Ameh Richard V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

At the High Court of Ekiti State, Omuo Ekiti Judicial Division, the appellant and one other accused person, were arraigned on an Information containing a two-count charge of the murder of Ipinlaye Michael and Faluyi Ayo Kehinde contrary to Section 316, and punishable under Section 319, of the Criminal Code Act, Cap C 38, Laws of the Federation of Nigeria, 2004, respectively.

They pleaded Not guilty to the charges; hence, the case went to trial. Out of the ten witnesses listed in the proof of Evidence, the Prosecution called three witnesses, namely, PW1 (a Pathologist), PW2 (Investigating Police Office, IPO, for short) and PW3 (an eye witness). On their part, the appellant and his co-accused person called one witness. They equally testified in their own defence.

At the end of the trial, the High Court (hereinafter, simply, referred to as “the trial Court), finding them guilty as charged, convicted and sentenced them to death by hanging. The appellant’s appeal to the Court of Appeal, Ekiti Division, having been dismissed, he has further appealed to

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this Court urging the Court to allow his appeal. On his behalf, his counsel formulated two issues for the determination of this appeal, pages 5 and 6 of the appellant’s brief.

On the other hand, the respondent framed two concise and appetising issues thus:

1. Whether on a correct evaluation of the totality of evidence adduced and admitted before the trial Court, the Court of Appeal was not right in affirming the conviction of the appellant herein
2. Whether the Court of Appeal was not right in concluding that the appellant was not justified in his discharge of his weapon and therefore seized of the requisite intention to commit murder

Enamoured of the respondent’s precise formulation, I shall adopt them as issues for the determination of this appeal. Before dealing with them, however, a re-statement of the factual background to this appeal would not be out of place here.

FACTUAL BACKGROUND

In the morning of March 23, 2011, members of two political parties, namely, Peoples Democratic Party [PDP] and Action Congress of Nigeria [ACN], clashed in Omuo-Ekiti.

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There were allegations and counter-allegations of the removal of political campaign posters of candidates of the said political parties in the imminent elections.

In consequence of the above development, a team of seven Police men was mobilised to Kota junction, Omuo-Ekiti, the scene of the clash, to restore law and order. While the Divisional Police Officer [DPO] was armed with a pistol, five of the Police men, including the appellant, were armed with AK47 rifles.

At the scene, the appellant shot one Ipinlaye Michael. Corporal Akindele Olaiya, on his part, shot one Faluyi Ayo Kehinde. Both men died from gunshot injuries, whereupon the appellant and Akindere Olaiya were arraigned as aforesaid, tried, convicted and sentenced.

ISSUES FOR DETERMINATION

As indicated above, I am adopting the two precise issues which the respondent formulated for the determination of this appeal. For the avoidance of doubt, they are:

– Whether on a correct evaluation of the totality of evidence adduced and admitted before the trial Court, the Court of Appeal was not right in affirming the conviction of the appellant herein

– Whether the Court of Appeal was not right in concluding that the appellant was not justified in his

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discharge of his weapon and therefore seized of the requisite intention to commit murder

ARGUMENTS ON THE ISSUES

ISSUE ONE

Whether on a correct evaluation of the totality of evidence adduced and admitted before the trial Court, the Court of Appeal was not right in affirming the conviction of the appellant herein

At the hearing of the appeal on March 22, 2018, Oluwasina Ogungbade, counsel for the appellant, adopted the appellant’s brief of arguments filed on August 21, 2015. In the said brief, pages 7 12 were devoted to what counsel referred to as highlight “of some of [the] lapses” [in the Prosecution’s case], citing Oguno and Anor v. The State (2013) LPELR 20623 (SC); Opolo v The State [1977] 11-12 SC (Reprint); Utteh v. The State [1992] 2 NWLR (Pt.223) 257, 269.

It was further contended that there was no credible scientific evidence linking the bullets that felled the deceased person with the bullets fired from the appellant’s gun: a failure which, in counsel’s submission, was glossed over by the Lower Courts, pages 141 – 142 and 237 of the record, respectively.

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The view was canvassed that the existence of a ballistic report which was not tendered compels the suspicion of withholding evidence, Section 149 of the Evidence Act (now, Section 167 (d) of the Evidence Act, 2011; The People of Lagos State v. Umaru (2014) LPELR -22466 (SC); Sani v. State (2015) LPELR-24818 (SC). Counsel contended that the Prosecution had a duty to show that it was the act of the accused person that caused the death of the deceased person, Adekunle v State [1989] 5 NWLR (Pt. 123) 505.

Next, counsel contended that it is a settled principle that for any offence to be made out, there must be a concurrence of the offending act, which he called actus reus and the guilty mind which he also referred to as mens rea. He urged the Court to look through the judgment and find that nowhere in it was a direct finding made that the appellant shot into the crowd. He queried the identification in the case, paragraphs 5. 09 – 5.12, pages 21 – 22 of the record. He urged the Court to resolve the issue in favour of the appellant, Udosen v. State (2007) 4 NWLR (Pt.1023) 125, 161.

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RESPONDENT’S SUBMISSIONS

On his part, Kolapo Olugbenga Kolade, Honourable Attorney General, Ekiti State, for the respondent, adopted the brief filed on October 23, 2017, although, deemed properly filed on March 22, 2018. In the said brief, he first set out the ingredients of the offence of murder, Ogba v State [1992] 2 NWLR (Pt.22) 164.

On the first ingredient, he referred to the evidence of PW1 and Exhibit A1, which he tendered: an exhibit which put paid to any doubt about the death of Ipinlaye Michael. He contended that a crime is provable by one or a combination of eye witness evidence; confessional statement and circumstantial evidence, Emeka v. The State [2001] 14 NWLR (Pt. 734) 666, 683. In his submission, the evidence led supports the assertion that a combination of the above three sources of evidence proved the guilt of the appellant as the killer of the deceased person.

He referred to the evidence of PW2 [the IPO, an eye witness of the identification parade]. In the said parade, two out of the three witnesses identified the appellant as the person responsible for the death of Ipinlaye Michaell; PW3 and the statements of the appellant.

He pointed out that Exhibits C5 and C6 showed that the appellant fired his gun into the crowd.

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The deceased, who was there, fell. PW1, a pathologist, confirmed that he died of gunshot injuries, pages 73 -74 of the record; he equally referred to Exhibits D, D1 – D3 wherein the appellant admitted before the commissioner of Police that he fired four ammunitions at the scene. It was equally established that the appellant carried an AK 47 rifle on that day, his statement; Exhibits C5, C6, D, D1 – D3, refer. The PW2 was emphatic that the appellant was responsible for the death of Ipinlaye Michael, page 75 of the record,AJIBOYE v The State [1994] 8 NWLR (Pt. 364) 587.

PW3, an eye witness, stated at page 86 of the record that the appellant shot Ipinlaye Michael. He referred to the trial Court’s assessment of the testimony of PW3; Fashanu v. Adekoya [1974] 1 All NLR (Pt. 1) 35, 41; Eke v. Giwa [1977] 11 NSCC 96. The Lower Court agreed with the finding of the trial Court, pages 229 – 230 of the record, Nwaturuocha v. The State [2011] 9 LRCNCC; Afolabi v State [2010] 16 NWLR (Pt.1220) 584, 917.

He submitted that the failure to call the ballistic examiner was not fatal. This must be so in his submission, since the Prosecution was not even obliged to tender the weapon

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used, Tanko v State [2008] 16 NWLR (Pt. 1114) 534, 641; Ayo v. State [2008] 6 ACLR 220, 254; Jua v. State [2010] All FWLR (Pt. 521) 1427, 1447; Adekunle v. The State [2006] 14 NWLR (Pt. 1000) 717, 747.

On the third ingredient of the offence of murder, it was submitted that the appellant possessed the requisite intention, Adekunle v. state (supra). He urged the Court to resolve this issue against the appellant.

RESOLUTION OF THE ISSUE

My Lords, the ingredients of the offence of murder are well-settled. This Court has dealt extensively with them. For example, in Iliyasu v State (2015) LPELR-24403 (SC) 25; B – G, this Court [per Nweze, JSC] held that:

The three constitutive elements or ingredients of the offence which must be proved in order to secure a conviction under this section have been generously outlined in case law, Maigari v. State (2013) 6 7 MJSC (Pt. 11) 109, 125, citing Ochemaje v. The State (2008) SCNJ 143; Daniel v. The State (1991) 8 NWLR (Pt. 443) 715; Obudu v. State (1999) 6 NWLR (Pt. 1980) 433; Gira v. State (1996) 4 NWLR (Pt.428) 1, 125.

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Under the said section, the prosecution is obliged to prove: (1) is obliged to that the deceased died; (2) that his/her death caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. These ingredients, which are the same with the ingredients of the offence of murder under the Criminal Code, have witnessed consistent espousal in many jurisdictions, for example, by English Courts, R v. Hopwood (1913) 8 Cr. App. R. 143; Hyam v. DPP (1974) 2 All ER 41; Woolmighton v. DPP (1935) AC 462; by Nigerian Courts, Madu v. State (2012) 15 NWLR (Pt.1324) 405, 443, citing Durwode v. State (2000) 15 NWLR (Pt. 691) 467; Idemudia v. State (2001) FWLR (Pt. 55) 549, 564; [1999] 7 NWLR (pt. 610) 202; Akpan v. State [2001] FWLR (Pt. 56) 735; [2000] 12 NWLR (pt. 682) 607 and by Courts in other Commonwealth jurisdictions, see for example, R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v. The Queen (1968) 42 A.L.J.R.; R v. Tralka [1965] Qd. R. 225, [Queensland, Australia].

Scholars have seldom disagreed with judicial authorities on this question, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd, (2009) 209 et seq; A. G.

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Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan; Spectrum Books Ltd, 1988) passi Archbold’s Pleadings: Evidence and Practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passim, K.S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); P. Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) 194 et seq.

In the instant case, the death of Ipinlaye Michael was not in any doubt at all. The findings of the trial Court and the Lower Court, refer. At pages 140 – 141 of the record, the trial Court made the following findings:

The evidence of PW2 and PW3, as well as, Exhibit ‘F’ coupled with the admission by the two accused persons in their statements to the Police and with their evidence in Court that they fired their AK 47 rifle at the scene, that is, first accused [person] firing four rounds of ammunition and second accused [person] firing two rounds of ammunition and Exhibit E, that is, six expended shells of AK47 ammunition that were recovered at the scene by PW2. All these taken together point to one direction and that is that the two accused person (sic)

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were responsible for the death of the two victims in this case putting it succinctly that it was the first accused [person] that used the death of Michael Ipinlaye…

I therefore hold that the two accused persons have been sufficiently linked with the death of the two deceased persons…

[Italics supplied for emphasis]

The Lower Court, on its part, affirmed these findings. Listen to its reasoning:

Clearly the overwhelming evidence at the Lower Court showed that the only persons that fired AK 47 at the scene of the crime that day were the appellant and one other Police man. The evidence of the investigating Police Officer who testified as PW2, the extra-judicial statement of the appellant that was admitted as Exhibit ‘C1’ at the Lower Court, in which he admitted firing four bullets at the scene of crime as well as the evidence of PW3 who was present at the scene of crime and identified the appellant as the one who fired the gunshot that killed Michael Ipinlaye, all point to the crucial finding of facts by the trial Court. I therefore find no reason to interfere with the finding of the trial Judge that the death of Michael Ipinlaye is caused by the appellant.

[page 231 of the record; italics supplied for emphasis]

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As shown above, the trial Court [pages 140 – 141 of the record] and the Lower Court [page 231 of the record], concurrently found in favour of the proof of these ingredients. As such, in this further appeal, the appellant has an onerous duty to discharge.

It is well-settled that this Court will not disturb concurrent findings of fact of Lower Court unless the appellant is able to fulfill the following pre-conditions: establish a substantial error apparent on the face of the record of proceedings; show that such findings of fact were perverse; the said findings were unsupported by the evidence before the trial Court; that the findings and conclusion were arrived at as a result of a wrong approach to the evidence or a wrong application of the principles of substantive law or Procedure.

The cases on this point are legion: they are many. Only a handful will be cited here – Enang v Adu [1981] 11-12 SC 25, 42; Nwadike v Ibekwe [1987] 4 NWLR (pt. 67) 718; Igwego v Ezeugo [1992] 6 NWLR (pt. 249) 561, 576; Lamai v Orbih [1980] 5-7 SC 28; Woluchem v Gudi [1981] 5 SC 291, 326;

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Ike v Ugboaja [1993] 6 NWLR (pt. 301) 539, 569; Chinwendu v Mbamali [1980] 3-4 SC 31. The appellant has not been able to do these.

In the circumstance, I therefore endorse the conclusion that the prosecution proved the first two ingredients of the said offence. I agree with the Lower Courts that the Prosecution proved that the deceased died. It also proved that in actual fact, the deceased died as a result of the act of the accused person, to the exclusion of all other possibilities, R. v. Nwokocha (1949) 12 WACA 453, 455; The State v. Omoni (1969) 2 ANLR 337; Adie v. The State [1980] 1-2 SC 116, 122-123; R. v. Owe (1981) ANLR 680; Princewill v. The State [1994] 7 – 8 SC (Pt. 11) 226, 240; Silas Sule v The State (2009) LPELR-3125 (SC) 24, F-G.

As indicated earlier in this judgment, the third ingredient of the offence under consideration is that the Prosecution must prove that the accused person intended to either kill the victim or cause him grievous bodily harm, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (supra); Maigari v State (supra); Ochemaje v. The State (supra); Daniel v. The State (supra); Obudu v. State (supra); Gira v State (supra).

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I have had an intimate perusal of the reasoning of the Lower Court on the third ingredient of the offence of murder. At page 235 of the record, the Lower Court admirably dealt with this requirement. Hear the Court’s reasoning:

…the appellant knew that death of human being would be the natural consequence of firing an AK47 rifle into the crowd, but he went ahead to fire the rifle into the midst of the people. By so doing, he intended to kill or cause bodily harm to the people.

[page 235 of the record; italics supplied for emphasis]

I entirely agree with the Lower Court. After all, it is settled on several authorities that proof beyond reasonable doubt does not mean proof beyond any shadow of doubt, Aigbadion v State [2000] 7 NWLR (Pt. 666) 686; Agbo v. State [2006] 6 NWLR (Pt. 977) 545; Igabele v. State [2006] 6 NWLR (pt. 975) 100; Kim v. State [1992] 4 NWLR (Pt. 233) 17; Ubani v State [2003] 18 NWLR (Pt. 851) 224; Ameh v. State [1978] 6-7 SC 27.

On the contrary, it has been held that the expression “proof beyond reasonable doubt” is a concept founded on a rational and critical examination of a state of affairs and law rather

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than in fancied, whimsical or capricious and speculative doubt,Akindipe v State [2008] 15 NWLR (pt. 1111) 560; State v Onyeukwu [2004] 14 NWLR (pt. 893) 340.

In Bakare v. State (1987) LPELR-SC.242/1985, Obaseki JSC opined, most poignantly, that:

Proof beyond reasonable doubt means proof of an offence with the certainty of the Criminal Law. That certainty is that the offence has been committed and that no other person but the accused person on the evidence committed the offence. Where the evidence conclusively establishes these facts, the case is said to be proved beyond reasonable doubt.

[Italics supplied for emphasis]

As Karibi- Whyte, JSC, put it in Bakare v. State (supra):

The intention to kill or to cause grievous bodily harm, …which resulted in death will be, and in this case was sufficient to establish the offence with which appellant was charged, Gwoji lire v. State (1965) NNLR.52

[Italics supplied for emphasis]

Scholars are ad idem on this too. As the erudite Professor of Law, Frank Asogwah has argued, and I endorse his views entirely-

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Intent can be proved either positively where there is proof of the declared intent of the accused person or inferentially from the overt act by the accused. Therefore, in law, an accused person is taken to intend the consequences of his voluntary act, when he foresees that it will probably happen, whether he desires it or not, Hyam v. DPP [1974] 2 All ER 41. Here, the House of Lords decided that a person has the mens rea for murder if, when he does the act which kills, he knows that it is highly probable that he will cause death or grievous bodily harm.

See, Frank I. Asogwah, “Criminal Liability in ‘Accidental Discharge’ in Murder cases and the Right of the Police to use Force,” (2003) 2 Port Harcourt Law Journal, 198, [italics supplied for emphasis].

True indeed, scholars have expressed reservation on the propriety of the Courts’ continued espousal of the “reasonable man” or “natural consequence” guide in ascertaining intent, see, for example, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition), Ibidem page 55; Glanville Williams, Criminal Law: The General Part, 89-99; 894-896, cited in C. O. Okonkwo, (supra) at page 55; Wootton, Crime and the Criminal Law (London: Hamlyn Lectures, 1963) 33-39.

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According to Professor C. O. Okonkwo, SAN, Africa’s leading authority on Criminal Law, while this requirement has been abolished in England, it has been rejected in the Australian jurisdiction, see, C. O. Okonkwo, Okonkwo and Naish: Criminat Law in Nigeria (Second Edition), ibidem page 55.

Be that as it may, this Court has continued to invoke the natural consequence test. According to Katsina-Alu, JSC (as he then was) in Garba and Ors v State [2000] 6 NWLR (Pt. 661) 378, 388:

The law presumes that a man intends the natural and probable consequences of his acts. And the test to be applied in these circumstances is the objective test, namely, the test of what a reasonable man would contemplate as the probable result of his acts…

[Italics supplied for emphasis].

See also, Adamu Garba v. State [1997] 3 SCNJ 68; Nwokearu v The State (2013) LPELR-20642 (SC), citing R. v. Nangu (1953) 14 WACA, 379; R v. Adi (1955) 15 WACA 6; Omonga v. State [2006] 14 NWLR (Pt.1000) 532, 554; Ogba v. State [1992] 2 NWLR (pt. 222) 164; Ubani and Ors. v. State [2003] 18 NWLR (Pt. 851) 224; Chiokwe v. State [2005] 5 NWLR (Pt. 918) 424, 440;

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Uyo v. AG, Bendel State [1986] 1 NWLR (Pt.17) 418. I entirely endorse the concurrent findings of the Lower Court that the Prosecution proved case beyond reasonable doubt.

ISSUE TWO

Whether the Court of Appeal was not right in concluding that the appellant was not justified in his discharge of his weapon and therefore seized of the requisite intention to commit murder

On this issue, counsel for the appellant referred to page 66 of the record; pages 145 – 147 of the record; Omogodo v. State [1981] 5 SC 4, 14 (Reprint); Boy Muka and Ors v. The State [1976] 9-10 SC.305; Ogidi and Ors v. The State (2005) LPELR – 2303 (SC); Nwachukwu v. The State (2007) LPELR – 8075 (SC). He urged the Court to find the findings of the Lower Courts perverse, Shipcare Nig Ltd v Owners of the MV Fortunato [2011] 7 NWLR (sic) 205.

RESPONDENT’S CONTENTION

Counsel for the respondent cited Adekunle v. State (supra) 747; C-G. He urged the Court to resolve this issue against the appellant.

RESOLUTION OF THE ISSUE

The findings of the trial Court duly affirmed by the Lower Court could be found at pages 140 – 141 of the record. Listen to the trial Court:

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The evidence of PW2 and PW3, as well as Exhibit F, coupled with the admission by the two accused persons in their statements to the Police and with their evidence in Court that they fired their AK 47 rifle at the scene, that is, first accused [person] firing four rounds of ammunition and second accused [person] firing two rounds of ammunition and Exhibit E, that is, six expended shells of AK 47 ammunition that were recovered at the scene by PW2. All these taken together point to one direction and that is that the two accused person (sic) were responsible for the death of the two victims in this case putting it succinctly that it was the first accused that caused the death of Michael Ipinlaye while the second accused person caused the death of Kehinde Ayo Faluyi.

I therefore hold that the two accused persons have been sufficiently linked with the death of the two deceased persons in case (sic) on hand.

On its part, the Lower Court affirmed the above findings. At page 231 of the record, the Court proceeded thus:

Clearly the overwhelming evidence at the Lower Court showed that the only persons that fired AK 47 at the scene

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of the crime that day were the appellant and one other Police man. The evidence of the Investigating Police Officer who testified as PW2, the extra-judicial statement of the appellant that was admitted as Exhibit C1 at the Lower Court, in which he admitted firing four bullets at the scene of crime as well as the evidence of PW3 who was present at the scene of crime and identified the appellant as the one who fired the gunshot that killed Michael Ipinlaye, all point to the crucial finding of facts by the trial Court. I therefore find no reason to interfere with the finding of the trial judge that the death of Michael Ipinlaye is (sic) caused by the appellant.

That is not all. On the question of intention to kill the deceased person, the trial Court had this to say:

It is in evidence that the deceased person died of gunshot injuries, see Exhibits A A1. The two accused persons fired jointly six rounds of AK 47 rifles ammunition. The two accused person had been link (sic) sufficiently with the killing or death of the deceased persons. It should be noted that AK 47 rifle is a lethal weapon and one does not need a soothsayer to tell out of the devastating effect its

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ammunition or bullets would have on persons hit by such ammunition when expended. It either inflicts grievous bodily harm in or leads to death (as in the case on hand) persons hit by such ammunition.

In the circumstance of this case, it can safely be inferred that the two accused persons when they fired their AK 47 rifles whether to the air or not in the midst of a large member (sic) of people would know how that such expended ammunition could cause serious damage/injury particularly to any human being hit by such ammunition. The two accused person are trained Corporals.

The logical conclusion that can be inferred or drawn from the facts and evidence placed before this Court in the instant case is to the effect that each of the two accused persons knew that the consequences of their act of firing their AK 47 rifle could inflict bodily harm or cause death of person hit by the expended ammunition and that they desired same.

Again, the Lower Court affirmed these findings. At pages 235 et seq, the Lower Court agreed:

… with the learned trial Judge that the appellant knew that death of human being would be the natural consequence of

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firing an AK 47 rifle into the crowd, but he went ahead to fire the rifle into the midst of the people. By so doing, he intended to kill or cause bodily harm to the people. The appellant denied firing his gun in his initial statement to the Police. It was when investigation was conducted into the number of bullets allocated to the Policemen who went to the scene of crime and how many bullets were finally returned, that the appellant owned up that he expended four (4) bullets at the scene of crime. It was this appellant’s attitude that prompted the learned trial Judge to disbelieve his story that he fired into the air. I agree with the learned trial Judge that the appellant’s story that he fired into the air is unbelievable. The learned trial Judge in his judgment at pages 144 148 of the record of appeal effectively handled the issue of self defence raised by the appellant. I agree with him that the story of Bamisile coming to the scene of crime with boys armed with guns like pistol, AK 47 and pump action guns were never reflected in the appellant’s extra-judicial statements to the Police and such evidence being at variance with his previous statements is an

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after-thought and not capable of being believed. That being so, [the] appellant had not shown that his life was in real danger as to require the amount of force used in his defence….

It is in evidence that of all the Policemen that went to the scene, only the appellant and his co-convict shot directly into the crowd. From all indication, the team leader did not order them to shoot. The two Policemen who took a decision to open fire on the crowd acted on their own volition and were therefore not covered by any rules of engagement…

My Lords, I have undertaken this extensive review of the views of the trial Court as duly affirmed by the Lower Court to expose the poverty of the appellant’s arguments in this appeal. Interestingly, the appellant did not succeed in showing the perversity of these concurrent findings.

I shall therefore not interfere with them, Princent and Anor v. The State [2002] 12 SC (Pt.1) 137; [2002] 12 SCNJ 280, 300; Ubani and Ors. v. The State [2003] 12 SC (Pt.II) 1; [2003] 12 SCNJ 111, 127-128; Sokwo v Kpongbo [2008] All FWLR (Pt.410) 680, 695 – 696; Ogunbayo v. State [2007] 3 SC (Pt.11) 1, 27.

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In all, I find no merit in the arguments in this issue. I equally resolve the issue against the appellant.

In passing, I am constrained to observe that learned counsel for the appellant; recent Nigerian cases and even writers have continued to describe the elements of the offence under consideration in the ancient English law maxim: actus reus non facit reum, nisi mens rea – [an act or omission cannot amount to a punishable offence without the requisite guilty knowledge of the wrongful act].

This is notwithstanding the protestations from eminent scholars that the provisions of the Criminal Code are sufficiently, comprehensive to obviate any need to refer to the doctrines of actus reus and mens rea, see, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books, 2000) 78; C. O. Okonkwo, “The Unlawful Act Doctrine and the Defence of Accident” in The Nigerian Bar Journal Vol 11 (1973) 93-97.

Indeed, ex curiae, Karibi-Whyte JSC noted that “it is not advisable to refer to the English concept of mens rea in the elucidation of the provisions of Section 24 of the Criminal Code”. See A. G. Karibi-Whyte, History and

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Sources of Nigerian Criminal Law (Ibadan: Spectrum Law Publishing, 1993) 233.

I entirely agree with these views. After all, today, most crimes under English law, including common law crimes, are defined by statutes that usually contain a word or phrase indicating, for example, the mental element. Thus, a typical statute, for example, may require that a person acts knowingly, purposely or recklessly.

In all, having thus resolved the issues against the appellant, I have no hesitation in dismissing this appeal. In consequence, I endorse the concurrent judgments of the Lower Courts. Put differently, I affirm the judgment of the Lower Court: which judgment had affirmed the trial Courts conviction of, and sentence on the appellant to death by hanging. Appeal dismissed.

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SC.446/2015