OJO ADEYEYE V. STATE
(2010)LCN/3659(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of March, 2010
CA/I/74/07
RATIO
CRIMINAL LAW: INGREDIENTS OF PROVING MURDER
In a charge for murder the prosecution must prove the following beyond reasonable doubt
- That the deceased died.
- That it was the act of the accused that caused the death of the deceased.
- That the act of the accused which caused the death of the deceased was intentional and it was with the knowledge that death or grievous bodily harm would be the probable consequence of that act.
There is a plethora of case law on this subject matter. See however the following cases which serve to illustrate the point- NDUKWE V. THE STATE (2009) 2 SCM 147 at 167; ABOGEDE V. THE STATE (1996) 5 NWLR (PART 448) 270; NWOSU V. THE STATE (1986) 4 NWLR (PART 35) 384; OGBA V. THE STATE (1992) 2 NWLR (PART 222) 164; DANIELS V. THE STATE (1991) 8 NWLR (PART 212) 715. PER STANLEY SHENKO ALAGOA, J.C.A
CRIMINAL LAW: WHEN WILL THE LAW ONLY EXCUSE A KILLING
The law would only excuse a killing if the killer had reasonable grounds to believe his life was in danger and he had to kill in order to preserve it. The belief of the accused in such a situation would be tested on objective grounds and several factors would necessarily arise in determining the objective belief, for instance the magnitude of the force used on the deceased must be the same as that with which the accused defends himself. See LAOYE V. THE STATE (1985) 2 NWLR (PART 10) 112. PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT M Justice of The Court of Appeal of Nigeria
O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
OJO ADEYEYE Appellant(s)
AND
THE STATE Respondent(s)
DELIVERED BY STANLEY SHENKO ALAGOA, J.C.A(Delivering the Leading Judgement): This is an appeal against the judgment of T.O. Awotoye J. of the High Court of Justice Ilesha Osun State of Nigeria in Charge No. HIL/12C/99 THE STATE V. OJO ADEYEYE delivered on the 26th July 2001 wherein the accused was tried, convicted and sentenced to death on a one count charge of murder contrary to section 319 of the Criminal Code Cap 30 Vol. II, Laws of Oyo State 1978 as applicable in Osun State of Nigeria.
The offence for which the accused was charged reads as follows:
“STATEMENT OF OFFENCE
MURDER: Contrary to Section 319 of the Criminal code Cap 30 Vol. II Laws of Oyo State of Nigeria now applicable to Osun State.
PARTICULARS OF OFFENCE
OJO ADEYEYE ‘M’ on or about 5th day of February, 1997 at about 7.30 hours at Iwori Aba Odole Village in the Ilesa Judicial Division murdered one Babalola Ezekiel ‘M’.”
Upon the charge being read to the accused, he pleaded not guilty. The case proceeded to be heard with the prosecution calling seven witnesses while the accused gave evidence in his own defence. In the course of trial the accused’s statements, a medical report, a dane gun and cutlass were tendered and admitted as exhibits. Prosecuting Counsel and Counsel for the accused later addressed court and in a considered judgment delivered on the 26th July 2001 the learned trial Judge T. O. Awotoye J. found the accused guilty of murder and accordingly sentenced him to death by hanging.
The facts as can safely be made out are that the Appellant and deceased who had a common boundary demarcating their farmlands had had a disagreement in the Appellant’s farm land and in the course of which according to the Appellant who was the only eye witness, the deceased had pointed his dane gun at him threatening to kill him. The Appellant knocked off the dane gun from the deceased with his cutlass and a physical fight ensued between the two. Somehow the deceased gained the upper hand and the Appellant not knowing what else to do cut him on the neck with his cutlass and he died instantly. He admitted digging the ground and burying the deceased. Autopsy report tendered revealed that the deceased had died as a result of injury from the cut from the cutlass. The Appellant pleaded self defence.
Dissatisfied with the conviction and sentence of the lower court, the accused hereinafter referred to as Appellant has appealed to this Court by a Notice of Appeal dated the 31st July 2001 which is to be found at page 24 of the Records. However, by a motion on Notice dated the 13th June 2007 and filed same day brought pursuant to Order 4 Rule 3(3) of the then Court of Appeal Rules 2002 and under the inherent jurisdiction of this Court, this Court on the 12th February 2008 granted leave to the Appellant to amend his Notice of Appeal and to argue an additional ground of Appeal. This appeal is therefore predicated on the two grounds of appeal contained in the amended Notice of Appeal and the two grounds are as follows:
1. That the decision of the High Court is unreasonable and cannot be supported having regard to the evidence.
2. That the trial court erred in holding that the defence of self defence was not available to the accused person.
The Appellant has formulated in paragraph 3 at page 2 of the Appellant’s Brief of argument dated the 30th May 2008 and filed same day, the following two issues for the determination of this court –
(i) Whether the trial court was right to hold that the defence of self defence was not available to the Appellant.
(ii) Whether from the totality of the oral and documentary evidence before the lower court, the prosecution proved the case against the Appellant beyond reasonable doubt.
The Respondent (the State) for its part has in paragraph 3 at page 5 of the Respondent’s Brief of Argument distilled the following two issues devoid of particulars for the determination of this court –
1. Whether the trial court was right to hold that at the point of killing the deceased the defence of self defence was not available to the Appellant.
2. Whether the prosecution proved the case against the Appellant beyond reasonable doubt.
Both Briefs of argument were adopted and relied upon by the respective counsel for the Appellant and Respondent on the 17th February 2010 when this appeal came up for hearing. Ikenna Okoli counsel for the Appellant, with him N. Ilomuanya Esq. urged this Court to allow the appeal and set aside the judgment of the trial High Court while Abiodun Badiora Esq. Principal State Counsel Osun State Ministry of Justice for the Respondent urged us to dismiss the appeal.
The sole issue for determination in my view is:
WHETHER THE DEFENCE OF SELF DEFENCE DOES NOT AVAIL THE APPELLANT.
Undoubtedly both Counsel in their respective Briefs of Argument formulated as their issue No. 2 – Whether the prosecution proved its case against the Appellant beyond reasonable doubt which I think is quite unnecessary and forms part and parcel of the sole issue for determination as the prosecution to succeed in any criminal trial must always prove its case beyond reasonable doubt. I shall come to that a little later. All the arguments of Counsel in their respective Briefs of Argument are undoubtedly taken care of in the determination of this singular issue.
The Appellant has submitted that in arriving at the conclusion that the defence of self defence was not available to the Appellant the trial court failed to consider the principle governing the application of the principle of self defence and also the circumstances surrounding the death of the deceased. Counsel for the Appellant referred to Section 286 of the Criminal Code and to the cases of AHMED V. THE STATE (1999) 12 NWLR (PART 612) 641 at 683; BRAIDE V. THE STATE(1997) 5 NWLR(PART 504) 141 at 148-149 to contend that an Appellant believing on reasonable grounds that he could not preserve himself from death or grievous bodily harm otherwise than by using such force as the Appellant did in this case would be justified in his action even though such belief is founded on a genuine mistake of fact. Appellant’s counsel in the Brief of Argument recounted how the deceased had gone to the farm of the Appellant with a dane gun and threatened to shoot the Appellant and how a struggle had ensued between the two and in order to prevent the deceased from shooting him, the Appellant struck the deceased with a cutlass and the deceased died. Counsel also referred to the two extra judicial statements of the Appellant – Exhibits “B” and “E” made to the police to the same effect and submitted that the defence of self defence put up by the Appellant was not rebutted by the prosecution nor discredited. The defence of self defence under Section 286 of the Criminal Code therefore availed the Appellant, Counsel submitted in the Appellant’s Brief of argument. Counsel further submitted that in rejecting the defence of self defence put up by the accused/Appellant the trial Judge failed to put into consideration other facts which corroborated the statement of the accused. Appellant’s Counsel also made reference to alleged discrepancies in the two extra judicial statements made by the Appellant and made heavy weather of by the court in convicting the Appellant and submitted that an objective analysis of the extra judicial statements of the Appellant and his testimony in court reveal only a slight discrepancy which does not render the Appellant’s evidence contradictory or conflicting. Reliance was placed on NGWURU V. THE STATE (1991) 1 NWLR PART 165 Page 41 at 46.
Appellant submitted in his Brief that when an accused person raises the defence of self defence, the onus is not on him to prove such defence but on the prosecution to disprove it. Reliance was placed on BRAIDE V. THE STATE (supra) at 150; OZAKI V. THE STATE (1990) 1 NWLR (PART 124) 92 at 108; NGWURU V. THE STATE (supra) at 49. The prosecution had failed to discharge that onus according to the Appellant and the Court relied on speculation which ran contrary to the principle of law in AKPABIO V. THE STATE (1994) 7 NWLR (PART 359) 635 at 669-670 to the effect that it is not the function of a court of law to speculate on possibilities which are not supported by evidence. Counsel therefore submitted that the prosecution failed to prove its case against the Appellant beyond reasonable doubt as required by law.
The Respondent on its part has also referred to s.286 of the Criminal Code and restated the principle guiding the application of the defence of self-defence which is that for the defence to avail an accused person there must at the time of killing be a reasonable apprehension of death or grievous harm and the accused must reasonably believe that the act of killing was necessary for his own protection and not that of an excitable individual killer. Reliance was placed on AUDU V. THE STATE (2003) 7 NWLR (PART 828) 516 at 563; UDOFIA V. THE STATE (1984) NSCC 836 at 850. Respondent’s Counsel then went on to enunciate facts in the defence of the accused which show that his killing of the deceased was not an act of self defence. Counsel also referred to the confessional statements of the Appellant both in Exhibits “B” and “E” and orally to PW2, PW3, PW4, PW5, PW7 and PW7 how he killed the deceased and buried him in a shallow grave. The Respondent’s Counsel submitted that the prosecution had proved its case beyond reasonable doubt as rightly determined by the learned trial Judge whose findings not being perverse should not be disturbed by an appellate court. ALI V. THE STATE (1988) ANLR 1 at 23 was relied upon.
The Appellant was charged, tried, convicted and sentenced to death for murder contrary to section 319 of the Criminal Code. In a charge for murder the prosecution must prove the following beyond reasonable doubt
1. That the deceased died.
2. That it was the act of the accused that caused the death of the deceased.
3. That the act of the accused which caused the death of the deceased was intentional and it was with the knowledge that death or grievous bodily harm would be the probable consequence of that act.
There is a plethora of case law on this subject matter. See however the following cases which serve to illustrate the point- NDUKWE V. THE STATE (2009) 2 SCM 147 at 167; ABOGEDE V. THE STATE (1996) 5 NWLR (PART 448) 270; NWOSU V. THE STATE (1986) 4 NWLR (PART 35) 384; OGBA V. THE STATE (1992) 2 NWLR (PART 222) 164; DANIELS V. THE STATE (1991) 8 NWLR (PART 212) 715.
In the present appeal, the first and second ingredients do not pose any problem because there is no doubt that the deceased is dead if I may use that expression, his body having been found, but also there is no doubt that it was the act of the Appellant that caused the death of the deceased, the Appellant having so confessed to the killing. It is the third ingredient that is primarily the subject matter of this discourse. The Appellant’s defence for the killing of the deceased is that he acted in self defence. Section 286 of the Criminal code which deals with the defence of self defence provides as follows:
“When a person is unlawfully assaulted and has not provoked the assault it is lawful for him to use such force to the assailant as it is reasonably necessary to make effectual defence against the assault: Provided that the force used is not intended and is not such as is likely to cause death or grievous harm. If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes on reasonable ground that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force on the assailant as is necessary for defence even though such force may cause death or grievous harm,”
As was earlier observed the Appellant was the only eye witness of what transpired between himself and the deceased on that fateful day of the 5th February 1997. He gave evidence in his defence at the lower court. He had earlier made statements to the police which were admitted as Exhibits “B” and “E” and which were not retracted. How well does his evidence in Court as well exhibits “B” and “C” fit into his defence of self defence under section 286 of the Criminal code in the light of exhibit “A” – a medical report by Dr. Olasode, a pathologist who did the autopsy on the deceased’s body? Was the act of the Appellant at the point when he killed the deceased consistent with his defence of self defence? These are some of the questions which are germane to the determination of this issue. The Accused/Appellant’s evidence on the 18th June 2001 is at pages 12 and 13 of the Record of Appeal. In his examination in Chief he said as follows,
“On the day of the incident, I was in my farm around 8 a.m. About 10 o’clock the man came again and challenged me. He pointed his dane gun at me and cocked it. In self defence, I used the cutlass in my hand to knock off the dane gun from his hand. My cutlass also dropped. We then decided to struggle. The man knocked his head against my chest. I then fell down. The man fell on me with the gun which he had succeeded in retrieving. I struggled to push him off me but to no avail. He tried to shoot the gun again. I raised alarm but nobody. I then looked around and saw a cutlass. I threw the cutlass to prevent the man from shooting me. The man was hit with the cutlass. I then pushed the man off me. I was not happy because I did not intend to kill him.”
Under cross-examination he said he buried the deceased as it never occurred to him to report the incident to the police as he lacked the experience to do so. In his statement at the Nigeria Police Station Osu on the 6th February 1997, the following day after the incident which was admitted as Exhibit “B” the Appellant said that on the day of the incident being 5th February 1997 he went to his cocoa farm at about 8 a.m. and started working when some two hours later the deceased came to challenge him for being on the farm. He inquired from the deceased why he was being challenged in his farm. The deceased wanted to shoot him and he used the cutlass he had in his hand to knock off the dane gun which fell down. A fight then ensued between them which went on for almost an hour. The deceased gained the upper hand and as he could do nothing to defend himself he picked his cutlass from the ground and cut the deceased’s neck and the deceased died on the spot. When he discovered that the deceased was dead he dug the ground and buried him and later used leaves to cover him in the ground. He then went home and informed nobody. The next day he went to the farm and saw the corpse of the deceased on the farm. It was as he was leaving the farm that one Rafiu and others accosted him and took him to the police station where he was arrested. In another statement made at the state C.I.D. Osogbo on the 11th February 1997, admitted as Exhibit “E” the Appellant stated substantially what was in exhibit “B” but added that the cause of his fight with the deceased was over ownership of farmland and went on to say that the deceased had threatened him about thrice with his dane gun and he killed the deceased because of ownership of farmland that had always been the cause of trouble between the deceased and himself. The confession of the Appellant to having killed the deceased can never be in doubt having been made both orally in his evidence in court and in his statements to the police admitted as Exhibits “B” and “E”. There is some discrepancy as to how the Appellant employed the cutlass which caused the death of the deceased. In his evidence in Court the Appellant said he threw the cutlass at the deceased. What appears more probable and more consistent with exhibit “A” the medical report is the Appellant’s account in exhibits “B” and “E” that he directly killed the deceased by cutting the deceased’s neck with his cutlass. Of the cause of death exhibit “A” the medical report of Dr. B. J. Olasore states as follows,
“Death was from the machete injuries sustained in the neck. The autopsy revealed a 10 x 6cm deep laceration of the side and back of the head extending from the left pinna to the right side of the back of the neck. The great vessels supplying the head and neck were all severed. This led to interruption of blood flowing to the brain and loss of circulating blood volume. This led to loss of consciousness, collapse and death of the patient.
There was no sign of natural disease in the body that would have contributed to collapse or death of the patient.”
The doctor’s certification was that the cause of death in his opinion was MACHETE WOUND ON THE NECK. This is consistent with the Appellant’s statement in Exhibits “B” and “E” that he applied the cutlass on the deceased’s neck which according to the Appellant resulted in the instant death of the deceased. The heavy weather that has been made in the Appellant’s Brief of Argument that his evidence was not discredited by cross-examination appears to me to be misconceived because by appellant’s very evidence which is supported by his statements – exhibits “B” and “E” to the police, he appears not to have been in any reasonable apprehension of death or grievous harm at the time of killing the deceased. His evidence is that he knocked off the dane gun from the deceased’s hands with his cutlass which also fell down and a physical fight ensured between the deceased and himself with the deceased getting an upper hand in the physical combat. Why did he not aim his cutlass which he had succeeded in retrieving from the ground at the dane gun and knocking it down again as he had succeeded in doing the first time around? Why did he not aim the cutlass at a much less vulnerable part of the deceased’s body such as the very hand in whose possession the dane gun was? It is common knowledge that the neck and head region are among the most vulnerable parts of the human body and that a cutlass or indeed any other hard or lethal object if applied in those regions of the body would almost certainly lead to death or grievous harm. According to the medical report exhibit “A”,
“Death was from the matchet injuries sustained in the neck. The autopsy revealed a 10 x 6 cm laceration of the side and back of the head extending from the left pina to the right side of the back of the neck.” (Underlining mine for emphasis)
Thus exhibit “A” shows not just the depth but area or extent of the injury created by the machete cut. Such pressure to my mind is more consistent with a desire not merely to defend oneself but to kill or cause grievous bodily harm. The Appellant must be taken to intend the natural and probable consequences of his act. In UWAGBOE V. THE STATE (2007) ALL FWLR (PART 350) 1323 at 1335, the Appellant on an allegation that he had stolen a missing N60 (Sixty Naira) inflicted severe machete injury on the deceased nearly completely cutting off the right hand of the deceased which act eventually caused the death of the deceased. Affirming the Appellant’s conviction by the Edo State High Court for murder, the Court of Appeal had held at paragraphs E-H as follows,
“With respect to the actual intention of the Appellant at the time he inflicted cuts on the deceased, there can be no doubt as found by the learned trial Judge that the nature of the weapon used – a cutlass which is a sharp object and the severity of the injury caused by the use of the cutlass meant that the Appellant either intended to kill the deceased or cause him grievous harm. There is the legal aphorism that the devil himself does not know the intention of man. Intention is inferred from overt acts. The use of the cutlass on the deceased which almost completely severed the hand of the deceased was only an outward manifestation of an inner desire to kill the deceased. The Appellant must be taken to intend the natural and probable consequences of his action.”
In UWAGBOE’S case (supra) the Appellant angered by the remark of the deceased that he had been fingered in the loss of N60 had said to the hearing of people that he was going to kill the deceased that night and when he confronted the deceased on the day of the incident it was undoubtedly with the aim of killing the deceased or causing him grievous harm. In the present case on appeal, allegations of theft on the deceased’s farm which shares the same boundary had been made against the Appellant which he denied but his statement to the police is explicit, that he killed the deceased in order to put to rest the constant quarrels and confrontation that both had been having over land ownership. This confession to my mind being voluntary is quite direct and positive to rule out the defence of self defence and to ground a conviction for the murder of the deceased. See ADIO & ANOR V. THE STATE (2005) 4 ACLR 296 Page 309. The severity of the machete cut coupled with where the machete cut was directed i.e. the neck of the deceased are not consistent with the defence of self defence but a pre-meditated intention to either kill the deceased or cause him grievous bodily harm. That he dug a pit in the ground where he buried the deceased’s body which he covered with cocoa leaves and told nobody of the killing was an attempt to hide his crime. I do not find the findings of the lower court perverse, unreasonable or unsupportable by evidence or circumstances of this case and as such I have no reasons whatsoever to disturb the findings. Accordingly I resolve the issue in favour of the Respondent against the Appellant. I accordingly dismiss the appeal and affirm the conviction and sentence of the Appellant as contained in the judgment of T. O. Awotoye J. delivered on the 26th July 2001.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have read in draft the judgment of my learned brother, STANLEY SHENKO ALAGOA, JCA just delivered. He has exhaustively considered and resolved the sole issue in contention in this appeal. I agree entirely with his reasoning and conclusion. I also dismiss the appeal and confirm the conviction and sentence of the Appellant as contained in the judgment of High Court Osun State, Ilesa Judicial Division in Charge No. HIL/12C/99 delivered on 26th July, 2001 per T. O. Awotoye J.
CHIDI NWAOMA UWA, J.C.A.; His Lordship, my learned brother S. S. Alagoa, J.C.A. in the lead judgment has dealt comprehensively with the issues raised for determination and I agree with the reasoning and conclusions arrived at in dismissing the appeal and affirming the conviction and sentence of the Appellant by the lower court on 26/7/0l.
The Appellant has not denied murdering the deceased but, said he did so in self defence. The law would only excuse a killing if the killer had reasonable grounds to believe his life was in danger and he had to kill in order to preserve it. The belief of the accused in such a situation would be tested on objective grounds and several factors would necessarily arise in determining the objective belief, for instance the magnitude of the force used on the deceased must be the same as that with which the accused defends himself. See LAOYE V. THE STATE (1985) 2 NWLR (PART 10) 112.
In the present case, from the account given of the incident by the Appellant himself, the deceased was armed with a dane gun which he pointed at the Appellant, he only cocked it. There was no evidence that he shot at the Appellant and missed or got him anywhere. Infact the deceased had fallen down and his dane gun was also down when the Appellant gave him the severe cuts on the neck (more than one) that led to the instant death of the deceased. It is obvious that the force used by the Appellant in launching his attack was far too excessive considering the fact that the deceased had fallen down with the dane gun when the fight ensued, and was still down when the severe cuts were inflicted, which could not have been possible by a mere throw of machete as alleged by the Appellant. The Appellant aimed at killing the deceased and he made sure he did, with no chance of survival. As elaborated upon in the lead judgment, the Appellant did not aim at a part of the body where the deceased had a chance of survival.
The appeal has no merit; I also dismiss same and affirm the conviction and sentence of the lower court of 26/7/01 by T. O. Awotoye, J.
Appearances
Ikenna Okoli Esq.
N. Ilomuanya Esq.For Appellant
AND
Abiodun Badiora EsqFor Respondent
