Femi Abegunrin V. The State (2009)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A
This is an appeal against the judgment of G. O. Shoremi (J) (as he then was) at High Court of Justice, Abeokuta, Ogun State delivered on 21st June, 2005, wherein the Appellant was convicted and sentenced to death on the offence of murder contrary to section 319(1) of the Criminal Code Law Cap 29, Laws of Ogun State, 1978.
The brief facts of the case is that on 11th April, 2003 at a restaurant popularly called Super Food Abeokuta, the Appellant and others amounting to between 50-60 members of Eiye Confraternity which is a banned Secret Society, attacked and killed the deceased named Olusegun Oyelaja, by heating him with broken bottle on his head. That the deceased and his blood brother were soaked in their blood at the scene at Super Food restaurant and they started to run going to Ita-Eko and the Appellant and his group followed the deceased and his brother. The deceased was found dead the following day. During the trial of the case, the prosecution called seven witnesses who testified while the Appellant testified in his defence but called no other witness. The learned trial judge considered the totality of evidence and found the Appellant guilty of the offence of murder and accordingly sentenced him to death.
The Appellant being dissatisfied with the conviction, he filed a notice of appeal containing one ground and later with the leave of this court, he was granted on 16th January, 2007 leave to amend his notice of appeal containing (11) eleven grounds. By another application, the Appellant was granted leave to further amend his amended notice of appeal containing only (2) two grounds of appeal, which is now the only relevant notice of appeal. The Appellant has raised two issues for determination and they read thus:-
“1. Whether the prosecution proved its case against the Appellant beyond reasonable doubt to justify the conviction and death sentence passed on him.
- Whether the learned trial judge gave adequate or any consideration at all to the defence available to the Appellant before conviction for murder and sentenced to death.”
In respect of issue NO.1, learned counsel for the Appellant has contended that out of the three ingredients which are requisite in proving the offence of murder, the prosecution did not establish two ingredients out of the three. Counsel identified the 3 ingredients as follows:-
- That the deceased died.
- That the death of the deceased resulted from direct act of the accused and,
- That the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable consequence.
The Appellant has contended that the prosecution had submitted at the trial court that there was no direct evidence linking the Appellant to the death of the deceased, and then urged the trial court to infer that what happened at the Super Food continued to Ita-Eko; and that despite this clear admission of the prosecution of the deficiency in its case, the trial judged found as he did at page 57 of the record- “that evidence in this case is not circumstantial but direct,” and held that the death of the deceased has resulted from the injury inflicted on him. Appellant then submitted that, what the trial judge was expected to do under the requirement of the second ingredient to be proved for the charge would be to identify the very act committed by the Appellant which resulted in the said injury that caused death. Counsel referred and relied on the cases of OGURU V. THE STATE; IBE V. THE STATE (1997)1 NWLR (pt. 484) 632; IDEMUDIA V. THE STATE (1999) 7 NWLR (pt. 610) 202; JIRAH V. THE STATE (1996) 4 NWLR (pt. 443) 372, 382. The Appellant also referred to the evidence of PW3, a medical doctor who performed the post mortem examination, did not link the injury to the Appellant and then contend that the evidence of PW3 created doubts which should have been resolved in favour of the Appellant. Counsel for the Appellant is of the view that, it was wrong for the trial judge to rely on Exhibit D, the alleged confessional statement of the Appellant which was resiled during the trial. Appellant has urged this court to hold that the evidence of PW2 is tainted with his guilt because he was the person that started heating the Appellant with broken bottle. In other words, the Appellant is contending that it was PW2 who started the fight that claimed his brother’s life. That PW2 did not report the incidence to the police, but only to his elder brother, PW5 to whom he listed the names of the Appellant, 2nd accused, and Lanre Akanji amongst others. Appellant further submitted that it was very obvious that PW2 knew more than he told the trial court and he lied to save his skin by constantly denying membership of the eye cult and the Mapoly despite the overwhelming evidence against him. That the evidence of PW2 was never corroborated by the Police or prosecutor. That the material and fundamental contradiction in the evidence of PW2 and PW7 as to who was the aggressor, was not resolved at the trial court and that failure should vitiate the trial and the conviction, and relied on the cases of IBE V. THE STATE (supra); NWABUEZE V. THE STATE (1998) 4 NWLR (pt. 86) 16; LADO V. THE STATE (1999) 9 NWLR (pt. 619) 369.
Appellant still contended that it is against the tenets of justice for a trial judge to make use of evidence favourable to the prosecution and reject that which is favourable to the defence, and have urged this court to so hold and set aside the verdict of the trial court and referred to numerous cases among which are UDOH V. THE STATE (1994) 2 NWLR (pt. 329) 666; STATE V. AJIE (2000) 11 NWLR (pt. 678) 443 etc.
Counsel for the Appellant has argued that the people who arrested the Appellant and Lanre Akanji were not called to give evidence to know if they were eye witnesses to the killing or at least to know if they saw anyone who attacked the deceased with a bottle that caused the death, and that there are vital witnesses for the prosecution, and having not called, it leaves a very vital vacuum in the prosecution’s case and relied on the case of ONAH V. THE STATE (1985) 3 NWLR (pt. 12) 236, 341. Counsel is also of the view that the evidence of PW7 and the 2nd accused who were arrested by the same faceless people, is contrary to the position of the prosecution that the Appellant attacked and with a bottle, rather that it was PW2 that attacked the Appellant with a bottle; that also, the evidence of PW5 is a pure hearsay and is totally inadmissible and should be expunged from the record and that it applies to the evidence of PW4 and PW6, being hearsay evidence. In his final argument with relation to issue NO.1, Appellants counsel has contended that the case was shabbily handled by the police in their investigation and that what the prosecution did was a mere suspicion and that no matter how strong the suspicion may be, it will never amount to prove beyond reasonable doubt. That where doubts is created as in the instant appeal, the Appellant is to be discharged and acquitted and counsel has urged this court to so hold.
In his argument on issue NO.2, learned counsel for the appellants has contended that the Appellant has raised the defence of self defence and provocation at the trial court but that the trial judge did not consider the defences at all and then convicted the Appellant. Counsel submitted that it is trite law that no matter how worthless the defence set up by an accused person, the trial court has a duty to consider same dispassionately before dismissing same, and relied on numerous cases such as OGUNYE V. THE STATE (1999) 5 NWLR (pt. 604) 548, OMOHA V. THE STATE (1988) 3 NWLR (pt. 83) 460; LADO V. THE STATE (1999) 9 NWLR (pt. 619) 369 and that the above decisions are in tandem with the provisions of section 36(5) of the 1999 Constitution of Nigeria that says a person is presumed innocent until he is proved guilty. In the instant appeal, the Appellant has referred to pages 18, 12, 13, 23, 36, 38-39, 51 and 52 of the record showing the Appellants defences raised at the lower court, but that the judge did not consider them. Counsel referred to and relied on the author of Archibold-Criminal Pleading and Practice, 2000 Edition, Article 19-44 page 1632 and the case of LAOYE V. THE STATE (1985) 2 NWLR Pt. 10) 832, 844. Counsel for the Appellant has concluded his argument by submitting that the prosecution did not discharge the onus and the trial judge erred in not considering the defences available to the Appellant and that the judgment delivered is perverse and occasioned a miscarriage of justice on the Appellant. Counsel urged this court to so hold and, discharge and acquit the Appellant.
On the part of the Respondent, the issue is simple, whether the prosecution proved its case against the Appellant beyond reasonable doubt. Counsel is of the same view with the argument of the Appellant that to succeed conviction, the prosecution must satisfy the 3 ingredients namely, (i) the deceased died, (ii) that it was the act or omission of the accused which caused the death and (iii) that the accused’s act which caused the death was intentional or with knowledge that death or grievous bodily harm was its probable consequence. Counsel then submitted that PW3, the medical doctor who did the post mortem had stated that the deceased died on 11-04-2003 which means the first ingredient was established. The Respondent is of the view that the 2nd ingredient was established by the evidence of PW2 who was an eye witness when he saw the Appellant heating the head of the deceased with broken bottle. That the evidence of PW2 was corroborated by the evidence of PW3 who proved the cause of death by laceration on the foetal/orbital region on the left eye and fracture on the foetal region of the left eye and another laceration of the chin of the deceased and that PW3 concluded his evidence that the cause of death was intracranial hemorrhage as a result of the head injury. That it was enough that the Appellant was involved in the attack and thus took part in actual killing of the deceased, and referred to the case of OMISADE V. QUEEN (1964) 1 ALL NWR 233.
In regard to the 3rd ingredient, the Respondent is of the view that since the Appellant and his group were the last persons that were seen following PW2 and the deceased, the doctrine of “last seen” which was formulated in EMEKA V. THE STATE (supra) and STATE V. GODWIN (supra) applies to the instant appeal, more so that the evidence of PW7, and PW2 was to the effect that they saw the Appellant and his group who beat the deceased and still followed them to Ita-Eko. That considering the circumstances of this appeal, the Appellant and his colleagues now at large were the last persons seen with the deceased, and that the evidence of PW2 and PW7 pointed irresistibly to the guilty of the Appellant, and referred and relied to the case of UKORAH V. THE STATE (1977) 1 SC 167; ADETOLA V. THE STATE (1992) 4 NWLR (pt. 267); EMEKA V. THE STATE (supra). Counsel for the Respondent has further submitted that, the prosecution led evidence, before the court discharged the burden of proof beyond reasonable doubt and as such, the conviction of the Appellant for the murder of the deceased was justified.
As to the Appellant’s argument that the evidence of PW2 and PW7 were contradictory, learned counsel for the Respondent referred to the respective evidence of PW2 and PW7 respectively and reproduced the relevant parts at pages 10 and 36 of the record and then contended that the prosecution witnesses’ evidence of PW2 and PW7 were never contradictory and that they had established the three ingredients required for proof of murder which was established beyond reasonable doubt
I have carefully considered the arguments of both parties in their Respective briefs. In my considered view, it is necessary for me to consider the appellant’s issue number 2, which is whether the trial judge considered the Appellant’s defence before the conviction. In criminal cases, it is trite that the onus is on the prosecution to establish the committing of the offence beyond reasonable doubt as required by section 138 (1) of the Evidence Act, see also; the numerous cases in IDEMUDIA V.THE STATE (1999) 7 NWLR (pt 610) 202. ESONGBEDO V. THE STATE (1989) 4 NWLR (pt 113) 57; JIRAH V. THE STATE (1996) 4 NWLR (pt 443) 375.
It is also settled law that before an accused is to be tried, he is presumed innocent until he is proved guilty. This is the Constitutional presumption under section 36(5) of the 1999 Constitution of Nigeria. The cause of justice in criminal and even civil cases is never one sided.
In criminal matter, it is not just to hear the prosecution’s case alone. The court must look at the defence of the accused or suspect, no matter how flimsy or stupid or foolish the defence raised may be. In the instant appeal, I painstakingly scrutinized the learned trial judge’s judgment at pages 47 to 59 of the record, and as pointed out and argued by the learned counsel for the Appellant and conceded by the Respondent, there is no shred of consideration of the defence of the accused/Appellant. Even if the Appellant could not expressly raise the defence of self defence or provocation, the prosecution could have commented on his evidence or confessional statement which were heard and or tendered before the court. The trial court itself, should have looked critically at Exhibit A, which was tendered as the confessional statement of the Appellant. Not only that, the trial judge who had the exclusive privilege of seeing, hearing and observing the accused/Appellant, should have looked at the evidence in chief and under cross-examination of the Appellant, in the Appellant’s confessional statement at page 13 of the record. The relevant parts are at lines 16-17 where he said as follows:-
“While we were at Super foods there was a fight between me and the boy that is said to have died.”
He went further at lines 23-29 on page 13 of the record as follows:-
“On that very day 11-04-2003 at Superfoods it was the deceased that first hit bottle on my head, this made these my friends I mentioned their names and some I could not remember, started fighting him with just blow. Before the boy stabbed me with bottle, the senior brother whose name I do not know the name gave me blow on my chin…”
The appellant testified at page ….of the record as follows”-
“….An argument arose between Yondi Macarthy and Segun Oyelaja (deceased) both of them students of Ogun Poly. I approached them to settle the argument. The manager came to us and ordered us out of his premises. The main issue was the money given to us by Femi Okunronmu (sum of N100, 000) some of the boys who are “Eiye confraternity” members, said the money should be shared while others said it should be kept till the following day. The deceased Oyelaja and Yomi are members of Eiye.
There was no assault or physical contact.
We went outside the premises of Superfoods. The argument continued but the deceased insisted on sharing the money. Suddenly a bottle was smashed on my head. I turned back and saw that it was PW2, the brother of the deceased that smashed the bottle on my head. PW2 started to run away and I ran after him. I sustained injury.”
The appellant went further in his evidence in chief at pages 39-40 of the record as follows:-
“….. The situation became rowdy and people were running. We were separated and PW2 took to his heels and escaped. I did not see the deceased. He was at the scene but he ran away. I did not strike the deceased with my bottle.”
Under cross-examination, the appellant said at page 39 of the record as follows:-
“…Our members at Superfoods were more than 60 on that day. I saw the PW2 for the 1st time outside the premises when he hit me with a bottle. There was no argument with him. I did not hit the deceased…”
The Appellant still under cross-examination, said as follows at page 40:-
“…I am telling the truth. I do not know what happened at Ita-Eko. I was the second in command referred to as ostrich. I can see Exhibits A1, A2, and A3. They are the photographs of the deceased. The photographs are horrible sight to see. …I did not cause the death of the deceased.”
The evidence of PW7 on whom the trial judge relied is very relevant. The witness clearly stated at page 36 lines 1-9 of the record as follows:-
“…I saw Foluso Oyelaja PW2; a brother of the deceased smashed a bottled on the head of 1st Accused person (Appellant). The 1st Accused (Appellant) shouted and some of the people came out and joined the 1st Accused in fighting the deceased. I tried to settle the matter but the 1st Accused did not answer me. They all started to beat the deceased. The deceased was beaten while he held bottles. The deceased and his brother (PW2) ran towards Ita-Eko…”
In my considered opinion, the specific italised evidence of PW7 and the Appellant are clear issues of who provoked the fight that caused the life of the deceased. The evidence and cross-examination of the Appellant and his statement under caution, namely Exhibit A, have shown that it was PW2 who being the junior blood brother of the deceased provoked the Appellant by smashing a bottle on his head. The involvement of the Appellant was that he wanted to intervene the dispute about sharing of a politician’s booty totaling N100, 000.00 which he gave the Eiye confraternity to enjoy. It is not in dispute that PW2 and his brother, the deceased started the fight on issue of sharing of boot. With the facts before the trial court, the Appellant had raised the issue of defence of provocation by the deceased and PW2 by smashing bottles on his head. The trial judge had the obligation to consider the defence of provocation no matter how shallow it was made.
In the appellants evidence reproduces above, especially the italised areas, he denied ever causing the death of the deceased. It is not in dispute that the Eiye confraternity was a cult organization prohibited by law and the deceased, PW2, PW7, the appellant and the other over 60 members of the cult were all there. The Appellant and other prosecution witnesses had averred that the cult members participated in beating the deceased and PW2. The trial court should have critically resolved the issue of whether the deceased was killed at the Superfood restaurant or at Ita-Eko area, which was not resolved.
As earlier stated, the appellant raised defence of provocation which was not considered by the trial court in its judgment. It is settled law, that a court especially a trial court is under a duty to consider any defence open to an accused person or even raised by a suspect before conviction. See IFEJIRIKA V. THE STATE (1999) 3 NWLR (pt.593) 59; LADO V. THE STATE (1999) 9 NWLR (pt. 619) 369.
I entirely agree with the submission of learned counsel for the Respondent that for any defence to be considered, such defence must have either been raised by the accused apparently or open on the face of the available facts.
In the instant appeal, the Appellant had raised the defence of provocation and self-defence. It was based due to the blow made on him by specifically, PW2, who smashed his bottle on the head of the Appellant. This fact was effectively corroborated by the evidence of PW7 as reproduced above. In the case of OMOREGIE V. THE STATE (2008) 18 NWLR (pt. 1119) 464, at 477, 485-486, the Supreme Court, considered the issue of self-defence in murder cases and said thus:-
”By virtue of section 32 (4) of the Criminal Code, self-defence is a complete defence where it applies. Thus, in a murder case, an accused is completely exonerated of any crime if he on reasonable grounds believes that his own life is in danger and to save it, he has to kill. A defence of self-defence would avail him in such circumstance, meaning that the prosecution has not established its case, beyond reasonable doubt.”
In the instant appeal, the Appellant had stated in his evidence in chief and under cross-examination that PW2, brother of the deceased, smashed a bottle on his head and he sustained injury. He also denied killing the deceased but most probably committed by the over 60 members of the confraternity cult. It was the duty of the police who investigated the case and the prosecution to specifically identify who actually committed the cause death of the deceased. The trial court should have applied an objective test on the defence of self-defence more so that the onus is always on the prosecution to disprove an accused’s plea of self-defence or provocation. It is enough if the defence is apparent on the circumstances of the case as in the instant appeal. see OKONKWO V. THE STATE (1998) 8 NWLR (pt. 561) 210, AHMED V. THE STATE (1999) 7 NWLR (pt. 612).
In the case of OMOREGIE V. THE STATE (supra) at pages 484 and 485 the apex court held as follows:-
“Self defence is a defence based essentially on facts of each case hence there is no question of defining its limit.”
And at page 485, Chukuma-Eneh, JSC said as follows:-
“The defence of self-defence, if successfully, is a complete defence or answer to a charge of murder or manslaughter. BARIDAM V. THE STATE (1994) 1 NWLR (pt. 320) 250; KIM V. THE STATE (1992) 4 NWLR (pt. 233) 17; DURU V. THE STATE (1993) 3 NWLR (pt. 281) 283.”
In the same OMOREGIE (supra) Mahmud Muhammed, JSC clearly stated at page 477 of the report as follows:-
“Where an accused person raises the defence of self- defence, the burden lies on the prosecution to show that the defence is not available to the accused person having regard to the circumstances of the case.”
In the instance appeal, since the trial court did not consider the defence raised by the Appellant, it means his defence of self-defence and provocation stand solid on its ground. This amounts to unfair hearing as enshrined in section 36(1) of the Constitution of Nigeria, 1999.
Since Appellant’s defence was never considered at the trial court, the only open issue is to resolve the unheard defence of Appellant in his favour. In other words, the doubt created by unfair hearing should be resolved in favour of the Appellant.
Section 36(4) of the Constitution is very clear that whenever any person is charged with a criminal offence, he shall be, unless the charge is withdrawn, be entitled to a fair hearing. In the instant appeal, the defence of self-defence and provocation were apparent on the record and the trial court did not consider them. The record at page 18 lines 27-32; page 12 lines 11-13; page 13 lines 21-26; page 38-39, lines 26-6, 26-28; page 51 lines 12-14, page 51 lines 22-23; page 52 lines 11-13 of the record are there to show the defences which were ignored by the trial court.
Based on the failure to consider Appellant’s defence, issue NO.2 is resolved in favour of the Appellants.
Having considered the Appellant’s issued NO.2, the necessary outcome of the first issue is that the prosecution failed to prove its case against the Appellant beyond reasonable doubt. Consequently, the conviction and death sentence passed on the Appellant on 21st June, 2005 at High Court NO.2 at Abeokuta, is hereby set aside. In its stead I hereby discharge and acquit the Appellant. He should be set free from prison as soon as practicable.
Other Citations: (2009)LCN/3421(CA)
