Tonga has taken the matter to the Court of Appeal in Jos, and wants the sentence quashed.
Justice A.B. Kumalia of High Court 12, Maiduguri, had, on Feb. 25, 2014, sentenced Tonga of Barama Village in Hawul Local Government of Borno to death by hanging, for killing Ali, whom he accused of having a love affair with one of his three wives, Fatima.
When the case came up before appellate Justices led by A.G. Mshelia on Monday, counsel to Tonga, Mr Aliyu Sangei, told the court that his client was sentenced in error and declared the judgement as “a flagrant abuse of court process”.
Sangei appealed to the court to allow his client’s appeal and set aside the decision of the lower court by discharging and acquitting Tonga.
He argued that Tonga was tried, convicted and sentenced to death in flagrant abuse of court process, with two charges simultaneously filed against the appellant in respect of one and the same offense.
He said that one of the charges was still pending.
The appellant’s counsel also claimed that Tonga did not sign the alleged statements (Exhibit C1 and C2), used by the lower court, whose judge did not also sign his ruling and judgment.
But the defense counsel, Mr Garba Chibok, said that the lower court acted rightly and not in error since Tonga himself confessed to committing the culpable homicide, contrary and punishable under Section 221 of the Federal Republic of Nigeria.
In his argument, Chibok said that the statements of Tonga were signed and that the court did not make any error in its judgment, and therefore urged the justices to apply, recognize and uphold it.
Chibok appealed to the court to look at the merit of the lower court’s judgment and dismiss Tonga’s appeal for lack of merit.
“Tonga had called his three wives and informed them of his knowledge about the secret escapades of one of them and had wanted an outright confession.
“He threatened to use the Holy Quaran to swear against the suspect, if she failed to confess to him.
“It was at that point that Fatima confessed and gave the name of Ali as her lover.
“Tonga, in anger waylaid Ali and killed him with a cutlass and a knife and did not deny it.
“He confessed to committing the crime before the Village Head, Police and the lower court, which convicted and sentenced him to death in accordance with the law,’’ he said.
After listening to the two counsel, the presiding lead Judge, Justice A.G Mshelia, announced that the court has reserved judgment to a date to be communicated to them.