AKINYEDE OLAIYA v. THE STATE (2014)

AKINYEDE OLAIYA v. THE STATE

(2014)LCN/7060(CA)

In The Court of Appeal of Nigeria

On Monday, the 31st day of March, 2014

CA/EK/126C/2013

RATIO

BURDEN OF PROOF IN CRIMINAL PROCEEDINGS: PROOF BEYON REASONABLE DOUBT

It is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution.

By virtue of Section 138 (1) of the Evidence Act, where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal. It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. This is because the law will fail to protect the community if it admits fanciful possibilities to deflect the course of justice. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt UZOKA V. FEDERAL REPUBLIC OF NIGERIA (2010) 2 NWLR (PT 1177) 118, JUA V. STATE (2010) 4 NWLR (PT 1184) 217, IKE V. STATE (2010) 5 NWLR (PT 1186) 41, GABRIEL V. STATE (2010) 6 NWLR (PT 1190) 280, GARBA V. STATE (2011) 14 NWLR (PT 1266) 98 AND SABI V. STATE (2011) 14 NWLR (PT 1268) 421.PER FATIMA OMORO AKINBAMI, J.C.A.

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

Between

AKINYEDE OLAIYA Appellant(s)

AND

THE STATE Respondent(s)

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): The Appellant herein, a Police Corporal Akinyede Olaiya and one Corporal Ameh Richard were jointly arraigned before the High Court of Ekiti State on the 31st day of October, 2012; charged with the murder of Ipinlaye Michael and Faluyi Ayo Kehinde respectively at Kota, Omuo-Ekiti on the 23rd March, 2011. They pleaded not guilty to the charge. During the trial, three witnesses testified for the prosecution and sixteen (16) documents were tendered in evidence and admitted as exhibits. The Appellant and the co-accused each testified in his defence and one witness was called in their joint defence.

At the end of the trial and in a reserved and considered judgment, Adesodun, J, found the Appellant and his co-accused guilty as charged. His Lordship convicted and sentenced each of them to death by hanging.

The Appellant being dissatisfied with the Judgment of the lower Court filed a Notice of Appeal on 24th April, 2013 containing five (5) grounds of appeal against the Judgment at page 158 -164 of the record of appeal. I hereunder reproduce the grounds of appeal without their particulars as follows:-
(1) That the learned trial judge committed a grave error in law and in fact in convicting the Appellant of the offence of murder and sentencing him to death by hanging when prosecution failed in all respects to prove the charges against the Appellant.

(2) The learned trial Judge erred in law and in fact when he relied on the identification parade conducted on the Appellant despite its unreliability, inconsistency and failure to identify the Appellant and link him with the alleged murder of Kehinde Ayo Faluyi.

(3) The learned trial Judge erred in law when he relied on inadmissible, uncorroborated and hearsay evidence and mere suspicion in reaching the conclusion that the Appellant was guilty of murder and thereby occasioned a grave miscarriage of justice.

(4) The learned trial Judge erred in law and in fact when he wrongly evaluated the evidence adduced at the trial and thereby arrived at the perverse decision that the Appellant was guilty of murder.

(5) The learned trial Judge erred in law when he admitted Exhibit ‘F’ and relied on same in the conviction and sentencing of the Appellant.

Parties filed and exchanged briefs of argument.
At the hearing of the appeal on the 11th of February, 2014, Mr Olaotan Ajose-Adeogun, counsel for the Appellant who also settled the Appellant’s brief of argument formulated three issues for determination of the appeal. Counsel adopted the brief. The issues formulated by the Appellant are reproduced here under as follows:-
Issue No. 1 -Whether having regard to the totality and quality of the evidence led, both oral and documentary, has the prosecution not charged the Appellant wrongly under Section 316 of the Criminal Code for the offence of murder, and whether the learned trial Judge was not in error to have sentenced the Appellant to death for the offence of murder when the prosecution clearly charged the Appellant under the wrong section of the relevant law and failed to prove the offence of murder as charged beyond reasonable doubt (Ground 1).

Issue No. 2 -Whether the court followed the proper procedure and standard to be adopted for identification parades and if not did this have any significant and material effect on the proper identification of the Appellant and ultimately on the guilty verdict and sentence passed on him (Ground 2).

Issue No. 3 -Whether the statement of Mrs Jaiye Bamisile tendered as Exhibit ‘F’ was properly admitted by the Court and if not did the reliance on it by the Court cause a miscarriage of justice. (Ground 5).

Mr. Dayo Apata Solicitor-General, Ekiti State leading Adeniyi Familoni Esq Director Public Prosecutions and Onipede Akinola Olufemi Esq for the Respondent adopted the Respondent’s brief in which he distilled three issues for determination of this appeal which I have reproduced as follows:-
(1) Whether the lower Court was not right in convicting the Appellant for the offence of murder.

(2) Whether the lower Court was not right in holding that the Appellant was identified and or sufficiently linked with the commission of the offence.

(3) Whether the lower Court was not right in holding that Exhibit ‘F’ the statement of Mrs Jaiye Bamisile was relevant and admissible.

The three issues formulated by the Appellant are similar to those formulated by the Respondent therefore I will determine this appeal on the Appellant’s three issues. It is necessary to briefly set out the facts of the case, which are simple and straightforward. The Appellant was a Corporal in the Nigeria Police Force, attached to Omuo-Ekiti Divisional Police Headquarters. On the 23rd of March, 2011 in the morning, there was a clash between the members and supporters of two rival political parties, the People Democratic Party (PDP) and the Action Congress of Nigeria (ACN) in Omuo-Ekiti town. The clash was occasioned by accusation and counter-accusations, of tearing of campaign posters of candidates of the two rival political parties in the election that were soon to take place. The Divisional Police Officer led a team of seven Police Officers, including the Appellant and his co-accused at the lower Court to the scene of the clash to restore law and order. The Divisional Police Officer was armed with a pistol while five (5) out of the remaining six (6) Police Officers including the Appellant were armed with AK 47 rifles. When they got to the scene, the Appellant and the co-accused that was tried and convicted along with him fired gunshots at the crowd which allegedly resulted in the death of Michael Ipinlaye and Kehinde Ayo Faluyi. Appellant was charged and convicted for the offence of murder of one, Faluyi Ayo Kehinde. The main complaint in this appeal, is against the conviction of the Appellant for murder under Section 316 of the Criminal Code.

In this instant appeal, has the prosecution proved its case beyond reasonable doubt to warrant a conviction of murder, against the Appellant? The Appellant was charged with an offence of murder under Section 316 of the Criminal Code Act, Cap C 38, Laws of the Federation of Nigeria, 2004 and punishable under Section 319 of the same code.
Section 316 of the Criminal Code Act provides as follows:-
“Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say: (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 other person some grievous harm; (3) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life; (4) if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence; (5) if death is caused by administering any stupefying or over powering things for either of the purposes last aforesaid; (6) if death is caused by willfully stopping the breath of any person for either of such purposes, is guilty of murder”.
Section 319 (1) of the same code provides as follows:-
“(1) subject to the provisions of this Section of this code, any person who commits the offence of murder shall be sentenced to death.

(2) That such death has been caused by the Appellant.

(3) That the act that led to the death of the deceased was done with the intention of causing death.

(4) That the Appellant knew or had reason to know that death would be the probable and not only a likely consequence of his act. See OGUMO V. THE STATE (2011) NWLR (PT. 1246) 314; GIWA V. THE STATE (1996) 4 NWLR (PT. 443) 375 AT 337.

A critical appraisal of the facts of this case will show that the offence for which the Appellant is charged does not fall within paragraphs 3 -6 of Section 316 of the Criminal Code. This is so because the Appellant did not go to the scene of the crime to commit unlawful act, or intended to do grievous harm to some person for the purpose of facilitating the commission of offence; which is such that the offender may be arrested without warrant or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence. There is also no evidence that the death of the deceased was caused by administering any stupefying or over powering things or by willfully stopping his breath. In my view, the facts and evidence in support of the charge against the Appellant squarely places the offence for which the Appellant was charged and convicted under Section 316 (1) of the Criminal Code and punishable under Section 319 of the same code. For the prosecution to succeed, it must prove the following ingredients:-
“(1) That the death of a human being has actually taken place.
(2) That such death has been caused by that Appellant.
(3) That the act that led to the death of the deceased was done with the intention of causing death.
(4) That the Appellant knew or had reason to know that death would be the probable and not only a likely consequence of his act. See: OGUMO V. THE STATE (2011) NWLR (PT. 1246) 314; GIWA V. THE STATE (1996) 4 NWLR (PT. 443) 375 at 337.

As for the first ingredient, it is very clear from Exhibit ‘A’ and ‘A1’, the medical reports, that Kehinde Ayo Faluyi and Michael Ipinlaye died of gunshot injury. The cause of death of Kehinde Ayo Faluyi is given as (1) Asphyxiation and (2) Gunshot injuries, while the cause of death of Michael Ipinlaye as recorded in Exhibit ‘A1’ is Cardiac Laceration/Injury as a result of gunshot injury. There is therefore no doubt, and both parties are agreed that the death of a human being has actually taken place. The question now is whether the prosecution has established that the death of any human being was caused by the Appellant. Here, the evidence led at the trial is very critical to the resolution of this question.

In his argument on this issue, learned counsel for the Appellant submitted that the facts shown from the evidence clearly show that the killing of the victim as alleged by the prosecution clearly shows that the prosecution failed to establish beyond reasonable doubt that the Appellant had every intention to kill the deceased Kehinde Ayo Faluyi on the 23rd of March, 2011.

Learned counsel for the Appellant submitted that it is necessary to establish that the perpetration of the unlawful killing intended the consequence of his action which resulted in the death of the victim. He argued that failure to prove this ingredient is fatal to a charge of murder or unlawful killing.

The learned trial Judge on page 143 of the record stated thus:-
“it is in evidence that the deceased persons died of gunshot injuries. See Exhibit ‘A -A1’. The two accused persons fired jointly six rounds of AK -47 rifles ammunition. The two accused persons had been linked sufficiently with the killings or death of the deceased persons.

In the circumstance of this case I am of the view that it can safely be inferred that the two accused persons when they fired their AK 47 rifle whether to the air or not in the midst of a large number of people would know that such expended ammunition could cause serious damage/injury particularly to any human being hit by such ammunition. The two accused persons are trained policemen of the rank of Corporal.

The logical conclusion that can be inferred or drawn from the facts and evidence placed before this court in the instant case is to the effect that each of the two accused persons knew that the consequence of their act of firing their AK 47 rifle could inflict grievous bodily harm or cause the death of person hit by the expended ammunition and that they desired same.

In the circumstance I hold that the prosecution has equally proved the third ingredient of the offence of murder against the Appellant.

The learned counsel for the Appellant with regards to the incident that led to the death of the deceased on the 23rd of March, 2011 submitted that whatever happened on that day arose out of the performance of a lawful duty. As in the case of OMINI V. STATE (1999) 12 NWLR (PT 630) 168.

Learned counsel for the Appellant submitted that an essential element of the offence of murder as envisaged under Section 316 of the Criminal Code is missing and therefore the charge cannot be sustained in law. He referred to the case of UAC V. MCFOY 1962 AC 152, that the foundation of the charge is faulty the offence itself charged under Section 316 of the Criminal Code not being legally sustainable in law, the Appellant, cannot be legally sentenced under Section 319 of the same Act.

The Solicitor General representing the Respondent categorically stated that contrary to the Appellant’s counsel’s argument, the Appellant’s action was intentional with the knowledge that death or grievous bodily harm was the probable consequence of the Appellant’s shooting directly into the crowd.

He submitted that the Appellant knew that the death or grievous harm will be the probable result of his deliberate act. That the Appellant being a police officer, trained in the use of firearms, as a law enforcement agent cannot claim ignorance of how dangerous a loaded gun is and the devastating effect and grave implication if fired at a person. That it is not in dispute that the Appellant on the fateful day booked for 30 rounds of ammunition alongside the other police officers drafted to Kota junction, Omuo-Ekiti where he expended two and in the course of which he gunned down the deceased.

And in this instant case, the death of the deceased was occasioned. He cited in aid the case of GIRA V. STATE (1996) 4 NWLR (PT 446) PG 375 AT 388 the court held that a machete is a lethal weapon and not an ordinary cane. The death of the deceased as a result of being beaten with a machete was something which should ordinarily be expected.

The learned Respondent’s counsel argued that the Appellant cannot be absolved from the death of the deceased caused with an AK 47 rifle which is more lethal than a machete reference to by the Lordship, of the Supreme Court in the above mentioned case.

The learned counsel for the Respondent submitted that the act of deliberately firing gunshot into a crowd of people, in broad day light and thereby killing someone (the deceased) as proved before the lower court, constituted the offence of murder envisaged to Section 316 (1) of the Criminal Code.
I will at this junction examine the provisions of the law upon which the accused was charged tried and convicted.
Section 316 (1) and (2) provides that for anybody to be guilty under the Section, it must be proved that he intended to commit the offence described therein. The two sub-sections commence with the words “if the offender intends……
I am in total agreement with the submission of the learned Respondent’s counsel that the Appellant is aware that death or grievous harm will be the probable result of his deliberate act, he being a trained police officer in the use of firearms, and a law enforcement agent, cannot claim ignorance of how dangerous a loaded gun is and the devastating effect the grave implication if fired at a person. I must note also that the Appellant cannot be absolved from the death of the deceased, caused with an AK 47 rifle which is more lethal than a machete.
The act of deliberately firing gunshot into a crowd of people, in broad daylight and thereby killing someone (the deceased) as proved before the lower court constituted the offence of murder as envisaged by Section 316 (1) of the Criminal Code.
It will be observed that the first and the second elements above quoted, restate the general proposition that for a conviction for murder, proof of intent to kill or cause grievous harm is sufficient.
The proof of intent could either be direct or inferred from the surrounding circumstances. The onus is on the prosecution to prove intent. It may rely on the presumption that a man intends the natural consequence of his act, but in that case, it is also open to the accused to show that the death occurred in purely accidental circumstances and that he had no intent to kill or cause grievous harm to any person.

In this instant case, I am in total agreement with the learned trial Judge that the Appellant being a trained police officer knew that death of human being would be the natural consequence of his firing an AK 47 rifle into the crowd at Kota junction, Omuo-Ekiti on the 23rd of March, 2011.

Despite his knowledge of the consequences of firing an AK 47 at the crowd, Appellant still went ahead to fire the rifle at the crowd of people gathered there. The intention of the Appellant is without an iota of doubt that he intended to kill or cause bodily harm to the people. The Appellant in his extra judicial statement denied firing his gun. The facts of what actually transpired on the fateful day was revealed during investigation conducted into the incidence that led to the death of the deceased. It was there revealed that the number of bullets allocated to the Appellant had reduced by two. It was at that juncture that the Appellant owned up that he expended two (2) bullets at the scene of crime.

The Appellant claimed that he fired into the air, but the learned trial Judge disbelieved his assertion that he fired into the air. He stated further in his statement that all of them that booked rifles fired at the scene of crime and they later held a meeting where the P & G instructed them not to open up.
The Appellant in his evidence in court painted a different picture of what happened at the scene attributing the shooting at the scene to Bamisile and his thugs -five boys dressed in raincoat who armed themselves with AK 47 rifle pump action and FMC.

To embark on official operation is surely not a license to kill, but to save lives. In ADEKUNLE V. THE STATE (SUPRA) the Appellant was a Sergeant in The Nigeria Police Force. On 7th February, 1997, he was on anti-crime patrol duty along Sagamu-Benin Expressway. The Patrol team was under the command of an Assistant Superintendent of Police. Not long after the arrival of the patrol team and taken their positions, the commander of the team heard gunshots from their position. He shouted and asked who fired the gunshots. He saw the appellant walking towards a moving bus with passengers. The Appellant replied to the commander’s question that the gunshots were fired by him when the Appellant did not offer any explanation for firing at the bus, he was quickly disarmed. The commander moved to the bus where he found three men and a girl, Alice Tominiyi, inside the bus who had been hit by the bullets from the gunshots fired by the Appellant. Alice Tominiyi eventually died of the gunshot wounds at the hospital. The Appellant was charged for the murder of Alice, convicted and sentenced to death. His appeal to the Court of Appeal and subsequently to the Supreme Court was dismissed. Appellant was convicted on the evidence of two prosecution witnesses who were the commanding officer and the Investigating Police Officer among the 7 witnesses listed.
The fact that the Appellant in that case was on official patrol did not exonerate him from culpability.

On the issue of identification parade, learned counsel for the Appellant forcefully argued that the court was not right in its evaluation of the identification parade so conducted to determine the Police Officers that shot the victims of the alleged homicide. At this stage the issues raised here seem more of academic exercise, as the Appellant and his co-convict at the lower court admitted firing their guns at the scene of the crime in their statements to the Police and their evidence in court. Their admission has overtaken whatever took place at the identification parade which was no longer an issue before the trial court. The trial court’s choice to ignore ascribing necessary weight one way or the other and ascribing probative value to same has not insulted the law.

It is in evidence that of all the Policemen that went to the scene, only the Appellant and his co-convict shot directly into the crowd. On whether the lower court was right in holding that Exhibit ‘F’ the statement of Mrs. Jaiye Bamisile was relevant and admissible.

Learned counsel for the Appellant made heavy weather that the extra judicial statement of Mrs. Jaiye Bamisile was heavily relied upon to identify the Appellant.

The issues canvassed by the Appellant in his submission as I stated earlier in this judgment have already been resolved. The Appellant in his evidence before the trial Judge admitted firing two shots at the crowd on the fateful day. The statement of Mrs Jaiye Bamidele Exhibit ‘F’ only buttressed the admission of the Appellant himself.

The facts stated in Exhibit ‘F’ are relevant to the facts in issue and I must state that they were rightly admitted by the learned trial Judge.
In the case of LAMBERT V. NIGERIAN NAVY (2006) NWLR (PT 980) PAGE 514 AT PAGE 549 PARAGRAPH G -H. Garba JCA stated that;
“Now generally, Section (6) now Section 1 Evidence Act 2011 governs admissibility of evidence. Once a piece of evidence is relevant, it is admissible in evidence irrespective of how it was obtained”.
See also FAWEHINMI V. NBA (NO. 2) (1989) 2 NWLR (PT 105) 170 AT PAGE 183

The learned trial Judge observed on page 140 of the records thus:-
“Though Mrs Jaiye Bamisile was not in court to testify as a witness as she was said to have travelled outside the country for medical checkup. So she could not be cross examined on the same but of course it has formed part of the court record which the court can look at…. Although learned counsel for the defence would want the court to treat same as hearsay and not admissible. I am unable to agree with him. Exhibit ‘F’ i.e. the statement was part of the statements volunteered to the IPO (PW2) during the investigation and relevant to the case, therefore forming part of the case file. It is therefore admissible in evidence it is only the weight to be attached to it that matters in the circumstance”.

The Appellant made heavy weather of the fact that the trial Judge considered Exhibit ‘F’ and partly relied on it in coming to the decision to convict the Appellant.
It is however imperative to set the record straight. Trial Judge appraised Exhibit ‘F’ on page 140 and 153 of the records and observed that though the maker was not called to be cross examined, but same has formed part of the record and becomes relevant but subject to the weight to be attached to it.
This in effect reflected that the trial judge cautioned himself on the usefulness of Exhibit ‘F’
It was on this note that the lower court held on page 141 of the records thus:-
“the evidence of PW2 and PW3 as well as Exhibit ‘F’ coupled with the admission by the two accused persons in their statements to the Police and with their evidence in court that they fired their AK 47 rifle at the scene i.e. 1st accused firing four rounds of ammunition and 2nd accused firing 2 rounds of ammunition making a total of six rounds of ammunition and Exhibit ‘E’ i.e. six expended shells of AK 47 ammunition that were recovered at the scene by PW2. All these taken together point to one direction and that is that the two accused persons were responsible for the death of the two victims in this case”.

From all indication the team leader did not order them to shoot the two Policemen who took a decision to open fire on the crowd acted on their own volition and were therefore not covered by any rules of engagement. It is imperative for the security men who bear arms in this Country to exercise maximum restraint in the use of the weapons assigned to them in order not to ‘endanger the lives of the citizens that they are employed to protect’.
I have considered all the issues canvassed by parties in this appeal and I find none to be resolved in favour of the Appellants. Accordingly, this appeal shall be and it is hereby dismissed on all the grounds of the appeal.

PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Akinbami, JCA, and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.

My learned brother has adequately treated all the issues raised for resolution in such a way that I have nothing useful to add to the well researched judgment.

For the same reasons articulated in the lead judgment, I too dismiss the appeal accordingly.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered by my learned brother, Fatima Omoro Akinbami, JCA. I agree with the views expressed on the three issues which called for determination and the conclusion reached thereon that the appeal is wanting/lacking in merit. I too dismiss the appeal for the reasons ably and well articulated in the said lead judgment which I respectfully adopt as mine.

Appearances

Mr. O. O. Ajose-AdeogunFor Appellant

AND

Mr. Dayo Apata Solicitor General with Oluwaseun Fasote (L O)For Respondent