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REX
V.
MOHAMMED BADA AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
16TH DAY OF OCTOBER, 1944
2PLR/1944/48 (WACA)
OTHER CITATION(S)
2PLR/1944/48 (WACA)
(1944) X WACA PP. 249 – 250
LEX (1944) – X WACA PP. 249 – 250
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
JIBOWU, J.
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BETWEEN
REX – Respondent
AND
1. MOHAMMED BADA
2. IDOWU ABORISHADE – Appellant
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ORIGINATING COURT(S)
Appeal by both Defendants from their conviction by the Supreme Court
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REPRESENTATION
N. G. Hay — for Crown
Appellants in person
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Manslaughter – Ground of concerted action –What prosecution must prove to succeed – Two defendants of whom one rightly convicted – Duty of court not to infer concerted action where action inexplicable
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CASE SUMMARY
The 1st Defendant was driving at a great pace, a lorry with a left hand drive, and the second was seated on his right. A cyclist coming from the opposite direction was forced to his left hand side and dismounted. In passing the 2nd Defendant hit him with a stick; he fell against the rear of the lorry and was killed. The trial Judge convicted both of manslaughter on the view that 1st defendant drove to the wrong side to enable the second to strike, although there was no direct evidence of such concerted action.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. the Crown had a duty to prove not merely that the two defendants may have been acting in concert but that they actually were.
2. as the 1st defendant’s action was explicable as due to unskilful driving, the inference of concerted action on his part was not inescapable and should not have been made.
MAIN JUDGMENT
The judgment of the Court was read by the President:-
The two Appellants were charged in the Supreme Court with the manslaughter of one Lawrence Otu Essien.
Shortly the facts proved by the Prosecution and accepted by the learned trial Judge, and which we accept, were that the 1st Appellant was driving a military lorry at a great pace along Great Bridge Street. The lorry had a left hand drive and the 2nd Appellant was sitting beside the 1st Appellant, i.e. the 2nd Appellant was on the off side of the lorry. The deceased, a cyclist, was driven right into his left hand side of the road by the oncoming lorry and dismounted. As the lorry passed him the 2nd Appellant hit him with a stick with the result that he fell against the rear of the lorry and was killed.
On these facts there can be no doubt that the 2nd Appellant was properly convicted of manslaughter and his appeal is dismissed.
But the case of the 1st Appellant is different. Both Appellants emphasise that it is the 2nd Appellant who is the driver of the lorry and that the 1st Appellant is not a driver at all. The 1st Appellant would only be guilty of manslaughter if it could be shown that there was concerted action by them both to enable the 2nd Appellant to hit the cyclist, i.e. that the 1st Appellant deliberately drove right over to his wrong side of the road so as to enable the 2nd Appellant to strike. There is no direct evidence of such concerted action. If it were an inescapable inference from the facts that there must have been such concerted action, then the conviction would be justified.
The learned trial Judge drew such inference and convicted; but we think that he was incorrect to do so, since, in our view, the inference is not inescapable and there is another and quite as probable explanation of the 1st Appellant’s action in driving near the cyclist namely that he was unskilful and inexperienced in driving and had very little control over the lorry.
This would account for the 2nd Appellant’s action in hitting out; he might well want to clear the road for the lorry which he knew was being driven recklessly and unskilfully.
But it does not follow that the 1st Appellant knew that the 2nd was going to use his stick in the manner he did.
If this is the explanation, the 1st Appellant is not guilty of the crime of manslaughter. The Crown must prove not merely that the two Appellants may have been acting in concert but that they actually were, and we are of opinion that the Crown failed to prove this.
For these reasons the appeal of the 1st Appellant is allowed, the conviction and sentence passed upon the 1st Appellant are quashed and it is directed that in the case of the 1st Appellant a judgment and verdict of acquittal be entered. The 1st Appellant is discharged.
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