CORAM
UGOCHKWU ANTHONY OGAKWU
UZO. I. NDUKWE-ANYANWU JUSTICE OF THE COURT OF APPEAL NIGERIA
JOSEPH SHAGBAOR IKYEGH JUSTICE OF THE COURT OF APPEAL NIGERIA
PARTIES
HENRY OJUKOKAIYE APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant as the accused person was charged before a High Court of Lagos State , Ikeja on a sole count of murder of one Corporal Agboola Oyeniran at Ipaja Lagos State contrary to section 319 (1) of the Criminal Code Law of Lagos State. It was the Prosecution’s case that the Appellant –a police officer in company of two other officers stopped a bus and ordered all passengers to alight from the bus. The deceased who was one of the passengers in the bus alighted and brought out his identity card to show he was also a police officer and also brought out his service pistol. He was asked to surrender his gun but he refused and it resulted in a struggle. Subsequently, the deceased agreed to surrender his gun only to the Divisional Police Officer at the Appellant’s Police station. As the deceased was boarding the bus with them to the station, the Appellant pulled him back and insisted on disarming him before they left for the station and in the process shot him in the stomach. Upon arraignment the Appellant pleaded not guilty to the charge and the case proceeded to hearing. In his defence, the Appellant raised the defence of accident, self-defence and defence under the Police Force Order 237. At the conclusion of the trial, the Lower Court found the Appellant guilty as charged. He was convicted and sentenced accordingly. Dissatisfied with the judgment of the lower court, the Appellant appealed to the Court of Appeal.
HELD
Appeal Dismissed
ISSUES
Whether the Learned Lower Court Judge properly evaluated the evidence tendered before itWere there material conflicts in the evidence of the Prosecution Witnesses which rendered the evidence tendered by the Prosecution unreliable and can be conviction of the Appellant based on such unreliable evidence be sustained and upheld?Whether the Learned Lower Court Judge was right when he held that the defence of self-defence; accident and the defence available to the accused person (Appellant) under the Police Force Order 237 do not avail the Appellant in this case?Whether the Judgment of the Learned Lower Court Judge is not unreasonable and unwarranted in the circumstances?
RATIONES DECIDENDI
INTENTION TO CAUSE GREVIOUS BODILY HARM – HOW AN INTENTION TO CAUSE GREVIOUS BODILY HARM IS ESTABLISHED
“See the case of Chukwunyere vs. State (2014) LPELR 23779 where Mbaba JCA quoted with approval the English case of Hyam vs. DPP (1974) 2 All ER Pg 43. The House of Lords held:
“an intention to cause death or grievous bodily harm is established if it is proved that the accused deliberately and intentionally did an act knowing that it was probable that it will result in death or grievous bodily harm to the victim”
Lord Hailsman commenting on this in the case of Hyam vs. DPP [supra) said:
“If a man in full knowledge of danger involved without lawful excuse deliberately does that which exposes a victim to the risk of probable grievous bodily harm or death and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to the extent as if he had actually intended the consequence to follow irrespective of whether he wishes it”
See also Garuba vs. State (2001) 2 ACLR Pg 221”. – PER U.I.NDUKWE-ANYANWU, J.C.A
DEFENCE OF ACCIDENT- DUTY OF AN ACCUSED PERSON WHO RELIES ON THE DEFENCE OF ACCIDENT
“An accused person seeking to rely on the defence of accident must explain how the accident occurred and be subjected to cross examination. Where he fails to testify, the law would presume that the defence is not given in evidence. Where also he fails to prove the accident by credible evidence, it is bound to fail. R v. Akerele (1941) WACA Adekunle vs. State (2006) 14 NWLR Pt 1000 Pg 717.” PER U.I.NDUKWE-ANYANWU, J.C.A
INTENT TO KILL- HOW AN INTENT TO KILL CAN BE ESTABLISHED
“The law is settled that an intent to kill can be inferred from the nature of the wound inflicted on the deceased per Uwais CJN as he then was in the case of Orisakwe vs. The State (2004) 12 NWLR Pt 887 Pg 258 Ejelikwu vs. State (1993) 7 NWLR Pt 307 Pg 534.In the English case of Hyam vs. DPP (1974) 2 All ER Pg 43. The House of Lords held:
“An intention to cause death or grievous bodily harm is established if it is proved that the accused deliberately and intentionally did an act knowing that it was probable that it will result in death or grievous bodily harm to the victim”
Lord Hailsman commenting on this in the case of Hyam vs. DPP (supra) said:
“If a man in full knowledge of danger involved without lawful excuse deliberately does that which exposes a victim to the risk of probable grievous bodily harm or death and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to the extent as if he had actually intended the consequence to follow irrespective of whether he wishes it”
See also Gamba vs. State (2001) 2 ACLR Pg 221.” PER U. I. NDUKWE-ANYANWU, J.C.A
CONVICTION IN A CHARGE OF MURDER – INGREDIENT THE PROSECUTION MUST PROVE TO SECURE A CONVICTION IN A CHARGE OF MURDER
“It is well settled that in order to secure a conviction in a charge of murder, the prosecution must prove:
a. that the deceased had died
b. that the death of the deceased was caused by the accused
c. that the act or omission of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence,
Ubani vs. State (2003) 18 NWLR Pt 851 pg 224, Uguru vs. State (2002) 9 NWLR Pt 771 pg 90, Igabele vs. State (2006) 6 NWLR Pt 975 Pg 100, Adava vs. State (2006) 9 NWLR Pt 984 Pg 155.” PER U.I.NDUKWE-ANYANWU, J.C.A
MURDER -PROOF OF MURDER
“In a murder charge, the onus is on the prosecution to prove beyond reasonable doubt, not only that the act of the accused person could have caused the death of the deceased but that it actually did. Audu vs. State (2003) 7 NWLR Pt 820 Pg 516 Uguru vs. State (supra).” PER U.I.NDUKWE-ANYANWU, J.C.A
CRIMINAL RESPONSIBILITY – A PERSON IS NOT CRIMINALLY RESPONSIBLE FOR AN ACT WHICH OCCURRED BY ACCIDENT – MEANING OF ACCIDENT
“It is trite that a person is not criminally responsible for an act or omission which occurred independently of the exercise of his will, or for an event which occurred by accident “Accident means an event without apparent cause, unexpected, unforeseen cause of events, unintentional act, chance etc” Agbo vs. State (2004) 7 NWLR Pt.873 Pg. 546, Onyia vs. State (2006) 11 NWLR Pt.991 Pg. 267.” PER U.I.NDUKWE-ANYANWU, J.C.A
CASES CITED
STATUTES REFERRED TO
Criminal Code, Cap 32 Vol. 2 Laws of Lagos StatePolice Force Order 237