P.c. Adeusi Adesina V. The People Of Lagos State (2019)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
At all material times to the charge the Appellant was a Police Constable. On 27th November, 2008, he was posted to the beat at Apogbon Blackspot, Lagos on a “stop and search” operation. A lorry driven by one Dauda Isiaka Akao came to the said Apogbon Blackspot. The Appellant claimed that the said Dauda Isiaka Akao refused to stop the truck at a check-point and that, in order to compel the said Dauda Isiaka Akao to stop his truck for a check, he cocked his riffle, pointing it in the direction of the said driver; and when the driver, Dauda Isiaka Akao, tried to struggle with him to take the riffle, he accidentally touched the trigger. The riffle fired and the bullet hit the driver. Dauda Isiaka Akao, hereinafter called “the deceased”, died instantly on the spot. There is no dispute about his death.
The Appellant was on 27th November, 2008, arrested for the unlawful killing of the deceased. He was on 21st September, 2009, arraigned before the High Court of Lagos State (Coram: Oluwayemi, J) on a one count charge of manslaughter contrary to Section 317 of the Criminal Code Law, Cap 17
Laws of Lagos State, 2003. He was convicted for manslaughter after trial and sentenced to 14 years imprisonment.
The prosecution posited that the Appellant fired the fatal shot that released the bullet that hit and killed the deceased recklessly. On his part, the Appellant maintained that he merely shot into the air to compel the deceased driver to stop. He made extra-judicial statement, Exhibit C, that is confessional. The medical report, Exhibit D3, confirmed the cause of death to be bullet wound.
The learned trial judge made the following findings of fact in his final judgment, at pages 157-158 of the Record. That is
“By Exhibit C, the defendant Adeusi Adesina admitted after being cautioned in his statement recorded by PW.1 and signed by the Defendant on the 28/11/08 that there was no quarrel between him and the deceased lorry driver. He admitted further that the deceased did not utter a word to him before his hand touched the trigger which released the shot that killed the driver it is trite that the free and voluntary confession by an Accused is sufficient to sustain a conviction. The statement of the defendant is relevant and
admissibility against him particularly where no objection is raised to the admissibility… there is no evidence on ground depicting that the life of the defendant was in danger to warrant the protection of same by corking his gun on that fateful day.”
These findings of fact formed the basis of the trial Court’s conviction of the Appellant. Aggrieved thereby, the Appellant appealed, unsuccessfully, to the Court of Appeal, Lagos (the Lower Court).
The Lower Court affirmed the conviction of the Appellant by the trial Court. It stressed the Appellant’s recklessness in the handling of his riffle in upholding the conviction of the Appellant for manslaughter, thus at page 210 of the record:
“In this case, the appellant admitted he fired the shot that killed the deceased. DW.2 who is also a policeman who confirmed that he shot and killed the deceased. The Appellant being a policeman knows the consequences of corking his riffle in the circumstances he found himself when he fired a shot that faithful day; … thus, the appeal lacks merit; it fails and is hereby dismissed. I affirm the conviction and the sentence imposed on the Appellant by the Lower Court.”<br< p=””
This appeal is therefore, against the concurrent findings of fact, that is the reckless handling of firearm by the Appellant resulting in the death of the deceased. It was submitted for the Appellant that he cocked his riffle because he thought, by the conduct of the deceased; that is, driving through the checkpoint and refusing to stop for check, that his life was in danger. The Appellant’s attempt to plead self-defence was not also successful. The two Courts below dismissed the defence; part of which was that the deceased driver struggled with him to retrieve his cocked riffle, whereupon it accidentally discharged the fatal bullet that killed the deceased. This plea, rightly dismissed by the two Courts below, will not absolve the Appellant, on a charge of manslaughter under Section 317 of the Criminal Code. The unassailable concurrent findings of fact had found the Appellant culpable for his reckless conduct, which he admitted, of cocking the riffle and directing it at the deceased while his finger was on the trigger, who had come down from the lorry in obedience to the Appellants command.
He was handling a dangerous weapon. Part of his convoluted testimony that did not impress the two Courts below, at page 134 of the Record, is –
I was at front of the lorry while the two Mobile (policemen were on) the two sides. As they were telling the driver to (park), the driver refused, he kept going. At that point I code myself. When the driver notice that I want (sic – had) corked the (riffle), he stopped. When the motor parked, we realised that there were 3 officers in the vehicle. Only two people follow us …. The driver refused to come. I ordered him to come down. When he realised that I was alone with him, he got down started to drag my riffle. The bullet hit the driver and he fell down.
The DW.2 seems to contradict him. He testified that when they “found (him) behind the counter” at the police station, “he (the Appellant) said he fired somebody”. On this piece of evidence, the learned counsel for the Respondent submitted, with some justification, that the Appellant, in the words of Ngwuta, JSC in STATE v. RABIU (2013) 2 – 3 M.J.S.C (Pt. 1) 100 at 142, was one of the “Trigger happy Policeman with itching fingers.”
From the testimony of the Appellant, as DW.1, which testimony was corroborated by the DW.2, there is no doubt that the fatal bullet that killed the deceased was fired from his riffle. While he postured earlier suggesting that he cocked his riffle in self-defence, it appears his defence really was accidental discharge following the alleged struggle he had with the deceased over the riffle. His admission to the DW.2 that “he fired somebody” does not advance that line of defence, as it tends to contradict the Appellant.
In Exhibit C, the Appellant confessed to his recklessness. He stated therein that the deceased drove his vehicle and obstructed the traffic, and that he (the deceased) used the lorry to push him, and that at this juncture:
I corked my riffle. On noticing that I have corked my riffle, the driver parked and came down. As he was coming down from the lorry, I decided to bring the already corked riffle which was already muzzled up, down. Suddenly my hand entered the trigger and it fired and shot the driver in his stomach.
The DW.2’s evidence that the Appellant admitted to him at the Police Station that he “fired somebody” corroborated Exhibit C.
On the fact that he handled the riffle from which the bullet that hit the deceased was fired and also as to the cause of the death of the deceased, Exhibit D3 provided sufficient evidence in corroboration of Exhibit C that the death of the deceased was as a result of bullet wound.
Appellant complains, inter alia, that Exhibit D3 being hearsay (as it was not tendered by the maker, but the PW.1); it could not provide corroboration of Exhibit C. I agree, only a legal piece of evidence could be corroboration of another legal evidence.
Since Evidence Act, 2011, in Sections 39 (d) and 41 thereof, permits the PW.1 to tender Exhibit 03, even though he is not the maker; Exhibit D3 tendered in evidence through the PW.1 is a piece of legal evidence, not hearsay, admissible in evidence by law. Sections 39(d) and 41 of the Evidence Act provide:
- Statements, whether written or oral, of facts in issue or relevant facts made by a person –
(d) whose attendance cannot be produced without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are admissible under Sections
- A statement is admissible when made by a person in the ordinary course of business,
and in particular when it consists of any entry – made by him in the ordinary of business, or in the discharge of a professional duty, – provided that the maker made the statement contemporaneously with the transaction recorded or so soon thereafter that the Court considers it likely that the transaction was at the time still fresh in his memory.
Exhibits D1 – D3 were tendered through the PW.1, the Investigating Police Officer (IPO). He took the corpse of the deceased to Lagos State University Teaching Hospital (LASUTH) for autopsy. The coroner forms, and the autopsy report by the pathologist constitute Exhibits D1 – D3. The autopsy report is Exhibit D3. The prosecution’s case suffered several adjournments because of the inability of the prosecutor to secure attendance of witnesses, including the pathologist who made Exhibit D3 “in the discharge of a professional duty”. These facts satisfy the procedure adopted by the trial Court by which it permitted of the PW.1, the IPO, tendering Exhibit D3 (even though he is not the maker) as part of his investigatory function. The procedure is sanctioned by Sections 39(d) and 41 of the Evidence Act.
Exhibit D3 is therefore a legal evidence that can corroborate another legal evidence. This Court, approving of this procedure in EHOT v. STATE (1993) 5 S.C.N.J. 65; (1993) 4 N.W.L.R. (Pt. 290) 644, held that a medical report can be tendered and admitted in evidence through the IPO, and relied upon without calling the medical doctor who prepared it. The general rule enunciated in SUBRAMANIAN v. PUBLIC PROSECUTOR (1956) 1 W.L.R. 956 at 969 cited with approval in ODOGWU v. STATE (2013) 14 N.W.L.R.(Pt.1373) 74 at 103 that “Evidence of a Statement made by a person who is not himself called as a witness may or may not be hearsay” has its limitations. Sections 39(d) and 41 of Evidence Act have contracted the scope of the rule.
Apart from Exhibit D3, the PW.1 testified, unchallenged, that “the deceased was hit at the ribs”. He took the corpse of the deceased to LASUTH. He had opportunity to view the corpse physically. In Exhibit C, the Appellant averred that when his hand touched the trigger of the riffle, the gun went off and the deceased was shot at the stomach. On oath the Appellant, as DW.1, testified, inter alia, that “the bullet hit the (deceased) driver and he fell down.”
All these pieces of evidence amply and/or sufficiently support the concurrent findings of fact by the two Courts below.
I agree with the learned Counsel for the Respondent that this Court will only disturb concurrent findings of fact by the trial Court and the intermediate Court where either the findings of fact are perverse; or when the findings are not founded on legal evidence; or where the lower Courts took into consideration or relied upon extraneous matters; or where a miscarriage of justice has been occasioned: ENAG v. STATE (1981) 11-12 SC 25; ATOLAGBE v. SHORUN (1985) 1 N.W.L.R. (Pt. 2) 360; (1985) 4 5 SC 250; ADIMORA v. AJUFO (1988) 3 N.W.L.R. (Pt. 80) 1; OKULATE v. AWOSANYA (2000) 1 W.R.N. 65; BABATUNDE v. STATE (2013) 4 W.R.N. 1 at 22.
I do not think SOLOMON ADEKUNLE v. STATE (2006)14 N.W.L.R. (Pt. 1000) 717 holding at 735 thereof that “the law is trite that where a person discharges a firearm unintentionally and without attendant criminal malice negligence, he will be exempted from criminal responsibility both for the firing and for its consequences” avails the Appellant given the peculiar circumstances of this case.
The statement made on authority ofIROMANTU v. STATE (1964) 1 ALL N.L.R. 311 would only be relevant if there was no concurrent finding of criminal negligence, or recklessness on the part of the Appellant. In the instant case, the Appellant cocked the riffle in the manner so dangerous and in the process, and according to him, his hand inadvertently pressed the trigger; and that the gun went off and the bullet discharged therefrom instantly killed the deceased on the spot. Thus, as this Court stated in AMAYO v. STATE (2001) 18 N.W.L.R. (Pt. 745) 251 at 285 this accused person “is guilty if it is proved that he intentionally did an act which was unlawful and dangerous and that the act inadvertently caused death in that wise, “it is unnecessary to prove that (he) knew that his act was unlawful and dangerous”. The concurrent findings of fact, not perverse, leave no doubt that the Appellant handled the riffle, a weapon very dangerous in itself, in a manner very reckless and dangerous, and it resulted in the death of the deceased.
The law imposes a clear duty on any person handling a firearm, as the riffle was, to ensure that he will not endanger
any other person. Ekundayo, J., made this point, which cannot easily be glossed over, in THE STATE v. BELLO AYINDE (1975) N.N.L.R 38. This Appellant was criminally negligent in his handling of the riffle he had in the night of 27th November, 2008.
Negligence, according to the Oxford Advanced Learner’s Dictionary, is the failure to give enough care or attention. Negligence connotes lack of proper care and attention. lt is a careless lack of proper conduct. In OGBIRI & ANOR v. NIGERIA AGIP OIL CO. LTD (2010) L.P.E.L.R.- 4686(CA), I stated, relying on ODINAKA v. MOGHALU (1992)4 N.W.L.R. (Pt. 233) 1 at 15; OJO v. GHARORO (2006) 18 L.R.C.N. 1652 at 1713 – 1713, that generally, negligence is an omission or failure to do something which a reasonable and prudent man, under similar circumstances, would not do. See also RABIU HAMZA v. PETER KURE (2010) 10 N.W.L.R. (Pt. 1203) 630 at 646 per Muhammad, JSC. Negligence is any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. The term denotes culpable carelessness: Black’s Law Dictionary, page 1133 9th Ed.
I have no cause, therefore to disturb the concurrent findings of fact in support of the conviction of the Appellant for manslaughter under Section 317 of the Criminal Code of Lagos State. The danger of causing death or grievous hurt to a human being was apparent from the Appellant’s handling of the riffle at the material time. It infact caused the death of the deceased. I find no substance in this appeal. It is, accordingly dismissed in its entirety. The decision of the lower Court in appeal No. CA/L/752/2011, affirming the conviction of the Appellant by the trial Court in the information No. LCD/69/2009 is hereby affirmed. Appeal dismissed.