ADEYEMI V. THE STATE

• Pages: 233-264

ADEYEMI V. THE STATE

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233

to sections 2 and 4 of the Ordinance which are confined to the

appointment

and

grading

of chiefs. It is not in my view therefore applicable to section 3 of the

Ordinance which deals with chieftaincy disputes not to be entertained by the

courts. The applicable definition under section 3 would therefore be a much

5 broader one as provided by section 3 of the Interpretation Ordinance 1956, which

defines chief as meaning simply any native whose authority and control is recog-

nised by a native community.

The 8th defendant and the chieftaincy of Oba of Ira is covered by this definition,

having regard to the pleadings of the parties and the evidence led. I therefore hold

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that his office is caught by the provisions of section 3 of the Ordinance and that

any question relating to his appointment is one which the High Court of Kwara

State is precluded from adjudicating upon. I have no doubt that this must be the

result intended by the 1948 Ordinance, because it is difficult to appreciate why the

exclusion should apply only to 3 chieftaincies in 1963 - the Emirs of Morin, Borgu

15 and Pategi, whilst litigation as to scores of other minor chiefs will be allowed to be

the subject of High Court actions.

For these reasons, and those in the lead judgment, I dismiss this appeal,

holding that the High Court of Kwara State has no jurisdiction to entertain this

action. The judgment of the Court of Appeal is hereby affirmed, and the appropri-

20 ate order which I make in respect of the action before the High Court is that it is

hereby struck out with N500.00 costs to the respondents.

Appeal dismissed.

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ADEYEMI V. THE STATE

30 ADEBAYO ADEYEMI

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APPELLANT

V.

THE STATE



RESPONDENT

APPEAL NO. SC. 38/1989.

SUPREME COURT OF NIGERIA

UWAIS,



J.S.C.

KARIBI-WHYTE,



J.S.C.

NNAEMEKA-AGU, J.S.C.

WALT,



J.S.C.

OMO,



J.S.C.

12th July, 1991.

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Criminal Law and Procedure - Murder - No case submission - Discharge of accused

thereon - Effect - Proper procedure and ruling when prosecution evidence discloses a

lesser offence - Whether accused can properly be convicted therefor - Criminal

negligence - Required degree sufficient to convict for manslaughter - Confessional

statement - Evidential value of - Finding of no prima facie case - Whether amount to

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dismissal on merit.

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40

234

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NIGERIAN SUPREME COURT CASES

[1991] 2 N.S.C.C.

ISSUES:

1.

What is the proper procedure in a criminal case, where a no case submission

has been raised and the prosecution evidence supports a lesser offence?

2.

What is the degree of criminal negligence required by law to convict for an

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offence of manslaughter?

FACTS:

The accused and the deceased lived in adjacent houses in Abule ljesha. At

about 9 p.m. on the fateful day there was a failure of electric power and conse-

quently a black out in the area. An alarm was raised as to the presence of armed

robbers in the street in which the accused and the deceased lived. There was light

in the deceased's flat provided by electric generator. The deceased, accompanied

by two guests, went downstairs to ascertain what was happening and to ensure

that her husband who had gone out to purchase fuel for the generator was safe.

Deceased and the two guests were on their way back upstairs when the accused

person came out of his room and to the balcony of his flat with his licensed gun.

Noticing the deceased and her companion in movement, the accused shouted at

them to get back and immediately fired shots into the air in their direction. The

deceased and one of her companions were hit and they were rushed to the

hospital, where the deceased was declared dead on arrival.

I n his statements to the police and in his testimony on oath in court, the accused

admitted shooting into the air to scare away the robbers and not directly at the

deceased on the night in question.

The accused was arraigned before the High Court of Lagos on a charge of

murder. After the close of prosecution's case, the defence counsel made a no

case submission. The learned trial judge, in his ruling on the no case submission,

held that the prosecution had failed to prove a prima facie case of murder against

the accused and he accordingly discharged the accused on that charge. The trial

judge howeverfurher held that the evidence of the prosecution had proved

aprima

facie

case of manslaughter and he therefore proceeded to invite the accused to

make his defence in respect thereof. Accused was not charged with this offence

after being discharged. Accused accordingly defended himself by giving evi-

dence on oath. The trial judge thereafter convicted him of the offence of man-

slaughter and was sentenced to 3 years imprisonment.

Accused appealed to the Court of Appeal against both the conviction and

sentence. At the Court of Appeal the accused attacked the procedure of the trial

court in respect of the offence of manslaughter, contending,

inter alia,

that the

failure to take his plea on the charge of manslaughter contravened the provisions

of section 164 of the Criminal Procedure Act and therefore, the subsequent trial of

him for manslaughter was a nullity. The Court of Appeal affirmed the conviction

and sentence by the trial judge. It held,

inter alia,

since in the language of section

179

of the Criminal Procedure Act, the accused person was not initially charged

of manslaughter, he did not need to plead to it because it was a case of conviction

for a lesser offence

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Still dissatisfied, accused further appealed to the Supreme Court against the

judgment of the Court of Appeal, on grounds,

inter alia,

that the Court of Appeal

erred in law in its interpretation of section 164 of Criminal Procedure Act. dealing

with amendment and alteration of charges, and also that Court of Appeal erred in

law when it held that the degree of negligence established by the evidence

amounted to gross negligence.

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ADEYEM1 V. THE STATE

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235

HELD -

1.

After a no case submission or at the end of the case for the prosecution, in a

criminal case, where the evidence supports a lesser offence, the trial court

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should hold that a

prima facie

case for the more serious offence has been made

out and then proceeded in its verdict to convict of the lesser offence. This

procedure accords with the law as provided particularly in section 286 of the

Criminal Procedure Law which set out the power of the trial court at the material

stage of a no-case submission. This is because, a discharge on the serious

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offence charged, for whatever reason, must mean the end of the case.

(See

p.241 lines 45 -

52 &

p.242, lines 1 -

5).

2.

Where an accused person is charged with murder, it would, in the interest of

justice, be better that he goes through the psychological agony of a full trial

on the serious offence of murder, and subsequently be found guilty and

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convicted of the lesser offence of manslaughter, rather than that he be

discharged of the more serious offence on a no-case submission, when a

verdict of the lesser offence is probable at the end of the trial.

(See p.242 lines

13- 18).

3.

The degree of criminal negligence required by the law of Nigeria to convict for

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an offence of manslaughter is the higher degree of negligence (often described

as "gross").

(See p.247 lines 9 - 10).

4.

In a situation where armed robbers were operating it surely cannot be

negligence for the owner of a licensed gun in the vicinity to attempt to scare

away by firing his gun into air. That pellets therefrom hit a bystander in the

process must be adjudged an accident. To say (as did by the trial judge in the

instant case) that he should not use his gun at all for fear he may harm others,

is setting too high a standard of conduct.

Thus in the instant case, the accused person would appear to have committed

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what may be described as a grave error of judgment which led to fatal

consequences and no more. This, however, did not justify a finding of gross

negligence. (See

p. 247 lines 20 -

25 &

28 - 30).

5.

The fact that on a charge of murder, it is possible to convict of the lesser offence

of manslaughter does not permit of any question of severance. That alternative

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is only available at the stage of verdict/conviction not before. (See

p.242 lines

8 - 11).

Per

UWAIS, J.S.C.:

6.

By virtue of the provisions of section 317 of the Criminal Code and section 179

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of the Criminal Procedure Act when an offence of murder is charged, such

charge includes a charge of manslaughter which is a lesser offence sharing

common ingredients to a lesser extent with the offence of murder.

(See p.250,

lines 49 -

52).

7.

In a submission of no case to answer a discharge on the offence of murder is

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a discharge on the offence of manslaughter; and since a discharge under

section 286 constitutes a discharge on the merits, which in turn amounts to an

acquittal, then the trial court cannot go on to convict for manslaughter. Such

conviction is an infringement of the provisions of section 181 subsection (1) of

the Criminal Procedure Act and section 33 subsection (9) of the 1979

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constitution. In effect after the discharge under section 286 the trial judge

becomes

functus officio

and ceases at that moment to have the power to try

or convict the accused person of the lesser offence of manslaughter.

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