Yisawu Shosimbo V. The State (1974)
LawGlobal-Hub Lead Judgment Report
B. A. COKER, J.S.C.
At the hearing of this appeal on the 3rd October, 1974, we allowed the appeal of the appellant, quashed his conviction for manslaughter and ordered his acquittal. We then stated that we would give our reasons later for taking this course and now do so.
The appellant was charged, along with two others, with the murder on the 8th April, 1972, of one Theophilus Kehinde. He was tried at the Ibadan Assizes (Odunlami J.) convicted as charged and sentenced to death. The appellant was the 1st accused and the other two persons were discharged and acquitted. The case for the prosecution against the accused persons was that on the day of the murder, that is the 8th April, 1972, the accused persons, who were soldiers, were on a special escort duty to transport money from the Central Bank to Benin City. The escort gang had to pass through Ibadan and, according to the present appellant, the leader of the gang, Corporal Edem (9th P.W.), received some written instructions concerning the conduct of the escort “as to what he was to do on the way”. The appellant in his testimony at his trial stated, inter alia, as follows:
“Seven soldiers were on the escort. The order was given to Edem. He did not read it to us he only told us the contents. I cannot remember everything he told us relating to the order. If a vehicle came between our vehicle and we asked the driver to clear away and he failed to do this we must shoot the tyres of the vehicle. The deceased’s vehicle entered our convoy and I asked him to clear way several times but he refused to clear. I then fired shots at the tyre of his vehicle in order that the vehicle might stop. I did not intend to shoot at him. I did not intend to kill him. Nobody fired shot in our land-rover apart from me, our land-rover did not stop throughout the incident.”
It was part of the case for the prosecution that the motorist in question was Theophilus Kehinde and that he died soon thereafter from wounds which, according to the doctor who performed an autopsy on his body, were certified to be bullet wounds. Needless to say, the soldiers were all armed and were given a reasonable quantity of live ammunition. They were all arrested at Benin City after the death of Theophilus Kehinde and their guns were retrieved from them and returned to the armoury. Those guns were thereafter dumped together and the evidence is all but clear as to whether there was any authentic record of the specific gun recovered from each particular soldier. The doctor who performed the post-mortem examination of the corpse of the deceased testified that he did not recover any bullet from inside the corpse and that there were present on the body both an entry wound, by which the bullet went inside the body, and “a narrow exit in the inner aspect of the left thigh through the end of the scrotal sac” by which the bullet came out of the body. There was indeed no doubt that Theophilus Kehinde died of gunshot wounds and the learned trial judge so found.
There was no independent evidence concerning which of the soldiers fired his gun, although both by his statement to the police, made soon after his mest, and his testimony in court at his trial, the appellant claimed to have fired his gun in the circumstances described by him and also to have been the only person who fired at all on that day. One of the witnesses called by the prosecution was a ballistician (14th P.W., Adoga Qoche) and he had examined all the six guns recovered from the soldiers on the escort (Exhibits B, C, K-K3) as well as an empty shell, Exhibit F, and a fired empty bullet, Exhibit E. Both Exhibits E and F were recovered from the car of Theophilus Kehinde (then deceased) and it seems to be beyond argument that his death was caused by the injection of that bullet into his body in the way described by the doctor. In the course of his evidence, the ballistician testified thus:
“In my opinion Ex. E (fired bullet) allegedly found at the scene of crime does not connect any of Ex. B, C, K-K3 because the rifle marks (striation) imprinted on the bullet are not identical with those of the rifles. The lands and grooves vary in sizes from those in Exhibits B, C, K-K3. I am satisfied that Ex. E was not from the rifles Ex. B, C, K-K3. Ex. F which was also alleged to have been connected with Ex. K She rifle No. 1968–3H.6764. The striker pin indentation mark imprinted on the base of the empty shell is eccentric and other markings are very much identical with the one imprinted by Ex. K. I am convinced that Ex. F was fired by Ex. K.”
So, the empty shell Exhibit F was identified as having been ftred from the rifle Exhibit K but the fired bullet, Exhibit E, was stated positively by the prosecution to have had no connection whatsoever with any of the guns carned by the soldiers on the particular convoy. There was some evidence suggesting that the appellant canied the gun Exhibit K but this was denied by the appellant and the learned trial judge made no specific ftnding on that issue. Although the question loomed large as to whether it was the shell Exhibit E that actually killed the deceased, the prosecution did not pursue it and at the end of the trial it remained as crucial but unresolved as ever. At the end of his judgment, the learned trial judge before proceeding to record a verdict of guilty on the appellant directed himself thus:
“In this case, the 1st accused stated on oath that he was the only person that fired at the deceased’s vehicle on the day and that he would not know if any of the bullets strayed into the car and injured him. If this evidence is accepted, then it follows that the bullet that wounded the deceased which later resulted in his death was fired by him.
On the other hand, if the evidence that two army men fired at the vehicle of the deceased as a result of which a strayed bullet wounded him and killed him is accepted then it must be taken that the two of them set out with common intent to prosecute unlawful purpose of shooting the deceased’s vehicle because he failed to clear out of the way and it would not matter whose strayed bullet killed the deceased.”
Thus, the learned trial judge avoided a determination of the pertinent issue as to whether or not it was only the appellant’s gun that killed the deceased This of course must be expected (although it is difficult to understand the logic of the argument) since earlier on in his judgment the learned trial judge had observed that all the other soldiers on the convoy denied firing rifles at the deceased or his vehicle and that their statements were supported by tenable evidence. Nevertheless, the court convicted the appellant of murder as stated before.
The appellant successfully appealed to the Western State Court of Appeal against his conviction for murder. In the course of his judgment, the Western State Court of Appeal observed thus:
“We agree with the learned trial judge that the interpretation of section 254(3) of our Criminal Code is properly set out in the famous case of R. v. Motesjw Okoni (1938) 4 W.A.C.A. 19 at pages 24 to 25 but we disagree with him when he said that the act of shooting at the car of the deceased by the appellant in this case constituted the unlawful purpose. The act of shooting, in our view, was an act done by the appellant in the prosecution of a lawful purpose, i.e. the purpose of conveying money in two trailers from Lagos to Benin.
Our conclusion therefore is that section 254(3) has been wrongly applied by the court below in convicting the appellant in that although the firing of his gun at the moving car of the deceased constituted an unlawful act that was likely to cause (and actually did cause) death yet it was an act done in the prosecution of a lawful purpose name a purpose of escorting money safely from Lagos to Benin City.
Mr. Osinibi submitted to us that sections 254(1) and 254(2) of the Criminal Code did not apply to the facts of this case. By this submission we understood Mr. Osinibi as saying that there was no intent on the part of the appellant to kill or cause grievous bodily harm when he fired his shots. We have carefully looked at the judgment of the court below and the whole evidence in this case. There is no finding by the trial court that the appellant had an intent to kill or cause grievous bodily harm. The intent specifically found was that of ‘shooting at tyres or body of the car of the deceased.”
That court thereafter quashed the conviction of the appellant for murder and substituted a conviction for manslaughter and sentenced the appellant to a term of fifteen years imprisonment The appellant thereafter further appealed to this Court against his conviction even for manslaughter and the point canvassed before us was that having found that there was no intent to kill or to do grievous bodily harm, there was no basis for the Court of Appeal to record a verdict for manslaughter.
The Court of Appeal in its judgment stated that it had substituted the conviction for manslaughter in exercise of powers conferred by section 179(2) of the Criminal Procedure Act. That section reads thus:
“179(2) When a person is charged with an offence and facts are proved which reduce in to a lesser offence he may be convicted of the lesser offence although he was not charged with it.”
The section postulates that the substituted offence must have been one to which the evidence available at the trial had reduced the grave or graver offence with which the accused person was originally charged; in other words, the section means that the circumstances must be such that the court of trial could have convicted the appellant of the substituted offence, that being an offence of lesser gravity than the original charge and one into which the evidence had reduced the offence committed by the accused person. The learned trial judge in the course of his judgment considered whether he could have convicted the appellant of the offence of manslaughter. He observed thus on that point:
“Since it is the law that every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence on which such a verdict can be returned (see Bullard v. The Queen (1957) A.C. 635, it will therefore be necessary to see if there is evidence on which a verdict of manslaughter can be returned in this case. The only evidence which tends to suggest that the 1st accused was provoked was in his statement Ex. Q where he stated that he told the deceased to clear out of the road but the deceased did not clear ‘instead the deceased just looked out from the vehicle and told him to ‘get out’ and yet the deceased continued to follow them’.”
The learned trial judge then considered whether the appellant was in any way provoked by the act or conduct of Theophilus Kehinde (later deceased) and concluded that the appellant was not provoked and so could not get the benefit of the law as laid down in the case of Bullard v. The Queen (1957) A.C. 635. The learned trial judge considered not only whether the appellant was at all provoked but also whether even if he was provoked the provocation was of such a character as would reduce the offence from murder to manslaughter. He found both against the appellant. We are of course far from satisfied with the way and manner in which this issue had been discussed for it seems clear that no question of provocation ever arose throughout this case and although the learned trial judge felt bound to consider that issue, it would have been far more desirable to observe that there was no evidence of it rather than whittle down the effect of the appellant’s case on the charge of murder by impugning his defence of accident on the grounds that the evidence did not establish provocation. What Bullard v. The Queen, supra, decided is that where there is such evidence as would establish provocation and so reduce an offence of murder to manslaughter, the court is bound to put that evidence to the jury. The decision does not say that the court is entitled to speculate and scrounge around for evidence of provocation when in fact and indeed no such evidence exists in the particular case.
Still more undesirable is the course taken by the Western State Court of Appeal. That court found, and we agree with it, that the learned trial judge did find no intention to kill or to do grievous bodily harm on the part of the appellant. That court also disagreed with the learned trial judge in his application of section 254(3) of the Criminal Code. That section reads as follows:
“254. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:
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(3) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life, is guilty of murder.
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In the third case it is immaterial that the offender did not intend to hurt any person.
In the three last cases it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.”
Indeed, the Court of Appeal expressly found that the act of shooting was done by the appellant in the prosecution of a lawful purpose. If that is so, then the prosecution had clearly failed to prove the case against the appellant and he should have been discharged. It is not good law thereafter to embark upon a search for evidence which is later characterised as insufficient to ground a reduction of the offence of the accused person to a lesser one.
We would broadly observe that great care should be taken with respect to the interpretation of section 254 of the Criminal Code (cap. 28 Laws of Western Nigeria) and kindred legislation. The subsection describes the various acts (or omissions) which may constitute the offence of murder and it is only necessary that the prosecution should bring its case within one or the other of those categories. If this is done, and then the prosecution failed to prove that case, unless the offence proved comes within another of the sub-sections and the proceedings were accordingly regularised, then the accused person is entitled to be discharged.
Furthermore, the Court of Appeal took the view, undoubtedly erroneously in our judgment, that having failed to establish the offence of murder by failing to establish the necessary intent to kill or to do grievous bodily harm, the prosecution is entitled to a verdict for manslaughter. In the course of its judgment, the Court of Appeal had observed thus:
“In the circumstances we find the appellant not guilty of murder but of manslaughter which is defined by section 255 of the Criminal Code as”
‘A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter. ‘
For the offence of manslaughter it is not necessary to prove any intent to kill or do grievous bodily harm provided there is proof that the unlawful act of the accused caused some harm to the deceased which harm caused his death- see R. v. Church (1965) 2 All E.R. 72.
Therefore in the exercise of our powers under section 179(2) of the Criminal Procedure Ordinance, we hereby set aside the conviction and sentence of the appellant for murder and in its place we hereby substitute a conviction for the offence of manslaughter and sentence the appellant to 15 years imprisonment. ”
This direction is manifestly unfortunate. In Rex v. Church, supra, to which the Court of Appeal referred and on which it relied, the record was replete with evidence of the intention of the appellant to do grievous bodily harm to the deceased and, even then, the court of trial did not convict the accused person of murder but of manslaughter. The Court of Appeal (England) was rather unhappy at the conviction but the circumstances of depravity manifest in that case compelled the Court of Appeal to dismiss the appeal by applying the proviso to section 4(1) of the Criminal Appeal Act whereby the appeal was dismissed notwithstanding the fact that the appellant might have got off on some legal grounds. We do not consider this case as authority for the proposition upon which the Western State Court of Appeal purported to act in substituting a verdict of manslaughter against the appellant.
Finally, there is the need to advert to the provisions of section 256 of the Criminal Code. That section reads
“256. When a person who unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”
The meaning of this section is clear and it is the only statutory authority for returning a verdict for the lesser offence instead of an original charge of murder. By that section the killing by the accused person should, but for the provisions of this section, constitute the offence of murder.
We have come to the conclusion that the learned trial judge was wrong to convict the appellant of murder when he found no intent to kill or to do grievous bodily harm and that the Court of Appeal was wrong in substituting a verdict of manslaughter as no grounds, statutory or otherwise, permit the taking of that course.
A number of other points were raised at the trial but in view of our observations we do not think it necessary to decide them. The written instructions to the soldiers on escort duty as to the circumstances under which they might shoot were not produced in evidence but both the learned trial judge in this case and the Western State Court of Appeal took the view that whatever be those instructions the man who died as a result of gunshot wounds was entitled, as he did on that day, by virtue of the provisions of section 27(1) of the Constitution of this country which allows every citizen to be or to move around in any pan of the country at all times. The point was all but fairly argued; the written instructions there were and were not produced were also not ascertained; it seems to us in those circumstances that great care should have been exercised in arriving at momentous decisions which turn on the interpretation of the Constitution. We do not decide the point and express no opinion whatsoever on the correctness or otherwise of the construction.
In the event, we allowed the appeal of the appellant and quashed his conviction. We also set aside the sentence of fifteen years imprisonment passed on him by the Western State Court of Appeal and entered in his favour a verdict of acquittal and discharge.
Other Citation: (1974) LCN/1800(SC)
