Akinyede Olaiya V. The State (2017)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
On 23rd March, 2011, in the morning, violent fracas broke out between the members of the Peoples Democratic Party (PDP) and the Action Congress of Nigeria (ACN) at Kota Junction, Omuo Ekiti, in Ekiti State. The fracas was occasioned by accusation and counter-accusation of the tearing of posters of the two rival political parties by their respective supporters.
A police team, comprising seven policemen including the appellant herein and one Cp1. Ameh Richard, was sent to the Kota Junction to restore peace and order. The Divisional Police Officer (DPO) led the team. He had a pistol. The appellant and Cpl. Ameh Richard, respectively the 2nd and 1st Accused at the trial Court, each had an AK 47 riffle officially assigned from the office.
The mobsters at the scene of the crime were allegedly dangerously armed with guns, cutlasses, bottles etc. The DPO fired shots into the air to draw attention of the mobsters and warn the volatile crowd. The appellant and the 1st Accused later fired shots from their respective riffles. The appellant admitted, in Exhibits C3 and
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C4, his extra judicial statements to the Investigating Police Officer (IPO), that he fired two shots out of the 30 ammunition pieces given to him. He identified Exhibit C4 as a Statement he made to the IPO. At the trial he admitted, in his evidence on oath that he fired two shots. He, however, insisted he fired the shots into the air in order to protect and or defend himself when the mobsters started firing at the police van and throwing bottles at them. He sat at the back of the police van.
The prosecution, on the other hand, contended that the appellant fired the two shots into the crowd, without provocation or any real threat to his life or the lives of the other policemen with him. It is also alleged that, as the appellant and the 1st Accused fired shots into the crowd, two men fell down and died instantly, and that it was the shot fired by the appellant that killed one Kehinde Ayo Faluyi (deceased). The appellant was, consequently, charged with murder by his intentional and unlawful killing of the said Kehinde Ayo Faluyi.
The appellant was tried for murder contrary to Section 316 of the Criminal Code. The offence is punishable with death
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under Section 319 of the same Criminal Code. At the close of the trial, and upon taking final addresses from the counsel on both sides, the learned trial Judge, in his considered judgment, convicted the appellant for the murder of the said Kehinde Ayo Faluyi. He was accordingly sentenced to death.
The appellant appealed his conviction and sentence. His appeal was not successful. The Court of Appeal, sitting at Ado-Ekiti, affirmed the conviction and sentence imposed on him by the trial High Court. The appellant has further appealed to this Court. He raised three grounds of appeal in his Notice of Appeal filed on 6th May, 2014. Therefrom, five issues were distilled for the determination of the appeal.
The breakdown of the five issues shows that the appellant nominated two issues each from his grounds 1 and 3 of the grounds of appeal. Only one issue was raised from ground 2 of the Grounds of Appeal. And that is issue 3 which, as formulated, is consequent upon a suggested positive affirmation of issues 1 and 2 proliferated from ground 1 of the Grounds of Appeal. Issues 3 and 4 were erected from ground 3 of the Grounds of Appeal. In the
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practice and procedure of this Court proliferation of issues from a single ground of appeal is wrong and unacceptable. The permissible practice is that a party may formulate, from a ground of appeal or a number of grounds of appeal only one issue, and not several issues from one ground of appeal. Proliferation of issues is not permitted by law: AGU v. IKEWIBE (1991) 3 NWLR (pt. 180) 385; MADUEKE v. MADUEKE (2000) 5 NWLR (pt. 546) 409.
The respondent, on the other hand, formulated only two issues from the three grounds of appeal raised by the appellant. Issue 1 was formulated from grounds 1 and 2; while issue 2 is formulated from ground 3. The two issues, as formulated, are:
- Whether, on the totality of the evidence led by the prosecution, the lower Courts were not right in holding that the Respondent proved beyond reasonable doubt all the ingredients of the offence of murder against the Appellant contrary to Section 316 of the Criminal Code
- Whether the lower Court was not right in holding that Exhibit F, the statement of Mrs Taye Bamisile was relevant and admissible in law
The two issues formulated by the respondent, permitted
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by law are more preferable to me than the 5 issues proliferated from three (3) grounds of appeal. The respondent’s two issues shall be the benchmark issues for the determination of this appeal.
There are two broad elements the prosecution must establish in order to sustain the conviction of an accused person in a murder charge. That is the actus reus and the mens rea. The actus reus is the wrongful act or deed that comprises the physical components of the crime charged. The mens rea, is the guilty mind or the state of the mind with which the accused person executed the criminal act. It is also the mental element. There are only two states of mind which constitute mens rea, according to Black’s Law Dictionary at p.1076 9th ed., citing J. W. Cecil Turner: KENNYs OUTLINE OF CRIMINAL LAW 29 – 30 (6th Ed. 1952). They are the intention, and recklessness with which the accused proceeded in the act said to be criminal.
In the Appellant’s Brief, settled by Ajose-Adeogun, Esq. of counsel, it is submitted, and I agree, that it is well settled that to convict a person charged with murder under Section 316 of the Criminal Code, the
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prosecution must prove beyond reasonable doubt –
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
d. that the accused knew that death would be the probable consequence of his act or omission.
See AKPAN v. THE STATE (1994) 9 NWLR (pt 368) 349 at 359. In actuality, the prosecution only needs to prove that the accused person had the intention and or the knowledge that death would be the probable consequence of his act. In the mental state, the two elements are actually alternatives to each other. Once intention to kill is satisfactorily proved, there would no longer be any necessity to prove beyond reasonable doubt that the accused possessed the knowledge that death of a human being would be a probable consequence of his acts or omission. With that proof of intention beyond reasonable doubt, the proof of the recklessness, under which categorisation is the knowledge that death would be the probable consequence falls, becomes unnecessary. Other decisions of this Court including OGBA v. THE STATE (1992) 2 NWLR (pt. 222) 164; GIRA
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THE STATE (1996) 4 NWLR (pt. 443) 375 at 382, and UGURU v. THE STATE (2002) 10 NSCQR 37 at 50, cited by the respondent, clearly recognise that intention to kill and knowledge that death is the probable consequence of the act of the accused are in alternative. Thus, it was held in these cases that the three (3) ingredients the prosecution must prove beyond reasonable doubt in order to sustain conviction for murder under Section 316 (1) of the Criminal Code are;
a. that the deceased died, and
b. that the act or omission of the accused caused the death of the deceased, and
c. that the act or omission, as stated in (b) above was intentionally caused or that in the act resulting in the death the accused had knowledge that the act would be the probable cause of the death of the deceased or a human being.I have painstakingly perused the briefs filed and exchanged in this case. The parties are ad idem that Kehinde Ayo Faluyi had been killed and that his death was caused by the act of the appellant. For the appellant, it has been submitted in paragraphs 3.3 – 3.8 of the Appellant’s Brief that the appellant, when he fired the fatal shots
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in the discharge of his lawful duty on the fateful day, did so not to intentionally kill the deceased but merely to enable himself and the other police officers to retreat from the mob that had become violent. Consequently, it is submitted that the prosecution had failed to prove beyond reasonable doubt that the appellant deliberately fired the shots into the crowd with the intention to kill the deceased or any person.
The issue having been narrowed down to only the proof beyond reasonable doubt of the appellant’s guilty mind to kill (i.e. mens rea), it follows naturally that the prosecution shall no longer be tasked to proving that the act of the appellant (i.e the actus reus) caused the death of the deceased, Kehinde Ayo Faluyi.
The choice of line of defence to plead in any criminal proceeding, as Karibi-Whyte, JCA (as he then was) stated in GWONTO v. THE STATE (1982) 1 NCR 251 at 265, is entirely within the discretion of the accused person and his counsel. No Court interferes, or can interfere, with that discretion.
The learned appellant’s counsel, in his total freedom to conduct the appellant’s case in the best way he knows (and
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that privilege and authority cannot be denied) has narrowed the issue in this appeal to whether the mens rea had been proved beyond reasonable doubt. He has accordingly conceded the actus reus to the prosecution, and made an issue of the appellant, discharging a lawful duty at the material time; in the course of which he did what he did, the fatal shooting, in self-defence. The choice of this defence is coterminus with the admission that the appellant resorted to the actus reus in the circumstance justified by law. There can, of course, be no self-defence unless the actus reus is an admitted fact.
The ingredients constituting the actus reus having been conceded in this appeal the issue, as narrowed down, is whether the appellant intentionally caused the death of the deceased or that in firing the fatal shots he had knowledge that death of the deceased would be probable consequence of his act At the risk of repetition, it is submitted for the appellant that he was at all material times on official duty, that he took reasonable care in handling the firearm issued to him for the discharge of his lawful duty, and that he fired the
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fatal shot that killed the deceased during the discharge of a lawful duty. On these facts, as duly admitted, appellant’s counsel submits in paragraph 3.8 of the Appellant’s Brief, relying on ONAH v. THE STATE (1977) 7 SC 69, that while the appellant can be convicted of the offence of manslaughter because in complete and culpable disregard of his lawful duty his act resulted in the death of the deceased, he cannot in law be convicted for murder of the deceased, in the absence of the necessary mens rea; the intention to kill. Let me quickly correct the impression that because the appellant was engaged in a lawful duty the lives of other Nigerians no longer matter. The lives of other innocent Nigerians matter. Every police officer on a lawful duty and assigned a firearm must bear in mind that those other lives matter.
Facts admitted, or facts not disputed, need no further proof. They are, in law, taken as proved and /or established. I re-stated this principle of law in ODEBUNMI & ANOR v. OLADIMEJI & ORS (2012) LPELR – 15419 (CA) and ACB INT’L BANK PLC v. ADIELE (2013) LPELR – 21164 (CA) relying on OGOLO v. FUBARA
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(2003) 11 NWLR (pt. 831) 231; ODULAJA v. HADDAD (1973) 11 SC 35. Accordingly, the actus reus of the murder charge being defended by the appellant, having been admitted, is no longer in dispute, it is accordingly taken as established. In this appeal only the mental ingredient or element, the mens rea, is now the narrow issue.
The respondent submits that the evidence they had led at the trial proves beyond reasonable doubt that the act of the appellant, which caused the death of Kehinde Ayo Faluyi, was his deliberate shooting into the crowd with Ak 47 rifle two live bullets without provocation. In Exhibits c3 and c4 the appellant admitted that he fired the gun and expended two ammunition out of the 30 rounds of ammunition he was issued. In his oral evidence the appellant stated that he fired the two bullets into the air, in sharp contrast with his earlier position and in the present Brief of Argument. A party at all times must be consistent with the pleading of his defence. He will not be allowed to approbate and reprobate in his case. See SUBERU v. THE STATE (2010) 5 SCM 215.
The trial Court found, and the Court below
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accepted, that the death of the deceased was as a result of the act of the appellant, and that the shooting which resulted in the death of the deceased was a culpable disregard of the appellant’s duty to take reasonable care while handling a gun. In his brief of argument the appellant now admits his shooting resulting in the death of the deceased. What now is his excuse for the killing
Every appellant has a duty to show that the judgment he has appealed is erroneous and unreasonable either as a matter of law or as of fact. It is, therefore, not enough for the appellant’s counsel to submit that the appellant fired the fatal shot that killed the deceased during a discharge of a lawful duty, and that his intention was clearly to shoot at the vehicle without more. The learned counsel must show by credible evidence how the appellant, while on lawful duty, fired the fatal shot with due care and diligence, considering the fact that a firearm, particularly an AK 47 riffle with live ammunitions, is prima facie a very dangerous object within the rule in RYLANDS v. FLETCHER (1866) L. R. 1 EX. 265. If therefore it is admitted as the
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appellant seems now to, that two live bullets were fired into the crowd from his AK 47 riffle; the defence that can deflect a conclusion that the bullets or shots were fired with the knowledge that death of the victim was a probable consequence thereof is either the default of the victim, or an act of God, or accident (or novas actus interveniens). There is no such defence or facts on which one can fall back on. The contributory conduct of the deceased warranting his being shot at by the appellant has neither been explained nor established to warrant the plea of self defence by the appellant.
The defence is one of facts which must be pleaded and proved by the riffle handler, this time the appellant. The law does not obligate the prosecution to prove the defence available to the accused. That is why when the prosecution, while purporting to prove their case, prove the defence of the accused as part of the prosecutions case; it has been held, in PAUL AMEH v. THE STATE (1978) NSCC 368, that where in a criminal proceeding the prosecution put before the trial Court two versions of one incidence, one proving the allegation and the other the
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defence, they would have thereby failed to prove their case beyond reasonable doubt. See also BOY MUKA v. THE STATE (1976) 10 SC 305; ALFRED ONYEMENA v. THE STATE (1974) ALL NLR 522.
At all times the accused person has the evidential burden of proving his defence or casting reasonable doubts on the prosecution’s case. When he asserts a defence, it behooves him to prove it. Sections 131, 136(1) and 137 of the Evidence Act, 2011 are clear and very material on this.
When a man shoots at his victim or into a crowd with a gun he does so with the intent either to cause the death of the victim or some other persons in the crowd. That is what the law presumes his intent to be. So held Onu, JSC in ADEGBOYEGA IBIKUNLE v. THE STATE (2007) 1 SC (pt. ii) 32; (2007) 2 NWLR (pt. 1019) 5 & 6 relying on AREBAMEN v. THE STATE (1972) 4 SC 35 at 44 – 45; ERIC UYO v. A. G. BENDEL STATE (1986) 1 NWLR (Pt.17) 418, and GARBA v. THE STATE (2000) 6 NWLR (PT. 661) 378 at 387 H. When, as in this case, the weapon used is a gun, which by its very nature is a very dangerous, and lethal weapon, the probability of the resultant death as a consequence thereof is very
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high. In such circumstance, as Onu, JSC concluded in IBIKUNLE v. THE STATE (supra), it is a trite knowledge, and the presumption is, that the result of shooting a person with a gun is either to cause his death or to cause him grievous hurt.
The appellant’s counsel repeatedly made so much fuss of the appellant, at the material time, being on lawful duty at Kota Junction to enforce law and order. But that, ipso facto, is neither a licence to kill nor the liberty to shoot recklessly at the crowd. That is what makes up the mens rea in this case, the appellant having in his brief admitted the actus reus of causing the death of Kehinde Ayo Faluyi by his shooting of live bullets into the deceased through the AK 47 Riffle he handled. The appellant has not sufficiently shown any lawful justification or excuse for the shooting of the deceased at the material time. He has therefore not shown any cause why his appeal should be allowed and his conviction and sentence quashed. The appeal, lacking in substance, is hereby dismissed.
Let me briefly comment on Exhibit F, the extrajudicial statement of Mrs Jaiye Bamisile, a proposed witness who never
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testified. It was admitted in evidence without objection through the PW3. It is not a dying declaration. The only basis for admitting it in evidence through the Pw.2 is the fact that Mrs. Bamisele, the maker, was away abroad.
In Exhibit F, Mrs. Bamisile was categorical that she saw the appellant, while seated at the back of the police van, shoot the fatal bullet at the deceased. In my firm view, from the long established authorities including SUBRAMANIAM v. PUBLIC PROSECUTOR (1956) 1 WLR 965 at 969 UZOMA OKEREKE v. THE STATE (2016) LPELR – 26059 (SC) and ZAMAN V. THE STATE (2015) LPELR – 24595 (SC), Exhibit F is only a legal evidence as real evidence. Its contents, if the prosecution insist on their veracity or truth, are inadmissible hearsay evidence. Exhibit F was not tendered and admitted in evidence as a dying declaration. It is only in that circumstance that it would have been an exception to the hearsay rule. Dying declaration by the deceased or victim is admissible in evidence, and an exception to the hearsay rule, in murder and manslaughter cases, to prove the cause of death of the deceased declarant. Mrs. Bamisile, the maker of
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Exhibit F, is neither the deceased nor the victim of the appellants shooting. Exhibit F may appear material or relevant. However, in so far as it is an inadmissible hearsay it cannot be legal or lawful evidence to prove the cause of death of Kehinde Ayo Faluyi (deceased).
Appeal dismissed. The conviction and sentence of the appellant by the trial Court, affirmed by the Court of Appeal, are hereby further affirmed.
MUSA DATTIJO MUHAMMAD, J.S.C.: I entirely agree with my learned brother EJEMBI EKO JSC that this appeal lacks merit and that it be dismissed.
The appellant was charged, convicted and sentenced to death for the murder of one Kehinde Ayo Faluyi, an offence contrary and punishable under Section 316 and 319 of the Criminal Code respectively. It is trite, I agree with learned appellant’s counsel, that for the appellant to be liable as charged the respondent must prove beyond reasonable doubt that:-
(i) Kehinde Ayo Faluyi, a human being had died.
(ii) That it was the appellant who caused the death.
(iii) The death was intentionally caused by the appellant and
(iv) The appellant
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knew that the death of the deceased was a probable consequence of his act.
Learned counsel’s reliance on Akpan v. The State (1994) 9 NWLR (pt 368) 349 at 359, Ogba V. The State (1992) 2 NWLR (Pt 222) 382; Gira V. The State (1996) 4 NWLR (pt 443) 375 at 382 and Uguru V. The State (2002) 10 NSCQR 37 at 50 to support his submission is unassailable. That is, however, the much I agree with learned appellant’s counsel.
He is not on a firm terrain in his further contention that evidence does not abound unquestionably linking the appellant with the death of Kehinde Ayo Faluyi. I remain unimpressed with counsel’s submission that even though the appellant is shown to have caused the death of the deceased, evidence of the fact of his intention in bringing about the death is lacking. Instead, I agree with learned respondent’s counsel that appellant’s action of deliberately shooting two live bullets into a crowd with his AK 47 riffle requires no further fact to establish that he knew that the death of any one in the crowd was a probable consequence of his conduct. Exhibits C3 and C4 put the death of the deceased squarely on the appellant.
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His oral evidence in Court does not absolve him. Both Courts below are right to have disbelieved him. In the absence of any clear evidence of errors in law or fact leading to miscarriage of justice in the two judgments, this Court cannot interfere with their concurrent findings. See Iyaro v. The State (1988) 1 NWLR (pt 69) 256 and Ogundiyan V. State (1991) 4 SCNJ 44.
I imbibe the further reasons adumbrated in the lead judgment as well in dismissing the unmeritorious appeal. I abide by the consequential orders made in the lead judgment.
SC.562/2014
