MUDASIRU OYENIYI v. THE STATE (2019)

MUDASIRU OYENIYI v. THE STATE

(2019)LCN/13533(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of June, 2019

CA/AK/94C/2018

RATIO

CRIMINAL LAW: STANDARD AND BURDEN OF PROOF IN CRIMINAL CASES

In criminal case, the prosecution has a duty to prove the charge beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion with high degree of probability, but nothing more. See OSENI V. STATE (2013) LPELP 19823 and ADEKOYA V. STATE (2017) LPELR 41564.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

MURDER: THE INGREDIENTS NECESSARY TO PROVE MURDER

To prove the guilt of a person charged with the offence of murder, the prosecution must prove that; the deceased died, the death of the deceased was caused by the accused and the act of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. The above three ingredients of the offence must be proved beyond reasonable doubt. Failure of the prosecution to proof one will result in a discharge of the accused person. See USMAN V. STATE (2013) 12 NWLR (PT. 1367) 76; AKPAN V. STATE (2016) 9 NWLR (PT. 1516) 110; DURU V. STATE (2017) 4 NWLR (PT. 1554) 1 and AGU V. STATE (2017) 10 NWLR (PT. 1573) 171.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

HOW TO PROVE MURDER
The element of the offence of murder can be proved through confessional statement, circumstantial evidence or evidence of an eye witnesses. See UMAR V. STATE (2014) 13 NWLR (PT. 1425) 497; UDE V. STATE (2016) 14 NWLR (PT. 1531) 122; IGBIKIS V. STATE (2017) 11 NWLR (PT. 1575) 126.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

CONFESSIONAL STATEMENT: CAN THE COURT CONVICT ON A RETRACTED CONFESSIONAL STATEMENT?

The Court can convict on a retracted confessional statement if satisfied that the accused person made the statement. But it is desirable that before a conviction can properly be based on such a retracted confession there should be corroborative evidence. See SUNDAY V. STATE (2017) LPELR 42259 (SC); IGBA V. STATE (2018) 6 NWLR (PT. 1614) 44.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

WHEN MEDICAL EVIDENCE WONT BE NEEDED IN A CHARGE OF MURDER

I so hold, medical evidence is rendered otiose where the cause of death is known or could be inferred from the circumstance of evidence adduced or there is abundant evidence of the manner of death. See AFOSI V. THE STATE (2013) 13 NWLR (PT. 1371) 329; MAIGARI V. STATE (2013) 13 NWLR (PT. 1384) 425;PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

INTENTION: DEFINITION

On the third ingredient, intention means the purpose with which an act is done, the state of being set to do something. See AFOLABI V. STATE(2016) 11 NWLR (PT. 1524) 467.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

CONTRADICTION: THE EFFECT OF CONTRADICTION IN EVIDENCE

On the issues of alleged contradiction in the evidence of the persecution. A piece of evidence contradict another when it confirms the opposite of what the other evidence affirms. The evidence of a witness is contradicting when he gives inconsistent account of the same event. For a contradiction to affect the case of the party whose evidence is said to be contradictory, the contradiction must be material to the case. It is not enough for the Appellant to show the existence of contradiction without showing that the trial Judge did not avert to, and consider the effect of contradiction. The contradiction must be substantial disparagement of the witness likely to result in a miscarriage of justice to rely on such contradictory evidence. See GALADIMA V. STATE (2017) LPELR 43469 (SC) and EGWUMI V. STATE (2013) 13 NWLR (PT. 1372) 525.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

JUSTICES

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria

Between

MUDASIRU OYENIYI Appellant(s)

AND

THE STATE Respondent(s)

RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Osun State High Court of Justice sitting at Osogbo Judicial Division delivered on 18th December, 2017 by Honourable Justice K. M. Akano in Suit No. HOS/5OC/2014, whereat the Appellant/Accused person was found guilty of murder and sentenced to death by hanging.

By an Amended Charge dated 8th December, 2016, the Appellant/Accused was charge with the offence of murder of one Wasiu Kareem contrary to Section 316 and punishable under Section 319 of the Criminal Code Cap. 3 Laws of Osun State, 2002.

BRIEF BACKGROUND OF THE CASE
?The brief facts of the case are that on 30th day of July, 2013 at about 12.35am there was a misunderstanding between the Appellant and the deceased one Wasiu Kareem Oladimeji ?M? over megaphone belonging to the deceased that got missing in the room they both lived in. the disagreement was later settled, but the manner of settlement did not go down well with the Appellant. Later at night when the deceased was sleeping together with the Appellant in the same room, the Appellant stood up

and poured kerosene on the deceased and set him ablaze. As a result of which the deceased sustained injury from the fire. The deceased was rescued by neighbours and rushed to LAUTECH, Osogbo for treatment, where he later died and his corpse was deposited at the mortuary.

The mother of the deceased (one Muibat Akindele) laid a complaint to the Nigerian Police about what happened, and investigations were accordingly carried out by the police. After concluding its investigation in respect of the complaint lodged against the Appellant, the Appellant was charged before the High Court of Osun State on an amended charge for the offence of murder of one Wasiu Kareem (deceased) contrary to Section 316 and Punishable under Section 319 of the Criminal Code Cap. 3 Laws of Osun State, 2002.

The Appellant pleaded not guilty to the one count charge and the matter proceeded to hearing. Thereafter the Appellant was convicted for the offence of murder and sentence to death.
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In proof of it case, the prosecution called two witnesses and tendered exhibit. While the Appellant as accused person in his defence testified in his own behalf and call no other witness.<br< p=””

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At the conclusion of hearing, the learned trial Judge in his judgment delivered on 18th December, 2017 found the Appellant guilty, convicted and sentenced him to death.

The Appellant was dissatisfied with the decision. Hence, on 14th March, 2018 lodged a two ground notice of appeal, seen at pages 131-134 of the record of appeal.

Thereafter, the parties filed and exchanged their briefs of argument in line with the rules governing the hearing of criminal appeals in this Court. The appeal was heard on 28th March, 2019. During its hearing, learned counsel for the Appellant, Adedayo Adedeji, Esq., adopted the Appellant?s brief of argument dated 4th June, 2018 and filed on 7th June, 2018 and the Appellant?s reply brief dated 22nd March, 2019 and filed on 25th March, 2019 but deemed properly filed on 28th March, 2019 as representing his arguments for the appeal. He urged the Court to allow the appeal set aside the conviction and sentence of the Appellant by the lower Court and discharge and acquit him. Learned counsel for the Respondent I. T. Alarape Abdulrahman Esq. (Mrs.) (PSC) MOJ Osun State adopted the Respondent?s brief of argument dated

26th October, 2018 and filed on 2nd November, 2018 but deemed properly filed on 16th January, 2019 as his reaction against the appeal. He urged the Court to dismiss it and affirm the conviction and sentence of the Appellant by the lower Court.

In the Appellant?s brief of argument, he nominated two (2) issues for determination as follows:
1. Whether or not the lower Court was not in grave fundamental error when it convicted the appellant for the offence of murder in the absence of any medical report linking the act of the Appellant to the cause of death of the deceased.
2. Whether or not the learned trial Judge fundamentally erred in law by relying on exhibit H in convicting the Appellant for the offence of murder.

In the Respondent?s brief of argument, equally, distilled two (2) issues for determination to wit:
1. Whether the Respondent proved the charge against the Appellant beyond reasonable doubt.
2. Whether the trial Court was right in law to have relied on the confessional statement of the Appellant (exhibit H and H1) amongst other evidence to convict him.
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I will decide the appeal on the two issues crafted by

the Appellant being the owner of the appeal.

ISSUES ONE AND TWO
Learned counsel for the Appellant argued the two issues together and submitted that in all criminal cases, the onus of proof is on the prosecution to prove the guilt of the accused beyond reasonable doubt. That before an accused person can be convicted for the offence of murder, the prosecution must prove beyond reasonable doubt that; there is death; the death of the deceased was caused by the act or omission of the accused person; that the act or omission of the accused person which caused the death of the deceased was intentional or with the knowledge that death or grievous bodily harm would be probable consequence of his act. He cited OCHIBA V. STATE (2011) 17 NWLR (PT. 1277) 663 and OKETAOLEGUN V. STATE (2015) 13 NWLR (PT. 1477) 538 for the view.

Counsel submitted that from the evidence led, the Respondent did not prove all the ingredients of the offence of murder to secure the conviction of the Appellant. Counsel reasoned that there was a contradiction in the evidence of PW1 and that of PW2 in respect as to when the deceased was taken to hospital. He identified the portion

of the evidence of PW1 that the deceased was immediately after the incident was taken to LAUTECH hospital for treatment and the PW2 evidence that the complainant informed him that the deceased was receiving treatment somewhere before taken to the LAUTECH Hospital and classified it as material contradiction. That the consequences of such material contradictions in the evidence of prosecution is that the evidence becomes unreliable. He cited ONUBOGU & ANOR V. STATE (1974) 9 SCL. 17 and AHMED V. STATE (1999) 5 SC (PT. 1) 39.

Counsel submitted that medical report is fundamental to determine the cause of death of the deceased. That there was no evidence before the Court as to the cause of death of the deceased and that the medical personel who purportedly attended to the deceased was never called to give evidence as to what caused the death of the deceased. He reasoned that the effect of not tendering the medical report is that the prosecution, have undoubtedly failed to show a causal link between the death of the deceased and the act of the Appellant. He cited ADELEYE V. STATE (2015) 3 NWLR (PT. 1446) 229 for the view.
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He argued that the learned

trial Judge in the absence of medical report or evidence of medical doctor couldn?t have known whether the treatment given to the deceased was proper medication. He furthered that the effect of Section 314 of the Criminal Code is that the prosecution must prove beyond reasonable doubt that it was as a result of the bodily injury purportedly inflicted on the deceased that caused the death of the deceased. He refers to the case of IJEOMA V. ANYASODOR V. THE STATE (2018) LPELR 43720 (SC).

Counsel submitted that, in convicting the Appellant, the learned trial Judge relied on Exhibit H. Counsel quoted some portion of Appellant testimony before the Court in his defence and submitted that the appellant clearly retracted Exhibit H, that there is nothing outside Exhibit H showing that the Appellant murdered the deceased. That where an accused person retracted his confessional statement, the Court should test it as provided in the case of R V. SKYES (1913) 8 CAR. 233.

That for the fact that the Appellant and the deceased had a disagreement about a megaphone is not a conclusive proof that the Appellant murdered the deceased. That for the fact that the

Appellant poured kerosene on the deceased cannot be on any stretch of legal imagination mean that it was his act that killed the deceased. He urged the Court to resolve these issues in favour of the Appellant.

Learned counsel for the Respondent submitted that the burden of proof on Respondent in a case of this nature is not proof beyond every shadow of doubt. He cited JOHN AGBO V. THE STATE (2006) 1; OKOH V. THE STATE (2014) 6 SCM 165 and MUFUTAU BAKARE VS. THE STATE (1987) 3 SC 1 AT 32 for the point.

He contended that to prove a case beyond reasonable doubt, the prosecution may rely on confessional statement, circumstantial evidence or evidence of an eyewitness. He referred to IGBABELE V. THE STATE (2006) 3 SCM 143. That where a case is based on confessional statement, the statement of the deceased as well as circumstantial evidence, the Court said counsel has the power to go ahead to convict. He cited the cases of OGUNO & ANR. V. THE STATE (2013) 6 SCM 145; ALLI DOGO V. THE STATE (2013) LPELR (2017); ADAMU SALIU V. STATE (2014) Legal Pedia SC 29 CC, SC among others for the point.
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That to secure a conviction on the charge of murder, the

prosecution must prove that; the deceased had died; the death of the deceased had resulted from the act of the accused and that the act or omission of the accused which caused the death or grievous bodily harm was its probable consequences.

Counsel submitted that by the evidence before the Court the deceased died at LAUTECH Hospital his body (corpse) was deposited at the hospital. That the deceased made statement before he died and narrated his story in exhibit C, B and G. Counsel quoted some portion thereof to establish that the Appellant poured kerosene on the deceased and set fire on him. That the extra judicial statements of the Appellant, the statement of the deceased and the picture of the deceased were tendered and admitted without objection.
He contended that the only inference that can be drawn from the action of the Appellant who poured kerosene on the deceased and set him ablaze is that his act was intentional with full knowledge that death or grievous bodily harm was the probable consequences of his act. He urged the Court to so hold.
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Learned counsel submitted that the Appellant did not oppose the admissibility of Exhibit H and H1;

however he retracted and denied the authorship during his defence. That the learned trial Judge was right in admitting and relying on the confessional statement of the Appellant (Exhibiy H and H1) amongst other evidence to convict him. He cited AKPOVETA FREEBORN V. STATE (2008) 9 WRN 75 CA and NWAEBONYI VS. STATE (1994) 5 SCNJ 88: That the denial of the charge by the Appellant during his testimony is an after-thought. He urged the Court to so hold. Counsel submitted that non tendering of medical report and not calling a medical expert to show the nexus between the cause of death of the deceased and the act of the Appellant will neither vitiate the evidence before the Court nor create doubt in the mind of the Court that the Respondent proved its case beyond reasonable doubt. That a medical report is not a sine qua non in determining the cause of death in a case of murder where there is other evidence upon which the cause of death can be inferred to the satisfaction of the Court. He cited ONITILO V. STATE (2017) LPELR 42576 (SC).

Counsel argued that assuming without conceding that the Appellant was earlier treated somewhere before taken to LAUTECH Hospital.

Section 312 and 313 of the Criminal Code Law Cap. 35 Laws of Osun State, 2002 has answered the issue of contradiction raised by the Appellant.

Counsel submitted that the deceased died three months and four days after the incident and by the provision of Section 314 of the Criminal Code Law Cap. 35 Laws of Osun State, 2002 a person is not deemed to have killed another, if the death of that person does not take place within a year and a day of the cause of death. That the evidence before the Court established that the deceased died within one year and a day from the date of injuries he sustained from the act of the Appellant. He urged the Court to hold that the death of the deceased had resulted from the act of the Appellant and non tendering of medical report or calling medical personnel does not vitiate the evidence before the Court.

He reasoned that witnesses statements tendered by the prosecution are admissible in law in the absence of the maker. He cited MALLAM SANI OGU V. MANID TECHNOLOGY & MULTI-PURPOSE CO-OPERATIVE SOCIETY LTD. (2011) 8 NWLR (PT. 1249) 345; ILIUASU SUBERU V. STATE (2010) 1 NWLR (PT. 1176) 494 and

ELDER OKON AARON UDORO V. THE GOVERNOR OF AKWA IBOM STATE (2010) 11 NWLR (PT. 1205) 322. He reasoned that the statements of Muibat Akindele and the photograph of the deceased attached to the information are relevant and admissible to the facts before the Court. He referred to Section 39 and 83 of the Evidence Act, 2011. He argued that PW1 and PW2 stated in their evidence that they made effort to locate Muibat Akindele, the mother of the deceased but they were unable to locate and secure her attendance in Court proved abortive. He contended that the statements of Muibat Akindele and the photograph are admissible since the object of the evidence is to establish the truth. He urged the Court to so hold and resolve the issues in favour of the Respondent.

Learned counsel for the appellant in his reply submitted that for a circumstantial evidence to ground conviction, it must be cogent, compelling and unequivocally point to no one but the defendant. That the statement of the deceased does not amount to dying declaration and ought not to be accorded any consideration. He further merely repeated his earlier argument on the issues calling of witness and medical report and submitted that

even if any evidence is relevant under Section 39 of the evidence Act, the onus is still on the prosecution to satisfy any of the subsection for the document to be relevant and admissible. He urged the Court to hold that the statements of Muibat (Exhibit F1 and F2) was wrongly admitted.

RESOLUTION OF THE ISSUES
Learned counsel for the Appellant argued his two issues together, therefore I will consolidate the resolutions of the two issues.

The crux of the Appellant in this appeal is the findings of the lower Court that the prosecution discharged the burden of proof and the allegation of the offence of murder against the Appellant. To prove the guilt of a person charged with the offence of murder, the prosecution must prove

that; the deceased died, the death of the deceased was caused by the accused and the act of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. The above three ingredients of the offence must be proved beyond reasonable doubt. Failure of the prosecution to proof one will result in a discharge of the accused person. See USMAN V. STATE (2013) 12 NWLR (PT. 1367) 76; AKPAN V. STATE (2016) 9 NWLR (PT. 1516) 110; DURU V. STATE (2017) 4 NWLR (PT. 1554) 1 and AGU V. STATE (2017) 10 NWLR (PT. 1573) 171.
The element of the offence of murder can be proved through confessional statement, circumstantial evidence or evidence of an eye witnesses. See UMAR V. STATE (2014) 13 NWLR (PT. 1425) 497; UDE V. STATE (2016) 14 NWLR (PT. 1531) 122; IGBIKIS V. STATE (2017) 11 NWLR (PT. 1575) 126.

On the first ingredient, it stems from the evidence before the lower Court the prosecution proved that the deceased Nasiu Kareem Olademeji died.
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On the second ingredient, the Appellant in his confessional statement Exhibit H admitted that he committed the offence for which he was charged

with which is murder. The law is trite that once a confession is relevant, it is admissible against an accused in proof of the offence. A Court is licensed by law to base its conviction on free, cogent and positive confession. See LAWAL V. STATE (2016) 14 NWLR (PT. 1531) 67; ALO V. STATE (2015) LPELR 2440 SC and JOHN V. STATE (2017) 16 NWLR (PT. 1591) 304.
There is no evidence stronger than a person?s own confession, if it constitutes a clear and cogent proof of an act of the accused person who made it. See FABIYI V. STATE (2015) LPELR 24834 (SC); ADEBAYO V. STATE (2014) LPELR 22988 SC; ISONG V. STATE (2016) LPELR 40609 (SC).
Where an accused person makes a statement under caution, admitting the charge or creating impression that he committed the offence charged, the statement becomes confessional.

The Appellant herein in his extra judicial statement Exhibit H confessed to the charge against him. He stated therein thus:
?…I am the actual person that set fire on Wasiu Kareem…I set the fire on Wasiu Kareem with kerosene and matches him…
I threatened Wasiu that I would set his

clothes and other properties on fire if he refuse to leave my room that night. Then I pour kerosene on Wasiu body and set fire on him.?

In this exhibit the Appellant made cogent admission that he poured kerosene on the deceased and set him ablaze; he stated or suggested the inference that he committed the crime. A casual link between the cause of death and the acts of the Appellant can be proved either by direct eye witness, circumstantial evidence from which the guilt of an accused be inferred or by a free and voluntary confessional statement of guilt which is direct and positive. The cause of the death of the deceased by the cogent evidence before the Court has been linked to the Appellant in the circumstances of this case. I so hold.

The Appellant retracted his confessional statement. A retraction means to say that something you have said is not correct or the act of recanting or withdrawal. Where an accused retracted his confessional statement, the question as to whether he has made it, is a matter to be decided at the conclusion of the case by the trial Court. The mere denial will not be a reason for rejecting it. The Court can convict on

a retracted confessional statement if satisfied that the accused person made the statement. But it is desirable that before a conviction can properly be based on such a retracted confession there should be corroborative evidence. See SUNDAY V. STATE (2017) LPELR 42259 (SC); IGBA V. STATE (2018) 6 NWLR (PT. 1614) 44.
The Appellant resiled his confessional statement on the ground that he did not made the exhibit. The learned trial Judge evaluated the evidence before he found corroboration in the evidence of PW1 and PW2 and the entire circumstances of the case and found the exhibit cogent and voluntarily made by the Appellant. The law gives the Court the latitude to base it conviction on a retracted confessional statement of an accused person, the lower Court was therefore right to have relied on Exhibit H amongst other available evidence before the Court.

MUHAMMED V. STATE (2017) 14 NWLR (PT. 1583) 386; GALADIMA V. STATE (2017) 14 NWLR (PT. 1585) 187. In the instant case, evidence are abound on the manner of the death of the deceased, the cause of the death is known and could be inferred from the act/circumstances of the case. The Appellant poured Kerosene on the deceased and set him ablaze. The evidence lead to the inference and shows that the man (deceased) had died within one year one day of the incident in line with Section 314 of the Criminal Code Laws of Osun State, 2002. I am of the view that the medical evidence is irrelevant. This is because there are other evidence which fixed the Appellant with the offence for which he was charged.

On the third ingredient, intention means the purpose with which an act is done, the state of being set to do something. See AFOLABI V. STATE(2016) 11 NWLR (PT. 1524) 467. The Appellant confirmed of pouring kerosene on the deceased and set him ablaze. The inference based on the confessional evidence and other available evidence before the Court. The Appellant intent to snuff off the life of the deceased. The natural consequence of the Appellant?s act on the

deceased was targeted to cause the death of the deceased or cause him grievous bodily harm. I affirm the finding of the lower Court that the ingredient for the offence of murder was established by persecution.

The Appellant reasoned that the evidence of one witness saying that the deceased was taken to LAUTECH immediately for treatment and the other saying that the deceased was taken to somewhere for treatment is contradictory. To my mind, this testimonies do not in the least, amount to material contradictions, they are discrepancies if there is at all that cannot ruin the fact that the deceased was set ablaze and being treated and later died within a year and one day. I decline to crown those pieces of evidence as contradictory. I hold that the prosecution has proved their case beyond reasonable doubt.

In the end, I have no option than resolve issues one and two against the Appellant and in favour of the Respondent.
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Having resolved the two issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed. I affirm the lower Court conviction and sentence of the Appellant to death delivered on 18th December, 2017 in Suit No. HOS/50C/2014.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft a copy of the judgment just delivered and concur in the reasoning and conclusion reached by

my learned brother Ridwan M. Abdullahi, JCA that this appeal be dismissed.
Appeal is dismissed.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the benefit of reading in advance the judgment just delivered by the learned friend, RIDWAN MAIWADA ABDULLAHI, JCA. I agree with the reasoning and conclusions reached by his lordship that this appeal lacks merit and should be dismissed. My learned brother has ably and exhaustively resolved all the issues raised by the parties in this appeal. I have nothing new and significant to add to it. I therefore adopt them as mine. I dismiss this appeal, and I affirm the decision of Hon. Justice K. M. Akanq delivered on the 18/12/2017 convicting and sentencing the appellant to death by hanging.

Appearances:

Adedayo Adedeji, Esq.For Appellant(s)

I. T. Alarape Abdurahman (PSC, MOJ Osun State)For Respondent(s)

Appearances

Adedayo Adedeji, Esq.For Appellant

AND

I. T. Alarape Abdurahman (PSC, MOJ Osun State)For Respondent