 NMLR 170 at 172-3; Kiren v. Paschal and Ludwig Incorporate (1978) 11 and 12 S. C. 77] My Lords, the conclusion which I have reached, therefore, is that the prosecutor in the Northern States has a right of appeal from an order of acquittal, made by a High Court sitting at first instance, in criminal proceedings but only on points of law.
2. For ISSUE 3, the Supreme Court held in favour of the respondent.
i. I am of the considered view that no reasonable jury (or judge sitting as a jury) applying their minds to proper consideration of the primary facts proved in this case and giving themselves proper directions at the same time not failing to advert to some of the proved primary facts, as the learned trial Chief Judge failed to do in this case, could have failed to reach the conclusion that the cause of the deceased’s death was asphyxia resulting from strangulation. That being so, it is my view that the conclusion reached by the trial court in this case is indeed, perverse and ought to be reversed as indeed the Court of Appeal quite rightly, in my view, has done.
⦿ SOME PROVISIONS
Section 220 (1) of the 1979 Constitution: “An appeal shall lie from the decisions of a High Court to the Federal Court of Appeal as of right in the following cases – (a) final decisions in any civil or criminal proceedings before the High Court sitting at first instance. (b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings. (c)… (d)… (e)… (f)… (g) decisions made or given by the High Court (i)… (ii)… (iii)… (iv)… (v) in such other cases as may be prescribed by any law in force in Nigeria.”
Section 222(1) of the 1979 Constitution: “Subject to the provisions of Section 220 of this Constitution an appeal shall lie from decisions of a High Court to the Federal Court of Appeal with leave of that High Court or the Federal Court of Appeal.” “222: Any right of appeal to the Federal Court of Appeal from the decisions of a High Court conferred by this Constitution – (a) shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with leave of the High Court or the Federal Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney -General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;”
Section 277(1) of the 1979 Constitution: “‘decision’ means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation;”
The 1960 and 1963 Constitutions define the term “decision” in Sections 110(7) and 117(7) respectively thus: “means in relation to the High Court of a territory any determination of that High Court and includes (without prejudice to the generality of the foregoing – See 1960 Constitution; without prejudice to the generality of the foregoing provisions of this sub-section – See 1963 Constitution), a judgment, decree, order, conviction, sentence … or recommendation.”
Section 284 of the Criminal Procedure Code reads: “(1) Appeals from the High Court in criminal matters shall be in accordance with the provisions of the Constitution of the Federation. (2) The prosecutor may appeal as of right to the Federal Court of Appeal on any question of law from a decision of the High Court sitting at first instance. (3) The prosecutor may appeal with leave of the Federal Court of appeal or of the High Court to the Federal Court of Appeal: (a) on any question of fact or of mixed law and fact from a decision of the High Court sitting at first instance; or”
⦿ RELEVANT CASES
Kepner v. United States (1903) 195 U.S. 100 at 130; also 24 Supreme Court Reporter 797 at 806-807, which repays quotation. Dissenting from the majority judgment in that case, Holmes, J., observed: “It is more pertinent to observe that it seems to me that logically and rationally a man cannot be said to be more than once in jeopardy in the same case, however often he may be tried. The jeopardy is one continuing jeopardy. Everybody agrees that the principle in its origin was a rule forbidding a trial in a new and independent case where a man has already been tried once. But there is no rule that a man may not be tried twice in the same case … If a statute should give the right to take exceptions (exceptions for error in trial i.e. a right of appeal) to the government, I believe it will be impossible to maintain that the prisoner would be protected by the Constitution from being tried again … For the reasons which I have stated a second trial in the same case must be regarded as only a continuation of the jeopardy which began with the trial below”
Privy Council in Attorney-General for the Province of Ontaria & Ors. v. Attorney-General for the dominion of Canada (1912) AC 571 at pages 583-584 which words I would adopt: “In the interpretation of a completely self-governing Constitution founded upon a written organic instrument, such as the British North America Act, if the text is explicit the text is conclusive, alike in what it directs and what it forbids. When the text is ambiguous, as, for example, when the words establishing two mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act. Again, if the text says nothing expressly, then it is not to be presumed that the Constitution withholds the power altogether. On the contrary, it is to be taken for granted that the power is bestowed in some quarter unless it be extraneous to the statute itself…or otherwise is clearly repugnant to its sense.”
⦿ NOTABLE DICTA
Accordingly, where the question is whether the Constitution has used an expression in the wider or in the narrower sense the court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose. – Idigbe, JSC. Nafiu Rabiu v. Kano State (1980)
It is well known that where a statute defines a word simply as “means so and so”, the definition is meant to be explanatory and prima facie restrictive but where the word is so defined to “include’ so and so” then the definition is clearly intended to be extensive. – Idigbe, JSC. Nafiu Rabiu v. Kano State (1980)
Prior to 1960, the right of appeal from a verdict of a Criminal Court was (as is the case at common law in England) available only to the accused person. However, with the coming into force of the 1960 Constitution, the Legislature of the Regions of this country were for the first time in the legal history of this country severally specifically empowered, to make provisions for a right of appeal by the prosecutor and they each took advantage of this specific provision; and Section 284 of the Criminal Procedure Code of the Northern States is one example of this exercise. – Idigbe, JSC. Nafiu Rabiu v. Kano State (1980)
My Lords, in my opinion, it is the duty of this court to bear constantly in mind the fact that the present Constitution has been proclaimed the Supreme Law of the Land; that it is a written, organic instrument meant to serve not only the present generation, but also several generations yet unborn; that it was made, enacted and given to themselves by the People of the Federal Republic of Nigeria in constituent Assembly assembled – for which reason and because it is autochthonous, it, of necessity, claims superiority to and over and above any other Constitution ever devised for the governance of this country – the unwarranted intermeddlesomeness of the military authority with some of its provisions notwithstanding; that the function of the Constitution is to establish a framework and principles of government, broad and general in terms intended to apply to varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. – Udo Udoma, JSC. Nafiu Rabiu v. Kano State (1980)
I might add that in my opinion, it is not a correct approach to the proper interpretation of our present Constitution to begin by looking to the meaning or interpretation of a statutory provision or Constitution of other countries with different wordings. But of course, foreign Constitutions or statutes with identical provisions accepted as in pari materia with the relevant provisions of our Constitution will naturally carry some weight in their persuasive influence, bearing in mind always, that even in such cases, circumstances may be at variance. – Udo Udoma, JSC. Nafiu Rabiu v. Kano State (1980)
It is my considered view that as presented in the brief and put before the court, the submission that the Federal Court of Appeal had no jurisdiction to have entertained the appeal is based on a complete misconception of the issue involved in the appeal. It seems to me that the issue is not a matter involving or challenging the jurisdiction of the Federal Court of Appeal. The complaint really was directed against the locus standi or the competence of the prosecutor to have initiated the appeal, and the matter should have been so treated. The Federal Court of Appeal is endowed by the Constitution with the fullest possible jurisdiction to entertain any appeal by anyone competent to do so within the limits prescribed by the Constitution. That is the sole purpose of the provisions of Section 219 of the Constitution, which confer the widest possible jurisdiction on the Federal Court of Appeal. – Udo Udoma, JSC. Nafiu Rabiu v. Kano State (1980)
I find nothing in the definition of the word “decision” in the Constitution of 1979 which by any stretch of the imagination could exclude an “acquittal” from the purport of the said definition. Given the peculiar circumstances of the history of this nation and the short-lived nature of our involvement with democratic institutions from the end of colonial rule, I would shudder to think that the framers of our present Constitution would have intended, by one fell-swoop, to deny a prosecutor the right to appeal against an acquittal on any ground. To my mind, a greater invitation to chaos and or instability there cannot be. It seems to me that, if this were the intention of our law makers, it would be impossible to stem or dam the tide of mischief that would thereby arise. In short, all that a misguided or mischievous bench of first instance need do, is to go to sleep while evidence is being given in a criminal case and, at the end thereof, to pronounce the magical words – “I acquit…” and there the matter would rest. This could also be an invitation to corruption at its worst. Indeed, a surer way to discredit the entire judicial process may be difficult to find; and when this happens, the alternative is a total and complete break-down of law and order. The possibility that a decision by an inferior court may be scrutinised on appeal by a higher court, at the instance of an aggrieved party, be he an accused person or a prosecutor, is by itself a safe-guard against injustice, by acting as it were, as a curb against capriciousness or arbitrariness. In short, no judicial officer would consciously wish to expose himself to ridicule, and the possibility for this would not be there, if his decision ending in an acquittal in a criminal case can never be tested on appeal. Such a situation would have been apposite in the case in hand, where, given the perverse findings of the learned Chief Judge, the appellant would be in the position to say – ” I cannot be touched, I have been acquitted. The Constitution says so.” – A.G Irikefe, JSC. Nafiu Rabiu v. Kano State (1980)