Adebayo Adeyemi V. The State (1993)

LawGlobal-Hub Lead Judgment Report

U. OMO, J.S.C.

The appellant in this appeal was originally charged at the High Court of Lagos on 1st July 1986 with the murder of one Subulola King at Abule Ijesha, Lagos on the 21st of January, 1986. At the end of the trial he was found guilty of manslaughter and sentenced to a term of three years imprisonment on 19th February, 1987. He then appealed to the Court of Appeal which confirmed his conviction and sentence. It is against that decision that he has appealed to this Court.

From the seven grounds of appeal filed in support of this appeal, appellant’s counsel has distilled three issues for determination which are set out thus:

(i) At a stage of the submission of no case to answer by counsel to the appellant could the learned trial Judge ask the appellant to defend himself on a charge of manslaughter while discharging him of the offence of murder?

(ii) That if this is so, was it necessary to take his plea on that charge?

(iii) Is the charge against the appellant proved beyond reasonable doubt in the light of the evidence adduced?

The issues for determination as seen by the respondent, though couched in different language, and with a different slant, are not really dissimilar. They are stated as follows:

(i) Whether the ruling by the learned trial Judge in the no case submission on the murder charge that a prima facie case of manslaughter and not murder had been made out against the appellant – tantamounted to an amendment or substitution of the said charge requiring a fresh plea from the appellant.

(ii) Whether the trial Judge and the Court of Appeal were right in holding that the act of the appellant which resulted in the death of the deceased was an act of negligence for which the appellant was criminally liable in manslaughter.

Thus, it can be seen that appellant’s issues (i) and (ii) are substantially the same as issue (i) of the respondent; and that issue (iii) of the appellant and issue (ii) of the respondent are the same.

The first set of issues complain of the procedure adopted by the learned trial Judge and raise points of law which are indeed rather novel. As stated earlier, the appellant was charged with the offence of murder. The charge was duly read to him and he pleaded not guilty thereto. After the prosecution had called its eight witnesses and a visit to the locus in quo had been conducted, appellant’s counsel made a submission of no case on behalf of his client, the main point of which was that on the evidence before the Court no prima facie case of murder had been established. In his reserved ruling the learned trial Judge agreed with appellant’s counsel’s submission, when he held that-

“Upon a calm view of the prosecution’s evidence, I cannot find facts which tend to prove the essential elements of the offence of murder. The evidence at this point, even if I believe it is such that the accused cannot be convicted of murder upon it. The evidence points to an offence of manslaughter. Therefore, I am unable to find that a prima facie case has been made out against the accused on the charge of murder sufficiently to warrant the accused being asked to defend himself.”

(Italics mine)

He however went further to state that-

“By virtue of Section 317 of the Criminal Procedure Law, this Court has power to convict for manslaughter where the charge has been one of murder if the facts prove only the offence of manslaughter as in this case. By this reasoning, it is my view that a charge of murder includes a charge of manslaughter,

and concluded thus –

“In the result, I hold that no prima facie case of murder has been established against the accused person. It is my finding that a prima facie case of manslaughter has been made out for the accused to answer. I rule accordingly. The accused is discharged on the charge of murder. The accused will now proceed to defend himself on a charge of manslaughter.

(Italics mine)

The learned trial Judge in his reserved Judgment held that the offence of manslaughter had been established and convicted the appellant accordingly. It is against this ruling of the trial Court and the affirmation thereof by the Court of Appeal that the appellant has directed his first and second issues for determination.

It is pertinent to observe that in the Court of Appeal the appellant’s first issue for determination was differently couched. It asked.

“Whether the trial of the Appellant of the charge of manslaughter without taking any plea from him is not a nullity”.

(Italics mine)

Appellant therefore seemed to have limited himself to attacking the procedure of the trial court to the failure of the trial Judge to have called upon the appellant to plead to the offence of manslaughter which he called on him to defend himself against. As a result, the Court of Appeal did not have the first issue posed in this Court before it. It confined itself to a consideration of the issue before it, which was anchored on the provisions of Section 164 of the Criminal Procedure Act which deals with the amendment and alteration of charges. It is sufficient at this stage to state that applying the provisions of Sections 315 and 317 of the Criminal Code and Section 179 of the Criminal Procedure Act, the Court of Appeal came to the conclusion that this was simply a question of a more serious offence of murder being reduced to manslaughter; and that since the appellant was not initially charged with manslaughter he did not need to plead to it, having already pleaded to the more serious offence of murder, and only being convicted of the lesser offence of manslaughter. On that basis it found no merit in appellant’s contention that the trial was a nullity and dismissed same.

On the first issue for determination in this Court, it is the submission of appellant’s counsel that once the learned trial Judge had ruled that there was no prima facie case made out in respect of the particular charge of murder before him, he had no more power (jurisdiction) to proceed and find that a prima facie case had been made out in respect of a lesser offence of manslaughter for which the appellant had not been charged before him. In coming to this conclusion, appellant’s counsel referred to Sections 286 and 179(2) of the Criminal Procedure, Law and relied on the case of Omorere vs. The Inspector-General of Police (1956) N.R.N.L.R. 58. Section 286 of the Criminal Procedure Law provides that-

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the defendant sufficiently to require him to make a defence the court, shall, as to that particular charge, discharge him” (Italics mine)

Section 179(2) of the Criminal Procedure Law, on the other hand, states that –

When a person is charged with an offence and facts proved which reduce it to a lesser offence he may be convicted of the lesser offence although he was not charged with it.”

(Italics mine)

Whilst therefore Section 286 refers to a discharge on the particular charge before it if no case is made out, i.e. before a defence. Section 179(2) comes into play only at the time of verdict i.e. in delivering judgment after all the evidence has been heard. Appellant’s counsel submitted therefore that in exercise of its powers under Section 286 of the Criminal Procedure Law it is wrong for the learned trial Judge to substitute an alternative charge of manslaughter. A similar point, but this time on stealing and the lesser offence of receiving, appears to have been considered on appeal by the High Court of the then Northern Region of Nigeria in Omorere vs. The Inspector-General of Police (Supra). In that case the appellant and two others were charged with the offence of stealing. At the close of the evidence of the prosecution, the only evidence against the appellant was that of receiving and his counsel submitted that he should be discharged on the offence of stealing for which he was charged. The learned trial magistrate ruled against that submission holding that there was a prima facie case made out of stealing and called on the appellant to defend himself thereon. His Counsel refused to take any further part in the proceedings in respect of the appellant, who did not therefore testify in his defence. At the end of the hearing the Chief Magistrate convicted the appellant of the offence of receiving relying on his powers under Section 173 of the Criminal Procedure Ordinance. The appellant appealed contending, inter alia, that he ought to have been discharged on the offence of stealing and should not therefore have been called upon to defend himself thereupon. In dismissing the appeal and upholding the decision of the trial Chief Magistrate, the High Court (per Bairamian Ag. C.J (as he then was) dealt with the issue thus:

“Section 173 of the Ordinance enables the court to convict of receiving under a charge of stealing although the defendant was not charged with the offence of receiving. We asked Mr. Ovie- Whiskey, who appeared for the appellant, to explain in what way that section could operate if at the close of the evidence for the prosecution, where the evidence was of receiving, the defendant was to be discharged on the charge of stealing before the court; for then there would be no charge left on which to proceed. Mr. Ovie- Whiskey, as we understood him to say, argued that the magistrate ought to have called upon the appellant, without discharging him, to answer a case of receiving.

This argument virtually abandons grounds (2), namely that the appellant ought to have been discharged, and introduces a new ground, namely that upon the evidence the appellant ought to have been called upon to defend himself on receiving only. There are difficulties in the way of accepting this argument…… The aim of Section 173 of the Criminal Procedure Ordinance is to leave it an open question until the time of the verdict whether a person charged with stealing was guilty of stealing or of receiving.”

(Italics mine)

In that case therefore the appellate court refused the submission of appellant’s counsel that the trial court should have taken a similar (or better) course to the one taken by the trial Judge in the case presently on appeal i.e. to call on the appellant, without discharging him of the offence of stealing, to answer to a case of receiving. The appellate court held that once discharged of the offence of stealing, at the end of the case for th

Other Citation: (1993) LCN/2534(SC)