Azeez Okoro V. The State (1998)
LAWGLOBAL HUB Lead Judgment Report
OGUNDARE, J.S.C.
In this appeal, the appellant questions the affirmation, by the Court of Appeal, of his conviction for murder and the sentence of death passed on him by the High Court of Lagos State.
The appellant, the deceased (Rafiu Ikoyi) and PW.1 (Jimoh Oseni) were brothers, the appellant being the eldest of the three. Relations between P.W.1., and the appellant’s wife had not been cordial. On 13th July 1984 the family effected a settlement between them. It would appear; however, that appellant’s wife was not quite satisfied. For when on 14th July P.W.1 visited the appellant at his Ifatedo village residence, the latter informed the former that his wife was not yet satisfied with the settlement and advised PW1 not to come to the family house for the time being. The appellant lived in the family house at Ifatedo village. P.W.1 retorted that he could not be precluded from coming to the family house and went into a room in the house where he slept on a mat on the floor in the room. The deceased, a brother, slept on the bed in the room. PW 1 was aroused from sleep by three hefty men who came into the room accompanied by the appellant. The three men pounced on PW 1 and gave him a beating. A fight ensued which woke up the deceased. On waking up, the deceased saw what was going on and questioned (in a loud voice) the appellant why he brought thugs into the house to beat PW 1. The deceased tried to separate the fight. This annoyed the appellant who then went into his room and brought out a gun. From the corridor of the house, appellant shot into the room where the deceased was trying to rescue PW 1 from the three men who were beating and stabbing him with knife. The deceased was hit and gave a loud cry. The three men on seeing what happened ran away. PW1 reported the incident at the police station, Elere.
The police came to the house with PW I but found the premises locked up; the appellant was no where to be seen. A search was made for the appellant but unsuccessfully. The police returned to their station. On the following day the police called at the house again in company of PW 1 but still found the premises locked up. This time, the police broke in and found the deceased dead on the floor. The police conveyed the corpse first to their station and later to the hospital mortuary where a post mortem examination was performed on it by PW2, Dr. Koley. The doctor found a gun-shot wound on the body and damages to the internal organs as a result of the wound. He opined that death was caused by the laceration of the spleen and liver coupled with internal haemorrhage.
PW3, Police Sergeant Olaposi Akinola who was assigned to investigate the charge of murder against the appellant obtained a statement, under caution, from him on 27/12/84. PW3 visited the scene of crime on 29/12/84 in company of the appellant. A search of the house was made but nothing was recovered. On 14/5/85 the appellant made a second statement to the witness to the effect that nothing was recovered from his house. Both statements were tendered and admitted in evidence. Cross-examined, PW3 testified that he went with the appellant to look for one Baba Ahmed mentioned by the appellant in his first statement to the witness (Exh. C). At the instance of defence counsel, the statement made by the appellant’s wife Alhaja Taibatu was tendered in evidence as Exhibit E even though the latter was not called to testify by either side.
P.W.4. L/Cpl Cosmos Eke of Elere Police Station was the officer to whom P.W.1 on 14/7/84 lodged his complaint of murder against the appellant and who visited the scene both on 14/7/84 and 15/7/84. On 28/7/84 he arrested the appellant and, at Elere Police Station, obtained a statement from him under caution (Exh. G). The case was later transferred to the CID where PW3 took over investigation.
In Exh. C1, the English translation of his statement to the police, the appellant gave the following account of what happened on the fateful day:
“On the 14.7.84 Oseni Jimoh came to Ifatedo village via old Agbado and I asked for my money from him. The whole money is N2,000.00 but I only asked for N200.00 out of the money. He said which money I asked from him and said the money which he had used to repair his motorcycle. I said it was good like that as you know that I am not well and you know that I have a bad leg and my leg did not allow me to go anywhere. On the sport (sic) there, he gripped me by the neck against the wall and fell me down. He then gripped my neck against the grand (sic) and started beating. Rafiu Suberu, Alhaja Taibatu and Morufu Mabayoje did not allow him to kill me. As they managed dragged him on top of me, I started going to the police station but when I got to Alagbado I was unable to go further because of my leg. I asked people to find me vehicle to convey me to Elere then Iya Alaro told me that I should not go and report to the police that which day we returned from one police station. There the son of the woman came out called Baba Amedi and asked me whether there was something I supposed to give him and I failed to give him and I said no.
Then Baba Amedi asked three men to accompany me to our village to go and settle the matter for us when I reached home. I did not meet Alhaja but I met Oseni Jimoh and Rafiu Suberu sleeping. Then one of the three men woke Jimoh and he stood up. Then he was asked the cause or our fight. He said, I used a charmed ring in beating him. And the people told him that I can not do so. Then he told him (sic) that they should not tell him nonsense and slapped one of them. There fight started. Jimoh then told Ratiu to fire at them that they are thieves. There Rafiu went and carried a dane gun and fired one of the three men. That one fell, and Rafiu went to (me) load the dane gun by then I was at the entrance of the house. As Ratiu turned, Jimoh fired and met Ratiu at the back. Jimoh wanted to fire (me) before he fired at Ratiu.
He did so before and one double barrel dane gun seised (sic) from him.
The dane gun is at Elere with Mr. Olaleye Rafiu did not offend Jimoh wanted to kill me and inherit (sic) my properties because I am childless. I was not the person that killed Ratiu. Jimoh killed Rafiu.
In the house where the incident occurred is made of four rooms and a shop. I did not know the actual name of Baba Amedi. I did not know the names of the three men that accompanied me to Ifatedo. Rafiu killed one of the three men accompanied with dane gun, then the other two men unfired removed the corpse of their person to Baba Amedi’s house our family did not settle any quarrel for my wife and Jimoh on 14/7/84. I did not ask Jimoh not to come to our village again because of my wife. I did not know where Baba Amedi is working. After the incident I ran to the family of my mother at Abeokuta I was not the person that locked Ratiu inside room it might be my wife after he had died and I ran (sic) away.”
He testified in his defence at the trial. His evidence run thus:
“On 14.7.84 about 3.30 p.m. PW2 (sic) came to Ifatedo. He came in and greeted me. He met my mother-in-law. He went to my wife’s shop to sit About 5 minutes after I got up as I was not well with back ache and pain in my legs.
At the verandah I greeted him and asked for my money. I asked for N200.00. He did not give me. He said he had repaired his motorcycle with the money. He grabbed me by the neck and gave me a head butt. I fell. PW 1 started to beat me. The deceased and Alhaja Taibatu and Morufu were there. They separated us. I left house and was going to report at Elere Police Station at Alagbado, I was tired. I waited at one Iya Alaro, near us. I told her what happened. Iya Alaro’s son came out. He is Baba Ahmed. I told him what happened. Iya Alaro said I should returned home for settlement with 3 men. I knew only one Kariba’s husband -I do not know the others.
On returning home, I did not see anyone. I went to room I gave to Oseni. I saw PW1 and deceased sleeping on the floor. Deceased can stay in the house anytime.
I went to the room alone. I saw both asleep. The three men were called. They came in to them.
PW 1 was called by one of the men. He did not answer. The man woke PW 1 up. He got up. He was annoyed. He was asked what caused the fight. He said I beat him with medicine. He saw (sic) no one should query him. The men did not go. PW 1 got up and beat Kabira’ s husband. Fight ensured (sic) between PW 1 and the three men.
They disturbed deceased where he was sleeping. PW 1 was shouting ‘thief, thief and asked deceased to shoot them. Deceased brought out gun and cutlass. I told them not to shoot Deceased took gun and shot one of the men. The man fell. I was in the corridor.
PW 1 also had a gun. It belonged to him. Deceased had his gun.
It is Exhibit ‘F’.
The two men were struggling with PW 1. The deceased was hit.
We all dispersed. The man shot by PW1 was later removed. I went into hiding in the bush. The fourth day, I went into the house. It was the 6th day I went to the police.”
Cross-examined, he deposed:
“PW 1 said my wife damaged his mother (sic) cycle, hence he used my money to repair it. My wife damaged the motorcycle twice.
There was quarrel between PW 1 and my wife before. There were several settlements.”
At the conclusion of evidence, counsel addressed the court. In a reserved judgment, the learned trial Judge after a review of the evidence, accepted the evidence of PWI and rejected that of the appellant. He found-
- “I am satisfied upon evidence in this case that the gun shots that killed the deceased came from the gun of the accused.”
- “I am satisfied upon evidence in this case that it was the act of the accused in firing his gun into the room that directly caused the death of Rafiu Ikoyi.”
- “I am therefore satisfied of the fact of death of Rafiu Ikoyi on or about the 15th day of July, 1984.”
- “Evidence abounds which I believe that the accused fired his gun into the room at PW1 where PW1 the three man (sic) brought by the accused and the deceased were. The deceased was thereby hit and he died therefrom.
- I hold that the accused intended the natural and probable consequences of his act of firing his gun into a crowd of people in a room.
- I am satisfied that the prosecution had established the necessary intent to found guilt in the accused. See The State v. Ibrahim 1986 1L.QRN 19.
- I hold therefore that the accused intended to kill the deceased Rafiu Ikoyi.”
On PW 1, the learned trial Judge observed
“I have carefully considered the role of PW 1 in this case. I have warned myself of the danger of relying heavily on his testimony. I have had the opportunity of seeing and hearing PW 1 testify. He impressed me as a witness of truth.
Having fully warned myself, I am of the firm view that his testimony was truthful and reliable. See: Peter Sunday Udoh v. Okoro v. The State (1972) 4 SC. 55.”
He convicted the appellant of murder and sentenced him to death.
The appellant unsuccessfully appealed to the Court of Appeal. He has now further appealed to this court upon 5 grounds of appeal as contained in his amended notice of appeal. Pursuant to the rules of this court, a brief was filed on behalf of the appellant by Olisa Agbakoba. Esqr., SAN. The respondent did not file a brief. The appeal was consequently argued on the appellant’s brief alone, although the respondent was represented at the oral hearing of the appeal by Mrs. W. Folami, learned Attorney-General of Lagos State.
In that brief, the following three questions are formulated for the determination of the appeal, that is to say.-
“1. Whether the Court of Appeal was right to hold that the appellant was properly arraigned in accordance with the rule in Kajubo’s case and if not should the appellant be retried or discharged and acquitted”
- Whether the prosecution proved it’s case, i.e., that the appellant murdered the deceased, with the necessary standard of proof
- Whether section 319(1) of the Criminal Code is inconsistent with section 31(1)(a) of the Constitution of the Federal Republic of Nigeria and therefore null and void, and if so whether the affirmation of the death sentence by the Court of Appeal was correct.”
I shall consider questions 1 and 3 first. Both Mr. Agbakoba SAN and Mrs. Folami adopted and relied on their arguments in SC.24/1994: Onuoha Kalu v. The State which appeal was heard earlier in the morning of the same day that the present appeal was also argued, that is, 24th September, 1998. Questions 1 and 3 in this appeal are similar to questions 1 and 2 in that other appeal. In view of the decisions of this court in respect of these questions, I must resolve questions 1 and 3 against the appellant in this case.
On question I, it is my decision that the arraignment of the appellant accorded with the requirements of proper arraignment laid down in Sunday Kajubo v. The State (1988) 1 NWLR (Pt.73) 721 at pp. 731, 737. The appellant was arraigned before the trial court on 26th May, 1986. Part of the record for that day reads:
“Accused present.
Mrs Onyeabo for State.
No appearance for accused.
Court: What language does accused speak. He speaks Yoruba.
Read charge and inerprete to Yoruba and explain to the accused.
Plea: Accused pleads.
Not guilty to charge.
Accused: I have no lawyer.
Mrs Onyeabo: I have witnesses. Accused has no lawyer yet, I ask for adjournment.
Court: Accused will be remanded at Ikoyi Prisons.”
There was, in my respectful view, substantial compliance with section 215, Criminal Procedure Law of Lagos State which provides:
“215. The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.”
and section 33(6)(a) of the Constitution of the Federal Republic of Nigeria 1979 which too, provides:
“Every person who is charged with a criminal offence shall be entitled-
(a) to be informed promptly in the language that he understands and in detail of the nature of the offence;”
On question 3, I hold, for the reasons given by this court this morning in Kalu v. The State (supra) that-
(a) The death penalty is not inconsistent with section 30(1) of the Constitution which provides –
“30(1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.”
(b) As the question whether or not the appellant is or has been subjected to “torture or to inhuman or degrading treatment” contrary to section 31(1)(a) of the Constitution is not intrinsic to the appeal now before us, it cannot be decided in this appeal. The appellant would need to have recourse to section 42(1) of the Constitution (as amended) which provides-
“Subject to the provisions of this Constitution any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
See also: Ade Mike Musa Ogugu & Ors. v. The State (1994) 9 NWLR (Pt.366) 1 where I said at p.45
“As the issue of the alleged breach of the constitutional provisions as enshrined in section 31(1) (u) of the Constitution of the Federal Republic of Nigeria 1979 is not intrinsic to the proceedings leading to the appeals to this court by the appellants, this court will have no jurisdiction at this stage to entertain the complaints. This court is therefore not the proper forum where the complaint under section 31(1)(a) can be made as a court of first instance.”
Uwais JSC (as he then was) and Wali JSC also made pronouncements in the case to the same effect.
I now turn attention to question 2 which turns on the facts of the case. This question is dealt with in the appellant’s brief under two broad headings, to wit
- Misapplication of section 160 (sic – 161) of the Evidence Act to let in inadmissible evidence, and
- Conflicts, inconsistencies and gaps on cause of death.
Under the first heading it is submitted that Exhibit E the statement of appellant’s wife made to the police during the police investigation of the case was inadmissible under section 161(2) of the Evidence Act as “the appellant and his wife were married under a monogamous arrangement”, Now, section 161(2) provides:
“When a person is charged with an offence other than one of those mentioned in the preceding subsection the husband or wife of such person respectively is a competent and compellable witness but only upon the application of the person charged.”
The words “wife” and “husband” are defined in section 2(1) of the Act as meaning:
‘wife’ and ‘husband’ means respectively the wife and husband of a monogamous marriage,”
To avail himself of section 161(2), therefore, appellant must prove that his marriage to his wife was monogamous. I can find no evidence on record in proof of this fact. All that the appellant said in evidence was:
“I am married.”
This is no evidence that the marriage was monogamous in nature. In any event, section 161 deals with evidence of a witness and not the admissibility of an extrajudicial statement made by someone who is not called as a witness, Exhibit E can, therefore, not be inadmissible under section 161 of the Evidence Act.
This conclusion notwithstanding, it is my view that Exhibit E is inadmissible: It is a written account of what Alhaja Taibatu, appellant’s wife, told PW3 in the course of the investigation of the case. It is, therefore, hearsay evidence. It is trite law that hearsay evidence is inadmissible and section 8 of the Evidence Act cannot be relied upon to admit it in evidence. Ozude v. inspector General of Police (1965) 1 All NLR 102; (1965) ANLR 106.
Exhibit E would only have been admissible to contradict Alhaja Taibatu or test her credibility had she given evidence in this case. But she did not give evidence. It was wrong of the learned trial Judge to have admitted, in evidence, her statement to the police, Exhibit E. Exhibit E was tendered in evidence by defence counsel during his cross-examination of PW3. The prosecutor did not object to its admissibility in evidence.
This fact, however, will not affect its inadmissibility as panics cannot by consent or otherwise admit in evidence that which, by law, is inadmissible – Minister of Lands, WN v. Azikiwe & Ors. (1968) 1 All NLR 49; (1969) 6 NSCC 31.
What then is the effect of this wrongful admission of Exhibit E Section 227(1) of the Evidence Act provides:
“227(1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted:’
The Federal Supreme Court (the pracursor of this court) held in Queen v. Baba Haske (1961) 2 SCNLR 90; (1961) 1 All NLR 330, 333; (1961) 2 NSCC 193 at 196 that an appeal court will quash a conviction where it is clear that if after expunging inadmissible evidence, there is not left sufficient evidence on which the conviction of an accused by the trial court can be sustained. Unsworth FJ, delivering the judgment of the court said:
”The question which we really have to decide is whether we can safely say that the trial Judge would certainly have come the same conclusion if he had properly directed himself and excluded the first confession. In all the circumstances of the case, we feel that we could not safely say that the Judge would certainly have held that the inducement (and possibly also the threat) made to this illiterate villager, had been dissipated at the time of the second confession; or, even if he had so held, that he would necessarily have convicted the appellant on this subsequent confession alone.”
And in The Queen v. Olubunmi Thomas (1958) SCNLR 98; 3 FSC 8 at p. 10, the Federal Supreme Court laid down the test to be applied in determining the effect of wrongful admission of evidence on the judgment appealed against. Nageon de Lestang, Ag FCJ delivering the judgment of the court said:-
“The question which must be posed therefore is, would the learned trial Judge have reached the same decision if the inadmissible evidence had not been admitted It is impossible for us to say what effect that evidence may have had on the mind of the learned trial Judge and although we think that there was sufficient evidence without the inadmissible evidence to convict the appellant, we cannot say with certainty that the learned trial Judge must inevitably have come to the same conclusion. That being so we have no alternative but to allow this appeal, quash the conviction and sentence and order a verdict of acquittal to be entered.”
In the instant case, there is no doubt that Exhibit E is highly prejudicial to the appellant. There were two witnesses to the event leading to the death of the deceased – PW 1 for the prosecution and the appellant for the defence. It is a case of the oath of one against the oath of the other. The learned trial Judge observed in his judgment-
“‘Through this witness, still under cross-examination, the statement of the wife of the accused was tendered and admitted in evidence as Exhibit ‘E’.
The statement of the wife of the accused, Exhibit ‘E’, said the accused came into the house with three men, who started fighting with PW 1 while the accused stood by looking. It stated Rafiu Jimoh fired into the room and shot one of the three men, wounding him.
Rafiu then entered.
Exhibit ‘E’ stated further:
‘As he (Rafiu) entered into his room, hence, my husband Azeez Okoro fired at Rafiu with his dane gun.’
The statement of the wife of the accused contravened (sic) the assertion of the accused, that it was PW1 who shot at Rafiu Ikoyi.
Exhibit ‘E’ further stated:
‘My husband Azeez Okoro fired at Rafiu Ikoyi with his dane gun in the room and Rafiu died on the spot. This incident made me and our neighbours to run away to various places.”’
Later in the judgment he again observed –
“Exhibit ‘E’, the statement of the wife of the accused, was tendered during cross-examination of prosecution witness, by the defence. If, (sic) that is Exhibit ‘E’ stated that accused fired his gun at the people in the room where the fight was going on.
I am satisfied upon evidence in this case that it was the act of the accused in firing his gun into the room that directly caused the death of Rafiu Ikoyi.”
Notwithstanding that the learned trial Judge claimed he warned himself about the evidence of PW 1 before accepting same, could it be said that his mind was not affected by Exhibit ‘E’ Having regard to the above observations of his, I would answer the question in the negative. The learned trial Judge, for instance, said:
“Evidence abounds which I believe that the accused fired his gun into the room at PW1 where PW1 the three man (sic) brought by the accused and the deceased were.
The deceased was thereby hit and he died therefrom.”
The only evidence before the trial court on who fired the gun that killed the deceased was that of PW1 and Exhibit E and it must be this that the learned trial Judge referred to as “evidence abounds”.
Conflicts inconsistencies and gaps on cause of death
The main submission under this heading is that in view of the confusion surrounding who actually shot the deceased, it is difficult to understand how the learned trial Judge preferred the evidence of P.W.1. It is trite that a trial court must give the reason to believe the evidence of a witness and disbelieve the other. There is no magic in the expression ‘believe’ or ‘disbelieve.”
There is no doubt that there are some aspects of this case that can be said to be unsatisfactory. The evidence of PW 1 is that the deceased was shot at and died on 14th July 1984. But the learned trial Judge found:
“I am therefore satisfied of the fact of death of Raflu Ikoyi on or about the 15th day of July, 1984.
There is evidence which I believe that the fatal gun shot was fired on or about the 15th day of July, 1984 and that the deceased died on or about the same day.”
Another aspect of the confusion surrounding this case is the issue of the gun used in killing the deceased. The learned trial Judge found:
“I disbelieve the evidence of the accused that the deceased died as a result of gun shot wounds received from Exhibit ‘F’ fired by PW 1. I prefer and believe the evidence of PW 1 that the said deceased Rafiu Ikoyi died from gun shot wounds received from the gun of the accused tired by the accused.”
PW4, the police officer who on 15/7/84, in company of PW1, broke open the house at Ifatedo where the unfortunate incident happened testified and said:
“On 15.7.84 about 8 a.m. self and complainant went to scene of incident at Ifatedo village Agege. Searched for tile deceased. It (sic) was not seen. We forced door of the passage into house of accused. We saw the deceased on the floor. We removed body to the General Hospital Lagos.
Deceased was in a pool of blood and blood was on the passage.
There was a wound on the back of the deceased. It was a gun shot wound. The body of the deceased was decomposed. The room was scattered. I know Jimo Oseni, the complainant.
PW 1 showed me a dane gun which he said belonged to the deceased.”
Cross-examined, the witness testified:
“I saw a gun lying on laps of the deceased. The gun belonged to the deceased. I did not test for finger prints on the gun. I did not find the three men, the accused said he brought to settle the quarrel.
A bullet was recovered from body of deceased. I passed it to State C.I.D. when the case was sent.”
Some questions arise: How did blood come to be in the passage or corridor of the house If the deceased did not take out his gun as deposed to by PW 1, how did that gun come to be found on his lap after his death in the room In the light of the statement made by the appellant to this witness (Exhibit G), why was the deceased’s gun not examined for finger prints to determine who handled it and why was the gun not sent to forensic examination to determine whether or not it was recently fired What happened to the bullet that was recovered from the body of the deceased And why was it not sent to the forensic laboratory to determine if it could have been fired from the deceased’s gun, Exhibit F. These are questions which due to the inept way the investigation was conducted, the prosecution offered no answers to. Furthermore, PW 1, prosecution’s star witness said:
“I was covered in blood my hand and face were stitched.”
There was no corroboration of this vital evidence from PW4 who was on 14/7/84 assigned PW 1’s report for investigation and who went with the latter to the scene of crime on 15/7/84. Had the learned trial Judge adverted his mind to all these salient weaknesses in the case for the prosecution he would not have readily accepted the evidence of PW1, as he did and based conviction on it, reinforced, as it were, by Exhibit E, an inadmissible evidence.
Having regard to the above lapses and bearing in mind the strained relationship between PW 1 and the appellant and the wrongful admission of Exhibit E which is prejudicial to the appellant. I would not say that the case against him was proved beyond reasonable doubt, a burden enjoined on the prosecution. Consequently, I resolve question 2 in favour of the appellant. I, therefore, allow his appeal, set aside the judgments of the two courts below and enter a verdict discharging and acquitting the appellant of the charge of murder of Rufai Ikoyi brought against him.
SC.135/1997
