Adetokunbo Oguntolu V. The State (1996)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C. 

The appellant and one Femi Ajewole were charged with the murder of one William Ojo contrary to section 254(2) and punishable under section 257(1) of the Criminal Code Cap.28 Laws of Western Nigeria, 1959 applicable to Ondo State. Femi Ajewole escaped from custody and the trial proceeded against the appellant only. He was tried and convicted as charged by the Akure High Court. His appeal to the Court of Appeal, Benin City was unanimously dismissed. Still aggrieved by the decision of the Court of Appeal, the appellant has now appealed to this Court.

The events which led to the murder charge as can be gathered from the evidence of P.W.1, the only eye witness, arose from an attempt by Femi Ajewole, the escapee, to sell some bags of stolen cement to one Ademola Gbadebo (P.W.3). The P.W.3 was arrested for being in possession of stolen property and was detained by the Police. On his release, P.W.3 found out that the appellant had called to see his wife on account of the stolen cement saying that he knew where to find the man who stole the cement.

The appellant took Kikelomo Adeyeye (P.W.1) and William Ojo (the deceased) to the escapee’s house at Iju. They travelled by taxi. At Iju the escapee’s father, one Ajewole Otaki (P.W.7) showed them the room where the escapee lived. The appellant went into the room and came out with the escapee. Under the pre of taking P.W.1 and the deceased to a place where the remaining bags of stolen cement were kept, the appellant and the escapee lured P.W.1 and the deceased into a bush. As they went deep inside the bush the escapee asked whether or not the deceased was the Police C.I.D. to which P.W.1 replied in the negative saying that the deceased worked with the Ministry of Education.

As they went further, the appellant and the escapee slowed down and asked the deceased and P.W.1 to proceed and move ahead. As they moved ahead the escapee seized the scarf of P.W.1 which he tied across her face, tore her pants and raped her. At the same time the appellant held the deceased by the throat until he dropped nimbly on the ground without any more movement.

Then the appellant asked the escapee to go for a matchet while he held to the throat of the deceased. When the escapee brought the matchet, the appellant took it from him and used it to inflict cuts on the head and body of the deceased. The deceased died on the spot and the appellant dragged the body aside and heaped some rubbish on the corpse. He also took the scarf from P.W.1 and tied it around the neck of the deceased. P.W.1 finally escaped from the scene.

Mr. Akhidehnor learned counsel for the appellant has in his brief submitted the following issues for determination in the appeal –

“1. Whether the trial court and the Court of Appeal were right in convicting the appellant when the cause of death was not ascertained either by medical evidence or otherwise.

2. Whether the trial Court or the Court of Appeal properly evaluated the evidence as not to have given the appellant, the benefit of doubt, thus reducing the sentence to manslaughter as no motive or intention to kill was established by the prosecution.
3. Did the trial court and the Court of Appeal fully consider the Appellant’s case”

Arguing all the issues together counsel referred to the evidence of the single eye witness (P.W.1) and submitted that even though death was proved, there was no evidence of what caused the death, and that the lower courts ought to have considered the offence of manslaughter because not every killing is murder especially in this case where there was no intention or motive on the part of the appellant to kill anybody.

He said no one could have said categorically whether it was the knock with a fist or the holding by the throat or strangulation or the fall on the ground that caused the death of the deceased, it was contended that the evidence showed that the deceased had died long before any matchet was used on him. He said cutting a dead person cannot be regarded as the cause of death while mere knocking of head or holding of a throat are merely assaults. The appellant was therefore entitled to the benefit of all these doubts which should have reduced the offence to that of manslaughter only. The following cases were cited in support –

R v. Church (1965) 2 All ER 72;Dogo & Ors v. The King 12 WACA 519; The Queen v. Ntah (1961) All NLR 590; R. v. IDIONG 13 WACA 30

The Court was urged to set aside the conviction for murder and instead substitute a verdict of manslaughter.

Responding, the learned Director of Public Prosecution, Ondo State submitted that the Court can ascertain the cause of death without medical evidence where the deceased died on the spot as in this case. He referred to the evidence of P.W.1 and to a number of decided authorities. He said the record shows on page 19 that one Dr. Akeredolu who performed the post mortem examination on the body of the deceased had left the country and that his evidence was not being withheld.

It was also submitted that the Court can reduce an offence of murder to manslaughter where the killing would not amount to murder. He said the act of the appellant fell clearly under section 254(2) of the Criminal Code as charged and that there was sufficient evidence on record showing that the appellant intended to kill the deceased.