Yesufu Sokoto Vs The State (1972)

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ELIAS, C.J.N. 

The accused was charged with the murder of Kamoru Kelani on December 6, 1970 outside No.6 Okobaba Street, Ebute Metta, contrary to Section 316 of the Criminal Code and punishable under Section 319(1) of the Criminal Code. On September 10,1971, the accused was convicted and sentenced accordingly by Adefarasin, J., sitting with a jury at the Lagos High Court. From that judgment, accused has now appealed to this court.

The case for the prosecution was that from about 7.30 p.m. on Saturday, December 5, 1970, Kamoru Kelani, the deceased, held a naming ceremony party in front of his house, No.6 Okobaba Street, Ebute Metta, and that the party continued till the early hours of the morning of December 6, 1970; that the place was lit with electric bulbs hung over poles erected for the purpose; that there were several guests but that the accused was not invited to the party as he was not known to anyone there; that after mid-night on December 6, 1970, after the host and his wife and others had posed for some photographs, some of the guests began to pose for the taking of group photographs and, as the photographer was trying to get the group into focus, the accused with a tray of meat (called suya or sere) on his head walked in and planted himself between the photographer and the group he was about to take; that several persons appealed to him to leave but he refused; that thereafter the accused drew out a dagger from its sheath, brandished it and accidentally cut the electric wiring which held the lighted bulbs and the lights went out, although the front light from the house opposite No.6, Okobaba Street continued to give sufficient light for anyone to see; that when the guests shouted, the deceased came out of No. 6, Okobaba Street and appealed to the accused who thereupon stabbed him with the dagger at the chest and near the armpit; and that the deceased fell to the ground and died soon afterwards.

In his statement to the police, (Exhibit 7) the accused said that, at about 2 a.m. on December 6, 1970 as he was hawking meat (sere) at Ebute Metta, he came to No.6, Okobaba Street some people in front of which invited him to sell them meat; that as he put down the tray, these people started to share and eat the meat without paying; that one of them said in English that he had money on him so that they should beat him up and take it away; that they beat him up, tied his hands with a rope and took him to one corner; that; as they beat him, he felt someone’s hand in his pocket reaching for the money he had on him, took the knife he had with him and stabbed in the direction where he felt the hand in his pocket, not knowing whether the dagger hit somebody or not; that the dagger was taken away from him, and that his money (7.5 pounds), his tray, hurricane lamp and shoes were all stolen from him; that at last a police officer in uniform came and untied his hands, put him into a Landrover and took him to the police station, that the people who invited him to sell them meat were doing nothing at the time, and that he did not see any photographer there with them, but that there was a party some 300 yards away along the same street. At the trial he added a few more details. He denied that he stabbed the deceased or anyone else on that night; he denied that he used the dagger which was tendered in evidence or that he was its owner; he said that he had been invited by Bakare Ayinde (P.W.5) to whom he sold two shillings worth of sere and bangu meat and who gave him a 1 pound note and demanded a change of eighteen shillings; that, when he offered to go to a cigarette seller to change the 1 pound note, Bakare Ayinde refused to let him do so, held him by the shirt and called him “Oloshi”, that someone in the crowd slapped him on the back and several others joined in beating him, so that he fell to the ground; and that his hands were tied with a rope on to a tree, whence the police took him away in a motor vehicle to a police station.

In this appeal, the defence filed two additional grounds of appeal on which Mr. F.O. Akinrele, the learned counsel for the appellant, concentrated in his argument before us. These grounds 3 and 4 are as follows:

3. “That the learned trial Judge misdirected the Jury in law when he said “You may not substitute a separate defence for the accused other than the one he put forward. The accused person did not put across any defence of self or provocation or insanity” when in fact there was evidence as to self-defence or provocation of which the jury might make a finding.”
4. “That the learned trial Judge misdirected the Jury in law when he said “You should only find the accused person guilty of manslaughter if you find that he unlawfully killed the deceased without any intention on his part to kill or cause him or any other person grievous harm” when in law there was the issue of provocation to be considered.”

With regard to ground 3 on the issue of self-defence, we do not think that there was sufficient evidence of it. The nearest reference made to it occurred in the following passage in the accused’s statement to the police: ” ……they start to beat me, which they tied my hands up with rope

and took me one corner; and began to beat me, when they were beating me, I felt one of the people’s hand in my pocket removing the money I have with me. I took the knife I have with me and stabbed the direction where I felt the hand in my pocket.”

This, in our view, can hardly support a plea of self-defence.

Mr. Akinrele was, however, on a stronger footing in respect of ground 4 when he complained that the learned trial Judge was wrong in having excluded a consideration of the possible defence of provocation in his summing-up to the jury.

In his statement to the police, the accused had added to the passage quoted in the immediately preceeding paragraph:. “But I cannot say whether the dagger met somebody or not as by that material time I wasn’t in my senses. The people took away the knife from me, stole my money…..But I don’t know whether I stabbed somebody or not, because the people beat me too much and they were many:’ Moreover, the accused’s evidence that his hands were tied with a rope to a tree until he was rescued by the police remained throughout uncontradicted by the prosecution. We think that there was sufficient evidence of provocation before the learned trial Judge to leave the issue to the jury. Had he not directed them to disregard any possible defence of provocation, the jury might have returned a different verdict. On this point, the learned counsel for the appellant referred us to this passage from the judgment of Viscount Simon, L.C. in Mancini v. D.P.P. (1942) AC 1. p. 7:

“Although the appellant’s case at the trial was in substance that he had been compelled to use his weapon in necessary self-defence-a defence which, if it had been accepted by the jury, would have resulted in his complete acquittal- it was undoubtedly the duty of the Judge, in summing up to the jury, to deal adequately with any other view of the facts which might reasonably arise out of the evidence given, and which would reduce the crime from murder to manslaughter. The fact that a defending counsel does not stress an alternative case before the jury (which he may well feel it difficult to do without prejudicing the main defence) does not relieve the Judge from the duty of directing the jury to consider the alternative if there is material before the jury which would justify a direction that they should consider it…..”

The learned counsel for the respondent conceded that the trial Judge’s misdirection to the jury would justify a reduction of the appellant’s conviction from murder to manslaughter. We agree with this view.

We accordingly set aside the conviction of the appellant for murder, and we substitute a conviction for manslaughter contrary to Section 317 of the Criminal Code and punishable under Section 325 of the Criminal Code.

We hereby sentence the appellant to a term of fifteen years’ imprisonment with hard labour for the manslaughter of Kamoru Kelani, the sentence to run from the date of the original conviction, that is to say, from September 10, 1971.

Other Citation: (1972) LCN/1428(SC)