Jide Digbehin And Ors V. The Queen (1963)

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BRETT, J.S.C.

The three appellants were convicted of murdering a man named Noah Agemo, and it is not in dispute that he met his death in the presence of all three of them and of no other eye witness.

On the evidence, if the trial court was satisfied that the appellants, or any of them, killed him, the killing cannot have amounted to any lesser offence than murder, and the questions which have to be decided, in relation to each of the three appellants, are, whether the deceased was murdered, and, if so, whether the appellant was criminally responsible for the murder.

The salient facts were that in the evening of the 9th of May, 1962, Noah Agemo, who was a dealer in cloth, was travelling from Badagry to Tongeji with a quantity of cloth in a canoe paddled by Sijiko Kiki when they met another canoe with the three appellants in it.

In consequence of what passed between them, the cloth belonging to Noah Agemo was transferred to the canoe drawn by the three appellants and he himself also entered that canoe and sat on his cloth. The three appellants then set off in the direction of the Agbamalu Customs post. Sijiko Kiki followed them but as he was alone and all three of the appellants were paddling their canoe, he was unable to keep pace with them and lost sight of them.

Later, after it was dark, he heard Noah Agemo calling out for help and Noah Agemo was not seen alive again.

On the following day, the dead body of Noah Agemo was found in the water near Soke Village. A post-mortem examination showed a number of severe injuries which the doctor considered were inflicted before death. There were external lacerations on the front of the right shoulder and on the elbow joint and the occipital region of the scalp, and the auxiliary and brachial arteries were cut. The main cause of death was hemorrhage from these injuries, though drowning may have been a contributory factor.

The first appellant made a statement under caution after his arrest and also gave evidence on oath at the trial. His story was that, as public-spirited citizens, they were taking someone whom they believed to be a smuggler to the Customs post when their prisoner suddenly jumped overboard and sank instantly. The Judge disbelieved him. The second appellant also made a statement under caudon after his arrest but did not give evidence at the trial. His statement is, of course, only evidence against himself.

The substance of his story was that they were stealing the cloth and that when Noah Agemo started to shout that they should leave his loads the first appellant struck him on the head with a paddle and later pushed him into the stream. The second appall ant denied taking any part in the assault on Noah Agemo, and both he and the first appellant denied that any of them was carrying an offensive weapon. The third appellant made no statement which was admissible in evidence and did not give evidence.

The trial Judge held that the following facts were not in dispute:-
“(a) The accused had held up the canoe in which Noah Agemo was travelling and had caused his loads to be transferred from his to their canoe;
(b) The accused at the time of that event had indicated to Noah Agemo that they intended to take him and his loads to a Customs Station;
(c) That Noah Agemo entered the accused’s canoe either under orders or on his own volition and sat on his loads in that canoe;
(d) That the accused paddled away with Noah Agemo and his loads in their canoe;
(e) That, while in transit, Noah Agemo met his death in the presence of the three accused; and
(f) That Noah Agemo’s body was found floating in the lagoon near Soke on the next day.”

His findings on the facts as to which there was a conflict of evidence were as follows:
“(i) That the first accused on accostng the deceased, said that they were policemen.
(ii) That the accused demanded money from the deceased.
(iii) That the first accused was armed with a cutlass at the time of taking away the deceased and that he was so anned was visible to anyone near by.
(iv) That the deceased after going off in the accused’s canoe shouted for help.”

The Judge was also satisfied from the evidence of the doctor that the deceased’s death was caused, or substantially contributed to, by someone who inflicted injuries upon him and who, in doing so, acted with volition and with intent to inflict grievous harm at least.

On these findings of fact he held it proved that at least one of the appellants inflicted the injuries on the deceased, and we do not consider that he could reasonably have come to any other conclusion. He further expressed himself as satisfied that it was the first appellant who inflicted the injuries and, having regard to the evidence that it was the first appellant who was seen to be carrying a cutlass, we agree with this inference also.

He then proceeded to examine the case against the second and third appellants, between whom he saw no reason to differentiate, in the light of section 8 of the Criminal Code of Western Nigeria, which reads as follows::-