Ex Cpl Ikechukwu Nwabueze V. The People Of Lagos State (2018)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on the 22nd day of November 2013 setting aside the appellant’s conviction and sentence for murder contrary to Section 316(3) of the Criminal Code Cap 17 Laws of Lagos State 2003 and substituting in its place a conviction and sentence for manslaughter contrary to Section 317 of the same code.
Respondent’s case at the Lagos State High Court, hereinafter referred to as the trial Court, is that the appellant, a policeman, on the 5th April 2009 shot and killed three year old Kafusara Muritala. Along with four other police officers, the appellant was deployed to Obanle-Aro/Mr. Biggs axis of Ketu Alapere, in Lagos, to prevent criminal activities of hoodlums. The team mounted a check point at the black spot. On the fateful day, PW1 Muritala Saliu, his wife, the deceased and some other passengers were being conveyed by one Saheed in a Nissan Sunny Saloon car towards Mile 12 from a naming ceremony in a friend’s house. At about twelve meters from the check point and soon after the sound
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of a gunshot, Kafusara’s mother on noticing the deceased had slumped raised alarm.
PW1, the deceased’s father, the vehicle having stopped, carried the deceased back to the check point shouting profusely that the police had killed his daughter. Further to the complaint lodged on the incident and the investigation conducted thereon, the appellant, who had confessed shooting at the tyres of the vehicle in which the family of the deceased were being conveyed, was arraigned, convicted and sentenced to death for the murder of the deceased.
Dissatisfied, the appellant appealed to the Court of Appeal Lagos Division which decision of 22nd November, 2013 allowed the appeal in part.
Still aggrieved, the appellant has further appealed to this Court on a notice filed on 16th December, 2013 containing ten grounds.
At the hearing of the appeal counsel identified, adopted and relied on parties respective briefs of argument. At page 3 of the appellant’s brief of argument settled by Emmanuel Umoren Esq and deemed duly filed and served on 11th January, 2018 the six unnecessarily prolix issues distilled read: –
“1. Whether from the facts and circumstances
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of this case, the Court of Appeal was right to hold that the deceased died of gunshot and the failure of the Respondent to tender the post mortem report was not fatal to its case. (Ground 2).
- Whether from the facts and circumstances of this case, the Court of Appeal was right in law to convict the Appellant for the offence of manslaughter. (Grounds 7 and 8).
- Whether in a murder charge which attracts capital punishment, the Court of Appeal was right to ignore and or fail to consider the various defences open to the Appellant or raised by the Appellant. (Grounds 1 and 4).
- Whether from the facts and circumstances of this case, the Court of Appeal denied the Appellant his constitutional right to fair hearing. (Grounds 3 and 5)
- Whether the Court of Appeal was right when in sentencing the Appellant, it refused to follow the binding decision of the Supreme Court in OMINI V. STATE (1999) 12 NWLR PART 630 PAGE 168. (Ground 9).
- Whether from the facts and circumstances of this case, the Court of Appeal was right to sentence the Appellant to life imprisonment for the offence of manslaughter. (Grounds 6 and 10).”
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The four issues formulated at pages 2-3 of the respondent’s brief as having arisen for the determination of the appeal are:-
- Whether the Court of Appeal was right, in view of the Appellant’s confessional statement and other pieces of evidence, to hold that the deceased died of gunshot and the failure of the Respondent to tender post-mortem report was not fatal to its case. (Grounds 2 and 3 of the Notice of Appeal);
- Whether, from the circumstances of this case, the Court of Appeal was right to have convicted the Appellant for the offence of manslaughter and sentenced him to life imprisonment. (Grounds 6, 7, 8, 9 and 10 of the Notice of Appeal);
- Whether any defence was available to the appellant in this case. (Grounds 1 and 4 of the Notice of Appeal);
- Whether, considering the state of evidence, the Court of Appeal denied the Appellant his right to fair hearing. (Ground 5 of the Notice of Appeal).”
Ordinarily, it is best to resolve the issues the appellant requires that his appeal be determined upon. After all, the appellant is the party aggrieved by the decision being appealed against. The Court however may, where the justice of the case
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demands, proceed to determine an appeal on the basis of the issues distilled by the respondent or still, those the Court formulated and preferred in determining the real questions in controversy between the parties. See; Musa Sha (Jnr) & Anor V. Da Ray Kwan & 4 Ors (2000) 8 NWLR (Pt. 620) 685 and African International Bank Ltd v. Integrated Dimensional System Ltd & Ors (2012) LPELR-9710 (SC).
For the purpose of the case at hand, it appears that in resolving appellant’s 2nd issue, his 5th and 6th issues it subsumes will equally be resolved. Though appellants 1st, 2nd, 3rd and 4th issues are glaringly similar to respondent’s four issues, the latter’s issues, being better couched, shall however inform the determination of the appeal.
On the 1st and 2nd issues, learned appellants counsel submits that to secure conviction, the law places the burden of proving all the ingredients of the offence the appellant is charged with beyond reasonable doubt on the respondent. It is not enough for the respondent to establish the fact of death of a human being. For the Court to convict the appellant, it is submitted, respondent must further
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link the death with the act of the appellant done with the intention or knowledge that death of his victim was probable. The report of the postmortem carried out by DW3, which the respondent failed to tender, is necessarily required to establish the cause of death. Furthermore, it is argued, not only are there material contradictions in the evidence of the prosecution witnesses, the evidence of some of them which are in support of the appellant’s case are withheld from the Court. The law, it is submitted, does not allow the respondent to conceal any fact even where it supports the appellant’s case from the Court. Where it does so, the prosecution is liable to loose its case. Relying inter-alia on Section 135 of the Evidence Act 2011 Ezigbo V. State (2012) 16 NWLR (Pt 1326) 318, Ahmed V. State (2001) 18 NWLR (Pt. 746) 622, Omini V. State (1999) 12 NWLR (Pt. 630) 168, learned counsel submits that the decisions of the two Courts on the guilt of the appellant though concurrent, not having drawn from the evidence on record, is not sustainable.
Assuming without conceding that evidence abound in proof of manslaughter against the appellant, it is further argued,
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the sentence imposed on the appellant by the lower Court is excessive. The appellant, it is contended, had urged the lower Court to comply with the Supreme Court’s decision in Omini V. State (1999) 12 NWLR (Pt 630) 168 by reducing appellant’s sentence to ten years. Notwithstanding the lower Court’s findings at pages 219 and 227 of the record that the facts of the instant case are on all fours with those in Omini V. The State (supra), the Court, learned counsel contends, all the same refused to reduce the sentence to ten years as was done in Omini V. State (supra). Learned counsel submits that it is wrong of the lower Court to have so refused. Relying on Odunlami V. Nigerian Navy (2013) 12 NWLR (Pt 1367) 20, he urges that this Court invokes its powers to reduce the sentence in enforcing compliance with its decision by the lower Court. Learned counsel prays that the two issues be resolved in appellant’s favour.
Under the 3rd issue, it is argued that the failure of the two Courts to consider the various defences canvassed by the appellant is equally fatal to their decisions. Firstly, it is contended, the appellant in exhibit P1, his extra judicial statement
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and through his counsel asserted that the act leading to the death of Kafusara was an accident. Sections 24, 33(1) and 271 of the Criminal Code CAP 17 of the Laws of Lagos State, it is submitted, provide the appellant absolute defence. With the presence of criminals in the vicinity of the unfortunate incidence, it was reasonable for the appellant to have acted the way he did and would have failed in his duty if he did not. Relying on Section 31(2) of the Firearms Act CAP F28 Laws of the Federation 2004, Esabunor V. Faweya (supra), Ibikunle v. State (2007) 2 NWLR (Pt. 109) 546 and Amayo v. State (2001) 18 NWLR (Pt. 745) 251 at 275, learned counsel prays that the appellant be absolved.
On the 4th issue, it is contended that the two lower Courts, in ignoring part and accepting part of exhibit P1, have denied the appellant his constitutional right to fair hearing. In the courts refusal to accord exhibit P1 a fair and dispassionate consideration, it is argued, lie the breach of appellant’s right to fair hearing. Relying on Okafor V. AG Anambra State (1991) 6 NWLR (Pt. 200) 659, Adigun V. AG Oyo State (1987) 1 NWLR (Pt. 53) 678, Obodo V. Olomu (1987) 3
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NWLR (Pt. 59) 111 and Bayol V. Ahemba (1999) 10 NWLR (Pt 623) 381, learned counsel prays the Court to re-evaluate the evidence on record including exhibit P1 substantial part of which the two Courts deliberately ignored.
On the whole learned counsel urges that the appeal be allowed.
Replying, learned respondent’s counsel submits under the 1st issue that evidence abound, particularly exhibit in P1, the confessional statement of the appellant, to sustain the concurrent judgments of the two Courts. Non tendering of the post-mortem report since PW3 the author of the report has testified, by the respondent, it is submitted, is not fatal to the concurrent findings of guilt of the appellant by the two Courts. The evidence of the appellant under cross-examination at page 66 of the record, learned respondent’s counsel further submits, corroborates the content of exhibit P1 that was admitted without objection. Appellants attempt at trial to cast doubt on exhibit P1, it is argued, has rightly been rejected by the two Courts. Relying on Alarape V. State (2001) 5 NWLR (Pt 705) 79 at 100, Shurumo V. The State (2010) 12 SC (Pt. 1) 73, Akpa V. State
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(2008)14 NWLR (Pt. 1106) 72 at 95 and Idowu V. State (2000) 12 NWLR (Pt. 680) 48 and submits that ample evidence beside exhibit P1 abound on record to sustain the conviction of the appellant. Further specifically relying on Adekunle V. State (1989) 5 NWLR (Pt 123) at 515, learned respondent’s counsel contends that the necessity to tender post-mortem report to prove death ceases where the very doctor who conducted the examination gives evidence at trial. Learned appellant’s counsel insistence that this Court invokes Section 167 (d) of the Evidence Act to nullify the decisions of the two Courts because of the non production of the post-mortem report, it is submitted, should be discountenanced.
On the 2nd issue, learned respondent’s counsel submits that appellant by exhibit P1 has admitted shooting and killing the deceased even though unintentionally. The substitution by the lower Court of appellant’s conviction with one for manslaughter, it is contended, is informed by the unlawful nature of appellant’s reckless conduct in shooting at the vehicle. The facts of the case in Omini V. State (supra) the appellant contends should guide the lower Court, it is argued, is
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indeed what the lower Court applied to come to its decision to substitute the trial Courts conviction of the appellant for murder with conviction for the lesser offence of manslaughter. Relying on Musa v. State (2012) 3 NWLR (Pt. 1285) 59 at 95 learned counsel, submits that the sentence the lower Court imposed on the appellant having been arrived at judiciously and judicially cannot be interfered with by this Court.
On the 3rd issue, learned counsel submits that the issue of the defences available to the appellant that is being raised and argued for the first time and without the leave of Court sought and obtained, being incompetent, the fresh issue, it is submitted, should be discountenanced by this Court. Learned counsel refers to Ogbe v. Asade (2009) 18 NWLR (Pt. 1172) 106 at 126, Oshoboja V. Amida (2009) 18 NWLR (Pt 1172) 188 and Agboola v. UBA Plc (2011) 11 NWLR (Pt. 1258) 375 at 400.
Alternatively, the appellant, it is argued, is not entitled to the defence of accident as his act of shooting at the vehicle and causing the death of the deceased cannot be said to be unintended or unforeseen. Relying particularly on Oludamilola v. State
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(2010) 8 NWLR (Pt 1197) 565 at 578, learned counsel submits that the issue be resolved against the appellant.
On the 4th issue, learned respondent’s counsel argues that appellant’s contention that his constitutionally guaranteed right to fair hearing has been violated by the lower Court is misconceived. Appellant’s trial carried out in accordance with the rules of natural justice, it is submitted, cannot constitute the breach ascribed to it. The appellant who was given ample opportunity and having so presented his case and same was dispassionately considered by both Courts, cannot sustain any allegation of breach of the rules of natural justice against both Courts. Counsel relies on Torri V. National Park Service of Nigeria (2011) 13 NWLR (Pt. 1264) 365 at 381 and Agbiti v. Nigeria Navy (2011) 4 NWLR (Pt 1236) 175.
The lower Court’s decision arrived at after considering the entirety of exhibit P1 along with the testimonies of all the witnesses on record before affirming the findings of the trial Court and substituting appellant’s conviction, learned counsel submits, is infallible. On the whole, learned counsel urges that all the issues be resolved
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against the appellant and the appeal being unmeritorious be dismissed.
Given the fundamental nature of the 4th issue for the determination of the appeal, it is desirable to outrightly consider and resolve same. Breach of a party’s constitutionally guaranteed right to fair hearing, where established, affects the entire proceedings thereby rendering the decision of the Court null and void. Cases attesting to this principle are legion. In F.R.N. v. Akubueze (2010) LPELR-1272 (SC), this Court restated the principle thus: –
“It is the law that once it is duly established that the right of fair hearing as entrenched under Section 33 of the Constitution has been breached in judicial proceeding its breach vitiates the entire proceedings. Therefore, when the appellate Court finds that the right of fair hearing is breached, it shall have no alternative but to allow the appeal.” (Underlining mine for emphasis).
See alsoTsokwa Motors (Nig) Ltd V. UBA Plc (2008) ALL FWLR (Pt 403) 1240 at 1255, Edibo v. State (2007) 13 NWLR (Pt. 1051) 305, Eze V. Spring Bank Plc (2011) 12 MJSC (1) and Chitra Knitting and weaving Manufacturing Company Limited V. G. O.
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Akingbade (2016) LPELR-40437 (SC).
The question the appellant raises under the 4th issue is whether the judgment in the instant appeal is liable to be nullified having evolved inspite of the breach of his right to fair hearing by the trial Court which decision the lower Court affirmed. Appellant’s contention is that the selective acceptance and/or rejection of parts of exhibit P1, his extra judicial statement, by the two Courts, constitute the breach of his right to fair hearing. It cannot be! Learned respondent counsel is right that that is not what the breach of the right of fair hearing as constitutionally guaranteed postulates.
What then does the principle denote and when would it be said to have been breached
The right to fair hearing is a universal concept which, being enshrined and entrenched in Section 36(1) of the 1999 Constitution (as amended), guarantees the twin pillars of natural justice: nemo judex in causa sua and audi alteram partem. The two simply mean that no person shall be a judge in his own cause and that both sides to a dispute should enjoy equal opportunity to present their case. See Awoniyi V. Reg Trustees of R.O.A
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(2000) 6 SC 103 and Garba v. University of Maiduguri (1986) 1 NWLR (Pt 18) 550 at 618.
In the case at hand since appellants disaffection is in relation to the probative value the trial Court, which decision the lower Court affirmed, assigned to exhibit P1, the call for the nullification of the judgments of the two Courts for being in breach of the appellant’s guaranteed right to fair hearing is indeed misplaced.
It is well settled that the proper manner to evaluate evidence led by parties to a case is to place the evidence led by either side to the conflict on every material issue on either side of an imaginary scale and weigh them to infer which outweighs the other in terms of its probative value. This necessarily entails the Court’s preference for the evidence of one side, wholly or in part, against that of the other side. It is impracticable to resolve a controversy between parties by accepting in equal measure the evidence they adduce in advancing their respective positions. See Mogaji & Ors V. Odofin & Ors (1978) 3 SC 91, Adeniji V. Adeniji (1972) 4 SC, Adeleke V. Iyanda (2001) 13 NWLR (Pt. 729) 1 and Onisaodu V. Elewuju (2006)
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LPELR-2687 (SC).
Finally and most importantly, although it is true that exhibit P1 is the statement the appellant volunteered to the police in the course of their investigation leading to his prosecution and conviction, the exhibit does not all the same form part of the appellant’s case. The exhibit was tendered by the respondent and remains part of its case against the appellant. Appellant alone gave evidence in his own defence. It is the non or unequal consideration of his case as spans pages 64-68 of the record of appeal by the two Courts, which is not what the appellant contends under the 4th issue, that may constitute a breach of his constitutionally guaranteed right of fair hearing. As rightly submitted by learned respondent’s counsel, appellant’s contention under this issue is undeniably misconceived. The 4th issue is accordingly resolved against him.
How does the appellant fare under the 1st and 3rd issues Has he succeeded in establishing firstly, that the concurrent findings of his guilt by the two Courts, having not evolved from the evidence on record, are perverse and unsustainable And, secondly, notwithstanding the proof of
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all the ingredients of the offence for which he is convicted, have the Courts, from the evidence on record, denied the appellant those defence she asserts set him free
Now, it is trite that the guilt of an accused person can be proved by the confessional statement of the accused, circumstantial evidence or direct evidence of eye witness(es). Accordingly, conviction of an accused may be attained by one or a combination of any of the foregoing types of evidence. See Emeka v. State (2001) 14 NWLR (Pt. 734) 666, Igabele v. The State (2006) 5 NWLR (Pt 975) 100 and Stephen Haruna v. The Attorney General of the Federation (2012) LPELR-7821 (SC).
To secure conviction for the offence of manslaughter under Section 317 of the Criminal Code, Cap C17 Laws of Lagos State 2004, punishable under Section 325 of the same code the appellant has been convicted and sentenced for by the lower Court, all the respondent needs to prove is the unintended and unlawful act of the accused which harmed the deceased and caused his death. See Yisawa Shosimbo v. The State (1974) LPELR-3066 (SC), Akpabio V. State (1994) 7 NWLR (Pt. 359) 635 and Adebiyi Famakinwa v. The State (2016)
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LPELR-40104 (SC).
Learned respondent’s counsel submits that in the instant case the respondent who has successfully established the guilt of the appellant by virtue of exhibit P1, appellant’s confessional statement, beyond corroborating the statement, has offered further facts through PW1-PW4 which independently establish appellant’s guilt as well. Learned counsel cannot be faulted.
Exhibit P1, appellant’s confessional statement, see page 216 of the record, reads inter-alia thus: –
“I Cpl Ikechukwu Nwabueze freely elect to state as follows On 5th April, 2009 at about 1900hrs I was posted to a point at Obarinalo Mrs. Biggs Sport with Sgt. Salawo and team. When we were there a vehicle was coming from Ketu heading to Mile 12, 20 the vehicle beat the 1st person P1 Ipkoola Oladok who alert me that the vehicle I should stop the car but when I stopped the vehicle, he refused to stop, then I fired, not knowing that the bullet hitted somebody inside the vehicle, later I saw a man carrying a girl with blood. When the man get to our point he stated shouting that police have killed her daughter. Some hoodlums pointed him and started stonning us
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then we started running. At the point we were 5 in number and I was the last person on guard and when the other people stopped him, he refused to stop even they were firing on the air. The vehicle refused to stop. On getting to my side as the last person, I aimed the vehicle tire and shot not knowing that the bullet hit somebody inside the vehicle. I did not fire the girl intentionally.” (Underlining mine for emphasis).
The foregoing is undoubtedly an admission made by the appellant, a person charged for killing the deceased, stating in very clear terms that he committed the crime. The statement does not only contain the fact of the death of the deceased, but the “unintended” act of the appellant, firing a gun shot at the vehicle conveying the deceased, that brought about the death. There cannot be better evidence than the confession coming from the person who knew exactly what he did and owned up to it. In the face of such a confession that is direct and unambiguous, the legal burden of proof, on the authorities, ceases to rest on the respondent same having been discharged by the admission of the accused. See Torri V. National Park Service of Nigeria
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(2011) 12 NWLR (Pt. 1264) 365 at 380-381, Akpa v. State (2008) 14 NWLR (Pt 1106) 72 and Alarape V. The State (2001) 5 NWLR (Pt 705) 79 at 100, Ikemson V. The State (supra) and Okoro V. The State (1988) 3 NWLR (Pt 81) 226.
Beyond appellant’s confession, both Courts considered and drew inferences from the evidence of PW1 – PW4.
At page 22 lines 25-29 of the record of appeal, PW1 testified as follows: –
“When they were through with Commercial Vehicle we were heading towards Mile 12, we were coming from a particular ceremony, our own vehicle was not stopped by the Policemen, when we the check point about 12 metres to the check poin (sic) we heard a gun shot, after that gun shot, my wife shouted and I noticed that my daughter Kafusara (sic) slumped.”
PW2, (the Investigating Police Officer) at page 33 of the record of appeal, stated how the police received complaint from PW1 of the sad death of his three year old daughter Kafusara, participated in the investigation, including having the post-mortem examination conducted on the deceased, that led to the prosecution of the appellant.
PW3 conducted the post-mortem. He confirmed the injuries
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inflicted on the deceased and affirmed her death to be in consequence of the injury inflicted on her by a missile.
PW4, a ballistician, gave evidence at page 50 lines 27-32 of the record of appeal as follows: –
“On the 31/8/2010 I received through PW2 attached to State C.I.D. Panti Street, Yaba One AK 47 rifle caliber 7.62mm with seria (sic) No. 20423 for examination, identification and report, the firearm was identified on examination as AK 47 rifle caliber 7.62mm with serial No. 20423, it has a shoulder carrying slinge with metal collacible bullet, examination conducted in the band revealed fresh residence of burntx (sic) propellant signifying that the firearm was fired…”
Having evaluated the foregoing evidence adduced by the respondent, the trial Court inter-alia in its judgment, see page 107 of the record of appeal, held as follows: –
“The next issue to be resolved is the cause of death of the deceased and from the evidence led before the Court it is very clear that the deceased died of gunshot. My finding is consistent with the testimony of PW3, Dr. Obafunwa who conducted the autopsy and gave a verdict to the effect that the death
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of the deceased was attributed to disruption of the brain tissue due to missile injury, he explained further that a missile could range from a stone, to an arrow or a bullet, something travelling in the air and striking an object in this case the skull. Although Mr. Omodele has argued that the evidence of PW3 is not cogent and satisfactory but I must state that the position of the law in respect of medical evidence is very clear to the effect that where the cause of death is obvious, medical evidence ceases to be of any legal necessity in homicide cases especially where death came by violent means and instantaneous. See Amayo Vs. State (supra)… It is my opinion that the evidence of PW3 gave an insight on the impact of the gunshot on the deceased and his findings corroborate the testimony of PW1, it is therefore cogent and compelling to the just determination of this case.”
In affirming the foregoing findings of the trial Court, the lower Court at page 217 of the record of appeal held firstly thus: –
“The Court below analyzed Exhibit P1 in the six ways confessional statements are tested laid down in the leading English case of R. V. Sykes (1913)
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8 CC. App. R. 233 (see page 110 of the record) and its consistency with the evidence of the PW1 and the PW2 before it accepted it as true, voluntary, unequivocal, positive and direct admission by the appellant that the shot he fired from his gun on the fateful day ended in killing the deceased. I too agree and endorse the finding of the Court below (supra).”
The Court proceeded at page 219 of the record of appeal as follows: –
“With the appellant’s statement to the police in Exhibit P1 that he did not intentionally or deliberately shoot to kill the deceased at the material time, I think the facts of the case square with the facts in the case of Omini v. The State (1999) 12 NWLR (pt. 63) – 168 cited by Mr. Igboekwe, for the appellant.”
And concluded at page 224-225 of the record of appeal thus:-
“I most respectfully borrow and rely in toto on the binding words of the Supreme Court in Omini v. State (supra) to allow the appeal by setting aside the verdict of murder entered against the appellant. Under Section 316(3) of the Criminal Code and substitute in its place a conviction of the appellant for the lesser offence of manslaughter…”<br< p=””
</br<
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By his 1st issue, the appellant is contending that the evidence on record does not support the foregoing concurrent findings of the two Courts and by the 3rd issue, in particular, that in arriving at the findings the Courts have ignored the defence of accident and other statutory defences made out by him. The appellant seems to have proceeded on his 3rd issue oblivious of the lower Court’s finding at page 215 of the record that reads: –
“The appellant did not raise the defence of accident in his evidence in pages 63-58 of the record, so the argument on the defence of accident hangs on nothing. The arguments on the defence of accident also came for the first on appeal without evidence in the record to flesh it up and without leave of Court. For these reasons, I find the argument on the defence of accident artificial incompetent and an afterthought and hereby disregard it.”
It must be noted that there is no appeal against the foregoing finding of the lower Court. The Court’s pronouncement that the issue of the defence available to the appellant which was never raised and determined at the trial Court and in respect of which leave was not obtained is
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incompetent remains valid, subsisting and binding on the parties. The incompetent issue cannot, given the circumstance, be raised even in this Court. Being incompetent, appellant’s 3rd issue is accordingly hereby struck out. See Ozurumba Nsirim v. Dr. Samuel Amadi (2016) LPELR-26053 (SC) Chief Ogunyade V. Oshunkeye & Anor (2007) 15 NWLR (Pt 1057) 218 at 257 and SPDC Nig Ltd v. Chief Tigbara Edamkue & Ors (2009) LPELR-3048 (SC).
I am further unable to agree with learned appellant’s counsel that the concurrent findings of guilt of the appellant by the two Courts below have not evolved from the evidence on record and are resultantly unsustainable. As rightly argued by learned respondent’s counsel, exhibit P1, appellant’s confessional statement as corroborated by the testimonies of PW1, PW2, PW3 and PW4, establish beyond reasonable doubt the death of Kafusara resulting from injuries occasioned by the gun shot recklessly fired by the appellant at the vehicle conveying the deceased. The findings of the two Courts on the basis of these established facts on record are not perverse to warrant the intervention of this Court. I so hold. See Yesufu V. Adama (2010) LPELR-3523 (SC)
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and Ogunbiyi V. Ishola (1996) LPELR-2325 (SC). Appellant’s 1st issue is also resolved against him.
Appellant’s last grudge that is left to be considered is as contained in the 2nd issue for the determination of his appeal. Here, too, learned appellant’s counsel wallows under serious misapprehension. He posits that the lower Court’s refusal to be bound by the decision of this Court in Omini V. State (supra) to reduce appellant’s sentence to ten years is grave impertinence on the part of the Court. The submission is incorrect on two accounts.
Firstly, cases are authorities for what they decided. The doctrine of stare-decisis learned appellant’s counsel asserts the lower Court has violated is about past decisions of Courts binding them in subsequent occasions where the facts and legislations applicable to the settled facts are same or similar to those the Courts earlier pronounced upon. Our case law has remained consistent on this principle. It is therefore settled that a Court lower in the judicial ladder is bound by its own or the ratio decidendi of a higher Court in an earlier case, if the issues of fact and the legislation the
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Court considers subsequently are same or similar. See Dr. Umar Ardo V. Admiral Murtala Nyako & Ors. (2014) LPELR-22878 (SC) and Nigeria Agip Oil Company Ltd V. Chief Gift Nkweke (2016) LPELR-26060 (SC). Where the lower Court, as in the instant case, holds itself bound by the decision of this Court on same or similar facts, appellant’s grudge against the lower Court’s decision cannot therefore, be taken seriously. See Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310 and Nobis-Elendu V. INEC & Ors (2015) LPELR-25127 (SC).
The appellant in the instant case, like the appellant in the Omini v. State case (supra) the lower Court is alleged to have circumvented, was tried and convicted for the offence of murder. The decision of this Court the lower Court lavishly reproduced in its judgment, see pages 223 – 224 of the record, inter-alia reads: –
“It seems to me that the trial Judge having found as a fact, which was accepted by the Court of Appeal, that the death of the deceased was as a result of the act of the Appellant, the shooting which resulted in the death of the deceased was as a result of the culpable disregard of his legal duty to take care,
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but without the necessary intent. The intention of Appellant was clearly to shoot at the vehicle. If as it appears from the evidence he failed to exercise sufficient care and consequently resulting in the death of the deceased, it seems to me that the action comes clearly within the purview of Section 317 of the Criminal Code.
The Court below regrettably failed to direct its mind to this aspect of the law. The trial Judge ignored this part of the evidence before him and therefore came to the erroneous conclusion that the prosecution proved the offence of murder beyond reasonable doubt. The reason why the judgment of the trial Judge should be set aside is that the prosecution having not proved that Appellant intended to cause the death of the deceased, the offence of murder was not proved. On the other hand Appellant can be convicted of the offence of manslaughter because in complete and culpable disregard of his legal duty to take care in the handling of his gun in the discharge of his lawful duty, his act resulted in the death of the deceased. See Onah v. The State (1977) 7 SC 69.” (Underlining mine for emphasis).
In submitting to the foregoing
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decision of this Court, the lower Court at pages 224-225 of the record enthused thus: –
“I most respectfully borrow and rely in toto on the binding words of the Supreme Court in Omini v. State (supra) to allow the appeal by setting aside the verdict of murder entered against the appellant by the Court below and quashing the sentence of death passed on the appellant by the Court below for the murder of the deceased under Section 316(3) of the Criminal Code and substitute in its place a conviction of the appellant for the lesser offences of manslaughter as defined under Section 317 of the Criminal Code Cap. C. 17 Laws of Lagos State, 2004, and punishable under Section 325 of the same Code read with Section 19(3) of the Court of Appeal Act, 2003. Considering the seriousness of the crime of manslaughter which by Section 325 of the Criminal Code states that ‘any person who commits the offence of manslaughter is liable to imprisonment of life’, I hereby impose the sentence of imprisonment for life on the appellant for manslaughter accordingly.”
By correctly binding itself to the earlier decision of this Court on all fours with the matter it decided in the
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foregoing, appellant’s allegation of impertinence against the lower Court is clearly, unsustainable. Appellant’s grudge under the 2nd issue is thus baseless. The issue is resolved against him.
On the whole, I find no merit in the appeal and accordingly dismiss same. The concurrent judgments of the two Courts below are hereby further affirmed.
SC.290/2014
