Rafiu V. People Of Lagos State (2021)
LAWGLOBAL HUB Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.S.C.
This is an Appeal against the judgment of the Court of Appeal, Lagos Division delivered on 5/4/2017 which affirmed the judgment of Hon. Justice S. A Onigbanjo delivered on 18/6/2013 in charge No ID/47C/2011 wherein the Appellant was found guilty of the lesser offence of manslaughter and sentenced to life imprisonment whereas he was charged initially for murder.
The facts that led to this appeal are as follows:
On 14th February 2010 at about 4:00pm, one Adeogun Kayode, a resident of No. 20, Alade Street, Oshodi, Lagos, now deceased, went to the Appellant’s barbing salon to shave. The deceased after being initially attended to, at the Appellant’s barbing salon returned back and inquired about the where about of his mobile phone, alleging that he left his mobile phone in the Appellant’s barbing salon. In response to the inquiry, the Appellant informed the said Adeogun Kayode that he did not know the where about of the mobile phone.
Consequently, an argument ensued and the said Adeogun Kayode proceeded to the generator which powered the Appellant’s barbing salon and abruptly switched it off which resulted in a fight between the Appellant and the said Adeogun Kayode which led to the latter’s death after he suffered fatal injuries to his forehead and chest.
The Appellant was subsequently apprehended on the day of the incident by officers of the Nigerian Police and was taken to Akinpelu Police station.
At the trial, the prosecution called three witnesses while the Appellant gave evidence on his own behalf. P.W.1 Alli Shuarbu was a co-tenant of the deceased who did not witness the incident but was the one who reported the matter to the police after rushing to the scene where he found the body of the deceased in the gutter in a pool of blood. The deceased died at the General Hospital. P.W.2 was Vivian Taiwo (Sunday) the initial I.P.O at Akinpelu Police Station who took the confessional statement of the Appellant marked Exh C. The witness also tendered the post mortem/medical report signed by one Dr. O. Williams dated 14/2/10 as Exh. B. The D.C.O at Akinpelu Police Station had endorsed Exh C after the appellant signed it. She later transferred the case to Panti CID.
P.W.3 was Inspector E. Enwereji who at the material time was at the Homicide Department at Panti. He recorded the statement of the Appellant which was retracted but nevertheless admitted as Exh G.
In his defence on oath at the trial, the Appellant stated that the deceased precipitated a fight in his barber shop during which he pushed the deceased and another person into the gutter. The statement of the Appellant in Exh. C & G showed clearly the defence of provocation.
My Lords, in this appeal, the only question for determination is whether on the evidence before it, the lower Court was right to have affirmed the conviction of the Appellant for manslaughter not murder.
The trial Court found that Exh. C which was tendered without objection showed the defence of provocation which was an excuse to reduce the charge from murder to manslaughter.
My Lords, before this Court, learned Appellant’s counsel in the brief settled by F. Ajibola Dalley, complained first against the findings of facts by the two lower Courts. His grouse is that the lower Court jumped to the conclusion that the deceased died and that the Appellant caused his death. Counsel argued that the lower Court’s failure to review the evidence and set aside the trial Court’s conclusions on those two findings of fact occasioned injustice to the Appellant. My lord, the brief of argument of the learned Appellant’s counsel is replete with references to the fact that the Appellant was charged with murder. There was hardly any reference to the conviction of manslaughter. There was no attempt to argue an absolute defence in favour of the Appellant. At trial, the offence of murder was found not proved and the Appellant was instead convicted of the lesser offence of manslaughter. Either learned counsel did not read the concurrent judgments of the lower Courts before writing the brief or he did not understand their import.
Be that as it may, the complaint of learned Appellant’s counsel is that it was wrong of the Court of Appeal to agree with the learned trial Judge that the evidence revealed that the deceased died and that the Appellant killed the deceased. Counsel submitted contrary to the evidence on record that there was no proof of the death of the deceased whereas P.W.1 saw him in a pool of blood and P.W.2 saw him in the mortuary after a post mortem was performed on him.
Learned Appellant’s counsel apparently made no effort as I said earlier to read the record of proceedings wherein the Appellant on oath in his own defence admitted that there was a fight between himself and the deceased and he pushed the deceased into the gutter where P.W.1 later found said deceased in a pool of his own blood with injuries on his chest and forehead. The learned trial judge found that indeed the deceased died and the Appellant’s action was the cause of his death but concluded that in the circumstances the defence of provocation could avail the Appellant. The lower Court agreed with the findings of the trial Court.
I am of the view that the issues raised by the Appellant at the Court of Appeal was adequately addressed by the lower Court.
My Lords, in Olakunle v. State (2018) 6 NWLR Pt. 1614 Pg.91 this Court held that it is the primary duty of the trial Court to evaluate the testimony adduced at the trial and ascribe probative value thereto. This is because it was that Court which was privileged to see and hear the witnesses and it was in a position to pronounce on their credibility. Where therefore, a trial Court has satisfactorily carried out this duty, the appellate Court has no reason to interfere with the findings of the trial Court. Where however, the trial judge has abdicated the primary duty, or has failed to properly utilize the advantage of seeing and hearing the witnesses testify, the appellate Court is in a good position to evaluate the evidence, provided it does not involve the credibility of witnesses. See Fagbenro v. Arobadi (2006) All FWLR (Pt. 310) 1575, (2006) 7 NWLR (Pt. 978) 172; Saleh v. Bank of the North (2006) All FWLR (Pt. 310) 1600, (2006) 6 NWLR (Pt. 976) 316. See also Abiodun v. State (2013) All FWLR (Pt. 700) 1257, (2013) 9 NWLR (Pt. 1358) 138, (2013) vol. 3 -4 MJ S. C (Pt. 1) 163.
I am of the view that the lower Court correctly evaluated the evidence to arrive at the same conclusion as the trial Court.
The findings of the two lower Courts are not perverse and in my view has not caused miscarriage of justice to warrant them to be set aside by this Court.
The learned Appellant’s counsel also complained that the lower Court was wrong to have agreed that the confessional statement made at Panti CID- Exh G constituted admissible evidence against the Appellant. The law is settled that where a defendant standing trial before the Court retracts the earlier statement/confession made to the police, the statement does not become inadmissible but the Court is required to look for corroborating evidence outside the confession that makes the confession probable. A trial Court faced with the obstacle of a recanted confession is by law admonished to subject the confession to the six probability tests established as far back as R v. Skyes (1913) 8 CAR at 236 and a plethora of authorities in our criminal jurisprudence. See Queen v. Itule (1961) 2SCLR 183; Edhigere v. State (1996) 1 NWLR Pt. 464 Pg. 1 at Pg. 13-14; Uzim v. State (2019) LPELR 48983 (SC); Alarape v. The State (2001) 5 NWLR Pt.705. Pg.79; Uwagboe v. State (2007) 6 NWLR Pt. 1031 Pg.606 at 623; Karimu Sunday v. The State (2017) LPELR-42259 (SC).
It is clear from the record, that there is abundant evidence establishing the circumstances confessed to by the Appellant. The deceased died in a gutter opposite the barber shop of the Appellant after a fight with the Appellant who had an opportunity to have committed the offence.
In any event, the earlier confessional statement made at the earliest opportunity by the Appellant at Akinpelu Police Station which is Exh C was never retracted while it was being tendered on oath by the Appellant when he claimed that he merely pushed the deceased who fell into the gutter. Appellant also made a partial admission on oath to the crime. There is no doubt that the confessional statement was consistent with other un-contradicted evidence adduced by the prosecution.
I find no merit in the argument of Appellant’s counsel on this point. See Amos v. The State (2019) NWLR Pt. 1653 Pg. 206 at 233.
My Lords, the two lower Courts correctly attached probative value to the retracted confessional statement. It was really an open and shut case. The appeal could have been on reducing the sentence to a specific term rather than the elastic life imprisonment as there are no parole hearings in Nigeria that would make it easier for the Appellant to have a chance of release within seven years counting the years of incarceration before the conviction. Although an appeal against an elastic life sentence may be risky, it may have availed the Appellant.
Be that as it may, there is no merit in this appeal. The deceased lost his life in the hands of the Appellant in circumstances that amounted to provocation and reduced finding of manslaughter. He was justly convicted of manslaughter. The judgment of the Court of Appeal in CA/L/1092C/2013 delivered on 5/4/17 is hereby affirmed.