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CRIMINAL LAW AND PROCEDURE-DEFENCE OF ACCIDENT, APPEAL- GROUNDS OF APPEAL, LAW OF EVIDENCE-STANDARD OF PROOF, INTERPRETATION OF STATUTES

SUMMARY OF FACTS:

The Appellant was arraigned and convicted at the trial court on a single count of manslaughter contrary to Section 235 of the Criminal Code Law Cap. 29 Laws of Ogun State of Nigeria 1978. Dissatisfied with the judgment of trial court the Appellant appealed to the Court of Appeal and the Court affirmed the decision of the trial court. The Appellant has further appealed to this court.

HELD

Appeal dismissed

ISSUES:

Whether the prosecution proved a case of manslaughter against the appellant sufficient to warrant a conviction by the trial court? (Ground 1 & 2)

RATIOS:

MANSLAUGHTER- DEFINITION OF THE TERM “MANSLAUGHTER”

“In Ejeka V. The State (2003) 7 NWLR (Pt.819) 408 @ 423 F, this court per Tobi, JSC held: “Manslaughter is an unintentional killing of a human being. Such a killing is not pre-meditated but accidental, in the sense that it was not intentional.” PER KEKERE-EKUN, J.S.C

DEFENCE OF ACCIDENTAT WHAT POINT WILL AN EVENT OR AN ACT COMMITTED BE DEEMED ACCIDENTAL

“Negligent act of the appellant in this case can be inferred from the prevailing circumstances. The learned trial Judge rightly inferred negligence in the act of the appellant who shot the deceased who was retreating. The Court below at page 133 of the record agreed with the finding of the learned trial Judge in this regard. The Appellant who was in close proximity to the deceased should have uncorked his rifle, if as he stated, he had no intention to fire it. The defence of accident as raised by the appellant under Section 24 of the said Criminal Code Law of Ogun State.

States thus. “….a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or an event which occurs by accident.” Applying the objective test to this case in determining whether or not the shooting of the deceased was an accident or not, it cannot be said that the shooting of the deceased occurred independently of the exercise of the appellant’s will or by accident. In MAIYAKI v. STATE (supra) at page 204, this Court held as follows: “An event is said to be accidental when the act by which it is caused is not done with the intention of causing it and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, in the circumstances in which it is done, to take reasonable precautions against it.” It is in the case of APUGO v. THE STATE (2007) 2 NCC. 32 at 41 this Court per my brother ONNOGHEN JSC, reviewed clearly the provisions of section 315 of the Criminal Code, (supra) when he held thus: “From the above provisions of Section 315 of the Criminal Code it is very clear that for a killing to amount to manslaughter it must not only be unauthorized or unjustified or not excused by Law, it must also result from the direct or indirect act of the accused person. In short the death must be caused by the unlawful act of the accused person.” PER GALADIMA, J.S.C

GROUNDS OF APPEAL- WHETHER PARTICULARS OF GROUNDS OF APPEAL CAN STAND INDEPENDENT OF THE GROUNDS OF APPEAL

“The law is settled that the particulars of a ground of appeal must not be an independent complaint from the ground of appeal itself but should be ancillary to it. Where the particulars of a ground are inconsistent with the main complaint in the ground, the particulars must be discountenanced.” PER

KEKERE-EKUN, J.S.C

ISSUES FOR DETERMINATION- WHETHER MORE THAN ONE ISSUE CAN BE DISTILLED FROM A SINGLE GROUND OF APPEAL

“…it is by now well settled that the proliferation of issues for determination is always frowned upon by the appellate courts. While an issue for determination may be distilled from more than one ground of appeal, it is improper to formulate more than one issue from a single ground of appeal. A. ground of appeal must also be predicated upon the decision appealed against. As far back as 1990 this court in Egbe V. Alhaji & Ors. (1990) 1 NSCC (Vol. 21) (Part I) 306 @332held: “Issues for determination in the appeal must be consistent and fall within the scope of the grounds of appeal filed. The issues cannot be formulated to be wider than the grounds of appeal from which they derive their existence. Indeed the grounds of appeal must relate to the decision and should be a challenge to the validity of the ratio of that decision.” Also in: Agbetoba V. Lagos State Executive Council (1991) 4 NWLR (Pt.188)664; (1991) 6 SCNJ 1 @ 12, Karibi-Whyte, JSC stated: “This court has consistently and in several decisions advised counsel formulating issues for determination arising from grounds of appeal to avoid prolixity and keep closely within the confines of the grounds of appeal relied upon. The ideal is to formulate an issue as encompassing more than one ground of appeal. It is not only undesirable but also confusing to split a ground of appeal into more than one issue. The practice of splitting grounds of appeal is likely to confuse consideration of principal issues with subsidiary issues” PER KEKERE-EKUN, J.S.C

OFFENCE OF MURDER OR MANSLAUGHTER- EFFECT OF SECTIONS 315, 316 & 317 OF THE CRIMINAL CODE

“Section 315 of the Criminal Code provides: “Any person who unlawfully kills another is guilty of an offence, which is called murder or manslaughter, according to the circumstances of the case.” Section 316 sets out the circumstances in which an unlawful killing would amount to murder. Section 317 provides: “A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter.” In a review of the above provisions this court in: Apugo v. The State (2007) 2 NCC 30 @ 41 E held per Onnoghen, JSC: “From the above provisions of Section 315 of the Criminal Code it is very clear that for a killing to amount to manslaughter it must not only be unauthorised or unjustified or not excused by law, it must also result from the direct or indirect act of the accused

person. In short the death must be caused by the unlawful act of the accused person. In the case of: Uyo V. A.G., Bendel State (1986) 1 NWLR (pt.17) 418: (1986) All NLR 126 this court referred to and relied upon the dictum of the West African Court of Appeal (WACA) in R. V. Oledinma (1940) 6 WACA 202 that: “To establish a charge of murder or manslaughter, it must be proved not merely that the act of the accused could have caused the death of the deceased but that it did” The position of the law is that no matter how reckless the conduct of the accused might be, so long as the killing that resulted from his act was not intended, the act would not fall within the provision of Section 316 of the Criminal Code and therefore would not constitute murder.See: Omini V. The State (1999) 12 NWLR(pt.630) 168 @ 182 A. See also: Shosimbo v. The State (1974) All NLR 603; (1974) 10 SC 69 wherein it was held that in establishing the offence of manslaughter, it is not necessary to prove any intent to kill or do grievous bodily harm provided there is proof that the unlawful act of the accused caused some harm to the deceased, which harm caused his death. “PER KEKERE-EKUN, J.S.C

STANDARD OF PROOF-ON WHOM LIES THE BURDEN OF PROVING ITS CASE BEYOND REASONABLE DOUBT AGAINST THE ACCUSED

“The duty of the prosecution is to establish its case against the accused person beyond reasonable doubt as enjoined by Section 135 (1) of the Evidence Act 2011 (as amended). Section 135 (3) of the Act provides that if the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt shifts to the defendant. The position of the law is that the legal burden of proving its case against the accused person beyond reasonable doubt rests squarely on the prosecution and never shifts. However the burden of introducing evidence on an issue, known as the evidential burden, may be placed by law on either the prosecution or the defence depending on the facts and circumstances of the case. SeeEsangbedo V. The State (1989) NWLR (Pt.113) 57 @ 69 – 70 H – A.; Woolmington V.D.P.P. (1935) A.C. 462. Where the evidential burden placed on a party in respect of a particular issue is not discharged, the issue would be resolved against the party without much ado.” PER KEKERE-EKUN, J.S.C

TAINTED WITNESS– THE MEANING OF TAINTED WITNESS

“It has been held that a tainted witness is a witness who may or may not be an accomplice but who by the evidence he gives (whether as witness for the prosecution or for the defence) may be regarded as having some purpose of his own to serve.” PER KEKERE-EKUNJ.S.C