Abayomi Adelenwa Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, CJN 

This is an appeal from the judgment of Koffreh, J., in the High Court, Calabar, delivered on September 13, 1971,in which he convicted the accused of the manslaughter of Atim Otu committed on June 18, 1970, and sentenced him to a term of 5 years imprisonment with hard labour contrary to Section 325 of the Criminal Code of the former Eastern Nigeria. The charge was originally one on information for murder but the accused was convicted of manslaughter only.

What happened was that the accused was a police officer who was on the day of the incident scheduled for duty with certain customs preventive officers in the vicinity of the house where the deceased was shot dead. Before the accused left, he and another policeman in the team obtained a rifle and ten rounds of ammunition each, the object of expedition being the usual night raid by the customs officers against smugglers; for this they needed and were given the protection of armed police guards in case they met with armed resistances from the smugglers.

The initial searches did not disclose any smuggled goods. The accused was then left behind with two others to look after the land rover in which the team had been brought there, while the others carried out further searches in other streets in the area. During this period, the premises known as No.9, Fitgibbon Street, Calabar, was broken into and Jacob Otun (P.W.2) and his wife were beaten up and made to give £20 to their assailants; the wife also received a fatal head injury from which she later died. Esenowo Johnson (P.W.l), the Medical Officer, who performed the post-mortem examination on the body of the deceased, reported his findings as follows:

“External: There was a wound about 3 inches long on the scalp of the right lateral side of the skull. The wound contained fractures. On the body were bruises on the left shoulder and buttocks.

Internal Examination of the head revealed a roughened depressed area on the right decline of the skull. On opening the skull there was a large blood clot occupying the right side of the brain tissue and also on the depressed side of the skull bone was a large blood clot attached to it. I decided to photograph these areas. The pictures were tendered in the lower court.

Abdominal examination showed that the lungs heart and spleen were normal. The wound on the head could have been caused by an object under a high velocity. The object that I am thinking of was in the form of a bullet hitting the target rather than penetrating the object. The bruises could have been caused by intra-cranial haemorrhage resulting from damages to artery of the brain. The deceased died in the hospital after she had been admitted and treated. She died on the 29th of June, 1970.”

Under cross-examination, P.W.l said:

“I recorded my findings in a form which was provided. It is true that the police asked me to look for a bullet which they thought lodged itself in the head of the lady. I did a complete post-mortem examination from the head to the abdomen. The deceased did not gain consciousness before she died. I could not tell from what angle the bullet got the head. It is possible that the wound I saw on the head to have been caused by a stray bullet. I found no bullet in the brain or in the head cavity. The bullet did not enter the brain. It merely scrapped the scalp.

The learned trial Judge then reviewed the evidence, rejected the testimony of all the nine prosecution witnesses, and concluded that “it was the rifle carried by the accused at the time that fired the bullet which killed the deceased”. He then proceeded to ask:’ “Was the firing therefore deliberate or intentional? Did the act of the accused which caused the death of the deceased amount to murder?” Although the accused gave evidence in his own defence, denied that his gun fired the bullet that killed the deceased and made no special plea, the learned trial Judge said that it was his duty to consider points favourable to the accused’s case. He pre-occupied himself with a consideration of whether the firing was intentional or negligent on the part of the accused whom, in the absence of supporting evidence, he presumed to have fired the fatal shot.

It is necessary to quote the learned trial Judge at some length on this vital point. He said:

“Although P.W.2 stated that the accused came into his house, beat him up and took his money and also said that accused shot his wife when she tried to ask him to give them part of the £20 (Twenty Pounds) he took, I have no reason to say that this witness deliberately told a lie, but having regards to his relationship with the deceased and his failing eyesight, I have to accept his evidence with some caution. The accused must have been brutal to both him and his wife, and must have even threatened him with his gun, but I find it hard to believe that portion of his evidence that accused pointed the gun at the deceased and fired her on the head. This showed the avowed intention of the accused to kill the deceased with the gun. This is not borne out by the evidence of the doctor whose evidence is next best after that of the PW.2.”

His summary was as follows:

“From this evidence of the doctor, it is clear that the gun when it was fired was not aimed at the deceased. Had it been so aimed at the distance of the parties in the same room the brain would have been penetrated by the bullet. A mere injury to the scalp did not seem to have shown that intentional act on the part of the accused. At best it shows that the gun went off because accused did not exercise the necessary care. In any case, for the accused to be convicted it must be proved that this negligent act of the accused killed the deceased.”