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SUIT NO. SC 237/1967.
BEFORE THEIR LORDSHIPS:
Mrs. Maja-Wassiamal, – for the Respondent
CRIMINAL LAW & PROCEDURE – Murder – Improper Direction to jury – Failure to put accused’s defence properly to the jury – Effect.
MADARIKAN, J.S.C. (Delivering the Judgment of the court):
The appellant was convicted of murdering Ishola Asu Mba at the Bar Beach, Victoria Island, Lagos, on the 2nd day of February, 1967. It is not in dispute that the appellant inflicted four stab wounds on the neck of the deceased, and that the deceased fell and died on the spot. 1st Prosecution Witness, a Senior Pathologist, who performed post mortem examination on the corpse of the deceased testified that the cause of death was internal haemorrhage resulting from the stab wounds.
The case for the prosecution was that on the 2nd day of February, 1967, the deceased, 3rd Prosecution Witness and a Police Constable in mufti were walking along the Bar Beach when the deceased saw the appellant sitting on a mat in a shed belonging to the deceased. The deceased asked the appellant to pay 2/- for the use of the shed or quit. Thereupon, the appellant packed his belongings and chased 3rd Prosecution Witness with a knife. On failing to overtake 3rd Prosecution Witness, he returned to the deceased, pushed him down and stabbed him on the neck and abdomen. The deceased fell down, bled profusely and died on the spot.
In his statement to the Police (Exhibit L1), the appellant stated that those who accompanied the deceased went to look for sticks with which to attack him, and both in his statement to the Police and in his evidence at the trial, he stated that the deceased and others wanted to steal £1.18.94 which was in his pair of shorts and that the deceased was throwing sand at his face. He then stabbed the deceased. In his summing up to the jury, the trial judge after directing them as to the law which is applicable to the charge of murder preferred against the appellant, re-viewed the evidence adduced in support of the case for the prosecution and defence.
Learned counsel for the appellant, Mr. Akinsanya, criticised the summing up in the 2nd ground of appeal which reads as follows:-
‘The learned trial Judge misdirected the jury in that he stated that the only verdict which they could fund against the appellant was only murder, whereas it was open to the jury to consider the verdict of manslaughter If they accepted the evidence of the Appellant that he acted in defence of the shed and his property to wit: the money in his pocket.”
We are satisfied that this criticism is well founded in view of the following pas-sages in the summing up:-
‘Whatever the position however, I am bound to direct you that on the facts of this case the charge of murder has been proved:’
“I must, however, direct you that as far as the evidence is concerned the only verdict that you can return is that of “guilty of murder’.
In all the circumstances of this case, we are of the opinion that the trial Judge was not justified in using in the course of his summing up such language as might have led the jury to think that he was directing them that they must find the facts in the way indicated by him. As Lawrence J. pointed out in R v. West “a Judge must not put himself in the position of the jury as regards the decision of facts.” Further, the trial Judge did not adequately put the defence of the appellant to the jury in that in his summing up he did not point out to them that both in the statement of the appellant to the Police (Exhibit Lt) and in his evidence at the trial, the appellant stated that the deceased threw sand at his face.
Learned counsel for the respondent conceded that the defence of the appellant was not adequately put to the jury, but she submitted that there was sufficient evidence on which the jury could have found the appellant guilty of the lesser of-fence of manslaughter.
We cannot with certainty be satisfied that if the alternative verdict of man-slaughter had been properly left to the jury, and the appellant’s defence adequately put to the jury, that they must inevitably have come to the verdict of murder. We are, however, satisfied that on the evidence there was no question of an acquittal but that the offence of manslaughter had been made out, and we are therefore of the opinion that a verdict of manslaughter should be substituted for that of murder.
An application was made to call Mr. Amo Maneck as an additional witness as he stated he had Informed the Police that he had witnessed the incident but had never heard anything further in regard to the matter till he read of the appellant’s conviction in the local press. We have carefully considered this application, but we are satisfied that even if he gave evidence in the form he set out in his letter it could do no more than assist the appellant by reducing a verdict of murder to man-slaughter which, without his evidence, we have indicated we have already done, so nothing would be added by acceding to this application. We would only add that we do trust that in future the Police will ensure that State Counsel is informed of any possible witness before a trial commences.
The verdict and sentence of the trial court are accordingly set aside and in substitution therefore the appellant is found guilty of manslaughter contrary to section 325 of the Criminal Code and sentenced to 5 years imprisonment with hard labour. Appeal allowed: verdict of manslaughter substituted.