CORAM

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PARTIES

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INSPECTOR AKPAETTE MOSES

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THE STATE

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AREA(S) OF LAW

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Not Available

 

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SUMMARY OF FACTS

The Appellant along 3 others were arraigned before the Akwa Ibom High Court on a two count charge of conspiracy and murder. They were alleged to have killed a commercial motorcyclist while on patrol along Abak Road. Three Police men from the “C” Division of the State Police command alighted from a tricycle opposite the Federal Secretariat seized 3 motorcycles belonging to some motorcyclists amongst which was the deceased. Almost immediately, a police car also arrived at the scene with the Appellant who was the leader of the team and they met the cyclists struggling with the Policemen who impounded their motorcycles. It was in evidence that the Appellant fired 2 shots in the air and the third shot aimed at the deceased who was hit on the thigh. He blead profusely and was rushed to the teaching hospital but died before reaching the hospital. The police officers after the shooting spree entered the car and drove away from the scene of crime. The Appellant admitted firing the shots but on the excuse that he was attacked by a mob and wanted to scare them away. The trial court at the end of the trial, found the Appellant guilty of the two offences charged; namely conspiracy and murder. He was accordingly sentenced to 14 years for conspiracy and death by hanging for murder. Dissatisfied with the conviction and sentence, the Appellant has appealed to the Court of Appeal.

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HELD

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Appeal Dismissed

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ISSUES

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Whether from the totality of evidence adduced and the fact/circumstances of this case the prosecution had proved the two counts of conspiracy to murder, and murder against the Appellant and his Three co-accused beyond reasonable doubt to justify their conviction by the trial court.

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RATIONES DECIDENDI

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BURDEN OF PROOF – WHETHER THE BURDEN OF PROOF IN CRIMINAL TRIALS SHIFTS

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“It is trite that the burden of proof is squarely on the Respondent from beginning to finish in a criminal trial because it does not shift, see Nweze Vs. State (2017) LPELR-42344(SC) which held thus:
“Section 135 (2) of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See: Alabi vs. The State (1993) 7 NWLR (Pt. 307) 511 at 531; Solola vs. The State (2005) 5 SC (Pt. 1) 135.” Per GALINJE, J.S.C –

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STANDARD OF PROOF – STANDARD OF PROOF IN CRIMINAL TRIAL

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The standard of proof is also settled and it is beyond reasonable doubt as reiterated in the case of Osetola & Anor V State (2012) LPELR-9348(SC) as follows:
“Section 138 (1) of the Evidence Act makes it mandatory that the standard of proof required in criminal trials by the prosecution is proof beyond reasonable doubt. Proof beyond reasonable doubt was explained in Miller vs. Minister of Pensions 1947 2 ALL E. R. p.372 at 373 as follows: Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The Law would fail to protect the community if it admitted to fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable the case is proved beyond reasonable doubt but nothing short of that will suffice. See Lori & Anor. Vs. State 1980 12 NSCC 269.” Per RHODES-VIVOUR, J.S.C –

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OFFENCE OF MURDER – INGREDIENTS A PROSECUTION MUST PROVE TO ESTABLISH THE OFFENCE OF MURDER

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“The offence of murder has settled ingredients identified by our superior courts which must all be proved beyond reasonable doubt to justify a conviction and these were restated in the case of Idiok Vs. State (2008) LPELR-1423(SC) thus:
“It is now firmly settled that for the prosecution to succeed in a murder charge under Section 319 (1) of the Criminal Code (as in the instant case) it must prove beyond reasonable doubt that:
(i)There was a killing.
(ii)The killing was unlawful as prohibited by Section 316 of the Criminal Code.
(iii) It was the act or omission of the accused person that caused the death of the deceased.
(iv) The accused intended to cause the death of the deceased.”
See also the cases of Grace Akinfe Vs. The State (1988) 3 NWLR (PT.85) 729 @ 745; (1988) 7 SCNJ 226; Okoro Vs. The State (1988) 5 NWLR (PT.94) 255; (1988) 12 SCNJ. 191; Ogba Vs. The State (1992) 2 NWLR (PT.222) 164; (1992) 2 SCNJ. 106; Akpan Vs. The State (1994) 9 NWLR (PT.368) 347; (1994) 12 SCNJ 140; and Abogede Vs. The State (1996) 4 SCNJ. 223 just to mention but a few. In other words, where a person is charged with the offence of murder, the prosecution must prove:
(a) Whether the person alleged to have been killed is dead.
(b) The cause of death and
(c) Whether any act of the accused person is the cause of his death. See the case of Sule Ahmed (Alias Eza) Vs. The State (2001) 18 NWLR (PT. 746) 623 @ 641”. –

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OFFENCE OF MURDER – WAYS OF PROVING AN OFFENCE OF MURDER

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“On the methods or various ways an offence can be proved, several authorities have identified and settled 3 major ways which are clearly spelt out in the case of Idiok Vs. State (supra) as follows:
“The offence of murder, like all other offences, can be proved either by direct evidence or by circumstantial evidence. Direct evidence is evidence given by a witness who saw and watched the act of killing or murder. Circumstantial evidence is evidence given by a person who did not see or watch the act of killing or murder but whose evidence unequivocally leads to the commission of the offence by the accused person.” –

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DEFENCE OF SELF DEFENCE – MEANING AND NATURE OF THE DEFENCE OF SELF-DEFENCE,

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My lord EKO, JSC in Fulani Vs. State (2018) LPELR-45195 (SC) gave a detailed consideration of the defence of self defence and what it entails thus:
“Self-defence, as a defence, simply means that the accused person did the alleged act while in the process of defending either himself or some other person and that he had no pre-meditated intention to kill his Attacker or to cause him grievous bodily harm: In the instant case, there was no evidence of any premeditated intention to kill the deceased by the Appellant.”
When self-defence is not accepted, or is dismissed, the accused loses the right to be completely absolved or exonerated. Self-defence, if successfully pleaded and affirmed is a justification or excuse for the act alleged to be a criminal offence. It is a complete defence to the charge. It exonerates the accused person of any wrongdoing. The right operates on the principle that it is the first duty of man to defend himself. The right to self-preservation is biological and an inalienable right. Self-defence ordinarily casts reasonable doubts that the accused person intentionally committed the alleged offence. When it was pleaded, and from the facts it is not accepted or it is dismissed there can no question of any reasonable doubt created thereby because the mere fact of pleading it tantamount to an admission of the actus reus; justice as by the plea the accused person places on himself the evidential burden of establishing that he acted without any criminal motive or intention. The circumstance under which the plea of self-defence avails the accused person is one of facts. –

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PLEA OF SELF-DEFENCE – COMPONENTS OF THE DEFENCE OF SELF-DEFENCE -WHEN IT WILL AVAIL AN ACCUSED PERSON?

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“The accused person who used excessive force on his assailant cannot be heard to say that he had no safe or reasonable mode of retreat and that the taking of the life of one who was not even his attacker cannot justify.
Thus, as Ariwoola, JSC, restated in Afosi Vs. The State (2013) 13 NWLR (Pt.1371) 329 at 357 – 358;
“The four factual components of the plea of self-defence there are: (a) The accused person must, himself be free from fault or blame in bringing about the encounter. He must not be blame worthy, for if he was blame worthy then he cannot benefit from his own iniquity. (b) There must be present an impending peril to human life or of some grievous bodily harm. The existence of such peril must be real or an honest belief of an existing necessity. (c) There must be no state or reasonable mode of escape by retreat. (d) There must have been a necessity for taking of life. It must be borne in mind that the accused person was under a tense mental situation upon which, within a split moment, he must act. The state of his mind is material particularly that within such split-moment the accused has very limited options available to him. I should think the only accused person who can successfully plead self-defence is the one who acted at the spur of the moment to ward off the peril either to himself or to another person coming from the attacker killed. The law does not permit him to act in a manner excessive or disproportionate. The test is whether from the circumstances he acted in a manner reasonably necessary.”
The Courts though recognize that the person defending himself cannot weigh to a nicety of the exact measure of necessary defensive action: Archbold-Criminal pleading, Evidence and Practice, 40th ed, page 1239. –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Evidence Act 2011|

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