Sule Momoh V. The State (1972)

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G. S. SOWEMIMO, AG. J.S.C.

The appellant was a Staff Sergeant in the Nigerian Army and was at the material time living at Ashanti Barracks, Apapa. He was charged in Charge No. LA/22C/71 with the murder of another Army Personnel, one Daniel Onoja, alias Daniel Ode. He was tried at the Lagos Assizes by Adefarasin, J., sitting with a jury. After the trial and summing up by the Judge, the Jury returned a unanimous verdict of guilty on 20th September, 1971. Adefarasin, J., then sentenced the appellant to death. He has now appealed to this court against the verdict of the jury.

The appeal was heard on 7th April, 1972, and was dismissed. The counsel for the appellant, Mr. F. O. Akinrele, said that he had nothing useful to urge in favour of the appellant.

The case against the appellant was that on the 14th August, 1969, at Ashanti Barracks, Apapa, he murdered the deceased by gunning him to death with a sub-machine gun.

The witnesses for the prosecution who were eye-witnesses of the incident were staff Sergeant David Kayit (3rd P.W.), Staff Sergeant Peter Shandan (4th P.W.), Staff Sergeant Issac Opita Onaja (5th P.C.) and Mallam Dadi, a soldier and motor driver (6th P.W.). All these witnesses gave evidence as to how the appellant, after attacking some of the witnesses with the sub-machine gun, of whom two sustained injuries, then attacked the deceased, who had only a wrapper on and was unarmed, and killed him as he was trying to escape from the appellant. The most descriptive evidence of the witnesses is that of Mallam Dadi, the 6th P. W. He stated thus:

“I know Daniel Onoja the deceased. Daniel Onoja died on 14/8/69. I was at Ashanti Barracks sleeping in my room from about 2 p.m. The incident took place at around 4.30 p.m. A woman working in a kitchen near Block A. 23 ran into my room and hid under the bed. She said something had happened. I then came out to see what was happening. My room is on the ground floor. I came out and I saw the accused in the verandah of Block B. 18. He was holding a gun. I then bent down near the kitchen so that the accused should not see me. Then I observed Daniel came out of the room near to the accused with a wrapper around him. The accused then began to chase Daniel. Daniel ran and wanted to escape down the staircase. The accused ran after Daniel holding his gun and pointing it at Daniel. The accused then opened fire on Daniel and fired his gun at him “PA!PA”PA!”. Daniel then fell down after he had been shot by the accused. He did not get up. He rolled down the staircase to the bottom He rolled downstairs. After this the accused looked around. He could not see anyone. Then he bent down whilst still upstairs and then fired himself near the neck and he fell down. The gun also fell down. I then ran to the spot. I was the first person to reach the spot”

Dr. Akinlade, the 1st prosecution witness, performed the postmortem examination on the corpse of the deceased and gave his findings as follows:

“The probable date of the death of the deceased was 14/ 8/69. The approximate age of the deceased was 40 years. He was an African male fairly well nourished. He had a gun shot wound about one centimetre in diameter on the right chin. The bullet of the shot passed through the tongue and up to the bone of the right maxilla near the check and then passed through the left eye and went through the brain and carne out through the frontal bones. The bone at the base of the skull were fractured and broken into pieces. So were the bones of the front of the skull. The tongue was lacerated. All other organs were normal. In my opinion these injuries were from gun shots and death resulted from these injuries. The cause of death was fracture of the skull. The injuries I saw on the deceased could not have been self inflicted.”

The accused denied the allegations against him. He alleged that he was fired at by someone, that the shot hit his neck, and that he fell down unconscious. He suggested that the allegations against him were false and that the eye-witnesses, who not only gave evidence but pointed out the different places they mentioned in their evidence to the court and jury at Ashanti Barracks, conspired to get him into trouble because they alleged he was after their wives.

The learned trial Judge summed up the case both for the prosecution and the defence. It was a very fair summing up which is more than favourable to the defence. The jury after retirement later returned a unanimous verdict of guilty.

We have considered the evidence and the summing up, and we think that the direction by the learned trial Judge to the jury is proper and correct. We saw no reason to disturb the verdict of the jury and, for the above reasons, we dismissed the appeal.

SC.332/71