[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com nd info@lawnigeria.com or text 07067102097]





F.S.C. 397/1961

29TH JANUARY, 1962.

3PLR/1962/32 (FSC)




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





CRIMINAL LAW AND PROCEDURE – Conviction – Substitution of ver­dicts – Section 27(1) of the Federal Supreme Court Ordinance – When unnecessary.

PRACTICE AND PROCEDURE – EVIDENCE – Criminal trial – Deposition by dispensary attendant – How treated.



J.A. Cole -for the Appellant.

A.A. Isikalu -for the Respondent.


BRETT, F.J. (Delivering the Judgment of the Court): The appellant was convicted in the High Court of the Northern Region of murder, contrary to s.319 of the Criminal Code. The alleged offence took place in March, 1956, but the appellant ran away and was not committed for trial until sometime in 1961, so that although the charge was laid under the Criminal Code, the pro­cedure was that laid down in the new Criminal Procedure Code of the North­ern Region.


Three eye-witnesses testified to having seen the appellant strike the de­ceased three blows on the head with a Fulani stick, about an inch in diameter and four-and-a-half to five feet in length. The deceased fell down uncon­scious and died the same day. All the eye-witnesses described the appellant as the aggressor, and the trial Judge had ample justification for rejecting the appellant’s story that the deceased struck him first, having previously abused him. If the evidence had stopped there, little could be said against the conviction.


What brings in a fresh consideration is the evidence of a Dispensary At­tendant who, in the absence, presumably, of a doctor, was brought the next day from Keffi to see the corpse. The person who identified the corpse to him had died before the trial, and strictly speaking it has not been proved that his evidence refers to the corpse in this case, but the trial Judge treated his evidence as material, and as Mr. Cole, who was assigned to argue the ap­pellant’s case, has asked us to do the same we think it is in the interests of jus­tice that we should do so. The body was examined by the witness in Mante Village, and while Mante is at least large enough to boast a market it is a reasonable assumption, where there is no evidence to contradict it, that there was not more than one corpse with head injuries there on the day in question.


The Dispensary Attendant, whose qualifications for the post are not stated, said that he examined the body and found three wounds. There was a fracture of the frontal bone of the skull and a fracture of a bone at the left side of the neck, both of which he felt with his fingers, and which he thought had been made with a blunt instrument. There was also a wound on the end of the nose, which he does not describe further than by saying that it was made with a sharp instrument. The eye-witnesses had agreed that the only weapon used by the appellant was his stick, and two of them spoke of seeing blood on the deceased’s head after the appellant had struck him; they all said that three blows were struck. A possible explanation would seem to be that the wound on the nose had been caused by a projecting part of the stick, but Mr. Cole, for the appellant, submits that the evidence does not exclude the possibility that it was inflicted by some other person and was the cause of death. Mr. Isikalu, for the respondent, did not feel able to support the con­viction, but invited us to substitute a verdict of guilty of some form of aggra­vated assault, which he submitted we had power to do under s.27(2) of the Federal Supreme Court Ordinance read in conjunction with s.216 or 218 of the Criminal Procedure Code of the Northern Region; for this submission he relied on R. V Gyan (1954) 14 W.A.C.A 412.


It is not necessary for us to express any opinion on the extent of our power to substitute a verdict in this case, since we are satisfied, in spite of Mr. Isikalu’s concession, that the conviction for murder was fully justified by the evidence. The Dispensary Attendant was not an expert, and while his evidence that he actually felt the broken bones may be relied on, less weight should be attached to his inferences as to the kind of weapon which caused the injuries he observed. He was not asked to elaborate on his references to blunt and sharp instruments and was probably not qualified to do so. We cannot doubt that a jury, applying its common sense to the evidence, would have found, and would have been entitled to find, that the appellant caused the death of the deceased, and in the circumstances the appeal must be dis­missed.


UNSWORTH, F.J.:1 concur.


TAYLOR, F.J.: I concur.


Appeal Dismissed.


error: Our Content is protected!! Contact us to get the resources...