Posu V. State (2020)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The Appellant, convicted and sentenced accordingly for the murder of Abel Afolabi has further appealed to this Court following the dismissal of his appeal at the Lower Court (the Court of Appeal, Ibadan Division). This appeal is thus against the concurrent decisions of the two Courts below.
Only one issue has been proposed for the determination of this appeal. That is –
Whether the learned Justices of the Court of Appeal were right when they affirmed the decision of the High Court of Ogun State sitting at Ilaro convicting and sentencing the Appellant for murder?
The only eye witness called by the prosecution was the PW.1 – one Alani Oderinde. His extra-judicial statement, Exhibit A, dated 7th June, 2009, was put into the proceedings ostensibly for the purpose of contradicting his testimony in Court. He testified on 21st March, 2012. Exhibit A rather reinforcing the Pw.1’s testimony was admitted in evidence unopposed.
The substance of Pw.1’s evidence is: on 3rd June, 2009, he attended a naming ceremony/party. There at the naming ceremony, a fellow “commercial motorcycle operator”, Fatiu phoned and informed him that he was involved in an accident and hospitalised. The PW. 1, conveyed the deceased, Abel, the Chairman of the Commercial Motor Cycle Riders Association on his motor cycle and together they went to the hospital to see Fatiu and others involved in the accident. The deceased, Abel, paid Fatiu’s bills and he was taken home.
Pw.1 further narrated: he conveyed the deceased on his motorcycle. On the way, Samuel Posu, the Appellant, and his friend, Lawale, accosted the PW.1 and the deceased. He further slapped the deceased; on alighting from the motorcycle the deceased wanted to fight the Appellant back. As the Pw.1 was stepping off the motorcycle, the Appellant “removed a knife from his pocket and stabbed Abel (the deceased) on the chest”. It is clear from Pw.1’s evidence that only the Appellant attacked and stabbed the deceased with knife.
In the course of his evidence, the extra-judicial statement of the Pw.1 dated 7th June, 2009 was admitted in evidence as Exhibit A without objection. The PW.1, under cross-examination, insisted that his oral evidence was not in conflict with Exhibit A. It does not clearly appear that the defence tendered Exhibit A under Section 232 of the Evidence Act, 2011 for the purpose of contradicting the Pw.1. The proceeding at page 17 does not show that the defence counsel, who was cross-examining the Pw.1, had drawn the attention of the PW.1 to that portion of Exhibit A he intended to use to contradict the PW. 1 with. That is the sine qua non for the operation of Section 232 of the Evidence Act. That is: “if it is intended to contradict such witness by the writing (as Exhibit A), his (witness) attention must, before such … contradictory proof is given, be called to those parts of the writing which are to be used for the purpose of contradicting him:” – Exhibit A is not prima facie inadmissible in evidence under the Evidence Act.
The purpose of Section 232 of the Evidence Act is to checkmate double speaks by witnesses in order to obtain truthful testimonies from them: S. Tamunowari – Annotation of The Nigerian Evidence Act 2 Ed, P. 520. I should think that Exhibit A is not an illegal piece of evidence merely because the defence failed in the purpose they wanted it for; particularly that the two Courts below found that it sharpened the consistency and credibility of the witness, Pw.1.
The defence generally had no obligation to prove either the guilt or innocence of the accused person. I agree as submitted by the Appellant’s counsel that the prosecution at all times must proffer evidence in proof of the guilt of an accused person. See UDOSEN v. THE STATE (2007) 4 NWLR (pt. 1023) 125 at 150. The Court, however, will not shut its eye against a piece of evidence introduced into the prosecution’s case that materially supports the prosecution’s case against the defendant.
The Appellant seems to prevaricate profusely on Exhibit A. It was tendered by his counsel purporting that it materially contradicted the Pw.1. It turned out, rather, that Exhibit A establishes Pw.1’s consistency for purposes of his credibility. Its purpose having failed, Appellant’s counsel now turns around to attack the admissibility of the same Exhibit A. He cannot do that. The rule that a party must be consistent in his pleading or argument does not permit the prevarication of the Appellant herein.
In any case, the sole issue proposed for the determination of this appeal, earlier reproduced, does not accommodate or admit any legal challenge to the admissibility of Exhibit A and its use by the two Courts below. The principle of audi alteram partem – one of the twin pillars of fair hearing, does not also permit an appellant arguing an issue not caught or subsumed in the grounds of appeal. Notwithstanding the lower Court finding specifically –
Exhibit A consequently left no doubt as to what cause the death of the deceased – the stab wounds inflicted (on him) by the Appellant;
no ground of appeal attacks this specific holding or finding of fact, as adverse, as it is, to the Appellant’s case.
Exhibit A was the eye witness account of the Pw.1. It was the extra-judicial statement the PW. 1 made to the police.
The Appellant’s counsel had consistently laboured in vain to convince the two Courts below that Exhibit A did materially contradict the testimony of the PW.1 in open Court. He harped on these areas of inconsistencies: namely –
a. that the Pw.1, in the oral evidence, averred that the deceased was stabbed in the chest while in Exhibit A the same Pw.1 stated that the Appellant stabbed the deceased at the throat; and
b. That whereas in Exhibit A, the Appellant stated that the deceased had died and was being revived before he left the scene; in his oral testimony in open Court, the Pw.1 averred that as soon as the deceased was stabbed he left the scene.
The learned counsel did not demonstrate how the concurrent findings of facts by the two Courts below were perverse or had caused any miscarriage of justice to the Appellant. The attitude of the apex Court, that this Court is, to appeals on concurrent findings of facts by the lower Courts is that the burden is on the appellants to satisfy this Court that the findings of facts are perverse, not backed by the facts on the printed record, or that such findings manifestly occasion a miscarriage of justice to the appellant. These are the special circumstances warranting interference by this Court with concurrent findings of facts: DAVID OMOTOLA & ORS v. THE STATE (2009) 7 NWLR (pt. 1139) 148; ABDULMUMINI v. FRN (2017) LPELR – 43726 (SC); ADOBA v. THE STATE (2018) LPELR – 44065 (SC); AKINSUWA v. THE STATE (2019) LPELR – 47621 (SC). Both Pw.5 and his Exhibit D were consistent that the cause of death of the deceased, Abel, was injuries from stab wounds. However, the Appellant’s counsel argues, in the Appellant’s brief, that the testimony of the Pw.1 is merely that the act of the Appellant was stabbing the deceased without further stating whether or not the deceased died from the stabbing. The Pw1’s evidence and his Exhibit A, which have been substantially corroborated by the Pw.5 and Exhibit D, had completely put to rest the issue of what and who caused the death of the deceased. The two Courts below believed these pieces of evidence and were not in doubt about these facts. However, the Appellant’s counsel, insisting on precision of proof which lifts the standard of proof beyond any shadow or shred of doubt; submitted that since the Pw.1 located the point of stab on the chest; any other piece of evidence (including Exhibit D and Pw.5) attesting to stab wounds at throat, back of the neck etc constitutes material contradiction. The standard of proof in criminal proceedings ordained and anointed by the Section 135 of the Evidence Act is proof beyond reasonable doubt.
Exhibits B and C are confessional statements of the Appellant made extra-judicially on 6th June, 2009 and 7th June, 2009 respectively. While Exhibit B was admitted in evidence despite objection to its admissibility on grounds of its involuntariness and upon trial-within-trial; Exhibit C was admitted in evidence without objection. The decision overruling the objection to admissibility of Exhibit B and its eventual admission is not an issue in this appeal. In Exhibit B, the Appellant admitted stabbing the deceased with a knife (thus corroborating Pw.1 and Pw.5 and Exhibits A and D respectively). The Appellant in Exhibit B does not know which part of the body of the deceased he struck. In Exhibit C, he admitted stabbing the deceased on the chest. Putting all these pieces of evidence together, the lower Court’s conclusion that the cause of death of the deceased was the stab-wounds inflicted by the Appellant cannot be faulted. It is supported by evidence on the printed record. The conclusion is, therefore not perverse. Moreso, the deceased, the victim of the Appellant’s stab wound, instantaneously slumped and died on the spot.
The dictum of Karibi-Whyte, JSC in Eric Uyo V, A. G. Bendel State (1986) 2 SC 1 at 31, 32 – 33 on the principle of causation, which the Respondent’s counsel drew our attention to, is quite apposite. The learned jurist stated:
The principle of causation dictates that an event is caused by the act proximate to it and in the absence of which the event would not have happened – so long as the cause of death is traceable to the injury inflicted by the accused, he would be held criminally responsible. See R v. HOLLAND (1841) 2 M & W 351; R v. MclNTYRE (1847) COX CC 379.
The important consideration for determining responsibility is whether death of the deceased was caused by the injuries he sustained through the act of the accused and not whether from the medical point of view death was caused by such injuries see R v. EFFANGA (1969) 1 all NLR 339.
Even without any medical evidence, the proximate connection between the act of the Appellant striking the deceased with a knife on the chest (as he admitted) and the deceased slumping and dying on the spot immediately, in the circumstance, erase any reasonable doubt that it was the act of the Appellant that caused the death of the deceased. Medical evidence, in the circumstance, is unnecessary: AYO GABRIEL v. THE STATE (1989) 12 SCNJ 33; OWENSO v. AGBEHIN (1967) NMLR 120. It is not in every case of homicide that medical evidence is imperative for proof of cause of death.
My Lords, the Justice of the matter enjoins us to consider any defence, from the printed evidence, that may avail the appellant in this murder case. In his oral evidence at the trial, he averred that he saw some people fighting with the deceased Abel; he went there, and met Abel on the ground. This is an outright denial of both the actus reus and the mens rea.
Seemingly consistent with his disavowal of Exhibit B and his objection to its admissibility on grounds that it was oppressively taken from him against his will, which led to the trial-within-trial, albeit unsuccessful, the Appellant in his testimony did not plead any special defence – self-defense or provocation. That of course entails his admitting, at least, the actus reus. The plea of any of the two special defences effectively renounces or negates the necessary criminal mental element or mens rea to complete the offence. These special defences, being pleas of justification or for mitigation of sentence avail only the accused person who admitted the actus reus. The Appellant had thus, in his oral testimony, abandoned any plea of either of these special defences.
In his new line of defence, the appellant posted a picture of himself being an innocent intervenist good Samaritan who waded in only to rescue or separate the deceased from other unnamed attackers. The undiscredited evidence of the PW.1, believed concurrently by the two Courts below, completely knocks off the base of that defence. Other pieces of evidence, including Exhibits A, B and C support the concurrent findings of fact. With no statutory defence, either of provocation or self-defence, that the Appellant seemed to plead in Exhibits B and C, but not raised in the oral testimony; the net result is that he has no such defence, having abandoned it at the trial. Having thus abandoned the special defence; the Court cannot, in the manner of Don Quixote – the Knight Errant, go about fighting an imaginary object that in its view enchants the Appellant, nor will the Court go into considering and extolling an abandoned plea. The fundamental duty of the judex is decide judiciously and judicially only on an issue before it. I find no statutory defence to consider in this case that avails the Appellant.
I agree, as submitted for the Appellant by his counsel that the three ingredients the prosecution must establish beyond reasonable doubt in this murder case are:
i. the death of Abel, a human being;
ii. that the death was brought about by the deliberate act of the Appellant; and
iii. that the Appellant knew that by his act, the death of Abel was the probable or natural consequence:
IGRI v. THE STATE (2012) 16 NWLR (pt. 1327) 522; KADA v. THE STATE (1991) 8 NWLR (pt. 208) 134. The learned counsel was however unable to establish the absence of any of these elements in this case.
No dispute exists about the death of Abel between late hours of 3rd June, and early hours of 4th June, 2009. Both the prosecution and defence are ad idem that Abel died notwithstanding Appellant’s counsel appeal to arcane semantics about time precision. The Appellant admitted, in Exhibits B & C, his stabbing of Abel, the deceased, with the knife on the chest. Pw.1, the only eye witness, also testified in the like manner. The Pw.5, and also in Exhibit D, established that the cause of death was the stab wounds inflicted on the said Abel, deceased. In their concurrent findings of fact the two Courts below agreed with the prosecution that the death of the deceased was brought about by the deliberate act of the Appellant – which act the Appellant knew or had reason to know would probably or naturally result in the death of the deceased.
The lower Court correctly, in my view, held that it can look at Exhibit A which the trial Court did not, having been satisfied that other pieces of evidence abound established that by the stab wounds he inflicted on the deceased the Appellant caused the death of the deceased. I should also add that, from Exhibit A read together with Exhibits B and C, the Appellant planned the attack on the deceased and that the murder of the deceased was a premeditated act of political vengeance or vendetta simmering from the election into offices of Motor Cycle Commercial Riders Association.
I find no cause to disturb the concurrent findings of the two Courts below. The findings of facts are amply supported by evidence in the printed record. They are not perverse.
Appeal lacking merits is hereby dismissed.