THE QUEEN (COMPLAINANT)

v.

SUNDAY ASIPA (ACCUSED)

(1963) All N.L.R. 591

Division: High Court (West)

Date of Judgment: 12th August, 1963

Case Number: (Suit No. AK/18C/63)

Before: Fatayi Williams, J.

The accused was charged with attempted murder and also with causing grievous bodily harm.

The accused, a young man of over 18 years, shot his sleeping father in the head with a gun. His father had rebuked him because he did not want to work. He did not take kindly to this rebuke. There was no evidence of insanity or abnormality about him. He understood the charge and pleaded not guilty. He did not put in any defence to the charge.

HELD:

On a charge of attempted murder, an actual intent to kill must be proved although if death results an intent to cause grievous harm will be sufficient to sustain a charge of murder; in the particular circumstances of this case, the accused shot his father with an intent to kill and so he was guilty of attempted murder.

OBITER:

If one attacks a person intending to do grievous bodily harm, and death does not result, it is not attempted murder, but wounding with intent to do grievous bodily harm.

Conviction on first count.

Cases referred to:-

R. v. Whybrow 35 Cr. App. R. 141. S

Sunday v. The Queen (Unreported) FSC 1111960 delivered on 14-4-60.

Law referred to:-

W.N. Criminal Code sections 280(1), 274.

CRIMINAL TRIAL.

Aofolaju, Crown Counsel for the Complainant.

Accused in person.

Williams, J.:-In this case the accused is charged with attempted murder contrary to section 258(1) of the Criminal Code of Western Nigeria. The particulars of offence state that during the night of 28th November, 1962, at Ibule Village, the accused unlawfully attempted to kill one Phillip Asipa. He is also charged with causing grievous harm contrary to section 274 of the said Criminal Code, the particulars being that at the same time and place he unlawfully caused grievous harm to the said Phillip Asipa.

According to the prosecution, the accused, a young man of over 18 years of age, is the son of Phillip Asipa (PW2) with whom he lived at Ibule, a village between Ilara and Ipogun. Also living in the same house at the material time were the accused's mother and his grandmother, that is, the mother of Phillip Asipa.

On the night of 28th November, 1962, while asleep in his own room, Phillip Asipa received a gun-shot in the head. The shot woke him up and he shouted. There and then he saw the accused at the entrance to his room holding a dane gun. Seeing him in this position, Phillip Asipa (PW2) accused him of having fired his gun at him but the accused did not reply. In consequence of the injuries suffered as a result of the gun-shot the PW2 was covered with blood which had been oozing from his head. Soon after this he became unconscious and on regaining consciousness he found himself in the General Hospital at Akure. In explaining the relationship between himself and his son Phillip Asipa (PW2) stated as follows:-

"Before this incident, I am not aware of any misunderstanding between me and the accused. I sent him to school for ten years but he learnt nothing at school. Finally, he ran away from school. After he ran away from school, I arranged for him to be apprenticed to a tailor. He again ran away from the tailor after about six months. In addition to his being apprenticed to a tailor, I gave him a portion of our farm to cultivate for his own exclusive needs. The accused refused to work well on the farm. As a result of all these, I had a quarrel with him and advised him that the only alternative to becoming a thief and a vagabond is to earn an honest living. The accused was not happy about what I told him or his own good."

At the General Hospital at Akure Phillip Asipa was admitted for treatment. Doctor Shokefun (PW1) who treated him had this to say about his injuries:-

"On 28-11-62, one Phillip Asipa was brought to the hospital for treatment. On examination he was found to have been moderately shocked. There were six punctured gun-shot wounds on his head. An X-ray of the skull revealed the presence of several gun-shot pellets in the skull bone and in the brain substance. Phillip Asipa was admitted for treatment and he made good progress. As a result he was discharged on 10th December, 1962."

After the admission of PW2 into hospital a report was made of the incident at the police station, Akure, by one Daniel Ogunleye (PW4). Pursuant to this report, Ashafa Saibu (PW7), a police constable attached to the Akure Police Station, went to Ibule village accompanied by the 4th PW. At the Village, the 7th PW carried out further inquiries which led to the recovery of the dane gun (exhibit G), some pellets (exhibits B and D), some percussion caps (exhibit H), and a quantity of gun powder (exhibit F). Consequently the accused was charged with attempted murder. After he had been cautioned, he volunteered the following statement:-

"Today 28-11-62 at about 01:00 hours in my village called Ibule I shot a gun which I have loaded before I slept last night to my father Asipa on his head while he was asleep on his bed. It was Abiye Dada who sold this gun to me at the rate of (12s) twelve shillings, but I have not paid him the money. It was on the 23-11-62 that I bought the gun. My father used to broadcast me about to the village people that I did not want to work."

At the close of the case for the prosecution the accused who was not represented by Counsel was asked, in accordance with the provisions of section 287 of the Criminal Procedure Act, whether he would like to give evidence on oath, or whether he would just make a statement from the dock in which case he would not be cross-examined, or whether he would rather not say anything at all. He replied that he would rather not say anything and consequently did not put in any defence in respect of the charge made against him. I must at this stage point out that throughout the case for the prosecution I paid particular attention to the accused and came to the conclusion that not only did he understand the charge to which he had pleaded not guilty, he was also able to follow the proceedings from beginning to end. I did not detect any abnormality about him. There was no reason to suspect that he was insane. I am therefore inclined to the view that he did not give any evidence mainly because he felt he was not in a position to dispute any of the facts adduced by the prosecution. Notwithstanding his decision, however, the onus is still on the prosecution to prove its case beyond any reasonable doubt.

It now remains for me to consider whether he is guilty of the offences with which he was charged.

In my view, the Criminal Code of Western Nigeria lays down exactly the same rule as the law in England with regard to a charge of attempted murder, namely, that on a charge of attempted murder, an actual intent to kill must be proved although if death results an intent to cause grievous bodily harm will be sufficient to sustain a charge of murder. (See R. v. Whybrow 35 Cr. App. R. at 141 and Sunday v. The Queen (unreported by see FSC 1171960 delivered on 14-4-69). In R. v. Whybrow, the L.C.J., at 146 and 147, explained the distinction between the intent required in a charge of murder and that required in a charge of attempted murder in the following manner:-

"Therefore, if one person attacks another, inflicting a wound in such a way that an ordinary, reasonable person must know that at least grievous bodily harm will result, and death results, there is the malice aforethought sufficient to support the charge of murder. But, if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime. It may be said that the law, which is not always logical, is somewhat illogical in saying that, if one attacks a person intending to do grievous bodily harm, and death does not result, it is not attempted murder, but wounding with intent to do grievous bodily harm. It is not really illogical because, in that particular case, the intent is the essence of the crime while, where the death of another is caused, the necessity is to prove malice aforethought, which is supplied in law by proving intent to do grievous bodily harm.

It is clear from the evidence adduced, and which I believe, that it is not in dispute:-

(a)     that the accused did not take kindly to his fathers' rebuke that he did not want to work;

(b)     that he bought a gun five days before incident;

(c)     that he was found in possession, after the shooting, of quantities of gun pellets, gun powder, and some percussion caps;

(d)     that he waited until his father (PW2) was asleep before he shot him; and

(e)     that he shot the 2nd PW on the head as a result of which several gun-shot pellets were fund in his skull and in the brain substance.

Having regard to all these facts and considering all the circumstances of the cage, I am left in no doubt that the accused shot his father on the night in question with the clear intention of killing him unlawfully. The thought as to whether the accused shot his father merely to exhibit his annoyance did flash through my mind. I rejected this probability on the ground that if that was his intention he would not have shot his father while he was sound asleep. Considering the nature of the injuries he sustained and the con sequent loss of blood it is indeed a miracle that the 2nd PW survived the brutal attack. The commendable role of Danile Ogunleye (PW4) who, at great inconvenience to himself, managed to rush him on a borrowed bicycle to the General Hospital at Akure (a distance of about nine miles in the early hours of the morning was, no doubt, a contributing factor.