CASE SUMMARY OF:
Solomon Adekunle v. The State (2006) - SC
(2006) 14 NWLR (Pt.1000) 717;
LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
- R. A. Lawal Rabbana, Esq.
* FOR THE RESPONDENT
- A. O. Adenuga (Mrs.) Solicitor-General of Ogun State.
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
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 ExpressWay. 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 expressway. 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.
1. Whether having regard to the failure of the prosecution to comply with the mandatory provisions of section 319(1) of the Criminal Procedure (sic) 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.
2. 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.
3. 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).
ARGUMENTS OF PARTIES (SERIALLY IN ACCORDANCE WITH THE ISSUES)
* FOR THE APPELLANT
1. 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.
2. 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.
3. 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.
*FOR THE RESPONDENT
3. 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.
HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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.
ii. 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.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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.
ii. 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.
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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. - Mohammed, J.S.C. Adekunle v. State (2006)
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. - Mohammed, J.S.C. Adekunle v. State (2006)
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. - Mohammed, J.S.C. Adekunle v. State (2006)
It is the duty of counsel especially in murder cases, to promptly take objection to any or every perceived irregularity relating at least, to procedure or charge. - Ogbuagu, J.S.C. Adekunle v. State (2006)
More importantly, where an accused person opts not to testify and rests his case on that of the prosecution as in the instant case leading to this appeal, and the prosecution has by credible evidence of its witness or witnesses, proved its case beyond reasonable doubt, then, he cannot turn round to complain that the court did not consider his defence, as has been done in the appellant's brief in respect of their issue 2. - Ogbuagu, J.S.C. Adekunle v. State (2006)
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...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. - Mohammed, J.S.C. Adekunle v. State (2006)
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. - Mohammed, J.S.C. Adekunle v. State (2006)
It is easy to tell lies, but very difficult at most times, to justify the lie. Surely, if a gun/rifle, fell on the ground, and started emitting bullets, first of all, it is evidence that the gun must have been "cocked" for action. Secondly, that the bullets will not fly towards a moving vehicle and hit the windscreen and in the process, hit some of the occupants/passengers in the said bus. - Ogbuagu, J.S.C. Adekunle v. State (2006)
Thus, for an event to qualify as accidental under section 24 of the Criminal Code referred to and relied on in the appellant's issue 2 of the brief, it must be a surprise to the ordinary man of prudence, that is, a surprise to all sober and reasonable people. The test is always objective. - Ogbuagu, J.S.C. Adekunle v. State (2006)
What is relevant in our criminal law, and this is settled, is that the act of the accused person resulting in the death of the deceased, must be unlawful. The mens rea or malice afore thought no longer governs the criminal responsibility of the accused person. These are common law concepts. Motive is also irrelevant except that where it is proved, it strengthens the case of the prosecution. - Ogbuagu, J.S.C. Adekunle v. State (2006)
Let me observe here that it is becoming very notorious and most disturbing these days when policemen use guns purchased for them with public money and meant for the protection of the citizenry, are freely used to mow down innocent citizens of this country with reckless and careless abandon and in each case or every event, the aggressor policeman is heard to say and rely on "accidental discharge". Enough, I think, is enough. Unless the courts "put down their feet" so to speak and make it abundantly clear to our policemen in this country that never again will such plea or defense be available to any of them accused of murder or acceptable by the courts, then of course, Nigerians will continuously be sprayed with bullets from the police who will hide on the plea "he was killed by stray bullet" or by "accidental discharge". I suppose that when a gun is properly locked, stray bullets and accidental discharge syndrome will not occur. Invariably, accidental discharge always occur when some of the drivers are unwilling and refuse to pay the N20.00 (twenty naira) or such money being extorted by the police at every check point, (and there are so many on our roads, separated by very short distances). When such drivers refuse to stop, Oh yes, "they must be carrying contraband goods" or some imagined incriminating stuff. This state of affairs, is of common knowledge and it is a notorious fact on our Nigeria roads. - Ogbuagu, J.S.C. Adekunle v. State (2006)
The end of this brief.
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