OGUNLEYE TOBI V THE STATE
In the Supreme Court of Nigeria
Thursday, January 31, 2019
Case Number: SC.714/2017
KUMAI BAYANG AKAAHS
MARY UKAEGO PETER-ODILI
KUDIRAT MOTONMORI PLATOKUNBO KEKERE-EKUN
(DELIVERED BY AMIRU SANUSI, JSC)
This appeal stemmed out from the judgment of Court of Appeal, Ibadan division (the lower or court below) delivered on 6th day of July 2017 which affirmed the judgment of Ogun State High court of Justice sitting at Ota in the Ota judicial division (coram M.A. Ojo J.) (the trial court), delivered on 2nd June 2015 which convicted and sentenced the appellant as accused thereat, for the murder of Kolawole Badejo (deceased). The accused person now appellant, was arraigned before the trial court and tried on one count charge of murder of the deceased Kolawole Badejo, contrary to Section 316 of the Criminal Code Law of Ogun State 2006. During the trial, the prosecution (now respondent) called two witnesses and tendered five (5) exhibits in proof of its case, while the accused, (appellant) testified for his defence without calling any witness. At the conclusion of the trial, the trial court found him guilty as charged and sentenced him to death.
Aggrieved in the outcome of his trial, the appellant appealed to the court below, albeit, without success in that the penultimate court affirmed his conviction and sentence passed by the trial court.
The facts of the case culminating in this appeal as could be gleaned from the record and as presented before the trial court are that the accused/appellant had a fight with the deceased on 20th November, 2009 and in the course of the fight the appellant used knife and inflicted lethal injury on the back and left leg of the deceased. The deceased bled profusely which led him to the state of unconsciousness and was thereafter rushed to the hospital. Sequel to that, the appellant was arrested and arraigned before the trial court and was tried convicted and sentenced.
Dissatisfied by his conviction and sentence, the appellant as I said earlier, appealed unsuccessfully to the court below which affirmed his conviction and sentence by the trial court.
Further piqued by the affirmation of his conviction and sentence by the court below, the appellant further appealed to this court.
Before this court, briefs of argument were filed and exchanged by the learned counsel to the parties in keeping with the rules and practice applicable in this court, the appellant herein, filed the Appellant’s Brief of argument on 12/12/2017, settled by D.A. Awosika Esq, and same was adopted at the hearing of the appeal on 15th November, 2018. On its part, the respondent filed its Respondent’s Brief of Argument on 20th March, 2018 which was settled by Kehinde Aina Esq. The said brief was also argued and adopted at the hearing of the appeal on 15th November, 2018. The Appellant herein, raised sole issue for the determination of the appeal which reads thus: –
“Whether having regard to the evidence adduced by the prosecution, the justices of the Court of Appeal were right in affirming the conviction and sentence of the Appellant for the offence of murder. (Distilled from Grounds one (1) and two (2) and (3).
Although at page 5 of its brief of argument the Respondent claimed that it adopted the context of the sole issue formulated by the appellant as reproduced above and agreed that that lone issue is apt for the determination of the appeal, its learned counsel nevertheless proceeded to rephrase the lone issue as encapsulated on page 5 of the said Brief.
The rephrased issue decoded by the respondent is set out hereunder; –
“Whether having regard to the evidence led by the prosecution the trial court and the Court of Appeal were right in holding that the prosecution proved the case of murder against the appellant beyond reasonable doubt”
The two sets of issues reproduced above are very much similar but merely differ in the manner they were couched. I shall therefore treat this appeal on the guidance of the issue raised in the respondent’s brief which appears to me to be more encompassing.
SUBMISSIONS BY LEARNED COUNSEL FOR DETERMINATION
The lone issue deals with whether the court below was right in affirming the judgment of the trial court. The learned counsel argued that the evidence relied upon by the court below was hearsay. He argued further that a careful analysis of PW1’s evidence and the acct of the appellant attributing to the death of Kolawole Badejo would reveal that they were confirmed that he was dead, He argued that from evidence of PW1 as contained at pages 50-52 of the record shows that the PW1 did not follow Kolawole Badejo to the hospital and rather, she was not at the hospital when he gave up and that she could not have given the evidence based on what she saw. He cited the case of Nwaeze v State (1996) 2 NWLR (page.428). He argued that the appellant’s act did not cause the death of Kolawole Badejo as the evidence of PW1 only states that the appellant stabbed Kolawole Badejo at his back and on his leg but did not show that the injury inflicted was what really caused his death. He submitted that it is not enough to show that the accused did an act or made an omission which could have caused the death. He argued that there was no medical evidence to show the nature and severity of the injury Kolawole Badejo received from the appellant and that the trial court drew inference from the circumstances that it was proved that the act of the accused caused the death of the deceased. He cited the case of UGURU V STATE (2002)9 NWLR (pt.771) 90.
The learned appellant’s counsel also argued that there was no nexus between the evidence of PW1 and Exhibit 1 (i.e confessional statement) as the facts narrated by PW1 regarding the event which took place before Kolawole Badejo was said to have been stabbed by the appellant was radically different from the content of Exhibit 1. He argued that from the entire record, there is no other evidence outside the purported confessional statement upon which the appellant’s conviction was based. He urged this court to allow the appeal and quash the conviction of the appellant. The learned counsel to the respondent adopted the issue formulated by the appellant.
He argued that the evidence of PW1, the wife of the deceased; is not only credible but sufficient on the standard of proof beyond reasonable doubt that Kolawole Badejo had died. He argued that to contend that the evidence required to prove that the deceased’s death must be proved by evidence of a witness who was present at the time when the deceased breathed last, is to go beyond the standard required by law on proof beyond any shadow of doubt. He cited the case of AGBO V STATE (2006)6 NWLR (pt.9775 at 584-585 where the Supreme Court endorsed with the approval the law stated by Denning J. in the case of MILLER V MINISTER OF PENSION (1997)2 ALL ER 372 at 373. He submitted that in murder cases, the cause of death of the deceased is a crucial ingredient of the offence upon which the court must receive evidence in every certain terms to prove beyond reasonable doubt that the deceased died as a result of the accused person’s act. He argued that the death of the deceased in this case occurred few hours after the incident. He submitted that the death of the deceased is so proximate to the incident that happened the previous night for it to be established beyond reasonable doubt that the death of the deceased was caused by the appellant. He argued that the confessional statement of the appellant (i.e Exhibit I) clearly corroborated the oral testimony of PW1 that the deceased was stabbed by the appellant on his back and leg and had also corroborated the fact that the entire incident happened late into the night of 20th of November, 2009. He therefore submitted that the evidence established beyond reasonable doubt, that it was act of the appellant that inextricably caused the death of the deceased. He argued that the severity of the injuries inflicted on the deceased are not only clear but very graphic. He cited the case of ADEKUNLE V STATE (2006) 14 NWLR (pt.1000) 717, where it was held that the gun shot was the cause of the death in the circumstances even though the deceased died the next day. He then urged the court to affirm the conviction and sentence of the appellant and to dismiss the appeal.
RESOLUTION OF ISSUE FOR DETERMINATION
The lone issue to be resolved in this appeal is whether the prosecution/respondent had proved its case beyond reasonable doubt at the trial as would justify the trial court to have to convicted the appellant and whether the lower court was thereupon right in affirming the decision of the trial court in convicting the appellant. In this instant case, the appellant as an accused person faced the charge of murder of Kolawole Badejo, contrary to Section 316 of the Criminal Code punishable under Section 319 of the same code. It ought to have been established and is a well settled law too, that in a case of murder under Section 316 of the Criminal Code, the prosecution must prove beyond reasonable doubt the under listed ingredients of the offence; namely:
(a)That death of a human being has been caused
(b)That it was the act of the accused that caused or led to the death of the deceased.
(c)That the act or acts were done with the intention of causing death; or
(d)The accused knew that death would be the probable consequence of his act or acts
See Omini Vs The State (1999)12 NWLR (pt.630)168 or (1999)9 SC I; Aboyade V The State (1996) LPELR-45 (SC); Ogbe v The State (1992) 2 NWLR (pt.222)164.
It must be emphasised here, that the burden of proof is always on the prosecution to prove all the afore-listed elements of the offence of murder and the standard of such proof is beyond reasonable doubt. See the cases of Frank Uwagbede v The State (2008)12 NWLR (pt.1102)621; Nwachukwu v The State (2005) 4 LRCNIC 53 at 72; Bakare V The State (1987)1 NWLR (pt.52)579 at 582 & 592; Onah v The State (1985) 3 NWLR (pt.12) 236. See also Section 135 of Evidence Act. It is apposite to stress here too,
that an accused person has no duty to prove his innocence in criminal cases. See Alabi v State (1993)7 NWLR (pt.397) 511; Ariche vs State (1993) 6 NWLR (Pt. 302) 752.
I shall now consider and determine serially whether the above mentioned four ingredients of the murder charge against the accused/appellant were actually proved beyond reasonable doubt as would warrant his conviction and sentence by the trial court and as later affirmed by the lower or court below.
Firstly, on whether a death of human being was caused, it is clear that the prosecution now respondent, in proof of its case, relied on the testimonies of two witnesses and of course the confessional statements of the appellant which I must say, the trial court relied on these pieces of evidence to convict the appellant.
For instance, PW1 the star witness who incidentally was the wife of the deceased, testified that the deceased (her husband) was dead and she was not cross examined on that piece of evidence neither was she challenged. Also the photographs of the deceased’s dead body were tendered and admitted in evidence and marked Exhibits 2, 2(A) 2B and 2(K) without objection from the defence. Again in the appellant’s confessional statement Exhibit 1, he admitted that the victim Kolawole Badejo was dead even though he denied killing him and stated that it was Adebayo Babatunde who killed him. In my view, from the above pieces of evidence, there is no iota of doubt that the first ingredient of the offence of establishing that the deceased died has been proved by the prosecution as rightly found by the trial court and as was subsequently affirmed by the lower court. See Lori & Anor vs State (1980) 11 SC 81 Onah vs State (supra).
It is trite law, that in a murder case, death could also be proved either through confessional statement of an accused or by circumstantial evidence. Learned counsel for the appellant raised eyebrows on the failure of the prosecution/respondent to tender any medical report on the death of the deceased victim. It is trite law, that medical evidence though is desirable in establishing the cause of death in a case of murder, it is however not essential or a pre-requisite in a situation where there are facts sufficient enough to show the cause of death to the satisfaction of the court. See LORI V STATE (supra) Uwaegbe Erewoh v The State (1990) NWLR (pt,145)469 or (1990)7 SC (pt.11) or (1990) LELR-114 (SC). Medical evidence can in fact be dispensed with where evidence shows that the victim died in circumstances which leave no doubt as to the manner or as to the cause of the death of the deceased victim. See Deminabo Princewill v The State (1994)6 NWLR (pt.353)703.
In this instant case, PW1 the wife of the deceased who witnessed the commission of the offence and was therefore an eye witness, testified that she saw when the appellant stabbed her husband at the back and his leg with a knife. Also in his confessional statement, Exhibit 1 the Appellant stated that he grabbed a knife that dropped from the deceased person’s pocket and stabbed him (deceased) with it on the back and leg and also stated that in observing that when he was becoming unconscious, he wanted to take him to the hospital but the deceased’s friends came and attacked him and he later died in the hospital. These pieces of evidence therefore clearly show that the deceased died not too long after the injuries were inflicted on him with the knife by the appellant. There was no evidence of any intervening factor that could have caused or aggravated his death. The death of the deceased could therefore be regarded as instantaneous since there has not been any break in the chain of causation that could be attributed to the death of the deceased besides the injuries inflicted on him by the appellant. In that circumstance, the non-tendering of a medical report by the prosecution cannot be regarded as fatal to its case at the trial court. This is moreso because, although the law makes it desirable to tender medical evidence in murder charge to establish cause of death, however tendering such medical evidence is not sine qua non to establish cause of death provided there is sufficient and satisfactory evidence showing that the act of the accused resulted in the death of the deceased. The law is trite that where the death is instantaneous or almost so, then medical evidence ceases to be of any practical or legal requirement or necessity. See Ben V State (2006)16 NWLR (pt.1006) 582; Essien v State (1993) 6 NWLR (pt.290) 303; Akpa v State (2008)14 NWLR (pt.106) 72.
In this instant case evidence abounds that the deceased died few hours after he was stabbed by the appellant and that piece of evidence was never challenged, controverted or contradicted at the trial. See Uyo v Bendel State (1968) 1 NWLR (pt.17) 418; See also Obogo v The State (1972) SC 39 where this court held that a court can infer the cause of death from, the evidence and circumstances of the case, in the light of the aforesaid, 1 am also convinced that the death of the deceased Kolawole Badejo had been proved in the light of the evidence adduced at the trial and in view of the circumstances of the case, notwithstanding that no medical evidence was led by the prosecution/respondent which as 1 said earlier, was of no necessity in the circumstance of the case.
The next ingredient is whether the death of the deceased Kolawole Badejo was as a result of or could be attributed to the act or acts of the accused/appellant. The PW1 (wife of the deceased) gave eye witness account that the appellant stabbed the deceased at the back sides and left leg and that he bled profusely and was thereupon rushed to the hospital. That piece of evidence was corroborated by the appellant’s confessional statements to the extent that after he stabbed him, he observed that he was becoming unconscious and that when he discovered that he deceased sustained serious injury, he started to cry and wanted to take him to the hospital. Also in another confessional statement of the accused/appellant (Exhibit 3A), the appellant stated that after stabbing him then he fell down and could not stand on his own again, (see page 20 of the record). As l posited earlier in this judgment, there was no intervening factor besides the stab wounds inflicted on the deceased by the appellant. To my mind therefore, the death of the deceased was as a result of and attributed to the act or acts of the appellant alone. There is, in my opinion a direct link between the injuries sustained by the deceased as a result of the knife stabs inflicted on the body of the deceased and his ultimate death. It is common knowledge and is indeed trite law, that infliction of serious and severe wound could have anticipatory natural result of death and the person who inflicted such serious or severe wounds would be guilty of murder.
In my view, there is direct evidence adduced which proved the cause of the death of the deceased which connected the death of the deceased with the act or acts of the accused. See Oguntolu v State (1996)2 NWLR(pt.432)503; Young Ukauwa Ugwu v The State (2002) 9 NWLR (pt.771) 90.
Next, is to determine whether the act of the act was intentional or with knowledge that grievous bodily harm or death would be the probable consequence. In order to determine whether the accused by his act or acts intended to cause death of his victim, the law has set down some factors to be considered. Some of these factors include (a) the weapon used on the victim i.e. whether lethal weapon and used in the deceased that is a lethal weapon which is deadly death-dealing (b) part of the body of victim on which the weapon was used or brutalised and (c) the extent or proximity of the victim with the lethal weapon or number of blows, stabs or severity applied in the attacks. See Iden v State (1994)8 NWLR (pt.365j719. In the instant case, evidence was led through PW1 which the trial court rightly believed that the appellant dealt several stabs on the back and leg of the deceased. The accused in his confessional statement Which he made at the early stage of his arrest when the facts of the case were very fresh in his mind even though he later resiled from that statement when he said that it was Tunde Adebayo who killed the deceased, which said defence was rejected rightly, in my view, by the two lower courts.
To my mind the circumstance of the instant case and the evidence adduced have clearly established
the way and manner the appellant/accused mercilessly attacked the deceased by stabbing him with a knife on a vital part of his body i.e on his back and leg clearly displayed his intention to cause grievous hurt or even the death of the deceased, apparently without any valid provocation and also not in exercising private defence at all, since there was no evidence that the deceased had any weapon on him which he confiscated and used to repel any attack or threat from the helpless, defenceless and unarmed deceased.
This element of the offence of murder has also been proved through compelling, reliable and uncontroverted or unchallenged evidence adduced by the prosecution/respondent. From the act of the accused/appellant as 1 posited supra, it is manifest that by his act he knew that death would be the probable consequences of his act or acts. See Omini v State (1999) 12 NWLR (pt.630) 168 or (1999) 9 SC 1 or (1999) LPELR 2638 (SC). This ingredient of the offence has also been proved by the prosecution/respondent.
This brings me to the confessional statements made by the appellant which were tendered in evidence in the course of the trial and which the trial court partly relied on to convict the appellant of the offence of murder. I am mindful of the fact that the appellant, when presenting his. defence, resiled from
the confessions he made to the police during investigation of the case when the facts of the case were very fresh in his mind.
This court in the case of Abdullahi vs State (2015) EJSC (Vol.8)103 defined the term “confessional statement” thus:-
“By virtue of Section 27 (i) and (2) of the Evidence Act, a confessional statement is an admission made at any time a person charged with certain offences. It is equally part of the principle that a confessional statement is deemed to constitute relevant facts against the person who made it only when voluntarily given by its maker and/or obtained from him.” See also Nsofor v State (2004) 18 NWLR (pt.905) 292 referred therein.
See also Adebayo V State (2015) EJSC (Vol.4) 60; Akpan v State (supra). It is settled law that a confessional statement is the best evidence that the accused person committed the offence since it is his own confession. See Yesufu v State (2013) 1-2 SC.194. I am not unaware that in this appeal, the appellant in his defence had resiled from or retracted the confessions when he stated that it was death. The law is trite that where a confessional statement is retracted or resiled from at the trial, the trial judge must examine the evidence led in order to see if there is independent evidence corroborating the retracted confessional statement. Where a confessional statement is retracted as in this case, the court then shall decide the weight it would attach to the confessional statement. The best way to go about it is by subjecting the confession to the under listed six tests, namely: –
(a)Is there anything outside the confession to show that it is true?
(b)Is the confessional statement corroborated
(c)Are the statement made in it of facts and so far as we can test them, true?
(d)Is the accused person a person who had the opportunity of committing the offence
(e)Is his confession possible?
(f)Is it consistent with other facts which have been ascertained and which have been proved at the trial?
See Kareem v FRN (2003)16 WRN 114; Kolawole v State (2015) EJSC (Vol.3)41; Dibie v State (2007)1 ALL FWLR (pt.363)83; Ejinima v State (1991)5 LRCN 1640; Bature v State (1994)1 NWLR (pt.320)267. It is noted by me that the trial court had strictly and really subjected the confessions to the above as observed by the court below when it held that the trial court had subjected the confessional statements to the above listed six test in acting and relying on the confessional statement of accused and found them corroborated before convicting the appellant of the offence charged. I therefore have no justifiable reason or reasons to interfere with the findings of the two lower courts. In the result, I hold the view that the prosecution/respondent had proved its case conviction. In a nut shell, the lower court was right in affirming the conviction and sentence of the appellant of the offence of murder. The lone issue is therefore resolved against the appellant. I must also add that there are concurrent findings of two lower courts which I should not disturb since they are not perverse.
On the whole, it is my judgment that this ‘ appeal is devoid of any merit. It fails and is accordingly dismissed. The judgment of the lower court which affirmed the conviction and sentence of the appellant by the trial court of the offence of murder, is hereby further affirmed by me. Appeal is dismissed.
MARY UKAEGO PETER-ODILI, JSC: I am at one with my learned brother, Amiru Sanusi JSC in the judgment just delivered and to register the support for the reasoning’s from which the decision came about, I shall make some remarks.
This is an appeal against the decision of the Court of Appeal or Court below or Lower court, Ibadan Division, Coram: Modupe Fasanmi, Chinwe E. Iyizoba and S. Tsammani JJCA affirming the conviction and sentence to death on the appellant entered and passed by the High Court of Ogun State, Ota Division Per M. A. Ojo J. on the 2nd day of June, 2015.
The background facts leading to this appeal are well captured in the lead judgment and no useful purpose would be achieved in repeating them save for when the occasion warrants a reference to any part thereof.
On the 15/11/2018 date of hearing, learned counsel for the appellant, D. A. Awosika Esq. adopted the brief of argument filed on 12/12/17 and deemed filed on 7/3/18 and in it was distilled a single issue, viz:-
Whether having regard to the evidence adduced by the prosecution, the Justices of the Court of Appeal were right in affirming the conviction and sentence of the appellant for the offence of murder. (Distilled from Grounds one, two and three).
Learned counsel for the respondent, Kehinde Aina adopted the brief of argument filed on 20/3/2018 and crafted a sole issue for determination as follows: –
whether having regard to the evidence led by the prosecution the trial court and the Court of Appeal were right in holding that the prosecution proved the case of murder against the appellant beyond reasonable doubt.
The two differently crafted issues are really asking the same question but for ease of reference I shall utilise that as formulated by the appellant.
Whether having regard to the evidence adduced by the prosecution the Justices of the Court of Appeal were right in affirming the conviction and sentence of the appellant for the offence of murder.
Learned counsel for appellant contended that the evidence the court below held to be available was hearsay. That there was no evidence adduced by the prosecution indicating that the act of the appellant caused the death of Kolawole Badejo as it should not be forgotten that the deceased did not die immediately he received the injury. Also, that there was no clear evidence as to when he died nor a medical report made available to clear the point, rather the absence of the medical report brought into operation the presumption under Section 149 (d) of the Evidence Act. He cited State v Ajayi (2016) 14 NWLR (PL 1532) 196; Uguru v State (2002) 9 NWLR (Pt.771) 90; Giremabe v Bornu Native Authority (1961) 1 All NLR 489; Ibo v The State (1971) NMLR 245 etc.
For the appellant it was further contended that there was no nexus between the evidence of PW1 and Exhibit 1 (confessional statement) and the contradictions were visible. He cited Ibeh v State (1997) 1 NWLR (Pt.484) 632.
Responding, learned counsel for the respondent contended that the evidence of PWl and Exhibit 1 are sufficient to assist the two courts below in arriving at: the conclusion that the said Kolawole Badejo had died and the circumstances of the death within the standard of proof beyond reasonable doubt. He cited Alkalezi v The State (1993) 10 LRCN 264; Ochemaje v State (2008) 15 NWLR (Pt.1109) 57 at 95; Agbo v State (2006) 6 NWLR (Pt.977) 545 at 584-585.
For the appellant, the appeal is hinged on the fact that it was not the appellant’s act that led to the death of Badejo Kolawole and that the prosecution was not able to: prove any of the ingredients of murder and as a result, the appellant ought to have been discharged and acquitted.
On the other hand, the respondent contends that it proved the charge against the appellant beyond reasonable doubt and the acts of the appellant inextricably linked to the death of the deceased Kolawole Badejo and the conclusion concurrently reached by the two courts below irresistibly so.
It is now very well settled that the principle of criminal law is that the burden of proving a crime rests squarely on the prosecution with a standard of proof that is beyond reasonable doubt which in effect means that every ingredient of the offence must be established to that standard of proof without leaving any reasonable doubt as to the guilt of the accused in the case.
In this instant case where the appellant was charged for murder the essential elements to ground a conviction being as follows: –
(a)There was a killing.
(b)The killing was unlawful as prohibited by Section 316 of the Criminal Code.
(c)It was the act or omission of the accused person that caused the death of the deceased.
(d)The accused intended to cause the death of the deceased.
See Anekwe v The State (1976) 9-10 SC 255; Aiguoreghian v The State (2004) 3 NWLR (Pt.860) 367; Idiok V State (2008) 13 NWLR (Pt.1104) 225 at 237.
Situating the guiding principle on proof of a criminal offence such, as in the case at hand which is a charge of murder contrary to Section 316 and punishable under Section 319 of the Criminal Code Law, Laws of Ogun State 2006, it is on record that the respondent as prosecution called two witnesses including PW1, the wife of the deceased who testified as follows: –
“….as he was trying to explain, suddenly the accused (appellant) came from nowhere and stabbed my husband from behind at the back. He again stabbed him on his side and as my husband was running away, he fell down and the accused went to meet him and stabbed him again on the left leg. My husband started bleeding profusely and he was rushed to the hospital. The police arrived at the scene and arrested the accused and took him to the station. The police ordered me into their vehicle and carried me to the station. I did not follow my husband to the hospital. I passed the night at the police station. The police asked me what happened and I explained. They also took statement from the accused. Next morning, I was asked to go home, I was informed later that mv husband had died”. (Underlining mine).
Then is the evidence of PW2, the Investigating Police Officer (IPO) who tendered the extra-judicial statement of the appellant, Exhibit 1, excerpts of which are thus: –
“Kola used the broken bottle to stab my hand and I took to my heels but he pursued me to a place that I fell down and a knife dropped from his pocket which I picked and I used to stab his back and leg before he could leave me. When I observed he was becoming unconscious I wanted to take him to nearby hospital but his friends came to attack me and beating me. Thereafter, Tunde came to the spot and took him to the nearby hospital for medical treatment. Kola later died at the hospital on the 21/11/2009”. See pages 17A of the Record of Appeal, lines 7-17 particularly 16-17.
Again, to be said is that the deceased died in the hospital not at the place of attack which fact the appellant seems to hold against the prosecution to contend that the standard of proof was not met. This posture seems to suggest that the proof is not made out so long as no eye witness to the last breath of the
deceased testified to that effect. Accepting such a position would be aligning to a standard beyond which the law has not provided, that is a requirement of proof beyond any shadow of doubt. Such an expectation is not what the law has scripted and the law asks for proof beyond reasonable doubt as the law has not made provision for fanciful possibilities over what is humanly possible so as not to deflect the course of justice. Stated differently, where the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, “of course it is possible not in the least probable”, the case is proved beyond reasonable doubt and anything below that will not suffice. See Alkalezi v The State (1993) 10 LRCN 264; Ochemaje v State (2008) 15 NWLR (Pt.1109) 57 at 95; Agbo V State (2006) 6 NWLR (Pt.977) 545 at 584-585.
One is mindful of the fact that what we are faced with in this appeal are findings concurrently made by the two courts below and it is already trite in law that the Supreme Court or any appellate court for that matter will not reverse concurrent findings of fact except where the appellant establishes special circumstances why the court should do the unusual. Such exceptional circumstances include where the findings are found to be perverse or stemmed from a misapplication of either the substantive or procedural law which led to a miscarriage of justice. See Ibikunle v State (2007) 2 NWLR (Pt.1019) 546 at 579; Eholor v Osayande (1992) 6 NWLR (Pt.249) 524 at 548.
Taking the above principle on concurrent findings of fact of two lower courts contextually along with the evidence proffered by the prosecution where it was able to show by eye witness account of PW1; the wife of the deceased as to how the appellant stabbed him twice, first at the back, then on his side and when he fell the appellant still gave a third stab on the leg. This direct and cogent uncontroverted evidence clearly corroborated the confessional statement of the appellant, the fuller text of which is stated hereunder, viz: –
“…-On the 20th of November, 2009 at about 1030pm I got a phone call from my friend Tunde Adebayo who lived around my area that one Kola Badejo now deceased was fighting with him over a furniture work he gave him…. later his Wife came to invite me that Tunde and Kola are fighting I then followed her immediately. On getting to Tunde’s house I saw him outside and he narrated to me that Kola gave him sum of N5,0000.00 to do furniture bed and he has come to fight him because he had not finished it, he stressed further that Kola has asked him to return his money and all effort to appeal to him proved abortive. Hence, I told him that I will go and see kola in his house but kola met me outside while Tunde have (sic) an inside to hide, I was trying to beg him, he could not listen and he injured me with a broken bottle on his hand. Kola was having a broken bottle and another sharp object like saw blade on his two hands. Kola used the broken bottle to stab my hand and I took to my heel but he pursued me to a place that I fell down and a knife dropped from his pocket which I picked and I used to stab his back and leg before he could leave me. When I observed he was becoming unconscious I wanted to take him to nearby hospital but his friends came to attack me and beating me. Therefore, Tunde came to the spot and took him to the nearby hospital for medical treatment. Kola later died at the hospital on the 21/11/2009. I was arrested by the police men from Agbado Police Station. The knife I used has been collected by one of his friend on that night”.
The Court of Appeal in upholding or sustaining the conviction of the appellant by the trial court held thus: –
“From the circumstance it is reasonable to infer that the appellant’s intention was to kill or cause the deceased grievous bodily harm. The learned trial judge was consequently right in his conclusion that “The sequence of events on the night of 20/11/09 as narrated by PW1 and confirmed by the accused point to the irresistible conclusion that the accused formed and executed the intent to savagely attack the deceased knowing fully well that death or grievous bodily harm was a probable consequence of his act”.
The Court below had further held as follows: –
“There was no other intervening circumstance or event that could have led to the death of the deceased, other than the stab wounds. He bled profusely after the stab wounds. He could no longer stand on his feet and became unconscious. There is no doubt from the evidence led in this case that the deceased died as a result of the act of the appellant”.
From the record, the circumstances of the attack on the deceased and the severity of the injuries inflicted on him by the appellant even as admitted by appellant in his extra-judicial Statement were so brought out by the prosecution that there is no doubting that the deceased Badejo died from injuries meted out by the appellant who did so with intention to either cause grievous bodily harm or death and so the ingredients of the offence of murder were established beyond reasonable doubt by the prosecution. That the deceased died the following morning to the incident which happened the night before did not change anything. Therefore, the special circumstances on which this court could base an upset of the concurrent findings do not exist. See Uyo v A. G. Bendel State (1986) 1 NWLR (Pt.17) 428; Babuga v State (1996) 7 NWLR (Pt.460) 279; Adekunle v State (2006) 14 NWLR (Pt.1000) 717; Ben v State (2006) 16 NWLR (pt.1006) 582; Ogbu v State (2007) 5 NWLR (Pt.1028) 635.
Indeed, the prosecution discharged the burden of proof laid upon by law and that establishing the ingredients of the offence of murder beyond reasonable doubt against the appellant and I see no merit in this appeal just as was well set out in the leading judgment.
Appeal is dismissed as I abide by the consequential orders as made.
SIDI DAUDA BAGE, JSC: I have had the benefit of reading in draft the lead Judgment of my learned brother Amiru Sanusi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal lacks merit and it is accordingly dismissed by me.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC: I have had a preview of the judgment of my learned brother, Amiru Sanusi, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is devoid of merit.
There was credible eye witness evidence of PW1 who saw the appellant stab the deceased and uncontroverted evidence that the deceased died in hospital soon after the stabbing. There was no evidence of any intervening event. Furthermore, the appellant made a positive, direct and unequivocal confession that he stabbed the deceased and saw that he was losing consciousness as a result of the stabbing. Although retracted at the trial, the confession was admissible in evidence as part of the prosecution’s case and the trial court rightly considered it along with other evidence adduced at the trial before concluding that the prosecution had established its case beyond reasonable doubt. See. Salawu Vs The State (1971) NMLR 249 @ 252: Aremu Vs The State (1991) 7 NWLR (Pt. 201) 1 @ 15 G – H: Akinfe Vs The State (1988) 3 NWLR (Pt. 85) 729 @ 746.
This appeal is against the concurrent findings of the two lower courts. In order to succeed in this appeal, the appellant must show that the decision of the lower court affirming the judgment of the trial court is perverse, either because the evaluation of evidence and findings of fact were not based on a proper and dispassionate appraisal of the evidence on record, or the trial court did not make proper use of the opportunity of seeing and hearing the witnesses testify, or that the findings were reached as a result of a wrong application of substantive law or procedure, or that there was a miscarriage of justice manifest on the face of the record. See: Igbi Vs The State (2000) 3 NWLR (Pt. 648) 169; Shehu Vs The State (2010) 8 NWLR (Pt. 1195) 112; Itu Vs The State (2016) 5 NWLR (Pt. 1506) 443. These are some of the exceptional circumstances that would persuade this court to interfere. Unfortunately, the appellant has failed to convince me that any of these factors apply in this case.
For these and the more detailed reasons given in the lead judgment, I also dismiss the appeal as lacking in merit. The judgment of the lower court affirming the appellant’s conviction and sentence by the trial court is affirmed.
EJEMBI EKO, JSC: This appeal was brought, notwithstanding the hackneyed stance and dicta of this Court that on concurrent findings of fact by the trial and the intermediate courts there is a presumption that the facts found as established in the concurrent judgments are correct, and that the apex court will not lightly interfere with the concurrent findings of fact.
The established judicial policy for decades is that the apex court, unless the appellant shows exceptional circumstances, will not hear arguments seeking to disturb concurrent judgments of the two courts below on pure questions of fact: SERBEH v. KARIKARI (1939) 5 WACA 34. The Privy Council, as the apex court then, in NANKA-BRUCE v. GBEKE PC No. 56 of 1948 stated the point emphatically that it would decline the review of the evidence for the third time unless there were some special circumstances that would justify a departure from the practice. The derivative principle from this policy is that concurrent findings of facts by the two courts below prima facie entitle respondent to a dismissal of the appeal: ADANSI V. BRENASE PC No. 23 OF 1953.
It appears, however, from Section 233(2)(d) of the Constitution, as amended, that vests in the appellant, where his death sentence has been affirmed by the Court of Appeal, a right to appeal as of right, that concurrent judgments affirming death sentence do not prima facie entitle the respondent to judgment. This clearly may be an exception to the established judicial policy.
The parties are ad idem in this appeal that the only issue calling for the determination of the appeal is whether the two courts below were right in their concurrent judgments on facts that the prosecution had proved the guilt of the appellant beyond reasonable doubt for the murder of Kolawole Badejo (deceased). The appeal therefore calls for the review, by this Court, the third time the evidence on which the appellant was convicted for murder and accordingly sentenced. The appellant still has the burden of showing in what circumstances the two courts were wrong on the facts they found against him in order to justify this Court disturbing those concurrent judgments on the facts.
My learned brother, AMIRU SANUSI, JSC, has painstakingly undertaken the third review of the evidence on which the appellant’s conviction and death sentence were premised. I hereby adopt the judgment just delivered in this appeal by him; his analyses of the issue canvassed and conclusions thereon being agreeable to me. In coming to this conclusion, I bear in mind the empirical evidence of the PW.1, corroborated by the confessional statements of the appellant (which he though retracted unsuccessfully), in which she averred to the satisfaction of the trial court that the appellant stabbed the deceased several times at the back and on the leg, and that the deceased bled profusely as a result. Other pieces of evidence on the record amply corroborate both the PW.1’s evidence and the confessional statements made extra judicially by the appellant.
I have no cause to disturb the concurrent judgments of the courts below affirming the guilt of the appellant. I find no substance in this appeal. Accordingly, I join my learned brother, AMIRU SANUSI, JSC, in not only dismissing the appeal, but also in affirming the conviction and. sentence imposed on the appellant.
D. A. Awosika, Esq., with N. T. John, Esq., for the Appellant|KehindeAina, Esq., with faith Ozurumba, Esq., and Chiamaka Obladi, Esq., for the Respondent|