Rasulu Oladipupo Vs The State (1993)
LawGlobal-Hub Lead Judgment Report
KUTIGI, J.S.C.
The appellant was in the Lagos High Court charged and convicted of the offence of murder contrary to section 319 of the Criminal Code. He was sentenced to death.
At the trial the prosecution called seven witnesses to prove the charge against the appellant. The appellant testified in his own defence but called no witnesses. The facts of the case on which the prosecution relied may be summarised briefly as follows-
On or about the 29th December, 1984 the appellant was the driver of a vehicle in which one Okoro Okoro, now deceased, was a passenger. On getting near to the bridge at Moroko, the deceased wanted to get out. He gave a N5 note to the appellant and asked for his change. The deceased ran to people who were selling things nearby and asked them for a change. They had no change. He went back to the appellant and demanded for his change.
Meanwhile the appellant got down from the vehicle. A fight broke out between the deceased and the appellant. They chased one another around the vehicle until the stage when the appellant brought out pliers from the vehicle and threw it at the deceased. The pliers hit the deceased on the head. He was bleeding. He fell down and fainted. He was taken to hospital. He died on the way before receiving any medical attention. Dr Adebayo Doherty who testified as P.W.1 conducted post mortem examination on the body of the deceased. He certified the cause of death to be due to “fracture of the skull”. The pliers was admitted in evidence at the trial as EXHIBIT E. In the course of investigation the appellant made two statements under caution to P.Ws 4 & 7. They were respectively admitted in evidence as EXHIBITS C & D.
The appellant on the other hand said in his evidence that it was when he was driving his vehicle that it slightly hit the deceased as he was trying to cross the road in Maroko. The deceased then hit the windscreen of the vehicle which got cracked. A fight ensued between the two of them. That the deceased pushed him inside the lagoon and removed the ignition key of his vehicle arid tried to run away. It was then that he, the appellant, took the pliers (EXH.E), chased the deceased, and threw EXH. E at him in order to stop him from running away. He said he did not intend to harm or kill the deceased although EXH. E hit the deceased on the head. He never intended to hit him on the head.
After a review of the evidence and a consideration of the defence raised by the appellant the learned trial judge Hunponu- Wusu J, found the appellant guilty of murder and sentenced him to death as earlier stated.
Dissatisfied with the decision of the High Court, the appellant appealed to the Court of Appeal, Lagos Division. Four grounds of appeal were filed. Written briefs were then filed and exchanged. In the appellants brief on page 97 of the record only one main issue and one subsidiary issue were submitted for determination as follows – .
“3. Issues For Determination:-
The main issue for determination is whether the defence of provocation put up by the accused was available to him in the light of the evidence before the court.
The subsidiary issue is whether the reaction of the accused to the provocation from the accused was disproportionate in all the circumstances of the case.”
The Court of Appeal in its lead judgment delivered by Kalgo J.C.A. (and concurred by Babalakin and Awogu JJ.C.A.) came to the conclusion that neither the defence of provocation or any other defence at all was on the facts, open to the appellant. The appeal was accordingly dismissed.
Still dissatisfied with the judgment of the Court of Appeal, the appellant has now further appealed to this Court. Only two grounds of appeal were filed.
Leaving out the particulars they read thus –
“Grounds of Appeal
- The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they held that the defence of provocation was not available to the appellant, whereas there was sufficient evidence to the contrary and thereby occasioned a miscarriage of justice.
- The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they held that the defence of accident was not available to the appellant or that the act of the appellant was not covered by section 24 of the Criminal Code and thereby occasioned a miscarriage of justice.”
Counsel filed and exchanged briefs. They were adopted and relied upon. Oral submissions were also made at the hearing. In his brief Mr Ohwovoriole learned Senior Counsel for the appellant formulated two issues for determination in the appeal. They read –
“1. Whether having regard to the evidence before the court, the justices of the Court of Appeal were right in holding that the defence of provocation was not available to the appellant.
- Whether the appellant is entitled to the defence of accident under section 24 of the Criminal Code having regard to the circumstances of this case.”
It was submitted that the defence of provocation was available to the appellant on the printed records. He said the case of the prosecution was replete with facts that there was a fight between the appellant and the deceased. He referred to the evidence of P.Ws 2, 3 & 5 and to the finding of learned trial Judge in the judgment on page 67 lines 5 -23. He also referred to the lead judgment of the Court of Appeal at page 121 lines 2 -7. It was contended that the record showed that the High Court and the Court of Appeal both rejected the defence of provocation put forward by the appellant solely on the account of lies allegedly told by the appellant. It was then submitted that the lower courts were wrong because it is settled law that an accused person cannot be convicted on the ground that he tells lies. He cited the case of Nwosu v. The State (1986) 4 NWLR (Pt.35) 348 at 349 in support. He said since the deceased met his death during the fight with the appellant, the appellant must have been provoked to have done what he did. He referred to the case of Obaji v. The State (1956) NMLR 417: Oladiran v. The State (1986) 1 NWLR (Pt.l4) 75.
It was also counsel’s view that on the facts and findings of the lower courts referred to above it was obvious too that the defence of accident was available to the appellant. He referred to section 24 of the Criminal Code and to the cases of Bello & Ors v. Attorney – General of Oyo State (1986) 5 NWLR (Pt.45) 282; Adelumola v. The State (1988) 1 NWLR (Pt.73) 683; Ogundiyan v. The State (1991) 3 NWLR (Pt.181) 519.
It was submitted that since the pliers (EXHIBIT E) was not intended for any particular part of the deceased’s body, the fact that it hit him on the head was purely accidental. If the pliers had hit him on the back, buttock or leg, he could not have died, he added. The court was urged either to acquit and discharge the appellant or reduce the offence to that of manslaughter since the appellant had no intention of killing the deceased.
Responding Mr Rhodes- Vivour learned Director of Public Prosecution submitted that the defence of provocation of any defence known to criminal law must be premised on established facts. He said it was clear from the record that the extrajudicial statements of the appellant (Exhibits C & D) so redically conflicted with his oral testimony in court that no reasonable tribunal would believe any of them. That the trial court founda as fact that the appellant was not pushed into the lagoon by the deceased as was claimed. The trial court also found as a fact that the deceased did not take the ignition key of appellant’s vehicle. He said the court accepted the evidence of the prosecution that the appellant chased the deceased round the vehicle and later threw the pliers at him. Unless findings of facts are perverse an appeal court will not substitute its own views for that of the trial court. The defence of provocation was therefore not available to the appellant. No foundation was laid for it he stressed. He referred to the following cases –
Thomas Olufosoye v. The State (1986) 2 S.C. 325; Adegbesan v. The State (1986) 4 S.C. 28; Ogoala v. The State (1991) 2 NWLR (Pt.175) 509; Bakare v. The State (1987) 3 S.C. 1 at 23 -24; (1987) 1 NWLR (Pt.52) p, 579.
On the defence of accident, it was submitted that since it was clear that it was the appellant’s voluntary act of throwing the pliers at the deceased which hit him on the head, that caused the death of the deceased and amply supported by the evidence of the medical doctor (P.W.1), the act of throwing the pliers was deliberate. The defence of accident was therefore not open to the appellant. He cited in support – Stephen v. The State (1986) All NLR 25 (1986) 9 NWLR (Pt.46) 978; R. v Ukong; R. v. Golder (1961) 1 WLR 1169 at 1172.
It was submitted that the defences of provocation and accident are different, inconsistent and irreconcilable and should be rejected. We were urged to dismiss the appeal.
It is settled law that to avail himself of the defence of provocation, the appellant must have done the act for which he is charged-
(i) in the heat of passion;
(ii) the act must have been caused by sudden provocation;
(iii) the act must have been committed before there was time for passion to cool; and
(iv) the mode of resentment must be proportionate to the provocation offered.
These four requirements must co-exist before the defence can succeed. (See Obaji v. The State (1965) All NLR 282: Stephen v. The State (1986) 5 NWLR (Pt.46) 978.
I have earlier on above set out the facts of the case which the trial court accepted. The trial court in its judgment considered the issue of provocation against this background starting from page 69 of the record and concluded on page 76 thus-
“In view of the foregoing, I am unable to agree with the defence that there was provocation………and I so hold. So that the act of throwing EXHIBIT E was not done in the heat of passion.”
The Court of Appeal also on page 120 had this to say-
“From the admissible facts of this case as narrated by the prosecution witnesses, I agree with the learned trial Judge in his finding that there is no defence of provocation or any defence at all available to the appellant for doing what he did.”
I agree entirely with the finding that the defence of provocation failed completely. There was amongst others no evidence of any act of provocation offered by the deceased to the appellant as required by Obaji v. The State above.
The defence of accident is being raised for the first time in this Court. It was neither raised in the trial High Court nor in the Court of Appeal. Respondent’s counsel said the two defences of provocation and accident are contradictory and inconsistent and for that reason ought to be rejected. I will also reject this submission. I believe it is a principle of criminal justice that a defence raised by an accused person ought to be adequately considered however weak, foolish or unfounded such a defence may appear. It is also immaterial to the consideration of such defences whether they are contradictory or inconsistent provided they are available on the totality of evidence before the court as in the case herein, and not merely being formulated in the address or brief of counsel (See Stephen v. The State (supra).
Having said that, I have carefully read through the entire record of proceedings and particularly the judgments of the High Court and that of the Court of Appeal and I am unable to find anywhere any of the two courts considered section 24 of the Criminal Code and corne to the conclusion that it (the defence of accident) was not open to the appellant. Although ground 2 of the grounds of appeal before this Court (see above) alleged that the Court of Appeal erred in holding that the defence of accident was not available to the appellant; neither in the ground of appeal before the Court of Appeal nor in the briefs filed in respect thereof, was the defence of accident raised. The Court of Appeal therefore did not say anything in its judgment about the defence of accident. The ground of appeal therefore under normal circumstance qualified for striking out.
But being a defence which I think was equally open to the appellant on the totality of evidence before the court it will have to be considered (see Stephen v. The State) (supra). The facts are the same as narrated when I considered the defence of provocation earlier on. I do not have to repeat them all over again. Suffice it to say that both the High Court and the Court of Appeal had found as a fact that the appellant did not intend to kill the deceased nor cause him grievous harm when he threw EXHIBIT E at him during the fight. They however found that he intended to cause him harm. The appellant in fact, in his own explanation in court said he threw EXHIBIT E at the deceased in order to stop him. So I have no difficulty in agreeing with the finding of the lower courts that the appellant obviously intended to harm the deceased and he did. He threw EXHIBIT E at him. It hit him and the deceased fainted. He had stopped him. There was therefore no question of any accident. The defence of accident must therefore fail just like that of provocation before it.
What is now left to be considered is whether on the established facts before the trial judge, the appellant was properly convicted of murder as charged. It is common ground in this case that there was a fight between the appellant and the deceased when the former at a stage threw the pliers (EXHIBIT E) at the latter. It hit him on the head and this finally led to his death. The learned trial Judge said on page 67 of the judgment that –
“The 2nd P.W., 3rd P.W. and 5th P.W. as well as the accused himself staled that there was a fight on the 29th December, 1984 between the deceased and the accused person………..
That aside both the prosecution and the accused agreed that the fight lasted for sometime. According to the prosecution the accused was chasing the deceased round the vehicle until the accused got exasperated, took the pliers from the dashboard of the vehicle and threw it at the deceased. His intention was to stop the deceased. Unfortunately the plier hit the deceased on the head.”
In the Court of Appeal Kalgo, J.C.A. in his lead judgment on page 121 stated-
“From the facts of this case, there is no doubt that the appellant by throwing the plier at the deceased, could not have learned him, but only to cause him (deceased) some injury which may not necessarily be dangerous to life.”
The above findings by the two lower courts are clearly based on the facts as disclosed by the prosecution witnesses in court. The act of the appellant and the surrounding circumstances can in no way be interpreted to mean that he intended to kill the deceased or to cause him grievous harm. It is certainly good law that a person should be taken to intend the natural and probable consequences of his action (See Philip Dim v. The Queen 14 WACA 154), but on the facts as a whole it cannot be inferred that the appellant either intended to kill or to cause grievous harm. The trial court said clearly that his intention was to stop the deceased and not to kill him and the Court of Appeal agreed saying that his intention was to cause the deceased some injury only which may not necessarily be dangerous to life and not to kill him. It is important to remember that there was no evidence that the appellant directly aimed EXH. E at the head of the deceased. This makes the task of drawing inferences even more difficult. Now, the offence of murder is defined in section 316 of the Criminal Code as follows-
“316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:
(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) ………………………..
(4) ………………………..
(5) ………………………..
(6) ………………………..
is guilty of murder.”
It is therefore doubtless that the appellant could not have been properly convicted for murder in the circumstances when as found by the lower courts the appellant neither intended to cause death nor to cause the deceased grievous harm.
It must be grievous harm and not just harm, that must have been intended. (See section 1 of the Criminal Code). The charge of murder was therefore not proved.
I agree with the Court of Appeal, as the evidence disclosed, that there is no doubt that the appellant by throwing EXH. E at the deceased must have intended to cause-him harm only and not grievous harm
In the circumstances therefore this appeal must succeed. The verdict of guilty of murder and the sentence of death passed on the appellant by the High Court and confirmed by the Court of Appeal are set aside and a verdict of manslaughter and a sentence of imprisonment for seven (7) years substituted therefor. The sentence shall run from 10th October, 1986, the date of conviction in the High Court.
Other Citation: (1993) LCN/2544(SC)
