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REX
V.
AMADU ADAMU
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
17TH DAY OF APRIL, 1944
2PLR/1944/61 (WACA)
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OTHER CITATION(S)
2PLR/1944/61 (WACA)
(1944) X WACA PP. 161 – 165
LEX (1944) – X WACA PP. 161 – 165
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BAKER, J.
BROOKE, J.
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BETWEEN:
REX – Respondent
AND
AMADU ADAMU – Appellant
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ORIGINATING COURT(S)
Appeal by the Defendant against his conviction by the High Court of the Warri Judicial Division
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REPRESENTATION
N. G. Hay, Crown Counsel — for the Crown
Appellant in person
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Homicide – Possible alternatives to be considered by Court – Presumptions – Onus of proof
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CASE SUMMARY
The Court having found as a fact that the Defendant had killed the deceased and done so intentionally having regard to the wounds inflicted on the deceased, without any evidence proving malice aforethought in the nature of motive or otherwise, found the Defendant guilty of murder.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (discharging the Appellant) that:
(1) The onus of proving that the killing amounted to murder was on the prosecution and that there was no onus on the defendant to prove that no crime had been committed even though such proof rested upon facts peculiarly within his own knowledge;
(2) Where the evidence indicates a clash between the defendant and the deceased who went armed for a fight the presumption should be that the deceased must have been the aggressor;
(3) In such circumstances the trial Judge has a duty to consider very carefully what the killing amounted to-murder, manslaughter or justifiable homicide and to bear in mind that even intentional killing might be justifiable if the only way to avoid being killed.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President of the Court:-
The Appellant was charged in the High Court of the Warri Judicial Division with the murder of one Buraimoh Ajegunmo. He was convicted and sentenced to death. The facts proved were that on the night of the 26th December, 1943, the deceased, a farmer and hunter living at Okemale, a place about 9 miles from Owo, went out at about 9 p.m. to hunt. He returned home about midnight, when he awakened his son Yesufu and announced the loss of a clock and £1 in money from his room. He had a conversation with his son and decided to go out to look for the thief or thieves who had removed his clock and money. He had with him when going out his Dane gun, his matchet in a sheath and a hunting lamp. His son Yesufu went back to bed and before falling asleep heard the report of a gun. In the morning when Yesufu discovered that his father had not returned home he decided to go to Owo.
On search being made, Yesufu found, on the side of the road leading to Afo, Buraimoh’s sheath with blood on it and blood on the grass by the sheath, and some distance away in the bush the dead body of his father upon which multiple injuries had been inflicted with a sharp cutting instrument such as a matchet. These injuries included the severing of the spinal cord and of the blood vessels in the cervical region whereby death was caused. Not far from the body, a black waistcoat was also found in the bush. Investigation into the death of Buraimoh was made by the Police at Oba, and the Appellant, who is the Seriki or head of the Hausas living in the compound of the Oloba of Oba came under suspicion. He had a fresh wound between the left thumb and forefinger and another on his right arm. His explanations as to how he came by these wounds were not believed. His house was searched and in it were found the deceased’s gun, which had recently been discharged and had blood-stains on the stock, and the deceased’s matchet, which had blood-stains on the handle and scratches as though made by another matchet on the blade. Later there were also found in the Appellant’s house a blood-stained gown and a dagger, both subsequently identified as the Appellant’s.
The Appellant has consistently denied that he killed the deceased, alleging that the deceased’s gun and matchet were “planted” in his house, and that the gown and dagger were not his. The learned trial Judge disbelieved the defence and found as a fact that the accused killed the deceased. He added:
“The nature of the injuries inflicted on the deceased are consistent only with an intention to kill and I, therefore, find the accused guilty of murder.”
We entirely concur in the finding of fact that it was the Appellant who killed the deceased.
We are of opinion, however, that in the Judgment of the learned trial Judge there is grave misdirection by non-direction. It is clear that the Judge assumed throughout that the killing was murder, and overlooked the fact that the onus was on the Prosecution to prove that a murder had been committed, in other words that the killing amounted to murder. The onus was not upon the Appellant to prove that no crime had been committed, even though such proof rested upon facts peculiarly within his own knowledge. (Woolmington v. Director of Public Prosecutions (1935) A.C. 462; Attygalle & anor. v. The King (1936) A.C. 338; Seneviratne v. R (1936) 3 all E.R. 36). In most cases where a man is found brutally killed by the road side there is a strong presumption that he has been murdered but here the circumstances were unusual and that presumption did not arise. The deceased went out doubly armed and obviously prepared to us his arms against a supposed thief. The evidence points to his having actually fired his gun and used his matchet. There is no evidence whatever that the Appellant was in fact the culprit who stole the deceased’s clock and money. No motive is apparent for the Appellant to have made an attack upon the deceased.
So far as there can be any presumption one way or the other as to what brought about the clash between the two men, it seems to be that the deceased must have been the aggressor.
In these circumstances, it was, in our view, the duty of the Judge to direct himself to consider very carefully what the killing amounted to, whether murder, manslaughter or justifiable homicide, and, in considering the last possibility to bear in mind that, even though there was an intention to kill, the killing might be justifiable if it was the only way to avoid being killed.
In view of the learned trial Judge’s omission to direct himself properly upon this point and to direct his mind to the possible alternatives to murder we are of opinion that the conviction for murder cannot he allowed to stand, and Counsel for the Crown in this Court has not sought to uphold the conviction.
Nor has Counsel asked us to substitute a conviction for manslaughter, nevertheless we have carefully considered whether it is not our duty to substitute a verdict of guilty of manslaughter; but in order to do so we should have to be sure that the learned trial Judge was satisfied of facts which proved that the killing was manslaughter. We cannot be sure of that, more especially as, in our view, it is at least as likely as not that the killing was in self-defence. For although the severity and number of wounds on the deceased’s body point to great ferocity on the part of the killer, experience shows that once two primitive Africans start a fight to the death with matchets the conqueror is apt to make a thorough job of it, and this does not necessarily show that he was not bound to kill in order to save his own life.
For these reasons the appeal is allowed, the conviction and sentence are quashed, and it is directed that a judgment and verdict of acquittal be entered.
The Appellant is discharged.
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