MUSLIM FOLORUNSHO v. THE STATE
(2014)LCN/7293(CA)
RATIO
EVIDENCE: PROVING THE GUILT OF AN ACCUSED PERSON; WAYS OF PROVING THE GUILT OF AN ACCUSED PERSONS
In Julius Abiforin v. The State 2013 AFWLR PT 707 665 AT 672 PAR C-G Ogunbiyi JSC at 675 par f – g held that in proving an accused/appellant guilty the prosecution must bring him within one of the methods; direct evidence, circumstantial evidence and confessional statement. Also See: Osai v. State 1976 11 SC 39, and Coporal Bonny Aikhabuehi v. State SC.225/2011 delivered on 21st June 2013 Galadima JSC held that it’s also the law that for circumstantial evidence to ground a conviction, it must lead only to one conclusion, that is the guilt of the accused person. However where there are other possibilities that other persons than the accused had the opportunity of committing the offence with which he was charged such an accused cannot be convicted of murder.” Circumstantial evidence being complete, cogent and unequivocal warrants an irresistible conclusion that it was the appellant that did it NWEZE V. STATE 1996 NWLR PT 428 1. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT: DUTY OF COURT; WHETHER IT IS THE DUTY OF AN APPELLATE TO REVIEW OR REEVALUATE AFRESH THE EVIDENCE ADDUCED BEFORE THE TRIAL COURT
Its trite that the function of an appellate court is not to review or revaluate afresh the evidence adduced before the trial court in order to substitute its view for that of the trial court. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
EVIDENCE; CALLING WITNESSES; WHETHER THE FAILURE OF THE PROSECUTION TO CALL ALL THEIR WITNESS IS NOT FATAL TO THEIR CASE AND WHETHER THE DEFENCE CAN CALL THE SAME WITNESS LEFT OUT BY THE PROSECUTION
It’s also settled law that failure to call all their prosecution witness is not fatal to their case, once material witnesses are called it is enough see Francis Odili v. State (1977) 4SC 1, Sunday Baridam v. State 1994 1 NWLR PT 320 250, Iyang Etim Akpan v. State (1994) 9 NWLR (pt 368) 347. It is also trite that there is nothing stopping the defence from calling the same witness left out by the prosecution if the defence feels such a witness is material to the defence. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
EVIDENCE: CIRCUMSTANTIAL EVIDENCE; WHETHER THE COURT CAN INFER THE CAUSE OF DEATH IN THE ABSENCE OF SUCH EXPERT EVIDENCE
In Ofolete v. State (supra) Bakori v. State (1980) 8-11 SC 81 Eric v. Bendel State 1986 NWLR (Pt. 17) 48 it was settled that in the absence of such expert evidence the court is entitled to infer the cause of death, provided there is clear and ample evidence that the death of the deceased was a direct result of the unlawful act of the appellant to the exclusion of all other viable possible cause, See GRACE AKINFE V. STATE (1988) 3 NWLR (PT 85) 729 AT 745 RAPHAEL ARICHE V. STATE 1993 6 NMLR (PT 302) 752 762-763; WALI JSC AT 766; “it is settled that in a murder charge the fact of death is provable by circumstantial evidence not withstanding that neither the body nor any trace of it has been found and that the accused has made no confessional of any participation in the commission of the crime so long as the circumstantial evidence is positive cogent and compelling and leaves no ground for reasonable doubt” see Onah V. State (1985) 3 NWLR (pt 12) 236 Ukorah v. State (1977) 4 SC 167″. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
In The Court of Appeal of Nigeria
On Friday, the 20th day of June, 2014
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the Lagos High Court Lagos delivered by O. A Williams J. on the 15th of January, 2010.
The appellant stood trial before the lower court on a single count charge dated 18th of January 2007 for murder contrary to Section 319 (1) of the Criminal Code Law Cap C17, vol. 2, Laws of Lagos State 2003;
“Particulars of offence;
Muslim Folorunsho (M) on or about the 2nd day of August 2005 along Marina Street, Lagos Island in Lagos judicial division did shoot with an AK47 Rifle and murdered one Perry Samuel”
Prosecution called 5 witnesses while the defence did not call any evidence but rested their case on the prosecution’s case.
At the conclusion of trial, the lower court evaluated the evidence and found the accused guilty and sentenced him to death by hanging. The accused/appellant being dissatisfied with the judgment filed an amended notice of appeal which this court deemed as properly filed on 4th March 2014.
Appellant’s grounds of appeal less particulars are reproduced as follows;
1. The learned trial judge erred in law and in fact when she treated exhibits P3, the statement of the appellant as corroborating the evidence of PW1, PW3 and PW4 that the appellant fired a gun at the occupants of the car in which was the deceased.
2. The learned trial judge erred in law when she relied on facts contained in exhibit P3W to support the case of prosecution.
3. The learned trial judge erred in law and in fact when she found and held that it was the bullet from the gun fired by the appellant that hit and led to the death of the deceased.
4. The learned trial judge erred in law and in fact when she found and held that the prosecution was able to prove beyond and held that the prosecution was able to prove beyond reasonable doubt the cause of death and the appellant caused the death of the deceased.
5. The learned trial judge erred in law and in fact when she found and held that there was no need to tender a medical certificate of cause of death.
6. The learned trial judge in law and in facts in her findings and decisions on Section 149(d) now Section 167(D) of the Evidence Act Laws of the Federation on the failure of the prosecution to produce and tender the autopsy report and the medical certificate of cause of death.
7. The learned Trial judge erred in law when she found that Section 33(2) b of the Constitution of the Federal Republic 1999 did not apply to avail the appellant.
8. The learned Trial judge erred in law when she proceeded with the trial of the suit despite the absence of the defence counsel.”
Parties settled briefs: Appellant’s Amended Brief of Argument was settled by M. Aderemi Bashua Esq. M. A Bashua & Co dated 12th day of February 2014 filed on 20th/2/14 and Respondent’s Amended brief of Argument is dated 9th of June, 2014 and filed on 10/6/2014, which was settled by Rotimi Odutola (Mrs.) Chief State Counsel, DPP, Ministry of Justice Lagos State.
From the grounds of appeal the Appellant distilled the following issues
1. Whether the learned trial judge was not wrong in treating exhibit p3 as corroborating evidence that appellant shot at the occupants of the car wherein the deceased was. (from ground 1).
2. Whether the reliance by learned trial judge on the contents of and statement in exhibit p3 was not wrong (from grounds 2.)
3. Whether the prosecution was able to establish or prove conclusively the cause of death and that the appellant caused the death to warrant convicting him for murder?
(From grounds 3, 4, 5 and 6)
4. Whether the defendant in this suit had a fair trial considering the manner the defence counsel handled the murder trial; (from ground 8.)
The Respondent adopted all the issues formulated by the appellant, though Mrs Odutola had filed a Respondent’s Notice in her brief of Argument which she withdrew at the hearing of the appeal and the Appellant consequently withdrew its notice of preliminary objection and Appellant’s Reply both dated and filed on 11th June 2014.
In dealing with the issues I will take Issues, 1 & 2 together since they flow from the same evidence.
Issue 1 & Issue 2
Whether the learned trial judge was not wrong in treating exhibits P3 as corroborating evidence that appellant shot at the occupants of the car wherein the deceased was. And whether the reliance by learned trial judge on the contents and statement in exhibit P3 was not wrong.
A cursory look at the proceedings of 5/02/2009 in the record book at page 65 shows PW5 Boniface Ekpe testifying in chief tendered the 3 statements of the three constables as Exhibit P2 (i-iii) without any objections from Bajulaye Esq.(Accused Counsel), immediately after, the statement made by the accused person was tendered through the same Pw5 there was still no objection it was admitted marked exhibit P3.
Against this background the arguments of the appellant is as follows;
that the learned trial judge found that exhibit P3 was admissible to show that the said statement was made but that it will not be admitted as proof of its content.
That the trial judge further found that the statements of the three police men who were on duty with the appellant was not useful to the prosecution neither did they assist the court (at page 67) and that they carried less weight, but treated it as corroborating other evidence. That, the appellant fired at the occupants of the car (at page 73).
Appellant counsel contended that for a piece of evidence to amount to corroborating evidence there must exist another piece of evidence which will lay the foundation for the existence of the corroborating evidence, which two must be admissible, credible and reliable.
Counsel submitted that the trial judge was wrong to have treated Exhibit P3 at page 73 of the record as corroborating the evidence of PW1, PW3, and PW4, on the contention that a witness cannot be allowed to give evidence of facts which he did not perceive by any of the five senses which will amount to hearsay and that their evidence amounts to hearsay and are inadmissible since they all admitted hearing the gunshot but were all facing front and did not see who fired.
The Respondent counsel on the other hand contended that the said Exhibit P3 was tendered without objection in the course of trial, she referred to page 120 of the record wherein the judge held that the statement is consistent with other evidence led in the suit and so supports and corroborates the evidence led by other witnesses, she argued in the alternative that even if Pw1, Pw3, and Pw4 did not see who shot at the car, PW 5 the IPO testified (at page 63 – 55 of the records) on details of his interrogation, investigation and interview of the constable witnesses which was cogent compelling and unequivocal which evidence she submits fall under an exception to hearsay, she relied on the case of Ajiboye v. The State and urged this court to uphold that the exhibit was rightly used.
In addition on issue Two, the appellant counsel submitted that exhibit P3 and P2 (i-iii) are extrajudicial statements and that none of the makers testified before the court, that the trial judge found at page 67 that the exhibits were admissible but were unreliable as proof of facts stated therein, that exhibits p3 did not amount to a confessional statement but at page 76 she relied on same and made a finding that medical evidence was not necessary because death was obvious and that appellant caused same, she further held that the statement therein was consistent with other evidence led. Appellant contended that it was a mere statement which could have been useful if the appellant had testified to confirm the contents when cross-examined.
The appellant counsel argued in his brief that the trial judge applied different set of considerations to both set of exhibits he relied on KASA V. STATE 5 NWLR (PT 344), ADELUMOLA V. STATE (1988) 1 NWLR (PT 73) P. 683, that the trial judge fell into error.
While the Respondent submitted, that by the reliance by learned Trial Judge on the contents and statement in Exhibit P3 (referred to pages 118-120 wherein the judge also relied on KASA v. STATE (1994) 5 NWLR PT 34 AT 269 and that the judge applied various considerations to the statement of the appellant and also on statements of the three colleagues of the appellant (Exhibit p2 (i-iii) which were tendered but they did not testify.
She referred to the consistency rule where courts have decided that considerations will be given to the statement of an accused (whose oral evidence is inconsistent with his statement to the police) and that of ordinary witnesses. She referred to the dictum of BELLO CJN IN OLADEJO’S case;
“The correct position of the law is that the inconsistency rule which is the purport of his contention does not apply to confessional statement made by an accused person, the appellant herein, in our criminal justice system. It only applies to other witnesses that are not accused persons. In this wise, I drum up support from the case of EGBOGHONOME V. STATE 1993 7 NWLR (PT 306) AT 419-420”.
She stated that the appellant had the opportunity to contradict exhibit P3 at the trial as held in Kasa’s case but did not, and therefore he rises or falls with the prosecution case.
Finally she referred to Suleiman V. The State (2009) 13 NWLR PT 1164 on the effect of resting one’s case on another.
The crux of this issue is that exhibit P3 ought not to be used as a factor in the conviction and that the contents were not to be utilized under the circumstances by law.
In dealing with this issue first, Exhibit P3 is the extra-judicial statement of the appellant; it was tendered through the police investigating officer PW5, (on page 20 of the record). The appellant did not testify nor call any evidence but rested his case on that of the Prosecution.
At page 120 of the record the lower court in its judgment stated as follows:
“I have read the statement of the defendant and I agree with him that it is not a confessional statement, he admitted therein that he fired gunshots into the car in which the victims were and that the deceased was injured. I agree with learned defence counsel that the admission in the statement of the accused that he shot the gun did not amount to a confessional under Section 27 of the Evidence Act. The statement is consistent with the other evidence led in this suit so it supports and corroborates the evidence led by other witnesses. From the authorities cited above, the position of the law is that the statement made by the defendant is admissible and though he did not testify, the statement made by the accused is admissible, the statement can be relied on by this court not for proof of the facts in it but as corroboration of facts established by the evidence led. I therefore find and hold that the statement is relevant and admissible as an ordinary statement, not a confessional statement”. She relied on Kasa v. State (1994) 5 N.W.L.R. Pt 344 269, Adedumola V. State (1988) 1 NWLR (pt 73) 683 at 693.
Also in KASA v. STATE (Supra) at page 268 par E-H the Supreme Court held;
‘that it’s the law that a statement wrongly admitted as a confessional statement by the court can if it has no other defect be admitted as an ordinary statement and its contents relied upon to sustain a conviction’ at page 280″.
Therefore from the above its clear in this case that, the statement of the accused did not have any defect apart from not qualifying as a confessional statement, the lower court was perfectly in order to have utilized it, having found that it corroborated the evidence of the witnesses which were not shaken or contradicted when cross examined or were not cross-examined bearing in mind that in the absence of the appellant not testifying, the evaluation is based on the prosecution’s case and evidence elicited from cross examination, in this regard its relevant as an ordinary statement.
On the second leg in issue 2, on the treatment of Exhibit P3; the lower court found that the evidence of Pw1, 3 & 4 were not shaken during cross examination neither were they contradictory, they each confirmed that two shots were fired inside the car which tallies with Exhibit P3 and corroborates it.
“Pw1 stated that
“I heard several gun shots. The wind screen was shattered there were policemen in the fedeco bus …there were about four to five policemen in the bus and after shooting they ordered us all to get out of the car the accused was one of the policemen in the bus. We all got out of the car except for Perry Samuel who was lying unconscious in the car in the pool of his own blood as he had been shot at the back of his head.
We were all injured but by his was the most serious”.
Pw5 the IPO stated that he received a transferred file from Lion building scrutinized it and arrested the accused….Constables do not hold fire arms, three of these police constables confirmed that they were not armed during the incidents. Only the team leader, an Inspector – the accused was armed with an AK43 Rifle and he admitted that he fired the gun in his statement…”
The witnesses stated that all the police men came and ordered them to come down and they had a good view of them, the accused was amongst them, it’s not disputed that the accused fired the shot, investigation showed that he, only had an AK47 rifle and was the only one who could have shot, it’s not also contested that any person outside the police men shot at the Respondent; their statement was to this effect.
In Julius Abiforin v. The State 2013 AFWLR PT 707 665 AT 672 PAR C-G Ogunbiyi JSC at 675 par f – g held that in proving an accused/appellant guilty the prosecution must bring him within one of the methods; direct evidence, circumstantial evidence and confessional statement. Also See: Osai v. State 1976 11 SC 39, and Coporal Bonny Aikhabuehi v. State SC.225/2011 delivered on 21st June 2013 Galadima JSC held that it’s also the law that for circumstantial evidence to ground a conviction, it must lead only to one conclusion, that is the guilt of the accused person.
However where there are other possibilities that other persons than the accused had the opportunity of committing the offence with which he was charged such an accused cannot be convicted of murder.”
Circumstantial evidence being complete, cogent and unequivocal warrants an irresistible conclusion that it was the appellant that did it NWEZE V. STATE 1996 NWLR PT 428 1.
I therefore disagree with appellant’s contention that direct evidence was the lower court’s sole yardstick of evaluating the evidence.
Its trite that the function of an appellate court is not to review or revaluate afresh the evidence adduced before the trial court in order to substitute its view for that of the trial court.
In the case at hand, it’s clear that the lower court compared evidence of witnesses that testified against the said exhibits p3 and p2 (i – iii) and rightly came to the irresistible conclusion that it was the accused that pulled the trigger, see page 121-122 of record; (judgment). I therefore do not find any fault with this procedure especially as the accused did not raise any objection to any of the exhibits, its trite that an appellant who did not object to the admission of his statement to the police in evidence as an exhibit at the court below cannot turn round at an appeal to cast doubt on its viability and cogency see STEPHEN JOHN v. STATE (2011) 18 NWLR (Pt. 1278) 353 @ 368, AGBONIFO V. AIWEREOBA (1988) 1 NWLR (PT 70) 325.
Other hand, based on the evidence reproduced above, without the use of Exhibit P3 it still would have pointed to the accused as the culprit.
See: Oforlete v. State 2007 7 WRN 82 at 111.
I resolve issue 1 & 2 in favour of the respondent.
ISSUE 3
Whether the prosecution was able to establish or prove conclusively the cause of death and that the appellants caused the death of the deceased to warrant convicting him for murder?
Appellant counsel submits that the there must be proof beyond reasonable doubt and that the onus is on the prosecution throughout and never shifts, it must coexist Uguru v. State 2002 4 SC pt 11 13, Edwin Ogba v. State, 1992 2 NWLR PT 222 164 AT 198. State V. Aibangbee 1988 3 NWLR PT 84 548
That the court held that there was no need for medical evidence because death is obvious. The accused shot the deceased and his death was linked to the shooting also that there was no intervening cause, no photograph of the car showing bullet entry, type of treatment given, outcome of the beaten received as a result of the baton……… and that the lower court could not make a distinction from when death is on the spot and when death resulted later and that different consideration applies. He relied on HASSAN V. STATE 2001 6 NWLR PT 709 286, OLALEKAN V. STATE (2001) 18 NWLR (PT 746) 793, AMUSAN V. STATE (2001) 17 NWLR (PT 704) 602 and relied on these set of cases for when death was not on the spot but required medical evidence; AUDU V. STATE (2003) 7 NWLR (PT 820) 516 AT 551 PARA-R 554 PAR-A, OKON v. STATE (1991) 18 NWLR (210) 424 AT 437 v. AHMED V. STATE (2001) FWLR (PT 90) 1358 AT 1376-1377 PAR D-E KING V. STATE (2001) FWLR (PT 68) 1123.
Appellant counsel submitted that, there was no evidence of medical doctors who performed surgeries, Autopsy report; kind of injury, no direct evidence of the cause of death and that there was no link between the act of an accused person and the relevant consequence as a factual question.
Counsel for appellant contended that the lower court relied on the evidence of all the prosecution witnesses in arriving at the decision that injuries suffered by deceased on the 2nd of August 2005 lead to his death and that the evidences were hearsay and were unreliable.
He further contended that if the lower court adverted her mind to these possibilities she would have come to a different decision and not convict the appellant of murder. Counsel in addition contended that in the absence of the medical report and autopsy report, Section 149 (D) (now Section 167) of the Evidence Act be invoked against the prosecution, he relied on OMOGIA V. STATE 6 FWLR (PT 930) AT 953, AIGURENGHIAN V. STATE (SUPRA) AT 735 PAR A-C. that, it was wrong to put probative value on the evidence of Pw2 instead of a Doctor, medical certificate or autopsy report and that PW2’s evidence be expunged.
The respondents on the other hand stated that though medical certificate is desirable it’s not essential in all cases of homicide as, cause of death could be inferred where not available she relied on AUDU V. STATE 2003 7 NWLR PT 822 516 @ 551 par A-R where the court held:
“A trial court may in the absence of medical certificate or evidence or in the face of inconclusive medical evidence draw inference as to the cause of death of a deceased when there is evidence before the court showing unequivocally that the death is instantaneous immediate or occurred at the scene where the unlawful act occurred.
However if the death does not occur on the spot, the prosecution has the duty of proving beyond reasonable doubt the fact and cause of death”
MRS ROTIMI ODUTOLA further posit that, it has been further held that where death occurs immediately or shortly after a person is attacked, medical evidence may be dispensed with as held in the foregoing case and plethora of cases cited by appellants.
Respondent counsel distinguished cases cited by appellant’s counsel as not being on all fours with the case at hand, and that each and every case can be distinguished, that no two deaths occurring on the same spot or immediately after, have the same facts she stated that the appellant had admitted the injury which could result in death in his brief of argument and facts admitted need no further proof.
She contended that after the shot, the deceased did not return home but moved to another hospital without recovering neither did he ever return home till his death, she drew the court’s attention to circumstances surrounding the case, extent of injury and that there was no break in causation she relied on AIGUOREGHIAN V. STATE (SUPRA) that the duration between the suspected act of the defendant (actus reus) and the time of death is not important in determining cause of death, but what is important is that, there must be evidence that the act of the accused resulted in the death of the accused.
She stated that the evidence of PW5 is clear on death of the deceased and that it was as a result of unlawful and intentional act of the appellant (at page 65 of the record).
Respondent counsel distinguished the case of AHMED V. STATE (SUPRA) that the corpse in that case was never found hence evidence of cause of death was necessary while, the issues in NWOSU V. STATE (SUPRA) was a case where the injury inflicted was a stab wound, she further relied on OMONIYI v. STATE (1976) 5 SC that the Supreme Court held that medical certificate is not essential in circumstances where there is evidence of the death of the deceased and ii. There is evidence that the death is as a result of the unlawful and intentional act of the accused person.
In considering this issue, its pertinent to note that Pw2 was a relation of the deceased and her evidence on record (at pages 56 -58); is that the deceased lived with her, she was at the hospital scene, a few hours of the shooting, she paid the initial admission bill and she testified through all stages of treatment till death of the deceased she was not cross-examined at all nor was she confronted with any statement. In addition is the evidence of pw5 (at pages 63-67 of the record of appeal); he was the investigating officer who tendered all eight statements made in the case, and also stated his follow up of the deceased at LUTH till death, he spoke on the death certificate and autopsy report and DPP’s Advice he was not cross examined on these areas nor did the appellant request for these reports from the respondent, at no time did the appellant during cross examination suggest to the witness pw2 that her blood relationship influenced her testimony nor would it be right to accept that mere blood relationship of a witness to a victim of crime should damify the evidence see also CHUKWU v. STATE 1992 1 NWLR PT 217 255 AT 263.
This court is of the view that having not requested and put in the evidence for purpose of contradicting the witnesses, it would be wrong for the court to do the inquisitorial work of fishing out the purpose of contradicting the evidence, I shall decline to do this, the submission of counsel cannot take the place of evidence See: SAMBO V. STATE (1993) 6 NWLR (PT 300) 399 AT 417 KWASHIGAR V. STATE (1995) 3 NWLR (PT 386) 651 AT 662.
There is no indication in the record that they demanded for the medical certificate, autopsy report or death certificate which were said to have been paid for and it was refused if he thought they were important, it’s unfair to accuse respondent of hoarding evidence and attempt to invoke Section 167d of Evidence Act under the circumstances see AREMU V. STATE (1991) 7 NWLR (PT 201) 1 17 -18.
It’s also settled law that failure to call all their prosecution witness is not fatal to their case, once material witnesses are called it is enough see Francis Odili v. State (1977) 4SC 1, Sunday Baridam v. State 1994 1 NWLR PT 320 250, Iyang Etim Akpan v. State (1994) 9 NWLR (pt 368) 347.
It is also trite that there is nothing stopping the defence from calling the same witness left out by the prosecution if the defence feels such a witness is material to the defence.
The contention that the failure to call medical doctors and autopsy report as to the nature of surgeries done and the effect as was fatal cannot hold water because the respondent is not obliged to call the eye witnesses or a host of witnesses to testify if the testimony of pw2 & 5 would not suffice, Adale v. State 1976 6-7 SC 18.
Appellant counsel relied heavily on the case of UGURU V. STATE (SUPRA) at page 109 the Supreme Court found that the evidence of Dr Ezie who had testified in the aborted trial could not be used to convict the accused not having testified in the Trial de novo and set aside the conviction. There was no evidence as to what part of the body was injured on like this in case there was clear evidence that head was badly injured by the gunshot. In Olatinwo Nurudeen Bright v. State 2012 8 NWLR PT 1302 297 at 321 par c-e Supreme Court held that Cause of death of a human being is a medicinal question which is generally determined from a medical report however, medical evidence is not essential in all cases. In homicide cases where the cause of death is obvious medical evidence ceases to be of practical necessity.
From the prosecution’s evidence adduced at trial it’s clear that there is no dispute that deceased died from gunshot in the head following grave injuries suffered, pw5 evidence is that it was the appellant that fired two shots into the car, this much is in the statement of the appellant, the evidence of the occupants of the car (pw1, 3 & 4) at time of incident is that immediately after the shots rang out they were ordered down from the vehicle but the deceased could not move he was covered in his blood and his head was badly injured that it was open with blood oozing out, others came out and were conscious of events around them. All these the lower court painstakingly evaluated and came to a decision
Earlier in this judgment I reproduced the proceedings leading to tendering of exhibit P1 (i) – (viii), P2 (i-iii) & P3 without objection.
In Ofolete v. State (supra) Bakori v. State (1980) 8-11 SC 81 Eric v. Bendel State 1986 NWLR (Pt. 17) 48 it was settled that in the absence of such expert evidence the court is entitled to infer the cause of death, provided there is clear and ample evidence that the death of the deceased was a direct result of the unlawful act of the appellant to the exclusion of all other viable possible cause, See GRACE AKINFE V. STATE (1988) 3 NWLR (PT 85) 729 AT 745 RAPHAEL ARICHE V. STATE 1993 6 NMLR (PT 302) 752 762-763; WALI JSC AT 766;
“it is settled that in a murder charge the fact of death is provable by circumstantial evidence not withstanding that neither the body nor any trace of it has been found and that the accused has made no confessional of any participation in the commission of the crime so long as the circumstantial evidence is positive cogent and compelling and leaves no ground for reasonable doubt” see Onah V. State (1985) 3 NWLR (pt 12) 236 Ukorah v. State (1977) 4 SC 167″.
Circumstantial evidence being complete cogent and unequivocal warrants the irresistible conclusion that it was the accused, the prosecution must prove that he died as a direct result of the act, conduct/omission of the accused, thus the evidence of Pw2 and Pw5 on history of surgeries and hospitalization till death, visit to hospital and the state he was after the shooting, made it unnecessary to tender the post-mortem report and was not fatal to its case.
It’s the evidence of witnesses that the deceased skull was broken by the shot and blood was oozing out, he had a CT scan and head surgery to remove broken bones and another in LUTH showing extent of injury.
All Pw1, 3 & 4 had stated that after the shot he could not move he was unconscious. It’s therefore shown at pages 124 of the record that all these, were evaluated before coming to a conclusion
The contention of the appellant that the deceased died 7 weeks after the act of shooting did not add up that the shooting caused the death in the absence of medical proof, is not tenable in law.
In FRIDAY AGUBARUNEGHIANANOR V THE STATE (2005) 1 NCC 458 AT 477 IBIYEYE JCA in answer to the question if affliction of time is a good defence held.
“No’ The affliction of time of about four months between the time of attacking Nathaniel and when he died does not provide any succour for the appellants whose acts are caught by the provision of Section 314 of Criminal Code.
The section reads in material particular 314. A person is not deemed to have killed another, if the death of that other person does not take place within a year and a day of the cause of event… therefore in this case of four months before the death of the deceased it cannot be said that the injury did not cause death under the circumstances put forward by prosecution”.
All that is required in absence of medical evidence is that the evidence must show that the death was caused by the act of the appellant, in other words Medical evidence is not indispensible where there are facts which sufficiently show the cause of death to the satisfaction of the court, see FRANK ONYENAKEYA V. THE STATE (1964) I ANLR 151 AT 153, RAYMOND OZO V. THE STATE (1971) 1 ANLR 111 AT 115, JOSEPH LORI & ANOR V. THE STATE (1980) 6-11 S.C 81 AT 97 OSARODION OKORO V. THE STATE (1988) 5 NWLR (PT 94) 255 AT 289.
In this case there was categorical evidence that the accused was shot at the head, by all the witnesses who testified, this is enough circumstantial evidence pointing to the guilt of the appellant, PW5 said from investigation the rifle used by the deceased was recovered, AROGUNDARE V. STATE (2009) 6 NWLR (PT 1136) 165, AT 175 OGEBE JSC held that where the evidence points at the accused as the perpetrator of the crime for which he is charged ,and the evidence is duly tested, scrutinized and accepted by the court, the onus is on the accused to rebut the presumption of guilt or to cast a reasonable doubt on the case of the prosecution by preponderance of probabilities. ONAKPOYA V. THE QUEEN (1959) SCNLR 384, KALU V. THE STATE (1993) 6 NWLR (PT 300) 385 AT 396, AKINMOGU V. THE STATE (2000) 6 NWLR (PT 662) 608 AT 629.
IN EBENECHI V. STATE (2009) 6 NWLR PT 1818 431 AT 447, the court relying on CHIMA IJIOFFOR V. THE STATE (2001) 9 NWLR (PT 718) 371 AT 387 held that; Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of Mathematics…..Each case depends on its own facts but the one test which such evidence must satisfy is that it should lead to the guilt of the accused person and leave no degree of possibility or chance that other persons could have been responsible for the commission of the offence”
To accede to the Appellant’s prayer is to do grave injustice to the society its trite that Justice is to all parties see BELLO V. AG OYO STATE 1986 2 NSCC 1257.
There was no contrary evidence that the appellant did not shoot twice inside the car in which the deceased was seriously injured by the impact nor that he is not dead and neither was the chain of causation broken. Pw2s & Pw5’s evidence was clear on this therefore, in the absence of this vital fact I cannot interfere with the lower court’s evaluation, (at page 131-137 of the record) (judgment), this issue is also resolved in favour of respondent.
Issue 3
Whether the defendants had a fair trial considering the manner the defence counsel handled the murder trial?
This issue covers ground 7 and 8 of the appellant’s brief. The appellant canvassed that bearing in mind the nature of the charge the appellant counsel did not conduct the case as required of a legal practitioner defending a person accused of murder, as the Counsel did not exert his utmost best and skill in the discharge of defending the appellant at the trial of the suit. That cross examination of Pw3 & 4 fell below expectation, the counsel was absent from court on 30th October 2008 without explanation while Pw2 evidence was taken and furthermore no evidence was called by appellant counsel and that it amounted to a breach of the fundamental right of the accused for the trial judge to have proceeded in the absence of counsel.
The Respondent counsel submitted that a defendant has an unfettered right to be represented by counsel of his choice and that a court or prosecution is not in a position to choose a counsel or direct how to conduct the defence to the best of his ability. She also submitted that a counsel is expected to act in the best interest of his client and to conduct the defence to the best of his ability. (She stated that the appellant took advantage of Section 240 (1) iii Administration of Criminal Justice Law of Lagos State 2007 by resting his case on the prosecution she referred to page 67 of the record). In addition, she submitted that even when a new counsel took over the case at the end of prosecution case he did not opt to put in any defence for the appellant but proceeded to file address. She further stated that the two counsel could not have been nonchalant but only made the most of the circumstances of the client’s case She submitted that the last paragraph of the appellant’s brief in par 5.5 is to explore the technicalities of the case on appeal.
Respondent counsel urged the court to look at the substantial justice of the case, the fact that the family of the deceased spent huge sums on hospital bill and he eventually died and also to protect the society at large from police officer who are paid to maintain peace in the society but turn around to shoot indiscriminately at the innocent citizens they are paid to protect. She urged the court to up hold the judgment.
In paragraph 8.2 of her brief she submitted that in the unlikely event that the court comes to the finding that, cause of death was not established, the respondent urges the court to convict the appellant for the kindred offence of causing grievous bodily harm to the provision 335 of the Criminal Code Volume 2, Cap C17 Laws of Lagos 2003.
Where evidence adduced has failed to support a conviction for that charge but fully establish the commission of a kindred offence. It is in the interest of justice that the courts are empowered to convict an accused of an offence other than the one with which he is expressly indicted on the charge. BABALOLA V. STATE (SUPRA) 1984 4 NWLR PT 115 PAGE 264.
She finally submitted that the court is empowered to convict for a lesser offence pursuant to Section 179(2) of the Criminal Procedure Law Cap 18 Volume 2 Laws of Lagos State 2003
The court in resolving the issue will, refer to sec 36(6) a-e of the 1999 Constitution which is on fair hearing in respect of accused persons, though the appellant did not specify which one of the sections was breached he simply generalized. Fair hearing is a serious ground which is not to be trivialized it has far reaching consequences if proved or upheld with particularities. I dire say that appellant has not dealt with this issue with such seriousness that it deserves.
Against Sec 36 (6) d of the Constitution which appears to be what the compliant is about;
“d. examine in person or legal practitioner the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution”
At pages 49 the record accused stated through the court’s registrar that he is expecting his counsel Mr Abimbola Bajulaye, at page 53 Pw 1 testified he was not cross-examined by Bajulaye Esq., at page 56 appellant counsel was absent without excuse and Pw2 testified till 11.30 am and was adjourned to 12/11/2008 for continuation thus:
“it is in the interest of justice to give the accused an opportunity to cross-examined this witness. I will adjourn his matter now for that purpose since his counsel who was said to be on the way has not arrived still and its 11.30am. This suit is adjourned to 12/11/2008 for continuation of trial.”
At page 58, the said Bajulaye Esq. was present on 12/11/2008 and stated
“Based on the statement made by the witness as contained in the proof of evidence, I do not intend to cross examine the witness.” The witness was discharged.
Only Pw3, 4 & 5 were cross examined (at pages 60, 61 & 62 – 67 of the Record,) the appellant counsel announced that he would not be calling any evidence but rested his case of the defence on that of the state, it was adjourned to 15/05/2009 (At pages 68 and 69) Mr. Nwaiwu appeared as new counsel for the appellant, he only sought for an adjournment to file written addresses and did just that.
From the above, I agree entirely with the submissions of Respondent that a court lacks powers to conduct or direct the conduct of an accused person, the appellant had a counsel knew his counsel very well and there was no confusion neither was any advantage taken of him.
Its trite that when a counsel holds himself out as appearing for party the court presumes that he has been briefed obtain the law school certificate and the requite practising license to so practise, it’s not the duty of a court to inquire into capacity and calibre of legal representative. See OKON V. STATE 1995 1 NWLR (PT 372) 382 SECTION 36(6) C OF CONSTITUTION ISIAKA & ORS V. OGUNDIMU 2006 13 NWLR (PT 997) 401. BRITISH AIRWAYS PLC V. MICHAEL CHUKWUMEKA AMADI,
In PAM V. ALL NIGERIA’S PEOPLE PARTY 2007 LPELR-90000 CA the court held that ‘where a party exercised his undoubted and fundamental right to engage counsel to represent him in a trial, the court has no business inquiring whether the counsel was regularly or properly briefed…..
AJIBADE V. STATE 2013 AFWLR PT 687 712 AT 725, 722 the court held that:
“In the effect of a party electing to rest his case on that of the prosecution, it’s his right under law but the legal effect is to leave the court of trial free to act on the contradicted evidence of the prosecution in proof of the charge the court rightly did in the circumstances, to talk of violation of fair hearing is too far-fetched and ought to be countenanced. The appellant should not therefore be given the privilege of being heard on that which he freely choose to do, the appellant has shut himself in the out and should therefore not be had to complain” – 727 pa
This court having studied the proceedings as highlighted above, observes that the lower court gave ample opportunity to appellant counsel within the frame work of the law to do all that was necessary to have a fair trial but the counsel did not utilize same or was not well vast in the basic rudiments of a criminal trial even the new counsel made no attempt to recall any of the witnesses or offer evidence in rebuttal.
I do not find any fault in the conduct of the trial, by trial judge.
I resolve issue 4 in favour of the respondent and for all the reasons above I hereby affirm the judgment of Lower Court delivered on the 15th January, 2010 and dismiss the appeal as lacking in merits.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the comprehensive judgment prepared by my learned brother, Abimbola Osarugue Obaseki – Adejumo J.C.A., and adopt as my judgment in the appeal.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now, the judgment just delivered by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO JCA. I agree with my learned brother that the appeal lacks merit and should be dismissed. The only real issue in this appeal is whether the conviction of the Appellant for murder can stand in view of the failure of the prosecution to tender medical evidence to prove the cause of death. In the case of Uguru v. State (2002) 9 NWLR (Pt 771) 90 where the facts were somewhat similar, the Supreme Court observed:
“There is overwhelming evidence from the facts of this case that the appellant inflicted matchet blows on the deceased, Mark Ukeagu, on the 10th of March, 1985. Mr. Ukeagu sustained serious injuries and was taken to Dr. Ukelonu’s hospital, Umuahia. On the following day the deceased was transferred to the Queen Elizabeth Specialist Hospital, Umuahia. On the 14th of March 1985 he died. There is no medical evidence adduced by the prosecution showing the condition of the deceased when he was taken to the hospital and the medication given to him before he died. There is no record of his treatment at any of the hospitals. If the deceased had died on the spot after the attack medical evidence could be dispensed with since the court could infer the cause of death from the testimonies of the witnesses who gave evidence for the prosecution. It is the duty of the prosecution in a criminal trial to prove the charge beyond reasonable doubt. The only evidence which linked the appellant with the condition which led to Mr. Ukeagu to be taken and admitted in hospital was when he said in evidence that he used a matchet to strike the deceased. But there is no evidence showing which part of the body was struck or the type of injury inflicted on the deceased by the appellant. Such evidence would help the court to infer the cause of death. In the circumstances, it is unsafe to say that the act of the appellant was the cause of the deceased’s death. The conviction of the appellant for the murder of the Mr. Ukeagu cannot therefore stand. It is very clear that the guilt of the appellant was not established beyond reasonable doubt before he was convicted for the murder of Mr. Ukeagu.”
In the instant case however, there was evidence that the deceased was shot at the back of his head by the Appellant. He died 7 weeks after several surgeries at two different hospitals. It seems very strange and incomprehensible that the prosecution did not tender medical report of the cause of death, notwithstanding the fact that PW5, the investigating police officer testified under cross-examination that he was aware that there was a report of the autopsy from LUTH. One cannot therefore help but wonder the actual reason behind the failure of the prosecution to tender this very vital evidence. Whatever their reason, I am of the view that the learned trial Judge was right in holding thus:
“This is a case in which there is no need for medical evidence because the cause of death is obvious. The accused caused the injury the deceased suffered so he is linked with his death which resulted from it. There is no suggestion of any intervening cause… It was the defendant that shot at the deceased and this led to an injury for which he was treated, operated upon and from which he never recovered but died subsequently. The death of the deceased was caused by injuries he sustained through the act of the defendant and I so hold.”
It surely would be manifestly unjust to hold the appellant not guilty of murder in the circumstances because of the apparently deliberate failure of the prosecution to tender the medical report. This is clearly one of those instances when the cause of death can be inferred from the circumstances surrounding the death of the deceased. He was a healthy young 26 years old man when the shooting took place. He would not have died if he had not been shot by the appellant. All attempt to save his life failed. He died as a result of the gun shot wound on the back of his head. I agree totally that here is no merit in this appeal. I also dismiss the appeal. I abide by the consequential orders in the lead judgment.
Appearances
ADEREMI BASHUAFor Appellant
AND
ROTIMI ODUTOLA (MRS)
CHIEF STATE COUNSEL MIN. OF JUSTICE LAGOS STATE.For Respondent
