The Queen Vs Oladipo Oshunbiyi (1961)
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BRETT, AG. C.J.F.
The appellant was tried in the High Court of Lagos before Coker, J., sitting with a jury, and convicted of murder.
The facts, so far as they are relevant, are as follows. The deceased was a carpenter and the appellant had been his apprentice for a number of years, and had parted company with him some months before the night in question, after a quarrel which had resulted in the appellant’s being sentenced to six months’ imprisonment for an assault. The cause of the quarrel was the appellant’s belief that the deceased had administered some kind of poison to him which had made him impotent. On the night in question the appellant was seen in the house where the deceased lived, going towards the deceased’s room, and shortly afterwards cries were heard coming from the direction of the room. The other inmates of the house did not see either of the two men, but the deceased made his way, bleeding from the neck, to the Denton Police Station, from whence he was taken to the General Hospital, where he died not long after from loss of blood. The appellant was not seen in the deceased’s house again that night, but returned to his own house, with blood-stains on his clothing. The only direct evidence of what took place between the appellant and the deceased was given by the appellant, who said that he went to beg the deceased to give him an antidote to the poison and the deceased refused
He gripped the deceased and a fight started. The deceased grappled with him, threw him to the ground and was on top of him with his hands round his throat. He groped for something to use as a weapon and found himself grasping a knife which was lying on the ground. He in-tended to stab the deceased in the arm, to make him let go his throat, but be-fore he had directed any deliberate thrust at the deceased the deceased’s neck had come into accidental contact with the knife. The submissions made in the court of trial were that the evidence did not exclude the possibility of killing by accident, or in self-defence, or under sufficient provocation to reduce the offence to manslaughter.
A jury properly directed might quite reasonably have found the appellant’s story unconvincing in its essential particulars, but the other evidence was a very slight foundation on which to base inferences, and it was of special importance that the jury should be accurately directed as to the onus of proof.
Of the six grounds of appeal which were argued it is only necessary to consider two. The first of these, argued as ground 2, complains that the learned Judge misdirected the jury on the onus of proof on the issue of self-defence. We think there is substance in this ground. Although there are passages in the summing up in which the Judge directs the jury that the onus of proving its case beyond reasonable doubt rests on the prosecution, the passages in which the issue of self-defence is specifically discussed undoubtedly contain words which would lead the jury to suppose that the onus of proof on that issue rests on the defence. After referring to the submissions of defending counsel the judge goes on to say “if you accept that…. you must return a verdict of Not Guilty”. Later he says “Three defences put across by the defence involve your acceptance of the case for the defence that there was a fight, in other words you have to consider whether or not the evidence before- you establishes to your satisfaction that there was a fight on that night between Osho Ogunjobi and Oladipo Oshunbiyi, the accused now charged”. There was a similar misdirection on the issue (not argued before us) of provocation, where the Judge said “It is for you to say, after going through the evidence, whether provocation has been established”, and taking the summing-up as a whole we do not feel satisfied that the general direction on the onus of proof must have removed from the minds of the jury the erroneous impression conveyed by the passages cited. The position is similar to that considered by the Judicial Committee in Chan Kau v. The Queen, (1955) A.C. 206, with this distinction that in the present case, on the view most favourable to the appellant, a verdict of acquittal would have been justified. The proper direction in a case of this kind is discussed in R. v. Lobell, 41 Cr. App. R. 100.
We hold, therefore, that there was a substantial misdirection and we are unable to regard this as a case in which the proviso could be applied. On this issue it is material to have regard not only to the meagreness of the evidence for the prosecution but also to the further ground of appeal which complains that the summing-up failed to call attention to the significance of the opinion expressed by the doctor who conducted the post-mortem, to the effect that if there had been a deliberate attempt to wound the deceased the wound which killed him would have been deeper. This would tend to support the theory of accident rather than self-defence, but we agree that the omission to direct the jury on it was a material misdirection of fact. In the circumstances the only safe course is to allow the appeal, set aside the judgment and sentence and order that a judgment and verdict of acquittal be entered.
Appeal allowed: Conviction quashed: Judgment and Verdict of acquittal entered.
Other Citation: (1961) LCN/0906(SC)
