Rasulu Oladipupo Vs The State (1993)

LawGlobal-Hub Lead Judgment Report

KUTIGI, J.S.C.

The appellant was in the Lagos High Court charged and convicted of the offence of murder contrary to section 319 of the Criminal Code. He was sentenced to death.

At the trial the prosecution called seven witnesses to prove the charge against the appellant. The appellant testified in his own defence but called no witnesses. The facts of the case on which the prosecution relied may be summarised briefly as follows-

On or about the 29th December, 1984 the appellant was the driver of a vehicle in which one Okoro Okoro, now deceased, was a passenger. On getting near to the bridge at Moroko, the deceased wanted to get out. He gave a N5 note to the appellant and asked for his change. The deceased ran to people who were selling things nearby and asked them for a change. They had no change. He went back to the appellant and demanded for his change.

Meanwhile the appellant got down from the vehicle. A fight broke out between the deceased and the appellant. They chased one another around the vehicle until the stage when the appellant brought out pliers from the vehicle and threw it at the deceased. The pliers hit the deceased on the head. He was bleeding. He fell down and fainted. He was taken to hospital. He died on the way before receiving any medical attention. Dr Adebayo Doherty who testified as P.W.1 conducted post mortem examination on the body of the deceased. He certified the cause of death to be due to “fracture of the skull”. The pliers was admitted in evidence at the trial as EXHIBIT E. In the course of investigation the appellant made two statements under caution to P.Ws 4 & 7. They were respectively admitted in evidence as EXHIBITS C & D.

The appellant on the other hand said in his evidence that it was when he was driving his vehicle that it slightly hit the deceased as he was trying to cross the road in Maroko. The deceased then hit the windscreen of the vehicle which got cracked. A fight ensued between the two of them. That the deceased pushed him inside the lagoon and removed the ignition key of his vehicle arid tried to run away. It was then that he, the appellant, took the pliers (EXH.E), chased the deceased, and threw EXH. E at him in order to stop him from running away. He said he did not intend to harm or kill the deceased although EXH. E hit the deceased on the head. He never intended to hit him on the head.

After a review of the evidence and a consideration of the defence raised by the appellant the learned trial judge Hunponu- Wusu J, found the appellant guilty of murder and sentenced him to death as earlier stated.

Dissatisfied with the decision of the High Court, the appellant appealed to the Court of Appeal, Lagos Division. Four grounds of appeal were filed. Written briefs were then filed and exchanged. In the appellants brief on page 97 of the record only one main issue and one subsidiary issue were submitted for determination as follows – .

“3. Issues For Determination:-

The main issue for determination is whether the defence of provocation put up by the accused was available to him in the light of the evidence before the court.

The subsidiary issue is whether the reaction of the accused to the provocation from the accused was disproportionate in all the circumstances of the case.”

The Court of Appeal in its lead judgment delivered by Kalgo J.C.A. (and concurred by Babalakin and Awogu JJ.C.A.) came to the conclusion that neither the defence of provocation or any other defence at all was on the facts, open to the appellant. The appeal was accordingly dismissed.

Still dissatisfied with the judgment of the Court of Appeal, the appellant has now further appealed to this Court. Only two grounds of appeal were filed.

Leaving out the particulars they read thus –