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Appeal from conviction by High Court.

Murder contra. Section 319 of Criminal Code. Procedure--Additional grounds of appeal filed out of time-Rex v. Wyman, 17 Cr. App. p. 10.5 not applicable ,in Nigeria Where misdirection is a ground of appeal, particulars of such misdirection must be given.

Murder or Manslaughter-Person in authority responsible for acts done by his order-Section .116 (3) of the Code explainedWhere Nigerian law differs from English law-Death caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life, is 7nurder-Not necessary that such an act should constitute a felony-English law requires that the act should constitute a Jelony involving violence, but does not require that it should be of such a nature as to be likely to endanger human life.

Held: Appeal dismissed.

The facts are sufficiently set out in the judgment. C. N. S. Pollard for Crown.

Sir William N. Geary, Bart. (with him Siffre) for Appellants.

The following Order was made by KINGDON, J:-

The Court is of opinion that it is not practicable to enforce strictly in this country the rules laid down in Rex v. Wyman. The practice has been to allow grounds of appeal to be added a reasonable time before the hearing of the appeal. In this case additional grounds were filed just before the case was set down for hearing six days ago and the case was adjourned till to-day in order to give opportunity for consideration. We are not prepared to refuse to do substantial justice on the ground of this objection to procedure. As regards the possible merits of the case we should like to hear what can be said on behalf of the appellants and accordingly grant the leave to appeal. In regard to the objection that particulars of misdirection have not been given, this is valid and the appellants must be called upon to furnish particular

After hearing the appeal the following joint judgment was delivered on the 15th January, 1938:- .

KINGDON, C.J., NIGERIA, BUTLER LLOYD AN]) CAREY, JJ.

In this case the three appellants were convicted in the Ibadan Division of the High Court of the murder of a woman named Yesajo at Igboora in the Oyo Province and sentenced to death. 'fhe third appellant is Bale of Igboora arid the first two appellants are his messengers. The case for the prosecution at the trial is narrated by the trial Judge as follows:-

"The central figure of the story is one Shitta Ag·boola, a native of Abeokuta, who has been resident in Igboora. for some eighteen years. He is referred to throughout the evidence as " Shitta" and [ shall so refer to him in my judgment.' He holds no position of important. in Igboora.'.

Shitta admits that five years ago he seduced the wife of one Adegoke who is the son of the Balogun of Pako. Pako is a town near Igboora and the Bale of Pako is a member of the Native Court of 19boora over which the third accused, who is the Bale of Igboora, presides. As a result of the seduction Shitta became very unpopular with the Bale of Pako and with the other Bales who sat under the third accused in the Igboora Native Court. It appears however that the third accused at that time took no active part in the hostility to Shitta, and Shitta admits that the third accused came at that time as his witness to give' evidence bcfore the Ibadml Native Court. In consequence of this friendly attitude of the third accused at that time the Bales of Pako and Iberekodo (both members of the 19boora Native Court) quarrelled with the third accused. So did other important people in Igboora.

During the last four years there have been at Igboora various developments of the antagonism towards Shitta, and in March, 1937, these apparently came to a head and he was expelled from Igboora by the third accused and the Bales of Pako and lberekodo, Shitta left the town in consequence of the expulsion but eventually, early in the morning of 18th March, 1987, he returned to Igboora. He says his return was authorised by the District Officer, Ibadan, in whose district Igboora is, but whether that was so or not is of no consequence in this case.

18th March, 1937, happened to be a Court day in Igboora Native Court.

The nine members of the Court and the litigants assembled as usual. On the arrival of the other members of the Court they were informed by the third accused that Shitta had returned. This appears to have infuriated the third accused and the Bales of Pako and Iberekodo and some others to such extent that they could not attend to any of the Court work that morning. They had a discussion with some other members in the Court retiring room and then asked the Native Court clerk to prepare a warrant for the arrest of Shitta. The clerk naturally asked the third accused on what charge. No proper charge could be stated by the third accused or any of the others and the clerk quite properly said that he could not prepare the warrant.

He suggested that they should write to the District Officer and to the Olnbadan.

Up to this point the third accused was apparently supported by all his fellow members of the Court in the proposals for dealing with Shitta. They all agreed that the~' could not attend to the Court work that morning in consequence of Shitta's return, though it appears that the third accused and the Bales of Pako and lberekodo were mainly responsible for this decisions :

The next step was the sending of messengers to Shitta calling him to come to Court and explain why he had returned. According to the Crown witnesses the messengers sent were the first and second accused, the Akoda Akinwale and two others These five messengers possibly accompanied by some other people, went three times to Shitta's house and saw Shitta. Shitta each time refused their bidding. After Shitta's refusal had been intimated for the third time the members had another conference at which they decided that Rhitta must leave the town forthwith; that they, the chiefs, should leave the Court and go to the market place, and that the Oro drums should be used to drive Shitta out of the town.

They all went to the market place. The third accused again presided as they sat under the tree there. The third accused sent a message to the hereditary' drummer of igboora that he was to come to the market and bring the Oro drums with him. Ladeji the drummer carne as he was ordered. On his arrival he was told by third accused to beat Oro drums, but at first refused on the ground that it was not an Oro festival day and that he could not beat the Oro drums except on such a festival day. The third accused rebuked him for questioning his orders and Ladeji eventually obeyed the order.

'Whenever the drumming started the market woman scattered and there was confusion. The beating of these" particular drums by customs forced the women to run to their houses 'and they did so.

Three principal members of the Native Court protested against the action of' the Bale in ordering the Oro drums to be beaten but without success, and whenever the drumming started these three members left the market and went home, These three members have given evidence for the Crown. In estimating the value of their evidence it is important to note that they were in agreement with the measures against Shitta up to the point when the Oro drums were beaten.

After they had gone the third arcused again called the same five messengers. By this time apparently it had come to the third accused's knowledge that Shitta had left his own house and gone into Basin's house which was next door. Shitta himself says he did so when he saw the chiefs leaving the Court and going to the market, and that when he heard the Oro drums he was terrified and ran away to the nearest Railway Station. The messengers were ordered by the third accused, with the approval apparently of the remaining members, to go to Basin and tell him that he must eject Shitta from his house. 'Basin's reply that Shitta had already left his house was apparently not believed.

The messengers were sent three times from the market to Basin, the last time with the message that if Basin did not eject Shitta forthwith he (Basin) would Buffer Shitta's punishment. This threat did not produce Shitta and the third accused then called up the first and second accused and said to them " Do you know where exactly Shitta is "? The second accused replied that he did; whereupon the third accused said to first and second accused" If you know where he is exactly you should go and put fire there."

Immediately the third accused said that the first and second accused went towards the house of Basin. They were seen to approach Basin's house. The first accused was heard to ask second accused if this (Basin's house) was where Shitta was. Second accused replied that he was sure Shitta was there. Thereupon the first accused lit a match and set fire to the thatched roof of Basin's house which immediately went up in flames. The first and second accused then ran away.

All this time the beating of the Oro drums in the market continued.

The flames and smoke of Basin's burning house were visible in the market and when the drummer saw them he stopped drumming, drawing the attention of the third accused to the fire. the third accused however ordered him to resume his drumming which he did until he (the drummer) saw the fire spreading to his own house. Then he dropped his sticks for good and ran to his own house.

With the stopping of the drumming and the shouts of " Fire" the whole town seems to have crowded to the scene of the fire. By the time they got there the roof of Basin's house was completely or almost completely burnt. When the third accused with his fellow-members of the Court arrived on the scene and, pretending ignorance, asked how the fire had occurred, the women of Shitta's house abused them and accused them of sending messengers to burn the house, to which accusation no reply was given by the third accused.

The unfortunate woman Yesajo-so far as the evidence proves-was the only victim .of this fire. She was found badly burnt at the scene of the fire. She was afterwards taken to Adeoyo Hospital, Ibadan, where in spite of treatment she died of her burns on 13th April, 1937."

At the trial the defence of the appellants to this story of the prosecution was a denial of the facts alleged, the two first appellants seeking to establish an alibi and being supported in this by the third appellant. If the story of the alibi were true it established the innocence of all three. At the trial there was no suggestion made by the defence that even if the prosecution story were true the facts disclosed the offence of manslaughter rather than murder. The trial Judge rejected, and in our opinion rightly rejected, the story of the defence and accepted that for the prosecution. He sums up his finding in the following four propositions: -

(1) The third accused, a person in authority over first and second accused, ordered them to commit a felony, namely arson, in regard to the dwelling house where they knew Shitta to be.

(2) The first and second accused in concert, and because of third accused's orders, proceeded at once to carry out that felony.

(3) The carrying out of that felony was the setting fire to Basin's house.

(4) The fatal burning of Yesajo, an inmate of that dwelling house was a reasonably probable consequence of setting fire to the house.

We accept those four propositions and might usefully emphasise in respect to the last, that the probability of an inmate being burnt was greater in this case than it would be in ordinary cases owing to the persistent beating of the Oro drums whereby all women are moved to go and remain indoors.

The Judge goes on to hold: "The establishment of these four propositions leaves me no alternative but to find all three accused guilty of murder as charged and I do so find them."

On appeal to this Court the alibi story has been abandoned and the only substantial point raised has been that, on the evidence for the prosecution, the findings should have been " Guilty of manslaughter" instead of " guilty of murder," and that the trial Judge misdirected himself on this point. We have been greatly assisted by full argument on this point both by counsel for appellants and by counsel for the Crown, and we have given: the matter very careful consideration as it involves questions of great importance.

The first point that emerges is that the law governing the question of whether the crime is murder or manslaughter in such a case as this is materially different in Nigeria from what it is in England.

The relevant sections of the Nigerian ,Criminal Code read as follows: -

"306. It is unlawful to kill any person unless such killing is authorised or justified or excused by law.

315. Any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter, according to the circumstances of the case.

316. Except as hereinafter set forth, .a person who unlawfully kills another- under any of the following circumstances, that is to say:-

(1) if the offender intends to cause the death of the person killed, or that of some other person j

(2) if the offender intends to do to the person killed or to some other person some grievous harm j

(3) if death is caused by means of an act done in the prosecution ,of an unlawful purpose, which act is of such a nature as to be likely to endanger human life j

(4) if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed' or attempted to commit any such offence j

(5) if death is caused by administering any stupefying or overpowering thing for either of the purposes last aforesaid;

(6) if death is caused by wilfully stopping the breath of any person for either of such purposes; is guilty of murder .

In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed.

In the third case it is Immaterial that the offender did not intend to hurt any person.

In the three last cases it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.

317. A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter."

We do not propose to accede to the suggestion of the learned counsel for the Crown that we should make findings of fact or inferences from the evidence even more unfavourable to the Appellants than the trial Judge did and so hold that the offence is covered by either or both of sub-sections (1) and (2) of section 316. out in our view the question of murder or manslaughter in this case turns on sub-section (3) of section 316.

If the death of Yesajo was caused by means of an act done in the prosecution of an unlawful purpose, which act was of such a nature as to be likely to endanger human life, then the crime was murder; if not the killing was unlawful and amounted to manslaughter only.

In England the test to be applied is different. In one way it is more favourable to an accused person and in another way less favourable. In the case of Director of Public Prouc1ltion.y 1). Beard (1920 A.C. 479) the House of Lords cleared up doubts which had been expressed by Stephen .T. in Re.x v. Serne and Another (16 Cox 311). In Beard's case it was clearly laid down that by the law of England if a person, while in the act of committing a felony involving violence, kills another without having the intention of so doing, the killing is ,murder. The difference then between the English and Nigerian law is :-

(a) In England the killing must be done in the act of committing a felony involving violence whereas in Nigeria it is sufficient if death is caused by means of an act done in prosecution of an unlawful purpose (i.e. not necessarily a felony); but

(6) if death is caused by wilfully stopping the breath of any person for either of such purposes; is guilty of murder .

In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed.

In the third case it is immaterial that the offender did not intend to hurt any person.

In the three last cases it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.

317. A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter."

We do not propose to accede to the suggestion of the learned counsel for the Crown that we should make findings of fact or inferences from the evidence even more unfavourable to the Appellant's than the trial Judge did and so hold that the offence is covered by either or both of sub-sections (1) and (2) of section 316. But in our view the question of murder or manslaughter in this case turns on sub-section (3) of section 316.

In England the test to be applied is different. In one way it is more favourable to an accused person and in another way less favourable. In the case of Director of Public Prosecution.v Beard (1920 A.C. 479) the House of Lords cleared up doubts which had been expressed by Stephen .J. in Re.x v. Serne and Another (16 Cox 311). In Beard's case it was clearly laid down that by the law of England if a person, while in the act of committing a felony involving violence, kills another without having the intention of so doing, the killing is ,murder. The difference then between the English and Nigerian law is :-

(b) In Nigeria it is necessary also that the act should be of such a nature as to be likely to endanger human life; this is not necessary in England. Returning to the facts of the present case, the learned· trial Judge did not record his finding in the exact words of the sub-section, but the four propositions which he set out and which have already been quoted a fortiori establish the two essential ingredients of sub-section (3).

The carrying out by the first two appellants of a felony at the bidding of the third appellant was clearly the prosecution of an unlawful purpose; and that the act was of such a nature as to .be likely to endanger human life is implicit in the finding that the fatal burning of Yesajo, an inmate of the dwelling house, was a reasonably probable consequence of setting fire to the house.

We are therefore of opinion that the case is clearly within the provisions of sub-section (3) of section 316 of the Criminal Code and that the learned trial Judge was right to find each appellant guilty of murder.