Rajiu Adio Abioro V. The State (1970)

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ADEMOLA, CJN. 

The appellant was charged with the murder of one Adeleye (m). He was tried at Ikeja by Beckley J., with a jury and was duly convicted.

There was no eye witness to the killing, but the case against the appellant was largely based on circumstantial evidence. Both the appellant and the deceased lived at Abegunrin village, the deceased was a washer man and the appellant was a hunter and a farmer. It was usual for the deceased to do his washing in a stream called Oponu not far from the village. On the day the deceased met his death, namely, 27th September, 1967, he went to the stream as usual to do his washing and never returned home.

He was not seen alive from that day. Search parties went out to look for him and the appellant joined a search party which went to the stream. It would appear that as two of the men were wading into the stream the appellant warned them they should be careful as it was not safe to go further because there were a lot of broken bottles in the area.

The men turned back. Later another search party found and recovered the dead body of the deceased in this area. The body was found with matchet cuts and gun shot wounds.

The evidence of the doctor who performed the post mortem examination was that death was due to haemorrhage and shock from gun shot wounds as a result of the following wounds:
1. A laceration of the right ear, and scalp above the right ear, about 3 inches long.
2. Multiple gun shot wounds of the right side of the neck and both shoulders.
Meanwhile, the appellant had disappeared from the Village. It may be mentioned that on the day the deceased met his death, the appellant went as usual that morning to his farm to hunt carrying his gun and his matchet.

When the appellant disappeared the police and the villagers looked for him. He reappeared in the village but when accosted ran away after threatening his pursuer with a knife. About three weeks later, he was caught at Oyingbo market.

In his statement to the police and in his evidence before the court the appellant said he saw a big bird on a plank in the stream which he killed with his gun; he then went into the stream and put it to rest by cutting it up with his matchet; he then discovered he had a killed a man. This was why he had been running away. He led the police to where he kept his matchet which was dug up from the ground; and later his gun which he kept in his house.

Of the six grounds of appeal filed it is necessary for the purpose of this appeal to consider only two, namely, grounds 1 and 2.

Mr Cole for the appellant had complained in ground 1 that the learned trial judge misdirected the jury when he said that the accused warned that the search party should not go further as there were many broken bottles in the stream. It was clear that the evidence before the court as to what the appellant said was that he would not advise the search party to go further into that area and they must be careful there as there were many broken bottles.

Indeed such a direction to the jury as that complained of pre-supposes that the appellant had tried to put the search party off going to that particular area because the dead body was later found there. We are in no doubt of the impression this direction would have in the minds of the jury.

Ground 2 relates to a serious error on the part of the learned trial judge in the course of his direction to the jury by stating that certain witnesses for the prosecution must be believed. Of one he said:-

“The principal witness for the prosecution Emmanual Ajibose (second witness) was cross-examined by counsel for the accused but members of the jury would observe that his evidence was not shaken at all under cross-examination and I have not the slightest doubt that the jury would accept his evidence as the gospel truth.”
Of another witness, the 3rd witness for the prosecution the learned judge
said::-

“This witness was also cross-examined but his evidence is unshaken and I think members of the jury will accept his evidence.”

It is so glaring in this case, as indeed in another trial by the same judge on appeal before us, that the learned judge has overstepped the bounds and had not clearly in his mind the functions of a judge as distinct from the functions of the jury. He freely expressed his own opinion without warning the jury that they are not bound by it and that it was their duty as jury to find the facts proved as distinct from the law which was his duty to postulate to them.

In the case of Broadhurst v. The Queen [1946] 1 All E.R. 111 the Privy Council in a murder appeal held that whilst the opinion of the judge in a criminal trial on issues of facts may be of help to the jury when they are plainly expressed, it is nevertheless the duty of the judge to warn the jury that they are not bound by them and that they are entitled to form their own views. Although a judge is entitled to express himself on the evidence before him, we are of the view that it is much safer if he refrained from expressing his own opinion strongly on such matters as are relevant to the facts or issues in the matter.

In the result, this appeal will be allowed and the verdict of guilty of the offence of murder will be set aside. A verdict of acquittal will be recorded and this will be the judgement of the Court. The appellant will be discharged.

Other citation: (1970) LCN/1814(SC)