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.