Rex V. Motesho Okoni & Ors (1938)
LawGlobal Hub Judgment Report – West African Court of Appeal
Procedure—Additional grounds of appeal filed out of time—Rex by court.v. Wyman, 17 Cr. App. p. 10.5 not applicable in Nigeria—Where misdirection is a ground of appeal, particulars of such misdirection must be given.Murder or Manslaughter—Person in authority responsible for acts done by his order—Section 316 (3) of the Code explained—Where Nigerian law differs from English law—Death caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life, is murder—Not necessary that such an act should constitute a felony—English law requires that the act should constitute a felony involving violence, but does not require that it should be of such a nature as to be likely to endanger human life.
Held : Appeal dismissed.
The facts are sufficiently set out in the judgment.
C. N. S. Pollard for Crown.
Sir William N. Geary, Bart. (with him &fire) foi Appellants. The following Order was made by KINGDON, P
The Court is of opinion that it is not practicable to enforce strictly in this country the rules laid down in Rex v. Wyman. The practice has been to allow grounds of appeal to be added a reasonable time before the hearing of the appeal. In this case additional grounds were filed just before the case was set down for hearing six days ago and the case was adjourned till to-day in order to give opportunity for consideration. We are not prepared to refuse to do substantial justice on the ground of this objection to procedure. As regards the possible merits of the case we should like to hear what can be said on behalf of the appellants and accordingly grant the leave to appeal. In regard to the objection that particulars of misdirection have not been given, this is valid and the appellants must be called upon to furnish particulars.
After hearing the appeal the following joint judgment was delivered on the 15th January, 1938 :—
KINGDON, C.J., NIGERIA, BUTLER LLOYD AND CAREY, JJ.
In this case the three appellants were convicted in the Ibadan Division of the High Court of the murder of a woman named Yesajo at Igboora in the Oyo Province and sentenced to death. The third appellant is Bale of Igboora and the first two appellants are his messengers. The case for the prosecution at the trial is narrated by the trial Judge as follows : —
” The central figure of the story is one Shitta Agboola, a native of Abeokuta, who has been resident in Igboora for some eighteen years. He is referred to throughout the evidence as ” Shitta ” and I shall so refer to him in my judgment. He holds no position of importance in Igboora.
Shitta admits that five years ago he seduced the wife of one Adegoke who is the son of the Balogun of Pako. Pako is a town near Igboora and the Bale of • Pako is a member of the Native Court of Igboora over which the third accused, who is the Bale of Igboora, presides. As a result of the seduction Shitta became very unpopular with the Bale of Pako and with the other Bales who sat under the third accused in the Igboora Native Court. It appears however that the third accused at that time took no active part in the hostility to Shit* and Shitta admits that the third accused came at that time as his witness to give evidence before the Ibadan Native Court. In consequence of this friendly attitude of the third accused at that time the Bales of Pako and Iberekodo (both members of the Igboora Native Court) quarrelled with the third accused. So did other important people in Igboora.
During the last four years there have been at Igboora various developments of the antagonism towards Shitta, and in March, 1937, these apparently came to a head and he was expelled from Igboora by the third accused and the Bales of Pako and Iberekodo, Shitta left the town in consequence of the expulsion but eventually, early in the morning of 18th March, 1937. he returned to Igboora. He says his return was authorised by, the District Officer, Ibadan, in whose district Igboora is, but whether that was so or not is of no consequence in this case.
18th March, 1937, happened to be a Court day in Igboora Native Court. The nine members of the Court and the litigants assembled as usual. On the arrival of the other members of the Court they were informed by the third accused that Shitta had returned. This appears to have infuriated the third accused and the Bales of Pako and Iberekodo and some others to such extent that they could not attend to any of the Court work that morning. They had a discussion with some other members in the Court retiring room and then asked the Native Court clerk to prepare a warrant for the arrest of Shitta. The clerk naturally asked the third accused on what charge. No proper charge could be stated by the third accused or any of the others and the clerk quite properly said that he could not prepare the warrant.
He suggested that they should write to the District Officer and to the Olnbadan.
Up to this point the third accused was apparently supported by all his fellow members of the Court in the proposals for dealing with Shitta. They all agreed that they could not attend to the Court work that morning is
consequence of Shitta’s return, though it appears that the third accused Rex
and the Biles of Pako and Iberekodo were mainly responsible for thisv.
i & The next step was the sending of messengers to Shitta calling him to Okon
come to Court and explain why lie had returned. According to the Crown °Th‘
witnesses the messengers sent were the first and second accused, the Akoda
Akinwale and two others These five messengers possibly accompanied by
some other people, went three times to Shitta’s house and saw Shitta. Shitta
each time refused their bidding. After Shitta’s refusal had been intimated
for the third time the members had another conference at which they decided
that Shitta must leave the town forthwith; that they, the chiefs, should
leave the Court and go to the market place, and that the Oro drums should be used to drive Shitta out of the town.
They all went to the market place. The third accused again presided as they sat under the tree there. The third accused sent a message to the hereditary drummer of Igboora that he was to come to the market and bring the Oro dfums with him. Ladeji the drummer came as he was ordered. On his arrival he was told by third accused to beat Oro drums, but at first refused on the ground that it was not an Oro festival day and that he could not beat the Oro drums except on such a festival day. The third accused rebuked him for questioning his orders and Ladeji eventually obeyed the order.
Whenever the drumming started the market woman Scattered and there was confusion. The beating of these particular drums by customs forced the women to run to their houses and they did so.
Three principal members of the Native Court protested against the action of the Bale in ordering the Oro drums to be beaten but without success, and whenever the drumming started these three members left the market and went home. These three members have given evidence for the Crown. In estimating the value of their evidence it is important to note that they were in agreement with the measures against Shitty up to the point when the Oro drums were beaten.
After they had gone the third accused again called the same five messengers. By this time apparently it had come to the third accused’s knowledge that Shifts’ had left his own house and gone into Basin’s house which was next door. Shitta himself says he did so when he saw the chiefs leaving the Court and going to the market, and that when he heard the Oro drums he was terrified and ran away to the nearest Railway Station. The messengers were ordered by the third accused, with the approval apparently of the remaining members, to go to Basin and tell him that he must eject Shitta from his house. ‘Basin’s reply that Shitta had already left his house was apparently not believed.
The messengers were sent three times from the market to Basin, ‘the
last time with the message that if Basin did not eject Shitta forthwith he
(Basin) would suffer Shitta’s punishment. This threat did not produce
Shitta and the third accused then called up the first and second accused and
said to them ” Do you know where exactly Shitta is ” ? The second accused
replied that he did; whereupon the third accused said to first and second
accused ” If you know where he is exactly you should go and put fire there.”
Immediately the third accused said that the first and second accused
went towards the house of Basin. They were seen to approach Basin’s house.
The first accused was heard to ask second accused if this (Basin’s house)
was where Shitta was. Second accused replied that he was sure Shitta
v.was there. Thereupon the first accused lit a match and set fire to the
Moteshothatched roof of Basin’s house which immediately went up in flames. The
Okoni &first and second accused then ran away.
All this time the beating of the Oro drums in the market continued.
The flames and smoke of Basin’s burning house were visible in the market
Kingdon, and when the drummer saw them he stopped drumming, drawing the attention
C.d.,of the third accused to the fire. The third accused however ordered him to
Butlerresume his drumming which he did until he (the drummer) saw the fire
Lloyd and spreading to his own house. Then he dropped his sticks for good and ran Carey, U. to his own house.
With the stopping of the drumming and the shouts of ” Fire ” the whole town seems to have crowded to the scene of the fire. By the time they got there the roof ofBasin’s house was completely or almost completely burnt. When the third accused with his fellow-members of the Court arrived on the scene and, pretending ignorance, asked how the fire had occurred, the women of Mitts’s house abused them and accused them of sending messengers to burn the house, to which accusation no reply was given by the third accused.
The unfortunate woman Yesajo—so far as the evidence proves—was the only victim of this fire. She was found badly burnt at the scene of the fire. She was afterwards taken to Adeoyo Hospital, Ibadan, where in spite of treatment she died of her burns on 13th April, 1937.”
At the trial the defence of the appellants to this story of the prosecution was a denial of the facts alleged, the two first appellants seeking to establish an alibi and being supported in this by the third appellant. If the story of the alibi were true it established the innocence of all three. At the trial there was no suggestion made by the defence that even if the prosecution story were true the facts disclosed the offence of manslaughter rather than murder. The trial Judge rejected, and in our opinion rightly rejected, the story of the defence and accepted that for the prosecution. He sums up his finding in the following four propositions :—
- The third accused, a person in authority over first and second accused, ordered them to commit a felony, namely arson, in regard to the dwelling house where they knew Shitta to be.
- The first and second accused in concert, and because of third accused’s orders, proceeded at once to carry out that felony.
- The carrying out of that felony was the setting fire to Basin’s house.
- The fatal burning of Yesajo, an inmate of that dwelling house was a reasonably probable consequence of setting fire to the house.
We accept those four propositions and might usefully emphasise in respect to the last, that the probability of an inmate being burnt was greater in this case than it would be in ordinary cases owing to the persistent beating .of the Oro drums whereby all women are moved to go and remain indoors.