LawCare Nigeria

Nigeria Legal Information & Law Reports

RAFIU v. PEOPLE OF LAGOS STATE (2021)

RAFIU v. PEOPLE OF LAGOS STATE

(2021)LCN/5089(SC)

In The Supreme Court

On Friday, April 16, 2021

SC.594/2017

Before Our Lordships:

Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria

Chima Centus Nweze Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Abdu Aboki Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

Between

ADESHINA RAFIU APPELANT(S)

And

THE PEOPLE OF LAGOS STATE RESPONDENT(S)

 

RATIO:

THE TESTS FOR THE ADMISSIBILITY OF A RETRACTED STATEMENT

The law is settled that where a defendant standing trial before the Court retracts the earlier statement/confession made to the police, the statement does not become inadmissible but the Court is required to look for corroborating evidence outside the confession that makes the confession probable. A trial Court faced with the obstacle of a recanted confession is by law admonished to subject the confession to the six probability tests established as far back as R v. Skyes (1913) 8 CAR at 236 and a plethora of authorities in our criminal jurisprudence. See Queen v. Itule (1961) 2SCLR 183; Edhigere v. State (1996) 1 NWLR Pt. 464 Pg. 1 at Pg. 13-14; Uzim v. State (2019) LPELR 48983 (SC); Alarape v. The State (2001) 5 NWLR Pt.705. Pg.79; Uwagboe v. State (2007) 6 NWLR Pt. 1031 Pg.606 at 623; Karimu Sunday v. The State (2017) LPELR-42259 (SC).  PER HELEN MORONKEJI OGUNWUMIJU, J.S.C. 

PROOF OF THE DEFENSE OF PROVOCATION

However, for provocation to constitute a defence in murder cases, it must consist of three elements which must co-exist, namely: (a) That the act of provocation was done in the heat of passion. (b) That the loss of self-control was both actual and reasonable, that is to say, the act was done before there was time for cooling down. (c) That the retaliation is proportionate to the provocation.  PER ABDU ABOKI, J.S.C.                

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This is an Appeal against the judgment of the Court of Appeal, Lagos Division delivered on 5/4/2017 which affirmed the judgment of Hon. Justice S. A Onigbanjo delivered on 18/6/2013 in charge No ID/47C/2011 wherein the Appellant was found guilty of the lesser offence of manslaughter and sentenced to life imprisonment whereas he was charged initially for murder.

The facts that led to this appeal are as follows:
On 14th February 2010 at about 4:00pm, one Adeogun Kayode, a resident of No. 20, Alade Street, Oshodi, Lagos, now deceased, went to the Appellant’s barbing salon to shave. The deceased after being initially attended to, at the Appellant’s barbing salon returned back and inquired about the where about of his mobile phone, alleging that he left his mobile phone in the Appellant’s barbing salon. In response to the inquiry, the Appellant informed the said Adeogun Kayode that he did not know the where about of the mobile phone.

​Consequently, an argument ensued and the said Adeogun Kayode proceeded to the generator which powered the Appellant’s barbing salon and abruptly switched it off which resulted in a fight between the Appellant and the said Adeogun Kayode which led to the latter’s death after he suffered fatal injuries to his forehead and chest.

The Appellant was subsequently apprehended on the day of the incident by officers of the Nigerian Police and was taken to Akinpelu Police station.

At the trial, the prosecution called three witnesses while the Appellant gave evidence on his own behalf. P.W.1 Alli Shuarbu was a co-tenant of the deceased who did not witness the incident but was the one who reported the matter to the police after rushing to the scene where he found the body of the deceased in the gutter in a pool of blood. The deceased died at the General Hospital. P.W.2 was Vivian Taiwo (Sunday) the initial I.P.O at Akinpelu Police Station who took the confessional statement of the Appellant marked Exh C. The witness also tendered the post mortem/medical report signed by one Dr. O. Williams dated 14/2/10 as Exh. B. The D.C.O at Akinpelu Police Station had endorsed Exh C after the appellant signed it. She later transferred the case to Panti CID.

​P.W.3 was Inspector E. Enwereji who at the material time was at the Homicide Department at Panti. He recorded the statement of the Appellant which was retracted but nevertheless admitted as Exh G.

In his defence on oath at the trial, the Appellant stated that the deceased precipitated a fight in his barber shop during which he pushed the deceased and another person into the gutter. The statement of the Appellant in Exh. C & G showed clearly the defence of provocation.

My Lords, in this appeal, the only question for determination is whether on the evidence before it, the lower Court was right to have affirmed the conviction of the Appellant for manslaughter not murder.

The trial Court found that Exh. C which was tendered without objection showed the defence of provocation which was an excuse to reduce the charge from murder to manslaughter.

My Lords, before this Court, learned Appellant’s counsel in the brief settled by F. Ajibola Dalley, complained first against the findings of facts by the two lower Courts. His grouse is that the lower Court jumped to the conclusion that the deceased died and that the Appellant caused his death. Counsel argued that the lower Court’s failure to review the evidence and set aside the trial Court’s conclusions on those two findings of fact occasioned injustice to the Appellant. My lord, the brief of argument of the learned Appellant’s counsel is replete with references to the fact that the Appellant was charged with murder. There was hardly any reference to the conviction of manslaughter. There was no attempt to argue an absolute defence in favour of the Appellant. At trial, the offence of murder was found not proved and the Appellant was instead convicted of the lesser offence of manslaughter. Either learned counsel did not read the concurrent judgments of the lower Courts before writing the brief or he did not understand their import.

Be that as it may, the complaint of learned Appellant’s counsel is that it was wrong of the Court of Appeal to agree with the learned trial Judge that the evidence revealed that the deceased died and that the Appellant killed the deceased. Counsel submitted contrary to the evidence on record that there was no proof of the death of the deceased whereas P.W.1 saw him in a pool of blood and P.W.2 saw him in the mortuary after a post mortem was performed on him.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Learned Appellant’s counsel apparently made no effort as I said earlier to read the record of proceedings wherein the Appellant on oath in his own defence admitted that there was a fight between himself and the deceased and he pushed the deceased into the gutter where P.W.1 later found said deceased in a pool of his own blood with injuries on his chest and forehead. The learned trial judge found that indeed the deceased died and the Appellant’s action was the cause of his death but concluded that in the circumstances the defence of provocation could avail the Appellant. The lower Court agreed with the findings of the trial Court.

I am of the view that the issues raised by the Appellant at the Court of Appeal was adequately addressed by the lower Court.

My Lords, in Olakunle v. State (2018) 6 NWLR Pt. 1614 Pg.91 this Court held that it is the primary duty of the trial Court to evaluate the testimony adduced at the trial and ascribe probative value thereto. This is because it was that Court which was privileged to see and hear the witnesses and it was in a position to pronounce on their credibility. Where therefore, a trial Court has satisfactorily carried out this duty, the appellate Court has no reason to interfere with the findings of the trial Court. Where however, the trial judge has abdicated the primary duty, or has failed to properly utilize the advantage of seeing and hearing the witnesses testify, the appellate Court is in a good position to evaluate the evidence, provided it does not involve the credibility of witnesses. See Fagbenro v. Arobadi (2006) All FWLR (Pt. 310) 1575, (2006) 7 NWLR (Pt. 978) 172; Saleh v. Bank of the North (2006) All FWLR (Pt. 310) 1600, (2006) 6 NWLR (Pt. 976) 316. See also Abiodun v. State (2013) All FWLR (Pt. 700) 1257, (2013) 9 NWLR (Pt. 1358) 138, (2013) vol. 3 -4 MJ S. C (Pt. 1) 163.

I am of the view that the lower Court correctly evaluated the evidence to arrive at the same conclusion as the trial Court.

The findings of the two lower Courts are not perverse and in my view has not caused miscarriage of justice to warrant them to be set aside by this Court.

The learned Appellant’s counsel also complained that the lower Court was wrong to have agreed that the confessional statement made at Panti CID- Exh G constituted admissible evidence against the Appellant. The law is settled that where a defendant standing trial before the Court retracts the earlier statement/confession made to the police, the statement does not become inadmissible but the Court is required to look for corroborating evidence outside the confession that makes the confession probable. A trial Court faced with the obstacle of a recanted confession is by law admonished to subject the confession to the six probability tests established as far back as R v. Skyes (1913) 8 CAR at 236 and a plethora of authorities in our criminal jurisprudence. See Queen v. Itule (1961) 2SCLR 183; Edhigere v. State (1996) 1 NWLR Pt. 464 Pg. 1 at Pg. 13-14; Uzim v. State (2019) LPELR 48983 (SC); Alarape v. The State (2001) 5 NWLR Pt.705. Pg.79; Uwagboe v. State (2007) 6 NWLR Pt. 1031 Pg.606 at 623; Karimu Sunday v. The State (2017) LPELR-42259 (SC).

It is clear from the record, that there is abundant evidence establishing the circumstances confessed to by the Appellant. The deceased died in a gutter opposite the barber shop of the Appellant after a fight with the Appellant who had an opportunity to have committed the offence.
In any event, the earlier confessional statement made at the earliest opportunity by the Appellant at Akinpelu Police Station which is Exh C was never retracted while it was being tendered on oath by the Appellant when he claimed that he merely pushed the deceased who fell into the gutter. Appellant also made a partial admission on oath to the crime. There is no doubt that the confessional statement was consistent with other un-contradicted evidence adduced by the prosecution.

I find no merit in the argument of Appellant’s counsel on this point. See Amos v. The State (2019) NWLR Pt. 1653 Pg. 206 at 233.

​My Lords, the two lower Courts correctly attached probative value to the retracted confessional statement. It was really an open and shut case. The appeal could have been on reducing the sentence to a specific term rather than the elastic life imprisonment as there are no parole hearings in Nigeria that would make it easier for the Appellant to have a chance of release within seven years counting the years of incarceration before the conviction. Although an appeal against an elastic life sentence may be risky, it may have availed the Appellant.
Be that as it may, there is no merit in this appeal. The deceased lost his life in the hands of the Appellant in circumstances that amounted to provocation and reduced finding of manslaughter. He was justly convicted of manslaughter. The judgment of the Court of Appeal in CA/L/1092C/2013 delivered on 5/4/17 is hereby affirmed.
Appeal dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: As reasoned in the lead judgment of my learned brother HELEN MORONKEJI OGUNWUMIJU JSC just delivered, this appeal lacks merit.

I adopt the judgment as mine in dismissing the unmeritorious appeal and affirming the lower Court’s judgment.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Ogunwumiju, JSC, obliged me with the draft of the leading judgement just delivered. I agree with His Lordship that this appeal is devoid of merit. It, therefore, deserves to be dismissed.

As His Lordship observed in the leading judgment, a trial Court faced with the obstacle of a retracted confession is by Law, admonished to subject the confession to the six probability tests. This is true for a retraction or denial of a confessional statement does not affect its admissibility.

This has long been settled in the very old cases of R. v Sapele and Anor (1952) 2 FSC 74; R v. Itule (1961) All NLR 462; the relatively old decisions of Ikpasa v The State [1981] 9 SC 7; Akpan v. State (1992) LPELR -381 (SC) 36; Osakwe v State [1994] 2 SCNJ 57; Nwangbomu v. The State [1994] 2 NWLR (pt 327) 380; Bature v. State [1994] 1 NWLR (pt 320) 267; Eragua and Ors v. The AG, Bendel(1994) LPELR–(SC) 30; Idowu v. State [1998] 11 NWLR (pt 574) 354; as well as the more recent decisions of Silas Sule v. State (2009) LPELR-3125 (SC) 28-30, G-B; FRN v Iweka (2011) LPELR -9350 (SC) 53; Oseni v. The State (2012) LPELR -7833 (SC) 22-23.
I find clear evidence of the lower Court’s application and consideration of the principles which should be considered in determining whether or not to believe and act on a confession or confessions which an accused person resiled from as enunciated in R. v. Sykes (1913) 8 C. A. R. 233, 236; Kanu v The King (1952) 14 WACA 30; The Queen v. Obiasa (1962) 1 All NLR 651; [1962] 1 SCNLR 137; Obosi v. The State (1965) NMLR 129.
Others include: Onochie and Ors v. The Republic (1966) NMLR 307; Jafiya Kopa v. The State (1971) 1 All NLR 150 Dawa v The State[1980] 8 -11 SC 236; Ejinima v. The State [1991] 5 LRCN 1640, 1671; Arthur Onyejekwe v. The State [1992] 4 SCNJ 1, 9; [1992] 3 NWLR (Pt. 230) 444; Aiguoreghian and Anor. v. The State [2004] 3 NWLR (pt 860) 367; [2004] 1 SCNJ 65; [2004] 1 SC (pt.1) 65.
These are: whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; whether its contents, if tested, could be true; whether the defendant had the opportunity of committing the alleged offence; whether the confession is possible and the consistency of the said confession with other facts that have been established, Osetola and Anor v. The State (2012) LPELR -9348 (SC) 32-33, G-D; Kareem v. FRN [2002] 7 SCM 73; Akpan v. The State [2001] 11 SCM 66.

It is for these, and the more detailed, reasons in the leading judgement that I, too, shall affirm the judgment of the lower Court. I, accordingly, affirm his conviction and the sentence for manslaughter.
Appeal dismissed.

ABDU ABOKI, J.S.C.: I have read before now, a draft of the lead judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JSC. I agree with His Lordship’s conclusions that the appeal lacks merit and ought to be dismissed. Same is dismissed by me.

This appeal is against the judgment of the Court of Appeal, sitting at Lagos, (hereafter called the Court below), delivered on the 5th of April, 2017, wherein the Court below affirmed the judgment of the Trial Court, which convicted the Appellant for the offence of manslaughter and sentenced him to life imprisonment, pursuant to Section 325 of the Criminal Code Law Cap C17, Laws of Lagos State.

The brief statement of facts culminating to this appeal is that on February 14, 2010, one Adeogun Kayode was found injured in a gutter in front of the barbing salon of the Appellant. Upon being taken to the hospital, he died from injuries sustained on his head and chest. Acting on the report of one Alli Shuaibu, (PW2), men of the Nigerian Police arrested the Appellant on the suspicion that he inflicted the injuries that led to the death of the said Adeogun Kayode, with a broken bottle.

Consequently, the Respondent filed an Information dated 27th September, 2010 charging the Appellant with the offence of murder contrary to Section 326 of the Criminal Code Law Cap C17 Laws of Lagos State 2003.

Upon arraignment, the Appellant pleaded not guilty and the matter proceeded to trial. In an attempt to discharge the burden placed on it by law, the Respondent called three witnesses and tendered the extra judicial statements of the Appellant. The Appellant testified in his own defence and called no other witness.

In its judgment delivered on the 18th of June 2013, the trial Court found the Appellant guilty of manslaughter and sentenced him to life imprisonment.

Piqued by his conviction and sentence, the Appellant appealed unsuccessfully to the Court below. In further appeal to this Court, the Appellant, on the 20th of June 2018, filed a Notice of Appeal containing two grounds of appeal, from which he formulated two issues for this Court’s determination as follows:
1. Whether the eminent Justices of the Court of Appeal erred in law and therefore occasioned a miscarriage of justice when they failed to review and properly determine the issues raised by the Appellant?
2. Whether the eminent Justices of the Court of Appeal were right in holding that the trial Court rightly attached probative value to the purported retracted confessional statements (Exhibits C and G) of the Appellant.

The Respondent, in its brief of argument adopted these issues as distilled by the Appellant.

Exhibit C was the extra judicial statement of the Appellant. It was admitted without objection from the defence, and the relevant portion reads thus:
“Today 14/2/10, at about 4 pm, the deceased… came to my shop to shave and after shaving he left. Few minutes later, he came into the barbing salon again and was asking about his GSM phone, which I told him that we did not see it, because we were two in the salon who is (sic) barbing. He went to meet my second in the shop and also asked him about his phone that he forgot it, so my second Taiwo told him that he did not see the phone, so Kayode went out and switched the generator that was on. I asked him why he put the generator off. Kayode told me that he was looking for his GSM phone while I was busy barbing somebody’s hair. As I wanted to switch on the generator again, Kayode gave me a fist blow on my face while I also punched him too with fist blows and he ran away while I ran after him. Kayode carried stick and wanted to hit me with it. I overpowered him and collected the stick, he picked up a bottle, broke it and wanted to stab me with it. I also overpowered him and collected the broken bottle from him and stabbed him under his left breast. He fell inside gutter and I stabbed him on his forehead, right inside the gutter. It was in the process that the other person who came along with him to the salon drew me out from the gutter while the boy was also brought out from the gutter and was taken to the hospital. Few minutes later, the some Policemen came in their vehicle and I was taken to the Police station. People were telling me to let the said Kayode go but I refuses (sic)… Taiwo my co-barber called me and told me to leave him alone but I refused. It is the work of the devil. I know what I did was painful but I am sorry.”

​This excerpt of Exhibit C, is in tandem with the evidence on record.
In its judgment, the Court below held inter alia thus:
“In view of the foregoing, and the defence of provocation enuring to the benefit of the defendant, the Defendant cannot legally be convicted of the offence of murder despite the fact that I am convinced that he intentionally and recklessly stabbed the deceased on the chest with a broken bottle with the intention, maybe not to kill the victim, but certainly to do the deceased grievous bodily harm. He certainly can be convicted of the offence of manslaughter pursuant to the provisions of Section 317 and 318 of the Criminal Code.”
I agree with this decision of the Court below.
​In Kolade v. State (2017) LPELR 42362 SC, this Court held that:
“The law is well pronounced on the character of the defence of provocation. In other words, where it succeeds, it has the effect of whittling down the punishment stipulated from the offence of murder to manslaughter. See Edoho v. The State (2010) All FWLR (Pt. 530) 1262 at 1287 and Uluebeka V. The State (2000) FWLR (Pt 11) 1827 at 1850. However, for provocation to constitute a defence in murder cases, it must consist of three elements which must co-exist, namely: (a) That the act of provocation was done in the heat of passion. (b) That the loss of self-control was both actual and reasonable, that is to say, the act was done before there was time for cooling down. (c) That the retaliation is proportionate to the provocation.

In the final analysis, I am of the view that the Court below correctly evaluated the evidence adduced at the trial to arrive at the same conclusion with the trial Court.
For these, and the fuller reasons in the lead judgment of my learned brother HELEN MORONKEJI OGUNWUMIJU, JSC, that I, too dismiss the appeal and affirm the judgment of the Court of Appeal.

TIJJANI ABUBAKAR, J.S.C.: My learned brother Ogunwumiju JSC, granted me the privilege of having a preview of the comprehensive leading Judgment prepared and rendered in this appeal. My Lord has fully and sufficiently covered the field. I have nothing more to add, the reasoning and conclusion in the leading judgment are in accord with my own, I therefore adopt them as mine and endorse the entire judgment affirming the judgment of the lower Court, and abide by all consequential orders including the order on costs.

Appearances:

A.I Memu, Esq, with him, Akpa, Esq, For Appellant(s)

Said Sanusi, For Respondent(s)