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
- 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 –
“(a) that the deceased had died;
(b) that the death was caused by the accused; and
(c) that the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm as its probable consequence.”
See UBANI VS THE STATE (2003) 18 NWLR Pt. 581) 224, UGURU VS THE STATE (2002) 9 NWLR (Pt.771) 90 and IGABELE VS THE STATE (2006) 6 NWLR
5 (Pt. 975) 100.
It is also the law that in a charge of murder, the prosecution is required to prove beyond reasonable doubt not only that the act of the accused person could have caused the death of the deceased but that it actually did. If there is any possibility that the deceased died from other causes than the act of the accused, the prosecution has not established the case against the accused person. See UGURU VS THE STATE (2002) 9 NWLR (Pt. 771) 90.
Also in every case where it is alleged that death has resulted from the act of the accused person, a casual link between the death and the act must be established and proved beyond reasonable doubt. See OFORLETE VS THE STATE (2000) 12 NW LR (Pt.681) 415.
As for the quality of evidence to be relied upon to establish a charge of murder, the evidence may be direct or circumstantial. Whether the evidence is direct or circumstantial, it must establish the guilt of the accused person beyond reasonable doubt. The case of ARUNA VS THE STATE (1990) 6 NWLR (Pt.155) 125 easily comes to mind on this requirement.
In the case at hand, the Appellant was charged with the offence of murder under Section 319(1) of Criminal
6 Code for having caused the death of one Chief Monday Sedera on 2nd April,2002, by stabbing the deceased with a knife which caused injury to the deceased resulting in his death. From the evidence adduced by the prosecution through the 7 witnesses called by it and the 3 Exhibits admitted in evidence including the statement of the Appellant taken under caution by the police, the requirement of proof beyond reasonable doubt had been achieved in establishing that the deceased Chief Monday Sedera was dead and that his death was caused by the act of the Appellant in stabbing him with a knife which caused injuries that resulted in the death of the deceased.
The next question for determination from the evidence on record is whether the circumstances under which the stabbings of the deceased by the Appellant took place disclosed the offence of murder as found by the trial High Court or manslaughter as found the Court of Appeal. The evidence accepted and relied upon by the trial High Court was that while the deceased and the orderly of the Oba and others were on their way to the Oba’s palace who invited the Appellant and the deceased who were fighting to the palace
7 of the Oba, the Appellant came from behind and stabbed the deceased. On that evidence therefore, the trial Court rejected the defences of provocation and self defence raised by the Appellant and found him guilty of the offence of murder and sentenced him to death. The Court of Appeal on the other hand was more inclined to accept the other version of the story that the stabbing incident took place in the course of the fight between the Appellant and the deceased which resulted in the Court allowing the Appellant’s appeal by substituting the finding of the offence of manslaughter in place of the offence of murder as found by the trial High Court. The contradictions in the evidence of the prosecution as to where the stabbing actually took place was brought about by the failure of the prosecution to call the police orderly of the Oba of the town who was said to be present when the stabbing took place, to give evidence. All the same, the Court of Appeal was right in holding that the contradictions in the evidence of the prosecution were not fundamental to absolve the appellant of the offence of manslaughter.
A person who causes the death of another is guilty of
8 involuntary manslaughter. In other words, manslaughter is the unintentional killing of a human being. Such a killing is not premeditated but accidental in the sense that it was not intentional. See EJEKA VS THE STATE (2003) 7 NWLR (Pt.819) 408. In the instance case therefore, where the stabbing of the deceased by the Appellant took place in the course of a fight and in the night, the Court below was right in substituting the conviction of murder with that of manslaughter against the Appellant and passing the sentence of 15 years imprisonment on him.
The second issue is whether from the evidence on record the appellant is availed with the defence of self defence, and thereby entitled to discharge and acquittal rather then conviction for manslaughter. Learned Counsel to the Appellant has argued that the defence of self defence will avail an accused person who retaliated to unprovoked attack in order to ward off the attack against him and to defend himself from further attack relying on the cases of UWAEKWEGBUNYA VS THE STATE (2005) 23 WRN 1 AT 28 and CHUKWA VS THE STATE (1992) 1 NWLR (Pt. 217) 255. Counsel therefore urged the Court to accept that the
9 Appellant acted in self defence and to discharge and acquit him.
For the Respondent however, it was pointed out that the trial Court considered the defence of self defence raised by the appellant in its Judgment but came to the conclusion that there were no facts or evidence before the Court that suggested that the appellant was in any danger or apprehension of death or grievous hurt as a result of the attack by the deceased. It was observed by the learned Counsel that even the Court of Appeal also rejected the defence of self-defence raised by the appellant thereby disclosing concurrent finding on the issue by the trial Court and the Court of Appeal which this Court is called upon not to disturb having regard to the cases of AJAYI VS THE STATE (2014) 10 ACLR 425 at 451 and ADEYEYE VS THE STATE (2014) 10 ACLR 476 at 518. Learned Counsel therefore concluded that since the findings of the trial High Court and the Court of Appeal are not perverse, the appeal deserves to be dismissed.
The Law is well settled that the defence of self-defence, if successful, is a complete defence or answer to the charge of murder or manslaughter as in the instant
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case. See BARIDAM VS THE STATE (1994) 1 NWLR (Pt.320) 262, KIM VS THE STATE (1992) 4 NWLR (Pt.233) 17 at 49 and DURU VS THE STATE (1993) 3 NWLR (Pt.28l) 283 at 291-292. With regard to the duty of an accused person raising the defence of self defence in his trial for the offence of murder, the law is as stated by Iguh, JSC (as he then was) in BARIDAM VS THE STATE (1994)1 NWLR (Pt.320) 250 at 262 where he said-
“There can be no doubt that self defence in an appropriate case is a complete answer to a charge of murder or manslaughter. The Appellant, to avail himself of this defence, however, must show that his life was so much endangered by the act of the deceased that the only option that was open to him to save his own life was to kill the deceased. He must show that he did not want to fight and that he was at all material times prepared to withdraw.”
See also STEPHEN VS THE STATE (1986) 5 NWLR (Pt.46) 987 and ITESHI ONWE VS THE STATE (1975) 9-11 S.C.23.
Applying the law on the subject to the present case, the Appellant who admitted stabbing the deceased and causing him injuries that led to his death in the course of a fight, the fact that it was
11 the Appellant who went to the house of the deceased where the fight took place, had failed to bring his conduct and action to be entitled to the defence of self-defence to exonerate him from the conviction for the offence of manslaughter.
It is important to note that as far as the rejection of the evidence of the Appellant on his attempt to set up a defence of self-defence is concerned, both the trial Court and the Court below are in complete agreement. This to my mind constitute concurrent findings of the two Courts which this Court would not ordinarily disturb. See MANAWA OGBODU VS THE STATE (1981) 2 NWLR (Pt.54) 20. In the instant case, I see no exceptional reasons at all to warrant interfering with the concurrent findings.
In the final result, it is for the forgoing reasons that I find no merit in this appeal. The appeal is hereby dismissed and the conviction and sentence of 15 years imprisonment passed on the Appellant by the Court of Appeal for the substituted offence of manslaughter are hereby affirmed
SC.104/2013