The State V Moshood Oladimeji (2003)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C.

The respondent Moshood Oladimeji and four others were arraigned before the Ibadan High Court, Oyo State on a one count charge of murder of Agboola Aina contrary to section 319( 1) of the Criminal Code, Cap. 30, Volume II, Laws of the Oyo State, 1978.

At the trial, the prosecution called nine (9) witnesses. The accused persons also gave evidence in their defence. On 13 October, 1998 the respondent was found guilty and convicted of the lesser offence of manslaughter. The other accused persons were acquitted and discharged.

The respondent’s appeal to the Court of Appeal was allowed. The present appeal to this court is by the State.

The facts of the case are these. There had been a protracted land dispute at Dada village near Idi-Ayunre in Ibadan between the deceased’s family (Dada family) and respondent’s family (Lakun family). Because of this feud over land, the respondent’s family held a meeting at which it was agreed that the deceased Agboola Aina should be eliminated so that the Lakun family would take control of the Dada family land. In pursuance of this agreement, on the morning of the day in question i.e. 2 February, 1996, the respondent and others of the Lakun family, waylaid the deceased and his sister (P.W.3) who were on their way to Ibadan. The respondent first accosted the deceased. In a little while the others came out of hiding. The deceased raised alarm which attracted his sons to the scene. In the fight which ensued, the deceased, his sister and his sons were assaulted with cudgels, cutlasses and sticks. The deceased was struck several blows with these weapons thereby causing him multiple injuries from which he died in hospital on 4 February, 1996.

The State in its brief of argument formulated two issues for determination. They read as follows:

“1. Whether it is right for the Court of Appeal to raise the issue of plea and arraignment under section 215 of the Criminal Code, Cap. 30, Vol. II, Laws of Oyo State of Nigeria, 1978 suo motu without hearing argument from the two parties upon which it relied heavily to quash the respondent’s conviction.

2. Whether, having regard to the circumstances of this case the prosecution must prove that the act of the respondent alone must cause the death of the deceased before the respondent’s conviction could be affirmed.”

For his part the respondent also raised two issues which are similar to those formulated by the State.

ISSUE NO. 1

“Whether it is right for the Court of Appeal to raise the issue of plea and arraignment under section 25 of the Criminal Code, Cap. 30, Vol. II, Laws of Oyo State of Nigeria, 1978 suo motu without hearing argument from the two parties upon which it relied heavily to quash the respondent’s conviction.”

As I have already indicated, the respondent was found guilty of manslaughter. His appeal to the Court of Appeal was allowed.

The issues submitted on behalf of the respondent, who was the appellant in that court, for determination were as follows:

“(1) Whether from the totality of the evidence adduced at the trial and the manner the same was summed up by the trial Judge, can it be reasonably said that there was proper evaluation of the evidence by the court and proper findings made on the essential ingredients of the offence to sustain the conviction of the appellant.

(2) Whether having regard to the evidence led by the prosecution, the learned trial Judge has not misdirected himself in his deduction in his judgment that it was the accidental acts of the appellant that caused the death of the deceased.

(3) Whether having regard to the evidence of the appellant which remains uncontradicted, the appellant was not entitled to the defence of self defence and accident which the court ought to consider.”

The arraignment of the accused (respondent herein) was not an issue in the proceedings in the Court of Appeal. The accused did not make it an issue.

The Court of Appeal, in the course of its judgment, raised the issue of the arraignment of the respondent suo motu. This is clearly borne out from the following excerpt from the judgment of the Court of Appeal:

“Before I consider the issues for determination – I am duty bound to look into a crucial aspect of criminal trials – which is the arraignment of the accused person, including the appellant before the trial court.”

After due consideration of the issue, the court below held:

“Though I do not need to delve into any of the issues for determination in this appeal as the entire trial, conviction and sentence before the lower court is now a nullity by operation of section 215 of the Criminal Procedure Act of Oyo State, I shall like to comment briefly on certain aspects of the evaluation of evidence of the learned trial Judge.”

It is to be noted that the court below did not call upon the parties to address it on the issue. The first issue is therefore against the failure by the court below to give the parties an opportunity to be heard on the point so raised suo motu by it.

It was submitted on behalf of the appellant that a court should confine itself to issues raised by the parties. Where, however, the court raises an issue suo motu, the parties must be given an opportunity to address the court on the point. Learned counsel for the appellant relied on the following authorities – IBWA Ltd. v. Pavex International Co. (Nig.) Ltd. (2000) 7 NWLR (Pt. 663) 105; Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177; N.P.S. v. Adekanye (No. 2) (2000) FWLR (Pt. 120) 1659; (2002) 15 NWLR (Pt. 790) 332. It was said that the court below was in grave error to have raised the issue suo motu and resolved it in favour of the respondent without hearing the parties on the issue so raised.

For the respondent, it was submitted that failure of the parties to address the court on the issue of plea did not amount to a breach of the right of fair hearing and also did not occasion a miscarriage of justice.

The law in this regard is now settled. It is now trite law that in the determination of disputes between parties, the court should confine itself on the issues raised by the parties. The court is not competent to suo motu, make a case for either or both of the parties and then proceed to give judgment in the case so formulated contrary to the case of the parties before it. Where, however, the court raises an issue suo motu and the issue goes to the root of the case, the parties must be given an opportunity to address the court on the point. See Adeniji v. Adeniji (1972) 1 All NLR (Pt. 1) 298; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Atanda v. Lakanmi (1974) 3 SC 109; Odiase v. Agho (1972) 1 All NLR (Pt. 1) 170. When an issue is not properly placed before the court, the court has no business whatsoever to deal with it – see Ebba v. Ogodo (1984) 1 SCNLR 372; (1984) 4 SC 84 at 112.

I have earlier on in this judgment shown that the arraignment of the respondent was not an issue before the Court of Appeal. Learned counsel for the respondent did not make his arraignment in the court of trial an issue. The Court of Appeal in the course of its judgment raised the issue suo motu. It considered the issue it raised suo motu and based its judgment on it without giving the parties an opportunity to address the court on the point. Clearly the court below was in grave error. On the authorities of this court, a few of which were referred to herein, the court below had no business whatsoever to deal with an issue which was not placed before it for adjudication. But if it considered the point important enough to raise it, then it should have called on the parties to address the court on the issue so raised. That was not done. That judgment therefore must not be allowed to stand. It must be set aside. I answer issue No.1 therefore in the negative.

ISSUE NO. 2

“Whether, having regard to the circumstances of this case the prosecution must prove that the act of the respondent alone must cause the death of the deceased before the respondent’s conviction could be affirmed.”

In the course of its judgment, the Court of Appeal per Adekeye, JCA said:

“In the case I have already drawn attention to the inconsistency (sic) finding of facts on the acts of the appellant and the failure of the learned trial Judge to properly elucidate on the accidental acts of the appellant and relate same as being the cause of death of the deceased. ”

It was said on behalf of the appellant that the court below was in grave error to hold as it did in the above quoted passage. It was submitted that where a number of persons joined in an unlawful assault, it is not mandatory for the prosecution that the act of a particular accused alone caused the death of the deceased and it is a question of fact in every case whether the death of the person

assaulted is a probable consequence. For this submission, learned counsel for the appellant relied on Musa Sokoto v. R. (1976) 2 SC 133; Muonwem v. Queen (1963) 1 SCNLR; (1963) 1 All NLR 95. We were urged to allow the appeal.

For the respondent it was submitted that it was not proved with certainty that it was the act of the respondent that caused the death of the deceased. It was further submitted that in murder cases, the burden is not discharged unless the prosecution established not only the cause of death, but also that the act of the appellant caused the death of the deceased. Counsel relied on the decision of this court in the case of Akinfe v. State (1985) 3 NWLR (Pt. 89) 729 at 744. It was urged on us to dismiss the appeal.

There is evidence that the deceased’s family and the respondent’s family had a protracted land dispute. Because of this feud the respondent’s family held a meeting at which it was agreed that the deceased Agboola Aina should be eliminated. In pursuance of this agreement, on the morning of the day in question the respondent and some members of his family ambushed the deceased and his sister (PW3) who were on their way to Ibadan. They beat the deceased severely with cudgels, cutlasses, sticks and with their hands. He received multiple injuries from which he died two days later in hospital.

I think it is important to remind ourselves that the respondent himself admitted under cross-examination that he took part in the fight. His words:

“I sustained injury when I was fighting Saka and his father … ”

The evidence before the trial court shows clearly that there was a common intention to cause death or at least to do grievous harm to the deceased Agboola Aina. The doctor’s opinion was that he died from multiple injuries.

The main question here is whose acts caused the death of Agboola Aina The court below was of the view that for the conviction of the respondent to stand, it must be shown that it was his acts that caused the death of the deceased. The court below in my view was in error. This court has held that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence; see Muonwem v. The Queen (1963) 1 SCNLR 172; (1963) 1All NLR 95. See also Ofor v. The Queen (1955) 15 WACA 4.

In the English case of Rex v. Grant and Gilbert 38 Cr. App R. 107 it was held that if several persons embark on an enterprise to commit a felony and have also the preconceived common intention to use violence of any degree, if necessary, for the purpose of overcoming resistance, and death results from such violence, all are guilty of murder.

In Rex v. Betts and Ridley 22 Cr. App. R. 148 it was held that in the case of a common design to commit robbery with violence if one prisoner causes death while another is present aiding and abetting the felony, as a principal in the second degree, both are guilty of murder.

I answer issue No.2 also in the negative.

It is the law that where two or more persons form a common intention to assault a person and one of them causes his death while the others are present aiding and abetting the felony, all are guilty of murder. The court below was therefore clearly in error when it faulted the judgment of the trial court on the ground that it failed to “properly elucidate on the accidental acts of the appellant and relate same as being the cause of death.”

In the result this appeal succeeds and I allow it. I set aside the judgment of the Court of Appeal which reversed the judgment of the trial court. The judgment of the trial court is hereby restored.

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SC.16/2002