Bamidele Patrick V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Appellant and one other Defendant were tried, convicted and sentenced to death by the Lagos State High Court for the murder of one Sule Ajala (the deceased), who they allegedly beat to death.

The Prosecutions case, as gathered from their four Witnesses, is that Appellant bought a motor cycle for the deceased and it was agreed that he remits a certain sum of money daily to the Appellant, and that he parks the motor cycle daily at an agreed place for safety. The deceased adhered to this agreement until 30/7/2008, when the Appellant did not see the motorcycle where it should have been, and he went along with the second Defendant to find the deceased.

They met up with him between 12.30am and 1am of 1/8/2008, and without waiting to hear what happened to the said motor cycle, they beat up the deceased and left him in the gutter, where he was discovered dead in the morning hours of that same day – 1/8/2006.

The Appellant testified in his defence as DW1, and did not call any other witness. He denied the allegation and claimed

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that when they met up with the deceased that night, his body was battered; that he refused their entreaties to take him for medical treatment, so they left him there, and were surprised when they were arrested.

The learned trial Judge, Dada, J., in his Judgment delivered on 21/4/2017, held that evidence against both of them is unassailable and unequivocal, thus, the conclusion is an irresistible one that they both executed the heinous crime of the murder of the deceased.

Aggrieved by his conviction and sentence to death by hanging, the Appellant appealed to the Court below with a Notice of Appeal containing eight Grounds of Appeal, and formulated four issues i.e.

1. Whether the learned trial Judge was right when in convicting [him], she relied on the confessional statement of Taiwo Durojaiye, the Appellants co-accused (i.e. Exhibits D1-D3)
2. Whether the learned trial judge was right when without proof of the cause of the death of the deceased, she proceeded to consider whether it was the Appellant that caused the death of the deceased.
3. Whether from the facts and circumstances of this

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case, the learned trial Judge was right to have convicted [him] for the offence of murder.

4. Whether from the fact and circumstances of this case, the learned trial Judge denied the Appellant his constitutional right to fair hearing.

The Court below resolved the four issues against him and dismissed his Appeal; it affirmed the conviction and sentence imposed on him.

Further aggrieved, the Appellant appealed to this Court with a Notice of Appeal containing nine Grounds of Appeal, and he distilled five issues for Determination therefrom in his Brief of Argument i.e.

(1) Whether from the facts and circumstances of this case, the Court of Appeal was right when, in the absence of medical evidence as to the cause of the death of the deceased, it held that the death of the deceased was traceable to the physical assault by the Appellant on the deceased

(2) Whether from the facts and circumstances of this case, the Court of Appeal was right when despite discharging and acquitting Taiwo Durojaiye, the Appellants co-accused, on the same or similar evidence and or on evidence that is tied together, it affirmed the conviction and sentence of the Appellant.

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(3) Whether in affirming the conviction of the Appellant, the Court of Appeal was right in applying the principles that an accused person must take his victim as he finds him.

(4) Whether from the facts and circumstances of this case, the Court of Appeal denied the Appellant his constitutional right to fair hearing.

(5) Whether from the facts and circumstances of this case, the Court of Appeal was right in law to have affirmed the conviction of the Appellant for the offence of murder.

The Respondents formulated four issues for Determination; that is:

i. Whether the Court of Appeal was right to hold, without medical evidence, that the death of the deceased was traceable to the physical assault carried out by the Appellant.

ii. Whether from the facts and circumstances of this case, the Court of Appeal was right in affirming the conviction of the Appellant while it discharged and acquitted Taiwo Durojaiye (the Co-defendant at the trial Court).

iii. Whether from the facts and circumstances of this case, the Court of Appeal was right to hold that the Appellant must take his victim as he finds him.<br< p=””

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Whether from the facts and circumstances of this case, the Court of Appeal denied the Appellant his constitution al right to fair hearing.The Appellant submitted in his Reply Brief that issues 1-4 are similar, but the Respondent did not formulate any issue from Grounds 2, 3 and 7 of the Grounds of Appeal, from which he distilled his issue 5, therefore, it is deemed to have abandoned or conceded the said Grounds of Appeal to him; and that the Court would not entertain any argument rising from or based on these Grounds of Appeal – citing Onowhosa V. Odiuzou (1999) 1 NWLR (Pt. 586) 173, Orji V. Zaria Ind. Ltd. (1992) 1 NWLR (Pt. 216) 124, wherein Akpata, JSC, observed-

It is to be noted that in the Respondents Brief, issues for determination were not formulated. Neither were issues proffered by the Appellant adopted. Besides, counsel for the Respondent inevitably fell into a further grave error by basing his argument on the grounds of Appeal without regard to issues formulated in the Appellants brief. Failure to formulate issues in a brief is sufficient by itself to render the brief incompetent, and arguments canvassed therein would, therefore, be of no consequence.

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The brief becomes irredeemably bad if, as in this case, arguments are not based on any issue or issues or semblance of them.

Ogwuegbu, JSC, made same point in Onowhosa V. Odiuzou (supra), that arguments are based on issues; not grounds of appeal, thus

No issue was formulated in respect of ground two of the grounds of appeal. The Defendants argued the ground of appeal in their brief. Arguments on appeal should be based on issues formulated and not on grounds of appeal. I will in the circumstances ignore the arguments in respect of ground two of the grounds of appeal. It is not in compliance with Order 6 Rule 3 of the Court of Appeal (Amendment) Rules, 1984.

The Appellant urged this Court to strike out paragraphs 5.01 to 5.07, and 5.12 – 5.13 of the Respondents brief for being incompetent since arguments in the said paragraphs deal with the issue of establishing a charge of murder against a Defendant by the Prosecution by examining the totality of evidence led by the Respondent at trial.

He also submitted that it is settled that arguments in a brief, which are outside the scope of the issue for determination or

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the grounds of appeal from which the issue is distilled, are incompetent and ought to be struck out, citing Okotie-Eboh V. Manager (2004) 18 NWLR (Pt. 905) 242 and NNPC v. Clifco Nig. Ltd. (2011) 10 NWLR (Pt. 1255) 209 at 233, wherein Rhodes-Vivour, JSC stated as follows

I must say straightaway that appeals are argued on issues formulated from grounds of appeal. Consequently, arguments must be confined to issues. Arguments not related or relevant to the issue under consideration would be discountenanced. A look at the arguments canvassed by the Appellant on this issue shows they are not related or relevant to answer the question whether the Court of Appeal was right in upholding the alternative award. Arguments smuggled in, apparently to enhance counsel submissions on an issue would equally be overlooked if it is irrelevant to the issue.

The Appellants contention is that the Respondents argument on its issue 1 cannot extend beyond Ground 1 of the Grounds of Appeal to other Grounds of Appeal from which its issue 1 was not distilled; and that all his arguments on issue 5

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distilled from the said Grounds of Appeal are therefore, admitted or conceded by the Respondent.

It is trite law that grounds of appeal represent the complaints of an Appellant against the decision of a Court, and the Appellant, who raised the grounds of appeal, is at liberty to abandon any of the grounds on which he predicates his appeal or withdraw any ground – Araka V. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 SC.

Alternatively, where an Appellant does not formulate an issue in his brief to cover a ground of appeal, that ground of appeal would be deemed to be abandoned, even where arguments have been proffered on same.

In this case, the Appellant argued that the Respondent having not formulated any issue from Grounds 2, 3 and 7 of the Grounds of Appeal, which he had raised against the decision of the Court below, is deemed to have abandoned or conceded the said Grounds to him. But he also cited authorities wherein this Court reiterated the well settled principle that arguments on appeal are based on issues distilled from grounds of appeal, and not on the grounds of appeal – Onowhosa v. Odiuzou (supra), Orji v. Zaria Industries Ltd. (supra).

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If that is the case, why would the Respondent be deemed to have abandoned or conceded the said Grounds of Appeal to Appellant

What is important are the issues, and a Respondent has three options thereto: to adopt the issues formulated by the Appellant; give the Appellants issues a slant in favour of his side of the case; or formulate his own issue, however, the issue so formulated must be derived from the Grounds of Appeal raised by the Appellant – see John v. State (2016) 11 NWLR (Pt. 1523) 191/202 SC. The Appellant is therefore, the owner of the Grounds of Appeal; the Respondent has no business conceding the said Grounds of Appeal to the Appellant.

What is more, I have scrutinized the submissions made by the Respondent under its issue 1, which covers the Appellants issue 5, and I cannot fathom what the hullaballoo is all about. The Appellant proffered similar arguments while addressing his issues 1 & 5, thus his contention that the said paragraphs in the Respondents brief are incompetent on that ground, is misconceived and lacks merit.

In murder cases, the burden lies heavily on the Prosecution

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to prove the three elements of the offence beyond reasonable doubt – that the deceased died; that the death of the deceased was caused by the Accused; and that the Accused intended to either kill or cause the deceased grievous bodily harm. The three elements must co-exist at the time, if not, the Accused is entitled to be acquitted of the offence – Asuquo V. State (2016) 14 NWLR (Pt. 1532) 309 SC.

In this case, the fact that the deceased died is not in question; the bone of contention is whether it was the Appellant that caused the death of the deceased. On this element, the Court below held

The law is that a Defendant takes his live victim as he finds him. The Appellant met the deceased alive. It was after the Appellant beat the deceased and left him that the deceased was discovered dead some few hours of the same day. So I agree with the Respondents learned counsel that the death of the deceased was traceable to the physical assault by the Appellant on the deceased, therefore it did not matter whether the deceased, who was still alive at the time the Appellant physically assaulted him, had some bruises on him before the assault. So much

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on that segment of the case. PW2 gave eye/ear witness account. on how the Appellant said he would kill the deceased if he did not produce his motorcycle before he proceeded to beat the deceased, who was found in a gutter on the point of death and died on the same day of the beating by the Appellant. There was also the eye witness evidence of PW4 – – on how Appellant beat the deceased and knocked his head on a car and dragged him to a gutter where he left the deceased on the point of death and that the deceased was confirmed dead on the same day of the beating by the appellant. Both PW2 and PW4 stood their ground under cross-examination. The death of the deceased was, therefore, inferable from the beating inflicted on him by the Appellant on that day. The cause of death of deceased from the said beating by the Appellant was accordingly established, showing the ingredients of the offence of murder – death of the deceased caused by beating by the Appellant – were proved by the Respondent, as rightly held by the Court below.

But the Appellant argued under issue 1 that both Parties agreed that before he came into the scene and or in contact

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with the deceased, the deceased had suffered severe injuries. As he put it in his brief-

In fact, so severe were the injuries that the deceased had suffered that he could no longer talk. The condition of the deceased in the early morning of Sunday 30/7/2006 before the alleged beatings of the deceased by [him] was aptly captured by PW4, Romoke Adeola, in her statement to the Police dated 3/8/2006, Exhibit A10 as follows –

In the early morning of Sunday 30/7/2006, myself and the whole people in the area saw Sule m with wounds on his hands and faces (sic), and he could not talk. The people in the area were talking to him but Sule m could not respond.

Simply put, before [he] came into the scene to allegedly beat Sule, Sule had been so badly and fatally wounded that he could no longer talk and was clearly at the verge of kicking the bucket. In other words, though he was alive, but he was as good as dead since he could no longer talk and even when people spoke to him he could not respond.

The Appellant reiterated this line of argument at every turn that in view of PW4s evidence in Exhibit A10, the severe

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injuries suffered by the deceased earlier were capable of resulting in his death, thus, only medical evidence would determine whether he died as a result of the previous injuries he sustained before he came into the scene or he died as a result of the alleged beatings he received from him.

He submitted that since the Court below is neither skilled nor experienced in pathology or morbid anatomy and having not had an opportunity to examine the corpse, its position on cause of death was a resort to speculation based on mere suspicion – Opara v. State (2006) 9 NWLR (Pt.986) 508, Ahmed v. State (2001) 18 NWLR (Pt. 746) 622 and Igabele v. State (2006) 6 NWLR (Pt. 975) 100 cited.

He argued, citing Edoho v. State (2010) 14 NWLR (Pt. 1214) 651, that by virtue of Exhibit A10, there is a possibility that the deceased may have died of the injuries that he sustained earlier; that it is only medical evidence, which can satisfy the requirement that he caused the death of the deceased to the exclusion of other possibilities, therefore, the Respondents failure to tender any medical evidence as to the cause of the death of the deceased is

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fatal to its case.

He made the same point under his issue 3 – whether the Court below was right in applying the principle that an Accused must take his victim as he finds him. He argued that where there is a possibility that the deceased could have died of other causes other than the said physical assault, the principle that an accused takes his victim as he finds him does not apply; and that in this case, where it is clear from Exhibit A10 that the deceased sustained some injuries before he came into contact with him, then in the absence of proof by medical evidence that the deceased died as a result of his physical assault, the application of the said principle was prejudicial to him.

As to his issue 5, which questions whether from the facts and circumstances of this case, the Court below was right to affirm his conviction for the offence, he repeated, adopted and relied upon all his arguments in issues 1 to 4. He also argued that the mountain of serious doubts as to the cause of the death of the deceased ought to be resolved in his favour, citing Igago v. State (1999) 6 NWLR (Pt. 608) 568 and Almu v. The State (2009) 10 NWLR (Pt 1148) 31.

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He submitted that another reason why the Court below erred is because contradictions, inconsistencies and discrepancies in the evidence of PW1, PW2, PW3 and PW4 related to material facts; that in Exhibit A10 dated 3/8/2006 when facts were fresh in her memory, PW4 painted a different scenario, which was the state the deceased was in before he came to the scene on 30/7/2006; but on 15/6/2009, PW4 somersaulted and gave a different testimony on the condition of the deceased before he came into the scene; that it is settled that where a witness makes a statement inconsistent with his testimony, such testimony is to be treated as unreliable – Attah v. State (2009) 15 NWLR (Pt. 1164) 284; and that in the light of inconsistencies in the statement and testimony in open Court, her testimony is unreliable.

It is his contention that the Court below believed and heavily relied on the said evidence of PW4, as same subsequently became the platform upon which his conviction and sentence was affirmed, whereas, the proper approach for the Court to take is to resolve the said doubts created by the unreliable evidence of PW4 in his favour – Akindipe v. State (2008)

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15 NWLR (Pt.1111) 550. He also submitted that the Respondent did not prove all the ingredients of the offence of murder beyond reasonable doubt because in the absence of any medical evidence to establish an actual cause of death, it is doubtful that he caused the death of the deceased since the deceased had prior to his encounter with him been seriously and fatally injured.

The Respondents position is that the Court below was right to hold, without medical evidence, that the death of the deceased was traceable to the physical assault carried out by the Appellant, and it referred this Court to the provisions of Sections 308 and 311 of the Criminal Code Law Cap. C17, Vol. 2 Laws of Lagos State, 2003. Section 308 of the said Criminal Code Law of Lagos State provides-

Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatsoever is deemed to have killed that other person.

Section 311 of the same Criminal Code Law further provides that

A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is laboring

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under some disorder or disease arising from another cause is deemed to have killed that other person.

It argued that the Appellant misconceived the position on proof of cause of death; that is settled that whilst a medical report or a postmortem report is vital, it is not in all cases that the report is required to establish cause of death, and this Court has held that a Court can rightly infer cause of death from surrounding circumstances, citing Emwenya v. A-G. Bendel (1993) 6 NWLR (Pt. 297) 29 SC, Babuga v. State (1996) 7 NWLR (Pt. 460) 279 SC, Oforlete v. State (2000) 12 NWLR (PT. 681) 1, and Ben V. State (2006) 16 NWLR (Pt. 1006) 582; and following the eye-witness account of PW2 and PW4, the chain of events was unbroken and direct, so this is a case where the Lower Courts were right to ascribe the cause of the death of the deceased to the acts of the Appellant – Section 311 of the Criminal Code Law.

On whether the Appellant intended to kill or cause the deceased grievous bodily harm, it referred to the evidence of PW2 and PW4, and citing Haruna v. A.-G., Fed. (2012) LPELR-7821 (SC) and Shazali v. State (1988) 12 SC

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(Pt. II) 58, it submitted that notwithstanding the denial of the Appellant at the trial, the identification and the eye-witness testimonies of PW2 and PW4 were so direct and conclusive in itself that they could not have been ignored by any Court of law.

On issue 3, the Respondent cited Omonuju v. State (1976) SC 1, and argued that Appellant cannot simply allege or expect this Court to speculate that the deceased had other injuries, which could have caused his death, without having placed cogent evidence thereof at the trial Court; that its position is that his continuous beating of the deceased directly led to his death, thus, in rebuffing this assertion, Appellant should have placed contrary evidence before the Court, and since he failed to, he cannot say that the deceased died from other unidentified causes that exist in the realm of speculation; and that by Section 311 of the Criminal Code Law, the Appellant having beaten the deceased until he slumped, at the very least hastened the death of the deceased, and so, he can be held to have killed him.

As to issue 4, it cited the following authorities on fair hearing – INEC v. Musa (2003) 3 NWLR (Pt. 806) 72 SC and

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Ejeka v. State (2003) 7 NWLR (Pt. 819) 408, and argued that to suggest that the Appellant was denied fair hearing by the Court below will, in the words of Tobi, JSC, in Ejeka v. The State (supra) be merely cosmetic and vain.

It also cited Oguntolu v. State (1996) 2 NWLR (Pt. 432) 503 SC, where this Court held that while a defence to which an Accused is entitled to should be considered, however, stupid or unreasonable, for whatever it is worth, it is not the role of any Court to formulate or invent a defence for an Accused where on a consideration of the totality of evidence none is open or available to him, and argued that suggesting, as the Appellant had done, that this Appeal should be allowed because of an alleged contradiction between Exhibit A10 and the oral testimony of PW4, is tantamount to shutting ones eye to the overwhelmingly direct evidence it led upon which the lower Courts rightly convicted or affirmed the conviction of the Appellant. It submitted that the evidence was so overwhelming that it could not have been wished away on the basis of untested contradiction in the testimony of PW4 and Exhibit A10; and

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that assuming without conceding that there was a contradiction, the said contradiction by PW4 does not destroy or collapse its case against the Appellant.

It also argued that the Court below was also right that based on Section 251(1) of the Evidence Act read with its Sections 200 to 204, the offence of Murder does not require corroboration, and citing Igbo v. State (1975) 9-11 SC (Reprint) 80, Mohammed v. State (1991) 5 NWLR (Pt. 192) 438, Shurumo v. State (2010) 19 NWLR (Pt. 1226) 73; that even if PW4s evidence is contradictory, the evidence of PW2, an eye and ear witness, is still cogent, direct, unshaken and links the Appellant incontrovertibly to the assault and death of the deceased.

In his Reply Brief, the Appellant repeated the same arguments as in his main brief that the deceased had been brutally injured before he got there, therefore, the only way the Respondent could prove that he caused the death of the deceased is by medical evidence.

But it is well-settled that it is not the role of a reply brief to improve on the main brief by repeating arguments therein but rather to reply to any new points, which are substantial in

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the Respondents brief – Ogolo v. Fubara & Ors (2003) 11 NWLR (Pt. 831) 231 SC. In this case, stripped of the arguments that violate this principle, the Appellants contention in the Reply Brief is that Exhibit A10 contains evidence, which avails him of a good defence, and in criminal cases, a Court is duty bound to consider any defence that is available to an Accused; no matter how improbable, stupid or ridiculous the defence may be, citing Galadima v. The State (2012) 18 NWLR (Pt. 1333) 610 at 632 SC.

He also argued that the essence of the Respondents arguments in issue 4 borders on principles of fair hearing with respect to giving a party an opportunity to be heard and the fact that corroboration is not required in proof of murder, which is not the point in issue; that the issue is the fact that the Court below had a duty to consider Exhibit A10 in all its ramifications and not ignore it to his detriment; that ignoring its effects on his case is a breach of his constitutional right to fair hearing; and that failure to consider possible defences for an accused leads to miscarriage of justice – Usufu v. State (2007) 1 NWLR (Pt. 1020) 94 and Ahmed v. State (1999) NWLR (Pt. 612) 641.

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Clearly, from the above arguments/submissions, the key issue in this Appeal is whether the Prosecution proved that the Appellant physically assaulted the deceased, which thereby caused his death, and subsumed there-under is the issue of whether medical evidence was necessary to establish the cause of the death of the deceased.

The Prosecution called four witness, and it tendered fourteen Exhibits, including two pieces of broken sancrete concrete block as Exhibits A1 & A2; photographs of the deceased as Exhibits A3-A9; and the Statement of PW4, Miss Romoke Adeola, as Exhibit A10. The summary of the evidence of the four witnesses are as follows –

– PW1, P. C. Ibrahim Abdullahi, of Olosan Police Station, Mushin, Lagos, testified that the case was reported on 1/8/2006 at about 3-13 hours, and a team went to the scene where they met the deceased lying down beside the gutter, and the Appellant lying down on top of a bench. They took pictures and arrested the Appellant. They later arrested the second Defendant and took them to the Police station.

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They first of all took the corpse to LUTH, but since the family had no money to pay, and he was a Muslim, the D.C.O. directed them to go and bury the deceased. He transferred the case to Panti on 3/7/2008, along with the case file.

– Pw2, Yekini Ishola, one of those, who reported the case to the Police, said he was in his room at the address given as the scene of the crime in the early hours of 1/8/2005 between 12.30 a.m. and 1 a.m. when he heard I will beat you if you dont find my Okada. He went outside and saw the Appellant, known as Baba Abu and the second Defendant beating the deceased. He begged them to leave him and when they did not answer him, he went back inside his room to sleep. Around 2 a.m., one Tunde came to call him that the Defendants wanted to kill Sule O. He went outside and saw the deceased lying down beside the gutter. They went to the Olosan Police Station to report and came back with eight Policemen with their patrol van, and by the time they got there, the deceased was already dead. They met the Appellant there but the second Defendant had run away to Toyota, where he was arrested.

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They were given papers to the Mortuary but they buried him that day.

– PW3, ASP, Anthonia Udukpoh, who was then at State C.I.D, Panti, said she met the Appellant on 7/8/2006, when two of them were transferred from Olosan Police Station to SCID. They conducted the investigation, and the Defendants made Statements voluntarily after questions were put to them and they signed. She said their Statements were recorded for them by the IPO because they cannot write. The case file contained photographs but they could not obtain the negatives because they were told that the photographer had moved. They saw blood stains at the scene which she identified in Exhibit A9, showing splashes of blood on the doors of a shop in a house identified as the scene of the crime.

PW4, Romoke Adeola, testified that the Appellant asked the deceased to pick him up but by the next morning on Saturday, they woke up to see the deceased with arms with bruises and his mouth swollen; they asked him what happened but he refused to answer. He spread a mat in front of the house to sleep. When the Appellant came, he asked him what happened but the deceased told him to exercise

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patience but the appellant did not listen and strapped the deceased. The co-accused also slapped the deceased. The Appellant beat him and said he should give him his money. She also testified as follows in her evidence in chief-

In the night, I went outside because there was no light, Baba Abu took Sule and put him on his Okada and said he would take him to Akala and there he would tell the truth or die. Sule could not talk again. Then he said (sic), he then knocked his head on a car and Sule started crying my head o, he took his Okada to where Sule was and put Sules leg on the side of his Okada to burn his leg, but Sule could not talk again. He then dragged him to the gutter and my child started saying they have killed Sule and when I tried to intervene, he (Appellant) started throwing stones at us and we had to run inside. The two of them were beating him but when Taye saw that Sule was almost dead, he ran away but Baba Sule continued to beat Sule, Before I entered my house, I shouted, my child Shouted that he had killed Sule and he threw a stone at us. The next morning – – I heard that Sule was dead.

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The Appellant made heavy weather of the statement of PW4 to the Police in Exhibit A10 dated 3/8/2008, where she stated as follows

In the early morning of Sunday 30/7/2006, myself and the whole people in the area saw Sule m with wounds on his hands and faces (sic), and he could not talk. The people in the area were talking to him but Sule m could not respond.

However, the full statement of PW4 in the said Exhibit A10 reads-

On Saturday, 29/7/2006, Baba Abu [Appellant] told Sule (the deceased) to come and pick him up from his place of work but Sule refused to go. When Baba Abu returned from his place of work in the night he called Sule asked him why he refused to come and picked (sic) him, Sule told Baba Abu that he was tired and that he should not be annoyed. But Sule continued to begged (sic) him with god of iron. Baba Abu had to replied (sic) Sule that it is that god of iron he called that will kill him. In the early morning of Sunday 30/7/2006, myself and the whole people in the area saw Sule with wounds on his hands and faces (sic), and he could not talk. The people in the area were

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talking to him but Sule could not respond, but in the night of 30/7/2006, one man called Taiwo started to beat Sule, he was asked the reason why, he said replied (sic) that is Sule their relation brother, immediately Taiwo he put Sule on his Okada and drove Sule to Akala in Mushin, where he went to beat him again by the time Taiwo brought Sule back around 0100hrs, Sule could not see with his eyes again but he still manage to hold a bench. There Baba Abu have to pushed (sic) Sule and he hitted (sic) his body on a Paragon bus. Sule was still begging him that he could not see with his eyes again instead of Baba Abu (illegible) Sule, he went ahead hitting Sule, as he was hitting him there Sules leg break. It was block Baba Abu used in breaking one of Sules leg. Sule was shouting that his leg had already broken but Baba Abu persisted in using the block in hitting Sule as he was lying on the floor. One brother Ademola was begging him to leave Sule but he refused immediately brother Ademola left the place with annoyance to his house – – Baba Abu now climbed on the paragon bus where Sules body was lying helplessly and continue to jump on Sule.

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Sule shouted that he had not tested (sic) anything since morning and that was his last word before he gave up the ghost, I then waked my daughter to let us go to our house, one of my daughters, who heard the cry of Sule told Baba Abu not to kill brother Sule, immediately Baba Abu heard the statement, he picked up a stone and stoned myself and my children, I then pushed my children inside the house and I remain. Suddenly Taiwo came out again and asked how far has he gone in the beating. Where Sule was sleeping, Taiwo brought out a pure water and stated pouring it on Sule, Baba Abu told Taiwo that did you want Sule to wake up, Taiwo replied that he want him to drink water to heaven. Baba Abu tried to draw Sule into a gutter (sic). Baba Ibeji now went to inform his people before the arrival of the Police, Baba Abu was arrested in that same spot where he was sleeping, brother Ademola was arrested in his house – – he did not know about the case at all.

The Appellants contention is that PW4s statement in Exhibit A10 is inconsistent with her oral testimony in open Court, and the position of the law is that where a witness makes an

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extra-judicial statement, which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence on which a Court can act – see Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1 at 25/26, wherein Rhodes-Vivour, JSC, explained –

This rule developed in the interest of justice to resolve conflict between previous statement and later evidence for the Prosecution or defence. The object was to ensure that the evidence relied on by the Court is credible. The Party, who retracts is always afforded the opportunity while in the witness box to explain the inconsistency – – The inconsistency rule is restricted only to the evidence of a witness, who made an extra – judicial statement, which was in conflict with the evidence given at trial. The previous statements are not evidence, which the Court can act on, and the evidence given at the trial is taken by the Court as unreliable.

In this case, the Court below held thus on the said inconsistency

The cross-examination of Pw4 – did not draw specific attention to portion of Exhibit A10 that was intended to contradict her testimony for her response or

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explanation, therefore, the contention of the Appellant that PW4 gave evidence inconsistent with her statement to the Police in in Exhibit A10 appears untenable and contrary to Section 232 and Section 233 (c) of the Evidence Act, 2011 – However, the evidence of PW4 both in examination in chief and under cross-examination – did not admit that the deceased had severe injuries on his body capable of killing him prior to encounter with the Appellant. The testimony of PW4 merely stated the deceased had bruises on him or rather on his toe before he met the Appellant to quote PW4s evidence under cross-examination by Appellants learned counsel on page 92 of the record.

When he first came, there were only bruises on him, but it was when Baba Abu beat him that blood started to come out of his body.

PW4 responded under cross-examination by 2nd Defendants counsel

No, I did not say he sustained serious injuries, only his toe was bruised The wound on his toes was fresh.

Pw4 was not confronted with Exhibit A10, her statement to the Police, by defence counsel to

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contradict the pieces of testimony given by her.

The said pieces of evidence were accordingly properly and appropriately used by the Court below to hold that the deceased had minor injuries on him that were not mortal fatal to endanger his life prior to his encounter with the Appellant on the fateful day. The law is that a Defendant takes his live victim as he finds him. The Appellant met the deceased alive. It was after the Appellant beat the deceased and left him that the deceased was discovered dead some few hours of the same day. So I agree with the Respondents learned counsel that the death of the deceased was traceable to the physical assault by the Appellant on the deceased, therefore it did not matter whether the deceased, who was still alive at the time the Appellant physically assaulted him, had some bruises on him before the assault.

It is an elementary principle that the Court, the Parties and Counsel are bound by contents of the record of appeal, which is presumed correct until the contrary is proved; no Court has jurisdiction to go outside the record to draw conclusions that are not supported by it –

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Texaco Panama Inc. v. S.P.D.C. Ltd. (2002) 5 NWLR (Pt.749) 209 SC; Garuba v. Omokhodion (2011) 15 NWLR (Pt.1269) 145. In other words, no arguments/submissions in a Partys brief, howsoever ingenious, can make an iota of difference to the contents of a record of appeal.

In this case, as the Court below observed, PW4 never said that the deceased had such severe injuries on his body that was capable of killing him before the Appellant assaulted him. There is no where in the Record that the Parties agreed that he suffered such injuries, as submitted by the Appellant in his brief; not to mention agree that the deceased had been so badly and fatally wounded that he could no longer talk and was clearly at the verge of kicking the bucket.

I reproduced the full statement of PW4 in the said Exhibit A10, and it is clear that after the statement, which the Appellant highlighted, PW4 went on to narrate how the Appellant beat the deceased later. She was not cross-examined by learned counsel for the Appellant as to the fact in issue – whether or not he had assaulted the deceased.

As Rhodes-Vivour, JSC, observed in the case of

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Simon v. State (2017) LPELR-41988 (SC), when a witness testifies on a material fact in controversy in the case, the other Party, if he does not accept the witness testimony as true, should cross-examine him on that fact or at least show that he does not accept the evidence as true. Where, as in this case, he fails to do either, the Court can take his silence as an acceptance that the Party does not dispute the fact. In this case, the defence counsel did not cross-examine PW4 on the material fact as to whether the Appellant came there to beat the deceased later.

While testifying in his defence, the Appellant put himself at the scene of the crime, but denied having anything to do with the death of the deceased; rather he said that when he went looking for the deceased over the motor cycle, he saw the deceased where he was sleeping and saw that he had been brutally beaten. He then said-

I asked him what happened and he said he had a fracas with commercial drivers, who beat him up and I asked where the machine was and where they had the fight. He said they had a fight at Iponri and I called for Taye who came and he asked what happened to him and he explained again.

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I offered that we should take him to the hospital but he said he would soon be alright as he could not stand up. I saw that he was incoherent as if he had mental problem. So I told Taye – to assist him to take him to the hospital with his own machine and I left them and went to my work.

Obviously, the Appellants argument that the deceased had been so badly and fatally wounded earlier in the day, does not add up with his testimony that when he found the deceased later on that night, the deceased was able to narrate all those detail to the Appellant. As a follow up to what the deceased told him, he further said that-

Later, Taye came to me and told me that after he went to work for a while and on getting back to where Sule was, he didnt see him again. So I said Taye should carry me to that Iponri and we went to the Police station and made my report and reported the incident. They said there was nothing like that in their station and we also didnt see any Okada.

The Appellant is, therefore, not disputing the fact that his attention was focused on the motorcycle, which the

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deceased failed to park where it was agreed that it should be parked. He stated so clearly

On July 31st, a Sunday and there was a place I told him to be parking the machine. But I did not see him on that day and I told people around that I did not see the machine, where he was supposed to park. On Monday, Demola and I saw him where he was sleeping on Ogidan Street.

PW2 and PW4 gave eye-witness accounts of how the Appellant was so enraged by the missing motor cycle that he beat the deceased, and the evidence of PW1 attests to the fact that the Appellant was arrested at the scene of the crime after he assaulted the deceased.

As the Respondent rightly submitted, even if the testimony of PW4 is discountenanced for being inconsistent with her Exhibit A10, there is sufficient evidence, direct and unbroken, to establish that the Appellant did, in fact, beat the deceased over the motor cycle. The evidence of PW2 stands firmly, and the evidence of one witness is sufficient to ground a conviction – Mohammed V. State (supra).

The question now is whether the Prosecution had to present a medical report to establish that it was the said assault that

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caused the death of the deceased. The Court below concluded as follows-

That proof of death may be inferred from the act of an accused without medical evidence where the deceased was attacked by the accused and died on the same day from the attack is illustrated by the cases of Bakuri v. State (1969) NMLR 163, Adamu v. Kano Native Authority (1956) 1 FSC, Uyo v. A.-G., Bendel State (supra) – The solid eye witness testimonies of PW2 and PW4 were therefore, rightly accepted by the Court below as proof beyond reasonable doubt of the killing of the deceased (by beating) by the Appellant – – In light of the fact that the Court below saw the witnesses and properly evaluated their evidence based on their credibility, which does not run contrary to the tide/trend of evidence on the pointed record, I am slow to interfere with the said findings of fact.

The Court below, per Ikyegh, JCA, who wrote the lead Judgment, is absolutely right. The law says that where cause of death is obvious, medical evidence ceases to be of any practical or legal necessity – see Ben V. State (supra), Oforlete V. State (supra), and Babuga v. State(supra),

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cited by the Respondent, where Onu, JSC, observed-

Be it noted that it is not an immutable requirement of the law that the cause of death must be proved by medical evidence. All that is required to be proved is that the death of the deceased – – was the direct result of the act of the Accused to the exclusion of all other reasonable causes.

In this case, the timeline speaks volume; PW2 heard the Appellant tell the deceased that he would beat him if he did not find his Okada (the motor cycle). This was around 12.20am and 1.am of 1/8/2006. PW2 came out and saw him beating the deceased. He begged him to leave the deceased but he refused and PW2 went back to sleep, only to be told at 2am that the Defendants want to kill the deceased. He reported to the Police and then came back with eight Policemen.

PW1, one of the Policemen, testified that they got the report at about 3.13 hours of that night, and went to the scene where they met the deceased lying down dead beside the gutter, and arrested the Appellant, who was found lying down on a bench. PW1 was not cross-examined as to where and when he was arrested that night.

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The case was transferred to S.C.I.D, Panti, and PW2 testified that during investigations, they saw some stains of blood where the deceased was killed, and the two pieces of blocks used to stone the deceased was admitted in evidence through her as Exhibits A1 & A2.

Pieced together, a medical report as to cause of death was not vital in this case because, as this Court held in Ben v. State (supra), where a man is attacked with a lethal weapon and dies on the spot, it can properly be inferred that the wound inflicted caused death.

As to the said earlier injuries, it is settled, as the Court below rightly held, that the Defendant takes his live victim as he finds him. The classic case that gave rise to this saying is Dulieu v. White & Sons [1901] 2 KB 669 (called the thin-skull case), where the Judge said:

If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferers claim for damages that he would have suffered less injury or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.

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In other words, the Defendant is not entitled to make assumptions about the victim. Any characteristics, which the victim happens to have must be taken into account in the Judgment, whether or not, the Defendant could reasonably have known about them.

And, as the Respondent submitted, Section 311 of the Criminal Code Law of Lagos State, where the offence was committed, states clearly that a person, who does any act, which hastens the death of a person, who has a disorder or disease arising from another cause, is deemed to have killed that other person. The word hasten means to make something happen, sooner or more quickly” – see Cambridge English Dictionary. In this case, the Appellants defence that the deceased was already injured that night cannot avail him.

The timeline says it all; the sequence from the beating of the deceased by the Appellant to his death immediately afterwards and arrest of the Appellant at the scene of the crime indicates that it was the assault by the Appellant that caused the death of the deceased.

Before I conclude, it is necessary to point out that the issue

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2, touching on the case of the other Defendant, is out of the question in this Appeal because the Respondent clearly stated in its brief that the acquittal of the Co-Accused is also being challenged before this Honourable Court. In the circumstances, and so as not to prejudice a pending appeal on this same matter, I will not go into that issue.

In the final analysis, this Appeal lacks merit and it is dismissed. I affirm the decision of the Court below upholding the Judgment of the trial Court, including the Appellants conviction and sentence.

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SC.384/2013