KINGSLEY OKORO V. THE STATE
(2012)LCN/5742(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/B/9C/2009
RATIO
CRIMINAL LAW: REQUIREMENTS FOR PROVING THE OFFENCE OF MURDER
For the offence of murder to be proved the prosecution must adduce clear evidence of the following facts:
- Death of the deceased
- The act or omission of the accused which caused the death of the deceased
- That the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
- 316 of the Criminal Code provides as follows:-
Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:
1) If the offender intends to cause the death of the person killed, or that of some other person;
2) If the offender intends to do to the person killed or to some other person some grievous harm,
3) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
4) If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence.
5) If death is caused by administering any stupefying or over powering things for either of the purposes last aforesaid;
6) If death is caused by wilfully stopping the breath of any person for either of such purpose.
Is guilty of murder. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A
CRIMINAL LAW: NATURE OF THE DEFENCE ACCIDENT
The defence of accident is an absolute defence under the Criminal Code. Section 24 makes provision for defence of actions which occur by accident. The Section provides thus:
Subject to the expressed provision of this code relating to negligent acts or omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or for an event which occurs by accident. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A
CRIMINAL LAW: NATURE OF MENS REA
Mens rea is a term which has its own meaning which can be ascertained only by reference to its statutory definition or the case law. In crimes requiring mens rea as distinct from negligence, the accused should be liable only for that which he had chosen to bring about, or to take the risk of bringing about. His intention or recklessness as to all the elements of the actus reus was considered or referred to be mens rea or the basic constituent of it. An intention to cause grievous bodily harm is the mens rea for murder. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A
CRIMINAL LAW: ATTRIBUTES OF THE DEFENCE OF ACCIDENT
According to Karibi – Whyte JSC in IGAGO V. THE STATE (1999) 14 NWLR Pt 637 Pg. 1, the defence of accident in criminal law has the following attributes:
- a) An accident is the result of an unwilled act, and as such, oh event without the fault of the person alleged to have caused it.
- b) For an event to qualify as an accident under S.24 of the Criminal Code, it must be a surprise to the ordinary man of prudence, and that is, a surprise to all sober and reasonable people.
- c) The test is always objective, and like all other defences, it presupposes that the accused, physically committed the offence, but should be acquitted because it was inadvertent.
At common law there must be absence of mens rea for the defence of accident to avail an accused. Thus, under the Criminal Code, accident is a defence to criminal liability if it can be proved that the event occurred independently of the exercise of the will of the accused person. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A
EVIDENCE: ESSENCE OF A CONFESSIONAL STATEMENT
It is settled that a confessional statement is the strongest evidence against the maker thereof and where it is free and voluntary and the court is satisfied as to its truth, an accused person – the maker of the statement can be assuredly convicted on it. See Akpan V. The State (2001) 15 NWLR (pt.737) 745; Golden Dibie & 2 Ors V. The State (2007) 3 SCNJ 160 at 171 – 172; Usman Kaza V. The State (2008) 2 SCNJ 373 at 423; Adebayo V. Ogun State (2008) 2 SCNJ 352 at 267; Arogundade V. The State (2009) 2 SCNJ 44 at 49 – 50. PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
KINGSLEY OKORO Appellant(s)
AND
THE STATE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the delta State High Court delivered by Hon. Justice Ebowei Tobi on 28th July 2008. The facts that led to this appeal are as follows:
The Appellant and the deceased were husband and wife living together.
The Appellant was the Pastor and Founder of a Christian Ministry, the Great Faith Ministry at Owhase, Ovwian Town in the Udu Local Government Area of Delta State. They had no children together even though by a previous marriage the Appellant had several children. The couple lived alone together at the time of the incident. The uncontroverted facts are that on the night of March 25th 2005, the Appellant went alone to attend night vigil prayer session at Ugborikoko Effurun in the Church of one Pastor Phillip Oruvwedje. On his return the following morning, he slept and woke up in the afternoon. His wife accused him of having slept with a mistress. He denied this, he then declined to go with his wife to a pre-arranged social event. She then removed her outing clothes and started entertaining her friends. The Appellant started looking for his car key but could not find it. His wife denied hiding the key from him. He took a can of petrol from their room and he intentionally spilled some petrol on the rug in their room. The deceased who had gone to remove clothes from the clotheslines was hanging the clothes in the wardrobe in their room. The Appellant look a match and dropped it on the rug and the room caught fire. The deceased was severely burnt by the fire and she died on the 31st March, 2005. The Appellant was initially arrested and charged with attempted murder and when the deceased died, he was charged with murder.
At the trial, the Appellant pleaded not guilty to the charge. The state called three witnesses and tendered three Exhibits, namely Ex. ‘A’ the statement of the Deceased, Exh. ‘B’- the statement of the Appellant and Exh. ‘C’ another statement of the Appellant. The Appellant on his part gave evidence on his own behalf and called no witness. At the end of the trial, the Judge found the Appellant guilty and convicted him of the offence of murder and sentenced him to death to be hanged by the neck.
The Appellant has appealed to this court vide notice of appeal filed on the 14/6/08 on pages 111-113 of the record.
Let me first clarify an issue raised at the hearing of this appeal. Learned Appellant’s Counsel drew our attention to the fact that he had filed an addendum as it were to the Appellant’s brief which was an argument on the competence of the Appellant’s notice of appeal. On a previous hearing of this appeal, this court had queried the competence of the Appellant’s notice of appeal on the ground that after the Appellant and his witness had duly signed the notice, the Appellant’s Counsel also proceeded to sign same at the end of it. The Learned Respondent’s Counsel in my view properly conceded that the notice of appeal as filed was proper in law.
Suffice it to say on this point that Or 17 r 4(1) & (2) of the Court of appeal Rules are to the effect that the notice of appeal shall be signed by the Appellant himself provided that where strict compliance had been compromised, this court can entertain the appeal if satisfied that the intending Appellant had exhibited a clear intention to appeal to this court against the decision of the lower court.
There is no doubt therefore that the Appellant having signed the notice of appeal himself as required by law the surplusage of the signature of his counsel is of no moment. I therefore hold the opinion that the notice of appeal is competent and it is hereby declared so.
The Appellant filed Appellant’s brief on 5/3/09 while the Respondent’s brief was filed on 29/11/11. The Appellant’s brief settled by J. O. Eweibo identified 2 issued for determination as follows:
i. Whether the learned trial judge was right in convicting and sentencing the Accused/Appellant to death for the offence of murder based on Exhibits B and C alone held to be confessional statements of the offence of murder.
ii. Whether in the absence of Exhibits B and C there remains any cogent evidence adduced by the prosecution to contradict the Accused/Appellant’s evidence on oath and to sustain the finding of guilt, the conviction and the sentence.
In the Respondent’s brief settled by O. E. Enenmo Deputy Director of Public Prosecution, Delta State, the Respondent identified two issues for determination which are set out below:
i. Whether the learned trial judge was right to have relied on Exhibits B and C – the free, voluntary and direct extrajudicial confessional statement of the Appellant in convicting him?
ii. Whether having regard to the Appellant’s statements (Exhibits B and C) and other evidence before court, the learned trial judge was right in rejecting the defence of accident?
Having read through the records the grounds of appeal and the issues identified by both parties, I am of the view that the only issue for determination is really whether there was proof beyond reasonable doubt that the Appellant committed the offence of murder. I will determine this appeal by answering that question.
The argument of J. O. Oweibo Esq of counsel to the Appellant is that the learned trial Judge after admitting the Appellant’s statements Exh. ‘B’ made on 28/3/05 and Exh. ‘C’ made on 30/3/05 was in error to have considered them as confessional statements to the offence of murder. He insisted that both statements were made while the Appellant was charged with attempted murder and could not be used as statements made with full knowledge of the charge proffered against him. He argued that the time the Appellant made the statements he was charged with attempted murder since the deceased was alive and the crime of murder was not yet complete. He argued that the confessional statement was not in respect of the offence charged and could not be used by the learned trial Judge to convict the Appellant. He cited R. V. ERARUWOMI OTEDIA (1959) WRNLR 43; R. V. KNIGHT (1946) 31 CAR 52. Learned Appellant’s Counsel conceded that Exh. B & C are relevant and therefore admissible. However he urged the view that they cannot be regarded as statements in which the Appellant confessed to all the ingredients of attempted murder or murder. He submitted that even though the Appellant confessed to the actus reus that is the guilty acts, he did not confess to the mens rea. He submitted that the two elements of the offence must be directly and positively admitted before the statements can be regarded as confessional. He cited NWOBE V. THE STATE (2000) 15 WRN 133.
Learned Appellant’s Counsel argued that the learned trial judge was in error not to have taken a holistic view of the statement and not to have held that the intent to kill had been denied and then to have proceeded to base his conviction on them.
Learned Appellant’s Counsel submitted that the learned trial judge having rejected the admissibility of Exh ‘A’ as a dying declaration, he could rely on its contents as corroborative evidence of the cause of the death of the deceased. He urged the court to expunge Exh. ‘A’ as inadmissible as hearsay and submitted that the learned trial Judge relied on hearsay in convicting and sentencing the Appellant.
Appellant’s Counsel also argued that the offence of murder was never investigated since the prosecution did not call eyewitness evidence or tender any statements made by the Appellant after he was charged with murder. He argued that failure to adduce evidence of the police investigation into the later offence of murder is fatal to the case of the prosecution. He cited STATE V. ITODO (1968) NMLR 1; ESOP SAMSON EDOHO V. THE STATE (2003) FWLR Pt. 173 Pg. 29 at 53-54
Learned Appellant’s Counsel argued that the learned trial judge did not properly consider the defence of accident as raised by the Appellant and erroneously came to the wrong conclusion that the Appellant deliberately set his wife ablaze. Counsel argued that the Appellant if he had been malevolent would have been outside the room and not inside the room with a lantern when he dropped the match stick which ignited the fire. Counsel argued spiritedly that when one does an act no matter whether it is lawful or unlawful and he is prosecuted for an event that occurred out of that act, the only question for consideration is whether the event did in fact occur by accident. Counsel argued that the court is bound to believe only the evidence of the Appellant, the only eyewitness to the incident, to the effect that he forgot that he had spilled petrol on the rug fifteen minute earlier and threw the ignited match on the floor without intending to cause any fire or to burn his wife. Counsel pressed the view that where the defence of accident is upheld then the prosecution has failed to prove the necessary mental intent to cause the death of the deceased. He cited IROMANTU V. STATE (1964) 1 All NLR Pg. 311. Counsel was presumptuous enough to disagree with the reasoning of the Court of Appeal in JOHN AGBO V. THE STATE (2004) All FWLR Pt. 216 Pg.496 at 505 and that of the Supreme Court in SOLOMON ADEKUNLE V. THE STATE (2006) 6 SCNJ 275 which upheld the view that only an unwilled act can amount to an accident.
In the Respondent’s brief settled by O. F. Enenmo Deputy Director of Public Prosecution, Delta State, counsel submitted that the learned trial judge was right in law in relying on the extrajudicial statement of the Appellant in convicting him. Learned Respondent’s counsel argued that the Appellant did not challenge Exhibits B and C when the prosecution tendered them in court. By Exhibits B and C the Appellant identified himself as the culprit whose act led to the burn injury which caused the death of Gladys Okoro his wife. PW3 was the pathologist who conducted a post mortem examination on the deceased. He discovered that she had 70 to 80 percent degree burns. The summary of his post mortem report is that the deceased died of severe anamiae hypovolasmic shock arising from burns. The medical report is Exhibit D.
Learned Respondent’s counsel submitted that the denial or retraction of Exh. ‘B’ and ‘C’ does not mean it is not a confessional statement or that it is inadmissible, so long as it is free and voluntary and it is direct and positive. He cited ALARAPE V. STATE (2001) LRCN 600; R. V. ITULU (1961) All NLR 462,; JIMOH YESUFU V. THE STATE (1976) 6 SC 167; BATURE V. THE STATE (1994) 1 All NWLR Pt 320 Pg.267; EGBOGHONOME V. THE STATE (1993) 7 NWLR Pt.306 Pg. 385.
Learned Respondent’s Counsel argued that a confessional statement can be used to condemn an accused so long as it meets the tests set out by RIDLEY J. in R. V. SYKES (1913) CAR 233. He argued that the learned trial judge found that Exh. ‘B’ & ‘C’ passed the veracity test and used the said statement to convict the Appellant. He cited ARCHIBONG V. THE STATE (2006) All FWLR Pt. 323 Pg. 1747 at 1715; OGBUBUNIJO V. THE STATE (2001) 2 NWLR Pt. 698 Pg.576.
Learned Respondent’s Counsel also argued that the complaints that the prosecution did not call the officers who investigated the offence of murder and the statements made by the Appellant after the deceased had died was not tendered by the prosecution are irrelevant because the learned trial Judge had properly held at page 97 of the record in the judgment that:
“the prosecution is not under any legal duty and obligation to call any number of witnesses or any particular witness to prove its case”.
Counsel submitted that the defence if it needed to, had the opportunity to call the I.P.O. who investigated the murder charge when the prosecution failed to do so. He cited ARCHIBONG V. THE STATE Supra; AGBAJE V. THE STATE (1979) 6 -9 SC Pg. 18 at 28-29; OKOSI & ANOR V. THE STATE (1989) 2 SCNJ 183; (1989) NWLR Pt. 100 Pg.642.
Learned Respondent’s Counsel argued that the Appellant’s statements Exhibit B and C, his oral evidence in court, and the evidence of PW3 do not avail the Appellant of any defence under section 24 of the Criminal Code Laws of Edo State.
Counsel also asked us to consider the facts as stated in Exh. ‘B’ & ‘C’ which proved that the fire that burnt the deceased was started by the intentional acts of the Appellant in spilling fuel and dropping a lighted match on it when the Appellant should have known that the carpet would catch fire and the deceased would get burnt. He asserted that the above is proof that he intended to kill her. Counsel insisted that the learned trial judge was right in law when he rejected the defence of accident raised by the Appellant. This finding of fact on this issue was based on evidence before court. He argued that the Appellant had not challenged these facts.
Let me first address the issue made by the Appellant of the fact that the learned trial judge treated the statements Exh. ‘B’ & ‘C’ made by the Appellant when he was charged with attempted murder as if they were confessions to the offence of murder. Learned Appellant’s Counsel put up a vociferous argument in this regard to the effect that there is a distinction in law between the status of a person accused of attempted murder and a person accused of murder.
At pages 98-100 of the record the learned trial judge held as follows:
“What I will now address is whether Exhibits B and C are confessional statements. Exhibit B is the statement the accused person made on 28/3/05, that is two days after the incident. The statement was signed by him. I will quote some extract from the statement that will help us to answer the question whether it is a confessional statement or not:…
The summary of the above statement is that accused person admitted the act resulting in the death of the deceased but denied his intention to kill the deceased. From the statement above, he admitted intentionally pouring the petrol on the carpet in the room where the deceased was, he admitted bringing a lantern into the same room, lit it and threw the lit match stick on the floor with the knowledge that the carpet had fuel spilled on it. His defence however was that he never intended to kill his wife. The question now is that, looking at the totality of Exhibits B and C above, can it be said that they are confessional statements? In answering the above question, I am not supposed to get help from any other statement or evidence before me. I am to look at the statement themselves and make a pronouncement whether they are confessional or not”.
I quite agree with the argument of learned Appellant’s Counsel that there is a difference between a person accused of attempting the offence and a person, accused of actually committing the completed act. My concurrence is to the extent that most of the time our statute books provide different sanctions for the two different levels of culpability. The criminal code has very wide provisions relating to different degrees of punishment for the offence of attempting a substantive crime. This categorization is based on the level or severity of the substantive offence attempted. S.508 of the Criminal Code provides as follows:
Any person who attempts to commit felony or misdemeanor is guilty of an offence which unless otherwise stated, is a misdemeanor
S.509(1) states as follows:
Any person who attempts to commit a felony of such a kind that a person convicted of it is liable to the punishment of death or of imprisonment for a term of fourteen years or upwards, with or without other punishment, is guilty of a felony and is liable, if no other punishment is provided to imprisonment for seven years.
Thus a person charged with the offence of attempted murder cannot be in the same legal position as the person charged with the substantive offence. I concede that the law is that the actus reus and mens rea required are the same, however in an attempt the offence has not been completed. In the circumstances of this case, the Appellant made Exh. B & C while he was charged with an offence which did not carry the capital punishment because the deceased had not yet died.
After thoroughly considering whether Exhs. B and C can be used to convict the Appellant and applying the veracity tests to the statements, the learned trial judge concluded:
“I had no difficulty in holding that the confessional statement is free, voluntary, direct, positive and verified as to be accepted and acted upon by this court. I can rely on it to convict the accused however subject to any defence the accused has raised either expressly or by implication”.
At this point let me set out the relevant portions of these statements.
The Appellant in Exh. B stated thus:
“…So after the argument I now asked my wife to give me my car key, so that I can go out, so on that process, she said she did not collect the key. Before this argument I intentionally poured little quantity of fuel – petrol inside our room before I carried the four litre of the fuel outside. So she packed the cloth inside, I went and meet her inside our room with a lantern, “lamp” and matches while in the room I lit up the lamp with matches and as I dropped the remaining stick of matches on the floor, the fuel which I poured initially on the floor caught up with fire, meanwhile my wife was in the same room”.
At page 40 of the record in Exh. B the Appellant stated further that:
“Suddenly, I came out of the room to her outside and requested for my car- key, which she replied positively “Daddy I don’t know where your car- key is”. Then I went back to the room and after sometime and told her that if I don’t see my key that she will see a terrible thing. I did not know when Mary ‘F’ told my wife to go and help me look for the key, but I only saw my wife with clothes inside and went inside our bed room and started arranging the clothes in our ward- robe. I did not pour the fuel on the carpet as she was arranging the clothes in the wardrobe.
I had poured the fuel already on the carpet before she packed the clothes inside our Bedroom. When she was arranging the clothes at the wardrobe, I only came in with the lantern “lamp” and a matches. I poured the fuel intentionally but I did not drop the naked fire on the matches stick intentionally on the carpet.
Actually I poured the petrol on the carpet to threaten my wife as she was aware… It is true that I strike the matches and throw it on the floor and there was fire explosion, knowing fully well that already I poured fuel on the floor”
Let, me now restate the nature and relevance of confessional statements.
The law is that the prosecution can prove the guilt of an accused beyond reasonable doubt in three different ways. There can be proof by the evidence of an eyewitness, proof by conclusive circumstantial evidence and proof by the evidence of admissible extra judicial confessional statements made by the accused person. See EMEKA V. THE STATE (2005) 4 LRCN 259.
There is no doubt that the confessional statement of an accused person can be the basis of his conviction where it was made voluntarily and it is direct, positive, true and unequivocally made out of conscience and the necessity to uphold the truth even in the face of death see ADA V. THE STATE (2008) 2 SCNJ 373; ADEBAYO V. A.G. OGUN (2008) 2 SCNJ 352. In fact, in NIGERIAN NAVY & ORS V. LT COMMANDER S.A. IBE LAMBERT (2007) A SCNJ 1, the Supreme Court held that the statement merely amounting to implication in a crime is not sufficient. It but be unequivocal. Therefore before Exh. B & C can be used to find the Appellant guilty of murder these exhibits must show that the Appellant intended to kill the deceased and to that end perpetrated the acts which resulted in her death.
The veracity test is applied to ensure that the statement of the accused is tested closely in the light of other evidence. The legally acceptable questions are:
1. Is there anything outside it to show that it is true?
2. Is it corroborated?
3. Are the facts stated in it true as far as can be tested?
4. Did the accused person have an opportunity of committing the offence?
5. Is the accused person’s confession probable?
6. It the confession consistent with other facts which have been ascertained and proved?
We must remember that the learned trial judge had agreed in the judgment that while the Appellant confessed to the act which led to his wife’s death, he did not confess to the intention to kill her.
At pages 105-106 of the record, the learned trial Judge took pains to show that he used the confessional statements to arrive at the conclusion that the Appellant in fact killed his wife. The trial court at that stage did not use the Appellant’s statements to arrive at the conclusion that the act of the Appellant in killing his wife was unlawful, inexcusable or unwarranted. The trial Judge was very careful in his choice of words. Hear him
The question now is that, is the circumstantial evidence before me cogent, complete, unequivocal and compelling enough to lead to the irresistible conclusion that the accused killed his wife? I have no difficulty in so holding as all the evidence points to the accused as the person who killed his wife. It is not subject to dual interpretation. The circumstance as narrated by the accused person is cogent, direct, positive, compelling, unequivocal to the singular and irresistible conclusion that the accused killed his wife. This is a conclusion I am bold enough to arrive at in view of the evidence before me. I have no difficulty in drawing that conclusion. I therefore hold that the accused based on the confessional statement and the circumstantial evidence killed his wife.
The learned trial judge in my view redeemed the error of first concluding that the confessional statements were enough to convict the Appellant when he stated categorically at pages 105-105 of the record that even though the Exhibits B and C and other circumstantial evidence show that the Appellant killed his wife, that is not enough to come to the conclusion that he was guilty of the offence of murder.
I agree entirely with the learned trial Judge that the statements Exhs. B & C even though made while the Appellant was charged with the offence of attempted murder can be used to arrive at a conclusive finding giving rise to no equivocation that the acts of the Appellant led to the death of the deceased. I also find that the Appellant killed his wife.
I cannot agree that the above finding can be adversely affected by the fact that the Appellant made the statements confessing to the acts that led to the death of the deceased while he was charged with the lesser offence of attempted murder. The facts which constitute both the attempt and the substantive offence are usually the same except that there is no consummation or completion of the offence. I cannot agree that a dichotomy can be made regarding the inescapable finding to be derived from the statements made by the Appellant.
In both statements the Appellant said that he did not intend to cause the death of the deceased even though he intentionally poured the fuel on the floor to threaten the deceased and also dropped the match on the floor intentionally. I have to say that the entire appeal rests on the issue of whether or not the Appellant intended to cause the death of the deceased.
For the offence of murder to be proved the prosecution must adduce clear evidence of the following facts:
1. Death of the deceased
2. The act or omission of the accused which caused the death of the deceased
3. That the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
S. 316 of the Criminal Code provides as follows:-
Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:
1) If the offender intends to cause the death of the person killed, or that of some other person;
2) If the offender intends to do to the person killed or to some other person some grievous harm,
3) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
4) If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence.
5) If death is caused by administering any stupefying or over powering things for either of the purposes last aforesaid;
6) If death is caused by wilfully stopping the breath of any person for either of such purpose.
Is guilty of murder.
It will be observed that the first and the second elements above quoted, restate the general proposition that for a conviction for murder, proof of an intent to kill or cause grievous harm is sufficient. The proof of intent could either be direct or inferred from the surrounding circumstances. The onus is on the prosecution to prove intent. It may rely on the presumption that a man intends the natural consequence of his act, but in that case, it is also open to the accused to show that the death occurred in purely accidental circumstances and that he had no intent to kill or cause grievous harm to any person.
Let me consider the defence of accident as raised by the Appellant during his trial. There is no doubt that the Appellant is not quarrelling with the finding of the learned trial judge that it was the Appellant who caused the fire that burnt the deceased. The Appellant is not also quarrelling with the finding of the learned trial judge that it was the lighted match dropped by the Appellant on a rug where he had spilled petrol that caused the fire that killed the deceased. The Appellant is complaining that the learned trial judge was in error not to have accepted the defence of accident put up by the Appellant. The defence of accident is an absolute defence under the Criminal Code. Section 24 makes provision for defence of actions which occur by accident. The Section provides thus:
Subject to the expressed provision of this code relating to negligent acts or omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or for an event which occurs by accident. On this point, the learned trial judge held at pages 107 – 108 of the records as follows:
“From the action of the accused in the case, I can deduce what his intention was. In Exhibits B and C, he admitted intentionally pouring the fuel on the carpet and lighting the match stick, threw it on the floor where he had earlier poured fuel on. This act is an indication that the accused intended to burn the deceased to death or at least cause her grievous harm. His subsequent action of taking her to the clinic and paying the bills did not take away the accused intention at the material time of setting the house and the deceased on fire. The natural consequence of a man throwing naked match stick on the floor where there is fuel is to set that place on fire or ablaze.”
Below is the evidence on oath of the Appellant given on 12/5/08. It is on pages 62- 63 of the record –
“It is only two of us that occupy the house. We started looking for the key. There was no light and the rain was about to fall.
Every where was dark. I went upstairs to start the generator. I noticed there was no fuel. There was a small room in the house (Bedroom) where we keep fuel and other things. I carried the 5 liters jerry can of fuel. The up (cork) was not covered. So the fuel poured on the carpet. I turned the fuel into the generator upstairs. I tried to turn it on but it would not come on. I rushed down to the palour. I took a lantern inside the room then a match box on top of my bed and on (ignited) the lantern. As I threw the match stick on the floor, the carpet caught fire and everywhere was on smoke. My wife was inside the room. I was also inside the room. I called my wife but she did not answer. I rushed into the bathroom to carry water and started shouting. People then rushed in. I could not see my wife as a result of the smoke. She was 8ft from where the smoke stated. I searched for her and found her inside the small room where the fuel was kept. To get to the small room, she passed through the smoke.
The small room is close to where I was than where the deceased was. I need not pass through the smoke to get to the small room”.
Learned Appellant’s Counsel had argued that the above explanation given by the Appellant showed that the difference in the location of the deceased and the Appellant in their room accounted for the severity of the burns which led to the death of the deceased. He urged the court to believe the evidence on oath of the Appellant that he forgot he had spilled fuel and dropped the lighted match stick 15 minutes afterwards.
I have read the extra judicial statements of the Appellant and his evidence in court. There is no challenge to the evidence that the Appellant poured or spilled fuel (petrol) a highly combustible material in their bedroom while his wife was hanging clothes in the wardrobe. He returned 15 minutes later by his evidence to drop a lighted match on the very spot he had spilled petrol. He was not burnt but his wife who was 8 feet away from where he dropped the matches suffered 70% to 80% degree burn. The Appellant under cross examination admitted that under normal situation based on his own story, he should have been the first person to be burnt by the fire.
I cannot but share the view of the learned trial judge that the defence of accident is incredible in the circumstances. This finding dovetails into the question of whether or not the Appellant meant to kill the deceased. Mens rea is a term which has its own meaning which can be ascertained only by reference to its statutory definition or the case law. In crimes requiring mens rea as distinct from negligence, the accused should be liable only for that which he had chosen to bring about, or to take the risk of bringing about. His intention or recklessness as to all the elements of the actus reus was considered or referred to be mens rea or the basic constituent of it. An intention to cause grievous bodily harm is the mens rea for murder.
There is thus no need to prove that the Appellant intended to cause the death of the deceased so long as he acted willfully in doing the act which led to her death.
According to Karibi – Whyte JSC in IGAGO V. THE STATE (1999) 14 NWLR Pt 637 Pg. 1, the defence of accident in criminal law has the following attributes:
a) An accident is the result of an unwilled act, and as such, oh event without the fault of the person alleged to have caused it.
b) For an event to qualify as an accident under S.24 of the Criminal Code, it must be a surprise to the ordinary man of prudence, and that is, a surprise to all sober and reasonable people.
c) The test is always objective, and like all other defences, it presupposes that the accused, physically committed the offence, but should be acquitted because it was inadvertent.
At common law there must be absence of mens rea for the defence of accident to avail an accused. Thus, under the Criminal Code, accident is a defence to criminal liability if it can be proved that the event occurred independently of the exercise of the will of the accused person.
At page 107 of the record of proceedings the learned trial judge held:
“The mens rea is something that cannot be physically ascertained but reigns in the abstract world. There are however legal ways by which a court can deduce the mens rea element of an offence. The law which is settled today in Nigeria is that an individual is deemed to intend the natural or probable consequence of his act. In order words the intention of a man can be deduced from his action …
From the action of the accused in this case, I can deduce what his intention was. In Exhibits B and C, he admitted intentionally pouring the fuel on the carpet and lighting the match stick threw it on the floor which he had earlier poured fuel on. This act is an indication that the accused intended to burn the deceased to death or at least cause her grievous harm…
The natural consequence of a man throwing naked match stick on the floor where there is fuel is to set that place on fire or ablaze”.
I agree intoto with the above reasoning of the learned trial judge. In Stephen’s Digest of the Criminal Law 9th edition page 260 “an event that occurred by accident” is defined as:
“An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it, and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances it is done, to take reasonable precaution against it.
As I said earlier, learned Appellant’s Counsel had criticized the Supreme Court decision in ADEKUNLE V. THE STATE supra where it was held that only unwilled acts can result in an accident. In that case the apex court rejected the defence of accident. Counsel’s view is that the word “will” in S.24 of the Criminal Code includes in respect of acts or omissions and its surrounding circumstances not only intention to do the act or make the omission but also awareness of all the material circumstances. Even if we go by way of the new extended definition of the word “accident” as legally defined, in the circumstances of this case, can the Appellant claim that he was unaware of all the material circumstances where he threw a lighted match on the spot in a room where he had hitherto intentionally poured petrol to threaten his wife? I do not think even the new convoluted reasoning of counsel can avail the Appellant.
As much as one would try to ensure that no reasonable doubt remains in one’s mind as to the intention of the Appellant, who had poured petrol on the floor of the room ab initio with the intention of “threatening” his wife. I cannot believe the evidence of the Appellant that he spilled the petrol by accident and forgot that he had done so when he dropped the match. It is an afterthought.
His attempt to retract the story he voluntarily told of the circumstances which led to the fire in Exhs. B & C cannot stand. Even if we ignore Exhs. B & C to examine solely his own statement on oath, his explanation is not plausible. If he was holding a lantern and he inadvertently dropped a match were he was standing on a rug saturated with petrol, he would have been the person to get burnt. The defence of accident is not available to an accused who intended the consequences of his action. See ALHASSAN MANI YAK V. THE STATE (2008) 7 SCNJ 119. How can the Appellant claim that the deliberate pouring of petrol on the floor and the dropping of a lighted match on the same spot even if 15 minutes later are not deliberate or intentional acts. The defence of accident avails only the negative consequences of an unwilled acts. See FRANK UWAGBOE V. THE STATE (2008) 4 SCNJ 459.
I am of the humble but firm view that the Appellant should have foreseen that the room would catch fire when he poured petrol on the floor and dropped a lighted match on it. A man is to be held responsible for the natural consequences of his action.
I find that the Appellant intended to set fire to the room (at least) having “threatened” in his own words to do so. I find that the severe burns on the deceased who was in a part of the room where she could not run out was a natural consequence of the act of the Appellant. I find the Appellant guilty of the offence of murder as charged. I hereby affirm the judgment of the trial court delivered on 14th August 2008 in charge No. OUHC/4C/2005 convicting the Appellant of the offence of murder. Appeal dismissed.
TOM SHAIBU YAKUBU, J.C.A.: I was privileged to have been availed the draft of the judgment just delivered by my Lord, HELEN MORONKEJI OGUNWUMIJU, JCA., wherein the issues in the appeal were exhaustively dealt with and resolved.
I am in agreement with His Lordship’s reasoning and conclusion that the appeal is devoid of merits and must be dismissed.
Let me say a word, for emphasis only, with respect to the appellant’s confessional statements vide Exhibits B & C.
It is settled that a confessional statement is the strongest evidence against the maker thereof and where it is free and voluntary and the court is satisfied as to its truth, an accused person – the maker of the statement can be assuredly convicted on it. See Akpan V. The State (2001) 15 NWLR (pt.737) 745; Golden Dibie & 2 Ors V. The State (2007) 3 SCNJ 160 at 171 – 172; Usman Kaza V. The State (2008) 2 SCNJ 373 at 423; Adebayo V. Ogun State (2008) 2 SCNJ 352 at 267; Arogundade V. The State (2009) 2 SCNJ 44 at 49 – 50.
In the circumstances of this case, the appellant’s cautioned statements Exhibits B & C were confessional statements and they were each duly admitted in evidence at the instance of the prosecution, hence they formed an integral part of the prosecution’s case against him. See Akpan V. The State (1994) 12 SCNJ 131. The spirited attempt by the appellant at his trial to whittle down the effect of Exhibits B & C, to my mind, is akin to a person who attempts to cover the sun or the moon with a finger of his hand!
The appellant, evidently had set out on a self-destruction of his family when he poured some quantity of petrol – a highly combustible substance on a carpet in the room he occupied with his wife and thereafter lit a stick of matches which he consciously and intentionally threw on the portion where he had earlier poured petrol on the carpet. The carpet caught fire and invariably burnt his wife who died of severe burns. He later turned round to say that it was an accident and expected the learned trial judge to have believed him. He clearly, to my mind, intended the natural consequences of his act. Therefore, he needs to face the hangman’s noose.
Hence, I agree with the well crafted and reasoned lead judgment that this appeal be dismissed. I, too dismiss it accordingly.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading in advance the draft of the Judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU JCA. I am in complete agreement with the reasoning and conclusion therein. This appeal lacks merit. The Judgment of Hon. Justice Ebowei Tobi delivered on 28/7/2008 is hereby affirmed.
I also dismiss the appeal.
Appearances
J. O. Oweibo Esq. with him P.O. Opie Esq.For Appellant
AND
O. F. Enenmo DPP Delta State with him O.M. Telsola SSC Delta StateFor Respondent
