Anthor Okpere Vs The State (1971)

LawGlobal-Hub Lead Judgment Report

COKER J.S.C. 

The appellant was charged and tried at the Ikeja Assizes by Adebiyi, J. and a twelve-man jury for the murder on the night of the 12th June, 1969, of one Ganiyu Jimoh. The case for the prosecution is that the death of the deceased was caused by injuries which he had received from the hand of the appellant along Isheri Road, Ikeja, on that night. In all eight witnesses gave evidence for the prosecution but of these only two actually saw the locus in quo before the incident described as causing the death of Ganiyu Jimoh. One was an expatriate engineer in the employment of a commercial company nearby by the name of Kamas Masoud. According to him, on the night in question, as he went back home in his car, he saw two boys fighting near a river along the Isheri Road. He slowed down and from his car told them not to fight. As they refused to heed his entreaties he drove off in his car. He could not identify either of the boys fighting but he recollected seeing a man with a bicycle which he held by the roadside on the other side

. The other witness was a student by name Obafemi Mesileya. He stated on oath that as he passed by the river along the Isheri Road on the same night he saw the appellant and Ganiyu Jimoh fighting. He got off his bicycle and tried to separate them but as he did not succeed he withdrew to the other side of the road. Whilst there, a man in a car, apparently the engineer, passed by and spoke to the men fighting to desist from fighting. They did not heed him and he drove off. Soon thereafter, according to Obafemi Mesileya, he heard one of the boys, apparently still locked in combat with the appellant, shouting, “You have wounded me!”. Ganiyu then fell down and lay on the ground bleeding from his head. The witness was able to see the men fighting with the aid of a torch-light which he carried; and indeed saw the appellant and his wife Rosaline running away from the scene as Ganiyu Jimoh lay helpless on the ground. Ganiyu Jimoh, according to him, was later carried away to the hospital by a motorist and he died shortly afterwards there.

A doctor had performed an autopsy on the corpse of Ganiyu Jimoh in the morning of the 14th June, 1969. The doctor gave evidence at the trial of the appellant. He thought death must have taken place on the 13th June, 1969. He had found on the deceased:-

(i) a sutured laceration of the skull in the frontal area about four inches long from front to back;

(ii) a bruise of the scalp in the same area, 2.5 by 3 inches and beneath the swelling the bone of the skull was broken into pieces;

(iii) bleeding into the skull cavity.

The doctor further testified as follows:

“In my opinion the skull injury and the allied injuries were due to the deceased having been struck on head with a heavy blunt instrument e.g. a cudgel. I certified the cause of death in my opinion to be fracture of the skull. The injuries could not have been self-inflicted.”

After the close of the case for the prosecution, the appellant elected to and did give evidence in his defence. According to him he never knew Ganiyu Jimoh before but on the night of the 12th June, 1969, along the Isheri Road by the river, he saw a tipper-lorry being driven furiously along the road and he saw the lorry strike down a man walking along the right-hand side of the road in the direction of Ikeja. He saw the man writhing in pain on the ground. He was very much afraid and so ran home to call his relations to the scene. He denied fighting with Ganiyu Jimoh on that night or at all but admitted that at that same time he was told by the witness, Obafemi Mesileya that he, appellant, had wounded Ganiyu Jimoh.

The learned trial Judge summed up the whole case to the jury and after retiring for some forty-five minutes the jury returned a verdict of guilty of murder. The appellant was accordingly convicted and sentenced to death. He has now appealed to this Court against his conviction and the substance of his complaint before us is that the learned trial Judge misdirected the jury in the course of the summing-up and that in particular the following passage in the summing-up was prejudicial to his case:

“It is for you, having considered the whole of the evidence, to choose whether you would believe Obafemi on the one hand or the accused person on the other. You may think that Obafemi’s evidence is true and is amply supported by Mr. Masoud’s and that the two of them spoke of the same fight. If you take the view then on Obafemi’s evidence can you really doubt that Ganiyu’s injuries were inflicted by the accused person seconds before Ganiyu shouted “You have wounded me” and Obafemi moving nearer them to find Ganiyu, on the ground, bleeding If you take that view of the evidence then the provisions of Section 316(2} of the Criminal Code would appear to have been satisfied as anyone hiting another on the head with a blunt object is in law taken to have, at least, intended to cause that other grievous harm.”

Learned Senior State Counsel who appeared for the State submitted that the direction was not prejudicial but conceded that in the light of the available evidence this direction was hardly sufficient especially if it was brone in mind by the learned trial Judge, as it should be, that the appellant was also entitled to an alternative conviction for manslaughter. He then submitted that there was a direction to the jury with respect to manslaughter instead of murder and eventually asked us to substitute a conviction for manslaughter if we came to the conclusion that the direction with respect to manslaughter was in the circumstances inadequate.

It is true, as the learned trial Judge pointed out to the jury in the course of the summing-up, that the “case has been fought on the basis of murder or nothing at all”.

This observation can of course only refer to the prosecution for both in his statement to the police and his evidence before the court the appellant’s stand was that he did not fight Ganiyu Jimoh (later deceased) and that he saw him knocked down by a passing tipper-lorry. This story of the appellant was quite easily demonstrated to be false and one cannot under-estimate the probative value of the cumulative effect of the evidence of the prosecution witnesses pointing unequivocably to the fact that it was the appellant who fought with Ganiyu Jimoh on the night in question; and indeed that he was the person who inflicted the fatal wounds on the head of Ganiyu Jimoh from which injuries he had died early in the morning of the following day. But it has never been the law that the mere fact that a person told lies is by itself sufficient to convict him of an offence unconnected with mendacity nor does the fact that an accused person has told lies relieve the prosecution of its duty of proving the guilt of the accused of the offence charged beyond all reasonable doubts. (See Woolmington v. Director of Public Prosecutions (1935) A.C. 462.

It is manifest that in that part of the summing-up which we have quoted the learned trial Judge drew the attention of the jury to the infliction of the fatal wounds on Ganiyu Jimoh and then called their attention to the provisions of section 316(2) of the Criminal Code. That provision reads as follows:

“316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstance, that is to say…”

(2) if the offender intends to do the person killed or to some other person some grievous harm; … is guilty of murder.

In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed…”

Undoubtedly the provision deals with the intent with which a wound is inflicted but does not describe the circumstances under which the offending blow was struck. It is generally agreed that motive is irrelevant in a case of murder but it not infrequently happens that the evidence relied upon to ground the inference of a murderous intent will itself show circumstances which negative such an intent, man striking in self-defence may intend the dangerous if not fatal consequences of his act. The circumstances under which he decided to do that which he did are extremely relevant in the consideration of his guilt or otherwise.

In a similar way section 318 of the Criminal Code speaks of the ameliorating effect of provocation. The implications of this section were extensively discussed in the case of Chukwu Obaji v. The State (1965) N.M.L.R. 417, especially at p.422. In the course of a fight it is evident that occasions may arise either for self-defence or for the ventilation of sudden and contemporaneous provocation and it is set tied that where provocation of the type envisaged by section 318 of the Criminal Code is established the offence is manslaughter and not murder.

In the case in hand it is doubtful whether the learned trial Judge adverted to this situation from the same standpoint. This is obvious from the short paragraph in which he directed the jury on the issue of manslaughter. He said:-

“However, I feel bound to direct you on one aspect of the law of manslaughter. If you are not satisfied that when the accused person wounded the deceased he had the intention spoken of in section 316{2} – to do to the person killed grievous harm – then you must return a verdict of guilty of manslaughter.”

With respect, this direction is manifestly inadequate. In this case the prosecution had charged the appellant with murder and the prosecution must establish that charge in order to secure the conviction on it. We have already referred to the evidence of the only two witnesses who saw the scene of the crime before the wounds on Ganiyu Jimoh were inflicted. These two witnesses both talked of a fight. There is no evidence of the details of the fighting but it is beyond doubt that it was of such ferocity as to attract the attention of Mr. Kamas Masoud from his passing car and to scare off Obafemi Mesileya from further attempts to come personally between the two fighters. The appellant must have lied when he stated that he did not hit Ganiyu Jimoh on the head but the prosecution gave no evidence by which the jury must conclude that he committed murder in the course of the fighting by doing an act entirely underserved by the circumstances of the occasion in the eyes of our criminal law. The jury ought to have been told that unless they were convinced that that was the position, that in the course of the fighting the appellant went out of the way and did something which was not justified by the occasion and with the intent described in section 316{2} of the Criminal Code, then they should return a verdict of manslaughter. We have come to the conclusion that if in the present case the jury were properly directed along the lines which we have suggested, they would have returned a verdict of manslaughter and not murder.

The appeal therefore succeeds and the conviction of the appellant for murder and the sentence of death are set aside. It is ordered that a verdict of guilty of manslaughter be returned for the appellant and that he be convicted accordingly. With respect to sentence we cannot but share the feelings of the jury that this was a despicable crime committed in the course of what must by all standards be considered a savage exercise. The appellant will go to prison for eight years I.H.L.

Appeal allowed: Conviction for murder set aside: Verdict of manslaughter substituted.

Other Citation: (1971) LCN/1239(SC)