When Defence of Accident Will Avail an Accused Person

In the Supreme Court of Nigeria   Holden at Abuja   On Friday, the 4th day of June, 2021   Before Their Lordships

Mary Ukaego Peter- Odili  Kudirat Motonmori Olatokunbo Kekere-Ekun

John Inyang Okoro, Adamu Jauro, Akomaye Agim

Justices, Supreme Court SC. 1092/2017

Between

P.C. Imo Akpakpan Appellant And The State Respondent

(Lead Judgement delivered by Honourable Mary Ukaego Peter-Odili, JSC)

Facts

On the 5th day of August, 2010, the Appellant murdered one Idongesit Okon Tom. The Appellant, who was a Police Constable, was on patrol duty with four other Police officers from D division, Itam, Uyo. In the course of duty, the Appellant conducted a stop and search, and eventually stopped the deceased who had no particulars for his motorcycle. The team was headed by PW1, who directed all the Police officers to put the deceased’s motorcycle without particulars into the Police vehicle, and for the Police vehicle to move the impounded motorcycle to the Police station. While the vehicle was about making a U-turn, the Appellant deliberately jumped down from the van, cocked his AK47 rifle and shot at the deceased. The bullet hit the tarred floor, re-bounced and pierced through the deceased’s stomach; he died two weeks later in the hospital.

PW1, PW2, PW3 and PW4, who are Police officers, all testified in their statements against the Appellant. The oral evidence of the Appellant was contrary to what the Appellant said in his extra-judicial statement to the Police, regarding how the gun was fired. The learned trial Judge did not believe the evidence of the Appellant. He was found guilty of manslaughter, and sentenced to life imprisonment. The Appellant appealed against this decision, while the Respondent filed a Cross-appeal challenging the conviction for manslaughter by the trial court. The Court of Appeal dismissed the Appellant’s appeal, and allowed the Respondent’s Cross Appeal. The court found the Appellant guilty of murder, and sentenced him to death by hanging. Dissatisfied with the judgement of the appellate court, the Appellant appealed to the Supreme Court.

Issue for Determination

The sole issue for determination was:

“Whether having regard to the totality of evidence before the court, there was miscarriage of justice when the Court of Appeal held that the defence of accident put forward by the Appellant did not avail him, and therefore, convicted the Appellant for murder and sentenced him to death by hanging.”

Arguments

Advancing arguments on the sole issue, counsel for the Appellant stated that the extra-judicial statement of the Appellant negates any intention of the Appellant to kill or cause grievous bodily harm to the deceased. Counsel contended that the Appellant raised the defence of accident and same was corroborated by PW1 and PW4, but the trial court failed to consider the said defence which occasioned miscarriage of justice. He submitted further that, the court below was in error when it held that it was immaterial whether the bullet hit the tarred road before hitting the deceased or hit the deceased before hitting the tarred road, which decision showed the unwillingness of the court below to countenance any defence of accident. Counsel relied on the decision in AMAYO v STATE (2001) 18 NWLR (Pt. 745) 251. He argued further that there was no contradiction in the extra-judicial statement of the Appellant, as against his oral testimony; hence, the reliance of the court below on the case of EDOKO v THE STATE (2015) All FWLR (Pt. 772) 1728, was misplaced. It was also his position that the substitution of the sentence of life imprisonment for death by hanging, was erroneous. Counsel reasoned that since the trial court found that the death of the deceased occurred by accident, it therefore, gave a verdict of manslaughter and not murder, as found by the Court of Appeal. He contended that the court below glossed over the submission of the Appellant, which led to a miscarriage of justice and if the contentions of the Appellant had been given its due consideration, the decision of the court would have been different. He relied on the decision in THE STATE v BABANGIDA JOHN (2013) 543 NSCQR 1903. He urged the Supreme Court, to interfere with the decision of the Court of Appeal.

In response to the submissions above, the Director of Public Prosecution, Ministry of Justice, Akwa Ibom State, argued on behalf of the Respondent that there was no miscarriage of justice occasioned, and the court below was right to have rejected the defence of accident and convicted the Appellant for murder of the deceased. Counsel contended that the oral evidence of the Appellant was unreliable; hence, the two courts below labelled it an afterthought – STATE v AJIE (2000) 11 NWLR (Pt. 678) 434. He submitted further that, all the ingredients of the offence of murder were satisfactorily proved by the Respondent.

Court’s Judgement and Rationale

In deciding the sole issue, the Supreme Court held that in a long line of judicial authorities, it has become well settled that the burden of proof in all criminal cases is upon the Prosecution to prove guilt of the accused person beyond reasonable doubt, and in like manner, in a plethora of cases the essential ingredients of murder which must be established to secure a conviction are as follows: That the deceased died, that the death of the deceased resulted from the act of the Appellant, and that the said act of the Appellant was intentional with knowledge that death or grievous bodily harm was its probable consequence.

The Apex Court held that on the first ingredient, the death of the deceased under discourse was not in dispute, as even the Appellant conceded that fact. Also, the investigative evidence of PW4 who saw the corpse, the photographs and the post mortem report confirm that the deceased died. This finding of fact was also confirmed by the courts below, putting it beyond argument that the first element of murder has been proved beyond reasonable doubt.

On the second ingredient which is that the death of the deceased resulted from the act of the Appellant, the Apex Court held that there is really no debate as to this issue. Taking a community consideration of the evidence of PW1, PW2, PW3 and PW4 together with Exhibit 1, the extra-judicial statement of the Appellant, the fact of the consequence of the act of the Appellant in firing the gun being the death of the deceased, was proved beyond reasonable doubt. The court relied on UGURU v STATE (2002) FWLR (Pt. 103) 330, in support of its finding. The Supreme Court stated that there is, however, need to bring in the point as to whether or not the firing at the deceased was deliberate as the Prosecution posited, or whether it was accidental as the Appellant contended. The Apex Court stated in this respect, that evaluation of relevant and material evidence before the court and the ascription of probative value to such evidence are the primary functions of the trial court which saw, heard and assessed the witnesses while they testified. Where the trial court unquestionably evaluates the evidence and justifiably appraises the fact, it is not the business of the Appellate court to substitute its own views for the views of the trial court.

In respect of the third ingredient of murder, the court held that the angle taken by the Appellant revolves around this third element of the offence which is the defence of accident put up by the Appellant. Accident is an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events, or that would be reasonably anticipated. It is therefore, incumbent on the Prosecution to disprove accident when raised by the accused person. Nonetheless, it is settled beyond equivocation that the defence of accident will not admit a deliberate action, even if the accused person did not intend the result of his action – ADEGBOYE v THE STATE (2017) LPELR-42099(SC). ….An accused person cannot take refuge in a defence of accident for a deliberate act, even if he did not intend the eventual result. Thus, the Appellant, who cocked his gun and fired same at the deceased, causing his death, cannot find refuge by relying on the defence of accident.

For a conviction to lie in the charge of murder, the Prosecution must prove the criminal intent of an accused person to cause grievous bodily harm and this can be gleaned from the weapon used and the part of the body targeted. In this instance, where the Appellant used a dangerous weapon, being an AK47, his service rifle in attacking the deceased by shooting, the court has the liberty to infer the intent to cause grievous bodily harm which resulted in the death of the deceased – NWOKEARU v STATE (2013) ALL FWLR (Pt. 689) 1040. It is now trite that a man is presumed to intend the natural outcome of his act. In this case, the Appellant by his action is presumed to have intended to send the deceased to an untimely death. It would be unreasonable and hostile for the law to presume otherwise, that is, want of intention in favour of the Appellant. The court held that all the ingredients of the offence of murder were satisfactorily proved by the Respondent. No miscarriage of justice was occasioned, as the defence of accident did not avail the Appellant having been so considered by the court below.

Regarding the submission that the Court of Appeal erred to have substituted the verdict of life imprisonment for death and convicted the Appellant for murder without considering the defence of accident, their Lordships held that the Respondent having cross-appealed against the conviction and sentence of the trial court, and going by the evidence on record, the appellate court was right to have found the Appellant guilty of murder and sentenced him to death by hanging. The court relied on the case of STATE v BABANGIDA JOHN (Supra). The court below having made findings concurrently with those of the trial court, the Supreme Court could not fault or disturb such findings of fact, or redirect the appropriate punishment as covered by the law, when there is no basis to upset what the court below did.

Appeal Dismissed.

Representation

Lawrence S. Oko-Jaja with Malcolm K. Ikyegh for the Appellant.

Joseph Umoren (D.P.P, MOJ Akwa Ibom) with Godwin Udom (ACSC), and Akaninyene Akpan (ACSC)s for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)