Titus Anom Vs The State (1972)

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COKER, JSC

The appellant was convicted by Bassey, J., (High Court, Calabar) of murder and sentenced to death. It was alleged that on the 22nd October, 1969, at Abini in Biase in Calabar, he had murdered one Ogbodim Obona.

The appellant was one of five accused persons charged with the murder: one of them, a soldier by name Iyaiungwa Ikanno, who was the 1st accused, escaped from custody and did not stand trial. Of the remaining four accused persons who stood trial together, the appellant was the 1st accused.

He himself is a soldier and the remaining three are civilians. At the end of the trial, the three civilians were discharged but the 1st accused, who is the present appellant, was convicted as stated and sentenced to death.

The case of the prosecution against the appellant has been rather ably summarised by the learned trial Judge as follows:-

“The prosecution evidence is that the 1st accused, in company of the soldier who had escaped, severely beat the deceased on 9th October, 1969. The method of beating, which took place in the village square, included the hitting of deceased with rifle butt on his chest. The other three accused persons were all present and actively encouraged 1st accused to beat deceased. They also bought the 1st accused drinks and cigarettes as an encouragement to his beating the deceased.

When deceased shouted for pain arising from the beating, 1st accused told him if he wanted to save himself he should produce £20. Deceased asked to be taken home for the money. This was done and when he handed the money to the soldier who had escaped from custody they stopped beating him. On 11th October, 1969, deceased started vomiting blood and continued to do so until he died on 22nd October, 1969.”

At his trial, the story was told that on the 9th October, 1969, the 2nd, 3rd and 4th accused persons were returning to their village from Calabar when on the road between the villages of Abini and Akpet they saw a dead cow lying on the Abini side of the road, i.e. on Abini village land. The Hausa men who owned the cow had donated it to the people of Abini since the cow had fallen on their own side of the road. The deceased, Ogbodim Obona, was the head chief of Abini village and had come forward to share the carcass of the cow with the other accused persons who were also from Abini. Unfortunately, Ogbodim Obona was not friendly with the 2nd, 3rd and 4th accused persons and in order to ventilate their dislike of him they went over to the people of the Akpet village to report the death of the cow and invited them to come to the road and share the meat of the cow. The Akpet people on seeing the chief, that is Ogbodim Obona, went and invited the soldiers to the scene. The soldiers, amongst whom was the appellant, arrested Ogbodim Obona, dragged him into the market square, beat him up severely, extorted £20 from him and left him seriously injured, and from these injuries he succumbed some thirteen days later. Soon after his arrest, the appellant made a statement to the Police in which he confirmed the invitation by the Akpet people and their instructions to arrest and molest the deceased until he should give them part of the meat of the cow, and also the eventual beating-up of the chief by the soldiers. He said in his statement that it was his superior officer that instructed him to flog Ogbodim Obona four times with his lanyard and that he did so. He told more or less the same story in the course of his evidence in his defence at his trial.

The learned trial Judge, in the course of a reserved judgment, considered the provisions of Section 32(b) of the Criminal Code, Cap.30,

(Laws of Eastern Nigeria, applicable in the South-Eastern State), which reads as follows:-

“32. A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances-

(b) in obedience to the order of a competent authority which he is bound by law to obey, unless the order is manifestly unlawful.”

He also referred to some authorities on the criminal responsibility of persons purporting to act under the orders of superior officers where the outcome of their action has been the unlawful killing of other persons. The learned trial Judge found in the course of his judgment as follows:-

“Assuming he was obeying lawful orders, the order was for him to give deceased four strokes with his lanyard. I am quite satisfied that having used the butt of his riffle, as I have found, he exceeded that order. No one, in my view, could have taken that piece of evidence seriously. For it cannot be imagined, that with only four strokes of lanyard, the deceased, could have agreed to pay and pay £20 to be relieved of beating. Neither do I imagine that with four strokes of lanyard he could have started vomiting blood a few days after.”

Thus, the learned trial Judge found that even if the appellant had got orders to flog Ogbodim Obona he had departed from that order and acted on his own by beating up the deceased so severely as to cause his death. The doctor who performed the autospy on the corpse of the deceased, Dr. Akwe Uwe Akan, testified to the cause of death of Ogbodim Obona in part thus:-

“In my opinion death was probably due to broncho-pneumonia. If a person has had his resistance lowered by beating he could be an easy subject of pneumonia. But one can’t be definitely sure because one in peak health could get an attack. If one is severely beaten he experiences severe pain when he attempts to cough out the contents of his lungs. This means that the contents remain in the lungs and cause congestion of the lungs. This then subjects one to an attack of pneumonia.”

On the score of this evidence, the learned trial Judge convicted the appellant of the murder of Ogbodim Obona.

Before us, learned counsel assigned to argue the appeal found nothing useful to urge in favour of the appellant and we think that he was right. The primary facts of the case were never in dispute and the acceptance of the evidence of the prosecution witnesses by the learned trial Judge left no room for any doubts as to the criminal responsibility of the appellant. The law with respect to the execution of orders by those bound to obey them is summarised by Willes, J. in Keighley v. Bell (1866) 4 F & F 790 (176 ER 781) at p.805 (i.e. 800 in ER):-

“If it were necessary to state any principle on which it would be competent to me to decide such a case, it would be that a soldier, acting honestly in the discharge of his duty – that is, acting in obedience to the orders of his commanding officers – is not liable for what he does, unless it be shown that the orders were such as were obviously illegal. He must justify and direct violation of the personal rights of another person by showing, not only that he had orders, but that the orders were such as he was bound to obey.”

In the present case, it is manifest that the appellant was not acting in accordance with the orders which he had received, let alone in strict accordance therewith. It seems clear as well that the order was manifestly illegal since the circumstances did not call for it and in any case there was no authority being pleaded in support of the order of the superior or of the action of the appellant. The learned trial Judge did not expressly decide the implications of the action of the superior officer who himself was one of the persons originally charged to court for the offence. As we stated before, the order to use the lanyard on Ogbodim Obona was in any case manifestly unlawful and unwarranted. The learned trial Judge found that the killing of the deceased was the result of the act of the appellant acting on his own volition; that was sufficient to dispose of the case and to establish firmly the criminal responsibility of the appellant and to render unnecessary for decision the propriety of the order of his superior. As stated before, the learned trial Judge found and held that the deceased had been subjected to a severe flogging at the hands of the appellant and that he died from this not very long thereafter.

This is a case of deliberate and savage exercise of physical might in an indefensible way. It is a straight case of murder and the learned trial Judge, on the face of the facts of the case which he had accepted, could not have arrived at a different verdict. We therefore dismissed the appeal at the hearing and now give our reasons for doing so.

Other Citation: (1972) LCN/1267(SC)