Olagunju Shitta Vs The Queen (1961)

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BRETT, F.J 

The appellant and another man named Tauridi Olasunkanmi were charged jointly in the High Court of Lagos with the murder of one Mufutau Alabi Bamgbose. Tauridi Olasunkanmi was discharged at the close of the case for the prosecution, as having no case to answer, and the trial proceeded against the appellant alone. After a summing-up as favourable to the appellant as he could well have asked for, the jury found him guilty of murder, and he now appeals against his conviction.

The deceased was killed in the course of a street brawl between two parties of Masqueraders. He was the leader of one party, and as such wore some sort of fancy dress and mask. His party was the weaker of the two, and ran away when attacked by a party carrying sticks and pieces of iron, and throwing stones. The deceased tried to take refuge in a house, 33 Oshodi Street, but the householder had shut the door before he reached it, and immediately after-wards someone stabbed him in the back and inflicted two wounds, one of which severed the aorta and caused the haemorrhage which led to his death.

The point at issue was whether the appellant was satisfactorily identified as the person who stabbed the deceased. In his own evidence the appellant said that the wounds were inflicted with a knife by one Tauridi Tarzan and that he had by saying that he was on his way to visit a friend when the crowd appeared in the street. The prosecution called five witnesses whose evidence tended either directly or indirectly to implicate the appellant. Fatal Akibode and Idowu Rasaki Bamgbose, who were members of the deceased’s masquerade and friends or relatives of his, said that they actually saw the appellant strike the blow with a vicious two–pronged weapon known as an Aba, a kind of lethal knuckle duster.

Muniru Aweniya, who had no connection with any of the parties, was the householder near whose house the deceased was stabbed. He did not see the stabbing, but before shutting his door he saw the deceased being pursued by a crowd, and the appellant, whom he had known before and recognised, in the crowd within about four feet of the deceased. Ranti Fashina said that earlier that afternoon the appellant had threatened him with an Aba, and Ayinde Bishiriyu Ajiborisa spoke of finding an Aba, wrapped in newspaper, hidden about 150 yards from the scene of the crime, some thirteen days later. The Aba and the newspaper were stained with blood, but there was nothing to connect them with the appellant and this evidence seems of slight probative value.

All this made up a body of evidence on which, if they accepted it, the Jury were undoubtedly entitled, and indeed bound, to convict the appellant of the murder. Mr. Ogunsanya, for the appellant, has made no complaint about the summing up, and has only argued that the verdict was unreasonable and unwarranted and can-not be supported having regard to the evidence. There is nothing inherently improbable in the story told by the witnesses, but Mr Ogunsanya has quite properly drawn our attention to a number of reasons for doubting the credibility of the witnesses specifically named above, on whom the identification of the appellant depends. Fatal Akinbode and Idowu Rasaki Bamgbose are not only, in a sense, interested parties, but gave evidence which was self-contradictory, and of which parts must have been deliberate lies. Ranti Fashina is clearly a person of bad character. Ayinda Bishiriyu Ajiborisa was related to the deceased and might have been trying to help to concoct a case against the appellant. Muniru Aweniya spoke of the great confusion of the events which he saw, and furthermore said that other persons were nearer to the deceased than the appellant.

It is not our function, as a court of appeal, to retry the case on the written record; our duty is to consider whether the verdict is unreasonable or unwarranted or cannot be supported having regard to the evidence; and it is one of the most firmly established rules of practice that where a Jury, properly directed, has come to any conclusion of fact that conclusion will not be reversed on appeal, provided there was any evidence to support it, unless the court of appeal is satisfied that it was a conclusion to which no reasonable Jury could have come. In his summing -up in the present case, the Judge drew attention most fully to the various matters which might have inspired a doubt as to the credibility of the witnesses, but quite correctly went on to direct the Jury that it was their province to decide whether or not they accepted the evidence of any witness.

A Jury does not give reasons for its conclusions and we have no means of knowing what view the Jury in this case took of any particular piece of evidence. Mr. Ogunsanya submits that no reason-able Jury could have convicted the appellant in this case, and that the Jury must have been influenced by something they had heard or read outside the Court, but we do not consider such a conclusion warranted, and it would strike at the root of the system of trial by Jury H we were to hold ourselves free to review the findings of a Jury in the way in which we are enabled to review the reasoned findings of a Judge. We repeat: there was nothing inherently improbable in the story told by the witnesses and the issue was whether the witnesses were to be believed. On the issue of credibility, the Court is reluctant to differ from the view taken by a Judge sitting alone, and a fortiori it is only the rarest cases that it will overrule the finding of a Jury. The Jury in this case heard and saw the witnesses; before considering their verdict they were reminded of what might have been considered grounds for doubting the evidence given by the witnesses; they deliberated for an hour and thirty-five minutes before arriving at their unanimous verdict of guilt. We do not feel able to say that the verdict is unwarranted or unreasonable or is a verdict which cannot be supported having regard to the evidence, and the appeal must be dismissed.

Before concluding, we would call attention to an error in the procedure adopted when the other accused person was found to have no case to answer. The Jury Ordinance does not lay down what is to be done in such a case, and what the learned Judge did was to withdraw the case from the Jury and himself discharge the accused. We consider that under section 363 of the Criminal Procedure Ordinance he should have followed the practice of the High Court in England. There, a person once given in charge to a Jury can only be acquitted or convicted by the Jury: R. v. Heyes (1951) 1 K.B. 29; and the correct course would have been to direct the Jury, as a matter of law, that they must bring in a verdict of Not Guilty. The error did not in any way prejudice the present appellant, but we mention it by way of guidance for the future.

Other Citation: (1961) LCN/0214(SC)