Shina Oketaolegun V The State (2015)
LAWGLOBAL HUB Lead Judgment Report
SULEIMAN GALADIMA, J.S.C.
This is an appeal against the Judgment of Court of Appeal Ibadan Division delivered on the 14th day of April, 2008. The Appellant herein was arrested along with one Kingsley Omoregie on the grounds that they murdered one Engineer Samuel Fakoya. They were accordingly arraigned before the High Court of Ogun State sitting at Ijebu-Ode, presided over by Hon. Justice Ibikunle Adesalu on a two count charge of Conspiracy to commit murder and murder contrary to Section S.325 and 316(2) and punishable under Section 319(1) of the Criminal Code Law cap 29 Laws of Ogun State of Nigeria 1978. The charge reads thus:
STATEMENT OF OFFENCE:
COUNT 1:
CONSPIRACY TO MURDER contrary to Section 324 of the Criminal Code Law (Cap.29) Laws of Ogun State of Nigeria, 1978.
PARTICULARS OF OFFENCE:
KINGSLEY OMOREGIE (M) and SHINA OKETAOLEGUN (M) on or about the 27th day of August, 2002 at Ikoto-Ijebu in the Ijebu-Ode Judicial Division conspired to murder one Engineer Samuel Fakoya.
STATEMENT OF OFFENCE:
COUNT II:
Murder, contrary to Section 316 (2) and punishable under Section 319 (1) of the Criminal Code Law (Cap.29) Laws of Ogun State of Nigeria, 1978.
PARTICULARS OF OFFENCE
KINGSLEY OMOREGIE (M) and SHINA OKETAOLEGUN (M) on or about the 27th day of August, 2002 at Ikoto-Ijebu in the Ijebu-Ode Judicial Division murdered on (sic) Engineer Samuel Fakoya.”
To prove the charge, at the trial High Court, against the accused, the prosecution called 5 witnesses and tendered Exhibits, namely a yellow marine rope, two knives and Medical Report.
The evidence adduced at the trial by the prosecution revealed that on 24/8/2002 at about 3:30pm, Kingsley Omoregie, the 1st accused, who was an employee of the deceased went to the deceased’s house in company of the Appellant herein. He saw PW1, a school teacher who lived with the deceased, sitting under a tree in the compound. His suspicion was aroused as to the mission of the 1st accused and he had to call the vigilante men, on his return he met the door of the main house locked. He used a ladder to get to the balcony where he saw the 1st accused in the sitting room on sighting him, the 1st accused ran into one of the rooms, took to his heels and disappeared. PW1 shouted and when he called the deceased but he received no response. On getting down the stairs he saw the deceased in a sitting posture with his two hands tied to the railings of the steps with blood on his head and three deep wounds on his chest and abdomen. PW1 untied the deceased and rushed him to a nearby hospital and later transferred him to Ogun State University Teaching Hospital, Shagamu, where he died. The vigilante men whom PW1 had earlier sought for their assistance surrounded the deceased’s house and arrested the accused persons and handed them over to the police. The investigating police officer, one Goddy Osuyi, who testified as PW3, told the court that he recovered the marine rope, which was tendered as Exhibit ‘B’, and two knives marked as Exhibits ‘C’ and C1 and, the Medical Report from the Medical Doctor, who performed the post – mortem examination on the deceased, Exhibit D.
When the prosecution sought to tender the statements of the accused persons but objection was taken on the voluntariness of the statements and it was sustained, hence the statements were rejected. It is also note worthy that at the end of prosecution’s case, the accused made a no – case submission but they were overruled and were therefore called upon to enter into their defence.
Each of the accused testified to his defence and was cross-examined but called no further evidence.
They both denied killing the deceased. Learned counsel for the accused and defence submitted a lengthy address at the trial. In his reserved considered judgment delivered on 7/3/2005, the learned trial judge found the accused persons guilty on both accounts, convicted them and sentenced them to death by hanging. They both appealed against the conviction and sentence by filing separate Notices of Appeal on 1/4/2005. In their well considered judgment, the learned justices of the Court of Appeal, considered the sentence of the Appellant herein, and reduced same to attempted murder. It is against this conviction and sentence for life imprisonment that the appellant has appealed to this court. He sought for leave to appeal and it was granted on 28/11/2012 and in the Notice of Appeal 7 grounds are reproduced hereunder, with their particulars:
GROUNDS OF APPEAL:
“(1) The learned Justices of Court of Appeal erred in law in convicting the 2nd appellant of attempted murder when there was no evidence to establish a charge of attempted murder against the 2nd appellant.
(2). The learned justices of Court of Appeal erred in law in upholding the conviction of the 2nd appellant on merely circumstantial evidence.
PARTICULARS
(a) The prosecution’s case was based solely on circumstantial evidence.
(b) It is trite that circumstantial evidence must point to no other fact but that the accused committed the crime.
(c) In this case the circumstantial evidence was not conclusive to warrant a conviction.
(3) The learned justices of Court of Appeal erred in law in upholding the conviction of the 2nd appellant of attempted murder when it had not been shown that the 2nd appellant had any motive for killing the deceased.
PARTICULARS:
(a). In convicting an accused of a crime there must be men’s rea and actus reus.
(b). If this case no motive of men’s rea was shown before the court to warrant a conviction.
(c). This was an error committed by the court.
(4) The learned justices of Court of Appeal erred in law by reducing the sentence of death to life imprisonment.
PARTICULARS
(a). The Court of Appeal found that the stab wound did not kill the deceased.
(b). As a result the conviction was reduced to attempted murder from murder.
(c). This ought not to be as the court ought to have freed the 2nd accused.
(5) The learned justices of Court of Appeal erred in law in reducing the sentence of death to life imprisonment when there was no evidence to sustain a conviction and the court ought to have freed the 2nd accused.
(6) The learned justice of Court of Appeal erred in law in upholding the conviction based on circumstantial evidence when the available evidence before the court was not sufficient to establish a conviction based on circumstantial evidence.
(6) The learned justice of Court of Appeal erred law in upholding the conviction against the 2nd accused when there was no evidence to support such a conviction against the 2nd accused.
(7) The learned appeal justices erred in law in convicting the 2nd appellant of conspiracy to commit murder.
PARTICULARS:
(a). To found a conviction of conspiracy, there must be common intention shown.
(b). In this case no common intention was shown to warrant a conviction for conspiracy.
RELIEFS SOUGHT FROM THE SUPREME COURT.”
The 3 issues formulated on behalf of the Appellant by learned counsel, Oladipo Olasope Esq, in the brief argument filed on 28/3/2013, for determination of the appeal, are as follows:
“(i). whether the Court of Appeal was right in convicting the accused of attempted murder (Grounds 1, 4, 5)
(ii). whether it was shown before the court that the accused had any motive (mens rea) for killing the deceased (Grounds 3, 7).
(iii). whether the Court was right in convicting the accused based on circumstantial evidence which was not conclusive.”
On the other hand, the learned counsel for the Respondent in the brief of argument deemed filed on 28/1/2015, raised the following 2 issues for determination.
“A. Based on the facts of the case was there enough circumstantial evidence adduced by the prosecution to prove beyond reasonable doubt that the Appellant herein was guilty of the offence of attempted murder – (Grounds 2 and 6).
B. Based on the facts of the case did the prosecution prove the offence of Conspiracy against the Appellant to warrant a conviction – (Ground 7.)”
One noticeable trend which this court has over and over deprecated is the lack of diligence shown by some counsel in settlement of their brief of argument. It must be remembered that brief is a very important process in the appellate court. It is in it the parties posit propositions of law or facts as issue(s) for determination in the appeal, which determination by the appeal court would decide the fate, the success or failure of the appeal. The issues for determination must arise directly from or directly relate to the grounds of appeal already filed. Both counsel, particularly counsel for the Respondent, have not demonstrated the diligence required of them.
The language used in the brief should be clear and precise. References cross – references and citations of authorities should be indicated with due care. This is what the court will consider at the hearing of the appeal. The oratory or charming advocacy would not prevail over written brief; hence the need for the counsel for the respective parties to display skills and diligence in the preparation of their briefs.
What the 3 issues raised by the Appellant and the two by Respondent for determination, boil down simply to in my mind is:-
“Whether in the circumstances of this case, the prosecution has proved ifs case beyond reasonable doubt that the appellant was guilty of the offence of attempted murder.”
The grouse of the appellant herein is that he had no connection or relation with the deceased; that he was only a friend of Kinsley Omeregie, a co-accused who was a former employee of the deceased. That all he did on that fateful day was only to escort his friend to the house of the deceased to collect his outstanding salaries. With this background information, the learned counsel has contended apparent that it is that the appellant had no motive at all to kill the deceased. That throughout the trial, the prosecutor did not establish that he could have formed any intention (mens rea) and he did kill (actus reus) the deceased. That the two basic elements required to ground criminal responsibility, that is, mens rea, actus reus are lacking in this case. Reliance was placed on the cases of ABEKE v. STATE (2007) 9 NWLR (Pt.1040); AKPAN v. THE STATE (2008) 14 NWLR (Pt.1106) 72.
It is further submitted that since no common intention was shown to have existed warranting conviction for murder or attempted murder, a charge of conspiracy ought to fail, relying on NWALI v. STATE (1991) 3 NWLR (Pt.180). That the court below reduced the conviction of the appellant from murder to attempted murder because death was not established nor was it caused by the alleged stabbing of the deceased; and therefore the appellant ought to have been freed.
Relying on the medical Report Exhibit ‘D’ learned counsel submitted the said report shows that the cause of death was attributed to acute cardiac pulmonary failure due to his diabetic and hypertensive conditions. It is argued that in a trial for murder, there must be clear evidence before the court that the death of the deceased was caused by the accused, to the exclusion of all other reasonable probable cause. It is submitted that the findings by the court below at page 181 of the record showed that the necessary ingredients for the offence of murder were missing. That the reference of the court below to Section 315 and 317 of the Criminal Code, contemplate a situation where the unlawful acts of the accused caused the death of the deceased, unlike in this case where it has been shown that the acts of the appellant, if any, did not result in the death of the deceased.
On the issue of whether the circumstantial evidence was sufficient to convict the appellant; learned counsel submitted that for a court to convict on circumstantial evidence, the said evidence must point to one possibility only and that is the offence was committed by the accused. That when the evidence is capable of two interpretations, such conviction must fail. Refers to STATE v. NAFIU RABIU (1980) 1 NCR 47 at 71.
It is further submitted that circumstantial evidence must be cogent, compelling and irrestible to warrant the conviction of the accused. That in this case the circumstantial evidence is not conclusive because the three basic conditions were not satisfied namely: the fact that there are some pieces of evidence against the accused and none against anyone else; that the accused is more likely to have been guilty than anyone else; and that the accused had the opportunity of committing the crime. On this last ingredient, the learned counsel submitted that there is no iota of evidence cogent to point to the conclusion that the accused had the opportunity of committing the crime; That the evidence of PW1, a key prosecution witness, did not state that he saw the deceased alive, prior to the time the accused entered the house. It is contended that there is a window of doubt capable of more than one interpretation and as such the circumstantial evidence cannot ground the conviction of the appellant; and the accused must be set free. He relies on NAFIU v. STATE (supra), IJIOFOR v. STATE (2001) FWLR (Pt.49) 1457 at 1474; AJOSE v. STATE (2007) 7 NWLR (Pt.215).
On the part of the Respondent, the learned counsel has submitted that the case of the prosecution at the trial court was that there was enough circumstantial evidence adduced to prove beyond reasonable doubt that the Appellant herein was guilty of the offence of attempted murder. He submitted that it is not disputed that at all material time only the appellant and his friend Kingsley Omoregie, PW1 and the deceased were in the premises where the deceased was murdered in cold blood. It is submitted that all the circumstantial evidence adduced by PW1 against the appellant points irresistibly, positively, conclusively that after the deceased had matcheted and murdered the deceased, took to their heels with the appellant with a matchet in his hand but was arrested along with his co-accused with the aid of the villagers three days after. It was the appellant who led, the investigating police officer to the bush where the matchet with which they hacked the deceased was hidden.
Learned counsel submitted that the appellant and his co-accused had formed common intention to go to the house of the deceased to collect salaries owed to the appellant’s friend (Kingsley Omoregie). That they had intention to cause grievous bodily harm. That there was no need to prove that the Appellant intended to cause the death of the deceased, so long as he acted willfully in doing the act which led to the death of the deceased. He relies on KINGSLEY OKORO v. STATE (unreported – Appeal No.CA/B/90/2009 delivered 11/12/2010, IGAGO v. THE STATE (1999) 14 NWLR (Pt.637) 1.
In the final analysis the learned counsel submitted that the evidence against the Appellant was overwhelming and although circumstantial in nature but very cogent, clear and convincing. That the possibility of another person (apart from the Appellant and the co – accused committing the crime was remote. He urged the court to affirm the decision of the court below and to dismiss the appeal.
May it be noted from outset that the evidence relied upon at the trial of the Appellant and his co-accused was on circumstantial evidence but not on their confessional statement, which the learned trial judge had rejected on the ground that there was no compliance with the procedure laid down in the Police Regulations and Authorities, to determine the voluntariness of the Exhibits.
Circumstantial evidence is nothing more than evidence of surrounding circumstances which by their nature is capable of establishing a proposition, such as the criminality of an accused person with the highest exactitude: See AKPAN v. THE STATE (supra). It is a combination of evidence of circumstances against an accused when taken together; creates strong conclusions of his guilt with high degree of certainty. It is very often the best evidence, sparingly applied because of possibility of fabrication which may cast suspicion on innocent person. See: MOSES JUA v. THE STATE (2010) 1-2 SC. 96, AKPAN ARCHIBONG v. THE STATE (2006) 5 SCNJ 202, NAFIU RABIU v. THE STATE (Supra), IJIOFOR v. STATE (Supra). For circumstantial evidence to ground a conviction, it must lead to one conclusion, that is, the guilt of the accused person whose evidence helps appellant to acquittal, as it leaves room for such acquittal. In that case the prosecution is said not to have proved its case beyond reasonable doubt.
To my mind the following pieces of circumstantial evidence are considered sufficient enough for a conviction of the appellant herein. At pp 35 -36 of the record, one Aina Ibukunola Babatunde, a neighbor of the deceased testified as PW1 in his evidence – in – chief admitted as Exhibit ‘A’ as follows:
“I am a teacher at Ijebu – Ode Grammar School, Ijebu – Ode. I live at 1, Fakoya Street, Ikoto via Ijebu-Ode. I know the accused persons. I remember 27/8/2002: On that day I was sitting under a tree at the Late Chief Fakoya’s compound. No.1. Fakoya Street, Ikoto, Ijebu-Ode. The time then was 3.30pm. Then I looked up and saw the two accused persons entered through the gate of the compound. I was surprised to see the 1st accused because a few weeks previously he had stolen the Bus belonging to the Late Chief Fakoya. O.P.C. people had then arrested him and brought him to Ijebu to the house of the Late Chief Fakoya. This was before 27/8/2002. Somehow he managed to escape. I was then surprised to see him again on 27/8/2002 with the 2nd accused. I then jumped the fence and alerted the vigilante around. Then the vigilante people and I entered the compound but could not entered through the main house because the accused persons had locked the collapsible gate of the main house from inside. I then had to use a ladder to climb the balcony. As I landed at the balcony I saw 1st accused from the sitting room. 1st accused was shocked to see me and the 1st accused ran into the rooms and escaped. Then I called on the vigilante people in the compound to gather round the house to arrest him. The accused persons were later arrested outside the house by the vigilante people. I then started to call late Chief Fakoya’s name round the rooms but I heard no answer. But as I got down the stairs I saw deceased sitting there with his two hands tied to the railings of the step. I saw blood on his head and three deep wounds – one on the chest and two at the abdomen. I untied the rope, carried him into the Bus and rushed him to Lanik Hospital at Imoru and from there he was transferred to OSUTH at Shagamu. I left the late Chief Fakoya at Lanik Hospital and came back home. I then went to report at the Police Station Igbeba Ijebu-Ode. On the stairs where late Chief Fakoya was tied I also saw a knife and another similar but broken knife in the bedroom. I also saw children school bag on the floor of the bedroom.”
The accused persons testified in their defence, after their no case submission had been overruled. The 1st accused, Kingsley Omoregie, denied killing Chief Fakoya but admitted that he visited his house in the company of his friend (appellant herein) on the fateful day to collect the arrears of salary the deceased was owing him. In his evidence at page 76-77 of the record he stated as follows:
“I did not conspire with 1st accused to kill Engineer Fakoya. I did not kill the deceased with 1st accused by stabling him and tying him with rope. 1st accused was our customer in our workshop at Ibadan, then he brought his father’s car to our workshop for repairs. My master told him that the spare part can only be obtained in Lagos, 1st accused told my master that he had no money on him. Then he came back the following day and asked my master to give him someone to accompany him to Ijebu-Ode where he would collect his salary from his boss and proceed from there to Lagos to buy the spare part. Then my master asked me to follow 1st accused. Then we got to Ijebu-Ode and enter the company (sic) ‘compound’ where 1st accused saw someone sitting under the tree and he waved him and we entered the house. As we were going on the steps we saw the deceased on the step in a pool of blood and tied. 1st accused became afraid and 1st accused ran towards the back of the house and I followed him. We got outside I asked 1st accused who was that in a pool of blood and he answered that, that was his boss. The people accousted (sic) us and asked what happened inside. We were brought back into the compound. Later we were handed over to the Police.”
The evidence of the 1st accused was corroborated by the Appellant when he stated that when they were climbing up the steps they saw the deceased who was tied to the railings of the step. The 1st accused became afraid and ran towards the back of the house and the appellant followed him. He then asked about the identity of the person in the pool of blood and the 1st accused told him that the man was his boss. These pieces of evidence were corroborated by those of PW1.
The Learned trial judge when considering the evidence of the PW1, the star witness along side of those of the accused persons, believed the evidence of PW1 that the 1st accused stole the bus of the deceased and that was why PW1 was surprised when he saw the 1st accused again in the compound on 27/8/2002. After a careful assessment of the evidence proffered by the prosecution and the accused persons, the learned trial judge at page 90 of the record stated thus:
“Leaving aside PW1’s version on this point, it is clear from the evidence of the accused persons that they were the first to see the deceased tied and in a pool of blood as they also testified that they never saw PW1 in the house nor did he also see them inside the house. The accused persons presence alone in the house that crucial time gave them opportunity to commit the crime.”
I agree with the learned counsel for the appellant that the circumstantial evidence adduced by the prosecution should be used sparingly with great care before relying on it to convict the accused because such evidence may be fabricated to cast suspicion on innocent persons. However, in this case, learned counsel, with due respect, has not shown why PW1 should fabricate any evidence to implicate the accused persons.
Very important point has been made here to the effect that since the 1st accused said that it was the deceased who called him on phone that he should come for his arrears of salary the deceased was owing, one would have expected that the reasonable thing 1st accused should have done on sighting his boss in a pool of blood was to quickly raise alarm, instead of escaping through the back door of the premises of the deceased. Moreover, the Appellants could not explain how the door to the main house was locked when they were already in the house. These circumstances pointed to the fact that they and none else carried out the stabbing and tying up the deceased. The learned trial judge in the circumstance rightly found that it was the accused persons who had the first opportunity to commit this heinous and barbaric crime. The prosecution therefore, satisfactorily discharged the burden of proving that it was the accused persons that killed the deceased.
The medical report produced by Dr. Izegbu Matthew Chukuma was received in evidence as Exhibit ‘D’. He stated that the cause of death was due to acute cardio-pulmonary failure due to diabetes hypertension. He however stated that the post mortem examination he conducted on the deceased did not show that the injuries found on the body of the dedeased were self-inflicted. That fact that the deceased did not die immediately, therefore it cannot be said with absolute certainly that it was the stab wounds the deceased received that caused his death. He was found to be diabetic and hypertensive. The prosecution must in a criminal trial establish the cause of the death of the deceased. On this point the Court of Appeal at page 181 of the record had this say:
“The prosecution has therefore not established conclusively that the death was caused by the act or omission of the accused persons. There is no dispute that Engineei Samuel Fakoya is dead and the act of the accused was intentional and was done with the knowledge of causing grievous bodily harm. The diabetes and hypertensive he was suffering from must have contributed to his eventual death. The prosecution in my view established a case of attempted murder against the accused.”
Section 316 sets out the circumstances in which an unlawful killing would amount to murder. Section 317 provides:
“A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter.”
The position of the law is that to establish a charge of murder or manslaughter, it must be proved not merely that the act of the accused could have caused the death of the deceased but that it actually did. No matter how reckless the conduct of the accused might be, so long as the killing that resulted from his act was not intended, that act would not fall within the provision of S.316 of the Criminal Code (supra) and therefore would not constitute murder. See SHOSIMBO v. THE STATE (1974) ALL NLR 603; (1974) 10 SC.59, OMINI v. THE STATE (1999) 12 NWLR (pt.630) 168 at 182; (1999); 72 LRCN 3044.
The court below correctly reviewed the evidence led by both the prosecution and the defence, particularly the testimonies of PW1 and DW1 and DW2 and rightly concluded that Sections 320 and 325 of the Criminal Code respectively apply to the circumstances of this case, which warrant an interference with the verdict of the trial court. I agree that the appellant was appropriately found guilty of attempted murder or manslaughter.
I need not waste my time in going into the conspiracy theory as this point did not necessarily arise in the court below and did not form the basis for the conclusion arrived at by that court.
In the circumstance, the appeal is hereby dismissed. The judgment of the court below is hereby affirmed.
SC.334A/2012
