OLALEKAN OMOLEYE v. THE STATE (2013)

OLALEKAN OMOLEYE v. THE STATE

(2013)LCN/6152(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of May, 2013

CA/L/810/2011

RATIO

CRIMINAL LAW AND PROCEDURE: WHEN THERE IS DOUBT IN THE MATTER OF THE PROSECUTION, IT MUST BE RESOLVED IN FAVOUR OF THE ACCUSED

PROOF BEYOND REASONABLE DOUBT: IMPLICATION

Proof beyond reasonable doubt is proof that precludes every reasonable hypothesis, except that which it lends to support, and it is proof which is wholly consistent with the guilt of the Defendant and inconsistent with any other natural conclusions.
Therefore, in a criminal trial, for evidence to warrant or shore up conviction, it must exclude beyond all reasonable doubt every other conceivable state of affairs, other than that of the guilt of the Defendant, as a Defendant shall be entitled to acquittal of crime charged, if conclusion for conviction is not the only reasonable interpretation of which the facts adduced against him are susceptible – UBANI v. STATE (2003) 4 NWLR (pt.809) 51 @ 64.Regarding the issue of defence of the Appellant (in this case SELF DEFENCE), decidedly, when an accused person pleads defence, the evidential burden lies on him. If he raised the special defence in his statement to the Police, the Police has a duty to investigate it. The accused person may also raise the special defence during his trial for the first time – IN EACH CASE, unless the Prosecution leads evidence in negation or in rebuttal thereof beyond reasonable doubt, any doubt created in the mind of the Court must be resolved in favour of the accused – WAKALA v. STATE (1991) 8 NWLR (Pt.211) 552 @ 562.PER RITA NOSAKHARE PEMU, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

OLALEKAN OMOLEYE Appellant(s)

AND

THE STATE Respondent(s)

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of Honourable Justice D. O. Oluwayemi of the High court of Lagos state delivered on the 2nd of March 2001 wherein he convicted the Appellant on the single count of murder, sentencing him to fourteen (14) years imprisonment thereby.
It is for the murder of one Wale Mogbojuri at the Tipper Garage Majidun, Ikorodu, Lagos on the 2nd of July 2004.
The Appellant OLALEKAN OMOYELE at the High Court of Lagos State, Ikeja Judicial Division was charged with a one count charge of murder contrary to Section 319(1) of the Criminal Code Cap C12, Vol. 2, Laws of Lagos State 2003 in that on or about the 2nd day of July 2004 at Tipper Garage, Majidun, Lagos, in the Ikeja Judicial Division, murdered one Wale Magbojun by stabbing him.
On the 24th day of November 2008, the Appellant pleaded not guilty to the charge – page 47 of the Record of Appeal.
SYNOPSIS OF FACTS
The Appellant and the deceased are first cousins. They worked together at Majidun River, Ikorodu, Lagos as sand loaders.
On the 1st of July 2004, the Appellant had a dispute with the deceased at their place of work at Majidun. The Appellant’s story is that at the heat of their dispute, the deceased Wale Mogbojuri threatened to kill him. That the deceased in fact on that day hit him on the head with a plank, which caused the Appellant to bleed profusely from his head. The Appellant was rushed to a chemist shop where he received first aid treatment.
On the 2nd of July 2004, the Appellant came to work as usual.
According to the prosecution, the Appellant stabbed the deceased with a knife three times. The deceased died on his way to Ikorodu General Hospital.
The Appellant was later arrested at Ibeshe where he ran to immediately after he stabbed the deceased. He was taken to Owutu police Station.
At the trial the prosecution called three witnesses PW1, PW2 and PW3 respectively, while the Appellant testified in his own defence and called no witness.
PW1 is the father of the deceased. He did not identify the corpse of his son.
PW2 is Mr. Yomi Ajoun, a mechanic. According to him, on the 2nd of July 2004 he was at the site working on sandloader at Mile 12, Majidun Ikorodu. There was a fight between the Appellant and the deceased, because the Appellant took the deceased’s work instrument.
The following day the deceased was relaxing with one Jayalanu when the Appellant brought out a knife and stabbed the deceased thrice on the “stomach at the back”. The deceased was rushed to Opeyemi Hospital which rejected him. On his way to Ikorodu General Hospital, he died and was confirmed dead there.
Under cross-examination, he said he was a mechanic by profession, but that when he needed money, he went for loading of sand. He said that the deceased used firewood to hit the Appellant on his head on the 1st of July 2009, and that the deceased paid for the treatment of Appellant’s injury on the head.
PW3 – Force No.144716 Sgt. Ademola Isijota, was attached to Homicide Section of State C.I.D. Panti, Yaba. He investigated the case, after it was transferred from Owutu Police Station to Panti Police Station.
He said he went to the scene of crime, obtained statements from the witnesses and the Appellant. He went to the General Hospital where, the corpse of the deceased was deposited. A post-mortem examination was performed on the body of the deceased, after which a report as to the cause of death of the deceased issued. He could not recover the knife allegedly used by the Appellant to stab the deceased, as it has been thrown away by the Appellant. He tendered Exhibit “B” which is the statement of the Appellant.
The Autopsy report was only tendered in Court for identification purposes.
Under cross-examination, PW3 said that Exhibit “B” was recorded by Late Inspector Alademoh, in his presence.
In the statement, the Appellant admitted stabbing the deceased and thereafter he threw away the knife.
The Appellant testified in Court on the 10th of May 2010 as DW1. He did say that on the 1st of July 2004, the deceased and himself, who are cousins had a fracas, as a result of which the deceased hit him with a stick. He fell down and his friend took him to the chemist where his bleeding head was treated. He went to his grandmother’s house to sleep.
On the 2nd of July 2010, that the deceased hit his shoulder twice with a stick. He used the knife for yam and fish. In order to avoid being hit a third time by the deceased, he used the knife to defend himself. He went home inform his brothers.
He did say that PW2 – Yomi Ajoun was not in the neighborhood. It was one Jagunjagun that took him to the chemist. As at the time he testified in Court on the 14th of May 2010, he had been in prison for six years. He ran to his sister’s place after the incident. He said that the deceased banged the wood on him twice and used the knife to defend himself.
The respective parties filed their written addresses, and at the end of the trial, before sentencing the Appellant, learned counsel for the Accused/Appellant pleaded for leniency (ALLOCUTUS) on behalf of him. Two reasons were given in the main
(d) That the Appellant had been in Police and Prison Custody since 2004 (About 7 years)
(b) The Appellant and the deceased were cousins.
The lower Court at pages 124-125 of the Record of Appeal did observe
“The Defendant in his evidence said that on the 11/7/2004 the deceased inflicted injury on his forehead with blood rushing out of his forehead and he was treated that day. That on the next day 2/7/2004, the deceased abused him, which resulted in a light and he used big plank to hit him twice and he was about to hit him the third time he then used a knife to defend himself.
From the record of Court, it is not reported anywhere that the Defendant sustained injury on the 2/7/2004 or that he was treated for such.
However, stabbing the Deceased to death cannot be said to be a reasonable necessary force to make effectual defence, against the assault. The defence of self defence put up by the Defendant cannot avail him.
In view of this, I therefore hold that the Prosecution has proved beyond doubt the guilt of the Accused in accordance with Section 138 of the Evidence Act Cap 112 Laws of the Federal Republic of Nigeria that the Defendant, Olalekan Omoyele is guilty of the offence of murder by causing the death of Wale Magbogin by stabbing on the 2nd day of July 2007. See the case of SHANDE v. THE STATE 2005 6 S.C. Part 2. Pg1 at 12.”
After considering the plea of allocutus and the evidence of PW1 Mr. Oluwatosin Magbojuri – father of the deceased, that they did not intend to prosecute this matter because the deceased and Defendant “are cousins” and will not like to lose two young boys, the lower court sentenced the Appellant to a prison term of 14 years on the 2nd of March 2011.
The Appellant is dissatisfied with the Judgment and being desirous of appealing same, filed a Notice of Appeal on the 27th of May 2011 with three (3) Grounds of Appeal – pages 127 – 128 of the Record of Appeal.
Simply put the Grounds of Appeal are:
Ground 1: “The learned trial Judge erred in law when she convicted the Appellant for the offence of murder.”
Ground 2: “The learned trial Judge erred in law when she hold that the Appellant’s defence of self defence did not avail him.”
Ground 3: “The Judgment of the learned trial Judge was against the weight of evidence.”
The Appellant filed its Brief of Argument on the 30th of September 2011. It is settled by A. C. Igboekwe Esq.
He proffered and distilled two issues for determination of this Appeal which are:
(1) “Whether from the facts and circumstances of this case, the prosecution proved its case beyond reasonable doubt by legally credible and admissible evidence” (Ground one)
(2) “Whether from the facts and circumstances of this case, the learned trial Judge was right in, holding that the defence of self defence did not avail the Appellant” (Ground two)
On his part the Respondent filed his Brief of Argument on the 22nd of June 2012. It is settled by Mrs. O. O. Ogungbesan, Director of Public Prosecution, Lagos State Ministry of Justice, Alausa, Ikeja, Lagos.
In it, she has proffered and distilled four issues for determination.
They are:
“Whether the Respondent proved the offence of Murder brought against the Appellant beyond reasonable doubt.”
“Whether the defence of self-defence raised by the Appellant can avail him in the circumstances of this case.”
(3) “Whether there is material contradiction in the evidence of the Respondent’s witnesses sufficient to create doubt in favour of the Appellant.”
(4) “Whether the lower Court properly evaluated the evidence of the Appellant before his conviction.”
The Appellant filed a reply brief on the 28th of June 2012.
The issues for determination of the respective parties seem to me to be the same, except for the third issue for determination of the Respondent which talks about material contradictions in the evidence of the prosecution witnesses. It would be right to conclude therefore that the Respondent essentially adopts the issues for determination proffered by the Appellant in this appeal.
On the 13th of February 2013, learned counsel for the respective parties adopted their Briefs of Argument. While the Appellant urged Court to dismiss the appeal, the Respondent urged Court to uphold the conviction and sentence of the Appellant.
Arguing Issue No.1, the Appellant had submitted that the evidence of the prosecution witnesses which the lower Court relied on in convicting the Appellant was legally inadmissible and unreliable evidence. First and foremost PW1, father of the deceased was not present when the alleged offence was committed. That the evidence of PW1 at page 47 of the Record of Appeal where he stated thus
“When I came home from work, they told me my child has died. They said Olalekan has stabbed him to death with dagger”
constitutes hearsay evidence. That PW1 never saw what happened between the Appellant and the deceased. He submits that it is trite that evidence of a statement made to a witness by a person who is not himself called as a witness may or may not, be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. Citing OJUKWU v. YAR’ADUA (2009) 12 NWLR Pt. 1154, Page 50.
He submits that, that piece of evidence is hearsay evidence which is inadmissible in law. He urges Court to expunge same, as reliance on that evidence by the lower Court occasioned a miscarriage of justice.
Submits that the evidence of PW2 Yomi Ajoun is contradictory, inconsistent and manifestly unreliable.
He submits that PW2’s statement to the Police is quite different from that which he told to Court. Referring to PW2’s statement to the Police, he said that
“…Lekan come from nowhere and used knife to stabbed (sic) Wale from behind and as soon as he stabbed him, Lekan took to his heel and self and David rushed Wale to a nearby hospital” – page 11 of the Record of Appeal.
But at the trial, PW2 did a somersault giving a different account of what took place on the 2nd of July 2004. But under cross-examination he stated thus
“He brought out a knife and stabbed the deceased three times. They did not say anything together between the hitting. I gave him money, one Mama and Wale personally gave Lekan money” – page 56 of the Record of Appeal.
The Appellant had argued, that this evidence was not denied, nor clarified during re-examination. That these two statements contradict themselves.
In one breath PW2 claimed that the Appellant ran away after stabbing the deceased. In another breath, he says himself gave the Appellant money after the stabbing. He queries, which of these statements can now be believed? That the law is settled that where the evidence of a key prosecution witness is inconsistent and contradicting, the Court must not act on such contradicting and inconsistent evidence to convict an accused person – citing OPARA v. STATE (2008) 9 NWLR Pt. 986 Page 508 particularly at page 527 paragraphs G – H.
That PW2 had in his extrajudicial statement to the Police said that he was not at the scene of the incident, when the deceased injured the Appellant on the 1st of July 2004 – page 11 of the Record of Appeal. At the trial however, he said that he was at the scene of crime when the incident took place on place on the 1st of July 2004.
Referring to the case of AUGUSTTNE DURU v. STATE (1993) 3 NWLR Part 281 page 283 at pages 290-297, he submits that the Apex Court had held here that “Where the evidence adduced by a witness in court is materially contradicting to his earlier statement to the Police, such a witness will be deemed unreliable and his evidence ignored”
Cites ONUOGU & ANR v. THE STATE (1974) NSCC 358; OKORO v. STATE (1998) 14 NWLR Pt.584 page 181.
Regarding PW3, Sgt. Ademola Isijota, a Police officer, he argues that he neither recorded the Appellant’s statement, nor was he the Police officer that investigated the case.
He submits that the Prosecution has failed to establish the guilt of the accused person beyond reasonable doubt, by credible and legally admissible evidence. There is doubt therefore as to whether the Appellant indeed committed the offence of murder, he submits.
He submits that where there are doubts in the case of the Prosecution, same shall be resolved in favour of the accused person ORJI v. STATE (2008) 10 NWLR Pt.1094 Pg.31; ONUBOLIU v. THE STATE (1974) 9. S.1 at 2; NAMSOH v. THE STATE (1993) 5 NWLR Pt. 292 Pg. 129.
He urges this Honourable Court to resolve these doubts in favour of the Appellant.
On Issue No.2, the Appellant submits that the defence of self defence put up by him avails him. That it was because the deceased was on the verge of smashing the plank on him the third time when the Appellant got hold of the knife that was being used to cook food a; their work site. In the heat of the fight and argument and to preserve his life, since the deceased had not only threatened to kill the Appellant, but was in fact in the process of killing him, the Appellant used the knife to defend himself against further violent and potentially fatal attack from the deceased – page 67 of the Record. Submits that the Appellant did not intend to kill the deceased.
That when he, at the trial did say that, he in an attempt to defend himself, and at the heat of the unprovoked violent attack on him by the deceased, picked up a knife lying at the site and hit the deceased which led to his death, the Prosecution did not controvert his piece of evidence by way of cross-examination. Therefore he submits, the defence of self defence will avail the Appellant.
He submits that the Appellant did not cause the fight with the deceased on the 2nd of July 2004.
In his statement to the Police, the Appellant stated
On the 2nd day of July 2004, I came to our place of work and sat under one tree after sometime Wale (the deceased) came and started again that he will kill me one day and from there we started to fight” – page 14 of the Record of Appeal.
He argues that the above clearly shows that the Appellant did not cause the fight with the deceased on the 2nd day of July 2004.
The evidence of the Appellant at the trial was as follows:-
“On the 2nd of July 2010 we are daily paid workers. I never knew Wale should had me in mind, he came and said he did not want to see me eye to eye. On the 2nd day Wale went to take stick and hit my shoulder twice I was going to tell the Elders at work that Wale has started again.
I used the knife for yam and fish. In order not to hit me the third time, I used the knife to defend myself.” – page 67 of the Record of Appeal
He submits that this piece of evidence is consistent with his earlier statement to the Police. Exhibit “B”. He stated in his statement to the Police inter alia as follows:
“On the 2nd day of July 2004, I came to our place of work and sat under one tree after sometime, Wale came and started again that he will kill me one day and from there we started to fight and as we were fighting I saw use knife very close to the bush. I took it and used it to stabbed him at his back and he fell down and blood started to gush out”
He argues that Exhibit “B” captions the fact that it was the threat by the deceased to kill the Appellant that led to the fight between the two of them which eventually resulted in the death of the deceased. According to the Appellant, it was the deceased threat to kill him that made him defend himself.
On the part of the Respondent, he submits that the defence of self-defence raised by the Appellant is an afterthought. This is because of the evidence of PW2, who said that the fight which ensued between the Appellant and the deceased took place on the 1st of July 2004. The Appellant however came on the 2nd of Jury 2004 to retaliate by stabbing the deceased.
He submits that if truly the deceased on the 2nd of July 2004 came to him where he was sitting under a tree with others, to forment trouble, whereby he took a knife to stab the deceased, he would have called any of the other workers to testify to this. But this he did not do.
He contends that even if the Appellant sustained injury at all, the force with which he retaliated is beyond the reasonable force required by law – SULE v. THE STATE (2007) LPELR CA/A/C2006, where inter alia it was held that
“a man is justified in using against an assailant, a proportionate amount of force in defence of himself or other persons whom he has under o duty to defend where he considers his life or such person’s lives to be in danger….”
He submits that “plea of private or self defence is predicated on the national principle of kill or be killed…”
He urges Court to hold that PW2’s statement to the Police is consistent with his testimony in the open Court to the extent that the Appellant stabbed the deceased on the 2nd of July 2004 when the deceased was sitting under a tree and without any provocation, not even altercation between the two of them. That PW2 stated that the Appellant came from behind the deceased and stabbed him twice on the stomach.
He submits that the act of the Appellant was not done during fighting nor was it done for the sole purpose of preserving the Appellant’s life.
He urges Court to disbelieve the evidence of the Appellant that he was sitting under the tree when the deceased approached him and started using a big plank to attack him and that he used the knife to defend himself on the 2nd of July 2004.
On the 3rd issue of the Respondent “whether there is contradiction in the statement of prosecution witnesses, as to make it unreliable for the lower Court to base its conviction on it, he submits that this Honourable Court is urged to discountenance the Appellant’s argument on this issue, as in the instant case, the alleged contradictions do not relate to material facts, and they are not fatal – ASHIRIIYU v. STATE (1987) 12 SC. 62 @ 70.
Issue No.4 in the Respondent’s issues for determination can safely be subsumed in Issue No.1 in the Appellant’s Brief of Argument.
So much for submission of learned counsel for the respective parties. Perhaps I should start, by saying unequivocally that as I perused the Record of Appeal, certain lapses on the part of the police, and the Prosecution came to my mind – both at the investigative stage and at the proceedings.
First and foremost, it seems to me that the Appellant’s statement to the Police was a confessional one. There is nothing to show that the Appellant was brought before a Superior Police Officer for the attestation of his statement to the Police. This constitutes a defect in the process of statement recording as regards confessional statements.
Secondly, medical report of the autopsy was tendered for identification purposes only “IDI”. Therefore we do not know who identified the deceased corpse and the cause of death of the deceased. This is because the evidence before court as to what part of the body the deceased was stabbed is questionable.
Section 319(1) of the Criminal Code Act of Lagos State 2004 is the punishment section for murder.
By section 315 of the criminal Code Act of Lagos State 2004, Murder is defined as
“A person who unlawfully kills another in any of the follow circumstances, that is to say inter alia
(1) If the offender intends to cause the death of the person killed, or that of some other person
(2) If the offender intends to do the person killed or to some persons some grievous harm
(g) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such d nature as to be likely to endanger human life…….
(4) ……….
(5) ……….
(6) ……….”
The bane of the offence of murder is the intention to kill.
Issue No.1. As earlier observed, I can safely say that Issue No.4 in the Respondent’s brief can be subsumed in Issue No.1 of the Appellant’s brief.
The law is elementary, that it is the duty of the Prosecution to prove the guilt of the accused person beyond reasonable doubt, and by credible, cogent and legally admissible evidence.
And where from the evidence adduced by the Prosecution, there exists any doubt, such doubt must be resolved in favour of the accused person. ORJI v. STATE (2008) 10 NWLR Part. 1094. Page 31; ONUBOGU v. THE STATE (supra).
To establish whether the Prosecution has been able to achieve this feat, is necessary to look at the entire evidence before court as adduced by the witnesses for the Prosecution shorn of PW1, the father of the deceased, whose evidence constitutes hearsay evidence and same ought to expunged and is hereby expunged.
PW2, had made a statement to the police. He is Yomi Ajoun. He did state that on the 1st of July 2004 the Appellant came to him to say that the deceased hit him on his forehead and himself and one David rushed him to a nearby chemist. The deceased paid for the treatment. He then went back to the Appellant and begged him to forgive the deceased because all of them are from the same place. The Appellant answered them that he had forgiven the deceased. But to his greatest surprise on the 2nd day of July 2004 he stated thus
“all of us were at Majidun where he used to load and dig, and to my surprise, Lekan came from nowhere and used knife to stab Wale from behind and as soon as he stabbed him, Lekan took to his heels and self and David rushed Wale to a nearby hospital known as Opeyemi…”
He testified at pages 53 of the Record of Appeal. Hear him
“On the 2/7/2004, the Defendant and one Jayalani and Wale were relaxing, then the Defendant brought out a knife and stabbed twice on the stomach at the back”
Under cross-examination he had this to say inter alia
“………. I was at the scene of crime”
At page 56 of the Record of Appeal PW2 continued his testimony inter alia
“At about 11am Lekan did not come to work, Wale remove his cloth then Lekan came in a machine, he was wearing a jalamia white. He brought out a knife and stabbed the deceased three times. They did not say anything together between the hitting”
Notably in PW2’s statement to the police, he did not state how many times the deceased was stabbed. In his statement, to the police he did not say what the Appellant was wearing on the fateful day. He said that the Appellant “came from nowhere and stab Wale from behind.”
In Examination-In-Chief, PW2 said the Appellant on the 2/7/2004, while relaxing with one Joyolani and Wale, brought out a knife and stabbed him twice on the stomach at the back. Then under cross-examination, he said at about 11am, Lekan did not come to work. Wale removed his cloth. Then Lekan came in a machine. He was wearing a jalamia white. He brought out a knife and stabbed the deceased three times.
With respect, these three versions of PW2 story are so grossly contradictory and indeed are at variance with themselves.
These questions are hanging
(1) How many of them were at the scene of the crime of the time the crime was allegedly committed.
(2) How many times did the Appellant stab the deceased (twice or thrice, if at all).
The term “stabbed him twice on the stomach at the back” is utterly vague. Is there any human stomach at the back?
(3) Was the Appellant relaxing with the deceased and PW2 or he came in a machine wearing a white jalamia?
There are more questions than answers
There is no medical report as to the cause of death, particularly in view of which part of the body, indeed and in fact, the deceased was stabbed. This constitutes a grave lacuna in the case of the Prosecution.
There is nothing on the face of the record to show whether the deceased was identified by anyone before post mortem examination (that is if there was any post mortem examination).
The Autopsy Report when tendered was tendered for identification purposes. Why was that? There was no explanation from the Prosecution.
Now let me take the evidence of PW3. Pages 59-61 of the Record of Appeal. He is Force No.144718 Sergent Ademola Isijota. Hear him
“…I know the Defendant. On the 8th day of July, 2004, I was on duty at Panti State C.I.D Homicide Section attached to Late Supol Ajagbobe when a case of Murder was transferred to the Panti from Owutu Police Station with the Defendant. On receipt of the case the father of the deceased volunteered statement. The Defendant was rearrested charged and continued in English Language. He volunteered his statement in English Language and he signed. On further investigation with Cpl Raphael now late he lead us to the scene of crime at Mojidun where they used to load sand.
At the scene of crime one Yomi and David who volunteered their statement. We later went to General Hospital where we saw the corpse of the deceased. Post Mortem was performed on the body of the deceased before a pathotogist. He issued o report as to the cause of death. The knife allegedly used by the deceased has been thrown away by the Defendant…”
Under Cross-Examination, he said
“Exhibit B was recorded by Late Inspector Alademoh. He wrote the statement in my presence.
Cpl. Raphael interrogated the Defendant. We continued and explained to him. We read the caution word to him and he signed before writing his statement.
In the statement, he admitted he stabbed the deceased and the knife was thrown away…”
A cursory look at Exhibit “B’ (statement of the Appellant) shows that it is one Cpl. Raphael Aladetoyinbo who recorded same on the 8th of July 2004.
Exhibit C-C5 are negatives of photographs and photographs of the deceased body. It is bloody.
The Appellant put up a defence of self-defence. It is he only who said in his statement of 8th July 2004, that a fight ensued on the 2nd of July 2004, as a result of which he defended himself by using a knife to stab the deceased.
I had earlier observed that the statement of the Appellant is confessional and even though in it he raised the issue of self-defence, that does not remove the fact that the statement is confessional and needed to be attested to by a superior police officer, as required by law.
The intention of the Appellant to kill the deceased has not been established, as there are so many contradictions in the evidence of the Prosecution witnesses i.e. PW2 and PW3.
That is even if the Appellant is telling lies as to the issue of self defence (and he is entitled to lie), in ONUOHA v. STATE (1989) 2 S.C. 115 at 124, Oputa, J.S.C. (as he then was) did observe
“If a trial Judge chooses to believe an impossible or improbable story, an Appellate Court has the duty to reverse any decision based on such belief.”
In C & C CONSTRUCTION CO. LTD v. OKHAI (2003) 16. NSCQR Pg. 328 at 342, Pat Acholonu J.S.C. (as he then was) had this to say
“when a testimony of a witness has reached or attained the height of insipid or impotent exaggerations, it should be regarded as mere petulance and treated with ignominy.”

There is so much doubt in the case of the Prosecution. Such must be resolved in favour of the Accused person – UDOSEN v. STATE (2007) WRN 150 @ 182; EKPE v. STATE (1994) 12 SCNJ 137 @ 136; SHANDE v. STATE (2004) All FNLR (Pt.223) 1955 at 1969; EDET v. STATE (2004) 50 WRN 114 @ 142.The imperativeness of the Prosecution to prove its case beyond reasonable doubt cannot be over-emphasized. Proof beyond reasonable doubt is proof that precludes every reasonable hypothesis, except that which it lends to support, and it is proof which is wholly consistent with the guilt of the Defendant and inconsistent with any other natural conclusions.
Therefore, in a criminal trial, for evidence to warrant or shore up conviction, it must exclude beyond all reasonable doubt every other conceivable state of affairs, other than that of the guilt of the Defendant, as a Defendant shall be entitled to acquittal of crime charged, if conclusion for conviction is not the only reasonable interpretation of which the facts adduced against him are susceptible – UBANI v. STATE (2003) 4 NWLR (pt.809) 51 @ 64.Regarding the issue of defence of the Appellant (in this case SELF DEFENCE), decidedly, when an accused person pleads defence, the evidential burden lies on him. If he raised the special defence in his statement to the Police, the Police has a duty to investigate it. The accused person may also raise the special defence during his trial for the first time – IN EACH CASE, unless the Prosecution leads evidence in negation or in rebuttal thereof beyond reasonable doubt, any doubt created in the mind of the Court must be resolved in favour of the accused – WAKALA v. STATE (1991) 8 NWLR (Pt.211) 552 @ 562.
As earlier observed, the evidence of the Prosecution witnesses is fraught with contradictions, so that it cannot even be believed. Particularly that of PW2. Indeed their evidence is at variance with itself. There is nothing to show that the Prosecution brought anything, or adduced evidence at the trial, in negation or in rebuttal of the evidence of self-defence which the Appellant put up.
A cursory look at Exhibits C-C5, does not indicate with specificity whether the deceased was stabbed in the stomach or behind at his back.
There is nothing to indicate where in fact he was stabbed.
I wonder how the lower Court came to the conclusion that the Appellant be convicted at all, moreso to a term of 14 years imprisonment, when he was charged with murder, which if found guilty can attract a death sentence.
The lower Court did not explain why. Was the Appellant convicted for manslaughter? One is at a loss as to these facts.
From the investigation stage of this matter up to the trial in Court to its conclusion, the Police and the Prosecution and indeed the lower Court had left many questions unanswered and this lacuna must enure in favour of the Appellant.
Consequently, I resolve Issue No.1 in favour of the Appellant and against the Respondent. Indeed the consideration of Issue No.2 has been done, but I must state that the failure of the Prosecution to prove its case beyond reasonable doubt by legally credible and admissible evidence renders the consideration of the other issues an academic exercise.
Issue No.2 is therefore resolved in favour of the Appellant and against the Respondent. The answer to that Issue is necessarily in the negative and I so hold,
The result is that this Appeal succeeds and consequently the conviction of the Appellant by the learned trial Judge O. O. Oluwayemi J. in Suit No.LCD/31/2007 at High Court 14 Criminal Division, High Court of Lagos, on the 2nd of March 2011 is hereby quashed. The Appellant’s sentence to 14 years imprisonment by the lower Court is hereby set aside.
The Appellant Olalekan Omoyele is hereby discharged and acquitted.

MOHAMMED MUSA SAULAWA, J.C.A.: I have had a preview of the judgment prepared and just delivered by the Honourable Justice R. N. Pemu, J.C.A. Having equally read the briefs of argument of the respective learned counsel vis-‘E0-vis the record of appeal, I have no hesitation in concurring with the reasoning and conclusion reached in the judgment, to the effect that the instant appeal is meritorious. Thus, the appeal is hereby allowed by me. I abide by the consequential orders quashing the conviction and sentence passed on the Appellant by the High Court of Lagos State, Lagos Judicial Division, in suit No.LCD/31/2007, and setting aside the 14 years imprisonment sentence there upon.
Consequential, the Appellant is hereby discharged and acquitted by me.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.

Appearances

Andrew Igboekwe (Esq.) with him are Chibuzo Anaeto (Miss) and Opeyemi Afeni Esq.For Appellant

AND

M. A. Olateju – Principal State CounselFor Respondent