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Home » Nigerian Cases » Supreme Court » Ogunleye Tobi V The State (2019) LLJR-SC

Ogunleye Tobi V The State (2019) LLJR-SC

Ogunleye Tobi V The State (2019)

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This appeal stemmed out from the judgment of Court of Appeal, Ibadan division (the lower or Court below) delivered on 6th day of July 2017 which affirmed the judgment of Ogun State High Court of Justice sitting at Ota in the Ota judicial division (coram M.A. Ojo J.) (the trial Court), delivered on 2nd June 2015 which convicted and sentenced the appellant as accused thereat, for the murder of Kolawole Badejo (deceased). The accused person now appellant, was arraigned before the trial Court and tried on one count charge of murder of the deceased Kolawole Badejo, contrary to Section 316 of the Criminal Code Law of Ogun State 2006. During the trial, the prosecution (now respondent) called two witnesses and tendered five (5) exhibits in proof of its case, while the accused, (appellant) testified for his defence without calling any witness. At the conclusion of the trial, the trial Court found him guilty as charged and sentenced him to death.

Aggrieved in the outcome of his trial, the appellant appealed to the Court below, albeit, without success in that the penultimate Court affirmed his


conviction and sentence passed by the trial Court.

The facts of the case culminating in this appeal as could be gleaned from the record and as presented before the trial Court are that the accused/appellant had a fight with the deceased on 20th November, 2009 and in the course of the fight the appellant used knife and inflicted lethal injury on the back and left leg of the deceased. The deceased bled profusely which led him to the state of unconsciousness and was thereafter rushed to the hospital. Sequel to that, the appellant was arrested and arraigned before the trial Court and was tried convicted and sentenced.

Dissatisfied by his conviction and sentence, the appellant as I said earlier, appealed unsuccessfully to the Court below which affirmed his conviction and sentence by the trial Court. Further piqued by the affirmation of his conviction and sentence by the Court below, the appellant further appealed to this Court.

Before this Court, briefs of argument were filed and exchanged by the learned counsel to the parties in keeping with the rules and practice applicable in this Court, the appellant herein, filed the Appellant’s Brief of


argument on 12/12/2017, settled by D.A. Awosika Esq, and same was adopted at the hearing of the appeal on 15th November, 2018. On its part, the respondent filed its Respondent’s Brief of Argument on 20th March, 2018 which was settled by Kehinde Aina Esq. The said brief was also argued and adopted at the hearing of the appeal on 15th November, 2018. The Appellant herein, raised sole issue for the determination of the appeal which reads thus:

“Whether having regard to the evidence adduced by the prosecution, the justices of the Court of Appeal were right in affirming the conviction and sentence of the Appellant for the offence of murder. (Distilled from Grounds one (1) and two (2) and (3)”.

Although at page 5 of its brief of argument the Respondent claimed that it adopted the con of the sole issue formulated by the appellant as reproduced above and agreed that that lone issue is apt for the determination of the appeal, its learned counsel nevertheless proceeded to rephrase the lone issue as encapsulated on page 5 of the said Brief.

The rephrased issue decoded by the respondent is set out hereunder:


“Whether having regard to the evidence led by the prosecution the trial Court and the Court of Appeal were right in holding that the prosecution proved the case of murder against the appellant beyond reasonable doubt.”

The two sets of issues reproduced above are very much similar but merely differ in the manner they were couched. I shall therefore treat this appeal on the guidance of the issue raised in the respondent’s brief which appears to me to be more encompassing.


The lone issue deals with whether the Court below was right in affirming the judgment of the trial Court. The learned counsel argued that the evidence relied upon by the Court below was hearsay. He argued further that a careful analysis of PW1s evidence and the acct of the appellant attributing to the death of Kolawole Badejo would reveal that they were confirmed that he was dead. He argued that from evidence of PW1 as contained at pages 50-52 of the record shows that the PW1 did not follow Kolawole Badejo to the hospital and rather, she was not at the hospital when he gave up and that she could not have given the evidence based on what she saw. He


cited the case of Nwaeze v State (1996)2 NWLR (page 428). He argued that the appellants act did not cause the death of Kolawole Badejo as the evidence of PW1 only states that the appellant stabbed Kolawole Badejo at his back and on his leg but did not show that the injury inflicted was what really caused his death. He submitted that it is not enough to show that the accused did an act or made an omission which could have caused the death. He argued that there was no medical evidence to show the nature and severity of the injury Kolawole Badejo received from the appellant and that the trial Court drew inference from the circumstances that it was proved that the act of the accused caused the death of the deceased.

He cited the case of UGURU V STATE (2002) 9 NWLR (pt.771) 90.

The learned appellant’s counsel also argued that there was no nexus between the evidence of PW1 and Exhibit 1 (i.e. confessional statement) as the facts narrated by PW1 regarding the event which took place before Kolawole Badejo was said to have been stabbed by the appellant was radically different from the content of Exhibit 1. He argued that from the entire record, there is no other


evidence outside the purported confessional statement upon which the appellant’s conviction was based. He urged this Court to allow the appeal and quash the conviction of the appellant. The learned counsel to the respondent adopted the issue formulated by the appellant. He argued that the evidence of PW1, the wife of the deceased, is not only credible but sufficient on the standard of proof beyond reasonable doubt that Kolawole Badejo had died. He argued that to contend that the evidence required to prove that the deceased’s death must be proved by evidence of a witness who was present at the time when the deceased breathed last, is to go beyond the standard required by law on proof beyond any shadow of doubt. He cited the case of AGBO V STATE (2006) 6 NWLR (pt.9775) at 584-585 where the Supreme Court endorsed with the approval the law stated by Denning J. in the case of MILLER V MINISTER OF PENSION (1997) 2 ALL ER 372 at 373. He submitted that in murder cases, the cause of death of the deceased is a crucial ingredient of the offence upon which the Court must receive evidence in every certain terms to prove beyond reasonable doubt that the deceased died as a result


of the accused person’s act. He argued that the death of the deceased in this case occurred few hours after the incident. He submitted that the death of the deceased is so proximate to the incident that happened the previous night for it to be established beyond reasonable doubt that the death of the deceased was caused by the appellant. He argued that the confessional statement of the appellant (i.e Exhibit I) clearly corroborated the oral testimony of PW1 that the deceased was stabbed by the appellant on his back and leg and had also corroborated the fact that the entire incident happened late into the night of 20th of November, 2009. He therefore submitted that the evidence established beyond reasonable doubt, that it was act of the appellant that inextricably caused the death of the deceased. He argued that the severity of the injuries inflicted on the deceased are not only clear but very graphic. He cited the case of ADEKUNLE V STATE (2006) 14 NWLR (pt.1000) 717, where it was held that the gun shot was the cause of the death in the circumstances even though the deceased died the next day. He then urged the Court to affirm the conviction and sentence of

See also  Emmanuel Egharevba V Federal Republic Of Nigeria & Ors (2016) LLJR-SC


the appellant and to dismiss the appeal.


The lone issue to be resolved in this appeal is whether the prosecution/respondent had proved its case beyond reasonable doubt at the trial as would justify the trial Court to have to convicted the appellant and whether the lower Court was thereupon right in affirming the decision of the trial Court in convicting the appellant. In this instant case, the appellant as an accused person faced the charge of murder of Kolawole Badejo, contrary to Section 316 of the Criminal Code punishable under Section 319 of the same Code. It ought to have been established and is a well settled law too, that in a case of murder under Section 316 of the Criminal Code, the prosecution must prove beyond reasonable doubt the underlisted ingredients of the offence; namely:

(a) That death of a human being has been caused

(b) That it was the act of the accused that caused or led to the death of the deceased.

(c) That the act or acts were done with the intention of causing death; or

(d) The accused knew that death would be the probable consequence of his act or acts See Omini Vs The State (1999) 12 NWLR (pt.630) 168 or (1999) 9 SC 1; Abogede V The State (1996) LPELR-


45 (SC);Ogba v The State (1992) 2 NWLR (pt.222) 164.

It must be emphasised here, that the burden of proof is always on the prosecution to prove all the aforelisted elements of the offence of murder and the standard of such proof is beyond reasonable doubt. See the cases of Frank Uwagboe v The State (2008) 12 NWLR (pt.1102) 621; Nwachukwu v The State (2005) 4 LRCNIC 53 at 72; Bakare V The State (1987) 1 NWLR (pt.52) 579 at 582 & 592; Onah v The State (1985) 3 NWLR (pt.12) 236. See also Section 135 of Evidence Act. It is apposite to stress here too, that an accused person has no duty to prove his innocence in criminal cases. See Alabi v State (1993) 7 NWLR (pt.397) 511; Ariche vs State (1993) 6 NWLR (pt.302) 752.

I shall now consider and determine serially whether the above mentioned four ingredients of the murder charge against the accused/appellant were actually proved beyond reasonable doubt as would warrant his conviction and sentence by the trial Court and as later affirmed by the lower or Court below.

Firstly, on whether a death of human being was caused, it


is clear that the prosecution now respondent, in proof of its case, relied on the testimonies of two witnesses and of course the confessional statements of the appellant which I must say, the trial Court relied on these pieces of evidence to convict the appellant.

For instance, PW1 the star witness who incidentally was the wife of the deceased, testified that the deceased (her husband) was dead and she was not cross examined on that piece of evidence neither was she challenged. Also the photographs of the deceaseds dead body were tendered and admitted in evidence and marked Exhibits 2, 2(A) 2B and 2(K) without objection from the defence. Again in the appellant’s confessional statement Exhibit 1, he admitted that the victim Kolawole Badejo was dead even though he denied killing him and stated that it was Adebayo Babatunde who killed him. In my view, from the above pieces of evidence, there is no iota of doubt that the first ingredient of the offence of establishing that the deceased died has been proved by the prosecution as rightly found by the trial Court and as was subsequently affirmed by the lower Court. See Lori & Anor vs State (1980)11 SC 81, Onah vs State(supra).


It is trite law, that in a murder case, death could also be proved either through confessional statement of an accused or by circumstantial evidence. Learned counsel for the appellant raised eyebrows on the failure of the prosecution/respondent to tender any medical report on the death of the deceased victim. It is trite law, that medical evidence though is desirable in establishing the cause of death in a case of murder, it is however not essential or a pre-requisite in a situation where there are facts sufficient enough to show the cause of death to the satisfaction of the Court. See LORI V STATE (supra) Uwaegbe Enewoh v The State (1990) NWLR (pt.145) 469 or (1990) 7 SC (pt.II) or (1990) LPELR-1141 (SC). Medical evidence can in fact be dispensed with where evidence shows that the victim died in circumstances which leave no doubt as to the manner or as to the cause of the death of the deceased victim. See Deminabo Princewill v The State (1994) 6 NWLR (pt.353) 703.

See also  Nnah George Onyeabuchi V. Independent National Electoral Commission (Inec), Abuja & Ors (2002) LLJR-SC

In this instant case, PW1 the wife of the deceased who witnessed the commission of the offence and was therefore an eye witness, testified that she saw when the


stabbed her husband at the back and his leg with a knife. Also in his confessional statement, Exhibit I the Appellant stated that he grabbed a knife that dropped from the deceased person’s pocket and stabbed him (deceased) with it on the back and leg and also stated that in observing that when he was becoming unconscious, he wanted to take him to the hospital but the deceased’s friends came and attacked him and he later died in the hospital. These pieces of evidence therefore clearly shows that the deceased died not too long after the injuries were inflicted on him with the knife by the appellant. There was no evidence of any intervening factor that could have caused or aggravated his death. The death of the deceased could therefore be regarded as instantaneous since there has not been any break in the chain of causation that could be attributed to the death of the deceased besides the injuries inflicted on him by the appellant. In that circumstance, the non-tendering of a medical report by the prosecution can not be regarded as fatal to its case at the trial Court. This is moreso because, although the law makes it desirable to tender medical evidence in


murder charge to establish cause of death, however tendering such medical evidence is not sine qua non to establish cause of death provided there is sufficient and satisfactory evidence showing that the act of the accused resulted in the death of the deceased. The law is trite that where the death is instantaneous or almost so, then medical evidence ceases to be of any practical or legal requirement or necessity. See Ben V State (2006) 16 NWLR (pt.1006) 582; Essien v State (1993) 6 NWLR (pt.290) 303; Akpa v State (2008) 14 NWLR (pt.106) 72.

In this instant case evidence abounds that the deceased died few hours after he was stabbed by the appellant and that piece of evidence was never challenged, controverted or contradicted at the trial. See Uyo v Bendel State (1986) 1 NWLR (pt.17) 418; See also Obogo v The State (1972) SC 39 where this Court held that a Court can infer the cause of death from the evidence and circumstances of the case. In the light of the aforesaid, I am also convinced that the death of the deceased Kolawole Badejo had been proved in the light of the evidence adduced at the trial and in view of the circumstances of the case, notwithstanding


that no medical evidence was led by the prosecution/respondent which as I said earlier, was of no necessity in the circumstance of the case.

The next ingredient is whether the death of the deceased Kolawole Badejo was as a result of or could be attributed to the act or acts of the accused/appellant. The PW1 (wife of the deceased) gave eye witness account that the appellant stabbed the deceased at the back side and left leg and that he bled profusely and was thereupon rushed to the hospital. That piece of evidence was corroborated by the appellant’s confessional statements to the extent that after he stabbed him, he observed that he was becoming unconscious and that when he discovered that the deceased sustained serious injury, he started to cry and wanted to take him to the hospital. Also in another confessional statement of the accused/appellant (Exhibit 3A), the appellant stated that after stabbing him then he fell down and could not stand on his own again. (see page 20 of the record). As I posited earlier in this judgment, there was no intervening factor besides the stab wounds inflicted on the deceased by the appellant.


To my mind therefore, the death of the deceased was as a result of and attributed to the act or acts of the appellant alone. There is, in my opinion a direct link between the injuries sustained by the deceased as a result of the knife stabs inflicted on the body of the deceased and his ultimate death. It is common knowledge and is indeed trite law, that infliction of serious and severe wound could have anticipatory natural result of death and the person who inflicted such serious or severe wounds would be guilty of murder.

In my view, there is direct evidence adduced which proved the cause of the death of the deceased which connected the death of the deceased with the act or acts of the accused. See Oguntolu v State (1996) 2 NWLR (pt.432) 503; Young Ukauwa Uguru v The State (2002) 9 NWLR (pt.771) 90.

Next, is to determine whether the act of the act was intentional or with knowledge that grievous bodily harm or death would be the probable consequence. In order to determine whether the accused by his act or acts intended to cause death of his victim, the law has set down some factors to be considered. Some of these factors include (a) the weapon used on the victim i.e. whether lethal weapon and used on the deceased that is a lethal weapon which is deadly death-dealing

See also  Nwagwu Agwuaja V. The State (1982) LLJR-SC


(b) part of the body of victim on which the weapon was used or brutalised and (c) the extent or proximity of the victim with the lethal weapon or number of blows, stabs or severity applied in the attacks. See Iden v State (1994) 8 NWLR (pt.365) 719. In the instant case, evidence was led through PW1 which the trial Court rightly believed that the appellant dealt several stabs on the back and leg of the deceased. The accused in his confessional statement which he made at the early stage of his arrest when the facts of the case were very fresh in his mind even though he later resiled from that statement when he said that it was Tunde Adebayo who killed the deceased, which said defence was rejected rightly, in my view, by the two lower Courts.

To my mind the circumstance of the instant case and the evidence adduced have clearly established the way and manner the appellant/accused mercilessly attacked the deceased by stabbing him with a knife on a vital part of his body i.e. on his back and leg clearly displayed his intention to cause grievous hurt or even the death of the deceased,


apparently without any valid provocation and also not in exercising private defence at all, since there was no evidence that. the deceased had any weapon on him which he confiscated and used to repel any attack or threat from the helpless, defenceless and unarmed deceased.

This element of the offence of murder has also been proved through compelling, reliable and uncontroverted or unchallenged evidence adduced by the prosecution/respondent. From the act of the accused/appellant as I posited supra, it is manifest that by his act he knew that death would be the probable consequences of his act or acts. See Omini v State (1999)12 NWLR (pt.630) 168 or (1999) 9 SC 1 or (1999) LPELR 2638 (SC). This ingredient of the offence has also been proved by the prosecution/respondent.

This brings me to the confessional statements made by the appellant which were tendered in evidence in the course of the trial and which the trial Court partly relied on to convict the appellant of the offence of murder. I am mindful of the fact that the appellant, when presenting his defence, resiled from the confessions he made to the police during investigation of the case when the


facts of the case were very fresh in his mind. This Court in the case of Abdullahi vs State (2015) EJSC (Vol.8) 103 defined the term “confessional statement” thus:

“By virtue of Section 27(1) and (2) of the Evidence Act, a confessional statement is an admission made at any time a person is charged with certain offences. It is equally part of the principle that a confessional statement is deemed to constitute relevant facts against the person who made it only when voluntarily given by its maker and/or obtained from him.” See also Nsofor v State (2004) 18 NWLR (pt.905) 292 referred therein. See also Adebayo V State (2015) EJSC) Vol.4) 60; Akpan v State (supra). It is settled law that a confessional statement is the best evidence that the accused person committed the offence since it is his own confession. See Yesufu v State (2013)1-2 SC 194. I am not unaware that in this appeal, the appellant in his defence had resiled from or retracted the confessions when he stated that it was Tunde Babatunde who stabbed the deceased to death. The law is trite that where a confessional statement is retracted or resiled from at the


trial, the trial judge must examine the evidence led in order to see if there is independent evidence corroborating the retracted confessional statement. Where a confessional statement is retracted as in this case, the Court then shall decide the weight it would attach to the confessional statement. The best way to go about it is by subjecting the confession to the underlisted six tests, namely:

(a) Is there anything outside the confession to show that it is true

(b) Is the confessional statement corroborated

(c) Are the statements made in it of facts and so far as we can test them, true

(d) Is the accused person a person who had the opportunity of committing the offence

(e) Is his confession possible

(f) Is it consistent with other facts which have been ascertained and which have been proved at the trial

See Kareem v FRN (2003) 16 WRN 114; Kolawole v State (2015) EJSC (Vol.3) 41; Dibie v State (2007) 1 ALL FWLR (pt.363) 83; Ejinima v State (1991) 5 LRCN 1640; Bature v State (1994)1 NWLR (pt.320) 267. It is noted by me that the trial Court had strictly and really subjected the confessions to the above as observed by the Court below


when it held that the trial Court had subjected the confessional statements to the above listed six test in acting and relying on the confessional statement of accused and found them corroborated before convicting the appellant of the offence charged. I therefore have no justifiable reason or reasons to interfere with the findings of the two lower Courts. In the result, I hold the view that the prosecution/respondent had proved its case beyond reasonable doubt in order to obtain conviction. In a nut shell, the lower Court was right in affirming the conviction and sentence of the appellant of the offence of murder. The lone issue is therefore resolved against the appellant. I must also add that there are concurrent findings of two lower Courts which I should not disturb since they are not perverse.

On the whole, it is my judgment that this appeal is devoid of any merit. It fails and is accordingly dismissed. The judgment of the lower Court which affirmed the conviction and sentence of the appellant by the trial Court of the offence of murder, is hereby further affirmed by me. Appeal is dismissed.


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