Abudu Salawe Vs The State (1972)

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S. SOWEMIMO, AG. J.S.C. 

The appellant was on 8th of October, 1971, convicted on a charge of murder and sentenced to death at the High Court, Auchi by Omo-Eboh, J. He appealed against his conviction to this court and on the 22nd of November 1971, the appeal was heard and dismissed.  We now give our reasons for so doing.

The appellant, Abudu Salawe is one of the children of one Salawe Okhidemhen (now deceased). The appellant and his brothers lived together with their father in the same house at Apana village near Jattu in Auchi Division.

On 2nd December, 1970 at about 7 p.m., Salawe Okhidemhen (the deceased) went to a nearby mosque to say prayers. He was about 80 years of age. On his return from the mosque he hung his chalice on the wall of his parlour and changed his dress. Whilst doing so the appellant fired a gun at  him. As a result he could not stand on his own and learnt against a wall until two of his children came to his assistance. He was later carried to his room but by this time he had died. After firing the fatal shot from his gun the appellant tried to escape by running away.
The medical officer, who performed a post mortern examination on the corpse gave evidence as the 5th prosecution witness. He said-

“I examined the corpse at about 12.40 hours on that day 3/12/70 and found as follows-

1.The corpse was fresh; no decomposition.

2.The height was about 5 feet 6 inches; the head was shaved of hair the  beards were grey; the eyes were black.

3.I observed a gunshot wound with nine (9) entry-wounds extending on the right axilary to the left axilary i.e. from the right armpit towards the left armpit.

5.There was only one exit wound on the left fourth intercestal space i.e. in between the ribs of the left side about the mid axilary line.

6.There was clotted blood in the mouth and the nostrils.

7.The body had on a knicker and was covered with a wrapper.

In my own opinion, I certify the cause of death to be shock secondary to primary haemorrhage arriving from gunshot wound described above.

The probable date of death is 2/12/70. This wound, in my opinion, could not have been self-inflicted.”

The appellant in his defence at his trial alleged that his father (now deceased) poisoned him about 17 years before the date of the incident; that the poison was administered through a wife of the father by the name of Gibia; and that since then he had nursed a feeling that some pain in his chest and eyes was caused by the poison.  Strangely enough this did not seem to have prevented him from qualifying as a shoe maker and umbrella repairer. He did so well in his trade that he was able to give his father, (the deceased), a sum of 50(pounds) when the latter went on Holy Pilgrimage to Mecca. On his return from Mecca his late father fell ill. The appellant also contributed a sum of 35(pounds) towards the cost of his treatment. In spite of these financial contributions however, it would appear from his evidence that the appellant entertained the impression that his father hated him, because he failed to obtain a cure from the alleged poisoning of more than 17 years ago.

What appeared to be the immediate cause of the incident leading to the death of the father of the appellant had to do with appellant’s desire to get a wife.  In his statement to the Police Exh. ‘B’ dated 7/12/70, the appellant stated inter alia as follows-

“This year when I see say my father dey well small, small, I ask him say he help me look for one girl make I marry and I give am 60(pounds).  Instead make he marry this girl for me, he marry the girl for himself and the girl dey for my father house now. The name of the girl nan (Oshi Ogboni) Then me kill my papa and I shot am with gun. I kill am for about 7 o’clock for evening. I see say they don load the gun and they keep it inside my father room behind his cupboard before I take am and kill my father with am.
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My father be dey come from the mosque when I see say he don reach verandah of our house, I tell am say my father, you don finish today and when he see say I don stretch the gun he want come hold me before I just shoot him.”
In another statement, Exh. ‘H’ made on 4th December, 1970, but confirmed before a Senior Police Officer on 8/12/70, the appellant stated inter alia thus-

“Whenever I see the deceased my mind will not be sweet. I told one Abutude of Auchi, one Alhaji Kalua, one Alhaji Lasuru and Chief of Iyare to help me to beg my father the deceased to cure me. I also told one Isinekhua and one Imamudu of Apana, because they were only the people who could advise the deceased.  When I see that the deceased could not take to their advice, I took up gun and fired him. The gun is now inside the bush.”

In his evidence in defence at his trial on 21st August, 1971, the appellant said inter alia thus:-

“My father and family say that I am impotent but I know that I am not impotent and that I do have sex with women hence I worked for money to marry a woman and I gave the money to my father. I showed the daughter of Mrs. Tokhana to my father as the girl I liked for a wife. We all started tending the girl. At last the girl was married to our house and my father said that the girl is his own wife and not mine. I went to Mrs. Tokhana and complained to her and quarrelled with her family.

After some time, I approached my father and asked him what the position was about a wife for me and he named and compared me with Buari of Auchi and Aileru of Ibie who are all mad people and said that I was not better than them.
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My father refused to marry for me saying that I was unwell.

He said so again on the day of the incident when he was returning from the mosque in the evening; he shouted at me that I was a mad and impotent person and how do I except him to marry a girl for me; and so I get annoyed and went and took the gun and shot it at him. It was as he shouted these words at me and 2nd prosecution witness laughed at me, I quickly went for the gun and discharged it against him.”

The learned trial Judge reviewed the evidence called by the prosecution and defence exhaustively. On the issue of provocations, he rejected the evidence of the appellant that his deceased father insulted him as he alleged. He accepted the evidence of the prosecution witnesses that at no time was the appellant ever provoked by his father now deceased. He also accepted the evidence of 1st prosecution witness to whom the appellant had confessed on the day of the incident that he killed his father because the latter did not like him or take care of him. He rejected the allegation of insanity because there was no evidence in support of it.

Furthermore, the learned trial Judge observed that if even he had accepted the evidence of the appellant and his witnesses, it was not sufficient to sustain the defences of provocation and insanity. He pointed out that the defence of insanity was not specifically raised and there was no evidence whatsoever either by the prosecution or the defence from which this plea could be inferred. On the defence of provocation, the learned trial Judge also considered the law applicable, as was expounded in extenso by this court in Obaji v. The State (1965) NMLR 417, pp. 419-423. He concluded, quite rightly in our view, that the defence of provocation was not made out in the case before him.

Mr. Akinrele, learned counsel assigned to argue this appeal stated after a perusal of the records that he could not find anything to urge in favour of the appellant. We had ourselves considered the records and concluded that there was no merit in the appeal. We therefore dismissed it.

Other Citation: (1972) LCN/1635(SC)