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THOMAS v. PEOPLE OF LAGOS (2021)

THOMAS v. PEOPLE OF LAGOS

(2021)LCN/15631(CA)

In The Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, March 03, 2021

CA/LAG/CR/1276/2019

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

EBENEZER THOMAS APPELANT(S)

And

THE PEOPLE OF LAGOS RESPONDENT(S)

 

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

The law is long settled that in a criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This is in line with Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused person innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is firmly established. See DAIRO V. FRN (2020) 10 NWLR (Pt. 1733) 482; IDI V. STATE (2019) 15 NWLR (Pt. 1641) 103; SECTION 135 (1) OF THE EVIDENCE ACT 2011. PER UMAR, J.C.A.

THE POSITION OF LAW ON THE CRIMINAL OFFENCE OF MANSLAUGHTER

It has been established in a plethora of judicial authorities that an accused person will be found guilty of the offence of manslaughter if it is proved that he unintentionally committed an act which inadvertently caused death. See the case of IDOWU V. STATE (2000) LPELR – 1429 (SC). 

Manslaughter is the unlawful killing of a person in such circumstances as not to constitute murder. It is the killing of a human being without deliberation or malice. While murder can be said to be unlawful homicide with malice afterthought, manslaughter is unlawful homicide without malice afterthought.

To determine whether the Respondent proved the offence of manslaughter against the Appellant beyond reasonable doubt is an issue to be determined after revising the evidence on record. The law is settled that the prosecution can prove its case against the accused person by all or any of the following means:
a) Evidence of any eyewitness of the crime;
b) Confession or admission when voluntarily made by the accused; and
c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
See the case of ADEYEMO V. STATE (2015) LPELR – 24688 (SC).
PER UMAR, J.C.A.

WHETHER OR NOT A CONFESSIONAL STATEMENT OF AN ACCUSED PERSON MUST BE CORROBORATED TO BE ADMISSIBLE IN EVIDENCE

While it is desirable that the trial Court seeks some independent corroboration to confirm the veracity of the appellant’s confessional statement, this is not a strict requirement of the law. The Supreme Court in the case of OLAOYE V. STATE (2018) LPELR – 43601 (SC) Pp. 17-19, paras. F-C held thus:
“It is also part of the complaints of the appellant that the trial Court had convicted him on an uncorroborated and inadmissible evidence. According to him, the trial Court solely relied on the confessional statement (Exhibit H) to convict him of the offences charged. It needs be stressed here, that a confession of an accused person to the commission of an offence plays a vital role in the determination of his guilt. Therefore, a trial Court is free to convict him even on the confessional statement alone once that trial Court is convinced that the confession is voluntary as in this instant case. I said so because by his confession, the accused (now appellant) had confirmed the commission of criminal responsibility in terms of mens rea and actus rea. See Okeke vs State (2003) 15 NWLR (Pt.842) 25. It also needs to be emphasized and it’s also settled law too, that mere retraction of a voluntary confessional statement by an accused person, as in this instant case, does not render such statement inadmissible or worthless or untrue in considering his guilt. See Idowu v State (2000) 7 SC (pt.ll) 50; Silas v State (1996) 1 NILR 59. Now, coming to the issue of alleged want of corroborative evidence insinuated by the learned counsel for the appellant I do not think that is true… I must however state here, that a confessional statement which is made voluntarily and is direct, cogent, credible and positive, is enough to ground conviction even without corroboration of any sort. See Sule Iyanda Salawu vs The State (1971) NMLR 249; Grace Akinfe vs The State (1988)7 SCNJ (pt.II) 226; Yahaya vs The State (1986)12 SC 282 at 290.”
PER UMAR, J.C.A.

WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT

The law is also trite that where the trial Court is satisfied as to the culpability of an accused person, it can convict him solely on his confessional statement if same is found to be direct, positive and unequivocal. The Apex Court in the case of OGEDENGBE V. STATE (2014) LPELR – 23065 (SC) Pp. 16-17, paras. F-C expatiated on that principle thus:
“The principle remains therefore, that the voluntary confessional statement of the accused person alone, without any corroborative evidence, suffices and, where solely relied upon by the trial Court, will sustain a conviction. An appellate Court’s affirmation of the trial Court’s conviction of an appellant solely on the latter’s direct, positive and unequivocal confessional statement cannot therefore, be interfered with on a further appeal. See Akpan v. State (2000) 12 NWLR (part 682) 607 and Osetola v. State (2012) 17 NWLR (part 1329) 251 at 278.” (Underlining mine for emphasis).
PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State delivered by A.O OPESANWO J. on the 22nd March 2017 wherein the trial Court convicted the Appellant for the offence of manslaughter and thereafter sentenced him to 10 years imprisonment.

BRIEF STATEMENT OF FACTS
By an information dated 23rd June 2011 and filed on the same date, the Appellant was arraigned before the trial Court on a charge of murder contrary to Section 316(1) of the Criminal Code Law, Cap C17, Volume 2 Laws of Lagos State. The information at page 3 of the record of appeal reads thus:
“Statement of offence – 1st Count
Murder contrary to Section 316 (1) of the Criminal Code Law, Cap. C17, Vol. 2, Laws of Lagos State 2003.
Particulars of Offence
EBENEZER THOMAS (M) on or about the 8th day of April, 2010 at 26 Alasalatu Street, Mushin, Lagos in the Lagos Judicial Division did murder on Adesoji Ojo by giving him fist blows.”

​Upon his arraignment, the Appellant pleaded not guilty to the sole charge and in a bid to discharge the burden of proof imposed on it by law, the Respondent as prosecution at trial called two witnesses: one Inspector Simeon Kunamo testified as PW1 and one Inspector Kingsley Iruemi gave evidence as PW2. The Respondent also tendered the statement of the Appellant at the State CID Panti, Yaba Lagos State, Photographs of the corpse of the deceased, Statement of the Appellant at Area D Command, Mushin Lagos State and the statement of Kingsley Iruemi (PW2). All were tendered and marked Exhibits P1, P2 (a), P2(b), P3 and P4 respectively.

​It was the case of the Respondent that the Appellant had a disagreement with the deceased. After attempts were made to restore peace between them, the disagreement according to PW1 degenerated into a fight and in the course, the Appellant threw a punch at the deceased which connected with the latter’s chest, fell him and rendered him unconscious. PW1 testified further that the deceased was rushed to the Lagos University Teaching Hospital (LUTH) by co-tenants where the deceased was confirmed dead on arrival by the doctors on duty. PW1 who ascribed the death to “massive subrano hemorrhage and blunt force trauma” insisted that the Appellant’s fist caused the death of the deceased.

At the close of the Respondent’s case, the Appellant through his counsel made a no case submission which was dismissed by the trial Court’s ruling delivered on 18th May 2016. Instead of opening his defence, the Appellant chose to rest his case on that of the prosecution.

Upon the conclusion of trial and the adoption of final addresses, the trial Court in its considered judgment discharged the Appellant for the offence of murder but convicted him for the lesser offence of manslaughter and thereafter sentenced him to 10 years imprisonment.

Miffed by his conviction and sentence, the Appellant invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated 19th April 2017 and filed on the same date. The said Notice of Appeal containing three grounds of appeal can be gleaned at pages 142 – 145 of the record of appeal. The grounds of appeal albeit without their respective particulars are hereunder reproduced as follows:
“GROUND ONE
The Learned Trial Judge erred in law when she convicted the Defendant for the lesser offence of manslaughter when the prosecution did not proof (sic) its case (i.e. case of murder) beyond reasonable doubt).
GROUND TWO
The Learned Trial Judge erred in law when she held that the Defendant’s confessional statement was enough to convict the Defendant for the lesser offence of manslaughter (in a trial for murder).
GROUND THREE
The Learned Trial Judge erred in law when she convicted the Defendant for (Murder) lesser offence of manslaughter (sic) when there was no medical evidence linking the Defendant to the cause of death.”

In line with the Rules and Practice of this Court, parties filed and exchanged their respective briefs, OSAHON IHENYEN ESQ. settled the Appellant’s brief of argument dated 6th January 2021 and filed on the same date. For the determination of the instant appeal, the Appellant distilled three issues for determination to wit:
“1. Whether the prosecution proved its case beyond reasonable doubt.
2. Whether Court can safely convict the Defendant on his confessional statement; without more.
3. Whether medical evidence is sine qua non in proof of cause of death and nexus (connection) of cause of death of the deceased to the defendant.

The Respondent’s brief on the other hand is dated 28th May 2020 and filed on the same date. The said brief was settled by T.K. SHITTA-BEY (MRS.) who at paragraph 3 of the Respondent’s brief of argument formulated a sole issue for the determination of the instant appeal as follows:
“Having regard to the evidence placed before the trial Court, did the Respondent prove the guilt of the Appellant beyond reasonable doubt so as to convict him for the unlawful death of one Adesoji Ojo?”

The appeal was taken on the 11th January 2021 wherein counsel to the parties adopted their respective briefs and made oral submissions in respect of their diverse postures in the appeal.

APPELLANT’S ARGUMENTS AND SUBMISSIONS
On issue no.1 distilled by the Appellant, counsel submitted that the Respondent abdicated its duty of proving the essential ingredients of the offence for which the Appellant was convicted. He submitted further that the Respondent’s witnesses, one Inspector Simeon Kunamo and Inspector Kingsley Iruemi never at any time throughout their testimony informed the Court below how they came to identify the deceased’s corpse. That all they did was to gleefully present a photograph of the deceased’s lifeless body they took. Failure to lead evidence on how they came about the corpse according to the Appellant’s counsel is fatal since none of the officers claimed they knew the deceased before his death. It was also submitted that no death certificate or autopsy report confirming the cause of death of the deceased was presented at trial. On this note, counsel submitted further that the Respondent failed to prove beyond reasonable doubt that the deceased died.

​Counsel for the Appellant submitted that PW1 and PW2’s testimonies regarding what transpired between the Appellant and the deceased could at best be categorized as hearsay evidence because none of the witnesses witnessed the incident leading to the alleged death of the deceased. He further submitted that there was no credible evidence before the trial Court linking the Appellant’s act and the cause of death of the deceased. Counsel argued that the law is trite that in a criminal trial, the burden of proof lies throughout on the prosecution to establish the guilt of the Accused person beyond reasonable doubt. He referred the Court to the cases of OCHE V. THE STATE (2007) 5 NWLR (pt. 1027) 214; IGABELE V. THE STATE (2006) NWLR (pt. 975) 100; OLOWO V. THE NIGERIAN NAVY (2006) LPELR (11815) CA.

On whether the Appellant could be convicted on his confessional statement without more, counsel for the Appellant submitted that the trial Court seeing that the Respondent failed to prove its case beyond reasonable doubt, convicted the Appellant solely on the strength of his confessional statement. He submitted further that the conviction of the Appellant solely on his confessional statement without any corroborative legally admissible evidence cannot stand in the light of the decisions of this Court and the Supreme Court stressing the need for the Court to look for other pieces of evidence outside the confession before convicting an accused person. He referred the Court to the cases of EMMANUEL OCHE V. THE STATE (2007) 5 NWLR PART 1027 AT PAGE 214; YESUFU V. THE STATE (1976) 6 SC 167; HASSAN V. THE STATE (2001) 15 NWLR (pt. 735) 184 at page 197.

​On the failure of the Respondent to present a medical examination report on the actual cause of death, counsel for the Appellant submitted that PW1 admitted that he was not a pathologist and had no medical experience. That PW1 showed himself to be unfamiliar with the high-sounding medical term which he identified as the cause of death as contained in the autopsy report tendered in evidence at trial. Counsel submitted that one Dr. Okeke, the pathologist who carried out the autopsy did not give evidence despite several adjournments at the instance of the Respondent to enable him to appear in Court to give evidence. On whether medical evidence is mandatory to establish the cause of death in a charge of murder, counsel referred the Court to the case of OSUMARE V. PEOPLE OF LAGOS STATE (2014) ALL FWLR…

Counsel submitted that the deceased could have died as a result of other causes not just by exchange of fist blows by the parties while fighting. That this is a case in which medical evidence as to cause of death could have been most desirable if not essential.

​On the whole, he urged the Court to allow the appeal, discharge and acquit the Appellant for the offence of manslaughter.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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RESPONDENT’S ARGUMENTS AND SUBMISSIONS
On the sole issue distilled by the Respondent, counsel submitted that to establish the guilt of an accused person, the prosecution may rely on either the confessional statement of the accused, direct and credible eye-witness account and/or circumstantial evidence. He referred the Court to the cases of SAMINU V. STATE (2019) LPELR – 47622 (SC); NIGERIAN NAVY & ORS V. LAMBERT (2007) 18 NWLR (PT. 1066) 300; ALUFOHAI V. THE STATE (2014) 12 SCM (PT. 2) 122. He submitted further that PW1 and PW2 gave evidence of their investigation and tendered documents (Exhibits P1 – P4) which were not objected to by the Appellant. That under cross-examination, the witnesses were unshaken as to the facts gathered during investigation. He argued that it is trite law that where the Defendant rests his case on that of the prosecution, the evidence of the prosecution is deemed admitted by the Defendant as the true position of the case and as such, the Court is entitled to act on such evidence provided it is credible. He referred the Court to the cases of AGUGUA V. STATE (2017) LPELR – 42021, ADA V. STATE (2008) 13 NWLR PT. 1103 @ 149; GABRIEL V. STATE (2014) LPELR – 23109 (CA).

Counsel argued further that the law has been settled that the evidence of the IPO is not hearsay evidence but direct evidence. He cited the cases of LEKAN OLAOYE V. THE STATE (2018) LPELR – 43601 (SC); UBONG V. THE STATE (2014) LPELR – 23130. Counsel submitted that the confessional statement of the Appellant in Exhibits P1 and P3 were admitted and the Appellant never denied them. He argued that it is the law that where a confessional statement admitted all the essential element of an offence and shows unequivocal, direct and positive involvement of the accused in the crime alleged, the Court can rely on it alone to convict the accused and it need not be corroborated. He submitted that the evidence led by the Respondent through the Appellant’s confessional statements established the ingredient of the offence of manslaughter.

​On the failure of the Respondent to tender a medical report ascertaining the cause of death as submitted by the Appellant’s counsel, counsel for the Respondent submitted that in as much as medical evidence is desirable to ascertain the actual cause of death, however, such may be dispensed if the cause of death may be establish by sufficient satisfactory and conclusive evidence showing beyond reasonable doubt that the death of the deceased resulted from the particular act of the defendant. It was the contention of counsel that where death is instantaneous or nearly so, medical evidence ceases to be of any practical or legal necessity. He cited the case of ESSIEN V. STATE (1984) 3 SC 14; AZU V. STATE (1993) 6 NWLR (PT. 299); AKPA V. STATE (2008) 14 NWLR (PT. 1106) 72.

The Respondent’s counsel submitted that the circumstantial evidence is sufficient to ground the conviction where the inferences drawn points strongly to the commission of the crime by the Appellant. He referred the Court to the case of NWAEZE V. STATE (1996) 2 NWLR (PART 428) 1 SC.

In his final analysis, he urged the Court to dismiss the appeal and to affirm the conviction and sentence of the Appellant by the trial Court.

RESOLUTION
Having read through the grounds of appeal as encapsulated in the Notice of appeal and the issues distilled by parties for the determination of the instant appeal, I am of the view that the below stated issue is apt for the determination of the instant appeal:
Whether from the totality of the evidence adduced at trial, the Respondent proved the guilt of the Appellant beyond reasonable doubt to warrant his conviction and sentencing by the trial Court for the offence of manslaughter?

The law is long settled that in a criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This is in line with Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused person innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is firmly established. See DAIRO V. FRN (2020) 10 NWLR (Pt. 1733) 482; IDI V. STATE (2019) 15 NWLR (Pt. 1641) 103; SECTION 135 (1) OF THE EVIDENCE ACT 2011.

The Appellant was arraigned before the trial Court on a charge of murder contrary to Section 316(1) of the Criminal Code Law, Cap C17, Volume 2 Laws of Lagos State to which he pleaded not guilty. Upon the close of trial, the trial Court at page 141 of the record of appeal held that the Respondent failed to establish the charge of murder because it failed to establish beyond reasonable doubt that the act of the Appellant was of such nature as to likely endanger human life even though, it occasioned the death of the deceased.

Premised on the above finding of the trial Court, the Appellant was convicted for the offence of manslaughter contrary to Section 228 of the Criminal Law of Lagos State 2011. The crux of this appeal is centered on whether going by the evidence led by the Respondent at trial, the Appellant’s conviction for the offence of manslaughter can be sustained.

It is important to state at this stage that in as much as the Court is duty bound to consider the defence of an accused person before convicting him, in this appeal, it is on record that the Appellant after being overruled on his no case submission went ahead to rest his case on that of the prosecution. Consequently, the only evidence evaluated by the trial Court was that which was proffered by the Respondent’s witnesses, PW1 and PW2.

​It has been established in a plethora of judicial authorities that an accused person will be found guilty of the offence of manslaughter if it is proved that he unintentionally committed an act which inadvertently caused death. See the case of IDOWU V. STATE (2000) LPELR – 1429 (SC). 

Manslaughter is the unlawful killing of a person in such circumstances as not to constitute murder. It is the killing of a human being without deliberation or malice. While murder can be said to be unlawful homicide with malice afterthought, manslaughter is unlawful homicide without malice afterthought.

To determine whether the Respondent proved the offence of manslaughter against the Appellant beyond reasonable doubt is an issue to be determined after revising the evidence on record. The law is settled that the prosecution can prove its case against the accused person by all or any of the following means:
a) Evidence of any eyewitness of the crime;
b) Confession or admission when voluntarily made by the accused; and
c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
See the case of ADEYEMO V. STATE (2015) LPELR – 24688 (SC).

​In a bid to discharge the burden and standard of proof, the Respondent called two witnesses, one Inspector Simeon Kunamo testified as PW1 and one Inspector Kingsley Iruemi gave evidence as PW2. The Respondent also tendered the statement of the Appellant at the State CID Panti, Yaba Lagos State, Photographs of the corpse of the deceased, Statement of the Appellant at Area D Command, Mushin Lagos State and the statement of Kingsley Iruemi (PW2). All were tendered and marked Exhibits P1, P2(a), P2(b), P3 and P4 respectively.

As stated above, the Appellant made confessional statements at both the State CID Panti, Yaba Lagos and at Area D Command, Mushin Lagos State. The confessional statements were tendered without objection at pages 62 and 73 of the record of appeal.

Section 28 of the Evidence Act, 2011 defines confession as follows:
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”

In his confessional statement at pages 13 of the record of appeal, the Appellant stated that:
“On 8/4/2010 at about 1000hrs, I was called by my friend Taye and I met him where we had a little discussion outside my premises. After the discussion he left and my co-tenant named Mukaila came to me and asked me why should there(sic) be misunderstanding between me and Adesoji but after explaining to him, he left. I was sitting in the open place in front of my house when Adesoji came back from outside and met me and started abusing me which broke into a fight between us. He pushed me and I gave him fist blows and immediately he staggered and fell down. He was rush (sic) to the hospital and at the hospital, the Doctor confirmed him dead. It was Adesoji family that took him to the mortuary at Isolo General Hospital.”

In Exhibit P3, the Appellant stated that:
“…From this argument, I and Adesoji being Baba Esther started fighting. He gave me blow and I gave him the hand fist blow too. I saw him turning round and I then hold him together with my friend called Baba Zainab. I quickly looked for maruwa and took him to Luth at Emergency Ward but the Doctor that tested him outside the door of the Emergency Ward said he had already died that we should take him back. From there I brought the body to Alasalatu Street to the hospital opposite our house and the Doctor still said he was dead and that was when I took the body to our house at Alasalatu.

The appellant has not challenged the admissibility of his confessional statements which of course, is belated on appeal, however, his grouse with the decision of the trial Court centers on the perceived failure of the trial Court to test the veracity of his confessional statement with other evidence before relying on same to convict him.

While it is desirable that the trial Court seeks some independent corroboration to confirm the veracity of the appellant’s confessional statement, this is not a strict requirement of the law. The Supreme Court in the case of OLAOYE V. STATE (2018) LPELR – 43601 (SC) Pp. 17-19, paras. F-C held thus:
“It is also part of the complaints of the appellant that the trial Court had convicted him on an uncorroborated and inadmissible evidence. According to him, the trial Court solely relied on the confessional statement (Exhibit H) to convict him of the offences charged. It needs be stressed here, that a confession of an accused person to the commission of an offence plays a vital role in the determination of his guilt. Therefore, a trial Court is free to convict him even on the confessional statement alone once that trial Court is convinced that the confession is voluntary as in this instant case. I said so because by his confession, the accused (now appellant) had confirmed the commission of criminal responsibility in terms of mens rea and actus rea. See Okeke vs State (2003) 15 NWLR (Pt.842) 25. It also needs to be emphasized and it’s also settled law too, that mere retraction of a voluntary confessional statement by an accused person, as in this instant case, does not render such statement inadmissible or worthless or untrue in considering his guilt. See Idowu v State (2000) 7 SC (pt.ll) 50; Silas v State (1996) 1 NILR 59. Now, coming to the issue of alleged want of corroborative evidence insinuated by the learned counsel for the appellant I do not think that is true… I must however state here, that a confessional statement which is made voluntarily and is direct, cogent, credible and positive, is enough to ground conviction even without corroboration of any sort. See Sule Iyanda Salawu vs The State (1971) NMLR 249; Grace Akinfe vs The State (1988)7 SCNJ (pt.II) 226; Yahaya vs The State (1986)12 SC 282 at 290.”

This is even more so in a situation like the instant appeal where the accused person who was represented by counsel at trial did not object to the admissibility of his confessional statement. The logical inference or conclusion is that the confession is voluntary and true having been made to sail through the coast of admissibility without any struggle.

It is undoubtedly settled that case law characterizes confession as the best form of evidence in a criminal trial. See the cases of DAGE V. STATE (2019) LPELR – 48808 (SC); MUSA V. STATE (2013) LPELR – 19932 (SC).

The law is also trite that where the trial Court is satisfied as to the culpability of an accused person, it can convict him solely on his confessional statement if same is found to be direct, positive and unequivocal. The Apex Court in the case of OGEDENGBE V. STATE (2014) LPELR – 23065 (SC) Pp. 16-17, paras. F-C expatiated on that principle thus:
“The principle remains therefore, that the voluntary confessional statement of the accused person alone, without any corroborative evidence, suffices and, where solely relied upon by the trial Court, will sustain a conviction. An appellate Court’s affirmation of the trial Court’s conviction of an appellant solely on the latter’s direct, positive and unequivocal confessional statement cannot therefore, be interfered with on a further appeal. See Akpan v. State (2000) 12 NWLR (part 682) 607 and Osetola v. State (2012) 17 NWLR (part 1329) 251 at 278.” (Underlining mine for emphasis)

In the instant appeal where after duly considering the Appellant’s confessional statements wherein he stated he hit the deceased with his fist causing him to stagger and then fall on the ground only for the deceased to be pronounced dead on arrival at the hospital, the learned trial Judge was therefore right to have come to the conclusion that the Appellant’s confession was enough to ground the his conviction.

​The Appellant’s counsel made issues out of the failure of the Respondent to tender the medical report ascertaining the death of the deceased and that PW1 not being pathologist was in no proper place to testify as to the cause of death. It is important to note that though desirable, a medical report is not a sine qua non in determining the cause of death in a case of murder or manslaughter where there is other evidence upon which the cause of death can be inferred to the satisfaction of the Court. Simply put therefore, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where death is instantaneous or nearly so. See the case of GALADIMA V. STATE (2017) LPELR – 41911 (SC); ONITILO V. STATE (2017) LPELR – 42576 (SC).

From the Appellant’s confessional statements both in Exhibit 1 and Exhibit 3, it is clear as cloud that the deceased died instantaneously due to the act of the deceased. As a matter of fact, he was pronounced dead upon reaching the hospital. What then could have occasioned his death if not for the punch handed down to him by the Appellant in the cause of their fight? It is trite that a person intends the natural consequence of his act and must take responsibility for his action.

​It is also important to correct the contention of the Appellant’s counsel to the effect that the evidence of PW1 and PW2 are hearsay because they did not witness the incident leading to the deceased’s death. I am not oblivious of the trite evidential principle of our jurisprudence that hearsay evidence is generally inadmissible under the Evidence Act, however, it must be stressed for the umpteenth time that the law has totally divorced the evidence of an investigating police officer (IPO) of a case from hearsay and adorned it with admissible evidence. The evidence of PW1 and PW2 on what they gathered in the course of their investigation was positive and direct evidence of what they were told by the Appellant, the Doctor and the witnesses they found in the premises of the Appellant. See the case of AROGUNDADE V. THE STATE (2009) 6 NWLR (PT. 1136) 165; OLAOYE V. STATE (2018) 8 NWLR (PT. 1621) 281. These authorities, with due respect, wholly castrate the Appellant’s counsel’s contention on this point.

​The Appellant’s counsel at paragraph 6.06 of the Appellant’s brief of argument made a fuss about the failure of the Respondent to lead evidence on how PW1 identified the body of the deceased at the morgue. Having gone through the record of appeal, it is on record that the Respondent through PW1 tendered the photographs of the deceased. (See page 69 of the record of appeal). When these photographs were tendered, neither the Appellant nor his counsel raised an objection to the admissibility of the tendered photographs which were marked Exhibits P2 (a) & (b). It was on this basis, coupled with the Appellant’s confessional statement that the trial Court believed that the deceased was truly dead. If the Appellant was not satisfied with the photographs or if they were not the true pictures of the deceased as claimed by PW1, then he ought to have raised an objection when the photographs were sought to be tendered. It smacks lack of diligence on the part of counsel to challenge in his address and his brief before this Court, the fact that the said Adesoji Ojo (deceased) truly died when as a matter of fact he refused to object to the evidence which sought to establish the said death at trial.

​Having not objected to the admissibility of the documents tendered by the Respondent at trial, this omission translated to the fact that the Appellant was comfortable with the Respondent’s evidence, and saw no reason to challenge its admissibility. In a situation like this, the Court is at liberty to ascribe probative value to the exhibits tendered since there was nothing rendering them generally inadmissible under the Evidence Act. See JOHN & ANOR V. STATE (2011) LPELR – 8152 (SC).

It should also be stressed that the Appellant rested his case on that of the Respondent. I am not oblivious of the trite principle of law that an accused person is not required to prove his innocence under our criminal jurisprudence because it is the duty of the prosecution to prove his guilt beyond reasonable doubt. However, in the instant appeal, the Appellant chose not to testify in his defence or call any witness at trial. It is the view of this Court that considering the ample evidence adduced by the Respondent against the Appellant, the silence of the Appellant throughout the trial did not assist him in any way. It was rather a gamble, which the Appellant decided to undertake without success. In effect, his right to remain silent, even when arraigned for a criminal offence, is an inviolable one. But he was taking a huge risk; the law says he is obliged to make his defence, if his remaining silent will result in being convicted on the case made out against him. See the case of AGUGUA V. STATE (2017) LPELR – 42021 (SC).
On the effect of an accused resting his case on that of the prosecution, the case of ADA V. STATE (2008) LPELR – 67 (SC), the Supreme Court per, Ogbuagu, J.S.C held that:
“I will now deal even briefly, with the effect of an accused person just like a defendant resting his case on the case of the Plaintiff. Such a stance, is regarded as a legal strategy. In my concurring judgment recently, in the case of Major Bello M. Magaji v. The Nigerian Army dated 7th February, 2008 (unreported), (reported in (2008) 8 NWLR (Pt. 1089) 338). I dealt with this issue and referred to the cases of Oforlete v. The State (2000) 7 SCNJ 162, @ 179, 183-184; (2000) 12 NWLR (Pt. 681) 415 and Ubani & 2 Ors v. The State (2003) 12 SCNJ. 111 @ 130; (2003) 18 NWLR (Pt. 851) 224 where it is firmly settled that where an accused person rests his case on that of the prosecution, the evidence of the prosecution which has not been controverted by the accused person, is deemed to have been accepted or admitted by such an accused person. Such evidence being unchallenged and uncontroverted, a trial Court has a duty and in fact, is entitled to act on it where credible. In the case of Ali & Anor. v. The State (1988) 1 NWLR (Pt.68) 1 @ 18. (1988) 1 SCNJ. 17; Oputa J.S.C., (Rtd.), stated that it is always a gamble to rest the defence on the case of the prosecution. See also the case of Nwede v. The State (1985) 3 NWLR (Pt.13) 444. The defence in effect, has shut itself out and will have itself to blame as the Court will not be expected to speculate on what the accused person might have said.” Per OGBUAGU, J.S.C (Pp. 12-13, paras. D-C) (Underlining mine for emphasis).

For the reasons enunciated above, I resolve the sole issue distilled by this Court in favour of Respondent and against the Appellant. I find no merit in this appeal and same is hereby dismissed. The decision of the trial Court wherein the Appellant was convicted of the offence of manslaughter contrary to Section 228 of Criminal Law of Lagos State 2011 is hereby affirmed.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in full agreement with the closely reasoned judgment prepared by my learned brother Abubakar Sadiq Umar, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I was obliged in draft copy of the lead judgment delivered by my learned brother ABUBAKAR SADIQ UMAR JCA. I agree with the reasons enunciated in the judgment that the appeal is unmeritorious and should be dismissed. I also dismiss the appeal.

Appearances:

Osahon Idenyen For Appellant(s)

T. K. Shittabey(Ms.)Solicitor-General of Lagos State For Respondent(s)