Moses Fayemi V Attorney-general, Western Nigeria (1966) LLJR-SC

Moses Fayemi V Attorney-general, Western Nigeria (1966)

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BRETT, J.S.C. 

The appellant was convicted of murdering a woman named Sikuletude Openi and as his age on the date of conviction was less than seventeen years he was not sentenced to death but was ordered to be detained during the Military Governor’s pleasure under s.368 (3) of the Criminal Procedure Act.

The information on which the appellant was tried was manifestly defective. The Statement of Offence alleged “Murder, punishable under section 257(1) of the Criminal Code,” but the Particulars of Offence, instead of alleging that the appellant murdered Sikuletude Openi, alleged that he unlawfully killed her, which is an allegation of manslaughter, not of murder: see precedents 3 and 5 in the Third Schedule to the Criminal Procedure Act. It is open to argument what offence or offences, if any, an accused person is liable to be convicted of on an information so worded, but we find it unnecessary to decide the question in this appeal since we are satisfied that on a proper view of the evidence the appellant ought not to have been convicted of any offence involving criminal responsibility for the death of Sikuletude Openi.

The evidence of the witnesses for the prosecution showed that Sikuletude Openi had been staying at the house of Isiaka Adegbesan and that at about 8 a.m. one morning she left the house in the company of the appellant, as a passenger on his bicycle, ostensibly to buy corn at a farm. The witnesses did not again see her alive and about five days later her dead body was found somewhere in bush. Decomposition had set in but the post mortem examination showed that in addition to a broken leg the deceased had received severe injuries to the face and forehead, which must have been inflicted by some heavy object and could not have been self-inflicted. The cause of death was the severe damage to the brain caused by these injuries, and there can be no doubt that the deceased was killed by somebody.

The evidence to connect the appellant with the killing of Sikuletude consisted of one of two statements he made to the police after his arrest. In it he said that he was procured by Adegbesan to take the woman to a place where Adegbesan’ s two brothers, Adeshuyi and Oye, were waiting to kill her; that one of the two was carrying a curved new matchet properly sharpened; that he left her with them and went away. In his evidence at the trial he admitted bringing the woman to meet the two men, but denied knowing of any plot to kill her and emphasised that she was alive when he last saw her. The trial judge seems to have overlooked this difference between the appellant’s statement and his sworn evidence and to have regarded his evidence as admitting guilty knowledge.

If the statement was true it would be evidence of complicity in a conspiracy to murder, though the appellant could not be convicted of conspiracy unless there was evidence apart from his own confession that at least one other person had conspired with him.

The trial judge thought it an irresistible inference from all the facts that the appellant killed the woman either alone or jointly with others but we find no ground for inferring that the appellant took part in the actual killing, and if he was liable at all it could only be under s.7 (b) of the Criminal Code, under which, when an offence is committed, the principal offenders include-

“every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.”

The appellant cannot be convicted under this paragraph unless it is proved that the people who actually did the act which constituted the offence were those whom he enabled to commit it, i.e., that it was Adeshuyi and Oye, or one of them, or someone acting in concert with them, who murdered Sikuletude, and of this there is no evidence whatsoever.

A parallel case is Surujpaul v. The Queen [1958] 1 W.L.R. 1050, where, in allowing the appeal of a person convicted as an accessory before the fact where the alleged principals had been acquitted, the Judicial Committee said-

“In the present case it was essential to the conviction of any one of the accused as accessory before the fact for the Crown to prove that he had counselled, procured or commanded one or more of the other accused persons to murder Claude Allen and that such person or persons had in fact murdered the said Allen.”

If “under s.7 (b) of the Criminal Code” is substituted for “as accessory before the fact” and “enabled” for “counselled, procured or commanded,” these words seem exactly applicable to the present case, and the fact that the appellant was tried alone and not jointly with anyone alleged to have done the actual killing does not alter the ingredients of what the prosecution must prove in order to secure the conviction of the appellant. The case of Obosi v. The State (1965) N.M.L.R. 119 is distinguishable, since in that case the appellant had confessed not only to joining in a conspiracy to murder but to being present when murder was committed m pursuance of the conspiracy, whereas in this case the appellant says he left the woman alive with the two men and is in no position to say what took place after that.

For these reasons we were satisfied that the appellant ought not to have been convicted either of murder or of any other offence of which it may have been open to the court to convict on the information, and judgment of acquittal was entered when the appeal was heard on the 20th June.


Other Citation: (1966) LCN/1315(SC)

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