Joseph Idowu V. The State (2000)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C

This is an appeal against the judgment of the Court of Appeal (Ibadan Division) affirming the conviction for murder and sentence of death passed on the appellant by the High Court of Ogun State (Ijebu-Ode Judicial Division). The appellant had stood trial on a one count information for murder contrary to section 319(1) of the Criminal Code Law of Ogun State in that on or about the 7th day of July, 1991 at the Ogun State Forestry Camp J4 Ijebu Waterside, he murdered one Shade Pelemo. To this charge, the appellant pleaded “not guilty”. At the trial, five witnesses testified for the prosecution while the appellant gave evidence in his defence. Learned counsel for both the appellant and the prosecution addressed the court and, in a considered judgment, the learned trial Judge, on 3rd August 1992, found the appellant guilty as charged, convicted him of murder and sentenced him to death by hanging.

The appellant, being dissatisfied with this judgment appealed unsuccessfully to the Court of Appeal. He has now further appealed to this court upon two original and two additional grounds of appeal. The four grounds of appeal read:

“1. That the court erred in law to have believed that my relationship with the deceased killed her.

2. That the decision of the court was (the) harsh if at all her death was caused by my affairs with her. There was no intention to kill.
3. The Court of Appeal erred in law in its conclusion that the court of trial was justified in law in convicting the appellant on the confessional statements which the appellant retracted at the trial.

Particulars of Error

(i) There is nothing independent of the confessional statements Exhibits A and C indicative of the guilt of the appellant and;

(ii) The undisputed facts before the court negated the truth of the confessional statements.

(iii) The Court of Appeal in the circumstances erroneously endorsed the trial court’s wholehearted acceptance of the alleged confessions without applying the test in Nwaebonyi v. State (1994) 5 NWLR (Pt. 343) 138.

4. The Court of Appeal erred in law when it held that the prosecution had proved its case beyond reasonable doubt against the appellant.

Particulars of Error

(i) Exhibits A and C which were confessional statements retracted by the appellant and remained uncorroborated in the light of the evidence before the court.

(ii) The circumstantial evidence relied upon was not cogent and did not irresistibly point to the fact that the appellant was the culprit.

(iii) The medical evidence before the court was inconclusive.

(iv) In the circumstances, a real doubt as to the guilt of the appellant existed and ought to have been resolved in his favour.

The relief he seeks in this reads:

“That the sentence passed on me be set aside for a lesser punishment, if it cannot be totally quashed.”

In his brief of argument filed pursuant to the rules of this court, the appellant abandoned the original grounds of appeal and, based on the additional grounds, he formulates the following two issues for the determination of his appeal, to wit:

“The appellant respectfully prays the court to determine whether:

(a) The court below was justified in the light of the evidence in the printed record in concluding that the appellant was properly convicted on the retracted confessional statements, Exhibits A and C.

(b) Whether the court below was right in its conclusion that the prosecution had established beyond reasonable doubt that the appellant murdered the deceased.”

I think these two issues are properly raised on the grounds of appeal relied on by the appellant and they will be adopted for the purpose of this appeal.

At the oral hearing of the appeal on 24th February, 2000, both Mr. Obianwu, for the appellant and Mrs. Asenuga, learned DPP of Ogun State advanced oral arguments in further elucidation of submissions in their respective briefs. We adjourned for judgment. In the consideration of our verdict, we thought it desirable to have further arguments from learned counsel as to whether, on the facts, a case of murder or manslaughter was made out. Learned counsel for both the appellant and respondent each filed a supplementary brief on the point and on 18th May, 2000 offered further oral arguments. We then further adjourned to today 13th July 2000 for judgment.

Before I proceed further with the consideration of the appeal, I think I need at this stage to set out the facts. There was no eye witness account to the event leading to the death of Shade Pelemo, the deceased other than the confessional statements Exhibits A and C made by the appellant to police officers (PW2 and PW3) at different times and which statements the appellant retracted at the trial. As the appellant claimed at the trial that he made the statements under duress, there were “trials within trial” before they were admitted in evidence after the learned trial Judge had found they were made voluntarily. From the evidence of the deceased’s father (PW 1) and the doctor who performed post mortem examination on the corpse of the deceased and the two confessional statements of the appellant, Exhibits A and C, the following facts emerge:

PW 1, Ferdinand Taiwo Pelemo, the father of the deceased Shade Pelemo, aged about 5, was a storekeeper at the Ogun State Forestry Plantation Project at J4 Ijebu East Local Government. He is a relation of the appellant who lived with him and his family. On 4th July, 1991 PW1, left for Akure in company of his wife and left his two young children Rotimi, male, aged 7 and Shade, female, aged about 5 in the care of the appellant. Both he and his wife returned in the evening of the 7th July only to be told that Shade had taken ill and was in hospital at Ijebu-Ode. He left for the hospital at Ijebu-Ode on 8th July, and was there when Shade died in the afternoon of that day. On 9th July, he identified the corpse to PW4, Dr. Adeboye who performed a post mortem examination on the corpse of the deceased. Shade usually suffered from convulsion.

The appellant was handed over to Sgt. Chikwen (PW2), who on 8/7/91, arrested him and obtained a statement, Exhibit A from him. PW2 visited J4 with the appellant and complainant where he recovered one small blood stained pant belonging to the deceased, a pair of torn knickers belonging to the appellant, two belts and one torn polo shirt. The items were later sent to the Forensic Laboratory but due to lack of chemical, they could not be examined for blood stains and were returned. They were tendered in evidence.

The case was later transferred to the homicide section of the State Investigation and Intelligence Bureau, Abeokuta, for further investigation. Sgt. Lamidi Musa who took over the further investigation obtained another statement (Exhibit C) from the appellant who admitted to ASP Francis Sowole (the officer in charge of the homicide section) that he made the statement voluntarily. ASP Sowole testified as PW5.

Dr. Olusegun Abimbola Owolabi Adeboye (PW4) of the State Hospital, Ijebu-Ode performed autopsy on the corpse of Shade Pelemo. The child was brought into the hospital “unconscious, with head injury and with deep wound in her private part.” “She was bleeding properly (sic) from her private part.” Before PW4 could do anything to repair the wound in the private part, Shade died. PW4 performed a post mortem examination and found –

“her in position of braised stem injury which is suggestive of head injury. The wounds in her private part were still fresh. The fresh wound in her private part in my opinion could be caused by a penetrating object. Anything that made a forced entry. We did not find any remnant of anything inside her so we could not decide the object. ”

He opined that –

“The child died as a result of the multiple injury to the head and the private part.”

According to PW4, “the head injury was caused by contact with a blunt object like falling down or knocking the head against a hard surface. The head injury could have been caused by a struggle of (sic) it leads to a fall.” Testifying further, PW 4 said:

“A person who is unconscious has lost communication with the rest of us, but the cause of his unconsciousness may result in some movements like twitching, foaming in the mouth etc. An unconscious person who is restless can fall down. It is possible for the head injury to precede the injury to the private part.

The people who brought her said they found her in the house unconscious and bleeding. How the injury occurred, nobody told me.

We do make attempt to find out cause of unconsciousness or illness but in this case the concentration was on saving her life.

Attempt was even made to put her on oxygen. She was twitching and foaming in the mouth.”

Cross-examined, PW 4 testified:

“She was convulsing by the time she was brought to us. Any head injury could cause convulsion which is just irritation of the brain.

There was no evidence that the injury to the vagina was caused by accidental fall on a sharp object otherwise there would be evidence of the object. It was more like a forced entry of a penetrating object.”

In Exhibit A made on 8/7/91, the appellant said:

“On Thursday 4/7/91, my brother Taiwo Pelemo and his wife Margaret Pelemo travelled to Akure in Ondo State and leave (sic) me and their children Rotimi Pelemo and Shade Pelemo “f’. So on Saturday 6/7/91 around 9.00 p.m. me and my brother’s friends buy drinks and begin to drink till midnight before everybody went to sleep. On Sunday morning around 8.00 a.m. of 7/7/91 I carry the remaining drink begin drink and I drink all finish and I lose my control. After that I forced my brother’s daughter Shade Pelemo and sexed her and she was crying so I left her and I go sleep and when I come wake from sleep I come see Shade Pelemo crying and I come ask what happened to her and she come tell me say I sexed her by force. This time I come call people make they help me.

When I come de shout Mr. Jimoh and his wife came and help me carry Shade Pelemo to General Hospital, Ijebu-Ode. At the hospital they admitted her and started giving her some treatments. When the motor we carry us come, want to go back to J4 inside via Ogbere I say make I follow the driver so that I will tell my brother if he don return. When I reach J4 inside my brother Taiwo Pelemo had returned and they have already told him the thing wey happen and he himself de look for motor to carry him to the General Hospital. The time I take reach J4 was 7.00 p.m. and he begin to ask me what happened and I came tell him everything. So, he came tell me say make I de pray say make nothing happen to his daughter. After the people who live together with us in the Camp come take me say make I go sleep for the security office for J4, so that I no go kill myself and I sleep there till today 8/7/91 before the security men say make I no go anywhere and they come give me food and I eat.

So this evening around 5.15 p.m. as I de for the Security Office J4 the people wey go to the General Hospital go look Shade Pelemo come tell me say she don die. After my brother Taiwo Pelemo with the security men from J4 come carry come report me for Ogbere Police. Na only me sex Shade Pelemo. The time I de sex Shade I no know myself. I will not drink above myself again and I no go sex small girl again. I know that the age of Shade the deceased was five years before the day I sex her and I did not know say she go die.”

And in Exhibit C made on 16/7/91, he said:

“I know Taiwo Pelemo ‘m’. He is my senior brother. His father is the senior brother of my father. He is the person that brought me from our home town Erusu Akoko, in Ondo State to J4 where I stay with him. On Thursday 4/7/91, my brother Taiwo Pelemo and his wife Margaret Pelemo travelled to Akure in Ondo State. They left behind their two children: one Rotimi Pelemo ‘m’ and Shade Pelemo ‘f for me to take care of them. On Saturday 6/7/91 at about 9.00 p.m., myself and my brother’s friends namely, (1) Jimoh ‘m’ (2) Kehinde ‘m’ (3) Ajani ‘m’ all of Forestry Camp J4 were drinking native gin (Ogogoro) in front of my brother’s house. We drank till about 1.00 a.m. of 7/7/91. We are not celebrating anything. That was how we drink in the camp. At around 1.00 p.m., everybody left to their rooms to sleep. I also went to bed. When I woke up at about 8.00 a.m. of Sunday 7/7/91, I drank the remaining drink which was inside Coke bottle left by Jimoh because I don’t want my brother to see the drink. I later make Gari for Rotimi and Shade to eat. After eating, they went to play. At about 10.00 a.m., while myself and Rotimi were outside playing with his friends, I removed Shade’s pant from her waist and carried her on my brother’s bed. I started to finger the girl. I first put in the small finger of my left hand. The finger did not enter into the vagina. But I forced it in. I later put in the fourth finger. When the finger entered, I used it to screw the vagina until it got slack, I then forced my penis into the vagina. The girl was crying bitterly but I did not leave her until I spermed. When I got up from her, I discovered that the vagina has torn and blood was rushing out. This girl is about four years and nine months old, she has no breast. Nothing attract me on her body. The act was done on the hand of devil. When I finished with the girl and she started bleeding, I quickly wear her pant for her and shouted for people to help. Mr. Jimoh and his wife, Mr. Zacheaus and his wife ran to the scene. They helped me to rush her to General Hospital, Ijebu-Ode. I also followed them to the hospital. The girl was admitted in the hospital. While we came back to the camp and I was detained with the security men guarding the camp. At this time, my brother Taiwo Pelemo, the father of the girl returned from Akure. He asked me what had happened. I explained everything to him. He asked me whether I did better, I told him that I had done that out of the influence of alcohol. My brother said that I should pray the girl should not die. On the following day Monday 8/7/91 at about 5.00 p.m., I was told that Shade Pelemo has died in the hospital at Ijebu-Ode. I was then taken to Ogbere Police Station where a case of murder was reported against me. The police detained me in the cell. On the following day, my brother came to informed (sic) me in the cell that he has collected the corpse of the girl and she has been buried. I have not married but I have a girl friend. She is about nineteen years old. She was not around at the time I sex Shade. That was why I did not go to her. There are many prostitutes at J4 and I have money to take to them for sexual intercourse, but drink and evil pushed me to Shade instead of prostitute. That is all I know.

At the trial however, the appellant gave a somewhat different story. This is the account he gave on oath:

“I am an apprenticed grader operator. I know Sade Pelemo. She is dead. Sade was the daughter of my brother. I did not kill Sade. On 6/7/91 when my brother and his wife went to Akure for the weekend, they left me in charged of Sade and her brother Rotimi.

In the evening the friends of my brother came and sent me to purchase illicit gin for them. They usually come to drink with my brother. I bought the drink. They were drinking and recording cassettes. I also drank with them. My brother’s friends left that night.

The following morning 7/7/91 three of my brother’s friends returned that they did not complete the recording the previous evening. I was preparing Eba for my brother’s children Sade and Rotimi Pelemo. After we eat (sic) my brother’s friend asked for the remaining illicit gin from the previous evening. I gave it to them and we all drank.

After sometime, I was feeling dizzy and I slept on a bench outside. About 12 noon, I was woken up by a cry. I did not see my brother’s friends again. I saw Sade on the bed stretching. I ran out to seek help. They carried her and said she had convulsion. She was given the herbal medicine for convulsion but it was not effective so we took her to the maternity clinic at J4. The lady there examined her and said we should take her to the General Hospital in Ijebu Ode.

At Ijebu-dde we told them she had convulsion. She was treated and by evening the rest of us were asked to go home leaving two women with her.

I went back home. Towards evening, one of the women left with Sade came back to say that Sade was raped. I denied knowledge of it.

My brother returned that evening. I explained to him that she had convulsion and was on admission. My brother then went to the General Hospital and he and his friends said I should wait with the security men at J4.

The following morning nobody came. The security men bought food for me. At about 5.00 p.m. the people returned from the Hospital to say that Sade Pelemo was dead. I was then taken to the Police Station. I did not have sexual intercourse with Sade and nobody also that I know, did.”

(ltalics are supplied)

The appellant’s evidence at the trial is almost identical with his statements (Exhibits A and C) except as to the act of defilement of Shade which he admitted in Exhibits A and C but denied in his evidence at the trial.

At the oral hearing of the appeal, Mr. Obianwu, for the appellant formally abandoned grounds 1 & 2 which were accordingly struck out. He also conceded that ground 4 is not a ground of law simpliciter and that he did not obtain leave of this court to appeal on grounds other than of law alone. The appellant’s appeal to the Court of Appeal was dismissed on 1st July, 1998. As at that date, the Constitution (Amendment) Decree 1998, No.3 of 1998 was in force. Section 1(a) of the Decree amended the Constitution by substituting a new section 213 of the Constitution of the Federal Republic of Nigeria 1979. The new section 213 reads in part:

“213. (1) The Supreme Court shall have jurisdiction to the exclusion of any other court to hear and determine appeals from the Court of Appeal.

(2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases –

(a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;

(b) Decisions in any civil or criminal proceedings on question; as to the interpretation or application of this Constitution;

(c) Decisions in any proceedings on question as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person.

(3) Notwithstanding the provisions of this section, no appeal shall lie to the Supreme Court from any decision of the Court of Appeal in respect of an interlocutory decision.

(4) Nothing in this section shall confer any right of appeal from a decision of the Court of Appeal granting or refusing leave of appeal to the Court of Appeal from any decision of a High Court.

(5) Subject to the provisions of subsections (2), (3) and (4) of this section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with the leave of the Supreme Court.”

Ground 4, therefore, not being a ground of law, simpliciter appellant would require leave of this court to appeal on it. That leave not having been sought nor obtained, ground 4 is incompetent and issue 2 predicated on it is hereby struck out.

We are now left with only issue 1.

It is argued in the appellant’s brief and in the oral submissions of his learned counsel that the courts below were in error when they held that Exhibits A and C were corroborated by the evidence of PW 4. It is argued that PW4 did not testify to the fact that the appellant defiled the deceased. It is submitted that the questions posed in Nwaebonyi v. The State (1994) 5 NWLR (Pt.343) 138 to determine the veracity of a confessional statement cannot be resolved against the appellant.

Learned counsel, Mr. Obianwu, in his oral argument submitted that there was no evidence outside Exhibits A and C implicating the appellant in the offence charged.

He observed that Exhibits A and C were retracted at the trial by the appellant and submitted that as there was no evidence on record to show that the statements were true, the court could not act on them to convict. He further submitted that the evidence on record negated the truth of Exhibits A and C. Learned counsel further submitted that there was no evidence as to how the deceased sustained the head injury found on her by PW4. He urged us to allow the appeal, set aside the conviction for murder and acquit and discharge the appellant.

Mrs. Asenuga, both in her brief and in oral argument, submitted that the appellant was rightly convicted and urged us to dismiss the appeal. She argued in her brief that the learned trial Judge tested the truth of Exhibits A & C by examining the facts contained in them with evidence outside them, particularly the evidence of PW4. She urged us not to disturb the findings of fact made by the courts below.

The law is that a free and voluntary confession of guilt made by an accused person, if it is direct and positive, is sufficient to warrant his conviction without any corroborative evidence as long as the court is satisfied of the truth of the confession. See: Jimoh Yesufu v. The State (1976) 6 SC 167 at 173 where Obaseki, Ag. JSC (as he then was) delivering the judgment of this court, said:

“There is a long line of judicial authorities (on the effect of confessions and we agree with the statement which establish that in Nigeria, a free and voluntary confession of guilt by a prisoner, whether under examination before a magistrate or otherwise, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant convictions without any corroborative evidence so long as the court is satisfied of the truth of the confession (Edet Obasi v. The State (1965) NMLR 119). But it is desirable to have outside a defendant’s confession to the police, some evidence, be it slight of the circumstances which make it probable that the confession was true. [Paul Onochie & 7 Others v. The Republic (1966) NMLR 307; R. v. Kanu 14 WACA 30.”

See also: Koiki v. The State (1976) 4 SC. 107 at 111; Ntaha v. The State (1972) 4 SC 1; lkemson v. The State (1989) 3 NWLR (PU10) 455. But it is the practice to look outside the confession, some evidence, however slight, of confirmatory circumstances, where an extra judicial confessional statement of an accused person is, however, retracted at the trial, a long line of cases has laid it down that some tests are to be applied to it to determine its truth. In Philip Kanu & Anor. v. R. (1952) 14WACA 30, 32, the West African Court of Appeal adopted the tests approved by Ridley J in R. v. Sykes (1913) 8 Cr. App. R. 233, 236-237 wherein the learned Judge cited with approval the following statement of law made by the commissioner that tried the case originally:

“A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever, the necessity arises, because confessions can always be tested and examined, first by the police, and then by you and us in court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true is it corroborated are the statements made in it of fact so far as we can test them true was the prisoner a man who had the opportunity of committing the murder is his confession possible is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us”

Since Kanu v. R, these tests have been applied in this country in numerous cases. See:R. v. Obiasa (1962) NSCC412; Obasi v. The State (1965) NMLR 129; Onochie & Ors. v. The Republic (1966) NMLR 307; Obue v. The State (1976) 2 SC. 141; Jimoh Yesufu v. The State (supra); Dawa v. The State (1980) 8-11 SC. 236; Nwaebonyi v. The State (supra).

Now to the case on hand. The learned trial Judge found that Exhibits A and C were made by the appellant voluntarily. ‘She adverted her mind to the fact that as the appellant retracted those statements, she had to be satisfied of their truth before she could convict. She said:

“The prosecution alleged that the accused person made two confessional statements, Exhibits ‘A’ and ‘C’ to the police. The court ruled during the voir diar that the statements were voluntarily made. The two statements were however retracted when the accused person testified. Where an accused person retracts his confessional statement, it is the duty of the court, having regard to all the circumstances, to consider whether the accused had made the statement, whether the statement was true and whether the confession was voluntary.”

Examining Exhibits A and C in the light of evidence outside them, the learned Judge observed:

“The testimony of the accused corroborates part of the contents of Exhibits ‘A’ and ‘C’. Only the accused could have given such details in Exhibits ‘A’ and ‘C’ regarding the visit of the friends of PW 1; the purchase and drinking of illicit gin, the recording of cassettes and the preparation of food for the children. The only material part of Exhibits A and C omitted from the testimony of the accused was his defilement of the deceased. However, that aspect of the statement had been corroborated by the doctor. While the doctor was not specific that she was defiled, he indicated as much.

He said that the wound in her private part was deep and fresh. It was caused by a penetrating object forcefully intruded into her. He was sure that the penetration was not accidental as otherwise a bit of the object would have been detected in her. Further, the doctor said that the child was twitching and bleeding profusely from her private part till she died. In his testimony, the accused said that one of the women who took Shade to the hospital said she was raped. These are facts independent of the confessional statement from which the court can draw the incontestible inference that the confessional statements are true. The inference from the evidence is that the penetrating object which forcefully injected itself into the child were the finger and the penis of the accused as contained in his confessional statements.”

and concluded –

“I find that the accused person made the statements, Exhibits ‘A’ and ‘C’ voluntarily and that the contents are true.”

The court below, Per Okunola JCA reviewed the law, the facts in the case and the findings of the learned trial Judge and concluded:

“I agree with the above finding of fact by the learned trial Judge particularly when viewed against the evidence of PWs 1-5 particularly PW 4 the medical practitioner.”

The appellant said a lot of things in Exhibits A and C which are in line with his evidence at the trial. The only area of retraction is as regards the defilement of the deceased. He admitted this in Exhibits A and C and gave a vivid account in Exhibit C. He said in Exhibit C:

“At about 10.00 a.m. while myself and Rotimi was outside playing with his friends. I removed Shade’s pant from her waist and carried her on my brother’s bed. I started to finger the girl. I first put in the small finger of my left hand. The finger did not enter into the vagina. But I forced it in. I later put in the fourth finger. When the finger entered, I used it to screw the vagina until it got slack. I then forced my penis into the vagina. The girl was crying bitterly but I did not leave her until I spermed. When I got up from her, I discovered that the vagina has torn and blood was rushing out.” …

when I finished with the girl and she started bleeding, I quickly wear her pant for her and shouted for people to help.”

I have set out earlier in this judgment the salient part of the evidence of PW 4. Surely, if one places the evidence of PW4 alongside the account given in Exhibit C, it is not difficult to agree with the conclusion of the learned trial Judge that the contents of Exhibit C are true. The court below was right to affirm her conclusion.

I too, affirm it and resolve the issue under consideration against the appellant. There was evidence outside Exhibits A and C that confirmed the truth of the contents of those statements as regards the defilement of the deceased by the appellant.

As stated earlier in this judgment, we invited learned counsel for the parties to address us further on whether, on the facts, a case of murder or manslaughter was made out. Both learned counsel filed supplementary briefs which we find to be very useful in the resolution of this new issue raised by us. Learned counsel also proffered oral arguments. Incidentally, the two courts below also gave consideration to this issue in their respective judgments.

Mr. Obianwu, both in his brief and oral argument, submitted that on the facts, the appellant could not be convicted of murder under the provisions of section 316(3) of the Criminal Code of Ogun State. He further submitted that the evidence did not reveal that any act done in furtherance of the unlawful purpose of raping the deceased could be said to endanger the life of the deceased. He cited a number of decided cases to buttress his submissions. I shall refer to these authorities later in this judgment.

Mrs. Asenuga, learned leading counsel for the respondent, on the other hand, submitted that, on the facts, a case of murder was made out. She submitted that the deceased died as a result of the act of the appellant which was of a nature as to be likely to endanger human life. She referred to the proviso to section 316(3). She also referred to the age of the deceased and her state of health and in particular to the evidence of the appellant where he testified that –

“I saw Sade on the bed stretching. I ran out to seek help. They carried her and said she had convulsion.”

Mr. Obianwu, in reply, drew attention to the fact that the two courts below did not find as a fact that it was the act of the appellant that accelerated the death of the deceased.

The learned trial Judge set out what must be proved in a charge of murder. She said, and I agree with her:

“In order to establish a charge of murder under the code, there must be evidence of:

1. The fact of death;
2. Death within a year and a day of the act;
3. The act or omission on the part of the accused directly causing the death of the deceased; and
4. The intent to kill or to do grievous bodily harm; or to do an act or make an omission likely to endanger human life while pursuing an unlawful purpose.”

Dealing with the 4th ingredient above, the learned trial Judge reasoned:

“However, under Section 316(3) of the Criminal Code, before the court can convict for murder, the prosecution must not only prove that the unlawful act of the accused caused the death of the deceased, it must show that the unlawful act is of such a nature as to be likely to endanger human life. The test for whether the act is of a nature likely to endanger human life is whether death is a reasonably probable consequence of the act.

In R. v. Nameri 20 NLR 6, the accused committed rape on a girl of thirteen and she bled to death from the injury done to her private part by the act of violation. In view of the evidence in court that it was not unusual for girls of that age to have sexual intercourse, which did not usually lead to death, the court found the accused not guilty of murder but of manslaughter.

The ravishing of the girl of five is clearly an unlawful act. The question to be asked is whether it is an act of such a nature as to be likely to endanger life. In The King v. Udofa ldiong and Umo (1950) 13 WACA 30, a case on Section 316(3) of the Criminal Code, the court held that –

“It is to be observed that the act must be one of such a nature as to be ‘likely to endanger human life, and we think that an act cannot be said to be likely to have a certain result if a reasonable man would not expect it to have such a result, even though in the event that result ensued.

In coming to the decision to convict the accused for manslaughter as against the conviction of murder, Bairamian, J. found that the act of ravishing the girl of thirteen years of age in that case was not by itself of such a nature as to be likely to cause death as it was not unusual for thirteen year old girls to have sexual intercourse without such fatal result.

In the case on hand, there is no evidence, and it is very inconceivable that such a horrendous act of ravishing a five years old girl could be acceptable as usual.

The prosecution has proved beyond reasonable doubt that the accused person unlawfully killed Shade Pelemo by the unlawful act of having carnal knowledge of her which is an act which is reasonably probable to endanger her life.”

The court below, Per Okunola JCA, was of the view that –

“The prosecution did not only prove that the act was unlawful but further showed that the unlawful act was of a nature as to be likely to endanger human life. The test for whether the act is of a nature likely to endanger human life is whether death is a reasonably probable consequence of the act. See R. v. Okoni (1938) 4 WACA 19. I hold that for the trial Judge to come to a conclusion that the act of ravishing a four years nine months old girl is not act likely to endanger her life would have been perverse.”

As I shall show presently, I think their Lordships of the two courts below, with profound respect to them, were in error in the conclusion they reached. The learned trial Judge admitted there was no evidence on the issue but nevertheless drew a conclusion adverse to the appellant. Surely, this cannot be right. It is not for her to substitute her opinion for evidence. The position of the court below is worse. Okunola JCA who read the lead judgment of that court with which the other Justices that sat with him agreed, found that the prosecution “further showed that the unlawful act was of a nature as to likely to endanger human life.” The learned Justice of Appeal did not point to the evidence led by the prosecution in proof of this fact; he simply just surmised that such evidence existed. I think the learned trial Judge was right when she said there was no such evidence.

Section 316 of the Criminal Code of Ogun State reads:

“316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say,

(1) if the offender intends to cause the death of the person killed, or that of some other person;

(2) if the offender intends to do to the person killed or to some other person, some grievous harm;

(3) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

(4) if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;

(5) if death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;

(6) if death is caused by willfully stopping the breath of any person for either of such purposes;

is guilty of murder.

In the second case, it is immaterial that the offender did not intend to hurt the particular person who is killed. In the third case, it is immaterial that the offender did not intend to hurt any person.

In the three last cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.”

From the facts in this case, paragraphs (1), (2), (4), (5) and (6) would not appear to apply. We are left with paragraph (3). The learned trial Judge rightly found on the evidence that the deceased Shade Pelemo was killed by the act of unlawful carnal knowledge of her by the appellant and it is immaterial that the appellant did not intend to hurt her. But the question, however, remains whether the act is of such a nature as to be likely to endanger human life.

To secure a conviction for murder under subsection (3) of section 316, the prosecution must prove that the death of the deceased was caused by means of an act done in the prosecution of an unlawful purpose and that the act is of such a nature as to be likely to endanger human life. Section 316(3) (or some other section of the Criminal Code similar to it) has come for consideration by the courts in a number of cases.

I start with R. v. Nameri 20 NLR 6, where the accused committed rape on a girl of 13, and she bled to death from the injury done to her private parts by the act of violation. There was no medical evidence in the case but there was evidence that it was not unusual for girls at that age to have sexual intercourse, nor did it lead to death. There was no evidence that the act of ravishment by itself was of such a nature as to be likely to endanger life. The accused was found not guilty of murder but of manslaughter only. Bairamian J. (as he then was) – a Judge of considerable knowledge and experience – in his judgment, reviewed the law in England and Nigeria and pointed out the differences in the two laws. On the facts of the case before him, the learned Judge observed at page 8 of the report:

“As regards the act of ravishment in the case in hand, there is no evidence that by itself, it is of such a nature as to be likely to endanger human life. There was recently in this court another case of rape on a girl of about thirteen – the case of Elisha Agoha. There, the girl bled, but she went about for at least two hours before she was taken to hospital and it was not until the following day that the doctor saw her. He found that the hymen had been torn and that the tear extended backwards to include the labia minora. The tear, he said, was consistent with consent. Agoha was convicted of rape.

There was no suggestion in Agoha’s case that the wound caused by the violation was a grave wound. In the case in hand, there is no evidence on the nature and extent of the wound caused by the violation of Zulai, or any evidence that in the judgment of ordinary men, the act of violation and the wound it may cause to a woman, say a virgin, which Zulai may have been, is one likely to endanger life. It is the first instance of ravishment by itself causing death that I know of. The prisoner must therefore be acquitted of murder, but he is certainly guilty of manslaughter under S. 317 of the Code.”

In R. v. Motesho Okoni & Ors. (1938) 4 WACA 19 on the other hand, the 1st and 2nd accused persons at the instance of the 3rd accused, set fire to a house believing that one Shitta was in it. One Yesajo, a woman was badly burnt and was taken to the hospital where she died. The trial Judge found –

“( 1) The third accused, a person in authority over first and second accused, ordered them to commit a felony, namely arson, in regard to the dwelling house where they knew Shitta to be.

(2) The first and second accused in concert, and because of third accused’s orders, proceeded at once to carry out that felony.

(3) The carrying out of that felony was the setting of fire to Basin’s house.

(4) The fatal burning of Yesajo, an inmate of that dwelling house was a reasonably probable consequence of setting fire to the house.”

He found all the 3 accused persons guilty of murder. On appeal to the West African Court of Appeal, their appeals were dismissed. The court observed at pages 24-25 of the report:

“If the death of Yesajo was caused by means of an act done in the prosecution of an unlawful purpose, which act was of such a nature as to be likely to endanger human life, then the crime was murder; if not the killing was unlawful and amounted to manslaughter only.

In England, the test to be applied is different. In one way, it is more favourable to an accused person and in another way, less favourable. In the case of Director of Public Prosecutions v. Beard (1920) A.C. 479), the House of Lords cleared up doubts which had been expressed by Stephen J. in Rex v. Serne and Another (16 Cox 311). In Beard’s case, it was clearly laid down that by the law of England if a person, while in the act of committing a felony involving violence, kills another without having the intention of so doing, the killing is murder. The difference then between the English and Nigerian law is:-

(a) In England the killing must be done in the act of committing a felony involving violence whereas in Nigeria it is sufficient if death is caused by means of an act done in prosecution of an unlawful purpose (i.e. not necessarily a felony); but

(b) In Nigeria it is necessary also that the act should be of such a nature as to be likely to endanger human life; this is not necessary in England. Returning to the facts of the present case, the learned trial Judge did not record his finding in the exact words of the sub-section, but the four propositions which he set out and which have already been quoted a fortiori establish the two essential ingredients of subsection (3).

The carrying out by the first two appellants of a felony at the bidding of the third appellant was clearly the prosecution of an unlawful purpose; and that the act was of such a nature as to be likely to endanger human life is implicit in the finding that the fatal burning of Yesajo, an inmate of the dwelling house, was a reasonably probable consequence of setting fire to the house.

We are therefore, of opinion that the case is clearly within the provisions of sub-section (3) of section 316 of the Criminal Code and that the learned trial Judge was right to find each appellant guilty of murder.”

The evidence clearly showed that the accused knew there would be inmates in the house at the time of the arson. It is reasonable to find, therefore, that the act of the accused persons in setting fire to the house was an act likely to endanger human life.

In Queen v. Gidado Akanbi (1962) WNLR 161, the deceased, who dressed as a masquerader at a funeral ceremony, had requested the accused to fire a gun at him in order to test the strength of his charms. The accused carried out the deceased’s request. The deceased was injured and later died of the wound he received. It came out in evidence that the accused was a gun repairer, that the gun used on the fateful day was brought out from his workshop, but was loaded by the deceased, unknown to the accused, with pellets contrary to their pre-arrangement that the gun should be loaded only with gun powder. Quashie-Idun C.J. said, at page 163 of the Report:

” … if the accused knew that the gun had been loaded with pellets before he fired it at the deceased, then, he would be guilty of murder, even though he was requested by deceased to fire the gun at him. But if on the other hand, the accused believed that the deceased had loaded the gun only with gunpowder and without any pellets, then, it is my view that he would not reasonably have believed that an injury would have been inflicted on the deceased and therefore, could not be found guilty of murder…

I am strongly of the view, however, that whether the gun was loaded with pellets or merely with gunpowder, it was unlawful for the accused to have fired it in a public place at the deceased, even though, he did so at the request of the deceased himself; but, I am not prepare to come to the conclusion that the unlawful act is of such a nature as to make the offence of the accused one of murder.”

In Queen v. Gabriel Obi (1957) WRNLR 91,93, the case for the prosecution was that the accused ravished a girl of about 14years of age and that she died during the act. There was no evidence that the accused intended to kill or do grievous harm nor that any drug was given or her breath was stopped to facilitate the rape. Thomas J., as he then was, held that:

“It is true that the girl was killed by the act of ravishment and it is immaterial that the accused did not intend to hurt her; but the question remains as to whether the act is, per se of such a nature as to be likely to endanger human life.

It is clear from the case of ldiong and another v. The King referred to supra, that this is a question of fact which the prosecution has been silent on this point.

This was the view held by Bairamian, J. in Rex v. Nameri 20 NLR page 6 where the facts were almost identical. I will therefore find the accused not guilty of murder and discharge him thereon, but find him guilty of manslaughter contrary to section 317 of the code.”

See also R. v. Ihom Dogo & Ors. 12 WACA 519 where the West African Court of Appeal found that –

” … although the appellants undoubtedly acted in pursuance of an unlawful purpose and their acts were in themselves unlawful, it cannot be said, taking the evidence as a whole, that the acts themselves were of a nature likely to endanger life, even though in fact, their cumulative effect caused death.”

This takes me to Udofa Unwa Idiong & Anor. v. The King, 13 WACA, a case cited by Bairamian J. in R. v. Nameri (supra); and Thomas J in Queen v. Gabriel Obi. The two appellants in the case were convicted of murder. The case for the prosecution was that the 1st appellant obtained the services of the 2nd appellant, a native doctor, to procure an abortion by the administration of native medicine which resulted in the death of the woman aborted. The court found that the 2nd appellant acted innocently, believing that the medicine was required to relieve the pain from which the woman was suffering owing to the retention of the placenta.

The 1st appellant, however, intended that an abortion should be procured. Both appellants made statements to the police which, like in the case on hand, they retracted. Counsel for the respondent submitted that under Section 316(3) of the Criminal Code, the 1st appellant was guilty of murder as the act committed was likely to have caused death. The West African Court of Appeal held that the 1st appellant was criminally responsible for causing the abortion, but the evidence did not establish that, as a reasonable man, the 1st appellant was aware that the act of the 2nd appellant was likely to endanger human life. Consequently, he was not guilty of murder under section 316(3) of the Criminal Code, but having caused death by an unlawful act, he was guilty of manslaughter. Verity, CJ (Nigeria) delivering the judgment of the court observed at pages 33-34 of the report:

“It is to be observed that the act must be one of such a nature as to be ‘likely to endanger human life’, and we think that an act cannot be said to be likely to have a certain result if a reasonable man would not expect it to have such a result, even though in the event that result ensued.

It is necessary for us to consider, therefore, whether in the circumstances of the present case as established by the evidence, the act of the first appellant was likely to endanger human life in the sense that a reasonable man would expect that it probably would do so.

In the first place, there is no sufficiently cogent evidence if indeed there be any evidence at all, as to the nature of the concoction of the likely results of its administration. If the analyst’s certificate (which in the light of its terms is of dubious admissibility) is to be disregarded, there is no evidence as to the nature of the concoction or its probable effects. If, on the other hand, the certificate is to be regarded as evidence of the nature of the concoction, then it would appear that its administration could not reasonably be expected to procure abortion, let alone endanger human life. Even if we are to assume that the second appellant, as a native doctor, had sufficient knowledge of the nature of the leaves selected by him, whatever they may have been, to be aware that they could be effectively used as an abortifacient, there is no evidence whatever that the administration of that particular abortifacient would be likely to endanger human life. The furthest the medical evidence goes in this case is that

‘If a drug is administered to a woman, who has a pregnancy of three or four month’s duration, this, if strong enough, might cause contractions so strong as to rupture the womb and so cause the death, as in this case, from shock and haemorrhage.

On this evidence, we are not prepared to hold that the Crown has established beyond reasonable doubt that the act of the appellant was of such a nature as to be likely to endanger human life in the sense in which we have interpreted this phrase, even though, in fact, it occasioned the woman’s death.

The facts proved do not, therefore, in our opinion, fall within section 316 of the Criminal Code. They do, however, constitute an unlawful killing and the first appellant is therefore guilty of manslaughter within the meaning of section 317 of the code.

The appeals are allowed to this extent, that the conviction of the first appellant for murder is quashed and the sentence of death set aside, but we substitute a verdict that he is guilty of manslaughter and sentence him to five years imprisonment.”

(Italics are mine)

Coming back now to the case on hand, there was no evidence that the act of the appellant was of such a nature as to be likely to endanger human life. The learned trial Judge admitted as much but sought to substitute her opinion for this lapse in the case for the prosecution. There was no evidence that what the appellant did to the deceased was of such nature as to be likely to endanger human life. The evidence of the tender age of the deceased and her antecedent medical history per se, would not be sufficient evidence, without more, to justify that conclusion.

Moreso, that PW4 did not tell the court the effect these would have on the act of the appellant. The deceased’s tender age would only make him liable for an offence under section 218 of the Criminal Code. The evidence of Dr. Adeboye, PW4 was not helpful in this regard. PW4 found that the deceased had head injury but there was no evidence as to how she came to sustain the head injury. There was no evidence, therefore, that it was the act of the appellant that caused the head injury.

The conclusion I reach, therefore, is that the learned trial Judge was wrong in convicting the appellant of murder and the court below was equally wrong in affirming that verdict. The deceased, however, died as a result of the appellant’s act of having carnal knowledge of her; he is, therefore, guilty of manslaughter contrary to section 317 of the Criminal Code and I convict him accordingly. The appellant’s conduct is very repulsive. He was an uncle to this girl of tender years who was put in his care while the parents went on a journey. He abused the confidence reposed in him. I sentence him to 14 years IHL. His sentence is to commence from the date of his conviction by the trial court.

I cannot end this judgment without commenting on the poor quality of the investigation, if any, carried out by the police in this case. Had there been a more thorough investigation, the missing link would have been obtained. The quality of the prosecution at the trial was not better either. None of those who hearkened to the alarm raised by the appellant was called to testify. All concerned appeared to be content with appellant’s confessional statements Exhibits A and C. Had these failed, the whole case would have collapsed totally and the appellant would have walked away free.

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SC.193/1999