AKINBINU v. NIGERIAN ARMY (2020)

AKINBINU v. NIGERIAN ARMY

(2020)LCN/14810(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, November 04, 2020

CA/E/55C/2019

RATIO

EVIDENCE: INADMISSIBILITY OF HEARSAY EVIDENCE

Hearsay evidence is inadmissible pursuant to Section 37 of the Evidence Act, 2011. It however amounts to hearsay if it emanates from someone other than the maker and the purpose of adducing it goes beyond the fact that it was made to the point of asserting the veracity thereof. See JOHN VS. STATE (2017) LPELR-48039(SC). KEKERE-EKUN, JSC in a most succinct manner captured the essence of the law in this regard thus:
The hearsay rule is to protect an accused person from being convicted upon the testimony of a witness who did not see, hear or perceive in any other manner, the facts given in his testimony. Where it is shown that the evidence relied upon to convict an accused person amounted to hearsay, an appellate Court would quash the conviction See: Ijioffor Vs The State (2001) LPELR-1465(SC) @ 19 B-F. See SIMEON VS STATE (2018) LPELR-44388(SC) at 26. PER KAYODE OYEWOLE, J.C.A.

EVIDENCE: NATURE OF EVIDENCE OF A WITNESS

It is well established that the evidence of a witness is what he states directly before the Court. His extra judicial account contained in the statement made earlier to the investigator could only be used to test the veracity of his testimony before the Court where inconsistencies or contradictions are noted. The procedure is for the defence counsel to in the course of cross-examination, request for the earlier statement of the witness in question and tender the said earlier statement as exhibit before proceeding to draw the attention of the said witness to the portion of his said previous statement that is in conflict with the instant testimony at trial. The witness is then given the opportunity to explain the noted inconsistency. SeeESANGBEDO VS. THE STATE (1989) LPELR-1163 (SC) and CHRISTOPHER ONUBOGU VS THE STATE (1974) 9 S.C. 1 at 17-19. PER KAYODE OYEWOLE, J.C.A.

CRIMINAL LAW: WHEN WILL THE DEFENCE OF ACCIDENT BE SUSTAINED

The Appellant is not availed by the defence of accident as the law is clear that a defence of accident can only be sustained where the act was independent of the will of the accused person. See UWAGBOE VS. STATE (2008) LPELR-3444(SC) and AMOS VS. STATE (2018) LPELR-44694(SC). PER KAYODE OYEWOLE, J.C.A.

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

GNR TOPE AKINBINU APPELANT(S)

And

NIGERIAN ARMY RESPONDENT(S)

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the General Court Martial, Headquarters 82 Division Nigerian Army delivered on the 4th December, 2009 by the Judge Advocate Lt. Col. O. N. TAIWO and the President Col. C. J. ANIEMEKA wherein the Appellant was convicted and sentenced to 10 years imprisonment for manslaughter.

The Appellant was arraigned before the General Court Martial on a one count charge of manslaughter to which he pleaded not guilty. The said count is as follows:
STATEMENT OF OFFENCE: Manslaughter punishable under Section 105 (a) of the Armed Forces Act Cap A20 the Laws of the Federation of Nigeria 2004.
PARTICULARS OF OFFENCE: In that he at Ezzi-Osu bush beer parlour in Imo State on or about 5 October 2006, unlawfully shot and killed 97NA/45/6813 Gnr Mustapha Yahaya.

At trial, four witnesses testified for the prosecution while the Appellant testified from the witness box as the sole defence witness. The case of the prosecution was that the Appellant negligently handled his weapon in a manner which led to the death of the deceased while the

Appellant’s case was that the death of the deceased, who was his friend, resulted from an accident which occurred while the Appellant applied safety precautions on his weapon. After considering the entire case, the General Court Martial, as earlier stated found the Appellant guilty as charged and convicted him accordingly.

Dissatisfied, the Appellant exercised his right of appeal via a Notice of Appeal filed on the 4th November, 2016 pursuant to the order of Court made on the 25th October, 2016 extending time for him to file his appeal against the said judgment.

At the hearing of the appeal, Chief Umeh, the learned lead counsel for the Appellant adopted his brief filed on the 29th May, 2020 and the Reply brief filed on the 13th July, 2020, both briefs having been deemed properly filed and served on the 24th September, 2020, as the arguments of the Appellant in this appeal. While for the Respondent, Mr. Eze adopted the brief filed on the 29th June, 2020 but equally deemed properly filed and served on the 24th September, 2020, as the arguments of the Respondent in contesting the appeal.

The Appellant distilled three issues from the four

grounds of appeal thus:
1. Whether the General Court Martial erred in law when it found the Appellant guilty of the charge of manslaughter punishable under Section 105(a) of the Armed Forces Act Cap A20 LFN 2004 and sentenced him to 10 years imprisonment, and thereby occasioned a miscarriage of justice against the Appellant. (Grounds 1 and 3 of the Notice of Appeal).
2. Whether the General Court Martial erred in law when it held that the killing of Gnr Yahaya Mustapha resulted from the poor weapon handling of Gnr Tope Akinbinu and that the killing of Gnr Yahaya Mustapha was unlawful and which said finding and award were confirmed by the Respondent. (Ground 2 of the Notice of Appeal).
3. Whether the decision of the General Court Martial, confirmed by the Chief of Army Staff by the Confirmation letter/Notice with reference number AHQ DOAA/GT/300/197 and dated 19th May, 2014, is unwarranted, unreasonable and cannot be supported having regards to the available evidence. (Ground 4 of the Notice of Appeal).

On the part of the Respondent, a lone encompassing issue was distilled from all the grounds of appeal thus:

Was the conviction and subsequent sentence of the Appellant on charges of manslaughter pursuant to Section 105 (a) Armed Forces Act CAP A20 LFN 2004 by the General Court Martial which held in 82 Divisional Headquarters of Nigerian Army Enugu, not legally justifiable as to warrant the setting aside of the said conviction and sentence by this Honourable Court.

The three issues of the Appellant are subsumed in the lone issue of the Respondent, they shall accordingly be taken together.

Chief Umeh argued that the case against the Appellant was not established beyond reasonable doubts as the adduced facts showed that the Appellant did not act with recklessness and was not negligent. It was further submitted that although the deceased died of gunshot wounds, the gunshot was from an accidental discharge which is not consistent with gross negligence on the part of the Appellant. The learned counsel referred to THE STATE VS ODEYEMI IYAPO (1969) ALL NLR 500.

The learned counsel further argued that the testimonies of PW1 and PW2 as well as exhibits P1 and P2 were hearsay and inadmissible and should have been discountenanced by the General Court Martial. He referred to

EHIMEN ESENE VS THE STATE (2017) LPELR-41912 (SC).

The learned counsel contended that the testimony of PW4 should also be discountenanced as he did not perform an autopsy on the deceased while the testimony of PW3, an eye witness was consistent with that of the Appellant as DW1 that the gunshot was an accident. He referred to ADEKUNLE VS STATE (2006) ALL FWLR (PT 332) 1452 at 1454.

Learned counsel argued that the General Court Martial was wrong in its conclusion that the death of the deceased occurred from poor weapon handling on the part of the Appellant as the facts showed that the gunshot was accidental and not deliberate or intentional. He referred to the definition of ‘accident’ in the 7th Edition of the Black’s Law Dictionary, at page 15 and also referred to APUGO VS STATE (2006) ALL FWLR (PT 341) 1253 at 1258, AMAYO VS STATE FWLR (PT 91) 1571 and ADEKUNLE VS THE STATE (2006) VOL. 5 LRCNCC 1 at 5.

Finally, Chief Umeh submitted that the judgment of the General Court Martial was not supported by the available evidence which showed that the death of the deceased resulted from accidental discharge without any criminal malice or

negligence. He referred to MAITIAKI VS STATE (2008) ALL FWLR (PT 419) 500 at 504, CHUKWUKA VS STATE (1992) 1 NWLR (PT 21) 1 NWLR (PT 21) 255 and AJOSE VS STATE (2002) 7 NWLR (PT 766) 302. He submitted that accidental discharge without criminal malice or negligence exculpates from criminal liability and referred to ADEKUNLE VS STATE (supra) and ROMANTI VS STATE (1964) ALL NLR 311. He urged the Court to discharge and acquit the Appellant.

Contrariwise, Mr. Eze outlined the essential ingredients of the offence and submitted that where the circumstances of death showed that the death of the deceased was contemporaneous with the act of the accused in such a manner that it could be inferred that the death resulted from the said act of the accused, the requirement of medical certificate or autopsy could be dispensed with. He highlighted the adduced evidence showing that the deceased died almost immediately after the gunshot and referred to SAHEED VS STATE (2018) LPELR-46675(CA) and OGBU VS STATE (2007) 5 NWLR (PT 1028) 635.

On what constitutes a reckless or negligent act, the learned counsel referred to Section 343 of the Criminal Code Act, Cap C38 LFN 2004

and Black’s Law Dictionary (10th Edition) 1196 and 1492. He also referred to OGBIRI & ANOR VS NIGERIA AGIP OIL COMPANY LTD (2010) LPELR-4686(CA) and ONAKOYA VS FRN (2002) LPELR-2670(SC).

Mr. Eze then referred to the adduced evidence of the immediate events leading to the gunshot and submitted that the Appellant exhibited negligence and recklessness in clearing his rifle in an enclosed place, a drinking bar having people and that the General Court Martial was right in finding his conduct negligent and reckless pursuant to Section 143(3) of the Armed Forces Act (supra). He urged the Court to affirm the judgment of the General Court Martial.

In his Reply brief, Chief Umeh reiterated his earlier submissions that the acts of the Appellant were accidental and unintentional and could not as such attract criminal culpability.

As earlier stated, the Appellant was arraigned for a one count charge of manslaughter pursuant Section 105 (a) of the Armed Forces Act (supra) to which he pleaded not guilty. The provisions thereof as follows:
105. A person subject to service law under this Act who-
(a) unlawfully kills another person in such

circumstances as not to constitute murder;
The Appellant was, pursuant to Section 36(5) of the Constitution of the Federal Republic of Nigeria (as amended), entitled to be presumed innocent until the said criminal allegation was established beyond reasonable doubt thereby placing the onus of proof squarely on the Respondent. Proof beyond reasonable doubt is not proof beyond any shadow of doubt. That degree of proof is attained when each of the ingredients of the offence involved is established beyond reasonable doubt with cogent and credible evidence. See STATE VS ONYEUKWU (2004) LPELR-3116(SC), ANKPEGHER VS. STATE (2018) LPELR-43906 (SC) and EZEANI VS. FRN (2019) LPELR-46800 (SC).
To establish the stated offence of manslaughter under Section 105 (a) of the Armed Forces Act (supra), it must be established that the accused is subject to service law. It must further be established that he killed another person and that the said killing was unlawful. The offence of manslaughter simpliciter would be established if it is proved that the accused intentionally committed an act which was rash, dangerous and inadvertently caused death.

See IDOWU VS STATE (2000) LPELR-1429(SC).

In convicting the Appellant, the General Court Martial made the following findings contained on pages 335-336 of the record of appeal thus:
The GCM has reached its decision based on the following reasons:
a. The GCM is convinced beyond all doubt that Gnr Tope Akinbinu is subject to service law.
b. That Gnr Tope Akinbinu fired the round that killed Gnr Yahaya Mustapha.
c. That the killing of Gnr Yahaya Mustapha resulted from the poor weapon handling of Gnr Tope Akinbinu.
d. The Court is further convinced that Gnr Tope Akinbinu did not apply adequate professional measures in making his weapon safe, hence the resultant killing of the deceased soldier.
That the killing of Gnr Yahaya Mustapha was unlawful.
Consequently, this General Court Martial finds you the accused soldier, 2002 NA/49/1366 Gnr Tope Akinbinu guilty as charged.

The gravamen of the contention of the Appellant in this appeal is that the facts adduced at trial disclose that the shooting of the deceased occurred from an accident for which the Appellant should not have been found culpable. Learned counsel further contended that the

testimonies of PW1, PW2 as well as exhibits P1 and P2 all constitute hearsay evidence which should have been discountenanced.

I have examined the testimonies of PW1 and PW2 and cannot agree with Chief Umeh that they gave hearsay evidence. They both testified directly of what was within their personal

knowledge. Exhibits P1 and P2 were summaries of the extra judicial statements of the Appellant and PW1 and were of no significance to the trial. This is because the handwritten extra judicial testimony of the Appellant was subsequently admitted as exhibit P5 while the extra judicial statement of PW1 was no substitute for his evidence in Court. It is well established that the evidence of a witness is what he states directly before the Court. His extra judicial account contained in the statement made earlier to the investigator could only be used to test the veracity of his testimony before the Court where inconsistencies or contradictions are noted. The procedure is for the defence counsel to in the course of cross-examination, request for the earlier statement of the witness in question and tender the said earlier statement as exhibit before proceeding to draw the attention of the said witness to the portion of his said previous statement that is in conflict with the instant testimony at trial. The witness is then given the opportunity to explain the noted inconsistency. SeeESANGBEDO VS. THE STATE (1989) LPELR-1163 (SC) and CHRISTOPHER ONUBOGU VS THE STATE (1974) 9 S.C. 1 at 17-19.

Moving to the main issue, the facts adduced at trial includes that of PW3,was an eye witness and testified that the Appellant who had earlier cocked his rifle on hearing someone call his name from inside the drinking bar, entered and saw that it was the deceased, an old friend of his. That the Appellant then attempted to clear his rifle and return it to safe mode when gunshot was fired hitting the deceased who later died. This account was not in conflict with that of the Appellant. The Appellant’s account on page 216 of the record of appeal was as follows:
When I was carrying out the safety precaution I want to cock for the rounds or the bullet inside the chamber to come out and for me to be able to carry out the safety and carry rifle very well.
It was then the rifle now mistakenly shot, mistakenly fire, the rifle fired.

There was no contention among the parties that the incident took place in a drinking bar with people. The learned counsel for the Appellant argued strenuously that the gunshot was an accident devoid of negligence or recklessness on the part of the Appellant. With due respect to the eminent

counsel, I do not agree with him. The overwhelming evidence including the account of the Appellant himself was that the Appellant, a trained soldier mishandled his weapon in an enclosed environment having other parties which directly led to the death of the deceased. This act which unnecessarily endangered the lives of the deceased and other people in the drinking bar was reckless and negligent. The Appellant is not availed by the defence of accident as the law is clear that a defence of accident can only be sustained where the act was independent of the will of the accused person. See UWAGBOE VS. STATE (2008) LPELR-3444(SC) and AMOS VS. STATE (2018) LPELR-44694(SC).

I therefore have no basis to interfere with the verdict of the General Court Martial in convicting the Appellant.
I resolve the three issues for determination of the Appellant and the sole issue of the Respondent against the Appellant and in favour of the Respondent.
I find no merit in this appeal and I accordingly dismiss it.
The judgment of the General Court Martial is hereby affirmed.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read in draft the lead

judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with his reasoning and conclusion that the appeal has no merit and is hereby dismissed.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Joseph Olubunmi Kayode Oyewole, JCA just delivered. I am in agreement with the decision reached and the reasoning behind the decision.

For the detailed reasons adumbrated in the lead judgment, I too, hold that the appeal lacks merit. Same is equally dismissed. The conviction and sentencing of the appellant by the trial General Court Martial are hereby affirmed.

Appearances:

Chief P. N. Umeh, with him Mrs. C. G. Odezugo Esq. For Appellant(s)

Mr. C. A. Eze For Respondent(s)