IN THE SUPREME COURT OF NIGERIA

ON THURSDAY, THE 14TH DAY OF JUNE 1984

SC 51/83

BETWEEN

RASAKI AREMU ....................................................... APPELLANT

AND

THE STATE .......................................................... RESPONDENT

BEFORE: Irikefe C.J.N., Obaseki, Eso, Aniagolu, Nnamani, JJ.S.C.

The appellant a night guard employed to guard two premises, had shot at and killed with his dane gun a man who he alleged was among a group of men who had come to burgle one of the premises he had to guard which contained cement. There was no direct evidence of the shooting quite apart from the admission by the appellant. There was evidence by 4th P.W. that he heard the report of a gun and that the appellant had told him that he had just shot a burglar. 4th P.W. said he had not seen any group of robbers running away and that in any event the spot where the slain robber was, was quite some distance to the premises being guarded by the appellant. There was evidence that the deceased died about 300 yards from the said premises.

In his defence the appellant denied shooting at the deceased, but rather alleged that when surrounded by the burglars a struggle ensued between him and them for possession of the dane gun and that in the process one of the burglars accidentally pulled the trigger with the resultant effect that one of the marauders got killed.

In his extra–judicial statement the appellant stated that he had pursued the robbers while he held his dane gun which he thought would not fire and that in the course of this pursuit he fired and this brought down one of the burglars who later turned out to be the deceased.

The trial Judge did not believe the defence of the appellant, he therefore convicted the appellant for murder and sentenced him to death. His appeal to the Court of Appeal was dismissed. The appellant further appealed to the Supreme Court.

HELD:

(1) In this case the only evidence is that appellant shot and killed the deceased some 300 yards from the scene of an alleged burglary. With this evidence and no more, it would be dangerous in the extreme to uphold the conviction of the appellant for murder. In the result having regard to the circumstances in which the shooting occurred, I would discharge and acquit the appellant of murder as charged. He is however guilty of manslaughter and ought to have been so convicted.

Appeal allowed.

Chief Debo Akande, with Mr. C. O. Tugbobo and J.K. Agbaje (Miss) for the Appellant.

Mr. R.A. Bello principal State Counsel, Ogun State, with him Mr. O.E. Awazie, State Counsel, Ogun State for the Respondent.

Irikefe J.S.C. The appellant was convicted of the murder of the deceased in the Ogun State High Court sitting at Abeokuta by ABIMBOLA, J. and sentenced to death. On appeal to the Court of Appeal, both the prosecution and the defence stated that they had nothing useful to urge in favour of the appellant and thereupon his appeal was dismissed.

Before us Chief Akande for the appellant sought our leave to urge the ground that the evidence produced was inadequate to support the charge as laid. The evidence produced by the prosecution was that the appellant, a nightguard employed to guard two premises, had shot at and killed with his dane gun a man whom he alleged was among a group of men who had come to burgle one of the premises he had to guard which contained cement. There was no direct evidence of the shooting quite apart from the admission by the appellant. There was evidence by 4th P.W. that he heard the report of a gun and that the appellant had told him that he had just shot a burglar. 4th P.W. said he had not seen any group of robbers running away and that in any event the spot where the slain robber was, was quite some distance to the premises being guarded by the appellant. There was evidence that the deceased died about 300 yards from the said premises.

Although there was evidence that there was a burglary or an attempt at one, not an iota of evidence came out in the course of the trial as to whether there was a stock of cement in the store which the appellant was employed to guard or much more importantly whether the store was in fact broken into or an attempt made to break into same.

In his defence the appellant denied shooting at the deceased, but rather alleged that when surrounded by the burglars a struggle ensued between him and them for possession of the dane gun and that in the process one of the burglars accidentally pulled the trigger with the resultant effect that one of the marauders got killed. In his extra-judicial statement, the appellant stated that he had pursued the robbers while he held his dane gun which he thought would not fire and that in the course of this pursuit he fired and this brought down one of the burglars who later turned out to be the deceased. These two versions were clearly mutually exclusive and it seems to us clear that faced with such a situation the learned trial Judge was right in saying that he did not believe the defence of the appellant. But this cannot be the end of the matter. Believed or not the prosecution still had a duty to prove the guilt of the appellant as required by law.

In this case the only evidence is that the appellant shot and killed the deceased some 300 yards from the scene of an alleged burglary. With this evidence and no more it would be dangerous in the extreme to uphold the conviction of the appellant for murder. In the result having regard to the circumstances in which the shooting occurred, I would discharge and acquit the appellant of murder as charged. He is however guilty of manslaughter and he ought to have been so convicted.

The appellant is accordingly guilty of manslaughter on the charge brought against him and I would convict him as such. The appellant is sentenced to 2 years imprisonment with hard labour, and having on the record been convicted at his trial on 14th, 1982, this means that he is entitled to be discharged from prison custody forthwith.

Obaseki J.S.C. I agree with the judgment just delivered by my learned brother, Irikefe, J.S.C. and I adopt it as my own.

I would in the circumstances acquit the appellant of the offence of murder, but convict him of manslaughter. There was no evidence of investigation of the allegation of the appellant that there was burglary or that the deceased was one of the burglars he pursued for 300 yards before he fired the gun.

The prosecution had a duty to carry out such investigation.

I would allow the appeal, set aside the conviction of the appellant of the offence of murder passed by the High Court and acquit him of that offence. Instead, I hereby find him guilty of manslaughter and convict him of manslaughter.

The conviction and sentence passed by the High Court and affirmed by the Court of Appeal are hereby set aside. Instead, the accused person is hereby sentenced to two years imprisonment with hard labour for manslaughter as passed by Irikefe, J.S.C.

E.S.O. J.S.C. I am in full agreement with the judgment first read by my learned brother Irikefe J.S.C. The appellant in the circumstances presented to court could not justifiably be convicted of murder.

There was no investigation whatsoever of the only circumstance that could have thrown light on the act of the appellant. His story that there was burglary of the premises he guarded was consistent throughout, but it was never investigated, far less disputed by the police. Even then, the learned trial Judge said he was in no doubt there was no burglary. One could ask, upon what evidence?

However, in regard to the act of killing of the deceased there is no defence by the appellant as to how it happened, he having destroyed his own defence by his lies. The killing goes unexplained and this will not justify an acquittal.

I agree that the appellant be found guilty of manslaughter, convicted and sentenced as contained in the judgment of my learned brother, the Presiding Justice, Irikefe, J.S.C.

Aniagolu J.S.C. I am in agreement with the judgment just read by the Presiding Justice, Irikefe, J.S.C. The circumstances do not, obviously, justify a conviction for murder. The appellant’s persistent story that there was a burglary was not investigated, as it ought to have been investigated, by the police. Having regard, however, to the conflict in the story the appellant put forward as to the circumstances under which the gun was fired, it cannot be conclusively said that he fired in self-defence.

Accordingly, the sure verdict which in law, the circumstances can support is one of manslaughter. I agree with the verdict of manslaughter returned by the Presiding Justice and the sentence passed thereon. The appellant is acquitted of the charge of murder. The appeal to that extent is allowed.

Nnamani J.S.C. I also agree with the judgment just read by the learned Presiding Justice, Irikefe, J.S.C. It is my view that the appellant ought not to have been convicted of murder. One thing that ran through the whole defence of the appellant from the earliest time was that there was a burglary of the premises he was guarding but this very crucial issue was not investigated by the police. As to the issue of manslaughter it is clear to me that there was a conflict between the account of the incident in the appellant’s statement to the police and that he gave in court. In those circumstances one is left with no defence by the appellant to the charge. Since, however, there is no evidence as to the circumstances in which the appellant killed the deceased, he ought to be convicted of manslaughter. I would therefore discharge and acquit the appellant of the charge of murder and convict him instead of manslaughter. The sentence is as pronounced by my learned brother Irikefe, J.S.C.