law report

law report

Lawyers group canvasses revolutionising justice system

From Eyo Charles, Calabar

A large number of lawyers, including those in the bar and bench, under the aegis of Brotherhood Lawyers International Fellowship has advocated for a complete revolutionising of the present justice delivery system in Nigeria and elsewhere.

In a statement in Calabar, chairman of planning committee, Barrister Chris Amadike, a Port Harcourt-based lawyer, said they are against impunity, increasing violation of human rights as well as court verdicts which affirm capital punishment, and high-handed legal measures to offenders.

He said many Nigerians cannot access quality legal services, and that is one of the reasons they are staging a public seminar which outcome will help to support such vulnerable ones.

Topic of the seminar which holds in Uyo, capital of Akwa Ibom State on 28 November’ is ‘Capital Punishment And Divine Prerogative of Mercy, Comparative Dispute Resolution – Religious Perspective.’

Leader of the group, Hon. Justice Archibong E. Archibong of the High Court of Justice, Akwa Ibom State said their position agrees with the theme of the seminar, which is Revolutionising the Justice System.

Lending his voice to their position in a public presentation in Calabar during the 53rd annual NBA general conference, former president of the Nigerian Bar Association, Okey Wali, SAN, said, “it is on record that at various times in Nigeria, the NBA has spoken against and challenged human rights abuse, impunity, promoted access to justice, and encouraged law groups to similarly champion same.”

A senior state counsel in Akwa Ibom State, Barrister Kris Umana, who is coordinating the seminar in that state said, even though the lawyers will raise funds for humanitarian projects initiated by the group, they will also individually compare notes on their experiences in justice delivery in the country.

LACN opens 19 law clinics, trains 5,500

By Adelanwa Bamgboye

No fewer than 19 law clinics that will provide legal services free of charge to the poor and vulnerable have been established in Kaduna State by the Legal Aid Council of Nigeria (LACN).

Mrs. Joy Bob-Manual, Director General of LACN disclosed this recently in Abuja on the occasion of the closing ceremony for Access to Justice for the Poor Project (AJPP) in civil matters in Kaduna State.

Since 2011, Access to Justice for the Poor Project (AJPP) has piloted decentralized legal services for the poor and vulnerable in Kaduna State to enable them effectively enforce their socio-economic rights and resolve civil disputes.

Funded by the World Bank’s Japan Social Development Fund (JSDF), LACN has increased access to legal services in Kaduna State by enhancing capacities of service providers and key stakeholders in terms of legal substance, dispute resolution tools and management.

The DG said that the clinics were opened across the three senatorial zones in LG secretariats with legal officers deployed by the National Youth Service Corps serving with the help of paralegals trained by the project.

According to her, more than 800,000 people were reached via legal rights awareness campaigns including large-scale awareness and outreach campaigns via radio and roadshows.

Her words: “Within the first eight months of 2015 more than 900 clients were served compared to 500 in 2014, 331 in 2013 and 36 in 2012.

“More than 5,500 people were trained on legal rights and alternative dispute resolution among them LACON, district heads and religious heads,” she said.

Mr. Sadanobu Kusaoke, Japan’s Ambassador to Nigeria in his remarks said that the World Bank has recorded a steep increase in the number of the poor and vulnerable people who are aware of legal aid service and have trust in using these service providers.

The ambassador said that Japan decided to support the establishment of legal aid centres to improve access for the poor and vulnerable people to legal services.

This, according to Kusaoke is an important part of Japan’s activities to promote the rule of law.

Evidence of one credible witness can justify conviction -SC

In the Supreme Court of Nigeria HOLDEN AT ABUJA Friday, July 3, 2015 Suit number: SC. 334A/2012

Between

SHINA OKETAOLEGUN….. Appellant

and

THE STATE…….. Respondent

SULEIMANGALADIMA, JSC; OLUKAYODE ARIWOOLA, JSC; CLARA BATA OGUNBIYI, JSC; JOHN INYANG OKORO, JSC; CENTUS CHIMA NWEZE, JSC

Judgement (delivered by Suleiman Galadima (JSC)

This is an appeal against the judgment of the Court of Appeal Ibadan Division delivered on the 14th day of April, 2008. The appellant herein was arrested along with one Kingsley Omoregie on the grounds that they murdered one Engineer Samuel Fakoya. They were accordingly arraigned before the High Court of Ogun State sitting at Ijebu-Ode, presided over by Hon. Justice Ibikunle Adesalu on a two count charge of conspiracy to commit murder and murder contrary to sections S.325 and 316(2) and punishable under Section 319(1) of the Criminal Code Law Cap 29 Laws of Ogun State of Nigeria 1978.

The charge reads thus:

STATEMENT OF OFFENCE:

COUNT 1: CONSPIRACY TO MURDER contrary to Section 324 of the Criminal Code Law (Cap.29) Laws of Ogun State of Nigeria, 1978.

PARTICULARS OFOFFENCE:

KINGSLEY OMOREGIE (M) and SHINA OKETAOLEGUN (M) on or about the 27th day of August, 2002 at Ikoto-Ijebu in the Ijebu-Ode Judicial Division conspired to murder one Engineer Samuel Fakoya.

STATEMENT OF OFFENCE:

COUNT II: Murder, contrary to Section 316 (2) and punishable under Section 319 (1) of the Criminal Code Law (Cap.29) Laws of Ogun State of Nigeria, 1978.

PARTICULARS OFOFFENCE

KINGSLEY OMOREGIE (M) and SHINA OKETAOLEGUN (M) on or about the 27th day of August, 2002 at Ikoto-Ijebu in the Ijebu-Ode Judicial Division murdered one (sic) Engineer Samuel Fakoya.”

To prove the charge, at the trial High Court, against the accused, the prosecution called five witnesses and tendered three exhibits, namely a yellow marine rope, two knives and a medical report.

The evidence adduced at the trial by the prosecution revealed that on 24/8/2002 at about 3:30p.m., Kingsley Omoregie, the 1staccused, who was an employee of the deceased went to the deceased’s house in company of the appellant herein. He saw PW1, a school teacher who lived with the deceased, sitting under a tree in the compound.

His suspicion was aroused as to the mission of the 1st accused and he had to call the vigilante men. On his return he met the door of the main house locked. He used a ladder to get to the balcony where he saw the 1st accused in the sitting room. On sighting him, the 1st accused ran into one of the rooms took to his heels and disappeared. PW1 shouted and when he called the deceased but he received no response.

On getting down the stairs he saw the deceased in a sitting posture with his two hands tied to the railings of the steps with blood on his head and three deep wounds on his chest and abdomen. PW1 untied the deceased and rushed him to a nearby hospital and later transferred him to Ogun State University Teaching Hospital, Shagamu, where he died. The vigilante men whom PW1 had earlier sought for their assistance surrounded the deceased’s house and arrested the accused persons and handed them over to the police. The investigating police officer, one Goddy Osuyi, who testified as PW3, told the court that he recovered the marine rope, which was tendered as Exhibit ‘B’, and two knives marked as Exhibits ‘C’ and CI and, the Medical Report from the Medical Doctor, who performed the post-mortem examination on the deceased, Exhibit D.

When the prosecution sought to tender the statements of the accused persons but objection was taken on the voluntariness of the statements and it was sustained, hence the statements were rejected. It is also noteworthy that at the end of prosecution’s case, the accused made a no – case submission but they were overruled and were therefore called upon to enter into their defence.

Each of the accused testified to his defence and was cross-examined but called no further evidence.

They both denied killing the deceased. Learned Counsel for the accused and defence submitted a lengthy address at the trial. In his reserved considered judgment delivered on 7/3/2005, the learned trial judge found the accused persons guilty on both accounts, convicted them and sentenced them to death by hanging. They both appealed against the conviction and sentence by filing separate Notices of Appeal on 1/4/2005. In their well-considered judgment, the learned justices of the Court of Appeal, considered the sentence of the appellant herein, and reduced same to attempted murder. It is against this conviction and sentence for life imprisonment that the appellant has appealed to this court.

The grouse of the appellant herein is that he had no connection or relation with the deceased; that he was only a friend of Kinsley Omeregie, a co-accused who was a former employee of the deceased. That all he did on that fateful day was only to escort his friend to the house of the deceased to collect his outstanding salaries.

With this background formation, the learned counsel has contended that it is apparent that the appellant had no motive at all to kill the deceased. That throughout the trial, the prosecutor did not establish that he could have formed any intention (mens rea) and he did kill (actus reus) the deceased. That the two basic elements required to ground criminal responsibility, that is, mens rea, actus reus are lacking in this case.

On the part of the Respondent, the learned counsel has submitted that the case of the prosecution at the trial court was that there was enough circumstantial evidence adduced to prove beyond reasonable doubt that the appellant herein was guilty of the offence of attempted murder. He submitted that it is not disputed that at all material time only the appellant and his friend Kingsley Omoregie, PW1 and the deceased were in the premises where the deceased was murdered in cold blood. It is submitted that all the circumstantial evidence adduced by PW1 against the appellant points irresistibly, positively, conclusively that after the deceased had macheted and murdered the deceased, took to their heels with the appellant with a machete in his hand but was arrested along with his co-accused with the aid of the villagers three days after. It was the appellant who led the investigating police officer to the bush where the machete with which they hacked the deceased was hidden.

Learned counsel submitted that the appellant and his co-accused had formed common intention to go to the house of the deceased to collect salaries owed to the appellant’s friend (Kingsley Omoregie). That they had intention to cause grievous bodily harm. That there was no need to prove that the appellant intended to cause the death of the deceased, so long as he acted willfully in doing the act which led to the death of the deceased.

In the final analysis the learned counsel submitted that the evidence against the appellant was overwhelming and although circumstantial in nature but very cogent, clear and convincing. That the possibility of another person (apart from the appellant and the co-accused committing the crime was remote). He urged the court to affirm the decision of the court below and to dismiss the appeal.

May it be noted from outset that the evidence relied upon at the trial of the appellant and his co-accused was on circumstantial evidence but not on their confessional statement, which the learned trial judge had rejected on the ground that there was no compliance with the procedure laid down in the police regulations and authorities, to determine the voluntariness of the exhibits.

Circumstantial evidence is nothing more than evidence of surrounding circumstances which by their nature are capable of establishing a proposition, such as the criminality of an accused person with the highest exactitude: See AKPAN v. THE STATE (supra). It is a combination of evidence of circumstances against an accused when taken together; creates strong conclusions of his guilt with high degree of certainty. It is very often the best evidence, sparingly applied because of possibility of fabrication which may cast suspicion on innocent person. For circumstantial evidence to ground a conviction, it must lead to one conclusion, that is, the guilt of the accused person whose evidence helps appellant to acquittal, as it leaves room for such acquittal. In that case the prosecution is said not to have proved its case beyond reasonable doubt.

To my mind the following pieces of circumstantial evidence are considered sufficient enough for a conviction of the appellant herein. One Aina Ibukunola Babatunde, a neighbour of the deceased testified as PW1 in his evidence-in-chief admitted as Exhibit ‘A’ as follows:

“1 am a teacher at Ijebu – Ode Grammar School Ijehu-Ode. I live at 1, Fakoya Street, Ikoto via Ijebu-Ode. I know the accused persons. I remember 27/8/2002: On that day I was sitting under a tree at the Late Chief Fakoya’s compound. No. l Fakoya Street, Ikoto, Ijebu-Ode. The time then was 3.30p.m. Then I looked up and saw the two accused persons enter through the gate of the compound. I was surprised to see the 1st accused because a few weeks previously he had stolen the bus belonging to the Late Chief Fakoya. OPC people had then arrested him and brought him to Ijebu to the house of the Late Chief Fakoya. This was before 27/8/2002. Somehow he managed to escape. I was then surprised to see him again on 27/8/2002 with the 2nd accused. I then jumped the fence and alerted the vigilante around. Then the vigilante people and I entered the compound but could not enter through the main house because the accused persons had locked the collapsible gate of the main house from inside. I then had to use a ladder to climb the balcony. As I landed at the balcony I saw 1st accused from the sitting room. 1st accused was shocked to see me and he, 1st accused, ran into the rooms and escaped. Then I called the vigilante people in the compound to gather round the house to arrest him. The accused persons were later arrested outside the house by the vigilante people. I then started to call late Chief Fakoya’s name round the rooms but I heard no answer. But as I got down the stairs I saw deceased sitting there with his two hands tied to the railings of the step. I saw blood on his head and three deep wounds – one on the chest and two at the abdomen. I untied the rope, carried him into the Bus and rushed him to Lanik Hospital at Imoru and from there he was transferred to OSUTH at Shagamu. I left the late Chief Fakoya at Lanik Hospital and came back home. I then went to report at the Police Station at Igbeba Ijebu-Ode.

On the stairs where late Chief Fakoya was tied, I also saw a knife and another similar but broken knife in the bedroom. I also saw children’s school bag on the floor of the bedroom.”

The accused persons testified in their defence, after their no case submission had been overruled. The 1st accused, Kingsley Omoregie, denied killing Chief Fakoya but admitted that he visited his house in the company of his friend (appellant herein) on the fateful day to collect the arrears of salary the deceased was owing him. In his evidence he stated as follows:

“I did not conspire with 1st accused to kill Engineer Fakoya. I did not kill the deceased with 1st accused by stabling him and tying him with rope. 1st accused was our customer in our workshop at Ibadan, then he brought his father’s car to our workshop for repairs. My master told him that the spare part can only be obtained in Lagos. 1st accused told my master that he had no money on him. Then he came back the following day and asked my master to give him someone to accompany him to Ijebu-Ode where he would collect his salary from his boss and proceed from there to Lagos to buy the spare part. Then my master asked me to follow 1st accused. Then we got to Ijebu-Ode and entered the ‘compound’ where 1st accused saw someone sitting under the tree and he waved at him and we entered the house. As we were going on the steps we saw the deceased on the step in a pool of blood and tied. 1st accused became afraid ran towards the back of the house and I followed him. We got outside I asked 1st accused who was that in a pool of blood and he answered that, that was his boss. The people accousted (sic) us and asked what happened inside. We were brought back into the compound. Later we were handed over to the police.”

The evidence of the 1st accused was corroborated by the appellant when he stated that when they were climbing up the steps they saw the deceased who was tied to the railings of the step. The 1st accused became afraid and ran towards the back of the house and the appellant followed him. He then asked about the identity of the person in the pool of blood and the 1st accused told him that the man was his boss. These pieces of evidence were corroborated by those of PW1.

The learned trial judge when considering the evidence of thePW1, the star witness alongside those of the accused persons, believed the evidence of PW1 that the 1st accused stole the bus of the deceased and that was why PW1 was surprised when he saw the 1st accused again in the compound on 27/8/2002. After a careful assessment of the evidence proffered by the prosecution and the accused persons, the learned trial judge stated thus:

“Leaving aside PWl’s version on this point, it is clear from the evidence of the accused persons that they were the first to see the deceased tied and in a pool of blood as they also testified that they never saw PW1 in the house nor did he also see them inside the house. The accused persons presence alone in the house that crucial time gave them opportunity to commit the crime.”

I agree with the learned counsel for the appellant that the circumstantial evidence adduced by the prosecution should be used sparingly with great care before relying on it to convict the accused because such evidence may be fabricated to cast suspicion on innocent persons. However, in this case, learned counsel, with due respect, has not shown why PW1 should fabricate any evidence to implicate the accused persons.

Very important point has been made here to the effect that since the 1st accused said that it was the deceased who called him on phone that he should come for his arrears of salary the deceased was owing, one would have expected that the reasonable thing 1st accused should have done on sighting his boss in a pool of blood was to quickly raise alarm, instead of escaping through the back door of the premises of the deceased. Moreover, the appellants could not explain how the door to the main house was locked when they were already in the house. These circumstances pointed to the fact that they and none else carried out the stabbing and tying up of the deceased.

The learned trial judge in the circumstance rightly found that it was the accused persons who had the first opportunity to commit this heinous and barbaric crime. The prosecution therefore, satisfactorily discharged the burden of proving that it was the accused persons that killed the deceased.

The medical report produced by Dr. Izegbu Matthew Chukuma was received in evidence as Exhibit ‘D’. He stated that the cause of death was due to acute cardiopulmonary failure due to diabetes hypertension. He however stated that the post mortem examination he conducted on the deceased did not show that the injuries found on the body of the deceased were self-inflicted. That fact that the deceased did not die immediately, therefore it cannot be said with absolute certainly that it was the stab wounds the deceased received that caused his death. He was found to be diabetic and hypertensive. The prosecution must in a criminal trial to establish the cause of the death of the deceased.

On this point the Court of Appeal had this say: “The prosecution has therefore not established conclusively that the death was caused by the act or omission of the accused persons. There is no dispute that Engineer Samuel Fakoya is dead and the act of the accused was intentional and was done with the knowledge of causing grievous bodily harm. The diabetes and hypertensive he was suffering from must have contributed to his eventual death. The prosecution in my view established a case of attempted murder against the accused.”

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.”

The position of the law is 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 actually did. No matter how reckless the conduct of the accused might be, so long as the killing that resulted from his act was not intended, that act would not fall within the provision of S.316 of the Criminal Code (supra)and therefore would not constitute murder. See SHOSIMBO v. THE STATE (1974) ALL NLR 603; (1974) 10 SC. 69OMINI v. THE STATE (1999) 12 NWLR (pt.630) 168 at 182; (1999); 72 LRCN 3044.

The court below correctly reviewed the evidence led by both the prosecution and the defence, particularly the testimonies of PW1 and DW1 and DW2 and rightly concluded that sections 320 and 325 of the criminal code respectively apply to the circumstances of this case, which warrant an interference with the verdict of the trial court. I agree that the appellant was appropriately found guilty of attempted murder or manslaughter.

I need not waste my time in going into the conspiracy theory as this point did not necessarily arise in the court below and did not form the basis for the conclusion arrived at by that court.

In the circumstance, the appeal is hereby dismissed. The judgment of the court below is hereby affirmed.