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.

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 – Ground 2.
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) – 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.