⦿ CASE SUMMARY OF:
AKINYEDE OLAIYA v. THE STATE (2017) – SC
⦿ LITE HOLDING
I agree with learned respondent’s counsel that appellant’s action of deliberately shooting two live bullets into a crowd with his AK 47 riffle requires no further fact to establish that he knew that the death of any one in the crowd was a probable consequence of his conduct. Exhibits C3 and C4 put the death of the deceased squarely on the appellant.
In the absence of any clear evidence of errors in law or fact leading to miscarriage of justice in the two judgments, this Court cannot interfere with their concurrent findings.
⦿AREA OF LAW
– Criminal Law (murder)
– Mens rea.
– Actus rea.
⦿ LEAD JUDGEMENT DELIVERED BY:
Ejembi Eko, J.S.C.
* FOR THE APPELLANT
– Ajose-Adeogun, Esq.
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
On 23rd March, 2011, in the morning, violent fracas broke out between the members of the Peoples Democratic Party (PDP) and the Action Congress of Nigeria (ACN) at Kota Junction, Omuo Ekiti, in Ekiti State. The fracas was occasioned by accusation and counter-accusation of the tearing of posters of the two rival political parties by their respective supporters. A police team, comprising seven policemen including the appellant herein and one Cp1. Ameh Richard, was sent to the Kota Junction to restore peace and order. The Divisional Police Officer (DPO) led the team. He had a pistol. The appellant and Cpl. Ameh Richard, respectively the 2nd and 1st Accused at the trial Court, each had an AK 47 riffle officially assigned from the office. The mobsters at the scene of the crime were allegedly dangerously armed with guns, cutlasses, bottles etc. The DPO fired shots into the air to draw attention of the mobsters and warn the volatile crowd. The appellant and the 1st Accused later fired shots from their respective riffles. The appellant admitted, in Exhibits C3 and C4, his extra judicial statements to the Investigating Police Officer (IPO), that he fired two shots out of the 30 ammunition pieces given to him. He identified Exhibit C4 as a Statement he made to the IPO.
At the trial he admitted, in his evidence on oath that he fired two shots. He, however, insisted he fired the shots into the air in order to protect and or defend himself when the mobsters started firing at the police van and throwing bottles at them. He sat at the back of the police van.
The prosecution, on the other hand, contended that the appellant fired the two shots into the crowd, without provocation or any real threat to his life or the lives of the other policemen with him. It is also alleged that, as the appellant and the 1st Accused fired shots into the crowd, two men fell down and died instantly, and that it was the shot fired by the appellant that killed one Kehinde Ayo Faluyi (deceased). The appellant was, consequently, charged with murder by his intentional and unlawful killing of the said Kehinde Ayo Faluyi.
The appellant was tried for murder contrary to Section 316 of the Criminal Code. The offence is punishable with death under Section 319 of the same Criminal Code.
At the close of the trial, and upon taking final addresses from the counsel on both sides, the learned trial Judge, in his considered judgment, convicted the appellant for the murder of the said Kehinde Ayo Faluyi. He was accordingly sentenced to death. The appellant appealed his conviction and sentence. His appeal was not successful.
The Court of Appeal, sitting at Ado-Ekiti, affirmed the conviction and sentence imposed on him by the trial High Court.
The appellant has further appealed to this Court.
1. Whether the Court of Appeal was right in convicting the Appellant for murder?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR THE RESPONDENT.
i. Every appellant has a duty to show that the judgment he has appealed is erroneous and unreasonable either as a matter of law or as of fact. It is, therefore, not enough for the appellant’s counsel to submit that the appellant fired the fatal shot that killed the deceased during a discharge of a lawful duty, and that his intention was clearly to shoot at the vehicle without more. The learned counsel must show by credible evidence how the appellant, while on lawful duty, fired the fatal shot with due care and diligence, considering the fact that a firearm, particularly an AK 47 riffle with live ammunitions, is prima facie a very dangerous object within the rule in RYLANDS v. FLETCHER (1866) L. R. 1 EX. 265. If therefore it is admitted as the 12 appellant seems now to, that two live bullets were fired into the crowd from his AK 47 riffle; the defence that can deflect a conclusion that the bullets or shots were fired with the knowledge that death of the victim was a probable consequence thereof is either the default of the victim, or an act of God, or accident (or novas actus interveniens). There is no such defence or facts on which one can fall back on. The contributory conduct of the deceased warranting his being shot at by the appellant has neither been explained nor established to warrant the plea of self defence by the appellant. The defence is one of facts which must be pleaded and proved by the riffle handler, this time the appellant. The law does not obligate the prosecution to prove the defence available to the accused.
ii. The appellant’s counsel repeatedly made so much fuss of the appellant, at the material time, being on lawful duty at Kota Junction to enforce law and order. But that, ipso facto, is neither a licence to kill nor the liberty to shoot recklessly at the crowd. That is what makes up the mens rea in this case, the appellant having in his brief admitted the actus reus of causing the death of Kehinde Ayo Faluyi by his shooting of live bullets into the deceased through the AK 47 Riffle he handled. The appellant has not sufficiently shown any lawful justification or excuse for the shooting of the deceased at the material time. He has therefore not shown any cause why his appeal should be allowed and his conviction and sentence quashed. The appeal, lacking in substance, is hereby dismissed.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
In the practice and procedure of this Court proliferation of issues from a single ground of appeal is wrong and unacceptable. The permissible practice is that a party may formulate, from a ground of appeal or a number of grounds of appeal only one issue, and not several issues from one ground of appeal. Proliferation of issues is not permitted by law. – Ejembi JSC. Olaiya v. State (2017)
Dying declaration by the deceased or victim is admissible in evidence, and an exception to the hearsay rule, in murder and manslaughter cases, to prove the cause of death of the deceased declarant. – Ejembi JSC. Olaiya v. State (2017)
There are two broad elements the prosecution must establish in order to sustain the conviction of an accused person in a murder charge. That is the actus reus and the mens rea. The actus reus is the wrongful act or deed that comprises the physical components of the crime charged. The mens rea, is the guilty mind or the state of the mind with which the accused person executed the criminal act. It is also the mental element. There are only two states of mind which constitute mens rea, according to Black’s Law Dictionary at p.1076 9th ed., citing J. W. Cecil Turner: KENNYs OUTLINE OF CRIMINAL LAW 29 – 30 (6th Ed. 1952). They are the intention, and recklessness with which the accused proceeded in the act said to be criminal. – Ejembi JSC. Olaiya v. State (2017)
With that proof of intention beyond reasonable doubt, the proof of the recklessness, under which categorisation is the knowledge that death would be the probable consequence falls, becomes unnecessary. – Ejembi JSC. Olaiya v. State (2017)
The choice of line of defence to plead in any criminal proceeding, as Karibi-Whyte, JCA (as he then was) stated in GWONTO v. THE STATE (1982) 1 NCR 251 at 265, is entirely within the discretion of the accused person and his counsel. No Court interferes, or can interfere, with that discretion. – Ejembi JSC. Olaiya v. State (2017)
A party at all times must be consistent with the pleading of his defence. He will not be allowed to approbate and reprobate in his case. – Ejembi JSC. Olaiya v. State (2017)