THE QUEEN V. OSHUNBIYI

• Pages: 210-213

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NIGERIAN SUPREME COURT CASES

[1961] N.S.C.C.

THE QUEEN V. OSHUNBIYI.

5

THE QUEEN

RESPONDENT

V

OLADIPO OSHUNBIYI

APPELLANT

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SUIT NO. FSC 122/1961

FEDERAL SUPREME

COURT.

BRETT,

UNSWORTH,

TAYLOR,

Ag. C.J.F.

F.J.

F.J.

15

3rd July, 1961.

Criminal Law and Procedure - Trial - Charge to jury - Burden of Proof - Self

defence - Accident - Provocation - Substantial misdirection - Practice - Federal

Supreme Cowl Ordinance, 1960 (No.12 of 1960) Section 26 (1).

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ISSUES:

1.

Whether the burden of proof remains on the prosecution where a defence of

self defence, accident or provocation is set up.

2.

Whether a charge to the jury with regard to the burden of proof of certain

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defences can cure errors of misdirection.

3.

Whether the omission by trial Judge to direct the jury on the significance of

expert opinion, which would tend to corroborate a defence, amounts to a

material misdirection of Fact.

FACTS:

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The Appellant was tried in the High Court before a Judge sitting with a jury. He

was convicted of murder.

The deceased and the Appellant were associated as master and apprentice for

a number of years. As a result of a quarrel they parted company some months

before the incident out of which this charge arose. The quarrel arose out of Ap-

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pellant's belief that the deceased had administered poison to him.

On the night in question the Appellant was seen in the deceased's house going

towards the deceased's room. Shortly afterwards cries were heard coming from

the direction of the room. The other inmates of the house did not see either the

deceased or the Appellant. The deceased, however, made his way, wounded, to

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Denton Police Station; whence he was removed to hospital where he died soon

afterwards. The Appellant returned to his own house with blood-stained clothing.

The only direct evidence of what occurred between Appellant and the deceased

was that of the Appellant, who said that he went to the deceased to request an anti-

dote for the poison, which the deceased refused; that a fight started during which

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the deceased threw the Appellant to the ground and grabbed him by the throat;

that he, the Appellant, grasped a knife which was lying on the ground: that he in-

tended to stab the deceased's arm, to force him to let go of his throat; that before

he directed any thrust at the deceased, the deceased's neck came into accidental

contact with the knife; hence the wound and the resultant death.

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A doctor gave evidence to the effect that if the wound were deliberate, it would

have been deeper.