AKINYEDE OLAIYA V THE STATE

Areas Of Law:

APPEAL, COURT, CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

On the 23rd of March, 2011, violent fracas broke out between the members of the People’s Democratic Party (PDP) and the Action Congress of Nigeria(ACN) at Kota Junction, Omuo Ekiti, in Ekiti State as a result of accusation and counter accusation of the tearing of posters of the two rival political parties by their respective supporters.

A police team led by the Divisional Police Officer (DPO), comprising seven policemen including the Appellant and one Cpl. Ameh Richard, was sent to restore peace and order.

The mobsters at the scene of the crime were allegedly dangerously armed with guns, cutlasses, bottles etc. While the DPO fired shots into the air to draw attention of the mobster and warn the volatile crowd, the Appellant and the 1st Accused fired shots from their respective riffles into the crowd which led to the death of two men.

The Appellant was consequently charged with murder by his intentional and unlawful killing of Kehinde Ayo Faluyi and was tried for murder contrary to Section 316 and punishable with death under Section 319 of the Criminal Code.

At the close of the trial, the trial judge in a considered judgement convicted the Appellant for murder and was accordingly sentenced to death.

The Appellant unsuccessfully appealed to the Court of Appeal which affirmed the conviction and sentence imposed on him by the trial High Court.

The Appellant has further appealed to this court.

Appeal Dismissed

“In the practice and procedure of this court proliferation of issues from a single ground of appeal is wrong- and unacceptable. The permissible practice is that a party may formulate, from a ground of appeal or a number of grounds of appeal only one issue, and not several issues from one ground of appeal. Proliferation of issues is not permitted by law: – Agu v. Ikewibe (1991) 3 NWLR (pt. 180) 385; Madueke v. Madueke (2000) 5 NWLR (pt. 546) 409″. PER E. EKO, J.S.C

“There are two broad elements the prosecution must establish in order to sustain the conviction of an accused person in a murder charge. That is the actus reus and the mens rea. The actus reus is the wrongful act or deed that comprises the physical components of the crime charged. The mens rea, is the guilty mind or the state of the mind with which the accused person executed the criminal act. It is also the mental element. There are only two states of mind which constitute mens rea, according to Black’s Law Dictionary at p.1076 9th ed., citing J. W. Cecil Turner: KENNY’s OUTLINE OF CRIMINAL LAW 29 – 30 -(6th Ed. 1952). They are the intention, and recklessness with which the accused proceeded in the act said to be criminal”. PER E. EKO, J.S.C

“The choice of line of defence to plead in any criminal proceeding, as Karibi-Whyte, JCA (as he then was) stated in Gwonto v. The State (1982) 1 NCR 251 at 265, is entirely within the discretion of the accused person, and his counsel. No court interferes, or can interfere, with that discretion”. PER E. EKO, J.S.C

“Facts admitted, or facts not disputed, need no further proof. They are, in law, taken as proved and /or established. I re-stated this principle of law in Odebunmi & Anor v. Oladimeji & Ors (2012) LPELR – 15419 (CA) and ACB Int’l Bank Plc v. Adiele (2013) LPELR – 21164 (CA) relying on Ogolo v.-Fubara (2003) 11-NWLR (pt, 831) 231; Odulana v  Haddad (1973) 11 SC 35. Accordingly, the actus reus of the murder charge being defended by the appellant, having been admitted, is no longer in dispute, it is accordingly taken as established”. PER E. EKO, J.S.C

“A party at all times must be consistent with the pleading of his defence. He will not be allowed to approbate and reprobate in his case. See Suberu v. The State (2010) 5 SCM 215. PER E. EKO, J.S.C

“The law does not obligate the prosecution to prove the defence available to the accused. That is why when the prosecution, while purporting to prove their case, prove the defence of the accused as part of the prosecution’s case; it has been held, in Paul Ameh v The State (1978)NSCC 368, that where in a criminal proceeding the prosecution put before the trial court two versions of one incidence, one proving the allegation and the other the defence, they would have thereby failed to prove their case beyond reasonable doubt. See also Boy Muka v. The State(1976) 10 SC 305; Alfred Onyemena v The State(1974) All NLR 522. PER E. EKO, J.S.C

“At all times the accused person has the evidential burden of proving his defence or casting reasonable doubts on the prosecution’s case. When he asserts a defence, it behooves him to prove it. Section 131,136(1) and 137 of the Evidence Act,2011 are clear and very material on this”. PER E. EKO, J.S.C

“The settled law is, that a man intends the natural consequences of his acts. In exercise of official duty a police officer is duty bound to take necessary precaution and also to exercise due care and caution in order to avoid causing injury, harm or death of other persons”. PER A. SANUSI,J.S.C

“It is now well settled that an appellate court will not interfere with concurrent findings of two lower courts unless the findings are perverse or erroneous in substance or procedural law. There is no basis, in my opinion for this court to interfere with the concurrent findings of the two lower courts in this case. See Sanyaolu v State (1976) 5 SC 37, Princent v The State (2002) 18 NWLR (pt 798) 19, Amusa v The State (2003) 4 NWLR (pt 811) 595“.PER J.I.OKORO,J.S.C

“In a murder trial, the prosecution has to prove that the deceased had died, that the act or the omission of the accused caused the death of the deceased and that the act of the accused was intentional with knowledge that death or grievous bodily harm was probable. See Okereke v The State (2016) LPELR – 40012 (SC), Akinlolu v The State (2015) LPELR – 25986 (SC), Ogedengbe v The State (2014) LPELR – 23065 (SC), (2014) 12 NWLR (pt 1421) 338″. PER J.I.OKORO,J.S.C

“In criminal cases, the prosecution has a duty to prove the charge beyond reasonable doubt. It cannot be otherwise. But proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See Lori & anor v The State (1980) NSCC P. 269, Oseni v The State (2012) 5 NWLR (pt 1293) 351, (2012) LPELR – 7833 (SC) Akinpade v State (2012) LPELR – 9345 (SC), (2012) 16 NWLR (pt 1325) 94. PER J.I.OKORO,J.S.C

“The ingredients of the offence of murder, which must be proved beyond reasonable doubt by the prosecution have been stated in numerous decisions of this court. The prosecutor must prove:

(a)        That the deceased died;

(b)        That the “death of the deceased resulted from the act of the accused;

(c)        That the action of the accused was intentional with knowledge that it might result in death or the infliction of grievous bodily harm on the deceased.

See: Ibikunle Vs The State (2007) 1 SCNJ 207; Akpan Vs The State  (1994) 9 NWLR (Pt.368) 347; Akinfe Vs The State (1988) 3 NWLR (Pt.85) 729: Udor Vs The State(2014) LPELR – 23064 (SC)“. PER K.M.O.KEKERE-EKUN, J.S.C

 

Evidence Act 2011 as amended