JILLA LANNUBO v. THE STATE
(2019)LCN/13503(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of June, 2019
CA/PH/30CR/2018
RATIO
FUNDAMENTAL RIGHT: RIGHT TO LIFE: EXCEPTIONS TO THE PROVISIONS OF RIGHT TO LIFE UNDER THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
Section 33(2)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:
2. A person shall not be regarded as having been deprived of life in the contravention of this Section if he dies as a result of the use to such extent and in such circumstances as are permitted by law of such force as is reasonably necessary for the defence of any person from unlawful violence
a. or for the defence of property, or
b. In order to effect a lawful arrest or to prevent escape of a person lawfully detained; or.
At pages 9094 of the record of appeal the lower Court comprehensively considered the provisions of both Section 33 (2) of the Constitution as well as Section 199 of the Criminal Code Cap. C14 laws of Bayelsa State 2006 and relied quite correctly in my view on the decisions in IBIKUNLE VS. STATE (2007) 2 NWLR (PT. 1019) 546 and OLA VS. STATE (2014) ALL FWLR (PT. 752) 1671.PER ISAIAH OLUFEMI AKEJU, J.C.A.
WHEN A PARTY FAILS TO RAISE OBJECTION ON A DOCUMENT ON TIME
Thus a party who fails to raise the objection at the time anticipated by law cannot bring up the objection afterwards except where the document is legally inadmissible. See also EZOMO VS. NNB PLC (2006) 14 NWLR (PT. 1000) 442.PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICE
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
JILLA LANNUBOAppellant(s)
AND
THE STATE Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Bayelsa State in the judgment delivered on 15th March, 2018 in Charge No YHC/91C/2017 wherein the appellant as the accused person was by the information filed on 12th September, 2017 charged with offence of murder contrary to Section 247 (1) of the Criminal Code Law Cap. C14, Laws of Bayelsa State, 2006 in that he (the Appellant) on the 13th day of May, 2017 at about 21:45hours at Agudama within Yenagoa, Judicial Division of Bayelsa State, murdered Oruyegha Grand.
The Appellant pleaded not guilty to the one count charge and trial was conducted at which the prosecution called one witness while the Appellant testified in his defence and called one witness all of who gave oral evidence and documents were tendered and admitted as Exhibits. According to the prosecution witness one Ubi Eteng Eteng, a Police DSP attached to State CID Yenagoa who was the IPO in the case, the cautionary Statement of the Appellant was handed over to him (the witness) having been recorded by ASP Newstyle Ogiori who later retired. The statement
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of the Appellant was read to him and he admitted to have committed the crime with no intention to maim the deceased so the statement was attested to by one A.S.P. Jacob Ebiyefa of Homicide Section who counter signed the statement. This PW1 said he saw the deceased and he witnessed the autopsy that was performed by one Doctor Patrick E. Odoye, a pathologist while some relatives of the deceased were also there and they identified the body before the autopsy was done after which a postmortem report was issued. He identified the postmortem Report and it was tendered and admitted as exhibit 2 without any objection while the statement of the appellant (extra judicial) was tendered and admitted as exhibit 3 also without objection.
The witness was cross examined, after which the Appellant testified in his own defence narrating how the incident in the night of 13th day of May, 2017 occurred that his team received a call that some cultists were gathered at Agudama Primary School but on seeing Police the Cultists took their heals making him to pursue one of the suspects who eventually ran into one house and later ran out of the room he was, while (Appellant) fired
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his rifle in the direction the deceased ran to so as to scare and arrest him. He confirmed that he made the statement that was admitted as Exhibit 3.
The witness for the defence, one Richard Ibe tendered the mortuary acceptance card of the Federal Medical Centre, Yenagoa where the deceaseds corpse was kept and the affidavit of withdrawal of a case which were admitted as exhibits 4 and 5 respectively. Under cross examination he disagreed with anyone who had said that the deceased was a cultist.
At the conclusion of evidence and after taking the addresses by the two learned counsel for the parties the Court (now called the lower Court) delivered its judgment and held at page 100 of the record of appeal that I have no doubt whatsoever in my mind that, the accused killed the deceased both intentionally and recklessly and without justification. Consequently, I find the accused Jilla Lannubo guilty as charged and he is hereby convicted of the murder of Oruyegha Grand. The Appellant was sentenced to death.
Aggrieved by the decision of the lower Court as aforesaid, the Appellant commenced this appeal through the Notice of Appeal
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dated the 3rd day of April, 2018 but filed on 13th April, 2018 with three grounds of appeal and in the Appellants Brief filed on 26/7/2018 the following issues were distilled for determination:
1. Whether the lower Court was right when it held that the defence of justification under Section 33(2) (b) of the Constitution of the Federal Republic Nigeria, 1999 (as amended) does not avail the appellant.
2. Whether the lower Court was right when it admitted and relied and formed an impression on the autopsy report as a basis for his judgment.
3. Whether the lower Court did not err in law and misdirected himself when he relied on the autopsy report to form a base for his judgment.
In the Respondents Brief filed on 24/8/18 two issues were formulated thus:
1. Whether the learned trial judge was not justified in holding that the defence of justification as provided in Section 33 (2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) and Section 199 of the Code Law Cap. C14 of Laws of Bayelsa State, 2006 in the circumstances of this case does not avail the accused /Appellant.
2. Whether the learned
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trial Judge rightly admitted and relied upon Autopsy Report Exhibit 2 in the trial and Judgment.
Thus the two issues formulated by the Respondent are the same as the first two issues distilled by the Appellant while the appellant adopted the argument on issue 2 in the argument of the third issue. The issues as raised by the appellant are adopted for the consideration and determination of this appeal. The learned counsel on the first issue in the appeal argued that taking another persons life is murder, but the law envisage certain circumstances where it may be pertinent or inevitable for death to occur in certain circumstances hence the exceptions to murder as provided for in Section 33(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)which recognizes circumstances in which lawful arrest is being made or to prevent the escape of a person lawfully detained. It was submitted that on the day in question the appellant was on duty when information was received that cult boys were grouping at a spot and on sighting the police the boys started running and the appellant pursued the deceased for the purpose of arresting him.
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He had to fire a gunshot towards the direction the deceased ran to when he came out of the house into which he had earlier entered because he (Appellant) did not know what the deceased had in his possession because it was dark and the gunshot was meant to scare the deceased but unfortunately it led to the deceaseds death who was to be arrested for a capital offence under Sections 1 and (4) of the Bayelsa State Secret Cults/Societies and similar activities (Prohibition) Law 2012;OLA VS STATE (2014) ALL FWLR (PT. 752) 1671.
The learned counsel for the Respondent contended that the decision of the lower Court in holding that the defence of justification as provided in Section 33(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as well as Section 199 of the Criminal Code Law Cap. C14 Laws of Bayelsa State 2006 did not avail the appellant was based on evidence before Court which properly evaluated the evidence was right in the circumstances of the case. It was contended that there is evidence from PW1 that the Appellants extra judicial statement (Exhibit 3) was read to him he (Appellant) admitted committing the killing
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of the deceased but that he did not intend the consequences of his action. It was submitted that the lower Court having comprehensively evaluated the evidence before it and made findings therefrom the appellate Court will not interfere with the decision of the trial Court that has been based on evidence, SMITH ENG. CO. LTD. VS. NAKSH (NIG.) LTD (2017)ALL FWLR (PT.914) 1150; ADEKOYA VS. STATE (2017) ALL FWLR (PT. 879) 693.
The learned counsel submitted that the lower Court adequately stated the conditions for the application of the defence of justification under Section 33 (2)(b) of the Constitution and as stated in the cases of IBIKUNLE VS. STATE (2007) 2 NWLR (PT. 1019) 546 and OLA VS. STATE (2014) ALL FWLR (PT. 752) 1671.
Section 33(2)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:
2. A person shall not be regarded as having been deprived of life in the contravention of this Section if he dies as a result of the use to such extent and in such circumstances as are permitted by law of such force as is reasonably necessary for the defence of any person from unlawful violence
a. or for
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the defence of property, or
b. In order to effect a lawful arrest or to prevent escape of a person lawfully detained; or.
At pages 9094 of the record of appeal the lower Court comprehensively considered the provisions of both Section 33 (2) of the Constitution as well as Section 199 of the Criminal Code Cap. C14 laws of Bayelsa State 2006 and relied quite correctly in my view on the decisions in IBIKUNLE VS. STATE (2007) 2 NWLR (PT. 1019) 546 and OLA VS. STATE (2014) ALL FWLR (PT. 752) 1671.
In the instant case, the prosecution successfully proved that the Appellant shot the deceased at close range with his lethal AK47 rifle, but he (Appellant) tries to claim justification pursuant to the provision of the laws already stated. The question however is whether there was any justification for shooting the deceased who was not proved to be violent or was escaping from any lawful custody. I agree with the lower Court in its finding that there was no reasonableness in the act of the Appellant that led to the death of the deceased.
It is therefore my candid view that the lower Court correctly held that the plea of justification was
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not available to the appellant in the circumstances of this case and the evidence before the Court.
I resolve this issue against the Appellant.
The 2nd issue relates to admissibility of the Autopsy Report in this case and the reliance placed thereon by the lower Court.
The Record of Appeal shows that the appellant was represented by counsel at the proceedings of 12/1/18 where the Report was tendered by the prosecution and admitted by the lower Court as exhibit. See page 52 of the Record. The learned counsel did not raise any objection to the admissibility of the document. As held by the Supreme Court in CHIEF BRUNO ETIM & ORS VS. CHIEF OKON UDO EKPE & ANOR (1983) LPELR 1172(SC) it is a cardinal rule of evidence and of practice in civil as well as criminal cases that objection to the admissibility of a document sought by a party to be tendered in evidence is taken when the document is offered in evidence.
Thus a party who fails to raise the objection at the time anticipated by law cannot bring up the objection afterwards except where the document is legally inadmissible. See also EZOMO VS. NNB PLC (2006) 14 NWLR (PT. 1000) 442.
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This issue is therefore resolved against the appellant.
As I sated earlier in this Judgment issue 3 by the appellant is substantially a repetition of issue 2 and by the same rule of evidence and practice applicable to issue 2, issue 3 must suffer the same fate as issue 2 and accordingly that issue is also resolved against the Appellant.
The consequence of the foregoing and the conclusion therefrom is that this appeal is lacking in merit and it is dismissed accordingly. The conviction and sentence of the appellant by the lower Court are affirmed.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother ISAIAH OLUFEMI AKEJU, JCA.
I am in agreement with the reasoning and conclusion reached by the learned Justice that this appeal for lacking merit should be dismissed and it is so dismissed by me.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother I. O. Akeju JCA I agree with and adopt the finding and decision of my learned brother this appeal lacks
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merit. The Judgment of the trial Court delivered on March, 15th, 2018 in charge No. YHC/91C/2017 is affirmed by me also.
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Appearances:
For Appellant(s)
A.S. Arthur, Hon. Attorney General Bayelsa with him, Ebiere, E. Olanrewaju For Respondent(s)
Appearances
For Appellant
AND
A.S. Arthur, Hon. Attorney General Bayelsa with him, Ebiere, E. OlanrewajuFor Respondent
