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FEDERAL SUPREME COURT OF NIGERIA
14TH JULY, 1960.
MYLES JOHN ABBOTT, F.J. (Presided)
PERCIVAL CYRIL HUBBARD, AG. F.J.
JOHN IDOWU CONRAD TAYLOR, AG. F.J. (Read the Judgment of the Court)
CRIMINAL LAW: Murder- Elements thereof – Cause of death must be attributable to accused.
CRIMINAL LAW: Murder –Ingredients for setting up the defence of Intoxication – Section 29(4) of the Criminal Code-Ingredients
CRIMINAL LAW: – Murder – Provocation – Section 318 of the Criminal Code – Ingredients.
WOMEN AND CHILDREN LAW: Deceased alleged to have been killed by Husband during argument over drinking– Failure of prosecution to tender autopsy report – Whether fatal to murder charge
ETHICS: failure of prosecution to tender relevant but available evidence or to diligently conduct a murder case with the serious it requires
Mr. J. A. Cole -for the Appellant.
Mr. B. O. Kazeem, Senior Crown Counsel -for the Respondent.
TAYLOR, AG. F.J. (Delivering the Judgment of the Court):
The appellant was convicted of murder in the Jos Judicial Division of the High Court of Justice of the Northern Region of Nigeria and against his conviction three grounds of appeal were argued before us on the 8th July, 1960. These were the first three of the additional grounds filed by learned counsel for the appellant on the 4th July, 1960. The fourth additional ground and the original grounds filed with the Notice of Appeal were abandoned.
In dealing with the arguments of learned counsel for the appellant I find it convenient to take ground 2 first, then ground 3, and finally the first ground. On ground 2 Mr. Cole for the appellant contended that the learned trial Judge failed to direct himself on the issue of provocation raised in the statement made by the appellant to the police. Before dealing with this contention I would here mention a matter in connection with this statement (exhibit AGF 3). It is this:- The Hausa version of this statement, marked as exhibit AGF 1, but as AGF 2 on the record of appeal, and the English version marked as exhibit AGF 3, both record the name of the maker as Dung Forom and begin with the following words (taken from the English translation) –
“I Dung Forom will state what I know. That on Christmas day 1958 I went to …” and so it goes on.
The name of the accused however, on the record of appeal, is Adum Gwom Forom. On the other hand, one Dung Forom was the N.A. Police Constable and the 1st prosecution witness, who, after discovering the body of the deceased and the accused in the latter’s but conveyed them both to the Hospital. The statement of the accused was taken down by Joshua Fayomi P.W.2, a Corporal of the Nigeria Police, and the translation was made by him. At the end of the statement (exhibit AGF 1) is a thumb impression under which we find the following words:
“Signature / Mark of / accused.”
but when we look for the name of the accused we find at the beginning of the statement the name Dung Forom. The question as to the admissibility of this statement and its effect on the mind of the learned trial Judge are matters to which we would have had to give fuller consideration were it not for the view we hold about the outcome of this appeal.
I shall now proceed to deal with learned counsel’s submission on ground 2 of the grounds of appeal. The relevant portion of the said statement (exhibit AGF 3), relied on by learned counsel, reads as follows:
“I then asked her that has she drinking up till this night? and she answered that “what of me who went and drank” did I give her; I then left and went away and she followed me until we reached home; when reaching the home, I asked her that I left for drinking pito and you too left for drinking pito. She said that why she will not step out to drink pito, am I only a man? She then pushed me.”
It was submitted on the appellant’s behalf that the facts alluded to in this statement were sufficient to constitute provocation in law so as to reduce the crime from murder to manslaughter. Great stress was laid by learned counsel on the meaning to be attached to the words “am I only a man?” by which he submitted the deceased meant to convey that the accused was not the only man she had been associating with. The words above referred to, when read in their context, in our view convey no more than the meaning attached to them by the learned trial Judge, the effect of which is that the deceased told the accused that if he will go drinking without taking her she could find other men who would take her. We cannot agree that these words, coupled with the action of the deceased in pushing the accused, were sufficient to constitute provocation in law within the meaning of s.318 of the Criminal Code and this ground of appeal therefore fails.
Learned counsel for the appellant argued on ground 3 that the learned trial Judge failed to consider, as required by s.29(4) of the Criminal Code, whether the appellant had formed the intention specific or otherwise necessary to the charge in view of the evidence that the accused was intoxicated. Reference was made to the case of Chutuwa v. The Queen 14 W.A.C.A. 590, the facts of which on the point at issue were not far different from the present case. The accused there appealed against his conviction on the ground that although he did kill his wife, he did so while he was not responsible for his actions because he had been drinking beer “for one whole day and one whole night.” Reliance was placed on s.29(4) of the Criminal Code and de Comarmond, Ag. C.J. Nigeria, at page 592, stated the effect of that section in these words:
“Section 29(4) may be relied upon by an accused person if it be established that he was so drunk as to be incapable of forming the intent which is essential to constitute the crime charged. But evidence of drunkenness which falls short of this and which merely establishes that, owing to his state of intoxication, the accused would more readily give way to some violent passion cannot be relied upon by the accused in so far as provocation is concerned. In this connection, we respectfully adopt the views expressed by the Court of Criminal Appeal in England in the case of Rex v. McCarthy where it was laid down that apart from a man being in such a complete and absolute state of intoxication as to make him incapable of forming the intent charged, drunkenness which may lead a man to attack another in a manner in which no reasonable man would do, cannot assist to make out a defence of provocation and cannot be pleaded as an excuse reducing the crime from murder to manslaughter.”
(see Rex v McCarthy (1954) 2 W.L.R. 1044).
In the case before us the learned trial Judge was of opinion that not only did the accused know what he was doing, but also that he remembered what he did at the material time. This finding in our view is fully supported by the evidence and shows further that the accused was capable of forming the necessary intent at least to do his wife grievous harm. This ground of appeal also fails.
There appears to be more substance in the first ground than in the other two grounds with which I have just dealt. Here, learned counsel contends that there was insufficient proof of the cause of death of the deceased. He sought to differentiate the present appeal from that of Kato Dan Adamu v. Kano Native Authority (1 F.S.C. p.25); (1956) SCNLR 65 in this wise:- that -whereas in that case there was no medical evidence available at the time as to the cause of death and the Court held as follows:
“Cases frequently occur, here and elsewhere, in which the Court is asked to infer the cause of death from the circumstances, because of the lack of medical evidence, and in cases such as this it is perfectly proper to do so.”
In the appeal before us there was evidence given by N.A. Police Constable Dung Forum that a post mortem examination was conducted on the body of the deceased on the 30th December, at which this witness was present and identified the deceased to the Doctor. Learned Counsel therefore contended that the principle involved in the case of Kato Dan Adamu v. Kano Native Authority (supra) was not applicable in this appeal where medical evidence was available but was not called. The crime ascribed to the accused was alleged to have been committed in the month of December, 1958, and though the accused was apprehended in that same month, he had to be detained in a hospital from the 30th December, 1958 to the 8th September, 1959, to undergo treatment for his self-inflicted wound. He was committed for trial on the 13th November, 1959, and his trial in the High Court began on the 9th March, 1960. We are at a loss to know why counsel for the prosecution, who must have had the depositions in the Court of committal before him, and presumably knew that a post mortem examination was conducted on the deceased, took no steps in the Court of trial to have such evidence made available. Indeed, learned counsel for the defence did, on the 11th March, 1960, intimate that such evidence would be of value to his client and he is recorded as saying that:
“… Medical evidence would be of value to my client. I understand the medical officer who took the post mortem is not in the country.”
We find nothing further said about the availability of medical evidence before the trial commenced. All we find recorded is a question by the learned trial Judge and the reply to it by learned counsel for the prosecution as to the length of time the accused had been in custody, a question and answer which, if I may say so, was of no relevance to the point under consideration. The case for the Crown was closed on the 13th April, 1960, and nothing more was said about the medical evidence on the post mortem. The learned trial Judge dealt with the matter under consideration in this way. He says – dealing with the evidence of P.W.1, P.C. Dung Forom:
“He accompanied her (the deceased) to the hospital. He was present in the mortuary about two days later when a doctor conducted a post mortem examination on her body. I am informed by learned Crown Counsel that the doctor was not available to give evidence as he is out of the country. Nevertheless on P.C. Adung’s evidence the conclusion is that Ayup died as a result of the wound in her abdomen.
Though the facts in the cases of Rex v. William Oledima 6 W.A.C.A. 202, Rex v. Bauna of Geji, 3 W.A.C.A. 80, and Gyan v. The Queen, 14 W.A.C.A. 412, are different from the case before us, the principle involved is the same which, quoting from Gyan v. The Queen at page 413, is this:
“To establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did cause, or accelerate, his death.
There can be no doubt that the act of the accused in inflicting such wound on the deceased could have caused her death, but can we, on the facts before us, and bearing in mind that a wound of a similar nature though possibly not of the same severity, was self-inflicted on the appellant who did not succumb to it, say that it did cause or accelerate the death of the deceased? We think not.
At this stage and before allowing the appeal, we would comment on some aspects of the trial which in our view were most unsatisfactory. The first is the manner in which the prosecution, in a capital case, was conducted. In a case such as this in which a preliminary investigation was conducted before a Magistrate the witnesses who gave evidence in that Court would of necessity be bound over to attend and to give evidence at the trial of the accused in the High Court and yet when, on the 11th March, 1960, the trial was fixed for the 28th March, 1960, we find learned counsel for the prosecution confessing his inability to proceed owing to the absence of his witnesses. The trial was then adjourned till the 5th April, 1960, on which day the evidence of two witnesses was taken before the case was adjourned till the following day, the 6th April, 1960. Now on the 6th April, 1960, the evidence of the third witness was taken and learned counsel sought an adjournment as two of his witnesses were not in Court. The case was stood down till 11.30 a.m. at which time the Crown counsel informed the Court that the two witnesses- to wit Dat Forom and Tsok Forom – were still not available, and sought for three days adjournment to bring Tsok Forom, who is said to have been at the Police College, Kaduna, before the Court. No application was made for a Bench warrant by the Crown nor was any order for the issue of such made by the Court. The trial was adjourned till the 7th April, on which day a further adjournment was sought by the Crown for the same reason, and granted by the Court till the 13th April: both the application and the order again being made without any mention of a Bench Warrant. On the 13th April, 1960 Dat Forom gave his evidence and the case for the Prosecution was closed. One is left in doubt as to the reasons for not calling Tsok Forom and as to whether his name appeared on the depositions. The same applies to the medical evidence. We do not know whether in fact any was called at the preliminary investigation.
Learned counsel for the defence cannot be absolved from blame in this matter for he too must have had a copy of the depositions and would be in a position to know the witnesses that would be called at the trial, yet no application was made by him at the close of the case for the Crown in respect of the absence of any medical evidence and the failure of the Crown to call Tsok Forom or make him available for cross-examination. The appellant’s defence, which began on the 13th April, 1960, had to be adjourned on no less than five occasions because his witnesses were not available.
The appeal is allowed for the reasons already given, the conviction is quashed and we order that a verdict of acquittal be entered.
HUBBARD, AG. F.J.: