Akinyede Olaiya V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

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

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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

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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. He raised three grounds of appeal in his Notice of Appeal filed on 6th May, 2014. Therefrom, five issues were distilled for the determination of the appeal.

The breakdown of the five issues shows that the appellant nominated two issues each from his grounds 1 and 3 of the grounds of appeal. Only one issue was raised from ground 2 of the Grounds of Appeal. And that is issue 3 which, as formulated, is consequent upon a suggested positive affirmation of issues 1 and 2 proliferated from ground 1 of the Grounds of Appeal. Issues 3 and 4 were erected from ground 3 of the Grounds of Appeal. In the

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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: AGU v. IKEWIBE (1991) 3 NWLR (pt. 180) 385; MADUEKE v. MADUEKE (2000) 5 NWLR (pt. 546) 409.