P. C. IBIWOYE ADEOLA v. THE STATE
(2017)LCN/9555(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of February, 2017
CA/L/544c/2014
RATIO
WORDS AND MEANINGS: DEFINITION OF JUMP
The Oxford Advanced Learner’s Dictionary (7th Edition) page 804 defines the word “jump” to mean to move quickly off the ground by pushing yourself with your legs and feet. (My emphasis). PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
WORDS AND DEFINITION: MEANING OF AMNESTYY AND PARDON
‘Amnesty’ is an official statement allowing people who have been put in prison for crimes against the state to go free; while ‘pardon’ is an official decision not to punish somebody for a crime, or to say that somebody is not guilty of a crime (see Oxford Advanced Learner’s Dictionary, 7th Edition, Pages 45 and 1058, respectively). The latter wipes out the conviction and sentence and in the event of a pending appeal the pardon renders the appeal academic and liable to be struck out; while the former (amnesty) does not extirpate the crime and conviction and sentence entered thereon. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES:
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
P. C. IBIWOYE ADEOLA – Appellant(s)
AND
THE STATE – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of the High Court of Justice of Lagos State (the Court below) whereby it convicted and sentenced the appellant to 10 years imprisonment for manslaughter.
Stripped of detail, the facts behind the appeal, as stated by the appellant, were that a Police Constable while on official duty led by an Inspector of Police was directed by his leader to board a motor vehicle that was driven against traffic after it was stopped by them for the purpose of ensuring the vehicle was parked off the road for the questioning of the driver that drove it against the traffic; the driver of the vehicle refused to obey the order of the police constable to park the vehicle off the road; he drove on with the police constable heading for an unknown destination; the police constable sensing kidnap held the driver of the vehicle in order to get him to stop the moving vehicle; the driver eventually stopped and was placed under arrest by the police constable.
Meanwhile the conductor of the vehicle fled the scene and in the course of fleeing he crossed through
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the aluminum that demarcated the two bridges and in the process fell in the lagoon and drowned; a mob seeing the conductor dead descended on the detachment of policemen that were on official duty at the scene; all were able to escape except the appellant who was thoroughly beaten by the irate mob; the appellant and the other policemen were eventually charged with conspiracy to commit murder and murder at the Court below, which convicted the appellant of manslaughter and sentenced him to 10 years in prison; while the other policemen and co-accused of the appellant charged with the same offences in absentia and placed on bench warrant were never arrested and their names subsequently struck off the case.
The respondent’s case concisely expressed was that the policemen were on official duty among which was the appellant; they stopped the PW2, a commercial motor vehicle driver, at Carter bridge and tried to extort money from him; his conductor, the deceased, escaped from the scene with the money they had at the material time; the appellant pursued him; the deceased ran off with the money but fell into the lagoon after being pursued and held by the
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cloth by the appellant.
The court below accepted the version of the respondent upon which it convicted and sentenced the appellant to 10 years in prison for manslaughter.
Unhappy with the decision of the Court below the appellant filed a notice of appeal with 5 grounds of appeal from which 3 issues were formulated for determination on the appeal in the appellant’s brief of argument filed on 22-04-16.
The appellant argued in his brief that in criminal trial the standard of proof is beyond reasonable doubt and for the offence of murder or manslaughter not only the death of the deceased has to be established on that standard of proof but the respondent must prove unequivocally that the act of the appellant caused the death of the deceased and that in this case the PW1 testified that he was told that somebody pushed the deceased into the lagoon where he met his death from drowning which should be treated as inadmissible hearsay evidence citing in support the cases of Yakubu v. State (2014) 8 NWLR (Pt. 1408) 111 at 137, Okere v. State (2001) 2 NWLR (Pt. 697) 397 at 415-416, Adava v. State (2006) 9 NWLR (Pt. 984) 154 at 171, The People of
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Lagos State v. Umaru (2014) 7 NWLR (Pt. 1407) 584 at 628, Odogwu v. State (2013) 14 NWLR (Pt. 1373) 74.
The appellant’s brief referred to the evidence-in-chief of the PW2, the only eye witness called by the respondent, where he testified that the appellant pursued the deceased, caught him, and held his cloth before the deceased “fell” into the lagoon vide pages 58 and 60 of the record of appeal (the record), while the PW2 stated under cross-examination in page 61 of the record that the deceased Jumped into the lagoon, so the appellant submitted that it was unsafe for the Court below to convict the appellant on the materially contradictory evidence of PW2 citing in support the cases of The People of Lagos State v. Umaru (supra), Mustapha v. State (2013) 17 NWLR (Pt. 1383) 350 at 403-404, Onuchukwu and Ors. v. State (1998) 4 NWLR (Pt. 547) 576, Onubogu v. State (1974) 9 SC 1, Epoisons v. State (2009) 1 NWLR (Pt. 1122) 354, Akosile v. State (1972) 5 SC 332.
The appellant’s brief also referred to Exhibit P3(b) relied upon by the respondent for the assertion that the appellant pushed the deceased into the lagoon to contend that Exhibit
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P3(b) considered as a whole as should be the case could not have borne the inference that the appellant caused the death of the deceased as held by the Court below when the co-existing circumstances indicated that the deceased jumped in the lagoon as the civilians in whose presence the incident occurred kept shouting that “it was the boy that fell by himself vide page 16 of the record when they saw that the mob was unjustly beating the appellant”, therefore the Court below should have resolved the case in favour of the appellant, so submitted the appellant citing in support the cases of Omotayo v. State (2013) 2 NWLR (Pt. 1338) 235 at 249, Akosile v. State (supra), Ekpoison v. State (supra).
It was further submitted by the appellant that mere presence at the scene of crime as was his case in this case cannot be used to convict him citing in support the case of Garba v. State (2011) 14 NWLR (Pt. 1266) 98 at 114.
The appellant finally submitted that the defences open to him in his evidence and Exhibit P3(b) as well as Section 4 of the Police Act Cap P19 Laws of the Federation 2004 were not considered by the Court below which denied him a fair
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trial and/or hearing vide Laoye v. State (1985) 2 NWLR (Pt. 10) 832 at 840, so the appeal should be allowed and the conviction and sentence set aside and an order discharging and acquitting the appellant be entered.
The appellant’s brief of argument closed by referring to the amnesty granted the appellant by the then Executive Governor of Lagos State, His Excellency, Babatunde Raji Fashola SAN, on 01-04-15, which freed the appellant from prison after the appellant had spent 11 years in detention/prison above the sentence of 10 years in prison imposed on him by the Court below.
In arguing the sole issue identified by the respondent for determination in the brief of argument filed on 28-11-14 but deemed properly filed on 14-04-16, the respondent referred to Audu v. State (2003) NWLR (Pt. 820) 516 at 554 for the proposition that the burden of proof in a criminal trial does not mean proof beyond shadow of doubt; that from the unchallenged evidence of PW1, PW2 and Exhibits P1, P3(a) and (b) rightly believed by the Court below the death of the deceased from the unlawful act of the appellant chasing him and holding him and pushing him into the lagoon
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where he died of drowning proved beyond reasonable doubt the offence of manslaughter (unintentional killing) upon which the appellant was convicted and sentenced to 10 years in prison vide Nwankwo v. F.R.N. (2003) 4 NWLR (Pt. 809) 1 at 35-36, Igabele v. State (2006) 6 NWLR (Pt. 975) 100, Udosen v. State (2005) NWLR (Pt. 928) 587, Hassan v. State (2001) 6 NWLR (Pt. 709) 286, Ejeka v. State (2003) 7 NWLR (Pt. 819) 408, Oforlette v. State (2000) 12 NWLR (Pt. 681) 415 at 435, Igbi v. State (1998) 11 NWLR (Pt. 574) (no pagination), Bello v. Eweka (1981) 1 S.C. 101, Igbo v. State (1978) 3 SC 87, State v. Nafiu Rabiu (1980) NCR 47, Adesola v. Abidoye (1990) 10-12 SC 109.
The respondent contended that the credible eye witness evidence of PW2 was enough to ground the conviction of the appellant as a charge can be proved by direct evidence of a sole witness or circumstantial evidence vide Chukwu v. State (2007) 13 NWLR (Pt. 589) 87 and Khaleel v. State (1997) 8 NWLR (Pt. 516) 237, Michal Onufrejezyk (1955) 39 CR. APP.R.1 and Lori v. State (1980) 8-11 SC 81 at 86 when read with the evidence of the appellant proved the offence of manslaughter against the appellant
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beyond reasonable doubt; and that Exhibit P3(a) and (b), the extra judicial statement of the appellant, materially contradicted his evidence on the role he played at the scene of crime on the fateful day.
It was also contended by the respondent that the PW2 explained in his evidence that initially he backed the direction the deceased was running, but the police van carrying him turned and faced the direction the deceased was running which enabled him to see the appellant in pursuit of the deceased where he caught up with him and held him by the cloth in the course of which the deceased fell in the lagoon and drowned, showing there was no material contradiction in the evidence of PW2 vide Ubani v. State (2001) 7 NWLR (Pt. 713) 567 at 599, Awopejo v. State (2001) 18 NWLR (Pt. 745) 430 at 442-443, Ekang v. State (2001) 11 NWLR (Pt. 723) 1 at 24 and 32, Dagayya v. State (2006) 2 SCM 33 at 52, Ani v. State (2003) 11 NWLR (Pt. 830) 142 at 166.
The respondent’s brief further stated that the facts in the case revealed that both the respondent and the appellant had equal opportunity to present their cases and the conclusion or findings made by the Court
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below were based on the evidence before it, so the appellant should not be heard to argue that he was denied fair hearing vide S.C.E.N. v. Nwosu (2008) All FWLR (Pt. 413) 1399 at 1421; that the power of the police to arrest a fleeing suspect or offender under Section 4 of the Police Act also saddles the police with the responsibility to protect life and property of the citizenry, so the defence is not available to the appellant.
The respondent went on to contend that by pursuing the deceased so close to the edge of a bridge and pulling his cloth till he fell into the lagoon the appellant could not have been carrying out his statutory duty to protect life and property under Section 4 of the Police Act; rather the appellant, according to the submission of the respondent, was negligent in the performance of his duty which might have influenced the Court below among other facts to arrive at the decision it did in the case.
The respondent’s brief added that the Court below heard all the parties and gave a considered judgment based on the evidence before it and cannot be said to have breached the appellant’s right to fair hearing citing in aid the
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cases of Major Bello Magaji v. The Nigerian Army (2008) All FWLR (Pt. 420) 603, Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175 at 211-212; upon which the respondent urged that the appeal be dismissed.
The reply brief filed on 22-04-16 re-emphasized the arguments in the appellant’s brief citing the cases earlier cited in the appellant’s brief upon which the appellant urged that the appeal be allowed.
From the totality of the evidence in the case it is not in doubt that the deceased died of drowning in the lagoon, so the prosecution proved beyond reasonable doubt the death of the deceased and the cause of death and the Court below was right, in my view, to hold that the deceased died from drowning in the lagoon.
The bone of contention is whether the act of the appellant caused the death of the deceased from drowning. In other words, whether the appellant was responsible for the death of the deceased. That the appellant pursued the deceased on the fateful day is manifest from the evidence of PW2, the eye witness, who according to his trustworthy evidence on the issue of pursuit of the deceased by the appellant said he initially backed the
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direction of the deceased but the police van conveying him turned to the direction of the deceased where he saw the appellant catch up with the deceased and held him by the cloth.
The act of pursuing the deceased by the appellant was also admitted by the appellant in his statement to the police and sworn evidence where the appellant, however, stated that he stopped the pursuit when he was temporarily blocked by a moving vehicle and when the vehicle passed he discovered that the deceased had gone far and was near the lagoon area, so he stopped the chase.
The crucial question is how the deceased ended in the lagoon where he died from drowning. PW1 testified that he was told the deceased was pushed by somebody into the lagoon.
The “somebody” did not testify. This piece of evidence is inadmissible hearsay and of no use to the case. It lacks probative value and could not have been used by the Court below to sustain the conviction of the appellant. Neither the evidence of the appellant nor his extra judicial statement to the police Exhibit P3(a) and (b) admitted nor confessed that the appellant caused the deceased to fall in the lagoon where
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he died of drowning. I agree with the appellant that the hearsay evidence of PW1 lacked truth or probative value and no conviction can be based on it vide Odogwu v. State (supra) at 103-104 following Subramanian v. Public Prosecutor (1956) 1 WLR 956 at 969.
The PW2 was the only eye witness that testified for the respondent at the Court below. He stated in examination-in-chief that the appellant pursued the deceased, caught up with him, and held the deceased by the cloth and the deceased fell into the lagoon. The PW2 answered under cross-examination in page 61 of the record unedited that –
“The distant between where I was at the time my conductor jumped into the lagoon is from the witness box to the door of the Court.”
(My emphasis).
The PW2 was not re-examined on the piece of evidence (supra) extracted under cross-examination. The Oxford Advanced Learner’s Dictionary (7th Edition) page 804 defines the word “jump” to mean to move quickly off the ground by pushing yourself with your legs and feet. (My emphasis).
Permit me to revisit this point. Going by the evidence-in-chief of the PW2 that the appellant held the deceased by the
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cloth and the deceased fell into the lagoon, the appellant could not be said to have caused the fall of the deceased into the lagoon. Because if someone is held by another the motion of the one held is stopped.
By the same token, going by the evidence of the PW2 under cross-examination that the deceased jumped into the lagoon where he died of drowning, it indicated that the deceased caused the fall into the lagoon by himself. I am fortified by page 16 of the record containing part of the appellant’s extra judicial statement to the police at the State C.I.D. Panti; Yaba, Exhibit P3(b), where it is recorded that the crowd at the scene at the material protested to the irate mob that “it was the boy that fell by himself” in the lagoon when they saw the irate mob beating the appellant.
By Section 4 of the Police Act the appellant could pursue a fleeing suspect for apprehension. There is no offence in such pursuit, so the extra judicial statement of the appellant, Exhibit P3(a) and (b) and his evidence in Court on the pursuit of the deceased on the fateful day is not germane to how the deceased eventually met his death from drowning in the lagoon.
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Whatever discrepancy between the evidence of the appellant and his extra judicial statement to the police, Exhibit P3 A and B, on the issue of pursuit of the deceased by the appellant is not material to how the appellant met his death from drowning in the lagoon. The material issue is how the deceased found himself in the lagoon where he met his death from drowning vide Jizurumba v. The State (1976) N.S.C.C. 156 where the Apex Court held inter alia that for a discrepancy or contradiction to be of consequence it must materially affect the pith or marrow of the case, not the subsidiary aspect of the case.
The only eye-witness, the PW2, prevaricated in his evidence when he testified in examination-in-chief that the appellant held the deceased by the cloth and the deceased fell in the lagoon, while under cross-examination the PW2 stated that the deceased jumped into the lagoon. The serious discrepancy between these two pieces of evidence was not repaired or remedied in re-examination. The PW2 was not asked in re-examination to explain the sharp discrepancy. I tend to agree with the appellant that the material discrepancy destroyed the
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evidence of the PW2 on how the deceased met his death from drowning in the lagoon. Head or tail the appellant could not have been held responsible for the death of the deceased from drowning in the lagoon on the sharply contradictory evidence of the PW2. See Musa Ateji v. The State (1976) N.S.C.C. 103 at 106 following Onubogu and Anor. v. The State (1974) 9 S.C. 1 and the other kindred cases (supra) cited by the appellant.
I agree with the appellant that his mere presence at the scene of crime without more was not enough to ground his conviction in this case vide Garba v. State (supra) cited by the appellant.
Not having established beyond reasonable doubt that the appellant caused the death of the deceased and/or the appellant was responsible for, or linked to the cause of death of the deceased, the Court below erred by convicting the appellant for the offence of manslaughter vide Rex v. Oledima 6 W.A.C.A. 202 where it was held that –
“Now to establish a charge of murder or manslaughter it must be proved (beyond reasonable doubt) not merely that the act of the accused could have caused the death of the deceased, but that it did.”
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See also Frank Onyenankeya v. The State (1964) 1 NMLR 34 at 36 and the string of cases (supra) cited by the appellant on the issue.
There is therefore merit in the appeal. I allow it. The conviction and sentenced are quashed. A verdict of acquittal is entered for the appellant who is also hereby discharged.
By way of footnote, not only did the appellant through his learned senior counsel, Mr. Andy Igboekwe, draw the attention of the Court to the amnesty granted the appellant by the then Executive Governor of Lagos State dated 21-03-15, which caused the release of the appellant from prison on 01-04-15, after spending a year and some months more than the 10 years term of imprisonment imposed on him by the Court below, learned senior counsel for the appellant also wrote to the Presiding Justice of the Division on the same matter. Both the information in the brief and the letter in question indicate that what was granted to the appellant was amnesty, not pardon.
‘Amnesty’ is an official statement allowing people who have been put in prison for crimes against the state to go free; while ‘pardon’ is an official decision not to
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punish somebody for a crime, or to say that somebody is not guilty of a crime (see Oxford Advanced Learner’s Dictionary, 7th Edition, Pages 45 and 1058, respectively). The latter wipes out the conviction and sentence and in the event of a pending appeal the pardon renders the appeal academic and liable to be struck out; while the former (amnesty) does not extirpate the crime and conviction and sentence entered thereon. So it is, in my view, wise that the appeal was argued on the merit.
Finally, I feel obliged to observe that from the evidence in the record the appellant should not have been put on trial. And that shall be my judgment in this case.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading the lucid Judgment rendered by my learned brother IKYEGH, JCA. My Lord has fully addressed the issues canvassed in the appeal. I have nothing extra to add. I adopt the entire Judgment as my own and endorse the order that Appellant be discharged and acquitted.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been afforded the privilege of reading in draft the lead judgment just delivered by my
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learned Brother, JOSEPH SHAGBA0R IKYEGH, JCA and I am in complete agreement with the illuminating and comprehensive reasons and inescapable conclusions reached therein, which I hereby adopt as mine. The lead judgment has indeed covered the field and had discussed and resolved all the relevant issue to its minute details.
Sadly, though a human being has died. Painfully too, a parent had lost their son struggling to make ends meet as a Bus Conductor on that fateful day he jumped into the Lagoon and drowned. Yet, the law demands that the gravest of offences, including manslaughter, as all other criminal offences, must be proved beyond reasonable doubt to secure the conviction of the Appellant. Clearly, though the first and second elements of the alleged offence of manslaughter were proved but the third most crucial element that it is the act of negligence of the Appellant that led to the death of the deceased was not proved.
On the contrary the evidence of PW2 clearly showed that the Appellant did no more than as he is empowered by law to pursue and arrest suspected offenders. There is nothing illegal or unlawful in the Appellant, a Police
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Constable, pursuing the Deceased, a suspected offender, who with the Driver of their Bus drove illegally against traffic, for the purposes of stopping his escape and to arrest him to face the law. It was indeed the duty of the Appellant to so do under Section 4 of the Police Act.
My lords, there is therefore, no amount of sympathy regarding the unfortunate death of the Deceased Conductor, who had rather than stand to face his arrest had jumped into the Lagoon as confirmed by PW2, the only eye witness to the alleged incident, that can in law displace the overriding need for credible evidence of the guilt of the Appellant to warrant his conviction. This is why in law it is better for 99 guilty persons to go scot free than for one innocent person, such as the Appellant, to be convicted and sentenced for an offence he did not commit. So be it! See Abeke Onafowokan v. The State (1987) 7 SCNJ 238. See also Saidu v. The State (1952) 1 NLR 49.
On the proved evidence on the printed record therefore, the Court below in my finding erred garvely in law in failing to discharge and acquit the Appellant on account of the failure of the Respondent to prove the
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offence of manslaughter against the Appellant beyond reasonable doubt as required by law and for which rather than conviction and sentence, as was erroneously done by the Court below, the Appellant ought to have been discharged and acquitted. See Manson v. The State (1993) 6 SCNJ 55 @ p. 68. See also Bassey Archibong v. The State (2006) 5 SCNJ 202 @ p. 218; Igbi v. The State (2002) 3 NWLR (Pt. 648) 169; Onuohu v. The State (2002) 1 NWLR (Pt. 745) 406.
My lords permit me, at this juncture, to call to remembrance the ever green words of the erudite Obaseki, JSC., in Saidu v. The State (1982) 1 NLR 49 @ p. 67; poignantly and poetically capturing as it were the finer principle of law on the need for Courts to refrain from convicting and sentencing accused persons who are innocent to Prison on evidence not proving their guilt beyond reasonable doubt, inter alia thus;
“It does not give the Court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law, in our law Courts, they are entitled to walk about our streets and tread the Nigerian soil and breath the Nigerian air as free as innocent
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men and women.”
The Appellant having been so erroneously convicted and sentenced and having spent almost 11 years both in custody and in prison upon his wrongful conviction deserves, in my view, neither pardon nor amnesty having not committed any offence but rather due re-integration into the society and restoration in his office with commensurate promotions. He was and acted within his powers as a Policemen in pursuing the Deceased Conductor in order to arrest him being a suspected offender to be brought to justice and ought to be commended rather than be condemned.
It is for the above few comments of mine and for the fuller reasons adroitly marshalled out in the lead judgment that I too hold that the appeal has merit and ought to be allowed. Consequently, I too allow the appeal and hereby set aside, the conviction and sentence passed on the Appellant by the Court below. The Appellant is hereby also discharged and acquitted by me.
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Appearances
Miss O. Ofili For Appellant
AND
Mrs. O. A. Akin-Adesomoju (Assistant Director, (Director of Public Prosecution’s Office), Ministry of Justice, Lagos State) For Respondent
