Solomon Adekunle V. The State (2006)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
The appellant in this appeal was a sergeant in the Nigeria Police Force.
On 7-2-1997, he was on Anti-Crime Patrol duty along Sagamu Benin Express- Way. The patrol team was under the command of an Assistant Superintendent of Police. On arrival at the Express-Way, the commander of the team divided it into two. The appellant’s team was stationed along the Benin-Sagamu side of the Express Way.
The Commander and his other team were on the Sagamu Benin side. The two teams were about 100 meters apart.
Not long after the arrival of the patrol teams and taking their positions, the Commander of the team heard gun shots from the Benin-Sagamu side of the express-way. He shouted and asked who fired the gun shots. He saw the appellant walking towards a moving bus with passengers. The appellant replied to the Commander’s question that the gun shots were fired by him. The Commander asked the appellant why he fired the gun shots. There was no reply from the appellant. The Commander then quickly disarmed the appellant before moving towards the bus where he found three men and a girl, Alice Tominiyi inside the bus had been hit by the bullets from the gun shots fired by the appellant. The victims were taken to the hospital where the girl Alice eventually died on 8-2-1997.
The appellant after the completion of the investigation of the case, was charged before the Ijebu-Ode High Court of Justice of Ogun State for murder of Alice Tominiyi contrary to section 319(1) of the Criminal Code Law of Ogun State. In the course of the trial which the prosecution listed seven witnesses to be called, in the end only two witnesses gave evidence for the prosecution. They are the commander of the patrol team and the investigating police officer.
The two witnesses having testified-in-chief and duly crossed examined by the learned counsel to the appellant, the prosecution closed its case in the absence of the remaining witnesses who could not be procured to testify. There and then when the appellant was called upon to defend himself on the charge against him having regard to the evidence adduced by the prosecution, his learned counsel informed the court that the appellant was resting his case on that of the prosecution and therefore the defence was not adducing evidence.
After taking final addresses from the learned counsel on both sides, the learned trial Judge in his judgment delivered on 13-10-2000, came to the conclusion that the prosecution had proved its case of murder against the appellant and convicted him accordingly by passing a sentence of death upon him. The appellant’s appeal to the Court of Appeal, Ibadan was equally dismissed by that court in its judgment delivered on 28-11-2001. The appellant is now on a final appeal to this court against his conviction and sentence.
Issues for determination in this appeal arising from the grounds of appeal filed by the appellant contained in the appellants brief of argument are:-
“1. Whether having regard to the failure of the prosecution to comply with the mandatory provisions of section 319(1) of the Criminal Procedure Law, Cap. 29, Laws of Ogun State and section 33(6) of 1979 Constitution of Federal Republic of Nigeria, the learned Justices of Court of Appeal were right to have affirmed the appellant’s conviction – Ground 1.
- Whether having regard to appellant’s statement (exhibit A) and other evidence before the court, the learned Justices of Court of Appeal were right in rejecting the defence of accident – Ground 2.
- Whether having regard to the totalities of admissible evidence, the learned Justices of Court of Appeal were right in affirming the appellant’s conviction for the offence of murder (without substituting manslaughter therefore) – Ground (sic) 3 and 4.”
The complaint of the appellant in the first issue for determination is that not having been charged for the offence of murder contrary to section 316 and punishable under section 319(1) of the Criminal Code Law, Cap. 29, Laws of Ogun State, his charge and conviction under section 319(1) alone is irregular. The conviction and sentence must be set aside as the charge against him did not disclose an offence known to law. There being no compliant that the appellant was misled by the description of the offence and the ingredients thereof in the 5 charge, nor misled in the preparation of his defence having adopted the case of the prosecution, the trial of the appellant under the charge cannot be vitiated. This is so when the appellant is not even complaining that the irregularity had occasioned a miscarriage of justice. See Ogbodu v. The State (1987) 2 NWLR (Pt.54) 20 at 49. This issue therefore which appeared to have been raised rather half heartedly as the appellant was not complaining of any denial of justice, must fail.
The real issue for determination in this appeal is the second issue of whether the defence of accident under section 24 of the Criminal Code, Cap. 29, Laws of Ogun State is available to the appellant having regard to the evidence on record against him in support of his conviction. The appellant is asserting this defence on the contents of his statement to the police under caution exhibit’ A’. In that statement the appellant said that the gun he was holding at the time of the incident fell down from his shoulder and started to discharge without his intention to shoot. He said it was an accident. Section 24 of the Criminal Code under which the appellant is claiming this defence states that a person is not criminally responsible for an event which occurs by accident. The test for the defence under the section is whether the prohibited act was or was not done accidentally or independently of the exercise of the will of the accused person.
In the present case, was the act of discharging bullets from the gun carried by the appellant which resulted in the death of the deceased done accidentally or independently of the exercise of the will of the appellant The law is trite that where a person discharges a firearm unintentionally and without attendant criminal malice or negligence, he will be exempted from criminal responsibility both for the firing and for its consequences. See Iromantu v. State (1964) 1 All NLR 311. In other words, in law, for an event to qualify as an accident, such event must be the result of an unwilled act, an event which occurs without the fault of the person alleged to have caused it or an event totally unexpected in the ordinary course of events.
See Adelumala v. The State (1988) 1 NWLR CPt. 73) 683 at 692.
The defence put up by the appellant in exhibit A is that while on duty on the highway, he ordered the driver of the bus carrying the deceased and other passengers to stop but the driver refused. The appellant said he chased the driver for some distance and when the driver refused to stop, he became suspicious that the bus was carrying incriminating items. It was while he was pursuing the bus that the gun which was hanging on his shoulder fell down and started to discharge.
However, in the face of this version of the appellant’s story is the uncontradicted evidence of the commander of the Patrol Team who testified for the prosecution as PW2 in the discharge of its burden of disproving the defence of accidental discharge being claimed by the appellant as required in Sholuade v. The Republic (1966) 1 All NLR 134; (1966) 1 SCNLR 362. The evidence of PW2 is to the effect that on hearing the gun shots while he was about 100 metres away from the scene of the incident, he shouted and asked who fired the gun shots. The appellant, who the witness saw walking towards the moving bus, answered in the affirmative that it was he who fired the shots. On being asked why he fired the gun shots, the appellant kept mute. At this first opportunity to raise the defence of accidental discharge, the appellant did not tell his boss PW2 that it was the gun that fell down from his shoulder and started to discharge. This earliest opportunity to raise the defence availed the appellant right at the scene of the incident. The fact that the defence was not raised instantly until much later in the appellant’s written statement exhibit’ A’, shows quite clearly that what the appellant raised in exhibit’ A’ is not a defence of accidental discharge but something else entirely that arose from his own imagination. See Utteh v. The State (1992) 2 NWLR (Pt.223) 257 at 274. Therefore the court below was perfectly justified in rejecting the defence of accident raised by the appellant in exhibit A.
The third and last issue in this appeal is whether having regard to the evidence adduced by the prosecution, the court below was right in affirming the conviction and sentence of the appellant for the offence of murder. The stand of the appellant on this issue is that on the evidence on record of the trial court particularly the evidence of PW2 who was not at the scene of the incident and the contents of the appellant’s own statement exhibit’ A’, did not establish the offence of murder against him. Relying on the cases of Akpabio v. State (1994) 7 NWLR (Pt.359) 635 and Akpan v. State (1994) 9 NWLR (Pt.368) 347, the learned counsel for the appellant argued that the ingredients of the offence of murder had not been proved against the appellant and urged this court to discharge and acquit him.
The state (respondent) however maintained that the prosecution had succeeded in establishing all the ingredients of the offence of murder under section 319(1) of the Criminal Code against the appellant to justify his conviction and sentence. The case of Gira v. The State (1996) 4 NWLR (Pt.443) 375 at382, was called in aid by the learned counsel to the respondent who urged this court not to disturb the concurrent findings of fact of the two courts below. She urged the court to dismiss the appellant’s appeal.
From a long line of the decisions of this court, it is settled beyond controversy that to secure a conviction on a charge of murder the prosecution must prove:-
(a) that the deceased had died,
(b) that the death of the deceased was caused by the accused, and
(c) that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
See Ogba v. The State (1992) 2 NWLR (Pt. 222) 164; Monday Nwaeze v. The State (1996) 2 NWLR (Pt. 428) 1 and Gira v. The State (1996) 4 NWLR (Pt. 443) 375.
The evidence relied upon to establish a charge of murder may be direct or circumstantial. Whether this evidence is direct or circumstantial, it must establish the guilt of the accused person beyond reasonable doubt. The onus in this connection on the prosecution as a general rule never shifts and a misdirection on the question of onus of proof is fatal unless it can be shown that on a proper direction, the result would be the same. See Aruna v. The State (1990) 6 NWLR (Pt. 155) 125 and Ozaki v. The State (1990) 1 NWLR (Pt.124) 92. For circumstantial evidence to ground a conviction, it must lead only to one conclusion, namely, the guilt of the accused person.
However, where there are other possibilities in the case than that it was the accused person who committed the offence and that others other than the accused had the opportunity of committing the offence with which he was charged, such an accused person cannot be convicted of murder. See Esai & 3 Ors. v. The State (1976) 11 SC 39. Although no one who was together with the appellant at the part of the Express Way gave evidence that he saw the appellant firing the shots at the moving bus, the shots and later questioned the appellant who agreed to having fired the gun shots, that evidence leaves on one in doubt as to who caused the death of the deceased.
To establish cause of death, the position of the law is that much as medical evidence is desirable, it is clearly not a sine qua non as cause of death may be established by sufficient satisfactory and conclusive evidence other than medical evidence showing beyond reasonable doubt that the death of the deceased in question resulted from the particular act of the accused person. See Oko Agwu Azu v. The State (1993) 6 NWLR (Pt. 299) 303; Akpuenya v. The State (1976) 11 SC 269 at 278; Lori v. The State (1980) 8-11 SC 81 at 97; Edim v. The State (1972) 4 SC 160; Essien v. The State (1984) 3 SC 14 at 18 and Adekunle v. The State (1989) 5 NWLR (Pt. 123) 505 at 516.
In the instant case, the prosecution to establish its case against the appellant relied heavily on the evidence of the only two witnesses who testified at the trial in the course of which the statement of the appellant exhibit A, the medical report on the cause of death of the deceased exhibit B, the SMG rifle and five bullets exhibits C, C1, C2 and C3, were admitted in evidence. In his evidence, the commander of the Police Anti Crime Patrol Team ASP Sylvester Okparaji who testified as PW2 told the court that he was about 100 meters away from the team led by the appellant when he heard gun shots from the Benin-Sagamu part of the Express Highway. Part of this evidence at pages 25-26 of the record reads:-
“Some few minutes after my arrival, I heard gun shots from the Benin-Sagamu unit. I shouted for who fired. I saw accused walking towards a bus bound for Lagos with passengers. The accused told me he was the one who fired. I quickly disarmed him and moved towards the bus. I found out three men and a girl Alice had been hit by bullets. I rushed the victims to Ijebu-Ode General Hospital. I took the accused to Odogbolu Police Station and reported the incident. Exhibits C and C1 are the SMS and bullets recovered from the accused after disarming him. I reported to my D.P.O. I went back to see the condition of the victims. While the men responded to treatment, Alice condition however deteriorated and I got her transferred to OSUTH, Sagamu. I bought blood for the girl but on 8-2-97, her condition became worse and she eventually died.”
However, in the statement of the appellant exhibit ‘A’ tendered by PW1 which also forms part of the case of the prosecution, the appellant who refused to explain to PW2 why he fired the gun shots, claimed in exhibit’ A’ which was written after the day of the incident, that the firing of the gun was caused by its falling down from his shoulder to the ground. The learned trial Judge in his judgment rejected the defence of accidental discharge put up by the appellant in exhibit ‘A’ and accepted the uncontradicted evidence of PW2 that the appellant fired the gun shots at the moving bus carrying passengers. As a result of this shooting at the bus by the appellant, four persons in the bus were hit by the bullets from the gun fired by the appellant. As a result of the injuries sustained by the victims, one of them a girl, Alice Tominiyi died on 8-2-1997.
After very carefully evaluating the entire evidence on record, the learned trial judge found the appellant guilty of the offence of murder and convicted him accordingly. The appellant was sentenced to death. On appeal, the appellant’s conviction and sentence were affirmed by the Court of Appeal. The effect of these concurrent findings of fact which the appellant has to face in convincing this court to set aside his conviction and sentence is well settled. It is that this court will not interfere with the concurrent findings of the lower courts on issues of fact except there is established a miscarriage of justice, a perverse decision or a violation of some principle of law or procedure. See National Insurance Corporation of Nigeria v. Power and Industrial Engineering Co. Ltd. (1986) 1NWLR (Pt.14) 1;Enang v. Adu (1981) 11-12 SC 25; Nwagwu v. Okonkwo (1987) 3 NWLR (Pt. 60) 314; Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561 and Ubani v. The State (2003) 18 NWLR (Pt. 851) 224 at 247. In the present appeal there being nothing that was urged by the learned counsel to the appellant to bring the concurrent findings of the guilt of the appellant within the ambit of the exceptions, the appeal must fail. With the overwhelming evidence on record against the appellant from the only two witnesses who testified for the prosecution in proving all the ingredients of the offence of murder against the appellant, his chances of success were compounded by his resting his case on that of the prosecution, the implication of which is that he is presumed to have accepted that the evidence against him is exactly as stated by the prosecution.
I cannot end this judgment without commenting on the efforts made by the police to frustrate the action of the prosecution to successfully prosecute this case against their colleague. Although the incident that led to the death of the deceased, Alice Tominiyi took place in the presence of all the five members of the PW2 ASP Sylvester Okparaji’s Police Anti-Crime Patrol Team on 7-2-1997, who were therefore all competent witnesses for the prosecution, only PW2 was made available to the prosecution. Not only that, the prosecution in its application to the trial court gave the names of seven witnesses with their full addresses the prosecution wanted to call in the course of the trial but only the two witnesses who testified in this case were served. The remaining witnesses could not be procured for the prosecution up to the end of the trial in the course of which it was revealed that even the police case diary containing relevant documents necessary for the effective prosecution of the case was missing from the custody of the police. Clearly, if it were the police who were put in full control of the prosecution of this case against their colleague, perhaps the result would have been different. To this end, the learned counsel for the prosecution at the trial court from the Ministry of Justice of Ogun State, ought to be commended for diligently handling this case particularly in overcoming all the obstacles placed on the path of the prosecution at the trial to ensure the attainment of justice.
On the whole therefore, this appeal lacks merit and the same is hereby dismissed. The conviction of the appellant for the offence of murder under section 319(1) of Criminal Code, Cap. 29, Laws of Ogun State and the sentence of death passed on him by the trial High Court and affirmed by the court below, are hereby affirmed.
SC.52/2002
