Adebiyi Famakinwa V. The State (2016)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

This appeal is against the Judgment of the Court of Appeal Akure Division delivered on 31st October, 2012, wherein that Court allowed the appeal of the present Appellant against his conviction and sentence of death for murder under Section 319(1) of the Criminal Code CAP 30 Vol. II of the Laws of Ondo State of Nigeria 1978, by the trial Ondo State High Court of Justice sitting at Okitipupa in its judgment delivered on 11th May,2006. In the Judgment of the Court of Appeal, the Court in allowing the Appellant’s appeal substituted the conviction for murder with that of manslaughter and sentenced the Appellant to 15 years imprisonment. The Appellant is now on a further appeal to this Court against his conviction and sentence for the offence of manslaughter.

In the course of the trial at the trial Court, the prosecution called 7 witnesses and tendered in 3 Exhibits while the Appellant who was being tried in his own defence gave evidence and also called one witness who was the Appellant’s younger brother. The case of the prosecution was that the Appellant came to the house of

1

the deceased to challenge the deceased in respect of allegation of mismanagement of money given to the Appellant by the brother of the deceased. In the process, a fight ensued between the Appellant and the deceased. The dispute was reported to the Oba of the town who sent his Police orderly to invite the quarreling parties to his palace. While the deceased was on his way to the Oba’s palace with the police orderly and other relations of the deceased, the Appellant came from behind with a knife and stabbed the deceased causing him injuries which resulted in the death of the deceased.

In his own defence contained in his own statement to the Police admitted in evidence in the course of the trial as Exhibit ‘B’ and his own oral evidence, the Appellant admitted stabbing the deceased but claimed that he was attacked by the deceased and 5 of the deceased relations, one of whom stabbed the Appellant with a knife which the Appellant retrieved from the Appellant’s relation. That, while the Appellant was trying to retaliate, the Appellant’s relation who testified for the prosecution as PW 5, avoided the knife which landed on the deceased, thereby setting a defence of

2 self defence.

At the hearing of this appeal on 4th January, 2016, the Appellant and Respondent’s briefs of argument filed on behalf of the Appellant and Respondent were duly adopted and relied upon in addition to the oral arguments. In the Appellant’s brief of argument, the following two issues were formulated for the determination of the appeal –

“1. Whether after finding that the prosecution’s case at the trial Court was inconclusive and contradictory, the learned Justices of the Court of Appeal ought to have resolved the doubt thereby created in favour of the Appellant and to discharge and acquit him rather than reduce his conviction from murder to manslaughter

2. Whether from the evidence on record the Appellant is availed with the defence of self defence and thereby was entitled to discharge and acquittal rather than conviction for manslaughter”

Learned Counsel to the Respondent also adopted the two issues identified in the Appellant’s brief of argument. In support of issue 1, learned Counsel to the Appellant argued that the Court below was in error when it failed to resolve the doubt raised by the gaps it found in the prosecution’s case

3 in favour of the Appellant; that the law is quite clear that where there is inconsistency or contradiction on material issue in the case of the prosecution against the Appellant, the doubt raised should be resolved in favour of the Appellant as was stated by this Court in the cases of STATE VS DANJUMA (1997) 5 NWLR (PT.506) 512 at 528-529. The cases of OBl VS THE STATE (1991) 7 NWLR (Pt. 513) 352 at 360 and IBEH VS STATE (1997) 1 NWLR (Pt. 484) 632. Learned counsel finally submitted that from the evidence on record, the Court below found contradictions, there was no other evidence from the prosecution to support the conviction of the Appellant for manslaughter and therefore urged the Court to allow the appeal and discharge and acquit the Appellant.

For the Respondent. it was submitted that the decision of the Court below to substitute the conviction of the Appellant from the offence of murder to that of manslaughter, was made because it found that the defence of provocation would avail the appellant; that the doubt that was created was because the prosecution did not resolve the question of where exactly the fight took place in the absence of the evidence of the Police

4orderly of the Oba of the town who was said to be present when the Appellant stabbed the deceased. Relying on the case of ENAHORO VS THE QUEEN (2007) 5 ACLR 403 at 427, learned Respondent’s Counsel pointed out that for contradictions in the evidence of the prosecution to lead to acquittal of an accused person, the contradictions must be fundamental. Learned Counsel stressed that there was sufficient credible evidence adduced by the prosecution to support the conviction and sentence of the Appellant as substituted by the Court below and therefore urged this Court to dismiss the appeal on this issue.

In order to secure a conviction in a charge of murder under Section 319(1) of the Criminal Code Cap 30 Vol. ll of the Laws of Ondo State of Nigeria 1978, the prosecution must prove –