Medical Evidence: Instances Where Medical Evidence May Be Dispensed With 

ABBAS MUHAMMAD V. THE STATE (2017) LPELR-42098(SC)

PRACTICE AREA: CRIMINAL LAW

INTRODUCTION

It is often the practice that in proving the death of a deceased person in homicide cases, prosecution adduce evidence as to the cause of death of the deceased by presenting medical evidence as to the cause of death and also call on expert witness (usually the pathologist who carried out the autopsy) to testify as to the cause of death of the deceased person. This practice, it now appears, may not be necessary in certain cases where the cause of death is obvious. This was part of the decision of the Supreme Court on the 13^th day of April 2013 in the judgment under consideration.

Amina Adamu Augie. JSC, while delivering the leading judgment said “The lower Court is right; the Appellant cannot argue that the weapon he used on the deceased is not clear. He used a weapon, and whether it was a shovel or a knife, the weapon proved lethal; the deceased died the next day as a result of the injuries received. In such circumstances, the position of the law is that the cause of death can properly be inferred that the injuries caused the death.

In other words, where cause of death is obvious, it is not a vital component of proof to have medical evidence to establish it.”-

This was also emphasized by Chima Centus Nweze, JSC while giving his own contribution when he added that “Just as the leading judgment has shown, a clearly evident cause of death, as in the instant case, obviates the need for any medical evidence to establish the first ingredient of the offence of culpable homicide punishable with death, that is, that the deceased person died.”

In giving strength to this position, he went further to say “Thus, in situations, as exemplified in the instant case, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where death was instantaneous or nearly so.

FACTS OF THE CASE

In this case, the Appellant, a football coach, was on the field with some other people, including PW2. The deceased stood afar and called PW2 to come. PW2 in turn asked the deceased to come to where he was sitting with the Appellant but he refused. The accused asked PW2 not to go and meet the deceased. He opined that since the deceased was the one calling, he should come to where PW2 was seated. The deceased, who was said to be drunk, took a shovel that one Mallam Nura was working with and came to where the Appellant was sitting and he stood in front of the accused and started abusing him. This led to a fight and the Appellant grabbed a weapon (Barandami metal). During the fight, the shovel fell from the deceased’s hands, and it was when the deceased was trying to pick up the shovel that the Appellant got hold of the shovel and hit the deceased on his left leg then on his back, twice.

Appellant asked his boys to take the deceased to the Chemist and from the Chemist, he was taken home. The following day, he was taken to Murtala Muhammad Hospital and he died later that day.

The accused, now appellant, was arrested and charged with the offence of culpable homicide punishable with death.

During trial, six witnesses testified for the Prosecution while the Appellant testified in his own defence, and called one other witness. He did not deny that there was a fight between him and the deceased, he even stated that he hit the deceased on the left leg then twice at the back. He however attempted to hinge his act on provocation and self defence. This defence was rejected by the court and consequently, the Kano State High Court found him guilty as charged, convicted and sentenced him to death.

Dissatisfied with the judgment of the trial court, the Appellant lodged an appeal in the Court of Appeal. The appeal was heard and on 1/3/2013, the Appeal Court delivered its Judgment against the Appellant and affirmed the decision of the trial Court.

Yet disgruntled, he has now approached the Supreme Court.

ISSUE(S) FOR DETERMINATION

The Supreme Court adopted 2 issues for the just determination of the case:

(i) Whether the learned Justices of the Court of Appeal were right, in the circumstances of this case, to affirm the conviction and sentence of the Accused Person (sic)?

1. Whether the learned Justices of the Court of Appeal were right in holding that the defence of provocation and self- defence will not avail the Appellant?

HELD

The Supreme Court affirmed the concurrent judgments of the lower courts and the appeal was dismissed.

RATIOS

• EVIDENCE – CAUSE OF DEATH: Circumstances where cause of death can be inferred

“The issue here is whether the death of the deceased was caused by the Appellant, and his contention is that there was no evidence to establish the actual weapon that he used in causing the death. Let me quickly say that this issue is easily resolved because his argument cannot stand against the decision of this Court in Ali V. State (2015) LPELR-24711 (SC), wherein, Ogunbiyi, JSC, observed-

The Appellant is very particular about the actual instrument used in striking the deceased i.e. to say, the exact specification as to whether it was an axe or cutlass/matchet that was used. What is of relevant significance is the fact that the deceased was struck with a heavy weapon (axe) in the middle of the head, which got broken and caused his instant death. It is well taken that the Prosecution has proved beyond reasonable doubt that the Accused used the weapon on the deceased and caused his death. The Medical Doctor, PW4, in his Report did confirm and corroborate the use of weapon on the deceased’s head – – The question whether the instrument used was an axe or matchet did not in the least matter.

What is relevant is that the instrument was heavy and lethal. It was also applied very forcefully and caused instant death. PW1’s evidence on the use of heavy object on the head was corroborated, therefore, by PW4, the Medical Doctor. In the course of the examination of the corpse; he found a big cut wound on the deceased’s skull and also a culminated fracture of the skull. The Appellant expects PW4 to state the specific instrument used and inflicted the big cut wound on deceased’s skull, which caused the eventual death. As rightly submitted on behalf of the Respondent, the said witness is not under any obligation to state the kind of instrument used on the deceased. This is more so – when PW4 was not at the scene of incident. It was sufficient that his testimony and findings are corroborative of PW1 the star witness. As Ogunbiyi, JSC, pointed out in Ali V. State (supra), this Court held in Ben V. State (supra), (2006) 16 NWLR (Pt. 1006) 582 that medical evidence is not essential in establishing this issue where the deceased was attacked with lethal weapon and died instantly.

In that case, Ben V. State (supra), Akintan, JSC, stated as follows – In cases, where a man was attacked with lethal weapon, and he died on the spot, cause of death can properly be inferred that the wound inflicted caused the death. Put in another form, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where death is instantaneous or nearly so.

Katsina-Alu, JSC [as he then was], further observed as follows – The Appellant struck the deceased on the head – – He fell down unconscious, never regained consciousness until he died a few hours later in hospital. Medical evidence was not necessary to determine the cause of death in the circumstances of this case. It could properly be inferred that the wound inflicted caused the death of the deceased.” Per AUGIE, J.S.C. (Pp. 23-26, Paras. D-B)

• EVIDENCE – CAUSE OF DEATH: Circumstances where medical evidence would be dispensed with as to the cause of death

“…But far weightier than all the above oral testimonies is Exhibit C, Medical Report, prepared by PW5 which tallies with the injuries, the Appellant admitted that he inflicted on the deceased that day. The Appellant stated in Exhibit A that he hit the deceased “on the back and again on his back two times”. PW5 explained that it was the injury at his lower back, which caused bleeding to his spinal cord that eventually caused the death of the deceased. The lower Court is right; the Appellant cannot argue that the weapon he used on the deceased is not clear. He used a weapon, and whether it was a shovel or a knife, the weapon proved lethal; the deceased died the next day as a result of the injuries received. In such circumstances, the position of the law is that the cause of death can properly be inferred that the injuries caused the death.

In other words, where cause of death is obvious, it is not a vital component of proof to have medical evidence to establish it. See Ali v. State [supra], Ben V. State {supra}. More importantly, the medical doctor is not obliged to specify the instrument used.

In this case, the Appellant admitted he used a lethal weapon to wound the deceased, which caused his death, and that is that.”Per AUGIE, J.S.C. (Pp. 29-30, Paras. B-B)

• APPEAL – FRESH POINT(S) ON APPEAL: Whether leave of court is required to raise fresh issue on appeal

“A fresh point is a matter that was not canvassed at the trial nor in the Court of Appeal, and it is settled law that it is too late to raise such matter here unless new evidence emerged that was not available at trial and no human ingenuity could have foreseen it – See Mohammed V. State (1991) 5 NWLR (Pt. 192) 438 at 453 SC. See also Akpabio v. State (1994) 7 NWLR (Pt.359) 635 SC, where this Court, per Iguh, JSC, explained the position, as follows – The question as to exclusion of the statement in issue was neither raised before nor pronounced by the Court below. It was, in fact, neither made a ground of appeal in that Court nor before us. It is well to bear in mind – -that an appellate Court will not generally allow a fresh point to be taken before it if such a point was not raised and pronounced upon by the Court below unless of course, the question involves substantial points of law and no further evidence needs be adduced to determine the matter and such a course of action is necessary to prevent an obvious miscarriage of justice. It is also settled that a point raised for the first time in this Court can only be argued with the leave of the Court because this Court as an appellate Court only has jurisdiction to correct the errors of the Court below and to know in what respect it can exercise its supervisory jurisdiction to correct any errors of the Court below – see Director, SSS v. Agbakoba {1999) 3 NWLR (Pt 595) 314 SC.” Per AUGIE, J.S.C. (Pp. 6-8, Paras. F-A)

• APPEAL – ALLOWING APPEAL: Basis for allowing an appeal

“It is settled that in appeals in criminal cases, an Appeal Court will not allow an appeal merely because the verdict reached by the trial Court is challenged on the grounds of its being contrary to the weight of evidence, and will only do so if it can be shown that the said verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence – see Adi v. R 15 WACA 6 where the West African Court of Appeal (WACA) clearly stated- The last point- – was that the decision was contrary to the weight of evidence. This is not a proper ground of appeal in criminal cases in which the point is not the preponderance of evidence on one side, which outweighs the evidence on the other side. The proper ground should have been that the “verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence.” Per AUGIE, J.S.C. (Pp. 9-10, Paras. F-C)

• CRIMINAL LAW AND PROCEDURE – DEFENCE OF PROVOCATION: Whether the defence of provocation can excuse the offence of homicide

“When does a defence of provocation succeed in a charge of culpable homicide punishable with death? Section 222(1) of the Penal Code that is applicable in Kano State provides as follows – Culpable homicide is not punishable with the death if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Evidently, a plea of provocation does not exculpate the accused, but is only a mitigating factor when it comes to the sentencing. For the defence to avail the accused, the burden is on him to establish that the act of provocation was “grave and sudden”; that he must have been deprived of the power of self-control; and the extent of retaliation is proportionate to the provocation offered- See Galadima V. The State (2012) LPELR-15530(SC).” Per AUGIE, J.S.C. (Pp. 46-47, Paras. E-C)

• CRIMINAL LAW AND PROCEDURE – DEFENCE OF SELF-DEFENCE: When the defence of self defence will not avail an accused person

“In Owhoruke V. COP [supra], the deceased snatched a bottle of drink from the Appellant and broke it. He then threatened the Appellant with the broken bottle. The Appellant confessed that he later overpowered the deceased; seized the broken bottle from the deceased, and then used it to stab the deceased in the neck. The issue was whether the Appellant was in apprehension of death or grievous bodily harm at the time. This Court held that – The Appellant was no longer in apprehension of death or grievous bodily harm since he stabbed the deceased after he had overpowered him and retrieved the broken bottle from him.

At the time of stabbing, the Appellant was no longer in apprehension of death but rather an unjustified aggressor that retaliated in a disproportionate manner. The killing was intentional. It is lawful If the nature of the assault on the Appellant is such as to cause reasonable apprehension of death or grievous harm for him to use such force on the deceased as is necessary to defend himself, but this does not arise since the danger had passed after the Appellant overpowered the deceased, retrieved the broken bottle from him and stabbed him on the neck with it. The stabbing was clearly unnecessary. The killing was intentional. The defence of self-defence fails.”Per AUGIE, J.S.C. (Pp. 56-58, Paras. F-A)

• JUDGMENT AND ORDER – ERROR/MISTAKE IN JUDGMENT: Whether every error/mistake in a judgment will result in a judgment being set aside

“A Court deals with cold hard facts, and nothing but the facts. In this case, the Appellant and deceased had gotten into a fight. During the fight or struggle, as the Appellant called it, the shovel fell from the deceased’s hands, and it was when the deceased was trying to pick up the shovel that the Appellant hit him at the back. There is absolutely nothing on record to suggest or imply that the deceased knelt down in “surrender” as the lower Court inferred. This is an embellishment that is unbecoming in a Judgment. But it is not every error or wrong inference made by a Court that will lead to the reversal of its Judgment. An Appellant must show that the error or wrong inference, as in this case, has occasioned a miscarriage of justice and/or substantially affected its decision – see Ajuwon V. Akanni & Ors (1993) 9 NWLR (Pt. 316) 182 SC. In other words, an error that has not occasioned miscarriage of justice is immaterial and may not affect the result of a decision. This is because an appellate Court only has to decide whether the decision of a lower Court was right; not whether its reasons were – A.G., Ekiti State V. Adewumi (2002) 2 NWLR (Pt.751) 474 SC.” Per AUGIE, J.S.C. (Pp. 32-33, Paras. F-E)

ALSO FRESH FROM THE COURT ARE:

SHAIBU v. STATE (2017) LPELR-42100(SC)

• APPEAL – APPEAL TO THE SUPREME COURT: Whether appeals to the Supreme Court must lie from the decision of the Court of Appeal

“There is no connection between this Court and the trial Court; not directly anyway. The findings of a trial Court must be affirmed or reversed by the Court below before its decision gets to this Court.

It is settled that before a pronouncement on its correctness can be made by this Court, it must be shown that the views expressed by that Court are wrong. It is only on such consideration that this Court can examine whether its Judgment is right or wrong – see Uor V. Loko (1988) 2 NWLR (Pt.77) 430, where Karibi-Whyte, JSC, added –

The appellate Court is entitled to have the benefit of the opinions of the judges in the judgments of the Court below. It is the opinion appealed against, which is affirmed or reversed. Hence, without the benefit of such opinion, an appellate Court will be extremely reluctant to interfere. Any Judgment — founded on grounds not canvassed in the Court below and not adverted to and pronounced upon in the judgment appealed against ideally is not an appeal against such a judgment. Since an Appellant’s right of appeal is circumscribed within the parameters of the judgment appealed against, this Court will not lightly permit impugning the judgment on grounds of error other than are contained therein. See also Djukpan V. Orovuyovbe (1967) 1 All NLR 134 and Ajuwon V. Adeoti (1990) 2 NWLR (Pt. 131) 271 SC, wherein Nnaemeka-Agu, JSC, advised counsel to adhere to what Lord Birkenhead, L.C., had said in North Staffordshire Railway Co. v. Edge (1920) A.C. 254; as follows –

The efficiency and authority of a Court of Appeal, and especially of a final Court of Appeal are increased and strengthened by the opinions of learned judges, who have considered these matters below. To acquiesce in such an attempt as the Appellants have made in this case, is in effect to undertake decisions, which may be of the highest importance, without having received any assistance at all from the judges of the Court below.”Per AUGIE, J.S.C. (Pp. 8-10, Paras. E-B)

• APPEAL – FRESH POINT(S) ON APPEAL: Conditions that must be met before new points can be raised on appeal

“In any event, a party is not shut out from raising a fresh point or issue in this Court but it requires leave before it can be entertained – See Ajuwon V. Adeoti (supra), wherein Nnaemeka-Agu, JSC, added –

This Court has not only deprecated any attempt to, as it were, without leave, steal the show at the highest level. It has also gone ahead to lay down guidelines as to when such leave may be granted. See, for example, Stool of Abinabina v. Enyimodu (1953) 12 WACA 171, Ejiofodomi V. Okonkwo (1982) 11 SC 74.”Per AUGIE, J.S.C. (P. 10, Paras. B-E)

• EVIDENCE – MEDICAL EVIDENCE: Position of the law as regards proper identification of the corpse for postmortem or autopsy

“So, the appellant’s choice of attack against the decision of the Court below appealed against is on the identification of the corpse. He was charged with culpable homicide punishable with death. The position of the law is that where medical evidence is essential as to the cause of death, it is invariably also essential that the person, who allegedly identified the corpse of the deceased to the Doctor, is called to testify as to identification, unless identity of the deceased can beinferred from the circumstances of the case – see Enewoh V. State (1990) 4 NWLR (Pt. 145) 469, wherein Akpata, JSC, explained –

The position, however, is that if there are facts from which it can be inferred that the corpse examined by the doctor was that of the deceased, the evidence of the person, dead or alive, said to have identified the corpse is not indispensable. Indeed, a conviction for murder can be made without the recovery of the dead body if there is positive evidence that the deceased has been killed. In effect, the need for anyone to identify the body of the deceased to a doctor is not a sine qua non in all murder cases. Besides, it is also trite law that medical evidence though desirable in establishing cause of death in a case of murder, is not essential provided that there are facts, which sufficiently show cause of death to the satisfaction of the Court. In that case, Enewoh V. State (supra), the deceased’s shouts of “Ukwa Egbe is killing me”, brought his wife, PW1, to the scene where she saw Appellant hitting him with a rod. The Appellant’s son, PW4, pleaded with his father to stop hitting the deceased. But he kept on, and the deceased later died in hospital. The person, who identified the corpse to the doctor, died before trial. This Court held that –

Where the totality of the evidence – – showed unmistakably that the body on whom a doctor performed a post mortem examination was that of the deceased, a separate witness, though desirable, is not a necessity.”Per AUGIE, J.S.C. (Pp. 16-17, Paras. B-E

• EVIDENCE – CONTRADICTION IN EVIDENCE: Whether minor contradiction in the evidence of witnesses can be fatal to a case

“Obviously, there is no substance to the Appellant’s arguments. The Appellant pointed to some discrepancies in the said two Exhibits but these are minor discrepancies that are of no effect whatsoever. It is settled that contradiction that will be fatal must be substantial. Minor contradictions that do not affect the credibility of witnesses, as in this case, may not be fatal. The contradiction must relate to the substance of the matter – Uche v. State (2015) LPELR-249693 (SC).”Per AUGIE, J.S.C. (P. 20, Paras. B-D)

• EVIDENCE – MEDICAL EVIDENCE: Circumstance where medical evidence would not be needed

“This Court held in Ben V. State (2006) 16 NWLR (Pt. 1006) 582 that medical evidence is not essential in establishing this issue where the deceased was attacked with a lethal weapon and died instantly. In that case, Ben V. State (supra), Akintan, JSC, stated as follows –

Where a man was attacked with lethal weapon, and he died on the spot, cause of death can properly be inferred that the wound inflicted caused the death. Put in another form, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where death is instantaneous or nearly so. Katsina-Alu, JSC (as he then was), further observed as follows –

The Appellant struck the deceased on the head – – He fell down unconscious, never regained consciousness until he died a few hours later in hospital. Medical evidence was not necessary to determine the cause of death in the circumstances of this case. It could properly be inferred that the wound inflicted caused the death of the deceased.”Per AUGIE, J.S.C. (P. 21, Paras. A-F)

EZE v. FRN (2017) LPELR-42097(SC)

• APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Attitude of the appellate Court to concurrent findings of fact(s) by Lower Courts

“The law is that the Supreme Court will not interfere with concurrent findings of facts by the trial Court and the Court of Appeal unless such findings are perverse; or are not supported by the evidence; or are reached as a result of a wrong approach to the evidence; or as a result of a wrong application of any principle of substantive law or procedure.” See ARABAMBI VS ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (Pt 959) 1 Per Onnoghen. J.S.C (P. 46. C-F)

In this case, there are two concurrent findings of facts of the lower Courts on the issue, it has always been the practice of this Court in such circumstances to decline to review the evidence a third time unless there is proof of miscarriage of justice or a violation of some principle of law or procedure. or if the finding is/was perverse. See OCHIBA VS THE STATE (2011) 12 SC (Pt IV) P. 79 Per Rhodes-Vivour, J.S.C. (Pp. 51-52, paragraphs F-B). See also CAMEROON AIRLINES VS OTUTUIZU (2011) 12 SC (Pt III) P. 200, OLOWU VS NIG. NAVY (2011) 12 SC (Pt. II) P.1 AROWOLO VS OLOWOOKERE & 2 ORS. (2011) 11-12 SC (Pt. II) P. 98. In concluding this Judgment, I wish to state, for the umpteenth time, the attitude of this Court has remained and will remain, except in exceptional circumstances that are obvious having regard to the facts of each case, that it will not disturb or interfere with such findings and facts as in the instant case.. The judgment of the trial Court cannot, be faulted at all and the lower Court was right in affirming and endorsing same. The appellant has failed to convince me that this is a situation in which this Court should interfere.” See also MINI LODGE LTD V. NGEI (2009) 18 NWLR (Pt 1173) 254 Per Musdapher, J.S.C (as he then was) (P.33), Paragraphs B-D). Thus, I agree with the Court below, wherein it stated on page 246 of the record of appeal as follows:-

“Thus, in the light of my discourse above, I am convinced that the prosecution led credible and cogent evidence in proof of the two offences they charged the accused/appellant. All the three essential ingredients of the offence of armed robbery which I highlighted earlier in this judgment were duly proved beyond reasonable doubt as required of them so to do under Section 138(1) of the Evidence Act. See ALABI VS THE STATE (1993) 7 NWLR (Pt.307) 511; BOZIN VS THE STATE (1985) 2 NWLR (pt.8) 465, NWOSU VS THE STATE (1998) 8 NWLR (Pt.562) 433. This second issue is therefore also resolved against the Appellant.” Per BAGE, J.S.C. (Pp. 31-33, Paras. B-B

• CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: Application of the principles of fair hearing

“The principle of fair hearing as enshrined under the Constitution of the Federal Republic of Nigeria, 1999 as amended (CFRN, 1999) is for both the Appellant and Respondent. Section 36 (1) of the CFRN, 1999 provides thus:

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”

In the locus classicus case of ARIORI & ORS. VS MURAIMO ELEMO & ORS (1983) 1 SC 13 at 24 per Obaseki JSC, this Court opined that fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. “Reasonable time”, the Supreme Court held, must mean the Period of time which, in the search for justice does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable persons to be done.” This position has been reiterated in the case of IDAKWO VS EJIGA (2005) 48 WRN at Ratio 5, page 35 to 36.” Per BAGE, J.S.C. (Pp. 17-18, Paras.B-B)

• CONSTITUTIONAL LAW – BREACH OF RIGHT TO FAIR HEARING: Whether a party who had an opportunity of being heard but did not utilize it can bring an action for breach of fair hearing

“Section 36(6)(c) of the Constitution gives a person who has been charged with a criminal offence right to defend himself by a legal practitioner and or by himself. The provision of the Criminal Procedure Code is a rule of procedure. The Appellant had elected to conduct trial by himself in line with his constitutional right, which thrives over statutory provisions and rules of procedure like the Criminal Procedure Code. See the case of OGUNSANYA VS STATE (2011) 12 NWLR (Pt.1261), page 401 at 429 where this Court held thus:- “Once a trial Court has given a party ample opportunity to defend himself, and the party does not avail himself of that opportunity, then the party cannot complain that he was deprived of the right vested in him by Section 36(4) and (6) of the 1999 Constitution.,.. The Appellant was given the opportunity to defend himself but he failed to seize that opportunity. In the circumstance, he cannot complain of denial of fair hearing.”Per BAGE, J.S.C. (Pp. 21-22, Paras. B-A)

• CONSTITUTIONAL LAW – BREACH OF RIGHT TO FAIR HEARING: Whether a party who had an opportunity of being heard but did not utilize it can bring an action for breach of fair hearing

“I cannot but agree with the findings and conclusion of the Court below, as the principle of fair hearing is not judged within a straitjacket, rather it is taken with the accompanying circumstances including the opportunity given to the party and in this instance the appellant and out of his own volition chooses to handle things his way. If in doing so the standard required under Section 36 (4) and (6) of the 1999 Constitution and Section 186 of the Criminal Procedure Code are met then the appellant cannot turn around to complain that his right to fair hearing had been breached. See Ogunsanya v State (2011) 12 NWLR (Pt. 1361) 401 at 429; Effiom v State (1995) 1 NWLR (Pt.373) 507; Uguru v State (2002) 9 NWLR (Pt. 771) 90; Chukwuma v FRN (2011) 13 NWLR (Pt. 1264) 391 at 425.”Per PETER-ODILI, J.S.C. (Pp. 56-57, Paras. F-C)

• CRIMINAL LAW AND PROCEDURE – OFFENCE OF ARMED ROBBERY: Ingredients that must exist to prove the offence of armed robbery

“To succeed the prosecution must prove beyond reasonable doubt that:-

“(a) There was a robbery or series of robberies;

(b) The robbery or each robbery was armed robbery and

(c) The accused was one of those who took part in the armed robbery. See BOZIN VS THE STATE (1985) 5 SC P.106. OKOSI VS ATTORNEY GENERAL BENDEL STATE, (1989) 2 SC (Pt.1) P.126. MARTINA VS THE STATE (1997) NWLR (Pt. 481) P.355. OSUAGWU VS THE STATE (2013) 1-2 SC (PT. 1) P. 37, EMEKA VS STATE (2014) 6-7 SC (Pt. 1) P.64.” Per BAGE, J.S.C. (Pp. 13-14, Paras. D-A).

ADEGBOYE v. STATE (2017) LPELR-42099(SC)

• CRIMINAL LAW AND PROCEDURE – DEFENCE OF ACCIDENT/SELF-DEFENCE: The distinction between the defence of accident and self-defence

“The defences the appellant tried to raise i.e. self defence and accident are not mutually exclusive but they rather contradict each other. See: Bello v. Attorney – General of Oyo State (1986) 5 NWLR (Pt. 45) 828. Adelumola v. State (1988) 1 NWLR (Pt. 73) 683: Umoru v. State (1990) 3 NWLR (Pt. 138) 363 and Sule v. State (2009) 17 NWLR (Pt. 1169) 33. The defence of accident could be raised if there was a scuffle between the deceased and the appellant and in the process, one of them accidentally pulled the trigger and the cartridge was released and the deceased was shot in the process. But this was not the case as Exhibit “D” shows that the deceased was shot at the back which is clear evidence he was running away. A man is presumed to intend the natural consequences of his act and when an event is said to have occurred by accident, it is implied that it was totally unexpected by the doer of the act and it was also not reasonably expected by any ordinary person, the reasonable man of the law. See: Adelumola v. State {1988) 1 NWLR (pt. 73) 683. For self defence to avail an accused under the Criminal Code for a charge of culpable homicide punishable with death, the accused must have had a reasonable belief that his life was in danger and the quality of the force used on the deceased must be the same as that against which the accused defended himself. See:Okonji v. State (1987) 1 NWLR (Pt. 52) 659.”Per AKA’AHS, J.S.C. (Pp. 7-8, Paras. E-E)

• CRIMINAL LAW AND PROCEDURE – OFFENCE OF MURDER : Essential ingredients that must be proved by the prosecution to ground a conviction for murder

“In a charge of murder such as the case at hand, the prosecution is required to establish the following ingredients:-

(a) that the deceased died;

(b) that death of the deceased was caused by the accused;

(c) that the accused person intended to either kill the victim or cause him grievous bodily harm.

See Njoku v The State (2013) 2 SCM 177 at 180.”Per PETER-ODILI, J.S.C. (P. 31, Paras. C-E) –

• CRIMINAL LAW AND PROCEDURE – DEFENCE OF JUSTIFICATION: Nature of the defence of justification

“Section 33 (2) (b) of the 1999 Constitution (as amended) is in line with Section 271 of the Criminal Code Law. It stipulates thus:-

“33(2): A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary,

(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained…” A reference to the Criminal Code of Ogun State would be of assistance and in this regard, the Attorney General of Ogun State as counsel for the respondent and in his bounden duty as officer of the Court had called the Court’s attention to it. Section 271 Criminal Code Law, Ogun State, “271: When a peace officer or police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence which is a felony and is such that the offender may be arrested without warrant and the person to be arrested takes to flight in order to avoid arrest, it is lawful for the peace officer or police officer and for any other person lawfully assisting him, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested, and if the offence is such that the offender may be punished with death or with imprisonment for seven years or more, may kill him if he cannot by any means otherwise be arrested.” The Supreme Court had warned itself and other Courts in the application of the Constitutional provision, Section 33 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN), Police Act and in relation to facts akin to the case at hand in the case of: Adegboye lbikunle v State (2007) 2 SCM page 73 at 76 wherein it was held that, “The statutory defences implied in these provisions (33 (2) (b) of the 1999 Constitution, Section 7 (1) and (2) of the Criminal Procedure Law and Section 4 of the Police Act) cannot avail the appellant, more so that none of them granted him a license to summarily execute the deceased extra-judicially. Even if the deceased were to be a thief or a person of dubious character……. the provisions of the Constitution and Criminal Procedure Law (ibid) quoted above did not license the appellant to be the complainant, investigator, Judge as well as executioner.. all rolled into one.”

I shall refresh my mind with the fact and the circumstances of the case of lbikunle v State referred to above which is similar to the instant case. In the said case, the appellant being a police officer had gone in company of his fellow police officers to effect an arrest of a certain armed robbery suspect who escaped from police custody. The police including the appellant then traced the said armed robbery suspect to a particular address where they believed the suspect was on that night. Unknown to the appellant and his colleagues, their armed robbery suspect had moved out of the address about 2 weeks before and someone else who turned out to be the deceased was living in the address.

The police knocked on the door but the deceased refused to open the door. The deceased did not also emphatically deny that he was the suspect the police was looking for. The deceased did not open his door even after the police fired warning shots into the air. The deceased still did not open his door but instead warned the police that he would kill any police officer who dare come inside his room with a cutlass he was holding. The appellant in the case, summoned courage and jumped into the deceased’s apartment through the window but the deceased who had been talking to the police officers had quickly moved into the bedroom and locked it up. After over two hours, the appellant in an attempt to incapacitate the deceased and effect his lawful arrest fired a single shot from a rifle at the downward end of the bedroom door in order to gain access and effect his arrest, but the gunshot turned out to be fatal when the police officers brought out the deceased, it dawned on them that the deceased was hit in the abdomen and that he was not the notorious suspect who they are in search of. The conviction of the appellant was re-affirmed by the Supreme Court.”Per PETER-ODILI, J.S.C. (Pp. 35-38, Paras. A-D) –

• CRIMINAL LAW AND PROCEDURE – DEFENCE OF ACCIDENT: Condition for the defence of accident to avail an accused person charged for murder

“It is now settled, that an accused person as in the instant case, cannot take refuge on a defence of accident for a deliberate act even if he did not intend the eventual result. See the case of OGHOR VS THE STATE (1990) 3 NWLR (Pt. 139) 484 at 502. The test of the plea or defence of accident is always that if the act even though unlawful, is not such that would, from the view of a reasonable man, cause death or grievous bodily harm though death resulted therefrom, the person charged can only at most, be convicted of manslaughter. See the case of THOMAS VS THE STATE (1994) 4 SCNJ (Pt.1) 102 at 109, (1994) 4 NWLR (Pt. 337) 129 per Wali JSC. It need to be stressed, that the act leading to the accident must be a lawful act done in a lawful manner. Thus for an event to qualify as accidental under Section 24 Criminal Code (C.C.), it must be a surprise to the ordinary man of prudence, that is, a surprise to all sober and reasonable people. The test is always objective. See ADEMOLA VS. THE STATE (1998) 1 NWLR (Pt.73) 683 at 692-693. ( 1988) 3 SCNJ 68.It must always be borne in mind that Section 24 of the Criminal Code does not deal with an “act” but an “event” and the event within the meaning of the section, is what apparently follows from an act. See AUDU UMARU VS THE STATE (1990) 3 NWLR (Pt. 138) 363 at 870, DANIELS VS THE STATE (1991) 8 NWLR (Pt. 212) 715, CHUKWU VS THE STATE (1992) 1 NWLR (Pt.  217) 255. NWALI VS THE STATE (1991) 5 SCN 14. SOLOMON ADEKUNLE VS THE STATE, 26 NSCQR 11, 1137 at pages 1393-1394.” Per BAGE, J.S.C. (Pp. 49-50, Paras. A-C).