Bassa Vorgho Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N.

On 30th July, 1969, at Luwa, Bassa Borgho committed culpable homicide punishable with death by Shooting Takava with a dane gun. On 26th November,1970, he was convicted of culpable homicide punishable with death, contrary to section 221 of the Penal Code by Hague Ag. J., at the High Court, Maiduguri, North-Eastern State. He has appealed to this Court against sentence.

The facts can be briefly stated. On 29th July, 1969, the day previous to that of the murder, there had been community work at Jalva Wisso’s farm for which the accused was given wine to share among the community workers. Takava would appear to have objected to the accused’s sharing wine and to have beaten the accused three times on the head with a stick.

The deceased then menaced the accused with a bow and arrow being one out of ten which the deceased had in his quiver. The accused said in his statement that he seized all the ten arrows and hid them in the fence of his own house. The accused then said that, on the following day, 30th July, 1969, the deceased came to his house and demanded the return of the arrows but that this was refused. There then followed a struggle, and the accused said that he went home. He next took his dane gun and proceeded towards his own farm when the deceased followed and held him from behind.

According to the accused, he turned and the gun he was holding went off shooting Takava and wounding accused’s right thigh. This was the story as told by the accused. There was no witness to the actual shooting, although the deposition of Wasa Brusa (deceased since the preliminary enquiry) was tendered in evidence as exhibit D and showed that the deponent said he heard gun-shots and somebody crying saying “Bassa has killed me!” The deposition also went on to state that, on going to the scene, the deponent saw the accused walking away in a normal manner carrying a gun, and that Takava lay on the ground with an axe and a hoe near him.

The deponent said that the deceased’s intestines protruded and were torn; and that there was smoke over his body though no fire burned nearby. Another witness, Gada Ndawaha, p.w. 4, said he heard a gun shot and that he arrived at the scene later. The accused was not present but Takava was lying on a path with blood rushing from two wounds and he was also vomitting blood. According to this witness, the wounded man said “I am sure I will die. Because of this you should pay those whom I owe.”

Arising out of the facts of this case is an interesting point that does not appear to be covered, so far as we are aware, by any previous authority, either in Nigerian or in English law. The question is whether a dying declaration that does not merely state the cause and circumstances of the declarant’s death but also contains an expression of opinion concerning the motive of his killer is admissible as evidence of such opinion. This question is rendered of particular significance when one has regard to the fact that the learned trial judge seems in this case to have based his conviction of the appellant for culpable homicide punishable with death on the only evidence as to the appellant’s motive for killing the deceased on a statement which is contained only in the latter’s dying declaration. It is to be observed that the learned trial judge expressed himself in these words: “Despite these shortcomings, I am convinced on the evidence as a whole that accused waylaid the deceased and shot him deliberately and with intent to kill. The accused was motivated by hatred, however unjustified and I accept the dying declarations of the deceased as true. The accused’s version is unconvincing and rejected.”

There are two issues raised here: the first is that the learned trial judge accepted the dying declaration of the deceased as true. The learned trial judge had earlier in his judgment said: “The wounded man said according to this witness ‘I am sure I will die. Because of this you should pay those whom I owe.’ Such words are a dying declaration under section 33(a) of the Evidence Law, as the wounded man clearly believed himself to be in danger of approaching death. Witness asked deceased how he became injured and received the reply. Bassa killed me for nothing. There was no misunderstanding between us. So far, there is little to quarrel with. But the learned trial judge continued: “In cross-examination witness said Takava had mentioned a festival where drinks were served and continued: ‘It was because of the drink I had that annoyed Bassa. That is why he shot me. Go and pay all the people I owe.’

I have experienced difficulty in deciding the sequence of the words alleged uttered by the dying man, but I am satisfied they are admissible as a dying declaration implicating the accused.”

We are, therefore, faced with a situation in which the learned trial judge held a dying declaration not only admissible as implicating the accused, but also as true of the facts stated therein, including the declarant’s expression of opinion as to the appellant’s motive for killing him. This seems to us to be going beyond the established ambit of admissibility of a dying declaration even as propounded in section 33(a) of the Evidence Law, which reads:-

“when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question; such statements are relevant only in trials for murder or manslaughter or culpable homicide of the deceased person and only when such a person at the time of making such declaration believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery;”.

We were asked by learned counsel for the appellant to regard as inadmissible as a dying declaration a statement containing the words “I have no sign of recovery” attributed to the deceased by a witness. In view, however, of other words alegedly uttered by the deceased according to other witnesses, and which undoubtedly could amount to a dying declaration, we find it unnecessary to decide the point.

The second reason for the novel character of the dying declaration which the learned trial judge accepted is that this single piece of evidence as to the appellant’s motive was admitted in the face of the appellant’s plea that he killed the deceased by mere accident. It seems to us that much stonger evidence should have been required for rebutting the claim of accidental killing than the suggestion as to the killer’s motive in an expression of opinion contained in the deceased’s dying declaration.

While there is nothing wrong with the learned trial judge finding the accused’s version as to how the accident happened improbable, especially during a demonstration to the court which showed that the injury alleged sustained by the appellant could not have happened in the way he claimed, it is quite a different thing to hold that the dying declaration is true not only as regards how the deceased met his death but also as to why.

Another aspect of this case is the submission of the learned counsel for the respondent (which was opposed by the appellant’s counsel), that the words “Bassa has killed me” allegedly uttered by the deceased as he lay grovelling on the ground are part of the res gestae and are admissible in evidence against the accused. The learned trial judge found that the point was not taken at the preliminary inquiry and that no objection was then made to the admission of those words in evidence, and observed further:

“Of course, the accused was then unrepresented; but there is nothing in the record to show that the words followed other than immediately on the gun-shot.”

After examining R. v. Foster (1834) 6 C. & P. 325, R. v. Bendingfield (1879) 14 Cox 341, and R. v. Goddard (1882) 15 Cox 7, cited to him, the learned trial judge said that he had “formed the clear opinion that the words ‘Bassa has killed me’ are so contemporaneous with the gun-shot as to be admissible as part of the res gestae. In this connection I note that the accused was observed walking away from the scene, so there is every possibility he heard the words uttered.”

We think that conclusion was well-founded but, whilst it helped establish the killing, it did not prove the circumstances, in particular that it was not accidental. As it was, he convicted on the basis of a dying declaration which incorporates an expression of the declarant’s opinion I regarding the motive of his killer.

As the appellant himself admitted having killed the deceased, albeit by accident, and as this is supported by the finding by the learned trial judge that the words “Bassa has killed me” formed part of the res gestae, we consider that the appellant is guilty of culpable homicide not punishable with death and we set aside his sentence and do substitute a conviction for homicide contrary to section 224 of the Penal Code. We accordingly sentence him to 10 years’ imprisonment with hard labour.

Other Citation: (1972) LCN/1439(SC)

Raimi Fagbemi & Anor V. Chief Abiodun Oniru & Anor (1972)

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B. A. COKER, J.S.C 

The matter for decision in this case lies within a very small compass. The plaintiffs’ case is that they had let out to the defendants some swamps along the Idumagbo foreshore of Lagos and that the defendants are now claiming ownership of the said lands in denial of their title as their landlords. The defendants on the other hand state that they are on lands which they had reclaimed from the waters of the sea or the Lagoon.

The learned trial Judge, (Adedipe, J.), after a thorough and dispassionate consideration and examination of the evidence, came to the conclusion that the plaintiffs’ case was well founded and accepted it. He both expressly and impliedly rejected the case of the defendants and found in effect that they are tenants of the plaintiffs who are now trying to deny the title of the owners. He gave judgment against them as claimed on the writ.

On appeal before us, a number of points were raised by learned counsel appearing for the defendants/appellants. A great many of those points were preposterous and to say the least, none of the points was acceptable. We have came to the conclusion that there is no substance in the appeals as the facts found by the learned trial Judge were clearly supported by the plethora of evidence before him and those facts show that in any case the defendants could not have maintained their contentions.

The appeals fail and both appeals are hereby dismissed. Each appellant shall pay to the respondents the costs of appeal fixed at 44 guineas. A formal application should be made to this court on the money deposited in court.

Other Citation: (1972) LCN/1592(SC)

Ayantoyinbo Alade Vs The State (1972)

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UDO UDOMA, JSC 

The appellant was convicted of the murder of Oba Emmanuel Olajide Olayode in the High Court of the Western State, Ibadan, by Agbaje, J. His appeal to the Western State Court of Appeal against that conviction was dismissed. Against that order of dismissal, he appealed to this court and on the 12th January, 1972, we dismissed the appeal and now give our reasons for doing so. The facts relied upon by the court in convicting the appellant have been admirably summarized in the judgments of the learned trial Judge and of the Western State Court of Appeal.

It is therefore not proposed to repeat them in detail but to deal briefly with them in this judgment. The case of the prosecution which was accepted by the learned trial Judge was that in the morning of 1st July, 1969, Oba Emmanuel Olajide Olayode, then the Shoun of Ogbomosho (hereinafter to be referred to as the Oba), held at his palace a meeting with the members of Agbekoya Society who then had expressed their dissatisfaction with, among things, the flat rate tax of £5.11s. At the meeting, members of Agbekoya Society in addition to asking for certain changes in Local Government service, offered to pay a flat rate tax of only £1.10s. After the Oba had given assurances that he would convey their grievances and offer to appropriate official quarters, the meeting ended apparently cordially and the members of the Agbekoya Society dispersed peacefully. Later three motor vehicle, loaded with policemen drove past the Oba’s palace.

When the Oba was informed of this, he became concerned and feared that there would be trouble because he had earlier been accused, apparently at the meeting, by the members of the Agbekoya Society of hiding some policemen somewhere in the town. Soon thereafter, gun shots were heard from the direction of the route followed by the Police vehicles. Then a crowd of people comprising members of the Agbekoya Society armed with guns, matchets, axes and charms rushed to the palace and began to chase about the occupants of the palace including the Oba. As a result, the Oba left the balcony of the first floor of the palace and descended to the ground floor where he went into hiding and had to move from one room to another and finally ended up in a room belonging to one Layiwola. According to the evidence, it was from Layiwola’s room that the Oba was dragged out by the hostile crowd, members of the Agbekoya Society, to a passage nearby and there he was matcheted, stabbed and knifed in the stomach which resulted in the contents thereof being exposed. When the hostile crowd finally dispersed, what was left of the body of the Oba at the passage was just a trunk. As observed in its judgment by the Western State Court of Appeal, as regards the part played by the appellant, himself a member of the Agbekoya Society, the learned trial Judge relied largely on the statements which the appellant made to the Police. In his statement dated 1/9/69, the appellant said in part:-

“That day when the Kabiyesi (meaning the Oba) was murdered I observed that the whole compound of Ile-Abo was filled up, we were all members of Agbekoya. From there we started our war to the house of Kabiyesi. Before we left, our chairman Jimoh Adisa told us to go and bring the head of Kabiyesi. The whole of us shouted. We headed for Kabiyesi’s palace. It was Garba Oyeniyi that the chairman instructed to go and bring the head to him.”

Earlier in the statement, the appellant had said;-

“I remembered that after the members of Agbekoya Society had murdered Kabiyesi on the first day of July, 1969, it was Garba Oyeniyi that brought the head of Kabiyesi to Abo’s compound, Ijeru, Ogbomosho and our chairman put the head at the shrine for four days.”

It is to be noted that at the close of the case for the prosecution, the appellant neither gave nor called any evidence at all. Learned counsel who appeared for him indicated to the court that he was resting he appellant’s defence on the case of the prosecution, He then addressed the court at length. It is thus clear that the evidence was just one way. The learned trial Judge very carefully and critically examined the evidence in the whole case, considered all possible legal issues raised by the evidence and concluded that the appellant was guilty of the offence charged, found him guilty, convicted and sentenced him to death.

The conviction and sentence were affirmed by the Western State Court of Appeal. Before us, Mr. Onalaja who appeared for the appellant, quite rightly, in our view, intimated that after a careful scrutiny of the records, he could find nothing he could usefully urge on behalf of the appellant.

On an exhaustive examination of the proceedings and judgment in this appeal, we were satisfied that the appellant was rightly convicted by the learned trial Judge and that the confirmation of that conviction by the Western State Court of Appeal was justified and reasonable on the evidence.

We therefore dismissed the appeal.

Other Citation: (1972) LCN/1545(SC)

F.O. Lukan Vs M. O. Ogunsusi (1972)

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Prepared by A. ADEMOLA, C.J.N. & Delivered  by I. LEWIS, J.S.C.

The appellant was the defendant in the High Court of the Western State in Ibadan where he was sued by the present respondent for a sum of 250 being general and special damages for trespass in March, 1964 to his land situate and lying at Oke-Ado, Ibadan. There was also a claim for injunction.

In that court, Madarikan, J., (as he then was), dismissed the plaintiff’s case. By a majority judgment, the Western State Court of Appeal reversed this judgment and entered judgment for the plaintiff for 50pounds as damages for trespass and 51.15.4, costs. It also awarded 68.14.6, as costs in the High Court in favour of the plaintiff. From this judgment and order, the defendant has appealed to this court.

The land in dispute originally belonged to Ajengbe Family of Ibadan. In 1952, the plaintiff purported to have bought it from the family and a conveyance was executed by three members of the family, namely Raji Akintola, Momodu Ayinla and Salami Adegoke who professed to be managing the family affairs, although the conveyance did not state that it was family land they were selling. It stated, contrary to the true position of things, that the land sold had building on it. Be that as it may, in 1964, the defendant bought the same land from Ajengbe Family and a conveyance (Exhibit C) was executed in his favour by Gbadamosi Olawole, the Mogaji or head of the family and two of the three men who had executed the conveyance (Exhibit B) in favour of the plaintiff, namely Momodu Ayinla and Salami Adegoke. The evidence, which was not in dispute, was that Gbadamosi Olawole had been head of the family for 18 years at the time the evidence was given in 1966. It was also common ground that in 1952 when the plaintiff bought the land, there was a dispute in the family but Gbadamosi Olawole was not removed as the head of the family. It would appear that owing to the rift, Raji Akintola and the two others (Momodu Ayinla and Salami Adegoke) seized power. Apart from their own evidence, there was no evidence that anybody appointed them to manage the family affairs. They themselves did not say that the management of family affairs included sale of family land. After the sale to the defendant, however, he went on the land to build his house. He was promptly challenged by the plaintiff. He took no notice and continued his building whereupon the plaintiff sued him.

The learned Judge of the High Court found that Raji Akintola was never the head of the family (although he never said he was), and that Gbadamosi Olawole had been the head of the family for the last 18 years. The sale by Raji Akintola and others without the concurrence of the head of the family therefore, according to the learned Judge, was void, ab initio, and his conveyance, Exhibit B, did not pass any title to him.

In regard to possession, he disbelieved the plaintiff that between 1952 and 1964, he exercised any right of ownership over the land.

The majority judgment of the Western State Court of Appeal, however, differed from the learned Judge of the High Court in many respects. During the split in the family in 1952, it said, whether or not Raji Akintola and the two others were appointed to manage the family affairs, it was known to the Mogaji (head) of the family that they were doing so. During the period he became aware that they had sold family lands, the family became aware of it too. As they did nothing the family was estopped. The court put it thus:

“With respect to the learned trial Judge he did not take notice of the fact that in so far as third parties are concerned the conduct of the family constitute holding out of those three people as their representatives for the sale of family land. When a person behaves in such a way as to lead another person to believe that he has authorised a third person to act on his behalf and that other in such belief, enters into transaction with the third person within the scope for such ostensible authority, the first mentioned person would be estopped from denying the fact of the third person’s agency. It would be immaterial whether the ostensible agent had no authority whatever in fact. It would also not matter whether the ostensible agent acted in excess of his usual authority.”

The cases Mac Fisheries Ltd. v. Harrison (1924) 93 LJKB 811 and Summers v. Solomon (1857) 26LJ QB 301 were referred to by the court as well as paragraph 374 of Vol. 1 Halsbury, 3rd Edition.

We agree with the statement of the law and the case referred to on the point, but we, with great respect, hold that the present case does not come within the law of agency. It is a misconception of the law that three members of a family, one of them not being the Mogaji of the family, and they, not having been appointed by the family to sell family land, could get together and sell family land and thus pass on title to a purchaser merely because the head of the family became aware of the sale and did nothing about it.

The case of Secretary Lagos Town Council v. Nurudin Badaru Sule and Elo Aiyedun 15 NLR 72 referred to and relied on by the court in aid of the proposition is inept and does not apply to the present facts. In that case, on the death of Chief Aromire, Yesufu Aromire was appointed by the family to act as head of the family and with the knowledge of the family sold family land before another chief was capped. Surely, he was the head of the family and sale of family land made by him at the time were with the knowledge and consent of the family. There can be no doubt that a proper transfer of family land was made by him as representative and agent of the family. This should not be confused with the instant case of few people in the family who took advantage of a rift in the family and tried to seize power from the head of the family.

The evidence by the head of the family was clear. He stated that there was dispute in the family 14 years ago but it was settled within the year. He was however not removed as the head of the family; the minority were against him. During the period, Raji Akintola and the two others already referred to, took upon themselves to manage family affairs; they were never appointed to do so; as (the head of the family) was aware that during that period the three men sold some family land; after the dispute was over, he asked them to refund monies paid to them; he was never told that they sold land to the plaintiff. Monies were refunded to one Adeyemo and one Ogunlaja by the family. There was no evidence that the head of the family was aware of this particular sale, although he became aware the three men did sell some family land. We fail to see by what stretch of imagination the question of agency or the question of estoppel arises.

The majority judgment of the Western State Court of Appeal based on this doctrine of holding out, estoppel and agency is, to our mind, untenable and cannot stand. It must be reversed.

We think it is convenient in this case to restate the position on the sale of family property

1. Bello Adedubu & Anor. v. Makanjuola, 10 WACA 33 laid down the principle that the head of the family cannot dispose of family property without the consent of the family. The sale will be viodable
2. Adewuyin v. Ishola (1958) WRNLR 110 went further to say that Bello Adedubu & Anor. v. Makanjuola (supra) must not be taken to mean that every member of the family has to give his consent. It is enough if majority of the members give this consent.

We need to point out here that ‘majority’ does not mean that members of the family will be counted by head; it means no more than majority of the accredited representatives or principal members of the family.

3. Where however the head of the family as against all the principal members of the family refused the sale of family property, it is submitted that the head of the family cannot unreasonably withhold his consent for such a saleas against all members of the family.
4. Ekpendu v. Erika 4 FSC 79 where Esan v. Faro. 12 WACA 135 and Agbloe v. Sappor 12 WACA 187 were both considered. The joint effect of the two cases is that the sale of family land by the head of the family, without the concurrence of the principal members of the family is voidable whilst a sale by principal members of the family in which the head of the family does not concur is void ab initio.
5. The case Agbloe v. Sappor (supra) in itself makes it clear that the principal members of the family cannot give any title in the conveyance of the family, without the head of the family joining in the conveyance, even though he may be in agreement.

Whichever way one looks at it, the present case does not come within a sale by the family to the plaintiff and his Deed of Conveyance (Exhibit B) is worthless.

In the circumstances, we must set aside the majority judgment of the Western State Court of Appeal. The minority judgment upholding the judgment of the learned Judge of the High Court is in accord with our view of this case.

This appeal must therefore be allowed. Judgment inthe Western State Court of Appeal awarding damages to the plaintiff for trespass and the order as to costs are hereby set aside and judgment of the High Court dismissing the plaintiff’s claim with 35 guineas costs to the defendant will be substituted.

Costs to the defendant in the Western State Court of Appeal are assessed at 40 guineas. He is also entitled to costs in this court assessed at 60 guineas.

Other Citation: (1972) LCN/1438(SC)

Linus Ntibunka & Anor. V. The State (1972)

LawGlobal-Hub Lead Judgment Report

SIR I. LEWIS,  J.S.C. 

On the 31st of August, 1971, Balonwu, J., in the Owerri High Court convicted Linus Ntibunka and Cyprian Ejianu of the murder of Okwerenkedia U. Agwu in Charge No. HOW/8C/71, and on the 6th of January, 1972, we dismissed the appeals of the two accused and now give our reasons for so doing.

The case for the prosecution turned on circumstantial evidence as no one witnessed the actual killing of the deceased woman. She had on the 18th of March, 1970 gone off to farm having been warned before she went by the 1st accused in the presence of the 1st P.W. not to go near the breadfruit trees or she would die. The 1st P.W. who was the maid of the deceased who was in fact her aunt followed her later that day to the farm to take her food but when she got there she could not find her though she saw the wearing apparel of the deceased by some bloodstains on the ground. She ran off to seek help and when she got to the road she saw the two accused coming towards her from the opposite direction, and remembering the words of the 1st accused to the deceased earlier that day got frightened and hid in the bush as they passed. She noticed, however, as they did so that they were holding a shovel, a matchet and a stick and both had bloodstained trousers.

The 2nd P.W. said in his evidence that in the evening of the 18th of March after receiving a report from the 1st P.W., he went at about 10 p.m. with the others to the deceased’s farm to search, with the aid of a hurricane lamp, for the deceased and they eventually found her body in a pit on the farm. They thereupon hid themselves and he then described in his evidence what happened as follows:-

“In the night, I was feeling rather sleepy, when I heard a noise which alerted me. As I watched carefully, I saw the first accused with a shovel, coming towards the pit where the corpse of the deceased lay. This was about 2 a.m. As the first accused was standing by the pit, looking around, I saw the second accused coming with a matchet towards the pit. At that stage, I shouted. Members of my search team then came out of their hiding places, and we all pursued the two accused persons. We ran after them. We and they suffered. I caught the first accused. Later, I heard Lawrence Onuegbu shouting that he had caught the second accused. I wanted to matchet the first accused, but others told me not to do so.”

The 6th P.W. who was also there that night confirmed the 2nd P.W.’s story and Lawrence Onuegbu (the 9th P.W.) also confirmed it and said that he was the one who actually caught the 2nd accused as he tried to run away that night from the pit where the corpse of the deceased was.

The defence of each of the accused was an alibi but the learned trial Judge carefully considered the alibi of each of them and rejected them and found that he believed the evidence of the 1st, 2nd, 6th and 9th P.Ws. as to what happened.

Mr. Akinola for the accused urged on us that the prosecution had not proved the case against the accused beyond reasonable doubt and that the learned trial Judge gave too much weight to the evidence of the 1st P.W. especially when she was a relative of the deceased. He submitted that the learned trial Judge should have believed the alibi of each of the accused. As, however, the learned trial Judge in his judgment in no way misdirected himself as to the evidence of the 1st P.W. which he believed and indeed specifically warned himself that the prosecution witnesses were related to the deceased and as he carefully dealt with the alibi of each of the accused but disbelieved them we saw no merit in this submission. Indeed we noted that the 1st accused even admitted in cross-examination that his evidence was disbelieved.

Mr. Akinola then urged that the death of the deceased might have been by her accidentally falling, so that killing was not established, but as the learned trial Judge correctly quoted the evidence of the Doctor who examined the body of the deceased when in his judgment he said:-

“The doctor found that the body was that of an African Woman, aged about 48 years, in a fairly good condition; that the neck and the head were swollen with a laceration on the face; that there was a laceration on the nose, and on the lower lip. In his opinion, the cause of death was asphyxia and cerebral conclusion, which is a damage to the brain cells, which can be caused by a heavy blow from a blunt object.”

We think he was entitled to infer therefrom that the death of the deceased was as a result of a deliberate attack on her and from the surrounding circumstances he was also entitled to find as he did that the evidence pointed irresistibly and unmistakenly to the accused being the persons who killed her.

We therefore came to the conclusion that the accused were rightly convicted and dismissed the appeal of each of them for the reasons which we have now given.

We would only wish to add that the learned trial Judge concluded his judgment with the words:-

“In view, therefore, of the foregoing circumstances, I find each of the accused men guilty of murder as charged, and convict them accordingly.

Findings:- 1st accused guilty

2nd accused guilty.

The accused are informed of their right to appeal to the Supreme Court against their conviction and sentence within 30 days.

This does not show what sentence he passed and this should have been recorded. However, we noted in the record of the appeal a certificate from the Registrar of the Owerri High Court in regard to the 1st accused which inter alia said:

“I HEREBY CERTIFY THAT at the Sessions of the High Court of the Owerri Judicial Division held at Owerri by the Honourable Mr. Justice Moses Onuora Balonwu on Tuesday, the 31st day of August, 1971, Linus Ntibunka (m) was convicted of Murder of Okwerenkedia U. Agwu and that the following sentence was passed upon the said Linus Ntibunka (m):

‘The Sentence of this court upon you is that you be hanged by the neck until you are dead and may the Lord have mercy on your soul.”and a certificate also in similar terms in regard to the 2nd accused, so that it is clear that in fact the proper sentence was passed on each of them.

It is not necessary therefore for us to direct, as we have recently had cause to do in another murder appeal, that the trial Judge pass the required sentence, but we do draw attention to the importance of recording in the judgment the sentence that is passed.

SC.338/1971

J. O. Ojosipe V. John Dada Ikabala & Ors (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

This ruling concerns an application for:

“(i) An order granting leave to appeal to the Supreme Court from the order of the High Court of Lagos made on Monday, 21st February, 1972 in Suit No. LD/967/71 by the Hon. Mr Justice Lambo notwithstanding that a first application for leave to appeal has not been made to the High Court;

(ii) An order staying all further proceedings in the said Suit No. LD/967/71 pending the determination of the appeal; and

(iii) Such further and or other order or orders as may seem fit in the circumstances. ”

The application was argued extensively before us by learned counsel on both sides of the bar and we think that counsel deserve our appreciation of the very painstaking way in which they had discharged their duties.

We point out, however, that standing on the threshold of the enquiry is the question of procedural competence, the question whether in the circumstances and considering the nature of the application we should adjudicate on it “notwithstanding that a first application for leave to appeal has not been made to the High Court.” The point was indeed canvassed first as a preliminary objection by learned counsel for the respondents who on being asked to raise it in his reply to the arguments of the applicant raised it again as a postliminary observation.

Learned counsel for the respondents referred us to the provisions of section 21 of the Supreme Court Act and submitted firstly that those provisions postulate a refusal of the order for leave by the trial judge but that, otherwise, the provisions with respect to procedure are mandatory and, secondly, that in exceptional circumstances as that which was considered by the Federal Supreme Court in Ojora v. Odunsi [1964] 1 All N.L.R. 55 this Court would be justified or entitled to authorise a departure from a strict adherence to the law.

Learned counsel for the respondents also argued that the circumstances of the present application are not special and that there was nothing to warrant any departure as is being sought by the applicant. On the other hand, learned counsel for the applicant submitted that the case of Ojora v. Odunsi, (supra), decided firstly that this Court is entitled in special circumstances to authorise a departure from the law (not just the Rules of Court), that the fact that the learned trial judge who made the order on appeal would in all probability refuse the order for leave was a special circumstance to justify a departure from the law and that in any case the Rules of the Supreme Court by virtue of having derived their origin from the provisions of section 121 of the Federal Constitution have the same effect as law.

We did say that the matter was argued at length before us and indeed both parties took great pains to demonstrate the merits of their cases. We are clearly of the view, however, that a consideration of the facts or the merits of the matter does not arise until the preliminary issue of procedural competence is settled.Section 21 of the Supreme Court Act provides as follows:

“21 (1) This part shall apply to the exercise of the jurisdiction of the Supreme Court to hear appeals in civil cases.

(2) Where in the exercise by the High Court of Lagos of its original jurisdiction an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Supreme Court, as the case may be, lie to the Supreme Court; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.

(3) Nothing in subsection (2) of this section shall be construed so as to authorise an application to the Supreme Court in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court.”

As will be seen, the section relates to the way and manner in which the jurisdiction of the Supreme Court “to hear appeals in civil cases” should be exercised. It is clear that section 21(1) embraces all civil matters in respect of which the Supreme Court proposes to exercise jurisdiction.It is clear that section 21 (2) contemplates that an interlocutory order of the High Court of Lagos should be appealable but only by leave either of the High Court or of the Supreme Court. It is clear that section 21 (3) warns against the presentation of an application for leave to appeal from the High Court of Lagos in the first instance to the Supreme Court. In Ojora v. Odunsi (supra), the court considered the provisions of Order VII, rule 37 of the Supreme Court Rules which provides that when an application may be made either to the court below or to the Supreme Court it shall be made in the first instance to the court below and that the applicant shall be entitled to present the same application to this Court if the court below refused his application. In that matter an appeal had already been filed to this Court and at the time when the applicants therein sought an order extending the time within which they could ask for leave to appeal and for leave to appeal the appeal papers were already in this court. Order VII, rule 37 was canvassed before the Federal Supreme Court in that case and one of the points on which a decision was sought was whether the order being appealed was an interlocutory or a final one. If it was the former, leave to appeal was necessary but if it was the latter no leave was called for. Learned counsel in that case did not ask for leave before filing his appeal and the Supreme Court decided that the matter was clearly one in which it should intervene and in granting leave in the circumstances of the matter the Court gave this clear warning at p. 60 of the report:

“The use of the words ‘shall be made in the first instance’ would seem to make it obligatory on the applicant to apply in the first instance to the court below and this Court has held in practice that on matters dealing with a stay of execution pending an appeal to this Court, such application should first be made to the court below. It is of course eminently desirable that this should be so for the court of first instance is placed in a much better position, having heard the evidence and all matters pertaining to the substantive case, to consider the application. ”

In arguing the application in hand, learned counsel for the applicant was at pains to point out to us our duty under the principles of stare decisis which are a part of our law and by which we are enjoined to follow our previous decisions, including Ojora v. Odunsi (supra). We are in complete agreement with learned counsel on the need to do this and we cannot shut our eyes or ears to the alarming degree of instability which must follow in consequence of our failure or refusal to do this. We are however satisfied that the case of Ojora v. Odunsi is not on all fours with the present one and although we were told by learned counsel for the applicant from the bar that section 21 of the Supreme Court Act was indeed cited by him to the court in argument in that case it is significant that no reference whatsoever was made by the Federal Supreme Court throughout the ruling to that section. The facts of that case constitute special circumstances which in the way they occurred or concurred made the case deserving of special consideration. We do not agree that the fact that the judge judging by the observations he had made in court during the trial and the very nature of his order would as a matter of course refuse an application, is a special circumstance. Rather we think it is a circumstance contemplated by the law, indeed by section 21(3) of the Supreme Court Act.

In the result we conclude that the law must take its course; that the law provides for a procedure by which applications of this type should in the first instance be made to the High Court before coming to this Court and that no special circumstance has been shown which would warrant our authorising a departure from that state of things.

We will not comment on the merits of this matter and must express our regret for deciding to take this course having regard to the elaborate arguments which counsel had placed before us on the merits of this matter. We therefore strike out this application and order that the applicant should pay the costs of the respondents fixed at 7 guineas.

SC.42/72

Titus Anom Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

COKER, JSC

The appellant was convicted by Bassey, J., (High Court, Calabar) of murder and sentenced to death. It was alleged that on the 22nd October, 1969, at Abini in Biase in Calabar, he had murdered one Ogbodim Obona.

The appellant was one of five accused persons charged with the murder: one of them, a soldier by name Iyaiungwa Ikanno, who was the 1st accused, escaped from custody and did not stand trial. Of the remaining four accused persons who stood trial together, the appellant was the 1st accused.

He himself is a soldier and the remaining three are civilians. At the end of the trial, the three civilians were discharged but the 1st accused, who is the present appellant, was convicted as stated and sentenced to death.

The case of the prosecution against the appellant has been rather ably summarised by the learned trial Judge as follows:-

“The prosecution evidence is that the 1st accused, in company of the soldier who had escaped, severely beat the deceased on 9th October, 1969. The method of beating, which took place in the village square, included the hitting of deceased with rifle butt on his chest. The other three accused persons were all present and actively encouraged 1st accused to beat deceased. They also bought the 1st accused drinks and cigarettes as an encouragement to his beating the deceased.

When deceased shouted for pain arising from the beating, 1st accused told him if he wanted to save himself he should produce £20. Deceased asked to be taken home for the money. This was done and when he handed the money to the soldier who had escaped from custody they stopped beating him. On 11th October, 1969, deceased started vomiting blood and continued to do so until he died on 22nd October, 1969.”

At his trial, the story was told that on the 9th October, 1969, the 2nd, 3rd and 4th accused persons were returning to their village from Calabar when on the road between the villages of Abini and Akpet they saw a dead cow lying on the Abini side of the road, i.e. on Abini village land. The Hausa men who owned the cow had donated it to the people of Abini since the cow had fallen on their own side of the road. The deceased, Ogbodim Obona, was the head chief of Abini village and had come forward to share the carcass of the cow with the other accused persons who were also from Abini. Unfortunately, Ogbodim Obona was not friendly with the 2nd, 3rd and 4th accused persons and in order to ventilate their dislike of him they went over to the people of the Akpet village to report the death of the cow and invited them to come to the road and share the meat of the cow. The Akpet people on seeing the chief, that is Ogbodim Obona, went and invited the soldiers to the scene. The soldiers, amongst whom was the appellant, arrested Ogbodim Obona, dragged him into the market square, beat him up severely, extorted £20 from him and left him seriously injured, and from these injuries he succumbed some thirteen days later. Soon after his arrest, the appellant made a statement to the Police in which he confirmed the invitation by the Akpet people and their instructions to arrest and molest the deceased until he should give them part of the meat of the cow, and also the eventual beating-up of the chief by the soldiers. He said in his statement that it was his superior officer that instructed him to flog Ogbodim Obona four times with his lanyard and that he did so. He told more or less the same story in the course of his evidence in his defence at his trial.

The learned trial Judge, in the course of a reserved judgment, considered the provisions of Section 32(b) of the Criminal Code, Cap.30,

(Laws of Eastern Nigeria, applicable in the South-Eastern State), which reads as follows:-

“32. A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances-

(b) in obedience to the order of a competent authority which he is bound by law to obey, unless the order is manifestly unlawful.”

He also referred to some authorities on the criminal responsibility of persons purporting to act under the orders of superior officers where the outcome of their action has been the unlawful killing of other persons. The learned trial Judge found in the course of his judgment as follows:-

“Assuming he was obeying lawful orders, the order was for him to give deceased four strokes with his lanyard. I am quite satisfied that having used the butt of his riffle, as I have found, he exceeded that order. No one, in my view, could have taken that piece of evidence seriously. For it cannot be imagined, that with only four strokes of lanyard, the deceased, could have agreed to pay and pay £20 to be relieved of beating. Neither do I imagine that with four strokes of lanyard he could have started vomiting blood a few days after.”

Thus, the learned trial Judge found that even if the appellant had got orders to flog Ogbodim Obona he had departed from that order and acted on his own by beating up the deceased so severely as to cause his death. The doctor who performed the autospy on the corpse of the deceased, Dr. Akwe Uwe Akan, testified to the cause of death of Ogbodim Obona in part thus:-

“In my opinion death was probably due to broncho-pneumonia. If a person has had his resistance lowered by beating he could be an easy subject of pneumonia. But one can’t be definitely sure because one in peak health could get an attack. If one is severely beaten he experiences severe pain when he attempts to cough out the contents of his lungs. This means that the contents remain in the lungs and cause congestion of the lungs. This then subjects one to an attack of pneumonia.”

On the score of this evidence, the learned trial Judge convicted the appellant of the murder of Ogbodim Obona.

Before us, learned counsel assigned to argue the appeal found nothing useful to urge in favour of the appellant and we think that he was right. The primary facts of the case were never in dispute and the acceptance of the evidence of the prosecution witnesses by the learned trial Judge left no room for any doubts as to the criminal responsibility of the appellant. The law with respect to the execution of orders by those bound to obey them is summarised by Willes, J. in Keighley v. Bell (1866) 4 F & F 790 (176 ER 781) at p.805 (i.e. 800 in ER):-

“If it were necessary to state any principle on which it would be competent to me to decide such a case, it would be that a soldier, acting honestly in the discharge of his duty – that is, acting in obedience to the orders of his commanding officers – is not liable for what he does, unless it be shown that the orders were such as were obviously illegal. He must justify and direct violation of the personal rights of another person by showing, not only that he had orders, but that the orders were such as he was bound to obey.”

In the present case, it is manifest that the appellant was not acting in accordance with the orders which he had received, let alone in strict accordance therewith. It seems clear as well that the order was manifestly illegal since the circumstances did not call for it and in any case there was no authority being pleaded in support of the order of the superior or of the action of the appellant. The learned trial Judge did not expressly decide the implications of the action of the superior officer who himself was one of the persons originally charged to court for the offence. As we stated before, the order to use the lanyard on Ogbodim Obona was in any case manifestly unlawful and unwarranted. The learned trial Judge found that the killing of the deceased was the result of the act of the appellant acting on his own volition; that was sufficient to dispose of the case and to establish firmly the criminal responsibility of the appellant and to render unnecessary for decision the propriety of the order of his superior. As stated before, the learned trial Judge found and held that the deceased had been subjected to a severe flogging at the hands of the appellant and that he died from this not very long thereafter.

This is a case of deliberate and savage exercise of physical might in an indefensible way. It is a straight case of murder and the learned trial Judge, on the face of the facts of the case which he had accepted, could not have arrived at a different verdict. We therefore dismissed the appeal at the hearing and now give our reasons for doing so.

Other Citation: (1972) LCN/1267(SC)

J.O Ojosipe v. John Dada Ikabala & Ors (1972)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

This is an application on behalf of defendant/applicant for an order:-

(i) for leave to appeal to this Honourable Court from a decision of the Lagos High Court made in the above matter on Monday, 21st February, 1972;

(ii) for leave to appeal to this Honourable Court from a decision of the Lagos High Court made in the above matter on Monday, 13th March, 1972;

(iii) staying all further proceedings in the said action in so far as it relates to each of the orders appealed from; and

(iv) such further or other orders as this Honourable Court may deem fit to make.

The affidavit in support of the application discloses that in Suit No.LD/967/71 in the High Court of Lagos the plaintiffs/respondents claimed against the defendant/applicant as follows:-

1. A declaration that the plaintiffs were entitled under Yoruba native law and custom to over 800 acres of the 1,152 acres of land acquired by the Federal Government at Iju Adiyan for the Iju Catchment Board and for which the defendant received the sum of 3518,805pounds compensation as the landowners’s agent.
2. An account of what is due to the plaintiffs from the defendant in respect of the sum of 3518,805pounds received by the defendant as the landowners’ agent for or on account of the plaintiffs, and an order for the payment by the defendant to the plaintiffs of what is found due on taking the said account.

Annual rental value 3100pounds.

The plaintiffs by an application to the High Court of Lagos dated 11th January, 1972, moved the court for orders:-

1. restraining the defendant from further disbursing the sum of 3518,805pounds compensation money for the plaintiffs’ land paid to the defendant until this action is decided, and
2. commanding the defendant to pay the said money into court for the preservation of the said sum of 3518,805pounds or whatever balance thereof remains until the determination of this action and for such further order or orders as this Honourable Court may deem fit to make in the circumstances.

On 21st February, 1972, Lambo J. made the following order on the application:-

(a) That the defendant do deposit the sum of 3500,000pounds into the Central Bank within 72 hours.

(b) That the bank teller should be filed not later than Friday, 25th February, 1972..

(c) That the defendant should appear personally before him on Monday, 28th February, 1972, for consequential orders in the event of his failure to comply with the above orders.

It is against this order that the present application has been brought. The defendant/applicant averred in his affidavit that, of the total sum of 3518,805pounds he received pursuant to the decision of the Ikeja High Court in Suit No. IK/185/63, he still had only a sum of 3152,390pounds which he was holding to the plaintiff’s credit, having disbursed a substantial portion of it.

When the defendant/applicant applied for leave to appeal from and for a stay on the orders of 21st February, 1972, the Court adjourned the application until he complied with a further order that the defendant inter alia deposit the sum of 3500,000pounds with the Central Bank of Nigeria. The defendant next applied to the Supreme Court for leave to appeal from this interlocutory order of the High Court, but the Supreme Court gave a ruling on 1st March, 1972, refusing the defendant’s application and striking it out.

On 13th March, 1972, the learned judge made the following consequential orders, pending a ruling on the defendant’s application:-

1. That the defendant do file an affidavit showing full particulars of payments made by him from the time he received the 3518,805pounds until today. The particulars, which should be under four categories, shall contain the names and addresses of:

(A) The landowners,

(B) The lawyers,

(C) The defendant himself, and

(D) The orders

to whom money was paid, and the amount paid to each of them. If the payment was by cheque, the number and date of the cheque must be stated.

2. That a statement of account, duly certified by the Bank’s accountant, covering every item of payment in respect of the said sum of 518,805 must be filed along with the affidavit.
3. That the defendant shaIl comply with these orders not later than Friday, the 17th March, 1972, and effect service of all papers on the plaintiffs’ counsel and the Attorney-General, as was previously ordered.

The defendant/applicant thereafter applied for leave to appeal from and for a stay of the decision of the High Court, but his application was refused on 22nd March, 1972, by the learned judge who proceeded to direct that the order he made on 13th March, 1972, be complied with by 25th March, 1972, failing which he warned that serious consequences would foIlow. The learned trial judge later agreed to adjorn the matter by extending the time within which to comply with the order to 28th March, 1972.

The applicant stated in his further affidavit that he filed a motion for extension of time within which to comply with the order of 13th March, 1972, and a copy of the motion and affidavit before this Court was exhibited to the affidavit in support of that application. On 30th March, 1972, the learned judge dismissed the application for extension of time, describing it as dishonest and an abuse of the process of the Court. The learned judge then proceeded to commit the applicant to prison for six months for contempt and an application for bail pending appeal was refused. The applicant thereafter made a further oral application for leave to appeal from the committal order, but a decision on this application was adjourned to 10th April, 1972.

The appellant next filed two notices of appeal both in civil and in criminal forms as he considered the true nature of the committal uncertain. On 20th March, 1972, the judge heard arguments on the applicant’s application for an order dismissing the action on the ground that, even if all the facts alleged in the statement of claim were established, the plaintiffs would not be entitled to a decree. It is to be noted that, up to the beginning of the present matter, judgment on the motion had yet to be delivered.

In his ruling of 22nd March, 1972 (exhibit B1), the learned judge stated as follows: “In order that I might decide whether to grant or refuse leave to appeal against my order of the 21st February, 1972, in the exercise of my discretion, I ordered the defendant to file particulars of payments made by him from the time he received the 3518,805pounds until the date of the order. The particulars might show that there was justification for making the order for defendant to deposit the 3500,000pounds; on the other hand, they might not. But it is not until the particulars are filed will I be able to say whether leave to appeal from the order should be granted or refused.” It seems clear to us that the application for an order for leave to appeal against the order of the Lagos High Court made in this matter on 21 st February, 1972, is still pending in that Court, and that we should accordingly not interfere with it. We are of the view that section 21(2) and (3) of the Supreme Court Act 1960 and 0.7, r. 37 both require that the application in the lower court should first be disposed of before an application for leave to appeal can be brought in this Court. See our ruling in S.C. 42/1972 of 1st March, 1972 (ante, p. 128).

As regards the order made on 13th March, 1972, however, we think that the defendant’s application to the learned judge for leave to appeal against that order was rejected in these words:

“Defendant’s application, therefore, fails and it is hereby dismissed: Leave to appeal to the Supreme Court is refused; also refused is the order staying all further proceedings in this section in so far as it relates to the order appealed from.” Nevertheless, it seems to us that leave to appeal to this Court ought not to be granted in respect of the order made on 13th March, 1972, since the subject-matter is ancillary to that of the main order of 21st February, 1972, which, as we hold, is still pending before the Lagos High Court. The learned judge indeed stated specifically that the orders of 13th March, 1972 were made, “pending a ruling on defendant’s application.” The learned counsel for the applicant opened his argument with the assertion that this was his main prayer in the motion he brought. It is accordingly unnecessary for us to consider the cases cited to us on this score by the learned counsel for the appellant.

One matter on which we would like to comment relates to paragraph 9 of the defendant’s affidavit, quoted by the learned trial judge in his ruling given on 30th March, 1972. It reads as follows:-

“That although it is physically not possible for me to comply with the order of the court by twelve noon today for the reasons mentioned in paragraphs 4 and 5 of this affidavit, my counsel have advised and I verily believe that even after getting over the physical difficulties I ought not to comply with the order prior to the hearing and determination of my application to the Supreme Court.”

In view of the defendant’s earlier application on the same day to the Court “to grant him extension of time in which to comply with the order”, it does not seem right to us that the defendant should later on the same day swear to an affidavit saying that his counsel had advised and that he himself believed that he should not comply with the order, and this despite the qualification “prior to the hearing and determination of my application to the Supreme Court.” The proper Course for the defendant to have taken was to have applied for a stay of execution rather than for an extension of time.

The learned counsel for the applicant invited us to make a definitive ruling on the question whether or not notice of appeal from the ruling of a High Court judge should operate as a stay of execution or of proceedings arising out of his decision in the absence, apparently, of any contrary direction either by that High Court or by the Supreme Court. We are of the opinion that it would be clearly undesirable that a judge in the court below who has proper notice of an appeal to this Court should nonetheless proceed with the case in disregard of such notice. indeed, the learned trial judge, in his ruling of 30th March, 1972, said:

“Even if the application is genuine, there is undoubted authority for the proposition that an appeal does not operate as a stay of execution or of proceedings under the decision of the court below, except in so far as the court below or the Court of appeal may otherwise direct. There is no such direction so far. If there had been any, it would have been most discourteous of me to act in disregard of the order of a competent Court of superior jurisdiction, which in this case is the Supreme Court of Nigeria. ”

We therefore think it inappropriate to lay down any general rule that notice of appeal to a superior court, if duly given to a lower court, should be deemed to operate in every case as a stay of execution of the decision of that lower court. Judges are entitled to be trusted not to disregard the existence of such notice. In any case, we are of the view that each case must be considered in the light of its own peculiar facts, and that care must be taken not to lay down a new rule.

In the circumstances, the application is hereby refused.

SC.42/1972

Sule Momoh V. The State (1972)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, AG. J.S.C.

The appellant was a Staff Sergeant in the Nigerian Army and was at the material time living at Ashanti Barracks, Apapa. He was charged in Charge No. LA/22C/71 with the murder of another Army Personnel, one Daniel Onoja, alias Daniel Ode. He was tried at the Lagos Assizes by Adefarasin, J., sitting with a jury. After the trial and summing up by the Judge, the Jury returned a unanimous verdict of guilty on 20th September, 1971. Adefarasin, J., then sentenced the appellant to death. He has now appealed to this court against the verdict of the jury.

The appeal was heard on 7th April, 1972, and was dismissed. The counsel for the appellant, Mr. F. O. Akinrele, said that he had nothing useful to urge in favour of the appellant.

The case against the appellant was that on the 14th August, 1969, at Ashanti Barracks, Apapa, he murdered the deceased by gunning him to death with a sub-machine gun.

The witnesses for the prosecution who were eye-witnesses of the incident were staff Sergeant David Kayit (3rd P.W.), Staff Sergeant Peter Shandan (4th P.W.), Staff Sergeant Issac Opita Onaja (5th P.C.) and Mallam Dadi, a soldier and motor driver (6th P.W.). All these witnesses gave evidence as to how the appellant, after attacking some of the witnesses with the sub-machine gun, of whom two sustained injuries, then attacked the deceased, who had only a wrapper on and was unarmed, and killed him as he was trying to escape from the appellant. The most descriptive evidence of the witnesses is that of Mallam Dadi, the 6th P. W. He stated thus:

“I know Daniel Onoja the deceased. Daniel Onoja died on 14/8/69. I was at Ashanti Barracks sleeping in my room from about 2 p.m. The incident took place at around 4.30 p.m. A woman working in a kitchen near Block A. 23 ran into my room and hid under the bed. She said something had happened. I then came out to see what was happening. My room is on the ground floor. I came out and I saw the accused in the verandah of Block B. 18. He was holding a gun. I then bent down near the kitchen so that the accused should not see me. Then I observed Daniel came out of the room near to the accused with a wrapper around him. The accused then began to chase Daniel. Daniel ran and wanted to escape down the staircase. The accused ran after Daniel holding his gun and pointing it at Daniel. The accused then opened fire on Daniel and fired his gun at him “PA!PA”PA!”. Daniel then fell down after he had been shot by the accused. He did not get up. He rolled down the staircase to the bottom He rolled downstairs. After this the accused looked around. He could not see anyone. Then he bent down whilst still upstairs and then fired himself near the neck and he fell down. The gun also fell down. I then ran to the spot. I was the first person to reach the spot”

Dr. Akinlade, the 1st prosecution witness, performed the postmortem examination on the corpse of the deceased and gave his findings as follows:

“The probable date of the death of the deceased was 14/ 8/69. The approximate age of the deceased was 40 years. He was an African male fairly well nourished. He had a gun shot wound about one centimetre in diameter on the right chin. The bullet of the shot passed through the tongue and up to the bone of the right maxilla near the check and then passed through the left eye and went through the brain and carne out through the frontal bones. The bone at the base of the skull were fractured and broken into pieces. So were the bones of the front of the skull. The tongue was lacerated. All other organs were normal. In my opinion these injuries were from gun shots and death resulted from these injuries. The cause of death was fracture of the skull. The injuries I saw on the deceased could not have been self inflicted.”

The accused denied the allegations against him. He alleged that he was fired at by someone, that the shot hit his neck, and that he fell down unconscious. He suggested that the allegations against him were false and that the eye-witnesses, who not only gave evidence but pointed out the different places they mentioned in their evidence to the court and jury at Ashanti Barracks, conspired to get him into trouble because they alleged he was after their wives.

The learned trial Judge summed up the case both for the prosecution and the defence. It was a very fair summing up which is more than favourable to the defence. The jury after retirement later returned a unanimous verdict of guilty.

We have considered the evidence and the summing up, and we think that the direction by the learned trial Judge to the jury is proper and correct. We saw no reason to disturb the verdict of the jury and, for the above reasons, we dismissed the appeal.

SC.332/71