IN THE COURT OF APPEAL HOLDEN AT IBADAN
CORAM
CLAJOMPO AKINKUGBE JUSTICE, COURT OF APPEAL
ANTHONY IJOKA ASEME JUSTICE, COURT OF APPEAL
UCHE OMO JUSTICE, COURT OF APPEAL
BETWEEN
LATIFU ATANDA ACCUSED/APPELLANT
AND
THE STATE RESPONDENT
JUDGMENT OF THE COURT (Delivered by O. Akinkugbe , J.C.A.)
The appellant Latifu Atanda was convicted at the High Court, Abeokuta (odunlami J.) on February 22, 1976 of the murder of one abeni latifu appellants wife, which took place at Abeokuta on the 21st day of February, 1974.
The brief facts of the Case are that the appellant and the deceased once lived together as husband and wife. The deceased later left the apel1ant for another man and after having stayed with the new husband for two years. she returned to the appellant and a few days before the date of this incident -21/2/177 -she left the appellant to stay with her cousin-in-law, the 2nd P.W. and cousin the 8th P .W. A day previous -20th February 1974 -to the fateful day, the appellant went to the 2nd P.Ws home where the deceased was temporarily living to enquire about her but the deceased was not in then. On the return of the deceased to the house, she was told that the appellant had called and she then expressed the desire to have the quarrel between her and the appellant settled. She also said that she would see her parents who were then at Ifo about same. At about 3 a.m. of the following day 21/2/74 before it was daylight she woke up and asked for the time as she wanted to go to her parents at Ifo. She was told that it was too early as it was then 3 a.m.
The deceased then left the house to go out to 15 urinate. Not long after, the 2nd P.W. and the 3rd P.W. the wife of the 2nd P.W. heard the shout of the deceased. The 2nd and 3rd P.Ws went out in response to the alarm of the deceased and saw the appellant dragging the deceased on the ground. The deceased according to the 2nd and 3rd P.Ws was crying when they saw her and saying that the appellant was about to kill her. then they got to the spot where the deceased was, the appellant had left her, but they found her crying in pain that the appellant had stabbed her on the abdomen. Her intestines were then protruding.
The doctor that performed autopsy on the deceased gave evidence of injuries on the abdomen of the deceased with the intestines protruding. There was comparison by the Pathologist of the
Forensic Science Laboratory, Oshodi, of specimens of the blood of the deceased with that of the appellant and blood stains found on the singlet vest (Ex. F) worn by the appellant after his arrest and the result shows that the blood stains on the singlet vest (Ex. 'F') and specimen of the deceased's blood were "of the same group B, the blood stains on the pieces of cloth removed from the appellant's house when searched also belong to the deceaseds blood group B.
The appellant in his evidence in defence denied know-ledge of how the deceased was killed. He said in his evidence that he had no quarrel with the deceased. He put up a defence of alibi. The appellant then closed his defence.
In a considered judgment the learned trial judge rejected the appellant's defence and believed the story told by the prosecution witnesses. He convicted the appellant and sentenced him to death.
The learned counsel assigned to argue the appeal Mr. Demola Joshua filed six amended grounds of appeal and abandoned the original grounds earlier filed.' What we are of the view are worthy of consideration in the six grounds argued can be reduced to three and they .re:
(1) the learned trial judge's reliance on what he regarded as the dying declaration of the deceased before she died;
(2) the appellant's defence of alibi; and
(3) that the judgment is unreasonable, unwarranted and cannot be supported having regard to the evidence.
On the first, that is what the learned judge regarded as the deceased's dying declaration, the learned judge had observed as under:-
The last point was whether the statement of the deceased that the accused was stabbing him (sic}was admissible as declaration. In R; v. Charlotts Smith 10 Cox Criminal Law Case 82 at 98 it was held that a dying declaration is admissible when it relates to the cause of death if t made by a person in dying state who believes himself to be dying end in Reg. v. Bernadotti and ors. 11 Coxs Criminal Law Cases at p.82 at 95 it was held that death must be imminent and pending and that he was In danger of dying 11'1 a short time without hope of recovery.
"When the deceased made the speech that the accused stabbed her, her abdomen had been cut open and her intestines bad protruded out and was covering it up with her hand, hardly could one think 2S that she was not expecting death at any time when she was making the statement."
We are in no doubt that what the learned judge regarded as dying declaration is not. There is no evidence that -although the injuries Inflicted on the deceased were very serious -the deceased believed that she then dying See R. v, Ogbuewu 12 WACA 483.
We agreed with the learned D.D.P,P. Ogun State Miss Oyefeso as conceded by her that the expectation or otherwise of death ought to be that of the deceased and certainly not that of the trial judge however serious the injuries may be.
The seriousness of the injuries is a factor however to be reckoned with in deciding as to whether or not the deceased was in expectation of death. The statement however looks like Res Gestae. Mr. Joshua said in answer to a question from the Court that there is nothing known as Res Gestae in Nigerian Law of Evidence. The learned D.D.P.P. submitted that it was admissible as res gestae. Admittedly it is not expressly stated in our law of evidence, however the principle of Res Gestae has been referred to in Nigerian Courts -see R. v. Ibariba 5 WACA 128 and R. v. Bang Wayeku 9 WACA 195. In Bang Wayeku case the West African Court of Appeal observed:-
"Further the statements were clearly not part of the res gestae as they were made an appreciable time after the actual wound was inflicted and not in the presence of the appellant."
The evidence of the 2nd and 3rd P.Ws is to the effect that they were. attracted to where they saw the appellant holding the deceased when the deceased as shouting that the appellant was about to stab her. The 2nd and 3rd P.Ws said they saw the appellant dragging the deceased on the ground. When they got to where the deceased was after the 30 appellant had left her, the deceased said the appellant had stabbed her and her intestines were already out.
The evidence of the 2nd and 3rd P.Ws on the alarm raised by the deceased before and after the t-attack on her by the appellant 1s clearly hearsay since that evidence could not be given by the deceased herself.
Our Section 10 of the evidence Act would appear to embody the Res Gestae principle. It. says:-
Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity or anything or person whose identity is relevant, or for the time or place at which any fact infact in issue or relevant fact happened, or which shows the relation of parties by whom any such fact was transacted. are relevant in so far as they are necessary for that purpose."
The question before us is whether the statements of the deceased before and after the attack on her are relevant facts and .therefore admissible in evidence. They are hearsay evidence, but they are relevant since the statements are so connected with the fact of attack by the appellant on the deceased that there is no appreciable separation of time, place and Circumstance.
In Teper v. R, (1952) 2A.E.R. 447 at p. 449 Lord Normand. in his judgment at the Privy Council observed on Res Gestae principle thus:-
It appears rest ultimately on two propositions -that human utterance is both fact and a means of communication, and that human action may be so Interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of truth. But the judicial applications of these two propositions, which do not always combine harmoniously, have never been precisely formulated in a general principle ..This, at least may be said that it is essential that words sought to be proved by hear say should be. if not absolutely contemponeous with the action or event, at least so clearly associated with it, in time, place and circumstances, (underlining supplied) that they are part of the thing being done, arid so an item or part of real evidence and not merely a reported statement."
In Ratten v. R. (1971) 2 A.E.R. 801 at p. 806 Lord Wilberforce delivering the judgment of the" Privy Council said inter alia :-
"The expression "res gestae", like many Latin phrases, is often used to cover situations insufficiently analysed in clear English terms. In the context of the law of evidence it may be used in at least .three different ways:-
(1) When a situation of fact (e.g. a killing) is being considered, the question may arise when does it begin and when does it end. It may be arbitrary and artificial to confine the evidence to the firing of the gun or the insertion of the knife without knowing, in a broader sense, what was happening.
"Thus in O'Leary v. Regem (1946) 73 CLR 566 evidence was admitted of assaults, prior to killing, committed by the accused during what was said to be a continuous orgy. As Dixon J. (577 ibid) said:-
"without evidence of what, during that time, was done by those men who took any significant part in the matter and specially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event."
(2) The evidence may be concerned with spoken words as such (apart from the truth of what they convey). The words are then themselves the res gestae or part of the res gestae, i.e, are the relevant facts or part of them.
(3) A hearsay statement is made either by the victim of an attack or by a bystander- indicating directly or indirectly the identity of the attacker. The admissibility of the statement is then said to depend on whether it was made as part of the res gestae". The judgment goes further to say at page 809:-
"In the present case, in their Lordship's judgment, there was ample evidence of the close and intimate connection between the statement ascribed to the deceased and the shooting which occurred very shortly afterwards. They were closely associated in place and time (underlining supplied).
The way in which the statement came to be made (in a call "for the police) and the tone of voice used, showed intrinsically that the statement was being forced from the deceased by the overwhelming pressure of contemporary event. It carried its own stamp of spontaneity and this was endorsed by the proved time sequence and the proved promixity (underlining supplied ) of the deceased to the appellant with his gun
In the present case the appellant was known by the 2nd and 3rd P.Ws before the date of the incident, he was clearly identified by the 2nd and 3rd P.Ws. They gave evidence that before the attack on the deceased, the deceased raised an alarm that the appellant whom the deceased referred to as Latifu his first name was about to kill her. The 2nd and 3rd P.Ws said they saw the appellant dragging the deceased on the ground and the 2nd P.W. rushed to the Scene with the 3rd P.W. and in an endeavour to rescue the deceased the appellant threatened to stab the 2nd P.W with a drawn knife if he dared to draw near him. The third P.W and her children urged the 2nd P.W. not to go near the appellant and so they had to leave the deceased with the appellant. The 2nd P.W. raised an alarm and when people came to scene the appellant left the deceased and ran away. The 2nd and 3rd P.Ws were able to identify the Appellant with the security lights around.
On getting to the snot shortly after the appellant had stabbed the deceased on the abdomen, the 2nd and 3rd P.Ws found her intestines gushing out. It is clear from the evidence of the 2nd and 3rd P.Ws which the learned judge believed that there was no separation of time, place and circumstance in the transaction in so far as the deceased's statement. are concerned. We are of the view that the statements allegedly made by the deceased were rightly received in evidence clearly not as dying declaration cut as forming part of res gestae and that they are also covered by S.10 of the Evidence Act Cap. 62.
About the defence of alibi by the appel1pnt, this has no substance since the appellant's evidence was that he was with a herbalist on the 21st February 1974 at 2p.m. whereas the incident happened at 3 a.m. of the same day, which was about eleven hours before the time he said he was with the herbalist. Appellant was also taken to Lagos and other unable to locate where he said he was on the day of the incident.
About the evidence adduced by the presentation which was said to be insufficient to warrant the conviction of the appellant, we are of the view that it is overwhelming and clearly established the guilt of the appellant. The report of the pathologist which was accepted shows that the blood stains on the singlet vest (Ex. 'P') worn' by the appellant when compared with the specimen of the appellant's blood and that of the deceased, belong to the deceased's blood grouping 'B' and not the .ppel1ant's 'O'.
There is the evidence of the 7th F. W. the appellant's brother who said some days after the event he saw the appellant and the latter told him that he had a quarrel with the deceased and asked if she had died. The learned trial judge believed the evidence of the 7th P.W. It is remarkable that if the appellant had known nothing about the death of his wife he would have asked such a strange question 'from his brother the 7th P.W. Quite apart from the statements of the deceased, the other evidence left, as rightly observed by the learned trial judge is sufficient to warrant the conviction of the appellant for the offence of murder with which he was charged. The appeal is dismissed. The conviction of the appellant and the sentence of death recorded are affirmed.
O. AKINKUGBE, JUSTICE,COURT OF APPEAL.
A.I.ASEME, JUSTICE, COURT OF APPEAL.
UCHE OMO , JUSTICE, COURT OF AFPEAL.
Mr. B.A. Joshua for the Appellant.
Miss S. A. Oyefeso, D.D.P.P. Ogun State for the Respondent.