This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on the 22 day of November 2013 setting aside the appellant’s conviction and sentence for murder contrary to Section 316(3) of the criminal Code Cap 1 laws of Lagos State 2003 and substituting in its place a conviction and sentence for manslaughter contrary to Section 317 of the same code.
Respondent’s case at the Lagos State High Court, hereinafter referred to as the trial court, is that the appellant, a policeman, on the 5th April 2009 shot and killed three year-old Kafusara Muritala. Along with four other police officers, the appellant was deployed to Obanle-Aro/Mr. Biggs axis of Ketu Alapere, in Lagos, to prevent criminal activities of hoodlums. The team mounted a check point at the black spot. On the fateful day, PWl Muritala Saliu, his wife, the deceased and some other passengers were being conveyed by one Saheed in a Nissan Sunny Saloon car towards mile 12 from a naming ceremony in a friend’s house. At about twelve meters from the check point and soon after the sound of a gunshot, Kafusara’s mother on noticing the deceased had slumped raised alarm. PWl, the deceased’s father, the vehicle having stopped, carried the deceased back to the check point shouting profusely that the police had killed his daughter. Further to the complaint lodged on the incident and the investigation conducted thereon, the appellant, who had confessed shooting at the tyres of the vehicle in which the family of the deceased were being conveyed, was arraigned, convicted and sentenced to death for the murder of the deceased. Dissatisfied, the appellant appealed to the Court of Appeal Lagos Division which decision of 22nd November, 2013 allowed the appeal in part. Still aggrieved, the appellant has further appealed to this Court on a notice filed on l6th December, 2013 containing ten grounds.
At the hearing of the appeal counsel identified, adopted and relied on parties respective briefs of argument. At page 3 of the appellant’s brief of argument settled by Emmanuel Umoren Esq and deemed duly filed and served on 11th January, 2018 the six unnecessarily prolix issues distilled read:
- Whether from the facts and circumstances of this case, the Court of Appeal was right to hold that the deceased died of gunshot and the failure of the Respondent to tender the post mortem report was not fatal to its case. (Ground 2).
- Whether from the facts and circumstances of this case, the Court of Appeal was right in law to convict the Appellant for the offence of manslaughter. (Grounds 7 and 8)
- Whether in a murder charge which attracts capital punishment, the Court of Appeal was right to ignore and or fail to consider the various defences open to the Appellant or raised by the Appellant. (Grounds 1 and 4).
- Whether from the facts and circumstances of this case, the Court of Appeal denied the Appellant his constitutional right to fair hearing” (Grounds 3 and 5)
- Whether the Court of Appeal was right when in sentencing the Appellant, it refused to follow the binding decision of the Supreme Court in OMINI V. STATE (1999) 12 NWLR PART 630 PAGE 168. (Ground 9).
- Whether from the facts and circumstances of this case, the Court of Appeal was right to sentence the Appellant to life imprisonment for the offence of manslaughter. (Grounds 6 and 10).”
For the purpose of the case at hand, it appears that in resolving appellant’s 2nd issue, his 5th and 6th issues it subsumes will equally be resolved. Though appellant’s 1st 2nd, 3rd and 4th issues are glaringly similar to respondent’s four issues, the latter’s issues, being better couched, shall however inform the determination of the appeal.
On the 1St and 2nd issues, learned appellant’s counsel submits that to secure conviction, the law places the burden of proving all the ingredients of the offence, the appellant is charged with beyond reasonable doubt on the respondent. It is not enough for the respondent to establish the fact of death of a human being. For the court to convict the appellant, it is submitted, respondent must further link the death with the act of the appellant done with the intention or knowledge that death of his victim was probable. The report of the postmortem carried out by DW3, which the respondent failed to tender, is necessarily required to establish the cause of death. Furthermore, it is argued, not only are there material contradictions in the evidence of the prosecution witnesses, the evidence of some of them which are in support of the appellant’s case are withheld from the court. The law, it is submitted, does not allow the respondent to conceal any fact even where it supports the appellant’s case from the court, where it does so, the prosecution is liable to loose-its case. Relying inter-alia on Section 135 of the Evidence Act 2011 Eziegbo v. ‘State (2012) 16 NWLR (Pt 1326) 318, Ahmed v. State (2001) 18 NWLR (Pt 746) 622, Omini V. State (1999) 12 NWLR (Pt 630) 168, learned counsel submits that the decisions of the two courts on the guilt of the appellant though concurrent, not having drawn from the evidence on record, is not sustainable.
Assuming without conceding that evidence abound in proof of manslaughter against the appellant, it is further argued, the sentence imposed on the appellant by the lower court is excessive. The appellant, it is contended, had urged the lower court to comply with the Supreme Court’s decision in 0mini V. State (1999) 12 NWLR‘(Pt 630) 168 by reducing appellant’s sentence to ten years. Notwithstanding the lower Court’s findings at pages 219 and 227 of the record that the facts of the instant case are on all fours with those in 0mini V. The State (supra), the court, learned counsel contends, all the same refused to reduce the sentence to ten years as was done in 0mini V. State (supra). Learned counsel submits that it is wrong of the lower court to have so refused. Relying on m Odulami V. Nigerian Navy (2013) 12 NWLR (Pt 1367) 20, he urges that this Court invokes its powers to reduce the sentence in enforcing compliance with its decision by the lower court. Learned counsel prays that the two issues be resolved in appellants favour.
Firstly, cases are authorities for what they decided. The doctrine of stare-decisis learned appellant’s counsel asserts the lower court has violated is about past decisions of courts binding them in subsequent occasions where the facts and legislations applicable to the settled facts are same or similar to, those the courts earlier pronounced upon. Our case law has remained consistent on this principle. It is therefore settled that a court lower in the judicial ladder is bound by its own or the ratio decidendi of a higher court in an earlier case, if the issues of fact and the legislation the court considers subsequently are same or similar. See Dr. Umar Ardo V. Admiral Murtala Nyako & ors. (2014) LPELR-22878 (SC) and 0Nigeria Agip Oil Company Ltd V. Chief Gift Nkweke (2016) LPELR-25050 (SC). Where the lower court, as in the instant case, holds itself bound by the decision of this Court on same or similar facts, appellant’s grudge against the lower court’s decision cannot, therefore, be taken seriously. See Dalhatu V. Turaki (2003) 15 NWLR (Pt 843) 310 and Nobis-Elendu V. lNEC & ors (2015) LPELR-25127 (SC).
The appellant in the instant case, like the appellant in the Omini v. State case (supra) the lower court is alleged to have circumvented, was tried and convicted for the offence of murder. The decision of this Court the lower court lavishly reproduced in its judgment, see pages 223 224 of the record, inter-alia reads:
“It seems to me that the trial Judge having found as a fact, which was accepted by the Court of Appeal, that the death of the deceased was as a result of the act of the Appellant, the shooting which resulted in the death of the deceased was as a result of the culpable disregard of his legal duty to take care, but without the necessary intent. The intention of Appellant was clearly to shoot at the vehicle. If as it appears from the evidence he failed to exercise sufficient care and consequently resulting in the death of the deceased, it seems to me that the action comes clearly within the purview of Section 317 of the Criminal Code. The Court below regrettably failed to direct its mind to this aspect of the law. The trial Judge ignored this part of the evidence before him and therefore came to the erroneous conclusion that the prosecution proved the offence of murder beyond reasonable doubt. The reason why the judgment of the trial judge should be set aside is that the prosecution having not proved that Appellant intended to cause the death of the deceased, the offence of manslaughter because in complete and culpable disregard of his legal duty to take care in the handling of his gun in the discharge of his lawful duty, his act resulted in the death of the deceased. ‘See Onah v. The State (1977) 7 SC 69.”
In submitting to the foregoing decision of this Court, the lower court at pages 224 225 of the record enthused thus:
“I most respectfully borrow and rely in toto on the binding words of the Supreme Court in Omini v. State (supra) to allow the appeal by setting aside the verdict of murder entered against the appellant by the court below and quashing the sentence of death passed on the appellant by the court below for the murder of the deceased under Section 316(3) 0f the Criminal Code and substitute in its place a conviction of the appellant for the lesser offences of manslaughter as defined under Section 317 of the Criminal Code CapC.17 Laws of Lagos State, 2004, and punishable under Section 325 of the same Code read with section 19(3) of the Court of Appeal Act, 2003.
Considering the seriousness of the crime of manslaughter which by Section 325 of the Criminal Code states that ’any person who commits the offence of manslaughter is liable to imprisonment of life’, I hereby impose the sentence of imprisonment for life on the appellant for manslaughter accordingly.”
By correctly binding itself to the earlier decision of this Court on all fours with the matter it decided in the foregoing, appellant’s allegation of impertinence against the lower court is, clearly, unsustainable. Appellant’s grudge under the 2nd issue is thus baseless. The issue is resolved against him.
On the whole, I find no merit in the appeal and accordingly dismiss same. The concurrent judgments of the two courts below are hereby further affirmed.
Emmanuel Umoren Esq. for the Appellant.
R.A.O. Adegoke with Oluwaseye Afolabi, for the Respondent.
All rights reserved. This material, and other digital content on this website, may not be reproduced, published, broadcast, rewritten or redistributed in whole or in part without prior express written permission from LEADERSHIP Nigeria Newspapers. Contact: [email protected]