EMMANUEL AYO v. THE STATE (2014)

EMMANUEL AYO v. THE STATE

(2014)LCN/7476(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of October, 2014

CA/AK/220C/2013

RATIO

CRIMINAL LAW: THE OFFENCE OF MANSLAUGHTER; THE PROVISION OF THE CRIMINAL CODE LAW CAP 30 LAWS OF ONDO STATES AND WHAT MUST BE PROVED IN ESTABLISHING THE OFFENCE OF MANSLAUGHTER

Sections 324, 315 and 317 of the Criminal Code Law Cap 30 Laws of Ondo State 1978 read as follows:
324. Any person who conspires with any other person to kill any person, whether such a person is in Nigeria or elsewhere is guilty of a felony and is liable to imprisonment for fourteen years.
315. Any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter, according to the circumstances of the case.
317. A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter.”
In establishing the offence of manslaughter, it is not necessary to prove any intent to kill or do grievous bodily harm provided there is proof that the unlawful act of the accused caused, some harm to the deceased, which harm caused his death. See Egbirika v. The State (2014) 1 SCNJ 255 at 255 280.
The death must be caused by the unlawful act of the accused person. It must be proved not merely that the act of the accused person could have caused the death of the deceased but that it did. See Agugo v. The State (2007) 2 NCC 30 and R v. Oledinma (1940) 2 WACA 202. per. JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT

It is settled law that where an accused person confesses to the commission of an offence, he can be convicted on his own confession alone once the confession is positive, direct and properly proved and as long as the court is satisfied. See Afolabi v. The State (2014) 6 SCNJ 159. per. JAMES SHEHU ABIRIYI, J.C.A.

CRIMINAL LAW: MURDER CASE; THE DUTY OF THE PROSECUTION TO ESTABLISH THE CAUSE OF DEATH WITH CERTAINTY BEYOND REASONABLE DOUBT

However, I would like to add some few words. In a murder case, the prosecution has a duty to establish the cause of death with certainty and show that it was the act of the accused person that caused the death. Where, as in the instant case, it is alleged that death has resulted from the act of a person, a casual link between the death and the act must be established and proved in a criminal proceeding beyond reasonable doubt.
See Oche v. State (2007) 5 NWLR (Pt. 1027) 214; Oferlete v. The State (2000) 12 NWLR (Pt. 681) 415 (2000) 3 NSCQR 243 at 265 SC.
For a court to convict an accused for murder, the prosecution must prove beyond reasonable doubt that the accused person did something or omitted to do something he had a duty to do by law and that the said act or omission resulted in harm to the deceased. This has not been proved in the instant case.
If the cause of death has not been proved the voyage of discovering the culprit will be a futile one. This is because the first and logical step in the process of such proof is to prove the cause of death and establish the casual link between the death and act of the accused person. The prosecution should have ensured that adequate and cogent evidence of casual link of the cause of death and the Appellant’s act was presented at the trial.
In the case of Iheanyighichi Apago v. The State (2006) 7 SCNJ 587, the Supreme Court per Niki Tobi, JSC held that “in a murder case, the prosecution has a duty to establish the cause of death with certainty and show that it was the act of the accused person that cause the death”. Per. MOJEED ADEKUNLE OWOADE, J.C.A.

EVIDENCE: PROOF BEYOND BEYOND REASONABLE DOUBT; THE CONSEQUENCE OF A WRONGFUL CONVICTION NOT BASED ON PROOF BEYOND REASONABLE DOUBT

A lacuna in prosecutorial facts cannot ground a conviction. The wrongful conviction not based on proof beyond reasonable doubt, must be set aside and quashed. See Nnunkwe v. The State (2004) All FWLR 201 @ 1784, S.135 Evidence Act 2011; Woolmington v. D.P.P. (1935) A.C. 462. Per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

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

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

EMMANUEL AYO Appellant(s)

AND

THE STATE Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State, Akure Judicial Division delivered on 23rd July, 2012 in suit No: AK/49c/2010 wherein the appellant was found guilty of manslaughter and conspiracy contrary to sections 317 and 516 of the Criminal Code, Cap 37 Laws of Ondo State 2006 although he had been charged with two others who were at large for conspiracy to commit murder and murder contrary to sections 324 and 319 of the Criminal Code Cap 30, Vol. II, Laws of Ondo state 1978.

The case of the respondent at the Lower Court was that the Chief of Ode-Igele via Ita-Ogbolu reported to the police that the youth of his community found that where the appellant and his colleagues were living, they were fighting. The police went to where the chief said the fight was going on. On reaching the place, the police met the appellant. There was a corpse wrapped in a sack beside the appellant. The appellant was trying to bury it. Those that were with the appellant ran away when they saw the police. Then the appellant was arrested. The appellant had a cutlass with him. The appellant was asked to identify the corpse. The appellant said it was the body of Ifeanyi who was his colleague.

The police took the appellant to the police station with the remains of the said Ifeanyi. There the police took the picture of the appellant with the corpse beside him. The photographer used a digital camera to take the photograph. The photographer was not found at the time the trial commenced, so the photographs were tendered through Corporal Obuo Samuel (PW2), admitted and marked Exhibits A and A1. The statement which the appellant purportedly made to the PW2 was admitted in evidence by the Court after a trial within trial but not marked.

When the appellant was transferred from Iju/Ita-Ogbolu Divisional Headquarters to the state C.I.D. Homicide section Akure, the police there took him to the scene of crime.

The statement which the appellant purportedly made at the C.I.D. Homicide Section was rejected by the Lower Court after a trial-within-trial on the ground that it was not voluntarily made.

The photographs which the police at the C.I.D. Homicide Section claimed to have taken at the scene of the crime were tendered only for identification purpose and were marked ID1, ID2 and ID3.

The defence of the appellant in court was that he was returning from work. On his way from where he had gone to work as a labourer, the police arrested him. He asked the police why he was arrested. The police said that someone was killed in the bush. The appellant said he did not know anything about it. He was taken to the police station. On getting there he saw a corpse on the ground. He was given a cutlass and placed by the side of the corpse and his photograph with the corpse was taken. He was later taken to police headquarters and then to the Court.

After hearing evidence of the two witnesses called by the respondent and the defence of the appellant who testified alone in that regard, the Lower Court convicted the appellant for manslaughter and conspiracy and sentenced him to seven years imprisonment with hard labour.

Dissatisfied with the conviction and sentence the appellant has approached this Court by way of appeal challenging the conviction and sentence upon the following grounds:
(a) the decision of the learned trial Judge is wrong in law because the prosecution did not prove the commission of the offence of manslaughter beyond reasonable doubt against the appellant.
(b) Having regards to the evidence on record, the decision of the trial court is unwarranted and unreasonable.

From the two grounds of appeal the appellant formulated the following issues for determination in this appeal:

1. Whether or not the prosecution proved the essential ingredients of the offence of manslaughter beyond reasonable doubt against the appellant?
2. Whether the learned trial Judge evaluated or properly evaluated the evidence before finding the appellant guilty and if not did not his failure to do so occasion a miscarriage of justice?

On its part, the respondent formulated the following issues for determination:

(a) Whether or not the learned trial Judge rightly convicted the accused/appellant for the offence of manslaughter.
(b) Whether or not the learned trial Judge rightly evaluated the evidence in this case before arriving at the conviction of the accused/appellant.

It appears to me that the issues formulated by both parties are very identical and that the appeal can be determined only on Issue 1 formulated by both parties.

Arguing the appeal learned counsel for the appellant submitted that the prosecution failed to prove beyond reasonable doubt that the accused was culpable in anyway whatsoever in the death of the victim. The Court was referred to Nnunkwe v. The State (2004) ALL FWLR (Pt. 201) at 1784.

The appellant, it was submitted, was nowhere linked to the victim. The two witnesses called by the prosecution, it was argued, were not eye-witnesses to the offence charged as they were the two officers that investigated the matter.

It was submitted that the learned trial Judge misdirected himself in Law when he held that the respondent had on the basis of Exhibits A, A1 and B established their case against the appellant.

It was submitted that Exhibits A and A1 were wrongly admitted in evidence as they were not tendered by an expert and the maker.

It was further submitted that failure to tender a medical report of cause of death was detrimental to the respondent’s case. We were referred to Chukwu v. State (2007) ALL FWLR (Pt 364) 268 at 298-299. It was submitted that the Lower Court scouted for evidence and reasons to pin the death of the deceased to the appellant especially when it found that the death of the victim was due to the attack by one “Glory”.

The trial court, it was pointed out, at page 29 of the record stated that “the full identity of Ifeanyi the victim of the charge is not known”

It was submitted that if the identify of the deceased was not proved before the Court then it is curious that the appellant was convicted for the death of a person not linked to him by the court.

It was submitted that the Lower Court, formed an opinion that the deceased person was Ifeanyi who was working with one Chinedu. This, it was submitted was erroneous and not supported by evidence of the parties. It was submitted that no evidence was led showing who Ifeanyi was and or the relationship between the said Ifeanyi and Chinedu. It was submitted that the deliberate neglect to bring Chinedu, Ukemmadu and the people in the farm as witnesses show that they had something to hide.

It was submitted that since there was no evidence showing that all the essential ingredients of the offence of manslaughter were proved beyond reasonable doubt, the Lower Court should have returned a verdict of discharge and acquittal in favour of the appellant.

It was submitted that the prosecution nowhere led evidence to show that the appellant struck the victim with either the sharp or flat side of a matchet as contained in paragraphs 26 and 27 on page 8 of the Lower Courts judgment. This it was submitted explains the lower court’s remark as follows:

“It was probably the flat side of the machete that was used to beat Ifeanyi by the accused.”

It was submitted that in a murder trial the issue of probability does not arise as the prosecution must prove its case beyond reasonable doubt. The prosecution, it was submitted did not prove the beating of the victim by the appellant.

It was submitted that in a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death but that it did. The court was referred to R V. William Oledima 6 WACA 202.

The respondent, it was submitted did not establish the cause of death of the victim in the first place and was not bothered to link the Appellant with it.

It was submitted that the Lower Court relied on Exhibit B to convict the appellant when no document was admitted as Exhibit B.

It was contended that the Lower Court reserved ruling in the trial within-trial to be read with the judgment which was wrong and unacceptable in law. That throughout the proceedings it is not shown that the confessional statement was admitted and marked Exhibit B. It was submitted that the evidence led by the prosecution witnesses was a tissues of facts engrafted in suspicion and speculation which did not prove the guilt of the appellant. It is the law, it was further submitted that suspicion no matter how strong cannot constitute the basis upon which an accused person would be convicted of crime. We were referred to Obiakor v. The State (2002) 6 S.C. (Pt. II) 33.

It was finally submitted that the improper evaluation of the evidence of parties by the Lower Court was a substantial reason for the wrong conviction of the appellant by the trial court. The Court was urged to quash the conviction of the appellant and acquit him.

On its part the respondent’s counsel submitted that the prosecution proved the case of manslaughter beyond reasonable doubt.

It was submitted that the evidence of PW1 and PW2 and Exhibits A, A1 and B showed that the deceased died.

It was submitted that the omission to mark the confessional statement of the appellant was an excusable slip which does not occasion a miscarriage of justice. We were referred to Udoebe v. State (2001) 6 SC 1.

Exhibits A and A1, it was submitted were rightly admitted in evidence.

It was submitted that the respondent had proved through PW1, PW2, Exhibits A, A1 and B the death of the deceased and that the death of the deceased was as a result of the unlawful act of the appellant.

We were referred to portions of the lower courts judgment at page 30 lines 13 – 16 and 25 – 30 of the record of appeal.

It was submitted that the respondent established the cause of death of the deceased in this case and therefore medical report on the cause of death ceased to be a sine qua non as rightly held by the trial court.

It was submitted that the evidence of PW1 and PW2 was not hearsay evidence.

It was argued that since the Lower Court had already marked some Exhibits A and A1, the confessional statement which was admitted in a ruling delivered on 5th July, 2012 was rightfully referred to in the judgment as Exhibit B even though not so marked when no other document was admitted as an exhibit after the ruling.

It was submitted that the appellant had not shown how the non-marking of the admitted confessional statement has led to a miscarriage of justice.

It was submitted that the decision of the Lower Court was not based on speculation and suspicion but on the strength of the case presented by the prosecution and the defence.

The court was urged to dismiss the appeal and affirm the conviction and sentence of the appellant.

In the instant case the only witnesses called by the respondent were two police officers. PW2 who with others purportedly arrested the appellant at the scene said that when they got there, the appellant told them what happened. PW1, who purportedly went to the scene after the appellant had been transferred to the CID Homicide Section from the Divisional Office, said that the corpse had been removed to the mortuary before he visited. It is clear as crystal therefore that the evidence of the two respondents’ witnesses was hearsay. Where the only eyewitness to a crime is the accused alone whatever any other witness would testify to as to the unlawful act is hearsay. See Ahmed v. State (1999) 7 NWC (Pt. 612) 641.

In his evidence, the PW2 said that when they got to the scene, the appellant was trying to bury the corpse. On what evidence did he draw this conclusion? On the available evidence before the Court there was no such evidence other than that he PW2 said so. Although the police took photographs of the appellant stooping with a cutlass beside the corpse and also attempting to lift the corpse’s head at the police station, the photograph of the place the appellant was trying to bury the corpse was not taken. So the allegation that the appellant was trying to bury the corpse when the police arrived is without any basis.

Why were the photographs of the appellant taken at the police station with the corpse beside him and a cutlass in hand and even getting him to try to lift the corpse from the head or lift the head only? In my view, it was an attempt to manufacture evidence. No police station should be turned into a factory for the manufacturing of evidence. Where a crime is alleged to have been committed, the police have a duty to thoroughly and intelligently investigate it with a view to bringing the perpetrators of the crime to justice. The photographs Exhibits A and A1 were a mockery to put it mildly and the Lower Court ought not to have relied on them.

Once the police have extracted what it considers a confessional statement from an accused person, it does not usually see the need to conduct further investigation into the matter. Even where it purportedly has other evidence available to it without much effort on its part such evidence is never made available at the trial. Or how else would one explain the failure of the respondent to tender the sack which the PW2 said they found the corpse inside. Although the police anxiously took the photograph of the appellant at the police station holding a cutlass as if it was then he was about to cut the deceased, the said cutlass was not tendered in evidence. The only explanation for the failure to tender these exhibits would only be found in the purported confessional statement extracted from the appellant.

In the lower court the appellant denied the voluntariness of the extra-judicial statements purportedly made by him. One was rejected in evidence after a trial within trial on the ground that it was not voluntary. After the trial within trial in respect of the second statement, the lower court had this to say: “The Ruling will be incorporated into the Judgment.” This was on the 16th May, 2012. Apparently having realized that this was a strange procedure, the Lower Court on the 5th July, 2012 delivered a ruling in which it admitted the second statement but failed to give it a mark. However, it referred to it in its judgment delivered on the 23rd July, 2012 as Exhibit B. Learned counsel for both parties have made heavy weather of these.

Let me quickly dispose of the omission to mark the statement. In my view the failure to mark the extra-judicial statement was a procedural slip and did not occasion a miscarriage of justice. The use of the extra-judicial state or reliance on it by the lower court did not occasion a miscarriage of justice either. On the basis of the procedural slip. It did not matter that he referred to it as Exhibit B even though that was unnecessary. He could very well have merely referred to it as the extra-judicial statement or merely the statement of the accused person instead of the rather dishonest reference to it as Exhibit B when it was never so marked.

However as the ruling admitting the extra-judicial statement was delivered after the close of cases of both parties, learned counsel for the appellant was in my view prevented from cross-examining the PW2 through whom it was tendered on it. This undoubtedly touched on the appellant’s right to fair hearing. In the circumstance, the lower court deprived the appellant of his right to fair hearing by relying on a statement which the appellant’s counsel did not have the benefit of cross-examining on. This is my view vitiated the trial.

Assuming I am wrong, was the Lower Court entitled to convict the appellant on this statement for the offence of conspiracy and manslaughter?

From the extra-judicial statement of the appellant, they went to ask the deceased if he was the person that removed something from their master’s store. The deceased apparently seemed to have admitted but not in so many words. So the appellant and the two other people started beating him. If conspiracy is an agreement of two or more persons to do an act which it is an offence to agree to do, as the law says, then I cannot find conspiracy between the appellant and the two others.

Although it turned out that they beat the deceased that was not an agreement reached among them. They merely went to ask the deceased if he was the person who stole from their master’s store. In my view therefore the appellant was wrongly convicted of conspiracy.

On the conviction for manslaughter what did the appellant say in the extrajudicial statement to be entitled to the conviction and sentence for manslaughter. This is what he said in part:

“…… we started beating him with matchet from Ukemmadu hurt (sic) to our hurt (sic). On getting to our hurt (sic) the deceased Ifeanyi (M) doesn’t want to confess we tied him with wrope (sic) on two arm and his two legs then we continue beating him till he collapse we tried to rescue him all effort to do so proved abortive but Glory (M) cut the deceased with matchet on his head.”

From the foregoing extract from the extra-judicial statement, was it the beating that caused the death? Was it the cut from Glory? Was it both the beating and the cut? Evidence to support a conviction must not create room for speculation. See Anekwe v. State (2014) 10 NWLR (Pt. 1415) 353 at 379.

In my view medical evidence was necessary to prove the beating and the cut and what caused the death. But this was not obtained and therefore was not tendered. From the extra-judicial statement it cannot be said that any unlawful act of the appellant caused some harm to the deceased which harm caused his death.

It is surprising that none of the boys who purportedly reported to the chief that there was a fight was called to testify to this fact and where the fight was going on. It is surprising also that the police was able to go there without any aid. I have earlier stated that although they purportedly found the corpse in a sack, that sack was not tendered in Court. Even the cutlass which they purportedly found on the appellant was not tendered in court. Why would all this evidence be produced when there was “a confessional statement? If the lower court had properly asked the questions which it said it did, it would have discovered that there was nothing outside the confession which showed that it was true. That it was not corroborated. That it was not consistent with other facts which have been ascertained and have been proved. That this was another case that cried out to be fed with evidence, relevant evidence.

From all that I have stated above the only issue for resolution should be resolved in favour of the appellant: I accordingly do so.

The appeal is allowed, the conviction and sentence of the appellant are hereby quashed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment just delivered by my learned brother James Shehu Abiriyi, JCA. I agree with the reasoning and conclusion reached thereat, I too allow the appeal and quash the conviction and sentence of the Appellant.

In sum, I have made this little contribution, considering the detailed analysis of salient facts of this case and applicable case law by my learned brother James Shehu Abiriyi, JCA, in the leading judgment. I too allow the appeal, the conviction and sentence of the Appellant are hereby quashed.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read the lead Judgment prepared and just delivered by my Lord Hon. Justice James Shehu Abiriyi, JCA in this appeal. I agree that the appeal should be allowed and the conviction and sentence as relating the alleged offences of conspiracy and Manslaughter be quashed.

The Appellant was sentenced to a term of 7 years imprisonment upon a conviction not founded on any proven offence.

There was no direct nor circumstantial evidence linking the Appellant to the offences charged. The purported confessional statement referred to as Exhibit ‘B’ never in fact existed at the lower court. The founding of a conviction upon same was a speculative manufacture of evidence by a court, contrary to its role of only acting based on legally admissible evidence tendered and admitted.

There is nothing on the record of Appeal indicating an Exhibit ‘B’ that was so tested in the open court by an examination and cross-examination thereon.

The only witnesses for the prosecution, to wit PW1 and PW2 did not by any stretch prove any of the ingredients of the offences upon which the Appellant was convicted.

The decision to prosecute at all, was not properly exercised in the interest of Justice, public interest and the need to avoid the abuse of the Judicial process, as a thorough and detailed investigation needed to have been done and prosecution done only where facts were meticulously assembled and portending the existence of a prima facie case.

It must be observed that evidence in the place of the photographs Exhibits “A” and A1 were wrongfully relied upon in convicting as miscarriage of Justice had been caused by such reliance thereon, as the exhibits were not corroborated in the slightest. They are prejudicial exhibits! Death, not proved to have been caused by the unlawful act of the Appellant, cannot ground a conviction as in the trial in this appeal.
See R v. Williams Oledima 6 WACA 202. Apugo v. The State (2007) S.C. (Pt. 11) 207 @ 215. Ahmed v. The State (2001) 18 NWLR (Pt. 746) 622; Eme Orji v. The State (2008) 10 NWLR (Pt. 1094) 31 @ 54.
That the Accused acted foolishly or stupidly is not proof of a crime.
There must be an act or omission in aid, abetting, facilitating or in execution. A mere presence is not sufficient as all circumstances must be pinned down to a direct or positive complicity. The 1st statement Exhibit “R” had been rejected and so also the photographs (through PW1).

If I must talk more, I should say that there are observable lapses in the trial procedure in this matter, as there was no sentence in respect of each of the offences of conspiracy to assault and Manslaughter upon which the appellant was convicted. The sentence was in-choate, such that no plea of ultrafois convict or ultrafois acquit can be founded on same. An irregularity that warrants the quashing thereof of the sentence, exists in this case! A desperation in a trial, conviction and sentence, I see here.

My Lord, James Shehu Abiriyi, JCA is right in allowing this appeal and I concur.

Appearances

Adekunle Ojo Esq.For Appellant

AND

A. O. Adeyemi-Tuki (Mrs.) (DPP) with B. V. Falodun (SLO)For Respondent