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SUPREME COURT OF NIGERIA
7TH MARCH 1969
SUIT NO. S.C. 253/1968
BEFORE THEIR LORDSHIPS:
Cole – for the Accused/Appellant
Gbemudu, Ag. D.PP, – for the Complainant/Respondent
In Charge No. UHC/12C/68 Atake Ag. J. in the Ughelli High Court on the 16th of August, 1968 convicted the 1st accused, who is the appellant in this appeal and is hereinafter called “the accused”, of the murder of Ilori Ufeli and sentenced him to death, having earlier discharged the 2nd accused when he upheld a no case submission on his behalf at the close of the prosecution case. The case for the prosecution was that on the night of 3rd December, 1967 at Ujovwre Village cries of “thief’ were heard, the accused got his gun, came out of his house and ran towards the shouting and fired his gun at a man who had jumped out of the window of a room. The man ran into the bush but was found about 400 yards away by the accused lying on the ground; his body was subsequently recovered by the police who took it to the 8th P.W., a specialist Surgeon, at Warri General Hospital, who on the 7th of December, 1967 conducted a post-mortem; he found a penetrating wound on the right chest consistent with a bullet wound and that death from shock and haemorrhage had resulted therefrom. No one was called at the trial to give evidence who saw the incident and the story of what happened turned on the accused’s evidence and statements that he made.
In the accused’s first statement to the police he said:-
“When I heard the shout of thief, and the girl named Etuwarha Eda showed me the place the thief entered. I called my father Akpobasa Ogrigri (m) to give me my gun. This he did, and I fired at the thief. After firing at the thief, I could not see Egedegbe Oronimewu (m) again. I returned back from the spot and told my father Akpobasa Ogrigri (m) that I thought that the thief is down. After telling my father this I went to Adjekerieda village where I saw my friend Egedegbe Oronimewu (m) already there. After seeing him I returned back to our village where I met my father Akpobasa Ogrigri (m) who told me that the thief I fired is dead, and that he had buried him in a place he did not mention to me. So when I heard that my people were arrested hence I came to the police to report myself. It was the thief that I fired.”
Later in another statement he said:
“In addition to my former statement made to the police on 5 December, 1967, I have to state further that it was my father Akpobasa Ogrigri (m) that fired the thief with his dane gun and killed the thief. I only held matchet but I did not use it to cut the thief.”
When he came to give evidence at the trial he said in examination in chief:-
“When I heard Etuwarha shouting `thief, thief, thief,’ I came out of my room with a gun and I ran to the direction where the girl was shouting. I stood at the back of the house. As I got there I saw a man jumping out of the window of the room. He was holding a cutlass and was trying to run towards me. I fired at him. He jumped into the bush. Many people came amongst whom was my father. He asked me where the thief ran to and I told him that I shot him and that he ran into the bush. He and I began to walk in the direction the thief ran. After walking for about 400 yards we came on a man who was lying on the ground.
I looked at him, became afraid and ran back home.” And under cross-examination he said:-
“When I saw the deceased on the ground in the bush I was afraid and my mind did not go to the cutlass I saw with him earlier on. I shot the deceased because I was afraid. I was about 24 feet from the deceased when I fired at him. To Court: When I came out of my room I went to the entrance of the room from where the girl was shouting. The girl said `he was passing through the window’ and so I went to the back of the house. I did not run away from the village after the incident. I took my child who was ill to another village to cure her. To Court: It was I who fired at the thief. I did not make a supplementary statement in which I said it was my father who fired at the thief. To ljewere: I did not show anybody the cutlass with the thief because my mind did not go to there.”
The learned trial judge in his judgment said:-
“In his evidence in the witness box he attempted quite unsuccessfully to put a little twist on the statement as recorded above. He said that when he heard the alarm `thief, thief’, raised, he went to the entrance of the room. The girl said that the thief was passing through the window and so he went to the back of the room. He saw the thief jump out from the window: the thief was holding a cutlass and was running towards him and so he fired; the suggestion being that he fired in self defence. After firing at him the deceased ran into the bush. It is pertinent that in his statement, exhibit ‘E’, he did not say that the deceased ran towards him, holding a cutlass. And in any case he has not suggested that the deceased lifted the cutlass to cut him, neither has he said how near the deceased was to him or that in the circumstances he believed on reasonable grounds that if even the deceased had a cutlass, which I am satisfied was not the case, he could not otherwise preserve himself from death or grievous harm: these being the only conditions that could justify him on a plea of self defence in using such force as may cause death or grievous harm. Firing a gun at a person is certainly an act that may cause death or grievous harm and before a man who fires a gun at another can succeed in pleading that he did so in self defence he must fall within the conditions prescribed by Section 223 of the Criminal Code. The accused cannot in my mind seek refuge in that section.”
and later said:-
“It is clear that the accused did know or believe that he had indeed hit the thief when he fired at him and he so informed his father. Which leads one to the view that the thief was within view of the accused when he shot at him that night. It was night and visibility must be such that the accused saw the deceased. So it appears to me that the accused shot the deceased as he was escaping apparently into the bush behind the house burgled. That must be the case …. I do not accept his story that the deceased ran towards him with a cutlass. That is a lie. The accused has told deliberate falsehood on more than one occasion in this case. He denies his supplementary statement in which he accused his father falsely of killing the deceased. I am however satisfied that he made it only a day after he had himself confessed to the killing of the deceased and what is more he confirmed it before a Superior Police officer.”
and concluded by saying:
“Mr. Idigbe raised the point that the accused acted in defence of the sister’s property. I do not accept that contention for the facts which I find are against it and are that the deceased must have broken into the house to steal and that on hearing the alarm `thief, thief’ raised, made to escape. He jumped out of the room through the window and the accused fired at him in his bid to escape. I find as a fact that the intention of the accused was to kill or at least to do him grievous harm and in my opinion R. v. Aliechem 1 FSC. 64 applies to this case.”
Now Mr. Cole for the appellant has argued together three grounds of appeal namely:-
“1. Upon the finding of the lower court that the deceased `jumped out of the room through a window and the accused fired at him in his bid to escape’ the appellant, on the authority of Obot v. The Queen 14 WA.C.A. 352, ought not to have been found guilty of murder.
It is his submission that the learned trial judge did not take account of the evidence of the Surgical Specialist, the 8th P.W. that the deceased was shot in the chest and in his submission that evidence of a frontal wound sustained the story of the accused that he shot the deceased as he was running towards him. He further submitted that if that was so and the learned trial judge had taken account of it he would more likely have believed the story of the accused that the deceased ran towards him with a matchet, which the learned trial judge in fact rejected. He submitted that if this Court accepted that the accused shot the deceased when he was running towards him with a matchet then he acted in self-defence and should have been acquitted or alternatively at the least as the accused was acting in the defence of property he was entitled to have the verdict reduced to one of manslaughter on the authority of Obot v. The Queen 14 WA.C.A. 352 and R. v. Aniogo 9 WA.C.A. 62 rather than for this Court to follow R. v. Aliechem 1 F.S.C. 64 upon which the learned trial judge relied.
Before turning to the examination of the cases we would first say that we do not see that because the learned trial judge did not advert to the medical evidence of the wound in the chest that must automatically mean that if he had adverted to it the accused’s story as to the deceased running towards him with a matchet must be believed. He did not tell that story in either of his statements to the police and he admitted in cross-examination that he never showed anybody the cutlass that the thief had because as he put it ,’my mind did not go to there”. Notwithstanding that the accused was shot in the chest this could still have occurred when he was running away because it would depend on where the accused was when he shot him and his evidence was only that he was at the back of the house. We think the learned trial judge was entitled on the evidence to find as he did that the accused shot the deceased after the deceased had jumped out of the room and was running away and that the deceased was unarmed. The issue how-ever is whether on those findings the verdict of murder can be sustained.
In R. v. Aniogo 9 W.A.C.A. 62 the West African Court of Appeal said:
“Shortly the facts of the case are that the people of the town of Abbi, of whom the appellant was one, were warned on the 2nd December, 1942, that there were thieves in the town and that they should be on the alert. On such occasions, owing to inadequate policing, the safety of person and property in the town fails to be guarded by so-called night guards, who have frequently, as we know from cases in this Court, to deal with armed thieves.
During the night in question the appellant, as a precaution, lighted up his house and then went to bed and slept. He was awakened by an alarm of ‘thief, thief’. He went with a loaded dane gun in the direction of the alarm. Then a man came running towards him apparently being chased. He thought the man was an escaping thief and possibly armed and so fired his gun either at the man or in the man’s direction. At any rate he hit and killed the man, who turned out to be one Echigbua, an innocent man, lawfully abroad, who was running away through fright at being followed by someone else. On these facts the learned trial judge found the appellant guilty of murder and sentenced him to death. On appeal counsel on his behalf has submitted that the conviction should have been for manslaughter only and not murder and counsel for the Crown has intimated that he cannot uphold the conviction for murder, but asks the Court to substitute therefor a conviction for manslaughter and pass an appropriate sentence. We agree that, having regard to all the circumstances of this case, the proper verdict was one of manslaughter and not of murder.”
In our view that decision was not inconsistent with the later decisions as it turned upon a concession by the counsel for the prosecution upon which the Court acted that the conviction should have been for manslaughter, and there was also the evidence that the accused there thought the deceased was “possibly armed” when he shot him.
In Obot v. The Queen 14 W.A.C.A. 352 at page 353 it was said:-
“The sole remaining question is whether those facts constitute the crime of murder. A person who in the night finds another in the act of committing a felony is entitled to use such force as may be necessary to apprehend the felon even to the extent of killing him in order to pre-vent his escape but it would be an unhappy state of affairs if when he has caught up with the escaping felon who is unarmed he should be at liberty to hack him to death with a lethal weapon such as a matchet. This goes far beyond the force which would be justified by the circum-stances and is in our view clearly murder. We do not think that any reasonable argument could be adduced to the contrary and leave to appeal is therefore refused.”
and Mr. Cole has attached much weight to the initial general statement of the law there and craved it in aid here, but in our view Obot’s case (supra) was decided on the facts that the accused chased an escaping and unarmed felon with a matchet and killed him so that the general statement could, having regard to that, only be obiter. In any case, however, bearing in mind the general law the initial statement is not inconsistent provided that one does not seek to extend its meaning, as Mr. Cole tried to do. In so far as it was dealing with defence of property such as defending a dwelling house from a breaking and entering with intent to commit a felony then as a general statement that even force to the extent of killing may in appropriate circumstances be used in the defence, it is in accord with the law, (see section 219 of the Criminal Code of Western Nigeria applicable in the Mid-West and R. v. Ebi 3 W.A.C.A. 36) but it must not be extended or taken out of its context to a situation where the felony has been committed and the person is killed when escaping.
In R. v. Aliechem 1 F.S.C. 64 the Federal Supreme Court distinguished Aniogo’s case (supra) but did not show why (though we have here endeavoured to give a possible explanation to assist in future cases) and said at page 65:-
“In our view Rex v. Peter Aniogo is distinguishable from the present case on the facts and is certainly not authority for the general proposition that the killing of a person suspected of being a thief must invariably be manslaughter and not murder. The Court of Appeal in that case did not purport to lay down any such general proposition. Each case must therefore, be decided on its own facts. In the present case, while it is true that the appellant believed the deceased to be a thief, it is equally true on his own evidence that he deliberately struck him with-out giving him a chance to answer the challenge. The learned trial judge rejected the appellant’s explanation that his intention was merely to mark or brand the suspected thief and not to kill him or cause him grievous harm. It is clear, however, that the blow must have been delivered with great force. A murderous weapon, namely a matchet, was used and the deceased was cut in a vital part of the body. In our view the learned judge was quite justified in concluding that the appellant intended to inflict at least grievous harm on the deceased and not merely to brand him. That being so the appellant was, in our judgment, rightly convicted of murder.”
In our view that decision was not in conflict, as was submitted to us, either with Aniogo’s case (supra) or Obot’s case (supra) for the reasons that we have given and we think that the learned trial judge here was right to follow the principle enunciated in Aliechem’s case (supra). The accused shot an unarmed man because he heard a cry of thief and the man was running away from the spot where the cry came from. There was no evidence, that the learned trial judge accepted, that the deceased was armed or that he threatened the accused and he was leaving the scene when the accused shot him. In those circumstances we think he was rightly convicted of murder and we accordingly dismiss this appeal.