Adewale Sholuade V The Republic (1966)
LawGlobal-Hub Lead Judgment Report
The appellant was tried in the High Court of Lagos before Adedipe J., sitting with a jury and was convicted of murder.
The case for the prosecution was that in the evening of the 8th of May, 1965 in Obadina Street, Lagos, the appellant struck the deceased once on the head with an axe as a result of which he fell down and had to be taken to Dr O. O. Hunponu-Wusu who treated him for a laceration on the head and after stitching it discharged him from the Lagos General Hospital, only for him to be readmitted shortly thereafter.
He subsequently died and in the post-mortem examination conducted on the 11th May, 1965 by Dr J. M. Uku, Senior Specialist Pathologist, he found that “there was a laceration 3/4” long on the left side of the scalp. I also found that the skull was broken on the right side. There was bleeding just under the skull at the site of the fracture. I found other organs to be normal. In my opinion the fracture of the skull is consistent with a blow to the skull. In my opinion death was due to fracture of the skull and bleeding into the cavity of the skull.” The appellant in a statement to the police admitted that he had hit the deceased on the head with an axe but said that he only did this after a fight and after the deceased’s mates had started to box him.
When the appellant gave evidence at the trial he stated that he had been abused by the deceased as a prophet of the Cherubim and Seraphim who drank, had his tumbler at a party in Smith Street, Lagos, which he was attending, knocked out of his hand by the deceased and as a result he then held the deceased whereupon the deceased’s friends started to beat him to make him release the deceased. He then ran off pursued by the deceased till he fell down, whereupon the deceased sat on him while the deceased’s friends beat him with sticks and belts. While he struggled to get away the appellant stated that he stretched out his hand, held something and flung the object backwards not seeing what happened to it and he was later shown the object which was an axe but this was only after he found himself in the Lagos General Hospital to which he had been taken. He also said that he did not receive the injuries which were inflicted on him from the crowd that arrested him.
Now Mr Cole filed a number of grounds of appeal which he argued on behalf of the appellant. Two grounds which he argued together were that “The learned trial judge misdirected the jury in that he stated or implied that the jury will not be released unless they arrive at a unanimous verdict. The appellant complains against this misdirection as amounting to putting pressure upon the jury to appear to come to a conclusion though they had not in fact done so.
The learned trial judge failed to direct or indicate to the jury that they were entitled to disagree and make a report of such disagreement to the court,” in support of which he cited R. v. Davey [ 1960] 3 All E.R. 533 and R. v. Mills  2 All E.R. 299 but in neither case do we consider that it is applicable to the facts of this appeal as the former turned upon whether the judge had suggested to the jury that the need for unanimity had been relaxed and that they might concur in a verdict for the sake of conformity whilst in the latter case the decision was that the direction to the jury must not give the impression a minority may acquiesce with a verdict with which they do not agree. In this appeal the learned trial judge asked the jury to consider their verdict and told them they might come back into court if they had any questions and that they should not hurry, ending by saying “you must not call the court unless you arrive at a unanimous verdict.”
When the judgment is read as a whole we do not consider the learned trial judge would have been misunderstood by the jury but that the jury would have realised he was telling them that a verdict of guilty of murder or of manslaughter or not guilty must be a unanimous one but that would not preclude them coming back to the court with any question if they could not arrive at a unanimous decision. It is not and never has been in our experience the practice in summing up to tell the jury specifically, as Mr Cole argued, that they could disagree. We do not consider in this appeal that any undue pressure was brought upon the jury to arrive at a unanimous verdict.
Mr Cole further argued that the learned trial judge in his summing up indicated his opinion very freely, usually if not invariably, against the appellant and thus deprived the appellant of the substance of a fair trial. In support of this contention he cited Broadhurst v. The Queen  1 All E.R. 111, where in a murder appeal from Malta the Privy Council held that while the opinions of the presiding judge at a criminal trial on issues of fact can often be of great assistance to the jury, yet it is very important that the jury should be told that they are not bound by them nor relieved thereby of the responsibility of forming their own view and even if a proper warning is given an appellate court can still intervene if it considers the judge’s opinions are far stronger than the facts warranted so that there was a danger of the jury being overawed by them.
In that case the presiding judge in fact gave no warning, in contrast to this appeal where the learned trial judge several times warned the jury that they were not bound to accept his suggestions but could reject them as they must make the findings of facts. Although Mr Cole has pointed out a number of opinions of the learned trial judge which might have been better expressed we do not consider in this appeal he could be said to have in any way over-awed the jury and, as has been stated, he did warn them that they were not bound to accept his suggestions. So far as his opinions were concerned he left the issues to be determined by the jury and he was entitled to express himself strongly as shown in R. v. O Donnell, 12 Cr. App. R. 219.
Mr Cole next took the point that though the trial judge had told the jury there were inconsistencies in the prosecution case these were minor and immaterial, but he did not refer the jury to such inconsistencies. Mr Cole, rightly in our view, pointed out that the learned trial judge did not deal satisfactorily with the inconsistency in the medical evidence because Dr O.). Hunponu-Wusu when he examined the deceased on the evening of the incident did not find any fracture of the right side of the skull whilst Dr Uku who conducted the post-mortem examination was of opinion that death was due to fracture of the skull and bleeding into the cavity of the skull. Dr Wusu only found a laceration of the skull which Dr Uku found to be on the left side. No questions were put to Dr Uku to find out if he thought it was possible for Dr Wusu to have missed this fracture, and no clear evidence was offered to prove whether the fracture of the skull occurred before or after Dr Wusu’s examination. We consider this inconsistency in the medical evidence was so vital that it should have been explained to the jury as one of the inconsistencies to which the learned trial judge was referring, always assuming it in fact was one to which he intended to advert.
There is a second inconsistency which is in our judgment even more vital and to which the learned trial judge did not draw the jury’s attention, and that is the inconsistency between the witness Dabiri whose evidence from his deposition was read to the jury and that of the 7th prosecution witness Adekunle Ogunmuyiwa as to what actually happened when the accused struck the deceased. The learned trial judge referred the evidence of each of them to the jury without suggesting there is any inconsistency and said the prosecution asked them to accept both witnesses as witnesses of truth. Dabiri however said there was a shout from the appellant “where is he” to which the deceased replied “I am here,” and the appellant then struck him a blow on the head, but the 7th prosecution witness said this was never said “unless this was said before I got there” yet both purported to be at hand describing the same incident.
Moreover, the 7th prosecution witness said he saw the accused holding the deceased and then he took an axe from the ground and struck him on the head with the blade of the axe, whilst Dabiri could not say with what the appellant hit the deceased but said the appellant asked “where is he” which implies he was not holding him or he would not have so asked. When dealing with this vital prosecution evidence as to the incident the learned trial judge further did not draw the jury’s attention to the fact that they had not seen Dabiri in the witness box but only heard his deposition whilst the 7th prosecution witness had given evidence in person before them. We consider these inconsistencies ought to have been brought specifically to the attention of the jury and it was a serious misdirection amounting to a miscarriage of justice to fail to do so.
Mr Cole finally also submitted that the learned trial judge wrongly put on the defence the onus of proof of the defence of self-defence. It is clear from the record that whilst in one place the learned trial judge indicated to the jury that the onus was on the prosecution to negative the defence of selfdefence put up by the accused, in another place he implied the onus was on the accused to establish self-defence. As R. v. Oshunbiyi  All N.L.R. 453 clearly shows the onus remains in the prosecution to disprove self-defence once it is set up and we accordingly find that this too was a serious misdirection of the learned trial judge. We further note, though it was not a ground of appeal, that when the learned trial judge left to the jury, as the prosecution suggested he might, the determination whether the death was accidental he also wrongly put the onus on the accused rather than as he should have done on the prosecution to disprove accident. Having regard to the serious misdirections amounting in our view, as we have indicated, in each such case to a miscarriage of justice, we allow the appeal and the conviction is quashed and a judgment and verdict of acquittal is entered.
Other Citation: (1966) LCN/1326(SC)