James Odunayo Vs The State (1972)

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SOWEMIMO, JSC.

The appellant was convicted and sentenced to death by Craig, J., at Ado-Ekiti in the Ekiti Judicial Divison of the High Court of Western State on 19th of October, 1970. He appealed to the Western State Court of Appeal who dismissed his appeal. He has now appealed to this court against the judgment of that court.

The fact as to the killing of the deceased, who was the wife of the appellant, is not in dispute. He, the appellant, admitted that his wife died as a result of gun shot wound which according to him was accidental. He admitted striking the deceased with the flat side of his matchet but denied inflicting the matchet cuts found on the deceased. Although the appellant’s defence was that the death of the deceased was accidental, the argument which was addressed to us, and which was also canvassed at the Western State Court of Appeal, was that the appellant was provoked and that defence was not considered by the learned trial Judge.

It is not in dispute that on 9/10/69, the appellant lodged a report at the Police Station, Akure. He told the Policeman on duty that he had had a quarrel with his wife, that he was provoked and that he had shot her dead. He did not tell the Policeman the nature of the provocation. The appellant volunteered a statement to the Police on 10/10/69, a day after the incident – Exhibit 5 (English translation, Exhibit 5A). He said that he had entertained some suspicion about the relationship of his wife with an Urhobo man.

He confronted the wife with this allegation but she denied it and swore that it was not true. He also complained about his wife refusing to have marital relations with him. On the day of the incident the wife had just returned from a visit to her sick mother at Efon. The appellant then gave her 2/6d for her to purchase edibles from the market. The appellant later went to his farm carrying a dane gun and a cutlass. The appellant, in his statement narrated what happened thus:-

“I was going when I met my wife near the house of the Urhobo man there my wife asked me whether I was going to the Urhobo man’s house, she further said I should continue to shadow my head. I told her I was not going to meet the Urhobo man, there she told me that as I was holding a gun I should shoot her there I was ashamed and I shot her. When I shoot her with the gun she fell down, when she fell down she raised her hand up and I used my matchet to hit the hand down.” (Underlining is ours)

It is to be noted that the trial took place about a year after the incident. The appellant, in his defence at the trial, gave a different version of what took place. He gave evidence as follows:-

“On that day I was at Aisegba. In the morning at about 8a.m., I was going to the farm and I carried my gun and my cutlass which I would use on the farm. As I was going, my wife ran after me held in my private parts. I carried my gun on the left shoulder and my cutlass in my right hand. I supported the gun on my left shoulder with my left arm. As my wife held my private parts, I used the flat side of my cutlass to strike and shake off her hand. She told me the “reason for holding on to my private parts. She said that I was fighting for what she had already carried to another man’s house.”

On the day of the incident, when my wife told me that she had taken what I was fighting for to another man, my mind was hot. I was very annoyed. Apart from holding my private parts, my wife said I would suffer disgrace over this matter. When she held my private parts, I struck her hand with the flat side of my cutlass so that I could free myself from her grip. As I struck her hand the gun which I was carrying on my shoulder fell off and exploded. My wife fell down I think that the gun exploded on her. PAGE| 3 Under the cross-examination, he said that the gun went off accidentally and that he never matcheted the deceased on the head, neck and or wrist. The doctor who performed the post mortem examination on the corpse of the deceased described his findings thus:- “On examination, I found that the body was that of an adult female African about 46 years old. It had deep cuts at the back of the head extending to the occipital bone. There was a deep incised wound through the right side of the neck. There were three cuts through the right wrist. These wounds are consistent with a sharp instrument like a matchet. The cuts could not be self inflicted.

“In my opinion death was caused by haemorrhage (bleeding) from multiple cuts; the cut at the back was inflicted by the same instrument.”

It should be observed that, throughout the evidence of the doctor, learned Counsel who appeared for the appellant did not cross-examine him about any gunshot wound, let alone that the cause of death was due to it. This is remarkable in view of the defence of the appellant that the deceased fell on a gun that exploded accidentally. The report of the ballistician, who examined the dane gun, which the appellant alleged exploded and which was tendered in evidence as Exhibit 7, reads inter alia:-

“This is identified on examination as a locally made cap gun, with a 431/2” long, mild steel waterpipe barrel and an over-all length of the 61”.

The gun was received unloaded and without a percussion cap. The lock mechanism is in order.

“OPINION: – …

The locally made cap gun is in a good firing order and it is a lethal weapon. It is not practicable to determine when last a muzzle loader firearm was last discharged because of the previous propellant accumulation in the “lands” of the barrel.” With regard to what caused the appellant to shoot the deceased, he, the appellant had this to say: “The gun went off accidentally. When I found that the gun had hit her, I then said that I had shot her as I was the only person at the scene then. I did not shoot my wife because she confessed to me that she had been having an affair with the Urhobo.” (all the above underlinings are ours).

The appellant also admitted that the deceased had five children for him. Learned Counsel for the appellant in his address at the trial urged that the appellant was provoked as he has said in his evidence. The learned trial Judge dealt extensively and exhaustively with the evidence on which the defence of provocation was based. He preferred the Statement made by the appellant to the Police a day or two after the incident as being near the truth. He rejected the evidence of the appellant before him and found him guilty of murder. On appeal to the Western State Court of Appeal, learned counsel for the appellant in that court, complained, amongst other grounds, that the learned trial Judge, Craig, J., erred in law in rejecting the defence of provocation.

The Appeal Court in a short judgment dismissed the appeal. The judgment reads:

“There is no substance in this appeal. The learned trial Judge considered all the facts in the case and also the defence of provocation before coming to his decision which in our view is a correct one. The appeal is dismissed.”

Although Mrs. Solanke’s argument before the Appeal Court, was on a different aspect from that raised by Mr. Adedeji, the learned counsel who defended the appellant at the Ado-Ekiti High Court, nothing was said in the judgment of the Appeal Court about the points she had raised. The result of this was that, on a further appeal before us, learned Counsel had to address us on the decision of the High Court as “Confirmed by the Western State Court of Appeal.” In a capital offence, there is the right of a further appeal from the decision of the Western State Court of Appeal to this court. Such appeal should in normal circumstances be directed against the decision of the Western State Court of Appeal. As no reasons were given why they rejected the new points raised before them by Mrs. Sholanke, the court had to embark upon a consideration of the evidence and judgment of the court of trial on the basis that the judgment of that court had been adopted by the Appeal Court.

There must be, and there are a number of cases where it is most desirable, especially in the case of an intermediate Court of Appeal, that the final Court of Appeal, which is the Supreme Court of Nigeria, should have the benefit of the opinion of that court on points raised before it, should it come up for further consideration by this court. We did not have that benefit in this case and so we have had to have recourse to the evidence and judgment at the High Court. On appeal before us, learned Counsel argued two additional grounds of appeal, which in fact were grounds substituted for the original grounds. The two grounds were argued together and it was contended by Learned Counsel for the appellant that the words uttered by the deceased when inviting the appellant to shoot her were sufficient provocation to reduce the offence from murder to manslaugther. The appellant only stated that he was “Ashamed” at what the deceased said and so he shot her dead. He also drew attention to the fact that the appellant stated that the deceased was pregnant, that he suspected the Urhobo man as being responsible, and that the annoyance thus caused was sufficient provocation.

With respect to the allegation of the deceased being pregnant, this was not established; the doctor who gave evidence was never questioned about this. The appellant never made this allegation in his statement to the Police so that it could have been investigated by the prosecution. It was also contended that refusal to allow the appellant to have marital relation with the deceased was sufficient provocation. In our view learned Counsel for the appellant did not consider the different reasons given by the appellant for killing the deceased. In Exhibit 5, the reason given was that the deceased said certain things which made the appellant feel “ashamed” and thereby kill the deceased. There are two other reasons given in his evidence in chief viz (i) that the firing of the gun against the deceased was accidental, and (ii) that the deceased fell down when he the appellant hit her with the flat side of a matchet to release her hold on his private parts and that there and then the gun slipped off his shoulder and on falling to the ground exploded and killed the deceased. Learned Counsel, made no reference to the evidence of the doctor as to the matchet cuts found on the body of the deceased, as well as his opinion that the cause of death was due to the bleeding (haemorrhage) from these wounds. There is also the other aspect of this case, that the appellant admitted under cross-examination that he did not kill the deceased because she was having an affair with an Urhobo man. On the totality of the evidence we cannot disagree with or disturb the findings of the learned trial Judge that the defence of provocation was not established.

We cannot perceive any error in law by the learned trial Judge in his judgment. His findings of facts have not been challenged and in our view there was ample evidence to support them. We have considered the points raised before us on appeal, as earlier referred to, in relation to the facts as found by the learned trial Judge and up-held by the Western State Court of Appeal.

We are in agreement that the defence of provocation was an afterthought. We also consider the different versions by appellant which apart from being inconsistent were contradictory. The doctor’s evidence definitely gave the lie to the fanciful story either that he fired the gun accidentally or that it exploded and thereby killed the deceased.

We see no reason to disturb the verdict of the learned trial judge as upheld on appeal by the Western State Court of Appeal. For the above reasons, the appeal fails and is hereby dismissed.

Other Citation: (1972) LCN/1392(SC)