Mallam Umoru Jegah Vs The State (1972)

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UDO UDOMA, J.S.C.

This is an appeal against the judgment of the Western State Court  of Appeal wherein the appeal of the appellant against his conviction by the High Court of the Western State was dismissed. The appellant was convicted by Ogunkeye, J., in Oshogbo of the murder of one Kelani Adejimi and sentenced to death.

The case of the prosecution was briefly that in the morning of 22nd November, 1969, on her way returning from church, Esther Ojuolape (P.W.1) saw the appellant driving a number of cows along the Ogbomosho-Oshogbo road towards the direction of Oshogbo. Kelani Adejimi was then walking along the road in the opposite direction. When the appellant and Kelani Adejimi met along the road a fight broke out between them near Aserawo village. The appellant succeeded in knocking Kelani Adejimi down on the ground. Thereafter the appellant moved away from the scene leaving Kelani Adejimi lying on the spot from where he never got up again alive. Indeed, he was later found dead there.

Esther Ojuolape (P.W.1) reported the incident to other church members. As a result, Adegboyega Akanbi (P.W.2), the brother of Kelani Adejimi immediately went to the scene; but before arriving there he met the appellant still driving his cows along the road. At the scene, Adegboyega Akanbi (P.W.2) saw the dead body of his brother, Kelani Adejimi, covered with many stab wounds. Consequently he raised an alarm which attracted some people to the scene; and news soon spread into the village that Kelani Adejimi had been killed by an Hausaman. Some people ran after the appellant, but when they tried to prevent him from continuing his journey, the appellant drew out his dagger and threatened to stab to death anyone who would dare to come near him. When asked why he killed kelani Adejimi, the appellant said that it was a thief that he had killed. Finally, the appellant was arrested by the Police. He explained to police Constable, Yekini Ogundipe (P.W.2) that the man he had killed had wanted to rob him of his money. He showed him the dagger he had used in killing the man. The corpse of Kelani adejimi was later removed to the State Hospital, Oshogbo, where a post mortem examination was performed by Dr. Agripino Santos Mateo, a Medical Officer attached to the hospital.

According to the Medical Officer, the body had deep cut wounds on the left side of the head and left and right sides of the abdomen. There were also deep cut wounds on the back and on the right shoulder of the body of Kelani Adejimi (hereinafter to be referred to as the deceased). Internally the wounds of the abdomen were so deep that they produced a rupture of the intestines. The skull was fractured. In his opinion death was due to the injuries sustained.

The appellant, on being charged, made a confessional statement, Exhibit D in the proceedings, wherein he narrated how, while driving his cows along the road, he met the deceased near Aserawo village. He said that without any warning the deceased had griped him from behind, knocking him down and started beating him with the intention of killing him; that while on the ground he pretended to be dead; that believing him dead, the deceased searched his pocket and removed his purse and ran away with it; that he immediately got up and pursued the deceased who, when he saw him, wanted to hit him with a stick but that he successfully dodged it. He said that in turn he gripped the deceased and stabbed him with his knife which caused the deceased to shout; that he however continued to stab him all over his body including the abdomen and the head which caused him to fall down and die.

At the trial the appellant gave evidence. He retracted the confessional statement, Exhibit D. He denied stabbing the deceased or even telling Yekini Ogundipe (P.W.6), that he had stabbed the deceased. He said that he remembered driving five cows along the Ogbomosho Road; that he met the deceased and told him to leave the road so as to prevent his cows from running into the bush; that the deceased there and then demanded money from him; that when he was about to walk past, the deceased got hold of him, knocked him down on the ground, pressed down his stomach with his knees and took out from his pocket his purse of money and walked away with it; that he got up, pursued and caught up with him, that as he approached him, the deceased unsuccessfully aimed a stick three times at him; that a fight ensued between them; that the deceased then got hold of his trousers and testicles; that they both fell down and a struggle ensued whereupon the deceased dropped his purse; that he got up, picked up his purse and went his way while the deceased ran towards Ogbomosho. The appellant admitted showing his knife to Constable Yekini Ogundipe (P.W.6) and at the same time telling him that it was usual for a cattle driver to be armed with a knife. He said that the statement he made at the charge office was what he had repeated in court on oath and therefore that the statement Exhibit D, purported to have been made by him was not correct and that he had signed it believing the same to be an accurate record of what he had told the Police.

The learned trial Judge reviewed the whole of the evidence, and after giving consideration to the salient points in issue in the case, accepted the case for the prosecution, disbelieved the appellant, found him guilty and convicted him. The appellant thereupon appealed on a number of grounds as against his conviction to the Western State Court of Appeal which dismissed the appeal as already stated.

In the course of its judgment dismissing the appeal, the Western State Court of Appeal made the following observation:-

“In the present case there is evidence on the record which raises the defence of provocation or self defence because the appellant said in his evidence that it was the deceased who first knocked  him down and pressed his stomach down with the knees; then the deceased took the purse containing his money and ran away and he pursued and caught up with him, he said that the deceased aimed a stick at him thrice but missed and then a second fight started during which the deceased got hold of his trousers and held his testicles and both of them fell down. We are of the view that the learned Judge should have considered specifically whether on the evidence adduced the defence of self defence or provocation is available to the appellant, whether that defence was raised or not.”

The above observation is the subject of criticism of the judgment of the Western State Court of Appeal and has, indeed, given rise to the only ground of appeal argued before us in this case which reads:

“That the learned Justices of Appeal having held that ‘we are of the view that the learned Judge should have considered specifically whether on the evidence adduced the defence of self-defence or provocation is available to the appellant, whether that defence was raised or not’ erred in law to have confirmed the judgment of the lower court when the issue of provocation or self defence which ought to have been considered by the learned trial Judge was not considered and they thereby came to wrong conclusion.”

In his submission in support of the above ground Mr. Onalaja, counsel for the appellant, contended that it was plain from the above observation that the Western State Court of Appeal was of the view that the learned trial Judge had failed to give consideration to the defence of provocation or self defence; and that being so, the learned trial Judge’s failure to do so had occasioned a miscarriage of justice; because it might well be that if the learned trial Judge had considered either or both defences, he might have come to a conclusion different from that of the guilt of the appellant, and that the Western State Court of Appeal erred in law in confirming the conviction of the appellant.

It seems to us that the learned Counsel for the appellant did not fully appreciate the approach of the Western State Court of Appeal to the finding by the learned trial Judge on the issue of provocation or self defence. Even towards the end of the passage of the judgment quoted in the ground of appeal, the Western State Court of Appeal finally held that, the appellant, having narrated the story of how “the deceased attacked him and stole his purse containing money” and “the learned Judge having rightly disbelieved that story because the appellant could not produce the said purse”, it was unable to disturb the finding of fact by the learned trial Judge.

The statement of the law implicit in the observation of the Western State Court of Appeal would appear to have been inspired by a passage in the judgment of the Privy Council in Kwaku Mensah v. The King (1945) 11 WACA 5, referred to by the court wherein the Privy Council had said at pages 5 and 6 in part:

“But if on the whole of the evidence there arises a question whether or not the offence might be  manslaughter only, on the ground of provocation as well as on any other ground, the Judge must put that question to the jury. This was distinctly laid down in R. v. Hopper (1915) 2 KB 431, a case in some respects, resembling the present, more especially in that the line of defence adopted was that the killing was accidental and no attempt has been made at the trial to rely on provocation.
If on the whole of the evidence there is nothing which could entitle a jury to return a lesser verdict the judge is not bound to leave it to them to find  murder or manslaughter.”

The present case on appeal was tried by a Judge alone so that the Judge acted both as a Judge and Jury. It has not been suggested that having regard to all the circumstance of the present case, there was credible evidence which could have given rise to the defence of provocation or self defence which, if the trial had been with a jury, the Judge would have been bound to leave for the consideration of the jury. Indeed, when the attention of learned counsel was drawn to the state of the evidence, the findings by the learned trial Judge on the evidence and the conclusion reached by him, he readily conceded that the approach adopted by the learned trial Judge was right and the conviction of the appellant unassailable.

We were of opinion that the Western State Court of Appeal was right to have dismissed the appeal. In the circumstances we dismissed the appeal for the reasons we now give.

Other Citation: (1972) LCN/1548(SC)