James Odunayo Vs The State (1972)

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SOWEMIMO, JSC.

The appellant was convicted and sentenced to death by Craig, J., at Ado-Ekiti in the Ekiti Judicial Divison of the High Court of Western State on 19th of October, 1970. He appealed to the Western State Court of Appeal who dismissed his appeal. He has now appealed to this court against the judgment of that court.

The fact as to the killing of the deceased, who was the wife of the appellant, is not in dispute. He, the appellant, admitted that his wife died as a result of gun shot wound which according to him was accidental. He admitted striking the deceased with the flat side of his matchet but denied inflicting the matchet cuts found on the deceased. Although the appellant’s defence was that the death of the deceased was accidental, the argument which was addressed to us, and which was also canvassed at the Western State Court of Appeal, was that the appellant was provoked and that defence was not considered by the learned trial Judge.

It is not in dispute that on 9/10/69, the appellant lodged a report at the Police Station, Akure. He told the Policeman on duty that he had had a quarrel with his wife, that he was provoked and that he had shot her dead. He did not tell the Policeman the nature of the provocation. The appellant volunteered a statement to the Police on 10/10/69, a day after the incident – Exhibit 5 (English translation, Exhibit 5A). He said that he had entertained some suspicion about the relationship of his wife with an Urhobo man.

He confronted the wife with this allegation but she denied it and swore that it was not true. He also complained about his wife refusing to have marital relations with him. On the day of the incident the wife had just returned from a visit to her sick mother at Efon. The appellant then gave her 2/6d for her to purchase edibles from the market. The appellant later went to his farm carrying a dane gun and a cutlass. The appellant, in his statement narrated what happened thus:-

“I was going when I met my wife near the house of the Urhobo man there my wife asked me whether I was going to the Urhobo man’s house, she further said I should continue to shadow my head. I told her I was not going to meet the Urhobo man, there she told me that as I was holding a gun I should shoot her there I was ashamed and I shot her. When I shoot her with the gun she fell down, when she fell down she raised her hand up and I used my matchet to hit the hand down.” (Underlining is ours)

It is to be noted that the trial took place about a year after the incident. The appellant, in his defence at the trial, gave a different version of what took place. He gave evidence as follows:-

“On that day I was at Aisegba. In the morning at about 8a.m., I was going to the farm and I carried my gun and my cutlass which I would use on the farm. As I was going, my wife ran after me held in my private parts. I carried my gun on the left shoulder and my cutlass in my right hand. I supported the gun on my left shoulder with my left arm. As my wife held my private parts, I used the flat side of my cutlass to strike and shake off her hand. She told me the “reason for holding on to my private parts. She said that I was fighting for what she had already carried to another man’s house.”

On the day of the incident, when my wife told me that she had taken what I was fighting for to another man, my mind was hot. I was very annoyed. Apart from holding my private parts, my wife said I would suffer disgrace over this matter. When she held my private parts, I struck her hand with the flat side of my cutlass so that I could free myself from her grip. As I struck her hand the gun which I was carrying on my shoulder fell off and exploded. My wife fell down I think that the gun exploded on her. PAGE| 3 Under the cross-examination, he said that the gun went off accidentally and that he never matcheted the deceased on the head, neck and or wrist. The doctor who performed the post mortem examination on the corpse of the deceased described his findings thus:- “On examination, I found that the body was that of an adult female African about 46 years old. It had deep cuts at the back of the head extending to the occipital bone. There was a deep incised wound through the right side of the neck. There were three cuts through the right wrist. These wounds are consistent with a sharp instrument like a matchet. The cuts could not be self inflicted.

“In my opinion death was caused by haemorrhage (bleeding) from multiple cuts; the cut at the back was inflicted by the same instrument.”

It should be observed that, throughout the evidence of the doctor, learned Counsel who appeared for the appellant did not cross-examine him about any gunshot wound, let alone that the cause of death was due to it. This is remarkable in view of the defence of the appellant that the deceased fell on a gun that exploded accidentally. The report of the ballistician, who examined the dane gun, which the appellant alleged exploded and which was tendered in evidence as Exhibit 7, reads inter alia:-

“This is identified on examination as a locally made cap gun, with a 431/2” long, mild steel waterpipe barrel and an over-all length of the 61”.

The gun was received unloaded and without a percussion cap. The lock mechanism is in order.

“OPINION: – …