David Akpobasa & Anor V. The State (1969)

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LEWIS, J.S.C.

In Charge No. UHC/12C/68 Atake Ag. J. in the Ughelli High Court on the 16th of August, 1968 convicted the 1st accused, who is the appellant in this appeal and is hereinafter called “the accused”, of the murder of Ilori Ufeli and sentenced him to death, having earlier discharged the 2nd accused when he upheld a no case submission on his behalf at the close of the prosecution case.

The case for the prosecution was that on the night of 3rd December, 1967 at Ujovwre Village cries of “thief” were heard, the accused got his gun, came out of his house and ran towards the shouting and fired his gun at a man who had jumped out of the window of a room. The man ran into the bush but was found about 400 yards away by the accused lying on the ground; his body was subsequently recovered by the police who took it to the 8th P.W., a specialist Surgeon, at Warri General Hospital, who on the 7th of December, 1967 conducted a post-mortem; he found a penetrating wound on the right chest consistent with a bullet wound and that death from shock and haemorrhage had resulted therefrom.

No one was called at the trial to give evidence who saw the incident and the story of what happened turned on the accused’s evidence and statements that he made. In the accused’s first statement to the police he said:- “When I heard the shout of thief, and the girl named Etuwarha Eda showed me the place the thief entered. I called my father Akpobasa Ogrigri (m) to give me my gun. This he did, and I fired at the thief. After firing at the thief, I could not see Egedegbe Oronimewu (m) again. I returned back from the spot and told my father Akpobasa Ogrigri (m) that I thought that the thief is down.

After telling my father this I went to Adjekerieda village where I saw my friend Egedegbe Oronimewu (m) already there. After seeing him I returned back to our village where I met my father Akpobasa Ogrigri (m) who told me that the thief I fired is dead, and that he had buried him in a place he did not mention to me. So when I heard that my people were arrested hence I came to the police to report myself. It was the thief that I fired.”

Later in another statement he said:- “In addition to my former statement made to the police on 5 December, 1967, I have to state further that it was my father Akpobasa Ogrigri (m) that fired the thief with his dane gun and killed the thief. I only held matchet but I did not use it to cut the thief.” When he came to give evidence at the trial he said in examination in chief:- “When I heard Etuwarha shouting `thief, thief, thief,’ I came out of my room with a gun and I ran to the direction where the girl was shouting. I stood at the back of the house.

As I got there I saw a man jumping out of the window of the room. He was holding a cutlass and was trying to run towards me. I fired at him. He jumped into the bush. Many people came amongst whom was my father. He asked me where the thief ran to and I told him that I shot him and that he ran into the bush. He and I began to walk in the direction the thief ran.

After walking for about 400 yards we came on a man who was lying on the ground. I looked at him, became afraid and ran back home.” And under cross-examination he said:- “When I saw the deceased on the ground in the bush I was afraid and my mind did not go to the cutlass I saw with him earlier on. I shot the deceased because I was afraid. I was about 24 feet from the deceased when I fired at him. To Court: When I came out of my room I went to the entrance of the room from where the girl was shouting. The girl said `he was passing through the window’ and so I went to the back of the house.

I did not run away from the village after the incident. I took my child who was ill to another village to cure her. To Court: It was I who fired at the thief. I did not make a supplementary statement in which I said it was my father who fired at the thief. To ljewere: I did not show anybody the cutlass with the thief because my mind did not go to there.” The learned trial judge in his judgment said:- “In his evidence in the witness box he attempted quite unsuccessfully to put a little twist on the statement as recorded above. He said that when he heard the alarm `thief, thief’, raised, he went to the entrance of the room. The girl said that the thief was passing through the window and so he went to the back of the room. He saw the thief jump out from the window: the thief was holding a cutlass and was running towards him and so he fired; the suggestion being that he fired in self defence. After firing at him the deceased ran into the bush.

It is pertinent that in his statement, exhibit ‘E’, he did not say that the deceased ran towards him, holding a cutlass. And in any case he has not suggested that the deceased lifted the cutlass to cut him, neither has he said how near the deceased was to him or that in the circumstances he believed on reasonable grounds that if even the deceased had a cutlass, which I am satisfied was not the case, he could not otherwise preserve himself from death or grievous harm: these being the only conditions that could justify him on a plea of self defence in using such force as may cause death or grievous harm.

Firing a gun at a person is certainly an act that may cause death or grievous harm and before a man who fires a gun at another can succeed in pleading that he did so in self defence he must fall within the conditions prescribed by Section 223 of the Criminal Code.

The accused cannot in my mind seek refuge in that section.” and later said:-  “It is clear that the accused did know or believe that he had indeed hit the thief when he fired at him and he so informed his father. Which leads one to the view that the thief was within view of the accused when he shot at him that night. It was night and visibility must be such that the accused saw the deceased. So it appears to me that the accused shot the deceased as he was escaping apparently into the bush behind the house burgled. That must be the case …. I do not accept his story that the deceased ran towards him with a cutlass. That is a lie. The accused has told deliberate falsehood on more than one occasion in this case. He denies his supplementary statement in which he accused his father falsely of killing the deceased. I am however satisfied that he made it only a day after he had himself confessed to the killing of the deceased and what is more he confirmed it before a Superior Police officer.” and concluded by saying:-  “Mr. Idigbe raised the point that the accused acted in defence of the sister’s property.

I do not accept that contention for the facts which I find are against it and are that the deceased must have broken into the house to steal and that on hearing the alarm `thief, thief’ raised, made to escape. He jumped out of the room through the window and the accused fired at him in his bid to escape. I find as a fact that the intention of the accused was to kill or at least to do him grievous harm and in my opinion R. v. Aliechem 1 FSC. 64 applies to this case.”  Now Mr. Cole for the appellant has argued together three grounds of appeal namely:-  

“1. Upon the finding of the lower court that the deceased `jumped out of the room through a window and the accused fired at him in his bid to escape’ the appellant, on the authority of Obot v. The Queen 14 WA.C.A. 352, ought not to have been found guilty of murder.

2. Having regard to the totality of evidence on which the prosecution relied the learned trial judge erred by finding to the effect that mere intention of the appellant to kill the deceased or to do him grievous harm was sufficient to found a conviction on the charge of murder.

3. In postulating theories as to how the deceased was killed, the learned trial judge failed to consider the materiality of the evidence of Dr. Benjamin Oni-Okpaku, 8th P .W. which established that the deceased was shot in the chest.”

It is his submission that the learned trial judge did not take account of the evidence of the Surgical Specialist, the 8th P.W. that the deceased was shot in the chest and in his submission that evidence of a frontal wound sustained the story of the accused that he shot the deceased as he was running towards him. He further submitted that if that was so and the learned trial judge had taken account of it he would more likely have believed the story of the accused that the deceased ran towards him with a matchet, which the learned trial judge in fact rejected.

He submitted that if this Court accepted that the accused shot the deceased when he was running towards him with a matchet then he acted in self-defence and should have been acquitted or alternatively at the least as the accused was acting in the defence of property he was entitled to have the verdict reduced to one of manslaughter on the authority of Obot v. The Queen 14 WA.C.A. 352 and R. v. Aniogo 9 WA.C.A. 62 rather than for this Court to follow R. v. Aliechem 1 F.S.C. 64 upon which the learned trial judge relied.

Before turning to the examination of the cases we would first say that we do not see that because the learned trial judge did not advert to the medical evidence of the wound in the chest that must automatically mean

Other Citation: (1969) LCN/1712(SC)