MORUF v. STATE
(2020)LCN/14257(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Wednesday, June 03, 2020
CA/IB/345C/2018
Before Our Lordships:
Helen Moronkeji Ogunwumiju Justice of the Court of Appeal
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
AWOLEKE MORUF APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT CRIMINAL APPEALS ARE TO BE ARGUED ON THE WEIGHT OF EVIDENCE
It has to be pointed out that criminal appeals are not argued on “weight” of evidence. The phrase “weight” of evidence is known only to civil appeals which are fought on the preponderance of evidence. Therefore ground 4 of the notice of appeal is bad vide Adio v. State (1986) 2 NWLR (pt.24) 568, Aladesuru v. The Queen (1955) 3 WLR 515.
However, as the criminal appeal is on a capital offence (murder), the defect in the ground of appeal will be ignored in the interest of substantial justice all the more so the respondent did not pick quarrel with it at the hearing of the appeal vide Ndike v. State (1994) 8 NWLR (pt.360) 43, Salisu v. F.R.N. (2018) 3 NWLR (pt.1605) 161 at 180. PER IKYEGH, J.C.A.
THE PRINCIPLE THAT A PIECE OF EVIDENCE CONTRADICTS ANOTHER WHEN IT AFFIRMS THE OPPOSITE OF WHAT THAT OTHER EVIDENCE HAS STATED, NOT JUST WHEN THERE IS A MINOR DISCREPANCY BETWEEN THEM
It was held by the Supreme Court in the case of Olaoye v. State (2018) 8 NWLR (pt.1621) 281 at 309 following the cases of Kwaghshir v. State (1995) 3 NWLR (pt.386) 651 and Balogun v. A.-G., Ogun State (2002) 6 NWLR (pt.763) 512, that before any contradiction can be established between the evidence of a witness and the previous statement made by the witness, the specific portion of the statement sought to contradict the witness must be brought to the attention of the witness for his explanation in accordance with Sections 199 and 209 (now Section 232 and 235 (?) of the Evidence Act, 2011) of the Evidence Act, 2004. At any rate, the alleged contradiction is immaterial in that it does not strike at the root of the charge whether the appellant shot the deceased to death with his AK 47 rifle on the fateful date. A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not just when there is a minor discrepancy between them vide Ayinde v. State (2019) 12 NWLR (pt.1687) 410 at 425 where it was held inter alia that it has to be borne in mind that when several persons are called as witnesses to testify on what they saw at a particular incident, there are bound to be discrepancies in those testimonies in respect of details. The duty of the Court in such circumstances is to concentrate on material facts of the case as they relate to the charge, not on peripherals that have no bearing on the substance of the case. See the cases of Mamuda v. State (2019) 5 NWLR (pt.1664) 128 at 148, Dagayya v. State (2006) 7 NWLR (pt.980) 637, Ogoala v. State (1991) 2 NWLR (pt.175) 509, Esangbedo v. State (1989) 4 NWLR (pt.113) 57 and Maduabum v. Nwosu (2010) 13 NWLR (pt.1212) 623 at 656, State v. Ibrahim (2019) 9 NWLR (pt.1676) 137 at 157 relying on the cases of Wankey v. State (1993) 5 NWLR (pt.295) 542 and Akpabio v. State (1994) 7 NWLR (pt.359) 635. PER IKYEGH, J.C.A.
FUNDAMENTAL ELEMENTS OF THE OFFENCE OF MURDER
The elements of the offence of murder are that the deceased died; that the death of the deceased was caused by the accused; that the act or omission that occasioned the death of the deceased was intentional or with the intent to cause death or grievous bodily harm to the deceased vide Richard v. State (2018) 18 NWLR (pt.1651) 224 at 235.PER IKYEGH, J.C.A.
THE PRINCIPLE OF LAW AND ITS IMPLICATION WHERE AN ADVERSARY FAILS TO CROSS-EXAMINE A WITNESS UPON A PARTICULAR MATTER
It is settled that where an adversary fails to cross-examine a witness upon a particular matter, the implication is that the adversary accepts the truth of that matter as led in evidence by the witness; and the Court is entitled to act and rely on the evidence not discredited under cross-examination or not challenged by the opposing side to convict on it vide Egba v. State (2019) 15 NWLR (pt.1695) 201 at 217 – 218 following Oforlete v. State (2000) 12 NWLR (pt.681) 583, Akinbiyi v. Anike (1959) WRNLR 16, Nwankwere v. Adewunmi (1962) WRNLR 298, Amadi v. Nwosu (1992) 5 NWLR (pt.241) 273, Okoro v. State (2012) 4 NWLR (pt.1290) 351. PER IKYEGH, J.C.A.
THE TWO ELEMENTS TO ESTABLISH THE OFFENCE OF MURDER
It is a settled principle of law that for the prosecution, the Respondent to establish the offence of murder against the Appellant, there are two elements the Respondent must prove viz, the Actus reus and the mens rea. See Olaiya vs. State (2017) LPELR-43714 (SC). PER TOBI, J.C.A.
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from the decision of the High Court of Justice of Ogun State (the Court below) whereby it convicted and sentenced the appellant to death for the murder of one Hammed Musibau by willfully shooting him to death with AK 47 rifle.
The case presented by the respondent howbeit, in outline, was that on 01.06.16, the deceased and two other persons were riding on a motorcycle when the appellant, a policeman, with other policemen in his team on stop-and-check anti-crime operation stopped their motorcycle and attempted to impound it which led to argument and scuffle between the appellant and the deceased. In the process, the appellant shot the deceased at the back with the AK 47 assault rifle he had at close range. The bullet penetrated from the back of the deceased through the chest resulting in the death of the deceased from the bullet wound on the fateful date.
The appellant’s case was that he was in a patrol team mounted by the police to check motorcyclists who were suspected of using motorcycles to kidnap people. Their leader, a police sergeant, gave an order to stop
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three oncoming motorcyclists. They obeyed the order and stopped. The police demanded to see the documents of ownership of the motor-cycles. The rider of one of the motorcycles who turned out to be the deceased did not have documents of ownership of the motorcycle. The three motorcycles had no plate number.
The leader of the team then ordered that the three motorcycles be taken to the police station. The other two motorcyclists obeyed. The deceased did not obey the order. The leader of the team of policemen ordered the keys of the motorcycle of the deceased to be removed. The motorcyclist resisted. The three of them on the motorcycle said no one would take the motorcycle to the police station. One out of them said he was ready to die than surrender the motorcycle.
The appellant’s evidence continued that when he was about to mount the motorcycle, the deceased held his pocket and tried to retrieve the ignition key of the motorcycle from his pocket. The deceased then removed his shirt and threw it on the chest of the appellant where he hung his gun. The deceased tried to wrestle the gun from the appellant while one of the other passengers nudged
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the deceased to snatch the gun.
The other passenger who encouraged the deceased to continue the struggle over the gun was emboldened because they realized that the appellant was left with only the leader of the team as the other policemen had moved the other two seized motorcycles to the police station. A crowd gathered. One of the other passengers used a stick to strike the appellant’s hand. A struggle ensued between the deceased and the appellant when the gun suddenly triggered and ended the struggle and enabled the appellant recover his gun. The crowd started shouting that a man was shot and was dead. The crowd was about to mob the appellant. The appellant pulled back and made his way to the police station. His ammunition was counted by the armourer at the police station. It was short of one bullet.
The appellant maintained that his gun must have cocked during the scuffle with the deceased. The Divisional Police Office (D.P.O.) ordered for the appellant’s arrest. He was arrested and taken to Ewekoro for orderly room trial. After the orderly room trial the appellant was taken to the State Criminal Investigation Department (SCID)
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Eleweran, Abeokuta, where he made a statement and was subsequently taken to Court and tried for the offence of murder of the deceased.
The Court below believed and accepted the evidence for the respondent and disbelieved the case of the appellant and convicted the appellant as charged and sentenced the appellant to death in its judgment, hence the appeal.
The appellant filed his brief of argument on 21.09.18 in which he argued the four grounds of appeal in the notice of appeal under four issues for determination covering each ground of appeal seriatim with ground one under issue one and in the like manner down to ground 4, the last ground in the notice of appeal.
The appellant argued on the first issue that there were contradictions in the evidence of PW1, PW2 and PW8 pointing out that the first direct contradiction in the evidence of PW2 was whether the deceased removed his shirt or not in the confrontation with the appellant which was what the PW2 stated in his statement to the police, Exhibit A, contrary to his testimony under cross-examination contained in page 31 of the record of appeal (the record).
According to the submission of the
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appellant another contradiction was that while the PW2 stated in Exhibit A that the appellant pushed the deceased away and further pushed the deceased to the ground but the deceased stood up and moved away towards a woman selling food to buy food, before the appellant moved close to the deceased and shot him from behind, the PW2, however, maintained in his evidence-in-chief contained in page 30 of the record that as they turned to leave the appellant’s presence, the appellant kicked the legs of the deceased and the deceased fell down and the appellant then shot the deceased at the back inferring that the deceased and the appellant had a scuffle.
It was further argued on contradictions that in the first instance, the PW8 did not say in his evidence in page 42 of the record that the appellant shot the deceased at the back as all that he said was that he heard gunshot from the appellant. While in the second instance the PW8 testified contrary to what the PW1 said in page 21 of the record that the three persons on the motorcycle begged the appellant to let them go but the appellant refused and kicked the deceased who fell down after which the appellant
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shot the deceased at the back while the deceased was on the ground, while PW8 said he heard gunshot from the appellant and the deceased then fell down, showing whereas the PW1 said the appellant shot the deceased while the deceased was on ground, the PW8 said it was after the shot that the deceased fell down.
It was also argued on contradictions that the PW1 stated in page 30 of the record that there was no struggle between the appellant and the deceased, on the other hand, the PW8 said in page 42 of the record that the deceased and the appellant had a scuffle; showing therefore that these pieces of contradictions as to the circumstances under which the deceased died are material and that had the Court below adverted to them its decision would have been otherwise as it could not have picked and chosen between which witnesses to believe to convict the appellant citing in aid the cases of Onubogu v. The State (1974) 9 SC 1, Omonga v. The State (2006) 14 NWLR (pt.1000) 532 at 554.
It was finally submitted on contradictions that by these unresolved contradictions the respondent did not establish the ingredients of the offence of murder to the effect that
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the deceased had died; that the death of the deceased was caused by the appellant; and that the act or omission of the appellant which caused the death of the deceased was intentional or with the knowledge that death or grievous bodily harm was its probable consequence citing in aid the cases of Omonga v. The State (supra) at 551, Adekunle v. The State (2006) 14 NWLR (pt.1100) 717 at 736.
The appellant argued that in addition to the contradictions the Court below did not make any specific finding whether the alleged killing of the deceased was intentional as to reject the evidence of the appellant on the ground of inconsistency in that the PW2 stated in Exhibit A that he noticed the deceased had taken off his shirt and the appellant moved close to the deceased, while PW4 stated under examination-in-chief in page 33 of the record that the deceased said he was ready to die rather than release the ignition key of the motorcycle to the appellant; and that the appellant and the deceased dragged on from where he was standing and their struggle attracted people around, while the PW8 stated in page 42 of the record that the appellant shot the motorcycle rider
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when both the motorcycle rider and the appellant had a scuffle.
It was further argued that whereas the appellant maintained in his evidence in pages 45 – 46 of the record that the two passengers on the motorcycle insisted not to surrender the motorcycle for it to be taken to the police station with one of them saying he was ready to die rather than surrender the motorcycle; upon which he was about to mount the motorcycle when the deceased held his pocket to retrieve the ignition key of the motorcycle from him.
The appellant’s argument in respect of his defence was that he refused to give the ignition key of the motorcycle to the motorcyclist who removed his top dress and threw it on the appellant’s chest where the appellant hung his gun; that the deceased started wrestling with him to take the gun; that he did not know that it was his gun that released the shot until when he got to the police station that it was discovered his ammunition was short of one bullet; and that it was during the scuffle with the deceased that the gun cocked and fired itself when the deceased and himself were already on the ground and the deceased was hit by the
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shot.
Consequently, the appellant argued that by his statements to the police, Exhibits B, E – E1 and the uncross-examined portion of his evidence that he did not know that it was his gun that released the fatal shot until they got to the police station and the station officer checked his gun as well as on the evidence that the gun went off by itself during his scuffle with the deceased, doubt was created on his intention to kill the deceased which should have been resolved in his favour so urged the appellant citing in aid the cases of Ojo v. F.R.N. (2008) 2 NWLR (pt.1099) 467 at 511 – 512, and 521 – 522, Omogodo v. The State (1981) 5 SC 5, Edoho v. The State (2004) 5 NWLR (pt.865) 17 at 51, Onafowokan v. The State (1987) 3 NWLR (pt.61) 538 at 546, Nwankwo v. F.R.N. (2003) 4 NWLR (pt.809) 1 at 35.
The appellant further argued that based on the totality of the evidence highlighted (supra) the Court below should not have held that the nature of the wound inflicted on the deceased as well as the holding that a gun cannot cock by itself established that the appellant was responsible for the death of the deceased when the said
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holding was based on speculation citing in aid the case of Edoho v. The State (2004) 5 NWLR (pt.865) 17 at 49.
The appellant argued ground 4 of the notice of appeal couched to the effect that the decision of the learned trial Judge was altogether unreasonable and cannot be supported having regard to the weight of evidence under the last issue for determination. It has to be pointed out that criminal appeals are not argued on “weight” of evidence. The phrase “weight” of evidence is known only to civil appeals which are fought on the preponderance of evidence. Therefore ground 4 of the notice of appeal is bad vide Adio v. State (1986) 2 NWLR (pt.24) 568, Aladesuru v. The Queen (1955) 3 WLR 515.
However, as the criminal appeal is on a capital offence (murder), the defect in the ground of appeal will be ignored in the interest of substantial justice all the more so the respondent did not pick quarrel with it at the hearing of the appeal vide Ndike v. State (1994) 8 NWLR (pt.360) 43, Salisu v. F.R.N. (2018) 3 NWLR (pt.1605) 161 at 180.
That based on all the submissions (supra) had the Court below properly evaluated the
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evidence, it would have resolved the doubt created thereby in favour of the appellant and should have held that the respondent did not establish its case beyond reasonable doubt which should have entitled the appellant to an acquittal.
Consequently, the appellant advocated that the judgment of the Court below not having met the standard of a judgment condemning him to death is perverse upon which the appellant urged that the appeal should be allowed and the judgment of the Court below be set aside and the appellant be discharged and acquitted citing in aid the cases of Nwankwo v. F.R.N. (supra) at 28, Nwosu v. The State (1986) 4 NWLR (pt.35) 348 at 359 and 360, Rex v. White 4F & F 383 at 384, Egbe v. The King (1950) 13 W.A.C.A. 105/106.
The brief of argument of the respondent was filed on 15.05.19, but it was deemed as properly filed on 21.05.19. The brief opened with the proposition that in all criminal trials, the prosecution is required to prove its case against the accused beyond reasonable doubt before it can secure a conviction; and that for the offence of murder all the ingredients of the offence to the effect that the deceased died from
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the intentional act of the accused must be established beyond reasonable doubt by either direct/eye-witness account, or by circumstantial evidence, and/or by confessional statement vide the cases of Abirifon v. State (2013) 9 SCM 1 at 5, Edoho v. State (2010) 6 SCM 52 at 56, Nwokearu v. The State (2013) 9 SCM 124 at 129, Mbang v. The State (2012) 10 SCM 31 at 44, Nwaturuocha v. The State (2011) 12 SCM (pt.2) 265 at 269.
The respondent submitted that the fact that the deceased died was uncontroverted and unchallenged and was properly established at the Court below vide pages 27 – 50 of the record thus proving the first ingredient of the offence beyond reasonable doubt vide Wasiri v. The State (1997) 3 NWLR (pt.496) 689 at 721, Okosi v. The State (1989) 1 NWLR (pt.100) 1.
The respondent commended the evidence of PW1, PW2 and PW4 in pages 27 – 34 and 41 – 43 of the record, respectively, particularly page 29 lines 2 – 5, page 30 lines 19 – 24, page 33 lines 19 – 20, page 34 lines 1 – 9 and page 42 line 3 thereof, respectively, to submit that the respondent proved beyond reasonable doubt on the unchallenged and
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uncross-examined evidence that the appellant was responsible for the death of the deceased videEgwumi v. State (2013) 5 SCM at 139, Oguno & Anor. v. The State (2003) 6 SCM 145, Ojobi v. The State (2008) 4 NWLR (pt.1076) 171 at 194 – 195, Ali v. The State (2015) 5 SCM 26 at 55.
The respondent relied on Exhibits C and D to submit that the Court below was right to hold in its judgment in page 81 of the record that Exhibits C and D made it clear that the deceased died as a result of the injuries sustained from the gunshot which proved the intent of the appellant to kill the deceased by shooting the deceased at the back with his gun as the obvious consequence of his act.
The respondent submitted that the alleged contradictions referred to by the appellant whether the deceased removed his shirt or had a confrontation with the appellant are not germane or material to establish the core ingredients of the offence of the murder, more so, both are minor contradictions or inconsistencies which did not render the testimonies of the witnesses in this case unreliable videIgabele v. State (2006) NWLR (pt.975) 120.
The respondent further submitted that
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the evidence showed the appellant’s defence was full of inconsistencies which the Court below pointed out in its judgment in page 80 of the record and found the defence worthless showing the defence of the appellant was considered by the Court below to be worthless and unbelievable before it arrived at its decision in the case against the appellant after it had earlier considered and accepted the case of the respondent in compliance with the mandate that the Court must consider all defences open to an accused no matter how stupid or improbable vide Annabi v. The State (2008) 5 SCM 21 at 35, on account of which the respondent urged that the appeal should be dismissed and the decision of the Court below affirmed.
The first alleged contradiction is between some portions of the evidence of PW2 and his witness statement to the police, Exhibit A. The appellant’s learned counsel at the Court below read out Exhibit A to the PW2 under cross-examination vide page 32 of the record. The pattern of cross-examination of the PW2 by the appellant’s learned counsel in page 32 of the record is so seamless that it is hard to decipher the specific area in
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the statement, Exhibit A, that was intended to be used to impeach the credit of PW2. There is also no indication in the pattern of the evidence of the PW2 where he was asked to explain any specific variation in his statement to the police, Exhibit A, with his sworn evidence. It was held by the Supreme Court in the case of Olaoye v. State (2018) 8 NWLR (pt.1621) 281 at 309 following the cases of Kwaghshir v. State (1995) 3 NWLR (pt.386) 651 and Balogun v. A.-G., Ogun State (2002) 6 NWLR (pt.763) 512, that before any contradiction can be established between the evidence of a witness and the previous statement made by the witness, the specific portion of the statement sought to contradict the witness must be brought to the attention of the witness for his explanation in accordance with Sections 199 and 209 (now Section 232 and 235 (?) of the Evidence Act, 2011) of the Evidence Act, 2004. At any rate, the alleged contradiction is immaterial in that it does not strike at the root of the charge whether the appellant shot the deceased to death with his AK 47 rifle on the fateful date.
A piece of evidence contradicts another when it affirms the opposite of
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what that other evidence has stated, not just when there is a minor discrepancy between them vide Ayinde v. State (2019) 12 NWLR (pt.1687) 410 at 425 where it was held inter alia that it has to be borne in mind that when several persons are called as witnesses to testify on what they saw at a particular incident, there are bound to be discrepancies in those testimonies in respect of details. The duty of the Court in such circumstances is to concentrate on material facts of the case as they relate to the charge, not on peripherals that have no bearing on the substance of the case. See the cases of Mamuda v. State (2019) 5 NWLR (pt.1664) 128 at 148, Dagayya v. State (2006) 7 NWLR (pt.980) 637, Ogoala v. State (1991) 2 NWLR (pt.175) 509, Esangbedo v. State (1989) 4 NWLR (pt.113) 57 and Maduabum v. Nwosu (2010) 13 NWLR (pt.1212) 623 at 656, State v. Ibrahim (2019) 9 NWLR (pt.1676) 137 at 157 relying on the cases of Wankey v. State (1993) 5 NWLR (pt.295) 542 and Akpabio v. State (1994) 7 NWLR (pt.359) 635.
In other words, a material contradiction is one that strikes at the heart of the case, as the cornerstone of the present case is murder with gun, AK 47
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rifle, shot by the appellant, if one or more of the witnesses had testified for the respondent that the murder weapon was an axe or knife while another witness testified that it was a gun, AK 47 rifle, that was the murder weapon, for example, then there would be said to be a material contradiction in the evidence of the witnesses for the respondent. Difference in the account of witnesses on the preliminaries or prelude to the commission of an offence will not qualify as material contradictions vide Jizurumba v. State (1976) 10 NSCC 156.
It was held by the Supreme Court in the case of Galadima v. State (2018) 13 NWLR (pt.1639) 357 at 378 following Ibeh v. State (1997) 1 NWLR (pt.484) 632 that the contradictions in the testimony of the prosecution witnesses that should weigh on the mind of the Court must be such as are fundamental to the real question before the Court. The contradictions must be material and go to the root of the case to create a reasonable doubt in the mind of the Court. See also Chukwunyere v. The State (2018) 9 NWLR (pt.1624) 249 at 271.
Besides, as earlier stated the alleged contradiction between the statement of PW2 in Exhibit A
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and his sworn evidence is not on any of the elements of the offence of murder. Likewise, the alleged contradictions between the evidence of PW1, PW2, and PW8 which were pieces of evidence of how each of them saw the incident in the way they saw it, respectively, and boils to mere or minor discrepancies and/or minor contradictions not affecting the capstone of the three elements of the crime of murder earlier identified in the respective briefs of the appellant and the respondent. The case of Onubogu v. The State (supra) upon which the other case (supra) cited by the appellant on contradictions drew strength had to do with where the weapon of attack, a spear, was got and how it was used on the complainant by the accused, Onubogu, and how it was used in damaging his car which were material to the charge of unlawful wounding and malicious damage to property, respectively, upon which the eye-witnesses differed in their evidence. The weapon became material because the appellants had put the respondent on notice of their defence in advance that the injury complained of in the case was caused by one of the rods jutting out of the staircase of the building at
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the scene of crime.
Also, in Onubogu v. State (supra) the complainant contradicted himself in his evidence in Court with what he had told the police in his statement to the police on how the weapon was obtained and about how, when and in what manner it was used on him and how it was recovered and brought to the police station. The Supreme Court therefore had to re-emphasise the doctrine or rule of material contradictions and or inconsistency between the evidence of a witness and his statement to the police holding in such scenerio that as the spear was the weapon of attack in the case both the previous statement to the police and the sworn evidence of the witness which were inconsistent on it should be treated as unreliable with respect to the elements of the offence charged and that the Court should not have picked and choosen between the witnesses who had contradicted themselves on material issue(s) relying on the English cases of R. v. Golder (1960) 1 WLR 1169, R. v. Fraser and Anor. (1957) 40 Cr. APPR. 160 at 163, Summer and Leivesley v. Brown & Co. (1909) 25 T.L.R. 745 and the indigenous case of The Queen v. Joshua (1964) 1 All N.L.R. 1 at 3.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The Supreme Court had to re-emphasize the doctrine or rule of material contradictions and inconsistencies between the evidence of witnesses and also between the previous statement of a witness and his testimony on central issues in the said case of Onubogu v. State to hold that their testimonies in that respect should have been treated as unreliable.
In the present case, the internal conflict between the evidence of the PW2 and his statement to the police was not on the murder weapon and how it was used on the deceased by the appellant or on the shooting of the deceased at the back or on the fact that the deceased died of the gunshot fired by the appellant which are the elements of the offence of murder upon which the appellant was tried and convicted. Hair-splitting matters like pulling a shirt off, somebody lying on the ground and a scuffle happening were build-up and peripheral or tangential/remote issues on subordinate facts while the facts in issue were the three ingredients of the offence of murder that the deceased died, that the appellant was responsible for the death of the deceased and that the act of the appellant was with intention to
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cause the death of the deceased or grievous bodily harm to the deceased. All these ingredients did not feature in the alleged contradictions either between the evidence of the PW2 and his statement to the police, Exhibit A, and/or the contradictions between the evidence of the PW1, PW2 and PW8.
I conclude on the above issue that the alleged contradictions are minor and immaterial and did not affect the backbone of the case that the appellant used AK 47 assault rifle to shoot the deceased at the back to death on the fateful date.
The elements of the offence of murder are that the deceased died; that the death of the deceased was caused by the accused; that the act or omission that occasioned the death of the deceased was intentional or with the intent to cause death or grievous bodily harm to the deceased vide Richard v. State (2018) 18 NWLR (pt.1651) 224 at 235.
The intention to kill a human being can be inferred from the murder weapon used and the part of the body of the deceased affected by the mortal attack. In the present case it is not in controversy that the weapon was a rifle or gun called AK 47 rifle. It is also not in dispute that the
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bullet entered the back of the deceased and penetrated through the chest, a vulnerable part of the body, which resulted in the death of the deceased on the same fateful date. Unarguably a gun is a lethal weapon. Indisputably, when a gun is used in shooting at a human being the intention to kill the human being or to cause him grievous bodily harm can be inferred from the use of the gun, a lethal weapon, by the assailant. Thus in the cases of Richard v. State (2018) 18 NWLR (pt.1651) 224, Ola v. State (2019) 1 NWLR (pt.1654) 474 and Olaiya v. State (2018) 10 NWLR (pt.1626) 1 intention into kill was inferred from the murder weapon, AK 47 rifle, as in this case. See also the case ofIsah v. State (2018) 8 NWLR (pt.1621) 346 at 351 following Owhoruke v. C.O.P. (2015) 15 NWLR (pt.1483) 557. See again Chukwunyere v. State (supra) at 272. The Supreme Court re-emphasized in the case of Olaiya v. State (supra) at pages 17 – 18 per the lead judgment prepared by His Lordship, Eko J.S.C., that a firearm, particularly AK 47 rifle, with live ammunition, is prima facie a very dangerous object within the rule in the old English case of Rylands v. Fletcher
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(1866) LR I Ex. 265. Therefore, where live bullets were fired from the firearm, the defence that can deflect a conclusion that the bullets or shots were fired with the knowledge that death of the victim was a probable consequence thereof it is either the fault of the victim or an act of God or accident or novus actus interveniens. The burden therefore is on the accused to show by credible evidence how he fired the fatal shot with due care and diligence.
The lead judgment prepared by His lordship, Eko, J.S.C., went on to state that when a man shoots at his victim or into a crowd with a gun, he does so with the intent either to cause the death of the victim or some other persons in the crowd. That is what the law presumes his intent to be. His Lordship continued that when a weapon used is a gun, which by its very nature is a very dangerous and lethal weapon, the probability of a resultant death as a consequence is very high. In such circumstance, the presumption is that the result of shooting a person with a gun is either to cause death or cause him grievous hurt. lbikunle v. State (2007) 2 NWLR (Pt. 1019) 546; Arebamen v. State (1972) 4 SC 35;
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Uyo v. A.-G., Bendel State (1986) 6 NWLR (Pt. 17) 418; Garba v. State (2000) 6 NWLR (Pt. 661) 378 referred to (P 18. paras. D-E).
It is accordingly, wrong for the appellant to contend that the Court below speculated on the intention of the appellant to kill the deceased when there was evidence that the gunshot from AK 47 rifle, a lethal weapon, hit the back of the deceased and penetrated the chest of the deceased, which killed the deceased on the same date, from which intention to kill can be inferred.
The PW3’s unchallenged evidence contained in page 32 of the record was that they went to the mortuary on 02.06.16 where he saw the corpse of the deceased, his nephew, also, confirmed the death of the deceased.
The next issue is the cause of the death of the deceased. Both the PW1 and PW2 gave unchallenged eye-witness account of the fact that the deceased was shot with a gun at the back and the PW1 conveyed him to the hospital where he died from the gun-shot wound on the same day.
The Supreme Court held in the case of Olaiya v. State (supra) in same pages 17 – 18 of the law report that a defence of accident concedes that the deceased
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died as well as the cause of death of the deceased. It follows that the appellant by raising the defence of accident admitted and/or conceded the death of the deceased by gunshot wound, so the argument by the appellant that the death of the deceased from gunshot injury was not made out is diversionary and untenable.
The PW6, the medical doctor, who examined the corpse of the deceased confirmed the death of the deceased and the cause of his death in his evidence contained in page 38 of the record as follows –
“My names are Dr. Salman Hakeem Morafa. I am a medical doctor. I work at the State Hospital Ilaro. I remember the 2nd day of June 2016. On that day, I was the doctor on call at the State Hospital, Ilaro. A young man was rushed to the said hospital around 1.15a.m. on the 2nd day of June 2016. He had bled so profusely and was brought in dead. He was brought in by a friend and a brother whose names I cannot remember now. On enquiry, I learnt that the name of the deceased was Ahmed something which I don’t remember now. On examination he was found to be pale. His clothing’s were soaked in blood and there was a bullet
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wound on his back. The bullet entry was around the mid-scapular region and the exit was in front of the chest measuring about 10cm by 8cm in diameter. The entry wound can be described as a puncture or a stab wound while the exit wound was large enough to be measured. As at presentation there was no respiratory or breathing effort and there was no cardiac activity. He was pronounced ‘dead’ around 1.20a.m. on the 2nd of June 2016 and the cause of death was hemmorhagic shock secondary to fire-arm injury”.
The evidence-in-chief of PW6, the medical doctor (supra), which was not cross-examined upon by the defence therefore confirmed the death of the deceased and cause of his death to have been due to haemorrhagic shock secondary to fire-arm injury. It is settled that where an adversary fails to cross-examine a witness upon a particular matter, the implication is that the adversary accepts the truth of that matter as led in evidence by the witness; and the Court is entitled to act and rely on the evidence not discredited under cross-examination or not challenged by the opposing side to convict on
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it vide Egba v. State (2019) 15 NWLR (pt.1695) 201 at 217 – 218 following Oforlete v. State (2000) 12 NWLR (pt.681) 583, Akinbiyi v. Anike (1959) WRNLR 16, Nwankwere v. Adewunmi (1962) WRNLR 298, Amadi v. Nwosu (1992) 5 NWLR (pt.241) 273, Okoro v. State (2012) 4 NWLR (pt.1290) 351.
The unchallenged evidence (supra) of the PW6, the medical doctor on the cause of death of the deceased and the eye-witness account of PW1 in whose presence the deceased died of the gunshot wound on the fateful day therefore established the cause of death of the deceased from gunshot injury on the chest beyond reasonable doubt.
These pieces of evidence, accordingly, established beyond reasonable doubt that the deceased died of bullet wound on the chest from the gun, AK 47 rifle, on the fateful date of 01.06.16 vide the case of Olasehinde v. State (2019) 1 NWLR (pt.1654) 555 at 574 following Simon v. State (2017) 8 NWLR (pt.1566) 119.
The question is whether the appellant killed the deceased or the deceased met his death by accidental discharge of a bullet from the AK 47 rifle then in possession of the appellant.
The PW1, the PW2 and the PW8 gave direct
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evidence or eye-witness account of the fact that the appellant shot the deceased at the back with AK 47 rifle which led to the death of the deceased on the same day. The PW1, PW2 and PW8 were not shaken under cross-examination. Their pieces of unchallenged evidence therefore established that it was the act of the appellant of shooting the deceased at the back with AK 47 rifle that resulted in the death of the deceased on the fateful date.
It is pertinent that the PW4 who led the police patrol team on the fateful date intervened to stop the argument between the appellant and the deceased to no avail. His directive to the appellant to give the ignition key of the motorcycle to the deceased and leave the matter was rebuffed by the appellant. At that stage, it was no longer the issue of the appellant trying to enforce any law. The deceased was not placed under arrest. It was not a case of the deceased resisting arrest to call for the use of reasonable force to effect his arrest. The appellant decided to take things into his own hands with the deceased even to the extent of disobeying PW4, his superior and leader, who had instructed him to drop the matter.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The PW4 was not cross-examined on these pieces of evidence vide page 39 of the record containing the cross-examination of the PW4. The net result is that the unchallenged evidence of the PW4 (supra) taken together linked the bullet that hit the deceased to death to the gun in possession of the appellant at the material time; and as it emerged holistically from the said evidence the gunshot heard by the PW4 at the material time came was from the AK 47 rifle or gun held by the appellant who was the only armed person close to where the deceased was at the material time.
At the risk of repetition, PW4, the leader of the anti-crime patrol team, testified specifically in page 34 of the record that he told the appellant to leave the ignition key of the motorcycle for the deceased who was engaged in a struggle over it with the appellant but the appellant was obstinate and did not release the key to the deceased and that –
“When I heard the gun shot I had to withdraw and went to the station to report what was happening at Igboro junction. All of us (four of us) withdrew individually. At the station, all of us were detained our rifles collected
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by the Armourer and checked. They counted each person’s ammunition. It was the ammunition of the accused person that was reduced by one. The person that was shot is now dead. It is the deceased person that I spoke about before”.
The story pandered by the appellant that one Cpl Ojo Ayodele shot and killed the deceased as contained in the statement of the appellant to the police at Ilaro Police Station, Exhibit B, when the incident was fresh in the memory of the appellant, was in sharp conflict with the evidence on oath of the appellant in his defence built on accidental discharge of the firearm, the AK 47 rifle. Exhibit B was also in sharp conflict with the appellant’s statement to the police at the SCID Eleweran Abeokuta, Exhibits E – E1, on the same issue. The effect of the collision course is stated by the Supreme Court in the case of Dogo v. The State (2013) 10 NWLR (pt.1361) 160 at 178 as follows –
“Appellant, though the accused person testified at his trial and was therefore a witness. His extra-judicial statement to the police is that he shot the deceased in defence of lives and property because he thought
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he was an armed robber. This was his statement when the facts were fresh in his mind.
On the witness stand, he set up a defence of accident. By the doctrine of inconsistency, his evidence at the trial should be regarded as unreliable and his previous statement does not constitute evidence upon which the Court can act. The two mutually exclusive versions of the incident leading to the shooting of the deceased cancel each other, leaving the appellant with no defence to the charge of murder laid against him”. For it is trite that a party should at all times be consistent with pleading his defence. He cannot be allowed to blow hot and cold at the same time vide Olaiya v. State (supra) at 17 following Suberu v. State (2010) 8 NWLR (pt.1197) 586. That should have been the end of the matter with respect to the defence of accident in this case.
To err on the side of caution, however, I will consider the defence insofar as the evidence of the appellant as the sole witness for the defence is concerned. The detailed statement of the appellant to the police at the State Criminal Investigation Department (SCID) Eleweran, Abeokuta, Exhibit E and E1, are
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contained in pages 7 – 8 of the record of appeal (the record) that the AK 47 rifle he had went off by itself in the course of the struggle between the deceased and some of his cohort and the appellant and that the bullet that fired from it by itself hit somebody. He maintained that his rifle was uncocked at the material time. The appellant added in his statement that it was his gun that actually sounded and killed the deceased and that he did not pull the trigger at all and that it was not intentional.
The appellant’s statement to the police at the Divisional Police Station Ilaro, Exhibit B, is contained in pages 9 – 10 of the record. The appellant maintained in the statement that it was one police corporal Ayodeji that shot the deceased and that the bullet entered at the back of the deceased. He insisted in his statement, Exhibit B, unedited, that –
“I was not the person that fire the deceased…”.
But when the ammunition issued to the appellant was checked at the police station, the magazine or chamber of the AK 47 rifle issued to the appellant had 29 bullets in the gun instead of 30 bullets. He could
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not account for the shortfall of one bullet. It appears it was then that it dawned on the appellant to change his story to the rifle firing or going off by itself in his statement to the police at the SCID Eleweran, Abeokuta, Exhibit E and E1.
The defence of the appellant was that the gun cocked itself in the course of the struggle the deceased had over the gun with him to dispossess him of it and that the AK 47 rifle fired a bullet by itself and killed the deceased. The appellant’s defence is accidental discharge of the gun or put simply his defence is accident.
A sober and slow look at the evidence of the PW1, PW2 and PW8 to the effect that the deceased was backing the appellant at the time the gunshot hit him and that the appellant and the deceased had passed the stage of scuffle over the ignition key of the motorcycle at the time the gunshot hit the deceased at the back established that the struggle between the appellant and the deceased was over the ignition key of the motorcycle not the AK 47 rifle then in possession of the appellant.
The appellant’s version was that he hung his gun across his chest. It followed that a scuffle
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over the gun will be a face to face encounter as one cannot back what he was scuffling over. It sounds strange that a person scuffling for a weapon or gun hung across the chest of another would be backing the other in the course of the scuffle.
The Court below found as a fact in part of its judgment in page 81 of the record on the defence of accident that the scuffle, if any, was not for the gun as the deceased could not even have scuffled with the appellant from the back and that the gun cannot cock itself concluding that the appellant shot the deceased with the gun.
The case of Ola v. State (2019) 1 NWLR (pt.1654) 474 at 490 is instructive. There the Supreme Court in rejecting the plea of accidental discharge of AK 47 rifle put forward by the appellant in the case accepted the concurrent findings of fact of the trial High Court and the Court of Appeal based on the evidence of a ballistician that AK 47 rifle does not fire itself.
The phrase ‘cock’ with respect to firearm denotes the hammer or the position at which the hammer rests when raised and to ‘cock’ a firearm is to raise the cock or hammer of a firearm (gun, for
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example) preparatory to firing (Webster Comprehensive Dictionary, International Edition page 253). Thinking aloud, (if I am permitted to do so), I do not see it happen under normal course of things where a firearm would cock itself or automatically unless it is shown that the firearm is the type that cocks by automation which was not established in this case.
By the provisions of Section 24 of the Criminal Code of Ogun State a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will or for an event which occurs by accident. The section does not cover negligent acts and omissions. An act leading to an accident must be a lawful act done in a lawful manner and must be a surprise to an ordinary man of prudence, sobriety and reasonableness. The test is objective. For an event to occur by accident, it must be one that is unexpected by the doer of the act and, also, not reasonably to be expected by any ordinary person or the reasonable man of the law – an event that is totally unexpected, unwilled, unintentional and without any fault as against an act which is deliberate, willed and
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intentional vide Adelumola v. State (1988) 1 NWLR (pt.73) 683, Thomas v. State (1994) 4 NWLR (pt.337) 129, Mathew v. State (2018) 6 NWLR (pt.1616) 561, Adekunle v. State (2006) 14 NWLR (pt.1000) 717, Abdulbaki v. State (2009) 8 SCM 177, Okpa v. State (2017) 15 NWLR (pt.1587) 1 at 33 – 34.
The initial reaction of the appellant to the allegation when the facts were fresh in his memory at the time he made his statement to the police at Ilaro police station, Exhibit C, was to accuse one of his colleagues, police Corporal Ayodeji, of killing the deceased on the fateful day. The appellant did not plead the defence of accident or accidental discharge of his AK 47 rifle.
The pattern of the defence during cross-examination veered to suggest that one of the bullets was fired around a mosque. The cat was let out of the bag (so to speak) when the appellant could not account for one bullet out of the 30 live ammunition issued to him for the anti-crime patrol when their live ammunition was checked by the armourer at the police station. Significantly, the appellant did not complain to his leader, the PW4, at the scene of the crime that the deceased was
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struggling with him over his rifle when the PW4 told him to stop the argument with the deceased and give the ignition key of the motorcycle back to the deceased which was the cause or source of their argument and scuffle.
For the sake of emphasis, as stated by PW1, PW2, PW4 and PW8, eye-witnesses, who were believed by the Court below, the appellant fired the fatal shot with his AK 47 rifle which killed the deceased on the same day, not in the course of the argument and/or scuffle but soon or immediately after the argument and scuffle between the appellant and the deceased over the ignition key of the motorcycle seized showing the fatal shot was fired by the appellant when he was not in imminent danger or threat to his life and was not pursuing a lawful purpose in a lawful manner, as his leader and superior had told him to give the ignition key of the motorcycle back to the deceased and let go of the matter to no avail.
The gunshot fired at the back from the AK 47 rifle in possession and control of the appellant at the material time also demonstrably bore it out that the deceased who was unarmed was backing the appellant at the material time showing,
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again, by my appreciation of the facts as found by the Court below that the deceased posed no threat to the appellant and could not have been engaged in a scuffle with his back to the appellant rather than the natural posture of face to face encounter which flows with when human beings are engaged in a scuffle.
I believe police officers on lawful duty to enforce law and order have no licence to kill or liberty to shoot recklessly, unless in self-defence or for the purpose of arresting an escaping or absconding/fleeing felon in which case and, as a last resort, and/or for lack of other reasonable means of force in disabling the fleeing felon they may shoot the absconding felon to prevent his escape but preferably not to kill but to disable the absconding felon vide Adegboye v. State (2017) 16 NWLR (pt.1591) 248 relying on Section 33(2)(b) of the 1999 Constitution and Section 271 of the Criminal Code Law of Ogun State which was not the case here.
The appellant did not therefore show by the balance of probabilities that the deceased was killed by accidental discharge of a bullet from the appellant’s rifle, so his defence of accident which the
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Court below found to be untrue was not discharged on the preponderance of evidence vide Section 137 of the Evidence Act to the effect that where in any criminal trial the burden of proving the existence of any fact or matter placed upon a defendant by virtue of the provisions of any law, the burden shall be discharged on the balance of probabilities.
The Court below was therefore right to believe and accept the collective evidence of the eye-witness, PW1, PW2, PW4 and PW8 that the appellant shot the unarmed deceased at the back at close range with AK 47 rifle on the fateful date which led to the death of the deceased from the gunshot wound on the same date. Since the findings were based on the demeanour and the credibility of the eye-witnesses and were not shown to be perverse and/or against the tide of evidence to that effect, I have no cause to disturb the said findings of fact vide Adisa v. State (2019) 3 NWLR (pt.1660) 488 at 500, 503 – 540, Mamuda v. State (2019) 5 NWLR (pt.1664) 128 at 141, Adebanjo v. State (2019) 13 NWLR (pt.1688) 121.
Accordingly, the Court below was right to disbelieve the appellant’s incredible evidence of
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accidental discharge of his rifle given in defence by the appellant whose demeanour and that of the witnesses for respondent the Court below had the singular opportunity to observe in the course of their testimonies at the Court below vide Popoola v. State (2018) 10 NWLR (pt.1628) 485 at 502.
As admonished by His Lordship, Okoro, J.S.C., in the lead judgment in Ola v. State (supra) at 488 –
“police officers who are entrusted with arms while on duty should realize that the arm is to be used to protect members of the public and not to use same to kill them”.
His Lordship, Okoro, J.S.C., re-echoed the same charge in Olaiya v. State at 24 where His Lordship stated in his own judgment that –
“… I need to remind the appellant and police officers like him that they are meant to use the guns to safeguard the lives of the citizenry they are paid to protect. It is sad that it is the reverse in this case. As I said earlier the appellant must bear the direct consequences of his action”.
See also Agbo v. The State (2006) 6 NWLR (pt.977) 545.
In the final analysis, I find no merit in the appeal and hereby
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dismiss it and affirm the decision of the Court below.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have just read the Judgment prepared by my learned brother JOSEPH SHAGBAOR IKYEGH JCA. I agree with His Lordship’s erudite reasoning and conclusion that the appeal has absolutely no merit and should be dismissed. It is important to say that the law of the land is that killing an unarmed thief who is running away is murder and not manslaughter. In this case, the evidence against the Appellant is consistent and unanimous from prosecution witnesses that after he attempted to arrest the deceased and the motorcycle of the deceased. The deceased had withdrawn from the fray, there was no struggle between the parties and the deceased was shot at the back by the Appellant at close range without any imminent danger to the Appellant’s own life or any scuffle which might make the defence of accident tenable in the circumstances. These type of incidents of unwarranted police brutality leading to the death of Nigerians (whether innocent or not, it is left for the Court of competent jurisdiction to judge) has become very common in this country. I have read the
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careful judgment of the learned trial judge who was in the position to examine the demeanor and decide on the credibility of the prosecution witnesses and I cannot find fault with the findings of fact of the said trial Court which are sound in fact and law. I agree intoto with His Lordship that the judgment of the learned trial court be affirmed. Appeal Dismissed.
EBIOWEI TOBI, J.C.A.: I have had the privilege of reading in draft the leading judgment of my learned brother Joseph Shagbaor Ikyegh, JCA. I agree with his analysis and the resolutions reached on the issues presented in this appeal. On my part, I wish to add one or two things.
From the evidence before the lower Court, some facts are undisputed, that is, that the deceased had died, and that the deceased was killed by the accused person, the Appellant in this case. What is however in dispute is whether or not the act or omission of the Appellant which caused the death of the deceased is intentional or done with the knowledge that death or grievous bodily harm was its probable consequence.
It is a settled principle of law that for the prosecution, the Respondent to establish the offence
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of murder against the Appellant, there are two elements the Respondent must prove viz, the Actus reus and the mens rea. See Olaiya vs. State (2017) LPELR-43714 (SC).
The Appellant is disputing that, though the Respondent was able to prove the first two ingredients of the offence of murder (which constitute the actus reus), it was not able to prove the third ingredient against the Appellant (which constitute the mens rea). It is trite law that for the prosecution, the Respondent in this case, to be able to secure conviction against the Appellant, it must prove all the ingredients of the offence against the Appellant and where he cannot prove one or more of the ingredients of the offence against the Appellant, he must fail. See Okoro vs. State (1988) LPELR-2494 (SC).
I have gone through the evidence at the lower Court, and I make bold to say that the Respondent, through its witnesses was able to prove all the ingredients of murder against the Appellant. The law is that for the Respondent to prove the commission of an offence against the Appellant, it can rely on any of the following means – eye witness account, circumstantial evidence or confessional
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statement of the accused. Any of the aforementioned forms will suffice in proving the guilt of the accused. The testimony of PW1, PW2, PW4 and PW8 who are eye witnesses to what transpired between the Appellant and the deceased all gave unimpeachable evidence against the Appellant. The law is settled that the best form of evidence is the evidence of an eye witness. See Agu vs. State (2017) LPELR-41664 (SC); Akinlolu vs. State (2015) LPELR-25986 (SC).
Based on the evidence before the lower Court, and the fuller reason given by my learned brother Joseph Shagbaor Ikyegh, JCA in the leading judgment, I find no cause in overturning the judgment of the lower Court. In the light of the foregoing, I find that this appeal lacks merit and same is hereby dismissed.
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Appearances:
Mr. K. Esan For Appellant(s)
A. Bolarinwa-Adebowale Esq. (Chief State Counsel, Ministry of Justice, Ogun State), with him, A. O. Akapo Esq. (Principal State Counsel, Ministry of Justice, Ogun State) For Respondent(s)
