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29TH MAY, 1959


3PLR/1959/11 (SC)






LIONEL BRETT, F.J. (Read the Judgment of the Court)




Appellant absent and unrepresented.

MR. C. H. E. MILLER – for Respondent.


CRIMINAL LAW AND PROCEDURE: – Murder – Proof of same – Duty of prosecution to discharge evidentiary burdens

CRIMINAL LAW AND PROCEDURE – POLICE: – Police lending themselves as extra-judicial enforcers of rival civil claims – When crime arises therefrom – Questioning of accused persons in custody – Need for Police to observe evidentiary formalities with regard to exhibits and accused persons – Attitude of court thereto

[MURDER WEAPON: pocket-knife]

ETHICS – LEGAL PRACTITIONERS: – Murder trials – Where accused person has multiple counsels – Duty of leading Counsel to be present

CONSTITUTIONAL LAW AND HUMAN RIGHTS:- Right to Life and Fair Hearing – Dispute over paternity of child where no valid marriage exist – Murder arising therefrom – Role of police at enforcing extra-judicial enforcement of claims – Murder arising therefrom

RELIGION AND LAW: – Proof of crime – Belief in witchcraft and curse – Relevance in grounding criminal intention – How treated

CHILDREN AND WOMEN LAW:- Women and Security – Murder – Previous elopement between two persons without more – Whether creates any legal relations –  Open-ended sexual relationship between man and woman where man referred to woman as ‘wife’ even though she maintains serial sexual relationship with other men – Dispute over child arising therefrom – Man’s rival claim against that of woman’s current live-in-lover – Whether support of woman for rival claim and verbal abuse amounts to provocation at law


BRETT, F.J. (Delivering the Judgment of the Court):

The Applicant was convicted of murder after a trial by Mr. Justice Bennett sitting with a jury in the High Court of Lagos. We refused his application for leave to ap­peal and now give our reasons for doing so.

The victim of the murder was a woman named Oyidunta Anike Obeisan who, though perhaps never married to the applicant by native law and cus­tom and certainly not under the Ordinance, had at one time run away with him and lived with him for two years. Thereafter she left him, and lived with a succession of other men, but she appears to have continued to visit the applicant intermittently and it is clear that they still retained a considerable attraction for each other. The applicant himself referred to her as his wife.

About ten days before the murder the deceased had given birth to a child, of which both the applicant and the man with whom she was then living, Karimu Alao, claimed to be the father. On the day in question the applicant persuaded a friend of his named Saulabiu Akanni and another, whose name does not appear but who was a special Police Constable, to ac­company him to the house in Apapa where the deceased was, ostensibly to congratulate her. It is not entirely clear from the evidence whether the applicant had already formed an intention to kill the deceased or whether (as seems more likely) he only wished at that stage to obtain the child and his in­tention to kill was formed later. When they arrived at the house the applic­ant claimed the baby as his, and told the deceased to take it and go with him, which, after the special Constable had backed up the request, she did. Karimu Alao was not present, but several other people were, and they did nothing to stop the deceased from going. The applicant, his two companions and the deceased, with the baby, then left the house and went along Ajayi Street. On the way they passed the shop of one Mustapha Akanji, otherwise known as “Yellow,” with whom the deceased exchanged some conversa­tion, in the course of which the deceased said the applicant was deceiving himself about the parentage of the child and should go and look for his child elsewhere. The applicant then said “Is that what you mean? Anike is going to die a painful death”. The deceased and the applicant then started abusing one another and this went on until the party reached a place where empty drums were stacked. There the applicant said that the deceased’s mother (with whom he was on bad terms) had put a curse on him and had said that he would kill someone that day. He added that Anise would be the one to be killed. He then drew a knife from his pocket and stabbed the deceased a number of times all over the body, so that she died. Saulabiu Akanni was un­able to intervene, as the applicant threatened him too with the knife, and the special Constable appears to have run away.

Police were sent for, and when they first arrived the applicant did not deny his guilt, but immediately said “this na my wife. Ah done killam. I kil­lam with this knife.” After being cautioned he said “I know so I go die I no care.” Later he made a lengthy statement under caution in which he still ad­mitted killing the deceased, but said that she and he had been followed by the other man who claimed to be the father of the child and by “Yellow” after “Yellow” had, as it were, challenged him to kill the deceased and that before he first stabbed the deceased “Yellow” had hit him on the back with a piece of wood. The motive for killing, according to this statement, seems to have been jealousy. In his evidence at the trial the applicant improved on this and denied killing the deceased at all. He told a story of how he and the deceased were set on by a party of about fifteen people, led by Karimu and “Yellow” and the deceased was stabbed by two of this party. He denied making the confession he was said to have made when the Police first saw him, or the written statement, and made various allegations of fabricating evidence against the Police, including the statement that a Police Officer took his, the applicant’s, Buba and trousers and smeared them with the blood of the deceased.

In his summing up, the Judge stated the law accurately, and placed the issues of fact fully and fairly before the jury. He left it to the jury to decide whether on the evidence for the Crown there was sufficient provocation to reduce the offence to manslaughter and if his direction on this issue erred at all it was in favour of the applicant. The grounds on which leave to appeal was sought are, in substance, simply a repetition of the story which the jury, by its verdict, has shown that it rejected, and we are unable to see any ground for interferring with that verdict. For this reason we refused the ap­plication for leave to appeal.

There are two incidental matters which call for comment. The applicant was arrested on the 3rd April, 1958, and on the 4th April, the Police Officer who was preparing various proposed exhibits for despatch to the Forensic Science Laboratory called the applicant to witness the packing of the exhibits and after cautioning him told him that it had been alleged that he used the knife to kill his wife. The applicant said that was correct. The Police Officer then asked him if certain clothes belonged to him to which he replied that they did. We think that this was improper and that the Judge would have been justified in refusing to allow evidence of these questions and answers to be given: see Rule 3 of the Judges’ Rules and the comment thereon in parag­raph 683 of the 33rd edition of Archbold, concerning the questioning of per­sons in custody. We do not consider that any miscarriage of justice has oc­cured in this case, but we hope the Police will not repeat such an irregularity. We also observe that two counsel appeared for the applicant in the Court below and that on two occasions the leader was absent when the Court re­sumed in the morning after an adjournment. We consider that in a murder case the leader ought to make a point of being present throughout the trial and we expect counsel to take note that that is the view of this Court.


Application Refused



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