Musa Ateji V. The State (1976)

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NASIR, J.S.C. 

This is an appeal from the decision of Adesiyun J., sitting at the High Court of Lokoja convicting the appellant of the offence of culpable homicide punishable with death contrary to section 221(b) of the Penal Code of Kwara State of Nigeria. There was only one ground of appeal filed by the appellant himself.

It was that the decision was unwarranted and unreasonable and could not be supported having regard to the evidence. When the appeal came up for hearing, the learned counsel for the appeallant stated that he had nothing useful to urge in favour of the appellant. We however wanted to hear arguments of counsel on both sides on a number of issues. The arguments of learned counsel have been taken into consideration in this judgment.

The facts were as follows: The appellant requested Agnes John to deliver one bottle of kerosene to him. She did. A little time later, the appellant called her again in order to pay her the 10k for the bottle of kerosene. The deceased challenged the appellant as to why he was calling her daughter. This resulted in a quarrel between the appellant and the deceased. Agnes John (P.W.1) and Shaibu John (P. W.2) ” both children of the deceased” testified that the appellant caned the deceased with a cane and the deceased took another cane (Exhibit A) and retaliated. Agnes John shouted for help and one Jacob Edime came and separated the appellant and the deceased.

These two witnesses also testified that the appellant came back through the backyard and his the deceased with a hoe handle (Exhibit B) on the back of her neck and that the deceased fell and died. The deceased was taken to the hospital and there was an autopsy by a doctor. The doctor submitted a report in which he gave an alleged cause of death. The appellant admitted that he had a quarrel with the deceased and had hit her with the small cane (Exhibit A) but denied going to the deceased’s house and further denied hitting her with the hoe handle. There were a number of flaws, however, in the evidence.

The prosecution’s case rested on

(a) the evidence of P.W.1 and P.W.2, (b) whether in fact and when was it that the appellant went through the backyard into the house of the deceased and hit her with a hoe handle; and (c) the medical report. The

testimonies of P.W.1 and P.W. 2 are in many respects similar but they differ in some important respects. Part of the evidence of P.W.1 in examination in chief, reads:

He collected a bottle of kerosene of 10k from me and I returned to my house; he did not give

me the money for the kerosene..

When I was preparing meal for lunch, the accused stood between his house and mine and called me.

My mother challenged the accused as to why he was calling me. This resulted into exchange of

words between the accused and my mother. Under cross examination on this point, she said:

The accused walked about 40 feet from his house to the sport where I received the 10k from him. The accused never dragged me when he was paying me. Exhibit B does not belong to my father. I saw a cut wound on the forehead of the accused. I saw Exhibit B when the accused brought it to hit my mother.