SOLOMON ADEKUNLE v. THE STATE
(2001)LCN/1054(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2001
CA/I/255/2000
JUSTICES:
SUNDAY AKINOLA AKINTAN Justice of The Court of Appeal of Nigeria
FRANCIS FEDODE TABAI Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
Between
SOLOMON ADEKUNLE – Appellant(s)
AND
THE STATE – Respondent(s)
RATIO
FACTORS TO ESTABLISH THE CRIMINAL OFFENCE OF MURDER
It is also trite law that in order to secure a conviction of a person charged with murder under section 319 of the Criminal Code, as in the instant case, the prosecution must prove beyond reasonable doubt the following:
(a) the death of a human being;
(b) that the death was caused by the act of the accused;
(c) that the act or acts were done with the intention of causing death or grievous bodily harm; and
(d) that the accused knew that death would be the probable consequence of his act or acts.
See Duru v. The State (1993) 3 NWLR (Pt. 281) 283; Igago v. The State (1999) 14 NWLR (Pt.637) 1; Omini v. The State (1999) 12 NWLR (Pt.630) 168; Nwaeze v. The State (1996) 1 NWLR (Pt.428) 1; and Ogba v. The State (1992) 2 NWLR (Pt.222) 164. PER AKINTAN, J.C.A.
WHETHER OR NOT THE PROSECUTION IS REQUIRED TO PROVE AN ACCUSED PERSON’S MOTIVE IN A MURDER CHARGE
The position of the law is that the prosecution is not required to prove an accused person’s motive. This is because the law is that a person intends the natural consequence of his conduct. See Adamu v. Kano N.A. (1956) FSC 25; (1956) 1 SCNLR 65; Gira v. The State (1996) 4 NWLR (Pt.443) 375; and Mohammed v. The state (1997) 9 NWLR (Pt.520) 169. PER AKINTAN, J.C.A.
WHETHER OR NOT THE PROSECUTION NEEDS TO CALL A HOST OF WITNESSES TO PROVE ITS POINT
The prosecution, in my view, proved all the ingredients required in establishing the charge preferred against the appellant. Although only two out of the seven witnesses listed on the information gave evidence at the trial, the omission to call the remaining five witnesses is permissible in law. This is because the primary duty of the prosecution is to call material witnesses to prove its case beyond reasonable doubt. Once that onus is satisfied, it does not matter if some witnesses were not called. It is only fatal not to call material witness to establish a vital or important fact in issue. The prosecution therefore needs not call a host of witnesses on the same point, save where corroboration is necessary. See Ohunyon v. The State (1996) 3 NWLR (Pt.436) 264; Adaje v. The state (1979) 6-9 SC 18; Ogbodu v. The State (1987) 2 NWLR (Pt.54) 20; Ogoala v. The State (1991) 2 NWLR (Pt.175) 509; Ali v. The State (1988) 1 NWLR (Pt.68) 1; and Gira v. The State (1996) 4 NWLR (Pt.443) 375. PER AKINTAN, J.C.A.
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS
It is pertinent that if commission of a crime by a party to any proceeding, civil or criminal is directly in issue, it must be proved beyond reasonable doubt. Nwankwere v. Adewunmi (1966) 1 All NLR 129; Ikoku v. Oli (1962) 1 All NLR 194, (1962) 1 SCNLR 307; Nweke v. The State (2001) 4 NWLR (Pt.704) 588. In murder case, the burden is not discharged unless the prosecution not only establishes the cause of death but also that the act of the appellant caused the death of the deceased. Where the prosecution fails to establish this, the accused must be discharged. Lockman v. State (1972) 1 All NLR (Pt.11) 62, Mariagbe v. State (1977) 3 SC 47; State v. Kura (1973) 2 SC 83; R. v. Nwokorafor (1944) 10 WACA 221; Omogodo v. State (1981) 5 SC 5; R. v. Abengowe 3 WACA 85; Ozo v. State (1971) 1 All NLR 111. PER ADEEYE, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT OF THE TRIAL COURT
Appellate courts ought not to interfere with findings of fact of trial courts which had the unique opportunity of seeing and hearing the witnesses give evidence and observing their demeanour in the witness box. An appellate court will interfere with findings of fact where such are perverse. In the case of The State v. Ajie (2000) 11 NWLR (Pt.678) 434; (2000) 8 WRN 1, the Supreme Court held per Onu, JSC at page 11 that:- “A decision is said to be perverse:-
(a) where it runs counter to the evidence; or
(b) where it has been shown that the trial court took into account matters which it ought not to have taken into account or shut its eyes to the obvious; or
(c) when it has occasioned a miscarriage of justice.
Jack v. Whyte (2001) 6 NWLR (Pt.709) 266.
MISR v. Ibrahim (1974) 5 SC 55
Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360 S.C (1985) 4 SC (Pt.1) 25
Incar (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt.8) 455. PER ADEEYE, J.C.A.
AKINTAN, J.C.A. (Delivering the Leading Judgment): The appellant, Solomon Adekunle was a Police sergeant attached to Odogbolu Police unit. He was on anti-crime patrol duty on 7th February, 1997 along Shagamu/Benin express-way. The patrol team was led by Silvester Okparaji (PW2), an Assistant Superintendent of police. Others in the patrol team, apart from the appellant and the said leader of the team, included one Inspector Ojo, Oyewole Ogunbowale – a police constable, and two soldiers. On arrival at the express-way, the team was divided into two parts by the team leader, Silvester Okparaji. The appellant, Oyewole and a soldier were in a team and that team was stationed along the Benin/Shagamu side of the road. The team leader and the others were on the Shagamu/Benin side of the expressway. The two groups were about 100 metres apart.
A few minutes after the arrival of each of the groups on its side of the express-way the team leader (PW2) said he heard gun shots from the Benin/Sagamu unit. The man (P.W.2) said he shouted who fired. He said he saw the appellant walking towards a bus bound for Lagos with passengers. The appellant told the team leader (PW2) in reply to his enquiry as to who fired the gun that he was the one who fired. P.W.1 said he quickly disarmed the appellant by collecting the rifle in the man’s possession. He then moved towards the bus. On getting to the bus, he found that three men and a girl, Alice Tominiyi, inside the bus had been hit by bullets from the gun shots. PW2 said he rushed the victims to Ijebu-Ode General Hospital. He thereafter took the appellant to Odogbolu Police station where the incident was reported to the Divisional Police Officer. He later on the same day returned to the Ijebu-Ode General Hospital to see the conditions of the four victims of the gun shots. There, he found that while the three men were responding to treatment, the condition of the girl, Alice Tominiyi, was deteriorating. The girl was therefore transferred from the General Hospital to the Ogun State University Teaching Hospital, Sagamu (OSUTH). But the girl eventually died at OSUTH on 8th February, 1997, a day following the shooting incident.
The appellant was arraigned before Ijebu-Ode High Court for the murder of the girl, Alice Tominiyi contrary to section 319(1) of the Criminal Code Laws, of Ogun state. The particulars of the offence preferred against him are that the appellant, “on or about the 7th day of February, 1997 at Ijagun junction along Benin/Sagamu Expressway in the Ijebu-Ode Judicial Division murdered one Alice Tominiyi”. The information was filed after the consent of the Hon. Judge had been sought and obtained as required under section 340(2)(b) of the Criminal Procedure Law. The consent was dated 24th February, 1998. The names of seven witnesses were given at the back of the information. But only two out of the seven witnesses actually testified at the hearing before Osidipe, J. sitting at ljebu-Ode High Court in Ogun state. The two witnesses gave their evidence on 13th September, 2000. The reason why the other witnesses listed on the information failed to testify was that the police failed to serve the subpoenas issued in respect of the five absent witnesses. The five witnesses on whom the police failed to serve subpoenas include the driver of the bus and the doctor who performed the post-mortem examination on the corpse of the deceased.
The case first came up for hearing before the learned trial Judge on 28th June, 1999. The charge was read to the appellant and his plea was taken on that day. But the case could not go further on that day because the prosecution wanted an adjournment to enable the police process server make effort at serving the witnesses. The case then had to be adjourned. Similar adjournments were granted on many occasions for the same reason of inability of the police process server to serve the witnesses. In fact, a new dimension was introduced into the affair when the prosecution informed the court at the hearing on 7th March, 2000 that the police said they could not trace the original case file. The prosecution eventually had to proceed with the trial on 13/9/2000 by using the copies of the documents, in the duplicate case file in its possession and the two witnesses available. The two available witnesses were the Investigating Police Sergent, Oluwole Babalola (PW1) and the team leader, ASP Silvester Okparaji (PW2).
The case for the prosecution is as given in evidence by the two witnesses. The only witness who gave an account of the incident was ASP Silvester Okparaji (PW2). As earlier stated above, he told the court he was about 100 metres away from the appellant when he heard gun shots from the Benin/Sagamu unit headed by the appellant.
The relevant portion of his evidence as recorded is as follows:
“On 7/2/97, I went out with my team on patrol at Ijagun junction on the express way. Others with me were the accused, P.C. Oyewole Ogunbowale, two soldiers, Inspector Ojo. At the scene, I divided my officers into 2 groups with the accused, Oyewole and a soldier on the Benin/Sagamu while myself and others were on Sagamu/Benin. We were about 100 metres apart. Some few minutes after my arrival, I heard gun shots from the Benin/Sagamu unit. I shouted for who fired, I saw accused walking towards a bus bound for Lagos with passengers. The accused told me he was the one who fired. I quickly disarmed him and moved towards the bus, I found out three men and a girl Alice had been hit by the bullets. I rushed the victims to Ijebu-Ode General Hospital. I took the accused to Odogbolu Police Station and reported the incident. Exhibits C and C1 are the SMG and bullets recovered from the accused after disarming him. I reported to my D.P.O. I went back to see the conditions of the victims. While the men responded to treatment, Alice condition however deteriorated and I got her transferred to OSUTH Sagamu. I bought blood for the girl but on 8/2/97, her condition became worse and she eventually died”.
The other witness Sgt. Oluwole Babalola (PW1), was the Investigating Police Officer. He told the court that the case was referred to him on 11/2/97 while he was on duty at Eleweeran Police Station in Abeokuta along with the exhibits. The exhibits handed over to him were the SMG rifle and the bullets. He also told the court that the appellant made a statement to him in English language and that the case file was missing. A photocopy of the statement made by the appellant was tendered by the witness and admitted without objection as Exh. A. Also tendered by PW1 and admitted without objection are a photocopy of the medical report admitted as Exh.B, the SMG rifle and five bullets admitted as Exhs. C & C1- C3 and the bloodstained shirt of the deceased.
The two witnesses were duly cross-examined by learned counsel for the appellant. The prosecution thereafter closed its case since none of the other five witnesses whose names were listed on the information was available to testify. The reason given for their inability to testify was that the Police Process server failed to serve the subpoenas issued in respect of each of the said witnesses. The defence informed the court that it was resting its case on that of the prosecution. Counsel for the parties then addressed the court and the case was adjourned for judgment.
The court delivered its reserved judgment on 13/10/2000. The learned trial Judge after reviewing the evidence placed before him in the matter and all the legal points raised in the court, came to the conclusion that the prosecution has proved a case of murder against the appellant. He accordingly convicted the accused and sentenced him to death by hanging. The present appeal is against the conviction and sentence passed on the appellant by the court.
Three notices of appeal were filed by the appellant. They were respectively filed on 2/11/2000, 19/11/2000, and 8/11/2000. The parties filed their briefs of argument in this court. In the appellant’s brief, leave of this court was sought to abandon the two notices of appeal respectively filed on 2/11/2000 and 19/11/2000. The present appeal is therefore based on the notice of appeal filed on 8/11/2000. That notice of appeal contains three grounds of appeal. The following single issue was formulated in the appellant’s brief.
“Whether the learned trial Judge was right in convicting the appellant of the offence of murder.”
Two issues are however formulated in the respondent’s brief. The two issues are as follows:
“(i) Whether on the totality of the evidence on record, it can be said that the prosecution has proved its case beyond reasonable doubt in accordance with section 138(1) of the Evidence Act. (ii) Whether the defence of accident under section 24 of the Criminal Code Law, Cap. 29 Laws of Ogun State can avail the appellant having regard to the circumstances of the case.”
I believe that the single issue formulated in the appellant’s brief is quite adequate in resolving the questions raised in the appeal. In fact, the two issues formulated in the respondent’s brief are a mere elaboration of the single issue formulated in the appellant’s brief. The one issue formulated in the appellant’s brief will therefore be adopted in resolving the questions raised in the appeal. The appellant’s main complaint against the judgment as canvassed in the appellant’s brief is principally about some of the findings of fact made by the learned trial Judge. The attack is centred particularly on the reliance placed on the evidence of P.W.2 the contents of the statement made by the appellant after his arrest (Exh. A). It is submitted that the learned Judge committed grave error by relying on the evidence from those two sources. It is submitted in respect of the appellant’s statement (Exh. A) that although the statement was admissible, such admission is only to show that it was made and that such is not evidence of the truth of its contents. It is argued that Exh. A without other useful evidence is not sufficient to support a conviction for murder. It is further argued that the learned trial Judge was in error when he decided to pick which part of the statement he would accept while rejecting certain portions. The learned Judge is said to be wrong in rejecting the story of the appellant, as contained in Exh. A, that the gun fell down from his shoulder as a result of which it started discharging. Such rejection is said to be totally wrong particularly when the evidence of PW2 to the effect that the gun was defective was not taken into consideration. It is submitted that had the learned Judge taken into consideration the evidence given by PW2 that the gun was faulty, the result would have been an acquittal of the appellant.
It is further submitted that the learned Judge based, some of his inferences or conclusions on mere speculation. One of such wrong inferences or conclusions is where the learned Judge said, inter alia, that had the appellant’s story of accidental discharge occurred when the gun fell from his shoulder, the discharged bullets would have been found on the ground. It is argued that no evidence was given by PW1 who investigated the case that he searched for the discharged bullets and failed to find them. Another one is where the learned Judge rejected the appellant’s story that the discharge occurred when the gun fell from his shoulder. It is argued that the rejection of the evidence was improper because there was no evidence that such accidental discharge could not occur when such gun falls as described by the appellant. This court is therefore urged to allow the appeal since the learned trial Judge based his conclusion on speculations and on inferences not supported by evidence.
It is submitted in the alternative that in view of the evidence of PW2 to the effect that the gun issued to the appellant was faulty, the trial court ought to have readily considered the option of returning a verdict of manslaughter. It is submitted that if the evidence of accidental discharge had been accepted the correct conclusion would have been that the appellant never intended to kill or cause serious harm to the deceased and that in such a situation, he could only be convicted of manslaughter by virtue of the provisions of section 317 of the Criminal Code Law of Ogun State. This court is therefore urged to substitute that alternative verdict in the instant case.
It is submitted in reply in the respondent’s brief that all the three (3) ingredients which the prosecution must prove to support a conviction for murder were proved in the instant case. The ingredients are: (i) that the deceased had died; (ii) that the death of the deceased resulted from the act of the accused; and (iii) that the act of the accused was intentional and with knowledge that death or grievous bodily harm was its probable consequences of the accused’s act. Reference is made to the facts established in support of the prosecution’s case, It is argued that as there was no evidence led to the contrary, the learned trial Judge was right in accepting the uncontroverted evidence placed before him.
The testimony of the patrol leader (PW.2) was relied on in particular by the learned trial Judge, the crucial evidence was to the effect that the witness heard gun shots on the Benin/Sagamu side of the road where the appellant was with his men. He (PW2) saw the appellant walking towards a bus bound for Lagos with passengers. The appellant told PW2 that he was the one who fired the gun. PW2 said he quickly disarmed him and asked why he (appellant) fired at the bus, the appellant did not reply. The deceased in the instant case was one of the four people wounded by the bullets discharged from the gun shots. The above evidence was not controverted by the defence. It is submitted that the evidence was sufficient to support the conviction of the appellant for the offence of murder. It is further argued that the learned trial Judge rightly considered all the defences available to the appellant on the facts placed before the court.
The statement of the appellant (Exh. A) is also said to be part of the evidence placed before the court. The lower court is therefore said to be right in drawing the necessary inference from its contents. The rejection of the story that the shooting was accidental is therefore quite proper and well founded. It is further submitted that the admission by the appellant to PW2 that he fired the gun shots was at the earliest opportunity and the appellant then failed to claim the defence of accident or accidental discharge. When he was asked by PW2 why he fired the shots, he then did not offer any explanation.
It is therefore argued that the shooting was intentional and unlawful.
On the alternative submission in the appellant’s brief that a verdict of manslaughter ought to have been considered in view of the admission of PW2 that the rifle was faulty, it is submitted that that contention is totally baseless in that the evidence tendered could not support or warrant a conviction for the lesser offence of manslaughter.
The main issue raised in this appeal is whether the conviction and sentence passed on the appellant should be allowed to stand having regard to the evidence tendered at the trial. The main evidence led in support of the charge was given by PW2. It was inter alia that he heard gun shots from the appellant’s side of the high-way. He (PW2) shouted who fired and the appellant replied that he was the one who fired the gun shots. The appellant was then walking towards the passenger bus in which the deceased and other passengers were travelling from Benin to Lagos on the Benin/Lagos side of the road. PW2 asked the appellant why he fired the gun shots and the man did not reply. PW2 then disarmed the appellant by taking possession of the police rifle in his possession. However, the appellant made a statement to the police in Abeokuta two days after the incident. It is in that statement that he stated that the firings were accidental in that they occurred when the gun fell from him while he was chasing the bus which failed to stop after he tried to stop it. The learned trial Judge rejected the latter story. I have no doubt in holding that the learned trial Judge was right in rejecting the latter story. In the first place, the appellant failed to explain why he told his team leader, PW2, a totally different story immediately after the incident that he fired the gun.
It is settled law that the function of evaluating evidence is essentially that of the trial court. It follows therefore that where the trial court has adequately evaluated the evidence given before it and justifiably appraised the facts, and taken specific decisions on credibility, it is not the business of an appellate court to interfere and substitute its own views for the view of the trial court unless the conclusions of the court are perverse. See Onuoha v. The State (1998) 5 NWLR (Pt. 548) 118; Woluchem v. Gudi (1981) 5 SC 291; Igago v. The State (1999) 14 NWLR (pt. 637) 1; UBN Plc v. Borini Prono Co. Ltd. (1998) 4 NWLR (Pt.547) 640; Ibeh v. The State (1997) 1 NWLR (Pt.484) 632; Omini v. The State (1999) 12 NWLR (Pt.630) 168; and Ohunyon v. The State (1996) 3 NWLR (Pt.436) 264.
Thus, in the instant case, the acceptance by the learned trial Judge of the evidence of PW2 that the appellant told him that he fired the gun shots and that he failed to give a reply when he asked him why he fired the shots, is well founded and it is not proper for this court; as an appellate court, to revert that finding of fact.
It is also trite law that in order to secure a conviction of a person charged with murder under section 319 of the Criminal Code, as in the instant case, the prosecution must prove beyond reasonable doubt the following:
(a) the death of a human being;
(b) that the death was caused by the act of the accused;
(c) that the act or acts were done with the intention of causing death or grievous bodily harm; and
(d) that the accused knew that death would be the probable consequence of his act or acts.
See Duru v. The State (1993) 3 NWLR (Pt. 281) 283; Igago v. The State (1999) 14 NWLR (Pt.637) 1; Omini v. The State (1999) 12 NWLR (Pt.630) 168; Nwaeze v. The State (1996) 1 NWLR (Pt.428) 1; and Ogba v. The State (1992) 2 NWLR (Pt.222) 164.
The appellant in the instant case is a police sergeant on road patrol on the day of the incident. He was armed with a police riffle tendered at the trial as Exh. C. The evidence was that the appellant fired a number of gun shots at a passenger bus in which the deceased was one of the passengers. Four of the passengers were hit by some of the bullets discharged when the rifle was fired by the appellant. The deceased was one of the four people hit by the bullets.
The deceased, Alice Tominiyi, later died at the Ogun State University Teaching Hospital, Sagamu. Although the doctor who performed a post-mortem examination on her body was not called to testify as a witness because the police failed to serve a subpoena on him and the original report he issued was not tendered because it was in the original case file which the police said it could not trace, a photocopy was, however, admitted at the trial without objection as Exhibit B. The cause of the lady’s death was given in the report as cerebral laceration due to penetrating gun shot injury into the head resulting in skull fracture and cerebral laceration.
The position of the law is that the prosecution is not required to prove an accused person’s motive. This is because the law is that a person intends the natural consequence of his conduct. See Adamu v. Kano N.A. (1956) FSC 25; (1956) 1 SCNLR 65; Gira v. The State (1996) 4 NWLR (Pt.443) 375; and Mohammed v. The state (1997) 9 NWLR (Pt.520) 169.
It follows therefore that when the appellant fired the loaded rifle in his possession into a passenger bus loaded with travellers, the law presumes that he intended to kill or cause grievous injury or injuries to some of the passengers in the bus. The onus is therefore on him to prove otherwise. Since his action resulted in the death of the deceased, who was one of the four passengers hit by bullets released from the gun shots he fired, the law would presume that he intended to kill or cause grievous bodily harm on the passengers hit by the bullets. The learned trial Judge was therefore right in holding him liable for the murder of the deceased, a victim of the gun shots.
The prosecution, in my view, proved all the ingredients required in establishing the charge preferred against the appellant. Although only two out of the seven witnesses listed on the information gave evidence at the trial, the omission to call the remaining five witnesses is permissible in law. This is because the primary duty of the prosecution is to call material witnesses to prove its case beyond reasonable doubt. Once that onus is satisfied, it does not matter if some witnesses were not called. It is only fatal not to call material witness to establish a vital or important fact in issue. The prosecution therefore needs not call a host of witnesses on the same point, save where corroboration is necessary. See Ohunyon v. The State (1996) 3 NWLR (Pt.436) 264; Adaje v. The state (1979) 6-9 SC 18; Ogbodu v. The State (1987) 2 NWLR (Pt.54) 20; Ogoala v. The State (1991) 2 NWLR (Pt.175) 509; Ali v. The State (1988) 1 NWLR (Pt.68) 1; and Gira v. The State (1996) 4 NWLR (Pt.443) 375.
Since I have held that the learned trial Judge was right in rejecting the defence of accidental discharge and that the appellant fired the gun shots which resulted in the death of the deceased, the question of considering substituting a conviction for manslaughter will therefore not arise. In the result, there is totally no merit in the appeal. I accordingly dismiss it. The conviction of the appellant for murder is therefore affirmed. Similarly, the sentence of death passed on him is also affirmed.
TABAI, J.C.A.: I had a preview of the leading judgment prepared by my learned brother AKINTAN, JCA and I agree with the reasoning and conclusion.
The facts are clearly stated in the leading judgment. The main issue is whether or not it was the accidental discharge from the gun carried by the appellant that struck and killed the deceased. This defence is contained in exhibits A and B, the statements of the appellant. The learned trial Judge rejected the defence and found as a fact that “the accused intentionally fired gun shots at a moving passenger bus” which led to the death of the deceased. The question is whether the learned trial Judge gave adequate and due consideration of that defence of accidental discharge to justify his finding and conclusion based thereon.
Although the appellant did not give evidence, the learned trial Judge considered the defence contained in Exhibits A and B. On this question of accidental discharge, the crucial evidence came from the PW2. It is to the effect when he asked who fired the gun the appellant answered that he did. And when further asked why he fired, the appellant did not say anything. This evidence was not contradicted as the appellant did not give evidence and rested his case on that of the prosecution. In rejecting the defence the learned trial Judge reasoned that if the accidental discharge was as a result of the gun falling on the ground, as claimed by the appellant in exhibits “A” and “B”, he could not see how the bullets discharged could go up to hit passengers in the bus. See pages 35-36 of the record for the trial court’s appraisal of the defence.
In my view, the learned trial Judge adequately considered the defence of accident raised in exhibits ‘A’ and ‘B’ and rightly rejected same. And having regard to the fact that the evidence of the prosecution on this issue was not contested the finding and conclusion of the learned trial Judge cannot be said to be perverse. There is no basis therefore to interfere with the judgment.
For the foregoing and the fuller reasons contained in the leading judgment, I also dismiss the appeal.
ADEKEYE, J.C.A.: I had a preview of the judgment just delivered by my learned brother S.A. Akintan, JCA. I agree entirely with the reasoning and conclusion. The issue for determination by this court is whether the learned trial Judge was right in convicting the appellant of the offence of murder in that the case for the prosecution was principally based on the evidence of PW2 and the statement Exhibit A, the statement of the appellant. Only two witnesses gave evidence for the prosecution, while the appellant rested his case on that of the prosecution. There was no eye witness to the incident except PW2 who was 100 metres away on patrol duty along Benin/Sagamu expressway. At the conclusion of trial, the learned trial Judge found the case of the prosecution proved beyond reasonable doubt. His Lordship consequently convicted the appellant on the charge and sentenced him to death by hanging.
It is pertinent that if commission of a crime by a party to any proceeding, civil or criminal is directly in issue, it must be proved beyond reasonable doubt. Nwankwere v. Adewunmi (1966) 1 All NLR 129; Ikoku v. Oli (1962) 1 All NLR 194, (1962) 1 SCNLR 307; Nweke v. The State (2001) 4 NWLR (Pt.704) 588.
In murder case, the burden is not discharged unless the prosecution not only establishes the cause of death but also that the act of the appellant caused the death of the deceased. Where the prosecution fails to establish this, the accused must be discharged. Lockman v. State (1972) 1 All NLR (Pt.11) 62, Mariagbe v. State (1977) 3 SC 47; State v. Kura (1973) 2 SC 83; R. v. Nwokorafor (1944) 10 WACA 221; Omogodo v. State (1981) 5 SC 5; R. v. Abengowe 3 WACA 85; Ozo v. State (1971) 1 All NLR 111.
In his judgment the learned trial Judge relied on the evidence of PW2, who was the leader of the police patrol team at Ijagun junction along the Benin/Sagamu expressway at the time of the incident. PW2 divided the team into two groups the appellant was in the Benin/Sagamu route group, while PW2 led the Sagamu/Benin route group. They were within 100 metres of each other: PW2 heard gun shots from the Benin/Sagamu route. He went there to find the appellant walking towards a Lagos bound passenger bus and he admitted that he fired the shots. Three passengers and a girl in the bus were hit by the bullets. The girl eventually died at the Ogun State University Teaching Hospital the following day. PW1 disarmed the appellant immediately. When he asked why the appellant fired at the bus, he did not answer or even give the slightest explanation. He did not cross-examine on this issue during trial. The appellant did not give any evidence in defence to the charge. It is only the evidence presented by the prosecution that was available in determining the capability of the appellant in the circumstance. Only two witnesses gave evidence for the prosecution during the trial as opposed to the seven witnesses stated at the back of the information filed in court. The need to call witnesses at all arises from the duty the law imposed on the prosecution to prove the essential ingredients of the crime. It is also trite that the prosecution has a duty to place before the court all available relevant evidence. This does not however mean that a whole host of witness must be called upon on the same point, but where there is a vital point in issue and that one witness will settle it one way or the other, that witness ought to be called. In a murder case such as the one in hand, the contentious issue is not usually that the deceased is dead but as to who killed him. The controversial issue before the court is who fired the shot which strayed to kill the deceased? A lone witness if believed can establish this issue. Opayemi v. The State (1985) 1 NWLR (Pt.5) 101; Ogoala v. The State (1991) 1 NWLR (Pt.175) 509.
An appellate court will only intervene where an essential witness has not been called. Ali v. The State (1988) 2 NWLR (Pt.88) 1. This is not the position in this appeal, where vital witness was called.
The contention of the appellant’s counsel was that the learned trial Judge relied on Exhibit A to come to his decision, whereas the contents of Exhibit A are not sufficient to support the conviction for the offence of murder. The appellant’s counsel referred to the portion of the judgment where he saw the defence of the appellant in Exhibit A as an afterthought as follows:-
“It was because the accused knew there could be no defence for the shooting in this case which he did that he later as an afterthought brought the issue of accidental discharge.” Vide page 35 lines 15 – 18.”
If the learned trial Judge had rejected Exhibit A as an afterthought he could not have relied on the contents to hold that the prosecution had proved an offence of murder. The learned trial Judge’s remark shows that he had given adequate consideration to the defence of accident raised by the appellant under section 24 of the Criminal Code, Laws of Ogun State which is to the effect that:- “A person is not criminally responsible for an action or omission which occurs independently of the exercise of his will or for an event which occurs by accident.”
The view of the learned trial Judge was that the appellant did not put forward this defence immediately after the shooting which he admitted. He did not go further to explain the circumstances of the shooting at the scene to PW2. The learned trial Judge used the adjectival description of afterthought in respect of the defence in Exhibit A because it was not spontaneous but it flowed from a sober and calculated reflection on the circumstance of the shooting after the whole incident had dawned on the appellant and the naked truth of the matter stared him in the face. It is trite law that in a criminal trial, any defence raised by an accused person must be considered however slight, stupid or unreasonable Nwuzoke v. State (1988) 1 NWLR (Pt.72) 529, Onuoha v. State (1988) 3 NWLR (Pt.83) 460; Oguntolu v. State (1996) 1 NWLR (Pt.432) 503.
The appellant concluded that the learned trial Judge got confused and misdirected himself in his analysis of the evidence and finally ended up with speculations in respect of which he could not indulge as a trial court but also relied upon same to convict the appellant.
Appellate courts ought not to interfere with findings of fact of trial courts which had the unique opportunity of seeing and hearing the witnesses give evidence and observing their demeanour in the witness box. An appellate court will interfere with findings of fact where such are perverse. In the case of The State v. Ajie (2000) 11 NWLR (Pt.678) 434; (2000) 8 WRN 1, the Supreme Court held per Onu, JSC at page 11 that:- “A decision is said to be perverse:-
(a) where it runs counter to the evidence; or
(b) where it has been shown that the trial court took into account matters which it ought not to have taken into account or shut its eyes to the obvious; or
(c) when it has occasioned a miscarriage of justice.
Jack v. Whyte (2001) 6 NWLR (Pt.709) 266.
MISR v. Ibrahim (1974) 5 SC 55
Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360 S.C (1985) 4 SC (Pt.1) 25
Incar (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt.8) 455.
Since none of the foregoing is applicable to this appeal, this court will not interfere with the findings of fact of the learned trial Judge.
For these and fuller reasons given in the leading judgment, this appeal is dismissed for lacking in merit. The conviction of the appellant for murder is affirmed and also the death sentence pronounced.
Appeal dismissed.
Appearances
- A. Fashanu For Appellant
AND
N.I. Agbelu For Respondent
