AJOGBEJE EJIDE v. THE STATE
(2019)LCN/13870(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/EK/22C/2017
RATIO
MURDER: INGREDIENTS TO PROVE MURDER
As stated here in before, the law prescribes the following ingredients to be prove beyond reasonable doubt thus:
(a) That the deceased dies.
(b) That the death of the deceased resulted from the act of the accused.
(c) That the act of the accused was intentional with knowledge that death or grievous bodily harm was its possible consequence see Edoho v. State (2010) WRN 401.
The above ingredients must co-exist and the absence of any of them to the case is fatal to the case of the prosecution.
PROVE BEYOND REASONABLE DOUBT IN CRIMINAL CASES
One of the most crucial and fundamental issue for determination as formulated by the Appellant is –
Whether the prosecution proved the case of murder against the Appellant beyond reasonable doubt.
On the burden and standard of proof in criminal cases, it is settled that the burden of proof that a person has committed a crime or wrongful act, rests on the person who asserts it and this is more often than not, the prosecution. 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 tilt? and is thus not synonymous with proof beyond all iota of doubt. It simply means establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability.
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. See Sabi v. State (2011) 14 NWLR (Pt.1324) 119; Njoku v. State (2013) 2 NWLR (Pt.1339) 548; Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360; Ajayi v. State (2013) 9 NWLR (Pt.1360) 589.
MURDER: WHETHER THE ISSUE TO BE CONSIDERED IS THE ACT OF THE ACCUSED OR THE ACT AND THOUGHTS OR BELIEF
The intention to kill or the guilt mind referred to in common law as mens rea must be accompanied with the actus reus or guilty act to ground total criminal responsibility. The two must co-exist for the offence of murder contrary to Section 316(1) of the criminal Code punishable under Section 319 of the Criminal Code. See Adekoya v. State (2017) LPELR ? 41564 (SC) and Kayode v. FRN (2017) LPELR 41865 (CA).
It is not the law to take into consideration only the physical element of an offence as decided by the trial judge and throw into the dust bin the mental element which is a vital element thereof. ACTUS NON FACIT REUM NISI MENS SIT REA i.e. the act does not make the guilty unless there is a criminal intent. One of it cannot be independent of the other. The act of the accused person must be put side by side with his mental state i.e. intention before a crime can be said to have been committed.
CONTRADICTION: DEFINITION, NATURE AND INGREDIENTS
The Supreme Court in Wachukwu v. Owunwanne (2011) 14 NWLR (Pt.1266)1. His Lordship Muhammad JSC defines the meaning of contraction in relation to evidence before the Court;
The word contradiction derives from two Latin words ?contra? and ?deco-exe-dixidiction? meaning to say two opposites hence ?contradiction?. A piece of evidence contradicts another when it affirms the opposite of what the evidence has stated, not when there is just a minor discrepancy. Two pieces of evidence contradict one another when they are themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short of or contains a little more than what another piece of evidence says or contains some minor difference in details.”
See also OGIDI V. STATE (2003) 9 NWLR (PT. 824) 1 @ P.7.
In the case of Jeremiah v. State (2012) 14 NWLR (Pt.1320) 254, the Court said;
Minor discrepancies between previous Written Statement and subsequent oral testimony are to be expected and do not destroy the credibility of witnesses (P.272 PARA c).
EVIDENCE: HOW TO CONSIDER WHETHER A TRIAL JUDGE RIGHTLY EVALUATED EVIDENCE BEFORE HIM
On evaluation of evidence this is primarily the function of a trial Court. However, the Supreme Court stated in the case of
State v. Rabiu (2013) 8 NWLR (Pt. 1357) 591 that –
Where a trial Court failed to properly evaluate the evidence before it or made the wrong inference from admitted facts, an appeal Court can interfere by making the proper findings justifies by the evidence. (HIGH GRADE MARITIME SERVICES LTD., V. F.R.N. LTD. (1991) 1 NWLR (pt.167) 290; A.C.B. LTD V. OBA (1993) 7 NWLR (PT.304) 173; NWOSU V. STATE (1986) 4 NWLR (PT.35) 348; BUBA V. STATE (1994) 7 NWLR (PT.355) referred to) PP.604, paras A-B; 614, Paras B-C.”
The Respondent have argued to the contrary that the trial Court properly evaluated the evidence before the Court having had the opportunity of seeing, heard the witnesses including their demeanour. As a result, there was no need for the appellate Court to interfere.
Before Their Lordships
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
AJOGBEJE EJIDE Appellant(s)
AND
THE STATE Respondent(s)
PAUL OBI ELECHI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Ekiti State sitting in Ikere-Ekiti delivered on Wednesday the 22nd January, 2014. The High Court convicted the Appellant for murder contrary to S.316 of the Criminal Code punishable under S.319 of the Criminal Code and sentenced him to death by hanging. The Appellant, being dissatisfied with the verdict, has appealed to the Court of Appeal.
FACTS OF THE CASE
The deceased was a security guard at the Ekiti State Judiciary and also a farmer who hunts.
On the 16/02/2012, the Appellant, the Deceased and one Rufus Omoyeni were at Aso Farm settlement, Ikere Ekiti when the Appellant left for hunting. The Deceased also went hunting as well.
According to the Appellant, after patiently waiting for over 2 hours to hunt a Deer, saw an image in the bush and shot at it, thereby killing the Deceased.
?Rufus Omoyeni i.e. the PW1, heard the gunshot and while trying to trace the source, met the Appellant on his way. The Appellant informed him that he had shot the Deceased and that it was fatal. When Rufus Omoyeni suggested to the Appellant that they should go and rescue the Deceased, the Appellant told him that the Deceased won?t survive it. Rufus Omoyeni then advised the Appellant to go and report himself to the Police.
The Appellant said he shot at a strange image, he later said he shot at a Deer with yellow colour but later described the Deer as being a mix up of white and brown colour. He later admitted to shooting at the Deceased, but just because he thought it was something else.
Upon the Appellant reporting himself to the police and his admittance to the commission of the crime, the matter was taken to Court on the 4th day of March, 2013 and the Appellant was charged with the offence of Murder.
The Appellants Counsel, at the Trial Court unsuccessfully raised the Defence of Accident in his Written Address.
The trial Court, having been satisfied with the submissions made by the prosecution and having weighed all the evidence before the Court, convicted and sentenced the Appellant accordingly, hence this Appeal.
The Appellant formulated the following issues for determination.
ISSUES FOR DETERMINATION
1. Whether the prosecution proved the case of murder against the Appellant beyond reasonable doubt.
2. Whether the learned trial judge was right in holding that ?what is on trial in a murder case is the act of the accused person and not his thought or belief.
3. Whether the learned trial judge properly evaluated the evidence before the Court.
In his own wisdom, learned Appellant?s counsel, Mr. Obafemi Adewale sought leave of Court and argued all the issues together. He referred the Court to Section 24 of the Criminal Code Act and submitted that by that provision, it follows that any act or omission which is independent of the exercise of any person?s will amounts to an accident. Also that such act when proved amounts to a complete defence in the eyes of the law. See Adekunle v. State (2006) 14 NWLR (Pt.1000) 722.
Mr. Obafemi Adewale stated that the Appellant shot and killed what was in his opinion a deer after waiting in the bush for over two hours, as could be seen from the statements in Exhibits E and H. Infact, part of the said Exhibit E states thus
As I was waiting for this animal, suddenly I saw a strange image coming out from the bush, I thought it was the deer I was waiting for.”
It is then contended that the action of shooting occurred suddenly which is a basic requirement for an act to qualify as an accident. See Adekunle v. State (supra), Umar v. State (2014) LPELR 23190 (SC). The act of shooting the deceased was unexpected and the Appellant did not intend to kill the deceased or any human being for that matter.
The above signifies that the act as stated in Exhibit N that the Appellant did not intentionally shoot and kill the deceased person. The shot occurred after the deceased appeared suddenly. It is clear therefore, as submitted that the Appellant had in mind the intent to shot and kill a deer only which he had been patiently waiting for over two hours and not a human being.
It is submitted that when someone shoots what he believes to be a deer when such a thing, although not being a deer appears suddenly and reacted suddenly, it amounts to an accident. See Adekunle v. State (supra). Even a reasonable man in the position of the Appellant could have acted or reacted the same way the Appellant did in the circumstance of hunting for game. See Jimmy v. State (2013) 18 NWLR (pt. 1386) 251.
From Exhibits E and F, it is clear that from the onset, the Appellant did not envisage or plan the unpleasant event. In support of same, PW1 made a statement at the police station State CID to the effect that the he left for hunting: This evidence of the Appellant did not weigh in the mind of the Court before arriving in its judgment. The lower Court relied on Exhibits A, B and C which showed that the scene of crime was a location where visibility was not hindered. On the contrary, Mr. Adewale submitted that visibility has nothing to do with the act that occurs suddenly placing reliance on Adekunle v. State (su
