Nathaniel Nasamu V. The State (1979)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

Nathaniel Nasamu, a soldier by profession, was convicted of the murder of one Iyese Otutu by the Lagos High Court, (Bakare J.) in May 1977. He was accordingly sentenced to death. He appealed against the conviction and sentence to the Federal Court of Appeal sitting in Lagos and that court, after hearing arguments on the grounds of appeal filed by the appellant, dismissed his appeal on 13th June, 1978. It is against the judgment of the Federal Court of Appeal that the Appellant has appealed to this Court.

The appellant is represented by Chief F.R.A. Williams, S.A.N. who filed a copious brief and made legal submissions thereupon.

As all the grounds of appeal relied upon by learned counsel were based on fact, it is necessary to set out the facts of this case upon which the trial court relied in convicting the appellant. The deceased’s uncle, who was the first prosecution witness, was conveying some consignment of cement in a lorry from Apapa to his residence at Adebola-Ojumu Street, Surulere. The lorry got stuck in mud along that road and while every effort was being made to release it, the accused came in his vehicle with the intention of passing by the lorry. Despite the warnings of the people around, he drove on, and his car also got stuck in the mud. The crowd then jeered at the accused, and though the first prosecution witness asked the people to assist the accused to free his car from the mud, they refused. The accused eventually got the labourers, who were at the scene, to free the car, and those labourers pushed the car out of the mud to a point behind the cement lorry.

The accused at this stage got out of his car and demanded to know those who jeered at him. He got no answer. He called those, whom he alleged spoilt the road, names. The first prosecution witness answered back saying he, the first prosecution witness, contributed to the maintenance of the road. Then the accused pushed the first prosecution witness by the neck but two people, who also gave evidence as the 7th and 11th prosecution witnesses, intervened and prevented a fight. The accused said he would shoot them all bringing out a pen knife. The first prosecution witness later the saw accused fire a gun after the men he pursued.

People at the scene ran, with the accused pursuing them; the people came back when the accused returned to his car. But the accused gave chase again and suddenly fired a shot which killed the deceased.

The appellant in his evidence admitted carrying a gun but said that his right hand was gripped by one of the people there when he got into his car while the others around beat him up. He said he took out the gun with his left hand and pointed it up. He freed his right hand and with it, he cocked the gun. He received a blow on the neck, which sent him sprawling on the ground, his hand hitting the ground first. The appellant said that it was at this stage the gun exploded. His intention was just to scare the crowd off when he brought out the gun.

The learned trial judge, after a very careful evaluation of the evidence before him accepted the evidence of the prosecution witnesses who were eye witnesses to the scene. He disbelieved the story of the appellant and convicted the appellant of murder.

The appellant appealed to the Federal Court of Appeal and after a review of the submissions of learned counsel for the appellant which were principally that there were contradictions in the evidence of the prosecution witnesses, their Lordships of the Federal Court of Appeal, Ogunkeye, Coker and Okagbue, JJ.C.A., commented that the crucial point in ths case was the shooting which the prosecution witnesses said was voluntary, while the defence said it was accidental. Since it was common ground that there was a shooting, how the lorry was parked and whether or not the lorry was being off-loaded were not at all material. In any event, the learned trial judge ably resolved those points. They held that the conclusions of the learned trial judge that the prosecution proved that the firing of the pistol by the accused was voluntary and that the circumstances disclosed a reckless disregard for the lives of the men at the scene of the incident was perfectly justified.

Chief Williams, as we have earlier said, in his appeal on behalf of the appellant, against the judgment of the Federal Court of Appeal, filed a comprehensive brief. He also made oral submissions.

The contention of learned counsel was that the prosecution did not prove the case against the accused beyond reasonable doubt.

On the fatal bullet, it was learned counsel’s submission that the ammunition, which was 6.35 mm, was not the one used in the Army.

The appellant was a soldier serving, at the material time, in the Nigerian Army. The evidence before the court in regard to the type of ammunition used in the Army was from one Mohammed Mange, 13th prosecution witness, who had served in the Army for twenty-five years and who said that there were two types of ammunitions in use in the Army and the fatal bullet did not belong to either. That being so, it was learned counsel’s submission that on that point, it could not be said that the prosecution had established beyond reasonable doubt that the fatal bullet came from the Appellant’s gun.

In regard to whether the fatal gun shot was intentional or accidental, though it was common ground that the deceased died as a result of gun shot, learned counsel contended that in a situation where an accused person claims that eye witnesses were not giving a true account of what happened, it was not enough for the court to say that once the witnesses are unanimous on the facts in issue, “evidence of collateral facts such as the surrounding circumstances could be brushed aside as irrelevances or immaterial evidence so that inconsistencies or contradictions on such matters can rightly be ignored” .