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FEDERAL SUPREME COURT OF NIGERIA
10TH JUNE, 1960
BEFORE THEIR LORDSHIPS
MYLES JOHN ABBOTT, AG. C.J.F. (Presided and Read the Judgment of the Court)
PERCIVAL CYRIL HUBBARD, AG. F.J.
JOHN IDOWU CONRAD TAYLOR, AG. F.J.
CRIMINAL LAW – MURDER: Dying statement of deceased person – Res gestae – incidents nearly contemporaneous and pointing towards the guilt of accused person – Failure of alibi of accused person
PRACTICE AND PROCEDURE – EVIDENCE – Res Gestae – When dying declaration constitutes
CHILDREN AND WOMEN LAW: Deceased woman stabbed to death by appellant in broad-daylight and before adverse witnesses before running away – Deceased had reported appellant to the police for theft of her money and for threatening to kill her
Mr. J. A. Cole -for the Appellant.
Mr. G. B. Somiari, Senior Crown Counsel -for the Respondent.
ABBOTT, AG. C.J.F. (Delivering the Judgment of the Court):
This appeal from a conviction for murder at the High Court of Port Harcourt, came before this court on 3rd June, 1960. The appellant had himself filed certain grounds of appeal which were abandoned by Mr. Cole, who appeared for him before us, and the appeal was argued on two additional grounds which Mr. Cole obtained leave to file and argue. They read as follows:
The facts were that on 22nd September, 1959, at 7.15 p.m. the deceased was walking along the footpath with two men, P. W. 2 and P. W. 3., from the Creek Road water-side to the Prison Warders’ Barracks at Port-Harcourt. As the three persons were walking along a woman who was friendly with the deceased came up to them and asked her if she was going with the men to the barracks. She answered Yes, and the woman then went away. A little later a man, whose identity is unknown, came and asked the party to where they were carrying their loads. P.W.2 did not like being asked this question, and in effect told the enquirer to mind his own business. P. W.2 was walking in front of the deceased and P. W.3 behind her. A short time after the question had been asked by the unknown man and answered, P. W.2 heard a shout behind him from the deceased in these words: “I am dead. Lazarus Manuel has stabbed me to death.” P. W.2 turned round and saw someone running away. He pursued him and grabbed him by the waist. There was a struggle and P. W.2 says the man whom he held brought out “something to stab me, and I left him and he ran away.” Counsel for the appellant in the court below extracted from P. W.2 that the appellant was the man whom he had grabbed round the waist, although this identification had not been brought out in examination-in-chief. P.W.3 also heard the deceased call out “Lazarus Emanuel has stabbed me to death” and he actually saw P. W. 2 gripping a man round the waist and ran towards the two of them, but before he reached them the man who had been gripped round the waist broke away and disappeared. P. W. 3 does not know the man who thus broke away.
The events leading up to the stabbing were, according to the evidence, that the appellant had threatened the deceased in some way because she had accused him of stealing her money; and other evidence showed that the deceased had reported the appellant to the police for having allegedly stolen two pounds from her, and after the appellant had first been taken to court, and before the case was disposed of, the deceased reported to the investigating police officer, in the presence of the appellant, that the appellant was threatening to kill her.
The defence of the appellant was an alibi. He said he did not leave his house between 2 p.m. on the day in question and 9 p.m. when he went to see a native doctor at 122 Bonny Street, who was treating his wife, and that he took his wife with him. In cross-examination by Crown Counsel he denied ever threatening to kill the deceased, and said that no one had ever warned him not to utter such threats, and that the police officer who said that he had issued this warning was telling lies. In reply to the learned trial Judge the appellant said that the deceased had been his lover up to the time she reported that he stole her money, and that he discovered the deceased was consorting with P. W.2. He did not like it. He endeavoured to support his alibi by calling the native doctor whom he said he visited on the evening in question, but this witness was of no help to him because he could not remember any day or month when the appellant took his wife to him for treatment. The other witness called in support of the alibi was equally of no help to the appellant.
The whole point in this case is of course the identification of the appellant as the assailant, and Mr. Cole argued vigorously and, if we may say so, very ably in the circumstances, that the identification was inadequate and that it could not be said for certain that it was the appellant who attacked the deceased. He further argued that the deceased’s shout naming the appellant as her assailant should not have been taken into consideration by the learned trial Judge, and that had he not taken her words into consideration it could not be said that he must inevitably have come to the conclusion which he did. With this last submission we are in agreement. We think it quite possible that, in the absence of the evidence of the deceased naming the appellant as her assailant, the Judge might quite properly have had some reasonable doubt about the identification of the appellant. We consider, however, in spite of Mr. Cole’s submission that the stabbing was done before the statement was made and therefore, there being no evidence as to the length of time that elapsed between the stabbing and the shouting, and no evidence of the length of time that elapsed between the shouting and the gripping of the accused by P.W.2 that in fact all three incidents were as nearly contemporaneous as it was possible for them to be. In other words, in our view the moment she was stabbed the woman named the appellant, who then ran away but was, after a very short interval, a matter of seconds, caught by P. W.2. We consider that the shout was in fact part of the res gestae and that for this reason the Judge was entitled to use the deceased’s words in coming to the conclusion that it was the appellant who attacked her.
We have given this matter most anxious consideration, and have come to the conclusion that the conviction of the appellant was right. This appeal must therefore be dismissed.
HUBBARD, AG. F.J.: I concur.
TAYLOR, AG. F.J.: I concur.