Festus Amayo Vs The State (1992)
LawGlobal-Hub Lead Judgment Report
S.O. UWAIFO, JSC.
This is an appeal against a conviction for murder and sentence of death. The appellant, a police constable, was charged with the murder of one Julius Duru under section 316 of the Criminal Code, Cap. 30, Laws of Eastern Nigeria, 1963, erroneously stated as section 319(1). The alleged offence took place on 22 October, 1987 at Avu junction, Port Harcourt/Owerri Road.
He was tried in the High Court of Imo State presided over by Ubah, J. On 26 November, 1991, the learned trial judge in the concluding part of his judgment held: “The testimonies of the 3rd, the 1st and the 5th prosecution witnesses offer ample, and satisfactory proof of the ingredients of the offence of murder. In my humble view, the prosecution has proved the charge beyond reasonable doubt.”
Earlier, he regarded the 3rd PW as the only eye-witness relied on by the prosecution. He accordingly found the appellant guilty of the offence of murder and convicted him. He then sentenced him to death. On 13 July, 2000, the Court of Appeal (Port Harcourt Division) dismissed the appellant’s appeal and affirmed the conviction for murder and sentence of death.
In the leading judgment by Akpirorah JCA, with which Nsofor and Ikongboh JJCA concurred, he observed as follows: “The 3rd PW not being an accomplice or having any interest to serve in the case, his evidence was rightly in my view acted upon by the learned trial judge in holding that the killing of the deceased by the appellant was voluntary. It is now well settled that a court can convict upon the evidence of one witness, without more, if the witness is not an accomplice in the commission of the offence and his evidence is sufficiently probative of the offence with which the accused has been charged.” There is no doubt that both the trial court and the court below accepted the 3rd PW as a vital witness upon whose evidence much reliance was placed. The appellant has now appealed to this court and raised two issues for determination as follows:
1. Whether the appellant was exculpated from criminal responsibility for the death of the deceased by virtue of the provisions of section 24 of the Criminal Code.
2. Whether the guilt of the appellant was established beyond reasonable doubt as laid down by law before he was convicted for murder and sentenced to death? It is necessary at this stage to state the facts of this case. First, as narrated by Monday Raymond, who testified as PW1. On 22 October, 1987, he drove his commercial vehicle, a pick-up van registration No. IM 3611 WA, from Owerri along Port Harcourt-Owerri Road towards his own village, Umuagwo. He had in his vehicle one Henry Anele (PW3) who sat between him and his conductor, Julius Duru (now deceased) in the driver’s cabin. At Avu junction, there was a road check conducted by a certain policeman. The policeman stopped the vehicle and asked what the driver carried in the van. He replied that there was nothing. While all three in the driver’s cabin remained seated, the policeman inspected the back of the van. He then tapped on the vehicle, signaling the driver to move on.
He began to move on slowly towards some policemen who had used iron bar to mount a road block. A policeman emerged from under a mango tree near the road and ordered the driver to stop. Just then there was a gunshot, the bullet from which went through the side of the van where Julius Duru sat. The bullet hit him fatally. The driver did not know at that stage that it was a gunshot because when he heard the sound, thinking it came from a burst tyre or bad exhaust pipe, he turned towards Julius and asked him to check at both. But Julius replied that he had been shot.
It is plain, therefore, that PW1 did not witness the shooting, that is, he did not actually see who shot at that instant. The learned trial Judge so found. However, he also found, as already shown, that PW3 was an eye-witness – indeed, the only eye-witness- to the shooting. In his evidence, PW3 narrated how he boarded the vehicle on the day in question and sat between the driver and his conductor who was close to the right side door. I think it is pertinent to reproduce the crucial portions of the evidence of this witness. In evidence-in-chief he said: “As we got near Avu Junction, people in police uniform flagged the vehicle to stop. The driver PW1 slowed down to stop. As the PW1 was about to stop the policeman who flagged him down turned his back to the vehicle and faced the other side of the road.
Then the PW1 tried to continue moving onwards. Then another policeman immediately fired his gun towards us. He fired at us from the right side of the vehicle. The boy who was sitting outer most near the door of the pick up was hit by bullet from the gun fired by the policeman. The PW1 cleared from the road stopped and began to cry. Then the policeman who fired the gun also came to the vehicle and started crying.” Under cross-examination, he said: “I saw two policemen on our side of the road. The accused was one of them. No policeman signalled the PW1 to move on.
Our vehicle was on our proper side of the road. From the position of the accused to the place our vehicle slowed down was about 8½ meters. After the gun shot I saw the accused come to the vehicle. He held the injured person, weeping.” (Emphasis mine) The appellant in his defence admitted being at the road block on duty that day. He said he held a rifle and stayed on one side of the road reading newspaper. After a while he left where he was to move over to the other side of the road. It was at that point that his rifle fell from him, hit the ground and exploded, just as a pick-up van was passing by. He picked up the rifle and ran towards the vehicle when he heard a cry of agony.
He claimed he had no intention to fire at any body let alone kill. His defence was one of accident. Issue 1 The appellant still sticking before this court to his narration of the event which led to the death of Julius Duru, relies on the defence under section 24 of the Criminal Code. In the appellant’s brief of arguments, learned counsel for the appellant had devoted a large body of argument to that defence as contained in that section thus: “24. Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident…” There are two situations of quite different bases reflected in the above-quoted provisions. When either is successfully raised, it leads to an acquittal. They can be separated for consideration as follows:
(1) No criminal responsibility due to a person: for an act or omission which occurs independently of the exercise of his will. This is a situation where the will of a person was not involved; he did not exercise his will at all; the act was involuntary. Such an act is not punishable. In Bratty v. Attorney-General for Northern Ireland (1963) AC 386 at 409, Lord Denning said: “No act is punishable if it is done involuntarily: and an involuntary act in this context – some people nowadays prefer to speak of it as ‘automatism’- means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking.”
The term “automatism” is itself defined inter alia as: “Behaviour performed in a state of mental unconsciousness or dissociation without full awareness… Term is applied to actions or conduct of an individual apparently occurring without will… Automatism may be asserted as a criminal defence to negate the requisite mental state of voluntariness for commission of a crime”. See Black’s Law Dictionary, sixth edition, page 134. This must be differentiated from the second situation in section 24 of:
(2) No criminal responsibility due to a person: for an event which occurs by accident. This involves a voluntary act, but as said by Karibi-Whyte JSC in Chukwu v. The State (1992) 1 NWLR (Pt. 217) 255 at 269: “where the voluntary act results in an event which was neither intended nor foreseen, the consequence is an accident.” Oputa JSC put it in these words in Adelumola v. The State (1988) 1 NWLR (pt. 73) 683 at 692 – 693 inter alia: “It seems to me that the expression ‘an event which occurs by accident’ used in section 24 of Cap. 42 of 1958 describes an event totally unexpected by any ordinary person, the reasonable man of the law… An event is thus accidental if it is neither subjectively intended nor objectively foreseeable by the ordinary man of reasonable prudence.”
It must be noted that both Karibi-Whyte JSC and Oputa JSC decidedly restricted their respective observations to the second arm of section 24 which alone relates to the defence of accident. In fact, Karibi-Whyte JSC underlined the second arm of the section. In looking at the entire provisions of section 24, there is no way the first arm can be construed to reflect ‘accident’ as a causal link or causative agent. That arm talks only about an act or omission occurring independently of the will. It is involuntary.
It will normally require medical or some scientific evidence in proof: see Hill v. Baxter (1958) 1 QB 277 at 285. Whereas the second arm alone draws attention to an event occurring by accident. And accident as an event is none other than a voluntary act but which results in unforeseen and unintended consequence. It is a matter of ordinary factual evidence which will be subjected to the objective test. I had in the Court of Appeal made an observation about automatism as a defence in Agwu v. The State (1998) 4 NWLR (pt. 544) 90. I said at page 109: “Such a defence, as far as I know, has hardly been raised in this country; but it must not be ruled out that it can be raised or that it is available under that arm of section 24 when an appropriate occasion arises.”
I have on reading Okonkwo and Naish: Criminal Law in Nigeria 2nd edition, in the course of preparing this judgment, discovered that the defence of automatism has in some form been raised or considered in this country. At page 144 of the book, under the sub-heading ‘Automatism’, the authors say: “Section 24 of the Criminal Code provides a defence where an act or omission is independent of the exercise of the will.” They then refer to what Winn. J. observed in Watmore v. Jenkins (1962) 2 QB 572 at 576 that: It is equally a question of law what constitutes a state of automatism.
It is salutary to recall that this expression is no more than a modern catch-phrase which the courts have not accepted as connoting any wider or looser concept than involuntary movement of the body or limbs of a person.” The defence was raised in Ayinde v. The Queen (1963) 2 SCNLR 362, (1963) 1 All NLR 393 in the form of an “involuntary act” and considered but rejected. It was also raised in R v. Elomba, Charge No.I/95C/1962 (unreported).
It is unnecessary to say more than that in the present case other than that I have found the research of the authors in question in this regard helpful. It has become necessary to set out the difference between
Other Citation: (1992) LCN/2518(SC)