P.C. ADEUSI ADESINA v. THE PEOPLE OF LAGOS STATE
(2019) LCN/4832(SC)
In The Supreme Court of Nigeria
On Friday, the 18th day of January, 2019
SC.622/2014
RATIO
WHETHER EVIDENCE OF A PERSON WHO IS NOT CALLED AS WITNESS IN A PROCEEDING IS ADMISSIBLE IN EVIDENCE
Appellant complains, inter alia, that Exhibit D3 being hearsay (as it was not tendered by the maker, but the PW.1); it could not provide corroboration of Exhibit C. I agree, only a legal piece of evidence could be corroboration of another legal evidence. Since Evidence Act, 2011, in Sections 39 (d) and 41 thereof, permits the PW.1 to tender Exhibit 03, even though he is not the maker; Exhibit D3 tendered in evidence through the PW.1 is a piece of legal evidence, not hearsay, admissible in evidence by law. Sections 39(d) and 41 of the Evidence Act provide: 39. Statements, whether written or oral, of facts in issue or relevant facts made by a person – (d) whose attendance cannot be produced without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are admissible under Sections 41. A statement is admissible when made by a person in the ordinary course of business, and in particular when it consists of any entry – made by him in the ordinary of business, or in the discharge of a professional duty, – provided that the maker made the statement contemporaneously with the transaction recorded or so soon thereafter that the Court considers it likely that the transaction was at the time still fresh in his memory. Exhibits D1 – D3 were tendered through the PW.1, the Investigating Police Officer (IPO). He took the corpse of the deceased to Lagos State University Teaching Hospital (LASUTH) for autopsy. The coroner forms, and the autopsy report by the pathologist constitute Exhibits D1 – D3. The autopsy report is Exhibit D3. The prosecution’s case suffered several adjournments because of the inability of the prosecutor to secure attendance of witnesses, including the pathologist who made Exhibit D3 “in the discharge of a professional duty”. These facts satisfy the procedure adopted by the trial Court by which it permitted of the PW.1, the IPO, tendering Exhibit D3 (even though he is not the maker) as part of his investigatory function. The procedure is sanctioned by Sections 39(d) and 41 of the Evidence Act. Exhibit D3 is therefore a legal evidence that can corroborate another legal evidence. This Court, approving of this procedure in EHOT v. STATE (1993) 5 S.C.N.J. 65; (1993) 4 N.W.L.R. (Pt. 290) 644, held that a medical report can be tendered and admitted in evidence through the IPO, and relied upon without calling the medical doctor who prepared it. The general rule enunciated in SUBRAMANIAN v. PUBLIC PROSECUTOR (1956) 1 W.L.R. 956 at 969 cited with approval in ODOGWU v. STATE (2013) 14 N.W.L.R.(Pt.1373) 74 at 103 that “Evidence of a Statement made by a person who is not himself called as a witness may or may not be hearsay” has its limitations. Sections 39(d) and 41 of Evidence Act have contracted the scope of the rule. PER EJEMBI EKO, J.S.C.
CIRCUMSTANCES WHERE THE SUPREME COURT WILL INTERFERE WITH CONCURRENT FINDINGS OF FACT MADE BY LOWER COURTS
I agree with the learned Counsel for the Respondent that this Court will only disturb concurrent findings of fact by the trial Court and the intermediate Court where either the findings of fact are perverse; or when the findings are not founded on legal evidence; or where the lower Courts took into consideration or relied upon extraneous matters; or where a miscarriage of justice has been occasioned: ENAG v. STATE (1981) 11-12 SC 25; ATOLAGBE v. SHORUN (1985) 1 N.W.L.R. (Pt. 2) 360; (1985) 4 – 5 SC 250; ADIMORA v. AJUFO (1988) 3 N.W.L.R. (Pt. 80) 1; OKULATE v. AWOSANYA (2000) 1 W.R.N. 65; BABATUNDE v. STATE (2013) 4 W.R.N. 1 at 22. PER EJEMBI EKO, J.S.C.
MEANING OF THE WORD “NEGLIGENCE”
Negligence, according to the Oxford Advanced Learner’s Dictionary, is the failure to give enough care or attention. Negligence connotes lack of proper care and attention. It is a careless lack of proper conduct. In OGBIRI & ANOR v. NIGERIA AGIP OIL CO. LTD (2010) L.P.E.L.R.- 4586(CA), I stated, relying on ODINAKA v. MOGHALU (1992)4 N.W.L.R. (Pt. 233) 1 at 15; OJO v. GHARORO (2005) 18 L.R.C.N. 1652 at 1713 – 1713, that generally, negligence is an omission or failure to do something which a reasonable and prudent man, under similar circumstances, would not do. See also RABIU HAMZA v. PETER KURE (2010) 10 N.W.L.R. (Pt. 1203) 630 at 646 per Muhammad, JSC. Negligence is any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. The term denotes culpable carelessness: Black’s Law Dictionary, page 1133 9th Ed. PER EJEMBI EKO, J.S.C.
CIRCUMSTANCE WHERE A PERSON WHO DISCHARGES A FIREARM UNINTENTIONALLY AND WITHOUT ATTENDANT CRIMINAL MALICE NEGLIGENCE, WILL NOT BE EXEMPTED FROM CRIMINAL RESPONSIBILITY BOTH FOR THE FIRING AND FOR ITS CONSEQUENCES
I do not think SOLOMON ADEKUNLE v. STATE (2006)14 N.W.L.R. (Pt. 1000) 717 holding at 735 thereof that “the law is trite that where a person discharges a firearm unintentionally and without attendant criminal malice negligence, he will be exempted from criminal responsibility both for the firing and for its consequences” avails the Appellant given the peculiar circumstances of this case. The statement made on authority of IROMANTU v. STATE (1964) 1 ALL N.L.R. 311 would only be relevant if there was no concurrent finding of criminal negligence, or recklessness on the part of the Appellant. In the instant case, the Appellant cocked the riffle in the manner so dangerous and in the process, and according to him, his hand inadvertently pressed the trigger; and that the gun went off and the bullet discharged therefrom instantly killed the deceased on the spot. Thus, as this Court stated in AMAYO v. STATE (2001) 18 N.W.L.R. (Pt. 745) 251 at 285 this accused person “is guilty if it is proved that he intentionally did an act which was unlawful and dangerous and that the act inadvertently caused death” in that wise, “it is unnecessary to prove that (he) knew that his act was unlawful and dangerous”. The concurrent findings of fact, not perverse, leave no doubt that the Appellant handled the riffle, a weapon very dangerous in itself, in a manner very reckless and dangerous, and it resulted in the death of the deceased. The law imposes a clear duty on any person handling a firearm, as the riffle was, to ensure that he will not endanger any other person. Ekundayo, J., made this point, which cannot easily be glossed over, in THE STATE v. BELLO AYINDE (1975) N.N.L.R 38. PER EJEMBI EKO, J.S.C.
WHETHER IT IS NOT EVERY SLIP OR ERROR THAT WOULD CAUSE A REVERSAL OF AN EARLIER DECISION
The Court of Appeal going along other findings of the Court of trial however found that it was only Exhibits A and B that were wrongly relied upon by the trial Court as the makers of those Exhibits A and B were not called to testify and PW1, not the right person to tender them. The Court below was of the firm view that the error in relying on them did not impugn the integrity of the prosecution’s case as the error lacked substantiality to affect the outcome of the decision. That position taken by the Court below is to underscore the stance behind the principle that it is not every slip or error that would cause a reversal of an earlier decision. See Bayol v Ahemba (1999) 10 NWLR (Pt. 623) 381. PER MARY UKAEGO PETER-ODILI, J.S.C.
POSITION OF THE LAW AS REGARDS WHEN THE OFFENCE OF MANSLAUGHTER WILL BE ESTABLISHED
A brief take into what transpired in the trial Court shows that the appellant in his examination-in-Chief admitted corking his rifle thus corroborating the content of his Confessional Statement, Exhibit C and so satisfied an essential element of the offence of manslaughter in line with the provisions of Section 317 of the Criminal Code which provides that a person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter. The situation was well captured in the case of Egbirika v The State (2014) 4 NWLR (Pt. 1398) 558 where this Court held that for a killing to amount to manslaughter, it must have the following components:- i. Be an unauthorized or unjustified or not excused. ii. It must have resulted from the direct or indirect act of the accused by the unlawful act of the accused person; iii. Link the death of the deceased to the act of the accused. From the above, it can be seen that the situation took the facts of this case into the consideration Section 315 which provides that any person who unlawfully kills is guilty of an offence which is called murder or manslaughter, according to the circumstances of the case. It is those prevailing circumstances in the instant matter that took the case out of murder but to situate it in manslaughter since the absence of mens rea operating herein created the difference. See Section 316 of the Criminal Code; State v Rabiu (2013) 2-3 MISC (Pt.1) 100 at 142 per Ngwuta JSC. PER MARY UKAEGO PETER-ODILI, J.S.C.
JUSTICES
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
Between
- C. ADEUSI ADESINA Appellant(s)
AND
THE PEOPLE OF LAGOS STATE Respondent(s)
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): At all material times to the charge the Appellant was a Police Constable. On 27th November, 2008, he was posted to the beat at Apogbon Blackspot, Lagos on a “stop and search” operation. A lorry driven by one Dauda Isiaka Akao came to the said Apogbon Blackspot. The Appellant claimed that the said Dauda Isiaka Akao refused to stop the truck at a check-point and that, in order to compel the said Dauda Isiaka Akao to stop his truck for a check, he cocked his riffle, pointing it in the direction of the said driver; and when the driver, Dauda Isiaka Akao, tried to struggle with him to take the riffle, he accidentally touched the trigger. The riffle fired and the bullet hit the driver. Dauda Isiaka Akao, hereinafter called “the deceased”, died instantly on the spot. There is no dispute about his death.
The Appellant was on 27th November, 2008, arrested for the unlawful killing of the deceased. He was on 21st September, 2009, arraigned before the High Court of Lagos State (Coram: Oluwayemi, J) on a one count charge of manslaughter contrary to Section 317 of the Criminal Code Law, Cap 17
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Laws of Lagos State, 2003. He was convicted for manslaughter after trial and sentenced to 14 years imprisonment.
The prosecution posited that the Appellant fired the fatal shot that released the bullet that hit and killed the deceased recklessly. On his part, the Appellant maintained that he merely shot into the air to compel the deceased driver to stop. He made extra-judicial statement, Exhibit C, that is confessional. The medical report, Exhibit D3, confirmed the cause of death to be bullet wound.
The learned trial judge made the following findings of fact in his final judgment, at pages 157-158 of the Record. That is
“By Exhibit C, the defendant Adeusi Adesina admitted after being cautioned in his statement recorded by PW.1 and signed by the Defendant on the 28/11/08 that there was no quarrel between him and the deceased lorry driver. He admitted further that the deceased did not utter a word to him before his hand touched the trigger which released the shot that killed the driver it is trite that the free and voluntary confession by an Accused is sufficient to sustain a conviction. The statement of the defendant is relevant and
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admissibility against him particularly where no objection is raised to the admissibility… there is no evidence on ground depicting that the life of the defendant was in danger to warrant the protection of same by corking his gun on that fateful day.”
These findings of fact formed the basis of the trial Court’s conviction of the Appellant. Aggrieved thereby, the Appellant appealed, unsuccessfully, to the Court of Appeal, Lagos (the Lower Court).
The Lower Court affirmed the conviction of the Appellant by the trial Court. It stressed the Appellant’s recklessness in the handling of his riffle in upholding the conviction of the Appellant for manslaughter, thus at page 210 of the record:
“In this case, the appellant admitted he fired the shot that killed the deceased. DW.2 who is also a policeman who confirmed that he shot and killed the deceased. The Appellant being a policeman knows the consequences of corking his riffle in the circumstances he found himself when he fired a shot that faithful day; … thus, the appeal lacks merit; it fails and is hereby dismissed. I affirm the conviction and the sentence imposed on the Appellant by the Lower Court.”<br< p=””
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This appeal is therefore, against the concurrent findings of fact, that is the reckless handling of firearm by the Appellant resulting in the death of the deceased. It was submitted for the Appellant that he cocked his riffle because he thought, by the conduct of the deceased; that is, driving through the checkpoint and refusing to stop for check, that his life was in danger. The Appellant’s attempt to plead self-defence was not also successful. The two Courts below dismissed the defence; part of which was that the deceased driver struggled with him to retrieve his cocked riffle, whereupon it accidentally discharged the fatal bullet that killed the deceased. This plea, rightly dismissed by the two Courts below, will not absolve the Appellant, on a charge of manslaughter under Section 317 of the Criminal Code. The unassailable concurrent findings of fact had found the Appellant culpable for his reckless conduct, which he admitted, of cocking the riffle and directing it at the deceased while his finger was on the trigger, who had come down from the lorry in obedience to the Appellants command.
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He was handling a dangerous weapon. Part of his convoluted testimony that did not impress the two Courts below, at page 134 of the Record, is –
I was at front of the lorry while the two Mobile (policemen were on) the two sides. As they were telling the driver to (park), the driver refused, he kept going. At that point I code myself. When the driver notice that I want (sic – had) corked the (riffle), he stopped. When the motor parked, we realised that there were 3 officers in the vehicle. Only two people follow us …. The driver refused to come. I ordered him to come down. When he realised that I was alone with him, he got down started to drag my riffle. The bullet hit the driver and he fell down.
The DW.2 seems to contradict him. He testified that when they “found (him) behind the counter” at the police station, “he (the Appellant) said he fired somebody”. On this piece of evidence, the learned counsel for the Respondent submitted, with some justification, that the Appellant, in the words of Ngwuta, JSC in STATE v. RABIU (2013) 2 – 3 M.J.S.C (Pt. 1) 100 at 142, was one of the “Trigger happy Policeman with itching fingers.”
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From the testimony of the Appellant, as DW.1, which testimony was corroborated by the DW.2, there is no doubt that the fatal bullet that killed the deceased was fired from his riffle. While he postured earlier suggesting that he cocked his riffle in self-defence, it appears his defence really was accidental discharge following the alleged struggle he had with the deceased over the riffle. His admission to the DW.2 that “he fired somebody” does not advance that line of defence, as it tends to contradict the Appellant.
In Exhibit C, the Appellant confessed to his recklessness. He stated therein that the deceased drove his vehicle and obstructed the traffic, and that he (the deceased) used the lorry to push him, and that at this juncture:
I corked my riffle. On noticing that I have corked my riffle, the driver parked and came down. As he was coming down from the lorry, I decided to bring the already corked riffle which was already muzzled up, down. Suddenly my hand entered the trigger and it fired and shot the driver in his stomach.
The DW.2’s evidence that the Appellant admitted to him at the Police Station that he “fired somebody” corroborated Exhibit C.
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On the fact that he handled the riffle from which the bullet that hit the deceased was fired and also as to the cause of the death of the deceased, Exhibit D3 provided sufficient evidence in corroboration of Exhibit C that the death of the deceased was as a result of bullet wound.
Appellant complains, inter alia, that Exhibit D3 being hearsay (as it was not tendered by the maker, but the PW.1); it could not provide corroboration of Exhibit C. I agree, only a legal piece of evidence could be corroboration of another legal evidence.
Since Evidence Act, 2011, in Sections 39 (d) and 41 thereof, permits the PW.1 to tender Exhibit 03, even though he is not the maker; Exhibit D3 tendered in evidence through the PW.1 is a piece of legal evidence, not hearsay, admissible in evidence by law. Sections 39(d) and 41 of the Evidence Act provide:
39. Statements, whether written or oral, of facts in issue or relevant facts made by a person –
(d) whose attendance cannot be produced without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are admissible under Sections
41. A statement is admissible when made by a person in the ordinary course of business,
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and in particular when it consists of any entry – made by him in the ordinary of business, or in the discharge of a professional duty, – provided that the maker made the statement contemporaneously with the transaction recorded or so soon thereafter that the Court considers it likely that the transaction was at the time still fresh in his memory.
Exhibits D1 – D3 were tendered through the PW.1, the Investigating Police Officer (IPO). He took the corpse of the deceased to Lagos State University Teaching Hospital (LASUTH) for autopsy. The coroner forms, and the autopsy report by the pathologist constitute Exhibits D1 – D3. The autopsy report is Exhibit D3. The prosecution’s case suffered several adjournments because of the inability of the prosecutor to secure attendance of witnesses, including the pathologist who made Exhibit D3 “in the discharge of a professional duty”. These facts satisfy the procedure adopted by the trial Court by which it permitted of the PW.1, the IPO, tendering Exhibit D3 (even though he is not the maker) as part of his investigatory function. The procedure is sanctioned by Sections 39(d) and 41 of the Evidence Act.
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Exhibit D3 is therefore a legal evidence that can corroborate another legal evidence. This Court, approving of this procedure in EHOT v. STATE (1993) 5 S.C.N.J. 65; (1993) 4 N.W.L.R. (Pt. 290) 644, held that a medical report can be tendered and admitted in evidence through the IPO, and relied upon without calling the medical doctor who prepared it. The general rule enunciated in SUBRAMANIAN v. PUBLIC PROSECUTOR (1956) 1 W.L.R. 956 at 969 cited with approval in ODOGWU v. STATE (2013) 14 N.W.L.R.(Pt.1373) 74 at 103 that “Evidence of a Statement made by a person who is not himself called as a witness may or may not be hearsay” has its limitations. Sections 39(d) and 41 of Evidence Act have contracted the scope of the rule.
Apart from Exhibit D3, the PW.1 testified, unchallenged, that “the deceased was hit at the ribs”. He took the corpse of the deceased to LASUTH. He had opportunity to view the corpse physically. In Exhibit C, the Appellant averred that when his hand touched the trigger of the riffle, the gun went off and the deceased was shot at the stomach. On oath the Appellant, as DW.1, testified, inter alia, that “the bullet hit the (deceased) driver and he fell down.”
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All these pieces of evidence amply and/or sufficiently support the concurrent findings of fact by the two Courts below.
I agree with the learned Counsel for the Respondent that this Court will only disturb concurrent findings of fact by the trial Court and the intermediate Court where either the findings of fact are perverse; or when the findings are not founded on legal evidence; or where the lower Courts took into consideration or relied upon extraneous matters; or where a miscarriage of justice has been occasioned: ENAG v. STATE (1981) 11-12 SC 25; ATOLAGBE v. SHORUN (1985) 1 N.W.L.R. (Pt. 2) 360; (1985) 4 5 SC 250; ADIMORA v. AJUFO (1988) 3 N.W.L.R. (Pt. 80) 1; OKULATE v. AWOSANYA (2000) 1 W.R.N. 65; BABATUNDE v. STATE (2013) 4 W.R.N. 1 at 22.
I do not think SOLOMON ADEKUNLE v. STATE (2006)14 N.W.L.R. (Pt. 1000) 717 holding at 735 thereof that “the law is trite that where a person discharges a firearm unintentionally and without attendant criminal malice negligence, he will be exempted from criminal responsibility both for the firing and for its consequences” avails the Appellant given the peculiar circumstances of this case.
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The statement made on authority ofIROMANTU v. STATE (1964) 1 ALL N.L.R. 311 would only be relevant if there was no concurrent finding of criminal negligence, or recklessness on the part of the Appellant. In the instant case, the Appellant cocked the riffle in the manner so dangerous and in the process, and according to him, his hand inadvertently pressed the trigger; and that the gun went off and the bullet discharged therefrom instantly killed the deceased on the spot. Thus, as this Court stated in AMAYO v. STATE (2001) 18 N.W.L.R. (Pt. 745) 251 at 285 this accused person “is guilty if it is proved that he intentionally did an act which was unlawful and dangerous and that the act inadvertently caused death in that wise, “it is unnecessary to prove that (he) knew that his act was unlawful and dangerous”. The concurrent findings of fact, not perverse, leave no doubt that the Appellant handled the riffle, a weapon very dangerous in itself, in a manner very reckless and dangerous, and it resulted in the death of the deceased.
The law imposes a clear duty on any person handling a firearm, as the riffle was, to ensure that he will not endanger
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any other person. Ekundayo, J., made this point, which cannot easily be glossed over, in THE STATE v. BELLO AYINDE (1975) N.N.L.R 38. This Appellant was criminally negligent in his handling of the riffle he had in the night of 27th November, 2008.
Negligence, according to the Oxford Advanced Learner’s Dictionary, is the failure to give enough care or attention. Negligence connotes lack of proper care and attention. lt is a careless lack of proper conduct. In OGBIRI & ANOR v. NIGERIA AGIP OIL CO. LTD (2010) L.P.E.L.R.- 4686(CA), I stated, relying on ODINAKA v. MOGHALU (1992)4 N.W.L.R. (Pt. 233) 1 at 15; OJO v. GHARORO (2006) 18 L.R.C.N. 1652 at 1713 – 1713, that generally, negligence is an omission or failure to do something which a reasonable and prudent man, under similar circumstances, would not do. See also RABIU HAMZA v. PETER KURE (2010) 10 N.W.L.R. (Pt. 1203) 630 at 646 per Muhammad, JSC. Negligence is any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. The term denotes culpable carelessness: Black’s Law Dictionary, page 1133 9th Ed.
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I have no cause, therefore to disturb the concurrent findings of fact in support of the conviction of the Appellant for manslaughter under Section 317 of the Criminal Code of Lagos State. The danger of causing death or grievous hurt to a human being was apparent from the Appellant’s handling of the riffle at the material time. It infact caused the death of the deceased. I find no substance in this appeal. It is, accordingly dismissed in its entirety. The decision of the lower Court in appeal No. CA/L/752/2011, affirming the conviction of the Appellant by the trial Court in the information No. LCD/69/2009 is hereby affirmed. Appeal dismissed.
IBRAHIM TANKO MUHAMMAD, J.S.C.: This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on the 3rd day of June, 2014 in which it upheld the judgment of the High Court of Lagos State, delivered on the 1st day of December, 2010.
I have had the privilege of reading before now the judgment of my learned brother Eko, JSC. I agree with his reasoning and conclusion that the appeal be dismissed for lacking in merit. I too dismiss the appeal.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned
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brother, Ejembi Eko and to register my support in the reasonings from which the decision was arrived at, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal Lagos Division or lower Court or Court below, Coram: Amina Adamu Augie JCA (as he then was), Chinwe Eugenia Iyizoba, S. C.Oseji JJCA, which judgment was delivered on the 3rd June, 2014 upholding the judgment of the High Court of Lagos State per D. O. Oluwayemi J., delivered on the 1st December, 2010 wherein the appellant was convicted of the offence of manslaughter and sentenced to fourteen (14) years imprisonment.
The facts leading to this appeal are well captured in the lead judgment and I see no reason to repeat them here except circumstances warrant a reference to any part thereof.
On the 25th day of October, 2018 date of hearing, learned counsel for the appellant, Ikenna Okoli Esq., adopted the brief of argument of the appellant filed on 13th April, 2016 and in which was crafted a sole issue, viz: –
Whether the Court of Appeal was right in upholding the trial Court’s conviction of the appellant of the offence of manslaughter.
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Learned counsel for the respondent, Toyin Bashorun adopted the brief of argument filed on 5th May, 2016 and in which was identified a single issue for determination which is as follows:-
Whether or not this Honourable Court will disturb a concurrent finding of the two Courts in the face of a clear confession (admission) which was found to have been corroborated by untainted evidence.
The simply crafted issue of the appellant is suitable for our purpose in the determination of the appeal and I shall use it.
SOLE ISSUE
Whether the Court of Appeal was right in upholding the trial Court’s conviction of the appellant of the offence of manslaughter.
Learned counsel for the appellant submitted that it is the duty of the prosecution to adduce sufficient evidence in proof of the offence of manslaughter and the appellant should be exculpated from criminal responsibility for the death of the deceased by virtue of the Criminal Code Law Cap. C.17 Laws of Lagos State, 2003.
That the Court below fell into the same error made by the trial Court in relying on the Confessional Statement of the appellant (Exhibit C) which was not corroborated by any credible evidence.
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He cited Section 317 of the Criminal Code Law Cap. C 17 Vol. 2 Laws of Lagos State, 2003; Chukwu v State (2013) 4 NWLR (Pt. 1343) 1 at 19; Amayo v State (2001) 18 NWLR (Pt. 745) 251 at 285; Solomon Adekunle v The State (2006) 14 NWLR (Pt. 1000) 717 at 735; Apugo v The State (2006) 7 SC (Pt.11) 207 at 215; Odogwu v State (2013) 14 NWLR (Pt.1373) 74 at 103.
For the respondent it was contended that this Court will only disturb the concurrent findings of the trial Court and the lower Court where their decisions are found to be perverse which is not the case in the matter at hand. He cited Babatunde v State (2013) 4 WRN 1 at 22; Atolagbe v Shorun (1985) 1 NWLR (Pt. 2) 360; Adimora v Ajufo (1988)3 NWLR (Pt. 80) page1; Okulate v Awosanya (2000) 1 WRN 65; Enang v Adu (1981) 11-12 SC 25.
That with the Confessional Statement of the appellant and medical report Exhibits D3 the conviction of the appellant was sustained. He referred to Egbirika v State (2014) 4 NWLR (Pt. 1398) 558.
The contending postures of the two sides of this appeal are, for the appellant that the Court of Appeal was wrong in affirming the trial Court’s conviction of the
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appellant of the offence of manslaughter and therefore the need for the Supreme Court’s intervention to upset the concurrent findings of facts and conclusion of the two lower Courts. The other side of the posture being that of the respondent to the effect that the basis for such intervention by an appellate Court such as the Apex Court does not exist herein.
The lower Court Per A. A. Augie, JSC (as he then was stated thus: –
“In this case, the appellant admitted he fired the shot that killed the deceased. DW2 who is also a police man who confirmed that he shot and killed the deceased. The appellant being a police man knows the consequences of corking his rifle in the circumstances he found himself when he fired a shot that fateful day; … thus the appeal lacks merit; it fails and is hereby dismissed. I affirm the conviction and the sentence imposed on the appellant by the lower Court.”
The trial Court’s decision which was affirmed by the Court of Appeal concluded as follows:
“By Exhibit C, the defendant Adeusi Adesina admitted after being cautioned in his statement recorded by PW1 and signed by the Defendant on the 28th of November, 2008
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that there was no quarrel between him and the deceased lorry driver. He admitted further that the deceased did not utter a word to him before his hand touched the trigger which released the shot that killed the driver… it is trite that a free and voluntary confession by an accused is sufficient to sustain admissible against him particularly where no objection is raised to the admissibility… there is no evidence on ground depicting that the life of the defendant was in danger to warrant the protection of same by corking his gun on that fateful day.” (Pages 157-158 of the records of proceedings).
Those findings concurrently made for which this Court is called upon by the appellant to disturb. Before returning into the arena to do what the appellant is seeking or to take the stance posited by the respondent on the ground that the circumstances for such an intervention do not apply, I shall refer to the Policy Position of this Court on such a call. The Supreme Court has indeed in a Plethora of cases stated what should first be available for the appellate Court or even the Apex Court to disturb concurrent findings. Any of those happenings that could make
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the appellate reverse such findings are stated hereunder thus: –
1.The findings of those Courts are perverse.
2. The findings have not been founded on legal evidence before the trial Court.
3. Where it is shown that the lower Courts relied upon or took into account extraneous matters which ought not to have been taken into account.
4. Where miscarriage of justice has been occasioned. See Babatunde v State (2013) 4 WRN 1 at 22; Atolagbe v Shorun (1985) 1 NWLR (Pt. 2) 360; (1985) 45 SC 250; Adimora v Ajufo (1988) 3 NWLR (Pt. 2) 360; (1985) 45 SC 250; Adimora v Ajufo (1988) 3 NWLR (Pt. 80) 1; Okulate v Awosanya (2000) 1 WRN 65; Enang v Adu (1981)11-12 SC 25.
In applying the principle laid down in Babatunde v. State (supra) to the case in hand, it is to be noted that both Courts below considered the evidence of PW1, the investigating Police Officer, the only prosecution witness alongside the Exhibits A-D which the trial Court relied upon. The Court of Appeal going along other findings of the Court of trial however found that it was only Exhibits A and B that were wrongly relied upon by the trial Court as the makers of those Exhibits A
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and B were not called to testify and PW1, not the right person to tender them. The Court below was of the firm view that the error in relying on them did not impugn the integrity of the prosecution’s case as the error lacked substantiality to affect the outcome of the decision. That position taken by the Court below is to underscore the stance behind the principle that it is not every slip or error that would cause a reversal of an earlier decision. See Bayol v Ahemba (1999) 10 NWLR (Pt. 623) 381.
Again, to be said, the evidence of PW1 as the IPO who visited the scene of crime, taken together with the Confessional Statement, Exhibit C and the medical report, Exhibit D3 were sufficient to sustain the conviction. This in line with what has become trite in law that a Confessional Statement such as that of the appellant, voluntary, direct and relevant can be acted upon by the Court and that situation taken with the medical report Exhibit D3 which showed that it was the gunshot wounds made by the appellant that caused the death of the deceased.
Also, for added measure, a medical report needs not be tendered by the medical doctor who made it but is allowable and
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admissible through the investigating Police Officer as has happened in this instance. See Fatai v State (2013) MJSC (Pt. 1) page 145 at 160-161; Ehot v State (1993) 4 NWLR (Pt. 290) 644; Sections 39 and 41 of the Evidence Act which Sections I shall quote hereunder thus: –
Section 39. Statement, whether written or oral of facts in issue or relevant facts made by a person:
(d) Whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are admissible under Sections 40 and 50.
Section 41. A statement made by a person in the ordinary course of business and in particular when it consists of any entry or memorandum made by him in books electronic device kept in the ordinary course of business, or in the discharge of a professional duty,… provided that the maker made the statement contemporaneously with the transaction recorded or so soon thereafter that the Court considers it likely that the transaction was at that time fresh in his memory.
A brief take into what transpired in the trial Court shows that the appellant in his examination-in-Chief admitted
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corking his rifle thus corroborating the content of his Confessional Statement, Exhibit C and so satisfied an essential element of the offence of manslaughter in line with the provisions of Section 317 of the Criminal Code which provides that a person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter. The situation was well captured in the case of Egbirika v The State (2014) 4 NWLR (Pt. 1398) 558 where this Court held that for a killing to amount to manslaughter, it must have the following components:-
i. Be an unauthorized or unjustified or not excused.
ii. It must have resulted from the direct or indirect act of the accused by the unlawful act of the accused person;
iii. Link the death of the deceased to the act of the accused.
From the above, it can be seen that the situation took the facts of this case into the consideration Section 315 which provides that any person who unlawfully kills is guilty of an offence which is called murder or manslaughter, according to the circumstances of the case. It is those prevailing circumstances in the instant matter that took the case out
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of murder but to situate it in manslaughter since the absence of mens rea operating herein created the difference. See Section 316 of the Criminal Code; State v Rabiu (2013) 2-3 MISC (Pt.1) 100 at 142 per Ngwuta JSC.
In the final analysis, clearly nothing has been put forward by the appellant to dispel what has been effectively established by the prosecution that is to say, the appellant inspite of carrying a dangerous weapon with capacity to end life, set out to intimidate whoever was at the other end, recklessly corked his rifle and not being in a position to recall the bullet with his fingers placed on the trigger set off even though unintentionally the outcome was .predictable which is the loss of the life of the deceased lorry driver. That appellant did not intend either to kill or wound the deceased would not change the fact that the conditions on which the offence of manslaughter is built were well in place.
In conclusion, the appeal lacks merits and going along with the better reasoned lead judgment, I dismiss it.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Ejembi Eko, JSC just delivered. I agree that the appeal lacks merit and should be dismissed.
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The appellant made a confessional statement, Exhibit C, which was tendered and admitted in evidence without objection. Therein the appellant stated inter alia:
“On 27/11/2008, I was posted to Apongbon Pin-down point on stop and search together with Sgt. Joseph Ayeni, Cpl, Peter Abang, PC Fatimotu Olatunp, PC Bunrni Agunbiade and four mobile men of Mopol 2 Keffi, Lagos. On arrival at the point and at about 2030hrs, one 911 lorry obstructed the traffic. I then asked him to move the vehicle off the road to enable free flow of traffic. He… used the lorry to push me. At that junction, I cocked my rifle. On noticing that I have cocked my rifle, the driver parked off the road, I then told him to come down. As he was coming down from the lorry, I decided to bring the already cocked rifle which was muzzled up, down. Suddenly my hand entered the trigger and it fired and shot the driver in his stomach. Immediately, my team leader Sgt. Joseph Ayeni noticed it, he came to disarm me and took me to the station to inform the D.P.O.
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Sincerely speaking, there was no quarrel between me and driver. He was only stubborn when I told him to park off the road but he did not utter a word to me. He also parked off the road when he noticed that I have cocked my riffle and muzzled up. He also came down from the vehicle when I told him to do so.
It is just unfortunate that my finger entered the trigger unnoticed.”
The sole issue for determination in this appeal is whether the lower Court was right in upholding the conviction of the appellant for manslaughter.
Learned counsel for the appellant relies, inter alia on Section 24 of the Criminal Code, for the contention that the shooting was an accident. He also submitted that the appellant cocked his gun because he thought his life was in danger.
Firstly, the appellant’s statement Exhibit C, was admitted in evidence without objection. It is a clear positive and unequivocal admission that it was the act of the appellant that killed the deceased. The Court, if it believes that a confessional statement was voluntarily made and is satisfied that it is true, is entitled to base a conviction on it. See: Fabiyi Vs The State (2015) LPELR – 24834 SC 21-22 E -A. Ikpasa Vs The State (1981) 9 SC 7; Adeyemi Vs The State (1991) 6 NWLR (Pt. 195) 1.
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It is evident from Exhibit C that the deceased offered no provocation to the appellant nor was there any real or apparent danger to his life.
He stated clearly that as soon as he cocked his rifle, the deceased moved the lorry to the side of the road. Although he stated that a shot went off as he was muzzling down and hit the deceased in the stomach, it is clear that if the muzzle was facing downwards, the deceased would not have been shot in the stomach.
Besides, the appellant being a Police officer trained in the use of firearms, had a duty to handle his firearm with care and not recklessly as he did in this case. The police have a legal duty to protect the citizenry and to uphold law and order. Their training in the use of firearms is not for the purpose of recklessly intimidating members of the public at the slightest opportunity.
I am not persuaded to interfere with the very sound reasoning of the two lower Courts.
For these and the more detailed reasons eloquently stated in the lead judgment, I dismiss this appeal as lacking in merit and affirm the judgment of the lower Court.
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AMIRU SANUSI, J.S.C.: His Lordship Hon. Justice Ejembi Eko JSC obliged me with a copy of his lead Judgment in this appeal. On reading same, I find that the reason and conclusion reached therein, are in accord with mine that this appeal is bereft of merit and deserves to be dismissed. The appeal therefore fails and is accordingly dismissed by me.
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Appearances:
Ikenna Okoli, Esq. with him, C. Okpala, Esq.
For Appellant(s)
Toyin Bashorun, Esq.
For Respondent(s)
Appearances
Ikenna Okoli, Esq. with him, C. Okpala, Esq.For Appellant
AND
Toyin Bashorun, Esq.For Respondent
