Anthor Okpere Vs The State (1971)

LawGlobal-Hub Lead Judgment Report

COKER J.S.C. 

The appellant was charged and tried at the Ikeja Assizes by Adebiyi, J. and a twelve-man jury for the murder on the night of the 12th June, 1969, of one Ganiyu Jimoh. The case for the prosecution is that the death of the deceased was caused by injuries which he had received from the hand of the appellant along Isheri Road, Ikeja, on that night. In all eight witnesses gave evidence for the prosecution but of these only two actually saw the locus in quo before the incident described as causing the death of Ganiyu Jimoh. One was an expatriate engineer in the employment of a commercial company nearby by the name of Kamas Masoud. According to him, on the night in question, as he went back home in his car, he saw two boys fighting near a river along the Isheri Road. He slowed down and from his car told them not to fight. As they refused to heed his entreaties he drove off in his car. He could not identify either of the boys fighting but he recollected seeing a man with a bicycle which he held by the roadside on the other side

. The other witness was a student by name Obafemi Mesileya. He stated on oath that as he passed by the river along the Isheri Road on the same night he saw the appellant and Ganiyu Jimoh fighting. He got off his bicycle and tried to separate them but as he did not succeed he withdrew to the other side of the road. Whilst there, a man in a car, apparently the engineer, passed by and spoke to the men fighting to desist from fighting. They did not heed him and he drove off. Soon thereafter, according to Obafemi Mesileya, he heard one of the boys, apparently still locked in combat with the appellant, shouting, “You have wounded me!”. Ganiyu then fell down and lay on the ground bleeding from his head. The witness was able to see the men fighting with the aid of a torch-light which he carried; and indeed saw the appellant and his wife Rosaline running away from the scene as Ganiyu Jimoh lay helpless on the ground. Ganiyu Jimoh, according to him, was later carried away to the hospital by a motorist and he died shortly afterwards there.

A doctor had performed an autopsy on the corpse of Ganiyu Jimoh in the morning of the 14th June, 1969. The doctor gave evidence at the trial of the appellant. He thought death must have taken place on the 13th June, 1969. He had found on the deceased:-

(i) a sutured laceration of the skull in the frontal area about four inches long from front to back;

(ii) a bruise of the scalp in the same area, 2.5 by 3 inches and beneath the swelling the bone of the skull was broken into pieces;

(iii) bleeding into the skull cavity.

The doctor further testified as follows:

“In my opinion the skull injury and the allied injuries were due to the deceased having been struck on head with a heavy blunt instrument e.g. a cudgel. I certified the cause of death in my opinion to be fracture of the skull. The injuries could not have been self-inflicted.”

After the close of the case for the prosecution, the appellant elected to and did give evidence in his defence. According to him he never knew Ganiyu Jimoh before but on the night of the 12th June, 1969, along the Isheri Road by the river, he saw a tipper-lorry being driven furiously along the road and he saw the lorry strike down a man walking along the right-hand side of the road in the direction of Ikeja. He saw the man writhing in pain on the ground. He was very much afraid and so ran home to call his relations to the scene. He denied fighting with Ganiyu Jimoh on that night or at all but admitted that at that same time he was told by the witness, Obafemi Mesileya that he, appellant, had wounded Ganiyu Jimoh.

The learned trial Judge summed up the whole case to the jury and after retiring for some forty-five minutes the jury returned a verdict of guilty of murder. The appellant was accordingly convicted and sentenced to death. He has now appealed to this Court against his conviction and the substance of his complaint before us is that the learned trial Judge misdirected the jury in the course of the summing-up and that in particular the following passage in the summing-up was prejudicial to his case:

“It is for you, having considered the whole of the evidence, to choose whether you would believe Obafemi on the one hand or the accused person on the other. You may think that Obafemi’s evidence is true and is amply supported by Mr. Masoud’s and that the two of them spoke of the same fight. If you take the view then on Obafemi’s evidence can you really doubt that Ganiyu’s injuries were inflicted by the accused person seconds before Ganiyu shouted “You have wounded me” and Obafemi moving nearer them to find Ganiyu, on the ground, bleeding If you take that view of the evidence then the provisions of Section 316(2} of the Criminal Code would appear to have been satisfied as anyone hiting another on the head with a blunt object is in law taken to have, at least, intended to cause that other grievous harm.”

Learned Senior State Counsel who appeared for the State submitted that the direction was not prejudicial but conceded that in the light of the available evidence this direction was hardly sufficient especially if it was brone in mind by the learned trial Judge, as it should be, that the appellant was also entitled to an alternative conviction for manslaughter. He then submitted that there was a direction to the jury with respect to manslaughter instead of murder and eventually asked us to substitute a conviction for manslaughter if we came to the conclusion that the direction with respect to manslaughter was in the circumstances inadequate.

It is true, as the learned trial Judge pointed out to the jury in the course of the summing-up, that the “case has been fought on the basis of murder or nothing at all”.