Bashiru Popoola V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

This is an appeal from a decision of the Court of Appeal, lbadan Judicial Division upholding the conviction of the appellant by an lbadan High Court for an offence against Section 319 of the Criminal Code.

For the sake of clarity, the section under which the appellant was charged and convicted may be set out as follows:-

That you Bashiru Popoola on or about 8 April, 2007 at Alakia Area, Egbeda lbadan murdered Solomon Adeyemi and thereby committed a Criminal Offence punishable under Section 319 of the Criminal Code Law Cap 38, Laws of Oyo State, 2000.

On 21 May, 2008, the appellant pleaded not guilty to a one count charge of murder contrary to Section 319 of the Criminal Code. lshola J. Presided.

In the course of trial, the prosecution called six witnesses. The appellant testified in his defence. He did not call any witness. A total of sixteen documents were tendered and admitted as exhibits, marked: Exhibits A B C D E F- F4 G3 ;H.

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Written addresses were adopted by both sides on 1 June 2016, and on 8 October, 2010, the learned trial judge found the appellant guilty as charged: the concluding part of the judgment reads:

In the result that I hold that the prosecution through credible evidence has proved its case against the accused person beyond reasonable doubt. I hereby find the accused person guilty of the murder of Solomon Adeyemi and he is accordingly convicted.”

Dissatisfied with the judgment of the trial Court the appellant lodged an appeal. It was heard by the Ibadan Division of the Court of Appeal. That Court affirmed the conviction and sentence of death passed on the appellant by the trial Court. The concluding paragraph of the judgment of the Court of Appeal reads:

“l am satisfied that the trial judge was right in his judgment in finding the appellant guilty of the murder of the deceased. I hereby affirm the judgment and therefore dismiss the appeal.”

This appeal is against that judgment. Briefs of argument were filed and exchanged by counsel.

Learned counsel for the appellant filed an appellants brief

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on 23 January, 2014, which was deemed properly filed and served on 28 January, 2016. A reply brief on points of Law was filed on 8 February 2017, but deemed properly filed and served on 30 November, 2017.

Learned counsel for the respondent filed the respondent’s brief on 12 January, 2017. The brief was deemed properly filed and served on 30 November, 2017.

In the appellant’s brief, three issues were formulated for determination. They are:

1. Taking into consideration the settled fact that PW6 obtained Exhibits F3-F4 from the appellant through the aid of an interpreter and coupled with the failure of the prosecution to call the said interpreter, would it not run contrary to law to retain Exhibits F3-F4 on record notwithstanding the failure of the appellant’s counsel to object to its admissibility and the failure of the two Honourable Courts below to expunge same from the record.
2. Taking into consideration the tendering of Exhibits C and D by the prosecution, the exaggeration in the testimonies of PW1 and PW2 coupled with the failure of the prosecution to investigate Exhibits C and D, is

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it not obvious that at the close of the case of the prosecution, the facts on record are consistent with the guilt as well as the innocence of the appellant.

3. At the close of evidence led by the parties, was it not obvious that the defence of accident put up by the appellant was duly corroborated by the prosecution such that the defence of accident ought to have availed the appellant for the offence of murder.

Learned counsel for the respondent formulated two issues for determination.

1. Whether from the circumstances of this case and the settled law, Exhibits F3-F4 were rightly admitted in evidence and acted upon by the two lower Courts, and if not would their rejection impact the conviction in any way
2. Whether the defence of accident or provocation could avail the appellant the circumstances of this case.

I have examined the issues formulated by both sides, I am satisfied that Issue No.1 of the appellant is not a live issue.

It is long settled that Courts should not spend precious judicial time engaging in an academic exercise that is best left for the law faculty. Judges are to decide live Issues.

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Issues that once decided would result in an acquittal or discharge. See Oyeneye V. Odugbesan (1972) 4 SC, p. 244, Nkwocha v. Gov of Anambra State(1984) 1 SCNLR p. 634, Bakare v. A.C.B. Ltd (1986) 3 NWLR (Pt. 26) p. 47, Bhojwani v. Bhojwani (1996) 6 NWLR (Pt. 457) p. 663, Adelaja & Sons v. Alade & Anor (1999) 6 NWLR (Pt. 608) P. 544.

Exhibits F3 -F4 are statements of the appellant. According to learned counsel for the appellant they were obtained through the aid of an interpreter and since the prosecution did not call the interpreter before they were tendered as exhibits they ought to be expunged from the Record. This is sound reasoning and the correct position of the law.

For Exhibits F3 F4 to be admissible under the provisions of Section 91 (a) and (b) of the Evidence Act the statement must be tendered through the interpreter and, or the person who recorded the statement. It must be tendered by a person who can give direct oral evidence of the contents of the document. Where the interpreter is not called and the statement admitted in evidence as an exhibit, the statements would be documentary hearsay and inadmissible.

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No probative value can be attached to such statement. See FRN v Usman (2012) 8 NWLR (PT.1301) p.141. Alahassan & Anor v. Ishaku & 2 Ors (2016) 1-3 SC (Pt. ii) p. 21. Elemide v. Obawunmi (1964) 3 NSCC p. 148.

Would this reasoning above improve the appellant’s appeal

Evidence led by PW1 and PW2 eyewitnesses to how the appellant killed the deceased were relied on by the trial judge, His lordship said:

“………..I watched the demeanour of PW1 and PW2 when they gave evidence, they impress me as witnesses of truth. I prefer their own version of the events that led to the death of the deceased on the night of 8 April, 2007 to that of the accused person.

In the circumstances, l hold that the prosecution has proved beyond reasonable doubt that the accused person hit the deceased with an iron rod and that act of the deceased caused the death of the deceased..”

His lordship continued;

“The law is settled that a man is presumed to intend the natural consequences of his act. I am of the considered view that hitting the deceased on the head with the iron rod, the accused person must

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have intended to kill him or to cause him grievous bodily harm.

It is this clear that it was the eyewitness testimony of PW1 and PW2, to the effect that the death of the deceased was caused when the appellant hit him on the head with an iron rod.

Exhibits F3 and F4, statements of appellant were not relied on. The Court of Appeal also affirmed this finding of fact by the trial Court. The appellants chances of an acquittal are not improved if this Court decides that Exhibits F3 – F4 are inadmissible evidence. This is so, since the contents of the exhibits were not relied on in convicting the appellant. So it would amount to a waste of time considering the appellant’s issue No 1 in the light of all that I have been saying. The appellant’s issues 2 and 3 shall be considered. They are renumbered 1 and 2.

At the hearing of the appeal on 30 November, 2017, learned counsel for the appellant, M. Adetunbi esq., adopted the appellant’s brief filed on 23 November, 2014, but deemed duly filed and served on 28 January, 2016 and Reply brief on point of law filed on 8 February, 2017 but deemed duly filed and served on 30 July 2017. He urged

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the Court to allow the appeal.

Learned counsel for the Respondent, O. Abimbola esq., adopted respondent’s brief filed on 12 January, 2017 but deemed duly filed and served on 30 November, 2017. He urged this Court to affirm the decision of the Court of Appeal.

The facts as presented by both Courts below, which I completely agree with, are these; On or about the 8 of April, 2007, the appellant armed with a cutlass and an iron rod went to the house of Solomon Adeyemi (deceased).

On getting there, he called the deceased’s name repeatedly threatening to kill him. The deceaseds son and daughter were in front of the deceaseds house. They heard and saw the appellant.

An attempt by the deceased son to restrain the appellant was met with a violent rebuff. He struck him with the cutlass. Eventually the deceased came out of his house. The appellant hit him on the head with the iron rod. The deceased fell down and died. The appellant’s versions of events are different. According to him, on the day in question he went to the house of the deceased. He was not armed. He went there to confront the deceased on the allegation that he was having an affair with the deceased’s

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wife. On arriving at the deceased house, he saw the deceased’s children and his daughter-in-law. He called on the deceased name. The deceased responded saying that he had the nerve to come to his while having an affair with his wife. As the deceased was coming out of the house he fell down in the passage of the house, and hit his head on the cement floor and died. He left the scene immediately and ran for his life under a hail of broken blocks, stones thrown at him by children of the deceased.

The learned trial judge believed the version of the prosecution. The Court of Appeal agreed with the trial judge. There are thus concurrent findings of fact by the two Courts below that the deceased met his death after the appellant hit him on his head with an iron rod.

ISSUE 1

Taking into consideration the tendering of Exhibits C and D by the prosecution, the exaggeration in the testimonies of PW1 and PW2 coupled with the failure of the prosecution to investigate Exhibits C and D, is it not obvious that at the close of the case of the prosecution, the facts on record are consistent with the guilt as well as the innocence of the appellant.

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ISSUE 2

At the close of evidence led by the parties, was it not obvious that the defence of accident put up by the appellant was duly corroborated by the prosecution such that the defence of accident ought to have availed the appellant for the offence of murder.

Learned counsel for the appellant observed that there are two different versions of how the deceased died on 8 April 2007. He observed that the first version was that the deceased fell down, hit his forehead on the floor and fell and died. He referred to Exhibits C and D. He further observed that the second version was that the appellant hit the deceased with an iron rod on his head, and he fell and died instantly. He argued that the trial judge decided to pick and rely on the second version and convicted the appellant, an approach adopted by the Court of Appeal which was contrary to law. He submitted that the two versions are consistent with the appellants guilt and innocence, contending that the implication is that the appellant must be acquitted and discharged. Reliance was placed on Queen v. Anyiam (1961-1962) 2 NSC p. 41, Daniels v. State (1991) 8 NWLR (Pt. 212) p. 715.

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Learned counsel for the respondent did not respond to these submissions. In any case, since the issue is largely on whether there are inconsistencies in extra judicial statement and sworn testimony in Court, an issue that is easily resolved by examining the record, the omission to respond is not fatal, the Court is expected to examine in detail the Record of Appeal and resolve the issue.

The first version as to how the deceased died is made out according to learned counsel for the appellant by the testimony of PW3 and his extra judicial statement, Exhibit C, and the testimony of the appellant and his extra judicial statement, Exhibit D. While the second version as to how the deceased died, is made out by the testimonies of PW1 and PW2 and their extra judicial statements, Exhibit A and B respectively. The law is long settled that it is wrong for the prosecution and the Court to pick and choose which of two conflicting or contradictory accounts of an event to believe. See Onubogu v. State (1974) 9 NSCC p. 358, Nasamu v. State (1979) 6-9 SC p. 153, Arehia v. State (1982) 4 SC p. 78.

Where a witness made an extra judicial statement which is

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inconsistent with his sworn testimony on oath in Court and he gives no reasonable explanation for the inconsistency, the only option available to the Court is to regard his evidence as unreliable.

Where two or more witnesses are called by the prosecution in a criminal case, and one witness contradicts the other witness on a material point the prosecution is expected to show that the witness is hostile before the Court can be asked to reject the testimony of that witness and accept the evidence of another witness in preference for the evidence of the hostile discredited witness.

It is not allowed for the prosecution to pick and choose which of his witnesses he would be relying on, without satisfying the Court that one witness is a hostile witness in which case that witness is discredited and the other witness is accredited. If evidence is capable of two interpretations, it is long settled that the one favourable to the appellant must be adopted and such evidence must be legally admissible, evidence.

What are the two versions of how the deceased died The first version.

PW3 stated in Exhibit C, his extra judicial statement as

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follows:

“On the 8 April, 2007 around 8pm I was returning from Pegba village on getting home I met one Bashiru Popoola, one of the Iand lord of the area engaged in free for all fight with another landlord by name Mr. R Adeyemi now late, Mr. R. Adeyemi the deceased fell down, and fainted..

I was surprised to hear that Bashiru Popoola went to Mr. Ramoni Adeyemi’s house yesterday 8 April 2007 and started fighting with the deceased.

Bashiru Popoola is the appellant, PW3 met him in his (PW3’s house) house, that is after the fight. PW3 from the above statement, is clear did not witness the “fight.”

On oath in Court PW3 testified inter alia thus:

“………..I remember 8 April, 2007. On that day at around 8.00 p.m. when I arrived at my house, I met a lot of people in my house. I enquired what was the matter. I was told that Bashiru Popoola and R.A. Adeyemi were fighting. Bashiru Popoola is the accused person in the dock. Adeyemi is dead.

To my mind there can be no doubt whatsoever that PW3’s extra judicial statement and his sworn testimony are consistent. He said what he was told by unnamed persons

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as to how the deceased died. There is no inconsistency in his extra judicial statement and his sworn testimony.

The testimony of PW3 cannot amount to a version of how the deceased died. For the testimony of PW3 to amount to a version of how the deceased died the evidence led must be legally admissible on the material point.

That is to say PW3’s evidence on how the deceases died must be credible. In this case, the testimony of PW3 on the material point is hearsay, legally inadmissible evidence.

Exhibit D is the statement of the appellant that is evidence for the defence and not for the prosecution. Exhibit D cannot in the circumstances amount to one version of the prosecution’s case.

The only version available is the version relied upon by the trial judge and affirmed by the Court of Appeal. It is now important I examine that version to see if the extra judicial statements of PW1 and PW2 are inconsistent with their sworn testimony in Court. PW1’s extra judicial statement is Exhibit A. He said:

“………..I heard a voice shouting “Adeyemi” Oni ni ojo Iku re pe “meaning that Adeyemi today is the end of your life. When I look up I saw one man whose name

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is Bashiru Popoola. He carried iron rod on his right hand and hide cutlass in his body. He used his shirt to cover the cutlass. By that time my father was inside sleeping. When my father heard the voice he came out. Immediately my father came out from his room he met me outside when Bashiru Popoola was using cutlass to cut me……… when my father started pushing me inside, Bashiru Popoola used Iron to hit him on his head and my father shouted Oro oo! And fell down. He ran away.”

In his sworn testimony in court PW1 said:

……I remember 8 of April, 2007. On the day, I was at home with my wife, both of us were eating at the front of my house, suddenly we heard someone shouting “Adeyemi your time is up today” this time for you to die today”. Adeyemi is my father. He is now dead. The accused person killed my father. ………. I begged him that he should be patient. The accused person brought a cutlass and hit me with the cutlass. I cried out in pain and my late father who was already asleep at that time heard my shouts of pain, came out of the house and pushed me inside the house.

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The accused person brought out another iron rod and hit my father at the back of his head. My father fell down.

PW2 is PW1’s wife. Her extra judicial statement is Exhibit B. Relevant extracts runs as follows:

“………. On 8 April, 2007 at about 8.45 p.m. I was in front of my husband house together with my husband…….. when one Bashiru popoola emerged from nowhere and shouted unto the name of my husband father……..that he should come out of his room that today mark the end of his life. After his proclamation he assault my husband with cutlass…..

My husband father ….came from the room and hit him with lron on his fore head and immediately became unconscious and later taken to hospital where he later gave up the ghost……….”

In her sworn testimony in Court, PW1 said:

“…… When the accused person got to our house, he brought out a cutlass and an iron rod. My husband and I where outside……The accused person attacked my husband with the cutlass………….My father-in-law, as he came out, the accused person hit my father-in-law with the iron rod. My father-in-law

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fell down and we tried to revive him. All attempts to revived him failed……

PW1 and PW2 are eyewitnesses. On 8 April, 2007 at about 8 p.m. They were present and saw when the appellant, armed with an iron rod hit the deceased on his head. An act by the appellant that resulted in the death of Solomon Adeyemi (deceased).

It is obvious that the extra judicial statements of PW1 and PW2, Exhibits A and B are consistent with their sworn testimony on oath in Court.

The extra judicial statement of PW3, Exhibit C and his sworn testimony on oath in Court are consistent but not credible or Iegally admissible on the cause of death of the deceased, PW3 evidence is hearsay evidence and so inadmissible.

It must be abundantly clear now that there is only one version from the prosecution as to how Solomon Adeyemi died and that is the version relied on by the prosecution which is credible and the only legally admissible evidence on the material point. That version is the version told by PW1 and PW2 and it is the truth.

The other version is the version of the defence as told by the appellant. There is thus no conflict in the

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prosecutions evidence. I am further satisfied that the evidence on record for the prosecution is consistent with the guilt of the appellant especially the testimony of two eyewitnesses, PW1 and PW2. On the other hand, PW3 is not an eyewitness. His evidence is hearsay and so of no evidenciary value.

In the circumstances, there is only one version as to how the deceased died. He was struck on his head with an iron rod by the appellant and that is the version as told by PW1 and PW2, accepted by the trial Court, affirmed by the Court of Appeal, and further and finally affirmed by this Court.

DEFENCE OF ACCIDENT

Learned counsel for the appellant observed that the appellant put up the defence of accident but neither the trial Court or the Court of Appeal considered it. He argued that the appellant and the deceased were fighting consequent upon which the deceased fell down and fainted. He observed that the fight was not investigated, contending that if there was indeed a fight the appellant would be guilty of Manslaughter and not Murder. Reliance was placed on Thomas v State (1994) 4 NWLR (Pt. 337) P. 129

Concluding he submitted that the defence of accident

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is probable in the entire circumstances of this case.

Learned counsel for the respondent submitted that the test for the defence under Section 24 of the Criminal Code is whether the prohibited act was or was not done accidentally or independently of the exercise of the will of the appellant. Reliance was placed on Charles Egbirika v. State (2014) 1 SCM p.36 further submitting that a willed deliberate act negatives the defence of accident, Reference was made to Adelumola v. State (1988) 1 NWLR (Pt. 73) p. 683.

He urged the Court to resolve this issue in favour of the respondent.

Section 24 of the Criminal Code provides for the defence of accident. It reads:

“24. Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident.

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by

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an act or omission is immaterial.

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act or to form an intention is immaterial as far as regards criminal responsibility.

Where an accused person relies on the defence of accident in a charge of Murder, the onus is on the prosecution to show that the death of the deceased was not an accident. It is only when the accused persons explanation is found to be true that he is entitled to an acquittal. See Sholuade v. Republic (1966) 1 ALL NLR p. 134, Iromantu v. State (1964) 1 ALL NLR p. 311.

The prosecution’s case is that the appellant struck the deceased with an iron rod on his head, and that act resulted in his death.

On the other hand, the appellant explained that he never, as much as laid a finger on the deceased. Rather the deceased fell, sustained injury to his head and died.

The appellant’s explanation was found by the trial Court to be untrue. The Court found that the testimony of PW1 and PW2 was to be preferred, and their testimony was conclusive as to the fact that the deceased’s death was not an accident, but rather as a result of being struck on

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the head with an iron rod by the appellant.

Manslaughter is the unintentional killing of a human being. Such a killing is not premeditated but accidental in the sense that it was not intentional. In this case, the killing of the deceased was premeditated. Not accidental but a well thought out plan to put an end to the life of Solomon Adeyemi.

This was affirmed by the Court of Appeal and we agree with concurrent findings of fact of the two Courts below that the deceased death was as a result of being struck with an iron rod on the head. This no doubt is a deliberate act, and not an accident.

All crimes must be proved beyond reasonable doubt as provided by Section 135 of the Evidence Act. Indeed Lord Deming explained proof beyond reasonable doubt in Miller v. Minister of Pensions (1947) 1 ALL ER p. 372, and this explanation was adopted by this Court in Lori & Anor v. State (1979-1981) 12 NSCC p.269

His Lordship said:

“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect community if it admitted of fanciful possibilities to deflect the course of justice.

If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence “of course it is possible, but not in the least probable” the case is proved, beyond reasonable doubt but nothing short of that will suffice.

The prosecution succeeds in a charge of murder under Section 319 of the Criminal Code if the following are proved beyond reasonable doubt:

(a) that the death of a human being has occurred.

(b) that the death of the deceased was caused by the appellant.

(c) that the act was done with the intention of causing death or that the accused knew or had reason to know that death will be the probable and not only the likely consequence of his act. See

Section 316 of the Criminal Code defines the offence of murder. It states six circumstances in which a person can be killed. In a charge of murder the accused persons act that caused the death of the deceased must be one of the six circumstances before he can be found guilty of murder.

Section 319 of the Criminal Code provides for the punishment for murder. An accused person can

be charged under Section 316 of the Criminal Code or Section 319 of the Criminal Code.

Now, was the charge of murder under Section 319 of the Criminal Code proved beyond reasonable doubt

(a) Did a human being die

Eyewitness evidence is one of the best forms of identification in a Criminal Case. See Ndukwe v. State (2009) 2 SCNJ p. 223

PW1 and PW2 are eyewitnesses as to how the deceased met his death. They gave compelling corroborated and conclusive evidence that the appellant struck the deceased on his head with an iron rod. He fell and died. The fact of death was confirmed by the medical report, Exhibit H.

We are satisfied that a human being died, the human being is Solomon Adeyemi. He died on 8 April 2007.

(b) Was the death of the deceased caused by the appellant.

Section 316 of the Criminal Code states that it is only if a person kills a person under any of the six circumstances that the offence is murder. The circumstances are:

(1) If the offender intends to cause the death of the person killed, or that of some other person;

(2) If the offender intends to do to the person killed or

to some other person some grievous harm;

(3) If death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such nature as to be likely to endanger human life;

(4) If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;

(5) If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;

(6) If death of any person for either of such purposes; is guilty of murder.

In the second case, it is immaterial that the offender did not intend to hurt the particular person who is killed.

In the third case, it is immaterial that the offender did not intend to hurt any person. In the three cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.

The act of striking the head of the deceased with an iron

rod, an act which resulted in the death of the deceased falls under (1) or (2) or (3).

We are satisfied that the death of the deceased was caused by the appellant;

(c) Was the act done with the intention of causing death or did the accused know or had reason to know that death will be the probable and not only the likely consequence of his act.

The Court of Appeal was right when it said that:

“Going through the judgment of the trial judge, I am satisfied that the judgment should not be disturbed. The appellant’s case is irredeemably weak. He admitted that he went to the house of the deceased and that when deceased came out, he fell down on the corridor of the house. That account can only be described as hogwash walking on stilts especially when put side by side with the irrefutable evidence that the deceased suffered from severe head injury. The behavior of the appellant after the incident in my view further confirms the guilt of the appellant.”

It well settled that a man is presumed to intend the natural consequences of his act.

We are more than satisfied that by striking the deceased on the head with an iron rod, the appellant was very much aware

that death was a probable consequence of his act.

After all he threatened to kill the deceased when he arrived at the house of the deceased on 8 April, 2007 with implements that could kill. Cutlass and iron rod. We are further satisfied that the charge of murder under Section 319 of the Criminal Code was proved beyond reasonable doubt.

In the end, the appeal is without merit. It is hereby dismissed.

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SC.482/2013