⦿ CASE SUMMARY OF:
Kingsley Okoro v. The State (2012) – CA
– Attempted Murder;
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Helen Moronkeji Ogunwumiju, J.C.A
* FOR THE APPELLANT
– J. O. Oweibo Esq.
* FOR THE RESPONDENT
– O. F. Enenmo.
⦿ FACT (as relating to the issues)
The facts that led to this appeal are as follows: The Appellant and the deceased were husband and wife living together. The Appellant was the Pastor and Founder of a Christian Ministry, the Great Faith Ministry at Owhase, Ovwian Town in the Udu Local Government Area of Delta State. They had no children together even though by a previous marriage the Appellant had several children. The couple lived alone together at the time of the incident. The uncontroverted facts are that on the night of March 25th 2005, the Appellant went alone to attend night vigil prayer session at Ugborikoko Effurun in the Church of one Pastor Phillip Oruvwedje. On his return the following morning, he slept and woke up in the afternoon. His wife accused him of having slept with a mistress. He denied this, he then declined to go with his wife to a pre-arranged social event. She then removed her outing clothes and started entertaining her friends. The Appellant started looking for his car key but could not find it. His wife denied hiding the key from him. He took a can of petrol from their room and he intentionally spilled some petrol on the rug in their room. The deceased who had gone to remove clothes from the clotheslines was hanging the clothes in the wardrobe in their room. The Appellant look a match and dropped it on the rug and the room caught fire. The deceased was severely burnt by the fire and she died on the 31st March, 2005. The Appellant was initially arrested and charged with attempted murder and when the deceased died, he was charged with murder.
At the trial, the Appellant pleaded not guilty to the charge. The state called three witnesses and tendered three Exhibits, namely Ex. A’ the statement of the Deceased, Exh. B’ the statement of the Appellant and Exh. C’ another statement of the Appellant. The Appellant on his part gave evidence on his own behalf and called no witness.
At the end of the trial, the Judge found the Appellant guilty and convicted him of the offence of murder and sentenced him to death to be hanged by the neck. The Appellant has appealed to this court vide notice of appeal filed on the 14/6/08 on pages 111-113 of the record.
1. Whether there was proof beyond reasonable doubt that the Appellant committed the offence of murder?
⦿ ARGUMENTS OF PARTIES (SERIALLY IN ACCORDANCE WITH THE ISSUES)
* FOR THE APPELLANT
1. i. The argument of J. O. Oweibo Esq of counsel to the Appellant is that the learned trial Judge after admitting the Appellant’s statements Exh. B’ made on 28/3/05 and Exh. C’ made on 30/3/05 was in error to have considered them as confessional statements to the offence of murder. He insisted that both statements were made while the Appellant was charged with attempted murder and could not be used as statements made with full knowledge of the charge proffered against him. He argued that the time the Appellant made the statements he was charged with attempted murder since the deceased was alive and the crime of murder was not yet complete. He argued that the confessional statement was not in respect of the offence charged and could not be used by the learned trial Judge to convict the Appellant.
ii. Learned Appellant’s Counsel conceded that Exh. B & C are relevant and therefore admissible. However he urged the view that they cannot be regarded as statements in which the Appellant confessed to all the ingredients of attempted murder or murder. He submitted that even though the Appellant confessed to the actus reus that is the guilty acts, he did not confess to the mens rea. He submitted that the two elements of the offence must be directly and positively admitted before the statements can be regarded as confessional.
iii. Appellant’s Counsel also argued that the offence of murder was never investigated since the prosecution did not call eyewitness evidence or tender any statements made by the Appellant after he was charged with murder. He argued that failure to adduce evidence of the police investigation into the later offence of murder is fatal to the case of the prosecution.
*FOR THE RESPONDENT
1. i. Counsel submitted that the learned trial judge was right in law in relying on the extrajudicial statement of the Appellant in convicting him. Learned Respondent’s counsel argued that the Appellant did not challenge Exhibits B and C when the prosecution tendered them in court. By Exhibits B and C the Appellant identified himself as the culprit whose act led to the burn injury which caused the death of Gladys Okoro his wife. PW3 was the pathologist who conducted a post mortem examination on the deceased. He discovered that she had 70 to 80 percent degree burns. The summary of his post mortem report is that the deceased died of severe anamiae hypovolasmic shock arising from burns.
ii. Counsel also asked us to consider the facts as stated in Exh. B’ & C’ which proved that the fire that burnt the deceased was started by the intentional acts of the Appellant in spilling fuel and dropping a lighted match on it when the Appellant should have known that the carpet would catch fire and the deceased would get burnt. He asserted that the above is proof that he intended to kill her. Counsel insisted that the learned trial judge was right in law when he rejected the defence of accident raised by the Appellant. This finding of fact on this issue was based on evidence before court. He argued that the Appellant had not challenged these facts.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE RESPONDENT BUT AGAINST THE APPELLANT.
i. There is thus 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 her death.
ii. At page 107 of the record of proceedings the learned trial judge held: “The mens rea is something that cannot be physically ascertained but reigns in the abstract world. There are however legal ways by which a court can deduce the mens rea element of an offence. The law which is settled today in Nigeria is that an individual is deemed to intend the natural or probable consequence of his act. In order words the intention of a man can be deduced from his action … From the action of the accused in this case, I can deduce what his intention was. In Exhibits B and C, he admitted intentionally pouring the fuel on the carpet and lighting the match stick threw it on the floor which he had earlier poured fuel on. This act is an indication that the accused intended to burn the deceased to death or at least cause her grievous harm… The natural consequence of a man throwing naked match stick on the floor where there is fuel is to set that place on fire or ablaze”.
I agree intoto with the above reasoning of the learned trial judge.
iii. His attempt to retract the story he voluntarily told of the circumstances which led to the fire in Exhs. B & C cannot stand. Even if we ignore Exhs. B & C to examine solely his own statement on oath, his explanation is not plausible. If he was holding a lantern and he inadvertently dropped a match were he was standing on a rug saturated with petrol, he would have been the person to get burnt. The defence of accident is not available to an accused who intended the consequences of his action. See ALHASSAN MANI YAK V. THE STATE (2008) 7 SCNJ 119. How can the Appellant claim that the deliberate pouring of petrol on the floor and the dropping of a lighted match on the same spot even if 15 minutes later are not deliberate or intentional acts. The defence of accident avails only the negative consequences of an unwilled acts.
⦿ SOME PROVISIONS
S.508 of the Criminal Code provides as follows: Any person who attempts to commit felony or misdemeanor is guilty of an offence which unless otherwise stated, is a misdemeanor.
S.509(1) states as follows: Any person who attempts to commit a felony of such a kind that a person convicted of it is liable to the punishment of death or of imprisonment for a term of fourteen years or upwards, with or without other punishment, is guilty of a felony and is liable, if no other punishment is provided to imprisonment for seven years.
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
Suffice it to say on this point that Or 17 r 4(1) & (2) of the Court of appeal Rules are to the effect that the notice of appeal shall be signed by the Appellant himself provided that where strict compliance had been compromised, this court can entertain the appeal if satisfied that the intending Appellant had exhibited a clear intention to appeal to this court against the decision of the lower court. – Ogunwumiju, J.C.A. Okoro v. State (2012)
The law is that the prosecution can prove the guilt of an accused beyond reasonable doubt in three different ways. There can be proof by the evidence of an eyewitness, proof by conclusive circumstantial evidence and proof by the evidence of admissible extra judicial confessional statements made by the accused person. – Ogunwumiju, J.C.A. Okoro v. State (2012)
For the offence of murder to be proved the prosecution must adduce clear evidence of the following facts: 1. Death of the deceased. 2. The act or omission of the accused which caused the death of the deceased. 3. That the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence. – Ogunwumiju, J.C.A. Okoro v. State (2012)
Mens rea is a term which has its own meaning which can be ascertained only by reference to its statutory definition or the case law. In crimes requiring mens rea as distinct from negligence, the accused should be liable only for that which he had chosen to bring about, or to take the risk of bringing about. His intention or recklessness as to all the elements of the actus reus was considered or referred to be mens rea or the basic constituent of it. An intention to cause grievous bodily harm is the mens rea for murder. – Ogunwumiju, J.C.A. Okoro v. State (2012)