RICHARD v. STATE

CITATION: (2018) LPELR-45157(SC)

In the Supreme Court of Nigeria

ON THURSDAY, 14TH JUNE, 2018 Suit No: SC.446/2015

Before Their Lordships:

IBRAHIM TANKO MUHAMMAD Justice of the Supreme Court KUMAI BAYANG AKA'AHS Justice of the Supreme Court CHIMA CENTUS NWEZE Justice of the Supreme Court AMINA ADAMU AUGIE Justice of the Supreme Court EJEMBI EKO Justice of the Supreme Court

Between

AMEH RICHARD - Appellant(s) And THE STATE(2018) LPELR-45157(SC)- Respondent(s) RATIO DECIDENDI 1. APPEAL - INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S):Instances where the Supreme Court will not interfere with concurrent findings of fact(s) made by Lower Courts "It is well-settled that this Court will not disturb concurrent findings of fact of Lower Court unless the appellant is able to fulfill the following pre-conditions: establish a substantial error apparent on the face of the record of proceedings; show that such findings of fact were perverse; the said findings were unsupported by the evidence before the trial Court; that the findings and conclusion were arrived at as a result of a wrong approach to the evidence or a wrong application of the principles of substantive law or Procedure. The cases on this point are legion: they are many. Only a handful will be cited here - Enang v Adu [1981] 11-12 SC 25, 42; Nwadike v Ibekwe [1987] 4 NWLR (pt. 67) 718; Igwego v Ezeugo [1992] 6 NWLR (pt. 249) 561, 576; Lamai v Orbih [1980] 5-7 SC 28; Woluchem v Gudi [1981] 5 SC 291, 326; Ike v Ugboaja [1993] 6 NWLR (pt. 301) 539, 569; Chinwendu v Mbamali [1980] 3-4 SC 31. The appellant has not been able to do these. In the circumstance, I therefore endorse the conclusion that the prosecution proved the first two ingredients of the said offence. I agree with the Lower Courts that the Prosecution proved that the deceased died. It also proved that in actual fact, the deceased died as a result of the act of the accused person, to the exclusion of all other possibilities, R. v. Nwokocha (1949) 12 WACA 453, 455; The State v. Omoni (1969) 2 ANLR 337; Adie v. The State [1980] 1-2 SC 116, 122-123; R. v. Owe (1981) ANLR 680; Princewill v. The State [1994] 7 - 8 SC (Pt. 11) 226, 240; Silas Sule v The State (2009) LPELR-3125 (SC) 24, F-G."Per NWEZE, J.S.C. (Pp. 12-13, Paras. B-D) - read in context

2. APPEAL - INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S):Instances where the Supreme Court will not interfere with concurrent findings of fact(s) made by Lower Courts "...My Lords, I have undertaken this extensive review of the views of the trial Court as duly affirmed by the Lower Court to expose the poverty of the appellant's arguments in this appeal. Interestingly, the appellant did not succeed in showing the perversity of these concurrent findings. I shall therefore not interfere with them, Princent and Anor v. The State [2002] 12 SC (Pt.1) 137; [2002] 12 SCNJ 280, 300; Ubani and Ors. v. The State [2003] 12 SC (Pt.II) 1; [2003] 12 SCNJ 111, 127-128; Sokwo v Kpongbo [2008] All FWLR (Pt.410) 680, 695 - 696; Ogunbayo v. State [2007] 3 SC (Pt.11) 1, 27."Per NWEZE, J.S.C. (P. 23, Paras. C-F) - read in context

3. APPEAL - INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S):Instances where the Supreme Court will not interfere with concurrent findings of fact(s) made by Lower Courts "The two issues formulated by the Appellant all turn on facts. The two Courts below having found concurrently on those facts the Appellant herein, in this further appeal, has the burden of convincing us that those concurrent findings of fact are perverse, unreasonable and have occasioned a miscarriage of justice to him. Those are the special circumstances that warrant this Court to disturb or interfere with concurrent findings of fact by the two Courts below. In this regard, the Appellant, through his Counsel, has failed to satisfactorily establish in what respects the said concurrent finding are perverse and or occasion miscarriage of justice to him."Per EKO, J.S.C. (Pp. 35-36, Paras. D-A) - read in context

(2018) LPELR-45157(SC) 4. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MURDER: Essential ingredients that must be proved by the prosecution to ground a conviction for murder "My Lords, the ingredients of the offence of murder are well-settled. This Court has dealt extensively with them. For example, in Iliyasu v State (2015) LPELR-24403 (SC) 25; B - G, this Court [per Nweze, JSC] held that: The three constitutive elements or ingredients of the offence which must be proved in order to seiure a conviction under this section have been generously outlined in case law, Maigari v. State (2013) 6 - 7 MJSC (Pt. 11) 109, 125, citing Ochemaje v. The State (2008) SCNJ 143; Daniel v. The State (1991) 8 NWLR (Pt. 443) 715; Obudu v. State (1999) 6 NWLR (Pt. 1980) 433; Gira v. State (1996) 4 NWLR (Pt.428) 1, 125. Under the said section, the prosecution is obliged to prove: (1) is obliged to that the deceased died; (2) that his/her death caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. These ingredients, which are the same with the ingredients of the offence of murder under the Criminal Code, have witnessed consistent espousal in many jurisdictions, for example, by English Courts, R v. Hopwood (1913) 8 Cr. App. R. 143; Hyam v. DPP (1974) 2 All ER 41; Woolmighton v. DPP (1935) AC 462; by Nigerian Courts, Madu v. State (2012) 15 NWLR (Pt.1324) 405, 443, citing Durwode v. State (2000) 15 NWLR (Pt. 691) 467; Idemudia v. State (2001) FWLR (Pt. 55) 549, 564; [1999] 7 NWLR (pt. 610) 202; Akpan v. State [2001] FWLR (Pt. 56) 735; [2000] 12 NWLR (pt. 682) 607 and by Courts in other Commonwealth jurisdictions, see for example, R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v. The Queen (1968) 42 A.L.J.R.; R v. Tralka [1965] Qd. R. 225, [Queensland, Australia]. Scholars have seldom disagreed with judicial authorities on this question, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd, (2009) 209 et seq; A. G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan; Spectrum Books Ltd, 1988) passi Archbold's Pleadings: Evidence and Practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passim, K.S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); P. Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) 194 et seq."Per NWEZE, J.S.C. (Pp. 8-10, Paras. C-B) - read in context

(2018) LPELR-45157(SC) 5. CRIMINAL LAW AND PROCEDURE - INTENTION: How intention is inferred in murder cases "As indicated earlier in this judgment, the third ingredient of the offence under consideration is that the Prosecution must prove that the accused person intended to either kill the victim or cause him grievous bodily harm, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (supra); Maigari v State (supra); Ochemaje v. The State (supra); Daniel v. The State (supra); Obudu v. State (supra); Gira v State (supra). I have had an intimate perusal of the reasoning of the Lower Court on the third ingredient of the offence of murder. At page 235 of the record, the Lower Court admirably dealt with this requirement. Hear the Court's reasoning: ...the appellant knew that death of human being would be the natural consequence of firing an AK47 rifle into the crowd, but he went ahead to fire the rifle into the midst of the people. By so doing, he intended to kill or cause bodily harm to the people. [page 235 of the record; italics supplied for emphasis] I entirely agree with the Lower Court. After all, it is settled on several authorities that proof beyond reasonable doubt does not mean proof beyond any shadow of doubt, Aigbadion v State [2000] 7 NWLR (Pt. 666) 686; Agbo v. State [2006] 6 NWLR (Pt. 977) 545; Igabele v. State [2006] 6 NWLR (pt. 975) 100; Kim v. State [1992] 4 NWLR (Pt. 233) 17; Ubani v State [2003] 18 NWLR (Pt. 851) 224; Ameh v. State [1978] 6-7 SC 27. On the contrary, it has been held that the expression "proof beyond reasonable doubt" is a concept founded on a rational and critical examination of a state of affairs and law rather than in fancied, whimsical or capricious and speculative doubt,Akindipe v State [2008] 15 NWLR (pt. 1111) 560; State v Onyeukwu [2004] 14 NWLR (pt. 893) 340. In Bakare v. State (1987) LPELR-SC.242/1985, Obaseki JSC opined, most poignantly, that: Proof beyond reasonable doubt means proof of an offence with the certainty of the Criminal Law. That certainty is that the offence has been committed and that no other person but the accused person on the evidence committed the offence. Where the evidence conclusively establishes these facts, the case is said to be proved beyond reasonable doubt. [Italics supplied for emphasis] As Karibi- Whyte, JSC, put it in Bakare v. State (supra): The intention to kill or to cause grievous bodily harm, ...which resulted in death will be, and in this case was sufficient to establish the offence with which appellant was charged, Gwoji lire v. State (1965) NNLR.52 [Italics supplied for emphasis] Scholars are ad idem on this too. As the erudite Professor of Law, Frank Asogwah has argued, and I endorse his views entirely- Intent can be proved either positively where there is proof of the declared intent of the accused person or inferentially from the overt act by the accused. Therefore, in law, an accused person is taken to intend the consequences of his voluntary act, when he foresees that it will probably happen, whether he desires it or not, Hyam v. DPP [1974] 2 All ER 41. Here, the House of Lords decided that a person has the mens rea for murder if, when he does the act which kills, he knows that it is highly probable that he will cause death or grievous bodily harm. See, Frank I. Asogwah, "Criminal Liability in 'Accidental Discharge' in Murder cases and the Right of the Police to use Force," (2003) 2 Port Harcourt Law Journal, 198, [italics supplied for emphasis]. True indeed, scholars have expressed reservation on the propriety of the Courts' continued espousal of the "reasonable man" or "natural consequence" guide in ascertaining intent, see, for example, C. O. Okonkwo,(2018) Okonkwo and Naish: CriminalLPELR-45157(SC) Law in Nigeria (Second Edition), Ibidem page 55; Glanville Williams, Criminal Law: The General Part, 89-99; 894-896, cited in C. O. Okonkwo, (supra) at page 55; Wootton, Crime and the Criminal Law (London: Hamlyn Lectures, 1963) 33-39. According to Professor C. O. Okonkwo, SAN, Africa's leading authority on Criminal Law, while this requirement has been abolished in England, it has been rejected in the Australian jurisdiction, see, C. O. Okonkwo, Okonkwo and Naish: Criminat Law in Nigeria (Second Edition), ibidem page 55. Be that as it may, this Court has continued to invoke the natural consequence test. According to Katsina- Alu, JSC (as he then was) in Garba and Ors v State [2000] 6 NWLR (Pt. 661) 378, 388: The law presumes that a man intends the natural and probable consequences of his acts. And the test to be applied in these circumstances is the objective test, namely, the test of what a reasonable man would contemplate as the probable result of his acts... [Italics supplied for emphasis]. See also, Adamu Garba v. State [1997] 3 SCNJ 68; Nwokearu v The State (2013) LPELR-20642 (SC), citing R. v. Nangu (1953) 14 WACA, 379; R v. Adi (1955) 15 WACA 6; Omonga v. State [2006] 14 NWLR (Pt.1000) 532, 554; Ogba v. State [1992] 2 NWLR (pt. 222) 164; Ubani and Ors. v. State [2003] 18 NWLR (Pt. 851) 224; Chiokwe v. State [2005] 5 NWLR (Pt. 918) 424, 440; Uyo v. AG, Bendel State [1986] 1 NWLR (Pt.17) 418."Per NWEZE, J.S.C. (Pp. 13-18, Paras. E-A) - read in context 6. CRIMINAL LAW AND PROCEDURE - INTENTION: Whether in law a person is taken to have intended the natural consequence of his action "Both the learned trial Judge and the Court below exhaustively considered the evidence adduced at the trial and the defences raised by the appellant and came to the conclusion, rightly in my view, that appellant knew that death of a human being would be the natural consequence of firing an AK 47 rifle into the crowd, but he went ahead to fire the rifle into the midst of the people. By so doing, he intended to kill or cause bodily harm to the people. See: Ameh v. State (1978) 6-7 SC 27; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Aigbadion v. State (2000) 7 NWLR (Pt. 666) 586; Ubani v. State (2003) 18 NWLR (Pt. 851) 224; Igabele v. State (2006) 5 NWLR (Pt. 975) 100; Agbo v. State (2006) 6 NWLR (Pt.977) 545. There is no redeeming feature in this appeal which enures to the benefit of the appellant. The appeal is bereft of any merit. It is accordingly dismissed. The judgment of the learned trial Judge is rock solid and its confirmation by the Lower Court unshaken. The conviction and sentence of the appellant to death just as in the sister case of Akinyede v. State (2007) 9 - 12 SC 86 is further affirmed."Per AKA'AHS, J.S.C. (P. 34, Paras. A-F) - read in context

(2018) LPELR-45157(SC) CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): At the High Court of Ekiti State, Omuo Ekiti Judicial Division, the appellant and one other accused person, were arraigned on an Information containing a two-count charge of the murder of Ipinlaye Michael and Faluyi Ayo Kehinde contrary to Section 316, and punishable under Section 319, of the Criminal Code Act, Cap C 38, Laws of the Federation of Nigeria, 2004, respectively.

They pleaded Not guilty to the charges; hence, the case went to trial. Out of the ten witnesses listed in the proof of Evidence, the Prosecution called three witnesses, namely, PW1 (a Pathologist), PW2 (Investigating Police Office, IPO, for short) and PW3 (an eye witness). On their part, the appellant and his co-accused person called one witness. They equally testified in their own defence.

At the end of the trial, the High Court (hereinafter, simply, referred(2018) to as "the LPELR-45157(SC)trial Court”), finding them guilty as charged, convicted and sentenced them to death by hanging. The appellant's appeal to the Court of Appeal, Ekiti Division, having been dismissed, he has further appealed to

1 this Court urging the Court to allow his appeal. On his behalf, his counsel formulated two issues for the determination of this appeal, pages 5 and 6 of the appellant's brief.

On the other hand, the respondent framed two concise and appetising issues thus:

1. Whether on a correct evaluation of the totality of evidence adduced and admitted before the trial Court, the Court of Appeal was not right in affirming the conviction of the appellant herein? 2. Whether the Court of Appeal was not right in concluding that the appellant was not justified in his discharge of his weapon and therefore seized of the requisite intention to commit murder?

Enamoured of the respondent's precise formulation, I shall adopt them as issues for the determination of this appeal. Before dealing with them, however, a re-statement of the factual background(2018) toLPELR-45157(SC) this appeal would not be out of place here.

FACTUAL BACKGROUND In the morning of March 23, 2011, members of two political parties, namely, Peoples Democratic Party [PDP] and Action Congress of Nigeria [ACN], clashed in Omuo-Ekiti.

2 There were allegations and counter-allegations of the removal of political campaign posters of candidates of the said political parties in the imminent elections. In consequence of the above development, a team of seven Police men was mobilised to Kota junction, Omuo-Ekiti, the scene of the clash, to restore law and order. While the Divisional Police Officer [DPO] was armed with a pistol, five of the Police men, including the appellant, were armed with AK47 rifles. At the scene, the appellant shot one Ipinlaye Michael. Corporal Akindele Olaiya, on his part, shot one Faluyi Ayo Kehinde. Both men died from gunshot injuries, whereupon the appellant and Akindere Olaiya were arraigned as aforesaid, tried, convicted and sentenced.

ISSUES FOR DETERMINATION As indicated above, I am adopting the two precise issues which the respondent formulated for the determination of this appeal. For the avoidance of doubt, they are:

- Whether(2018) on a correct LPELR-45157(SC) evaluation of the totality of evidence adduced and admitted before the trial Court, the Court of Appeal was not right in affirming the conviction of the appellant herein? - Whether the Court of Appeal was not right in concluding that the appellant was not justified in his

3 discharge of his weapon and therefore seized of the requisite intention to commit murder?

ARGUMENTS ON THE ISSUES ISSUE ONE Whether on a correct evaluation of the totality of evidence adduced and admitted before the trial Court, the Court of Appeal was not right in affirming the conviction of the appellant herein?

At the hearing of the appeal on March 22, 2018, Oluwasina Ogungbade, counsel for the appellant, adopted the appellant's brief of arguments filed on August 21, 2015. In the said brief, pages 7 – 12 were devoted to what counsel referred to as highlight "of some of [the] lapses" [in the

Prosecution's case], citing Oguno and Anor v. The State

(2013) LPELR – 20623 (SC); Opolo v The State [1977]

11-12 SC (Reprint); Utteh v. The State [1992] 2 NWLR (Pt.223) 257, 269. ​ (2018) LPELR-45157(SC) It was further contended that there was no credible scientific evidence linking the bullets that felled the deceased person with the bullets fired from the appellant's gun: a failure which, in counsel's submission, was glossed over by the Lower Courts, pages 141 - 142 and 237 of the record, respectively.

4 The view was canvassed that the existence of aballistic report which was not tendered compels the suspicion of withholding evidence, Section 149 of the Evidence Act

(now, Section 167 (d) of the Evidence Act, 2011;The

People of Lagos State v. Umaru (2014) LPELR -22466 (SC); Sani v. State (2015) LPELR-24818 (SC). Counsel contended that the Prosecution had a duty to show that it was the act of the accused person that caused the death of the deceased person, Adekunle v State [1989] 5 NWLR

(Pt. 123) 505.

Next, counsel contended that it is a settled principle that for any offence to be made out, there must be a concurrence of the offending act, which he calledactus reus and the guilty mind which he also referred to as mens rea. He urged the Court to look through the judgment and find that nowhere in it was a direct finding made that the appellant shot into the crowd. He queried the identification in the case, paragraphs 5. 09 - 5.12, pages 21 - 22 of the record. He(2018) urged the LPELR-45157(SC) Court to resolve the issue in favour of the appellant, Udosen v. State (2007) 4 NWLR

(Pt.1023) 125, 161.

5 RESPONDENT'S SUBMISSIONS On his part, Kolapo Olugbenga Kolade, Honourable Attorney General, Ekiti State, for the respondent, adopted the brief filed on October 23, 2017, although, deemed properly filed on March 22, 2018. In the said brief, he first set out the ingredients of the offence of murder,Ogba v

State [1992] 2 NWLR (Pt.22) 164.

On the first ingredient, he referred to the evidence of PW1 and Exhibit A1, which he tendered: an exhibit which put paid to any doubt about the death of Ipinlaye Michael. He contended that a crime is provable by one or a combination of eye witness evidence; confessional statement and circumstantial evidence, Emeka v. The State [2001] 14

NWLR (Pt. 734) 666, 683. In his submission, the evidence led supports the assertion that a combination of the above three sources of evidence proved the guilt of the appellant as the killer of the deceased person.

He referred(2018) to the LPELR-45157(SC) evidence of PW2 [the IPO, an eye witness of the identification parade]. In the said parade, two out of the three witnesses identified the appellant as the person responsible for the death of Ipinlaye Michaell; PW3 and the statements of the appellant.

He pointed out that Exhibits C5 and C6 showed that the appellant fired his gun into the crowd.

6 The deceased, who was there, fell. PW1, a pathologist, confirmed that he died of gunshot injuries, pages 73 -74 of the record; he equally referred to Exhibits D, D1 - D3 wherein the appellant admitted before the commissioner of Police that he fired four ammunitions at the scene. It was equally established that the appellant carried an AK 47 rifle on that day, his statement; Exhibits C5, C6, D, D1 - D3, refer. The PW2 was emphatic that the appellant was responsible for the death of Ipinlaye Michael, page 75 of the record,AJIBOYE v The State [1994] 8 NWLR (Pt.

364) 587.

PW3, an eye witness, stated at page 86 of the record that the appellant shot Ipinlaye Michael. He referred to the trial

Court's assessment of the testimony of PW3;Fashanu v.

Adekoya [1974] 1 All NLR (Pt. 1) 35, 41; Eke v. Giwa [1977] 11 NSCC 96. The Lower Court agreed with the finding of the trial Court, pages 229 - 230 of the record,

Nwaturuocha v. The State [2011] 9 LRCNCC; Afolabi v State [2010](2018) 16 NWLR LPELR-45157(SC) (Pt.1220) 584, 917.

He submitted that the failure to call the ballistic examiner was not fatal. This must be so in his submission, since the Prosecution was not even obliged to tender the weapon

7 used, Tanko v State [2008] 16 NWLR (Pt. 1114) 534,

641; Ayo v. State [2008] 6 ACLR 220, 254; Jua v. State [2010] All FWLR (Pt. 521) 1427, 1447; Adekunle v. The State [2006] 14 NWLR (Pt. 1000) 717, 747.

On the third ingredient of the offence of murder, it was submitted that the appellant possessed the requisite intention, Adekunle v. state (supra). He urged the Court to resolve this issue against the appellant.

RESOLUTION OF THE ISSUE My Lords, the ingredients of the offence of murder are well-settled. This Court has dealt extensively with them.

For example, in Iliyasu v State (2015) LPELR-24403

(SC) 25; B - G, this Court [per Nweze, JSC] held that: The three constitutive elements or ingredients of the offence which must be proved in order to secure a conviction under this section have been generously outlined in case law, Maigari v. State (2013) 6 – 7 MJSC (Pt. 11) (2018) LPELR-45157(SC) 109, 125, citing Ochemaje v. The State (2008) SCNJ 143; Daniel v. The State (1991) 8 NWLR (Pt. 443) 715; Obudu v. State (1999) 6 NWLR (Pt. 1980) 433; Gira v. State (1996) 4 NWLR (Pt.428) 1, 125.

8 Under the said section, the prosecution is obliged to prove: (1) is obliged to that the deceased died; (2) that his/her death caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. These ingredients, which are the same with the ingredients of the offence of murder under the Criminal Code, have witnessed consistent espousal in many jurisdictions, for example, by English Courts, R v. Hopwood (1913) 8 Cr.

App. R. 143; Hyam v. DPP (1974) 2 All ER 41; Woolmighton v. DPP (1935) AC 462; by Nigerian

Courts, Madu v. State (2012) 15 NWLR (Pt.1324) 405,

443, citing Durwode v. State (2000) 15 NWLR (Pt. 691) 467; Idemudia v. State (2001) FWLR (Pt. 55) 549, 564; [1999] 7 NWLR (pt. 610) 202;Akpan v. State [2001] FWLR (Pt. 56) 735; [2000] 12 NWLR (pt. 682) 607 and by Courts in other Commonwealth jurisdictions, see for example, R. v Nichols (1958) QWR

46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v. The Queen (1968) 42 A.L.J.R.; R v. Tralka [1965] Qd. (2018) LPELR-45157(SC) R. 225, [Queensland, Australia]. Scholars have seldom disagreed with judicial authorities on this question, C. O. Okonkwo, Okonkwo and Naish:

Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd, (2009) 209 et seq; A. G.

9 Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan; Spectrum Books Ltd, 1988) passi Archbold's Pleadings: Evidence and Practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passim, K.S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); P. Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) 194 et seq.

In the instant case, the death of Ipinlaye Michael was not in any doubt at all. The findings of the trial Court and the Lower Court, refer. At pages 140 - 141 of the record, the trial Court made the following findings: The evidence of PW2 and PW3, as well as, Exhibit 'F' coupled with the admission by the two accused persons in their statements to the Police and with their evidence in Court that they fired their AK 47 rifle at the scene, that is, first accused [person] firing four rounds of ammunition and second accused(2018) [person] LPELR-45157(SC) firing two rounds of ammunition and Exhibit E, that is, six expended shells of AK47 ammunition that were recovered at the scene by PW2. All these taken together point to one direction and that is that the two accused person (sic)

10 were responsible for the death of the two victims in this case putting it succinctly that it was the first accused [person] that used the death of Michael Ipinlaye... I therefore hold that the two accused persons have been sufficiently linked with the death of the two deceased persons... [Italics supplied for emphasis]

The Lower Court, on its part, affirmed these findings. Listen to its reasoning: Clearly the overwhelming evidence at the Lower Court showed that the only persons that fired AK 47 at the scene of the crime that day were the appellant and one other Police man. The evidence of the investigating Police Officer who testified as PW2, the extra-judicial statement of the appellant that was admitted as Exhibit 'C1' at the Lower Court, in which he admitted firing four bullets at the scene of crime as well as the evidence of PW3 who was present at the scene of crime and identified the appellant as the one who fired(2018) the gunshot LPELR-45157(SC) that killed Michael Ipinlaye, all point to the crucial finding of facts by the trial Court. I therefore find no reason to interfere with the finding of the trial Judge that the death of Michael Ipinlaye is causedby the appellant. [page 231 of the record; italics supplied for emphasis]

11 As shown above, the trial Court [pages 140 - 141 of the record] and the Lower Court [page 231 of the record], concurrently found in favour of the proof of these ingredients. As such, in this further appeal, the appellant has an onerous duty to discharge. It is well-settled that this Court will not disturb concurrent findings of fact of Lower Court unless the appellant is able to fulfill the following pre-conditions: establish a substantial error apparent on the face of the record of proceedings; show that such findings of fact were perverse; the said findings were unsupported by the evidence before the trial Court; that the findings and conclusion were arrived at as a result of a wrong approach to the evidence or a wrong application of the principles of substantive law or Procedure. The cases on this point are legion: they are many. Only a handful will be cited here - Enang v Adu [1981] 11-12 SC

25, 42; Nwadike v Ibekwe [1987] 4 NWLR (pt. 67) 718; Igwego v Ezeugo [1992] 6 NWLR (pt. 249) 561, 576; Lamai(2018) v Orbih LPELR-45157(SC) [1980] 5-7 SC 28; Woluchem v Gudi [1981] 5 SC 291, 326;

12 Ike v Ugboaja [1993] 6 NWLR (pt. 301) 539, 569; Chinwendu v Mbamali [1980] 3-4 SC 31. The appellant has not been able to do these. In the circumstance, I therefore endorse the conclusion that the prosecution proved the first two ingredients of the said offence. I agree with the Lower Courts that the Prosecution proved that the deceased died. It also proved that in actual fact, the deceased died as a result of the act of the accused person, to the exclusion of all other possibilities, R. v. Nwokocha (1949) 12 WACA 453, 455;

The State v. Omoni (1969) 2 ANLR 337; Adie v. The State [1980] 1-2 SC 116, 122-123; R. v. Owe (1981) ANLR 680; Princewill v. The State [1994] 7 - 8 SC (Pt. 11) 226, 240; Silas Sule v The State (2009) LPELR-3125 (SC) 24, F-G.

As indicated earlier in this judgment, the third ingredient of the offence under consideration is that the Prosecution must prove that the accused person intended to either kill the victim(2018) or cause LPELR-45157(SC) him grievous bodily harm, C. O.

Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (supra); Maigari v State (supra); Ochemaje v. The State (supra); Daniel v. The State (supra); Obudu v. State (supra); Gira v State (supra).

13 I have had an intimate perusal of the reasoning of the Lower Court on the third ingredient of the offence of murder. At page 235 of the record, the Lower Court admirably dealt with this requirement. Hear the Court's reasoning: ...the appellant knew that death of human being would be the natural consequence of firing an AK47 rifle into the crowd, but he went ahead to fire the rifle into the midst of the people. By so doing, he intended to kill or cause bodily harm to the people. [page 235 of the record; italics supplied for emphasis] I entirely agree with the Lower Court. After all, it is settled on several authorities that proof beyond reasonable doubt does not mean proof beyond any shadow of doubt,

Aigbadion v State [2000] 7 NWLR (Pt. 666) 686; Agbo v. State [2006] 6 NWLR (Pt. 977) 545; Igabele v. State [2006] 6 NWLR (pt. 975) 100; Kim v. State [1992] 4

NWLR (Pt. 233) 17; Ubani v State [2003] 18 NWLR (Pt. 851) 224; Ameh v. State [1978] 6-7 SC 27. On the contrary,(2018) it has LPELR-45157(SC) been held that the expression "proof beyond reasonable doubt" is a concept founded on a rational and critical examination of a state of affairs and law rather

14 than in fancied, whimsical or capricious and speculative doubt,Akindipe v State [2008] 15 NWLR (pt. 1111)

560; State v Onyeukwu [2004] 14 NWLR (pt. 893) 340. In Bakare v. State (1987) LPELR-SC.242/1985, Obaseki JSC opined, most poignantly, that: Proof beyond reasonable doubt means proof of an offence with the certainty of the Criminal Law. That certainty is that the offence has been committed and that no other person but the accused person on the evidence committed the offence. Where the evidence conclusively establishes these facts, the case is said to be proved beyond reasonable doubt. [Italics supplied for emphasis]

As Karibi- Whyte, JSC, put it in Bakare v. State (supra): The intention to kill or to cause grievous bodily harm, ...which resulted in death will be, and in this case was sufficient to establish the offence with which appellant was charged, Gwoji lire v. State (1965) NNLR.52 [Italics supplied(2018) for emphasis]LPELR-45157(SC) Scholars are ad idem on this too. As the erudite Professor of Law, Frank Asogwah has argued, and I endorse his views entirely-

15 Intent can be proved either positively where there is proof of the declared intent of the accused person or inferentially from the overt act by the accused. Therefore, in law, an accused person is taken to intend the consequences of his voluntary act, when he foresees that it will probably happen, whether he desires it or not, Hyam v. DPP [1974]

2 All ER 41. Here, the House of Lords decided that a person has the mens rea for murder if, when he does the act which kills, he knows that it is highly probable that he will cause death or grievous bodily harm.

See, Frank I. Asogwah, "Criminal Liability in 'Accidental Discharge' in Murder cases and the Right of the Police to use Force," (2003) 2 Port Harcourt Law Journal, 198, [italics supplied for emphasis]. True indeed, scholars have expressed reservation on the propriety of the Courts' continued espousal of the "reasonable man" or "natural consequence" guide in ascertaining intent, see, for example,C. O. Okonkwo,

Okonkwo and Naish: Criminal Law in Nigeria (Second Edition),(2018) Ibidem page LPELR-45157(SC) 55; Glanville Williams, Criminal Law: The General Part, 89-99; 894-896, cited in C. O. Okonkwo, (supra) at page 55; Wootton, Crime and the Criminal Law (London: Hamlyn Lectures, 1963) 33-39.

16 According to Professor C. O. Okonkwo, SAN, Africa's leading authority on Criminal Law, while this requirement has been abolished in England, it has been rejected in the

Australian jurisdiction, see, C. O. Okonkwo, Okonkwo and Naish: Criminat Law in Nigeria (Second Edition), ibidem page 55. Be that as it may, this Court has continued to invoke the natural consequence test. According to Katsina-Alu, JSC

(as he then was) in Garba and Ors v State [2000] 6 NWLR (Pt. 661) 378, 388: The law presumes that a man intends the natural and probable consequences of his acts.And the test to be applied in these circumstances is the objective test, namely, the test of what a reasonable man would contemplate as the probable result of his acts... [Italics supplied for emphasis].

See also, Adamu Garba v. State [1997] 3 SCNJ 68;

Nwokearu v The State (2013) LPELR-20642 (SC), citing R. v. Nangu (1953) 14 WACA, 379; R v. Adi (1955) 15(2018) WACA 6; LPELR-45157(SC) Omonga v. State [2006] 14 NWLR (Pt.1000) 532, 554; Ogba v. State [1992] 2 NWLR (pt. 222) 164; Ubani and Ors. v. State [2003] 18 NWLR (Pt. 851) 224; Chiokwe v. State [2005] 5 NWLR (Pt. 918) 424, 440;

17 Uyo v. AG, Bendel State [1986] 1 NWLR (Pt.17) 418. I entirely endorse the concurrent findings of the Lower Court that the Prosecution proved case beyond reasonable doubt.

ISSUE TWO Whether the Court of Appeal was not right in concluding that the appellant was not justified in his discharge of his weapon and therefore seized of the requisite intention to commit murder?

On this issue, counsel for the appellant referred to page 66 of the record; pages 145 - 147 of the record; Omogodo v.

State [1981] 5 SC 4, 14 (Reprint); Boy Muka and Ors v. The State [1976] 9-10 SC.305; Ogidi and Ors v. The State (2005) LPELR - 2303 (SC); Nwachukwu v. The State (2007) LPELR - 8075 (SC). He urged the Court to find the findings of the Lower Courts perverse, Shipcare

Nig Ltd v Owners of the MV Fortunato [2011] 7 NWLR (sic) 205. (2018) LPELR-45157(SC)

RESPONDENT'S CONTENTION Counsel for the respondent citedAdekunle v. State

(supra) 747; C-G. He urged the Court to resolve this issue against the appellant.

RESOLUTION OF THE ISSUE The findings of the trial Court duly affirmed by the Lower Court could be found at pages 140 - 141 of the record. Listen to the trial Court: 18

(2018) LPELR-45157(SC) The evidence of PW2 and PW3, as well as Exhibit F, coupled with the admission by the two accused persons in their statements to the Police and with their evidence in Court that they fired their AK 47 rifle at the scene, that is, first accused [person] firing four rounds of ammunition and second accused [person] firing two rounds of ammunition and Exhibit E, that is, six expended shells of AK 47 ammunition that were recovered at the scene by PW2. All these taken together point to one direction and that is that the two accused person (sic) were responsible for the death of the two victims in this case putting it succinctly that it was the first accused that caused the death of Michael Ipinlaye while the second accused person caused the death of Kehinde Ayo Faluyi. I therefore hold that the two accused persons have been sufficiently linked with the death of the two deceased persons in case (sic) on hand.

On its part, the Lower Court affirmed the above findings. At page 231(2018) of the record, LPELR-45157(SC) the Court proceeded thus: Clearly the overwhelming evidence at the Lower Court showed that the only persons that fired AK 47 at the scene

19 of the crime that day were the appellant and one other Police man. The evidence of the Investigating Police Officer who testified as PW2, the extra-judicial statement of the appellant that was admitted as Exhibit C1 at the Lower Court, in which he admitted firing four bullets at the scene of crime as well as the evidence of PW3 who was present at the scene of crime and identified the appellant as the one who fired the gunshot that killed Michael Ipinlaye, all point to the crucial finding of facts by the trial Court. I therefore find no reason to interfere with the finding of the trial judge that the death of Michael Ipinlaye is (sic) caused by the appellant.

That is not all. On the question of intention to kill the deceased person, the trial Court had this to say: It is in evidence that the deceased person died of gunshot injuries, see Exhibits A – A1. The two accused persons fired jointly six rounds of AK 47 rifles ammunition. The two accused person had been link (sic) sufficiently with the killing or(2018) death of the LPELR-45157(SC) deceased persons. It should be noted that AK 47 rifle is a lethal weapon and one does not need a soothsayer to tell out of the devastating effect its

20 ammunition or bullets would have on persons hit by such ammunition when expended. It either inflicts grievous bodily harm in or leads to death (as in the case on hand) persons hit by such ammunition. In the circumstance of this case, it can safely be inferred that the two accused persons when they fired their AK 47 rifles whether to the air or not in the midst of a large member (sic) of people would know how that such expended ammunition could cause serious damage/injury particularly to any human being hit by such ammunition. The two accused person are trained Corporals. The logical conclusion that can be inferred or drawn from the facts and evidence placed before this Court in the instant case is to the effect that each of the two accused persons knew that the consequences of their act of firing their AK 47 rifle could inflict bodily harm or cause death of person hit by the expended ammunition and that they desired same.

Again, the(2018) Lower Court LPELR-45157(SC) affirmed these findings. At pages 235 et seq, the Lower Court agreed: ... with the learned trial Judge that the appellant knew that death of human being would be the natural consequence of

21 firing an AK 47 rifle into the crowd, but he went ahead to fire the rifle into the midst of the people. By so doing, he intended to kill or cause bodily harm to the people. The appellant denied firing his gun in his initial statement to the Police. It was when investigation was conducted into the number of bullets allocated to the Policemen who went to the scene of crime and how many bullets were finally returned, that the appellant owned up that he expended four (4) bullets at the scene of crime. It was this appellant's attitude that prompted the learned trial Judge to disbelieve his story that he fired into the air. I agree with the learned trial Judge that the appellant's story that he fired into the air is unbelievable. The learned trial Judge in his judgment at pages 144 – 148 of the record of appeal effectively handled the issue of self defence raised by the appellant. I agree with him that the story of Bamisile coming to the scene of crime with boys armed with guns like pistol, AK 47 and pump action guns were never reflected in the appellant's extra-judicial statements to the Police and such evidence(2018) being at variance LPELR-45157(SC) with his previous statements is an

22 after-thought and not capable of being believed. That being so, [the] appellant had not shown that his life was in real danger as to require the amount of force used in his defence.... It is in evidence that of all the Policemen that went to the scene, only the appellant and his co-convict shot directly into the crowd. From all indication, the team leader did not order them to shoot. The two Policemen who took a decision to open fire on the crowd acted on their own volition and were therefore not covered by any rules of engagement...

My Lords, I have undertaken this extensive review of the views of the trial Court as duly affirmed by the Lower Court to expose the poverty of the appellant's arguments in this appeal. Interestingly, the appellant did not succeed in showing the perversity of these concurrent findings.

I shall therefore not interfere with them, Princent and

Anor v. The State [2002] 12 SC (Pt.1) 137; [2002] 12 SCNJ 280,(2018) 300; Ubani LPELR-45157(SC) and Ors. v. The State [2003] 12 SC (Pt.II) 1; [2003] 12 SCNJ 111, 127-128; Sokwo v Kpongbo [2008] All FWLR (Pt.410) 680, 695 - 696; Ogunbayo v. State [2007] 3 SC (Pt.11) 1, 27.

23 In all, I find no merit in the arguments in this issue. I equally resolve the issue against the appellant.

In passing, I am constrained to observe that learned counsel for the appellant; recent Nigerian cases and even text writers have continued to describe the elements of the offence under consideration in the ancient English law maxim: actus reus non facit reum, nisi mens rea - [an act or omission cannot amount to a punishable offence without the requisite guilty knowledge of the wrongful act]. This is notwithstanding the protestations from eminent scholars that the provisions of the Criminal Code are sufficiently, comprehensive to obviate any need to refer to the doctrines of actus reus and mens rea, see, C. O.

Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books, 2000) 78; C. O. Okonkwo, "The Unlawful Act Doctrine and the Defence of Accident" in The Nigerian Bar Journal Vol 11 (1973) 93-97. Indeed, (2018)ex curiae, Karibi-WhyteLPELR-45157(SC) JSC noted that "it is not advisable to refer to the English concept of mens rea in the elucidation of the provisions of Section 24 of the Criminal

Code". See A. G. Karibi-Whyte, History and

24 Sources of Nigerian Criminal Law (Ibadan: Spectrum Law Publishing, 1993) 233.

I entirely agree with these views. After all, today, most crimes under English law, including common law crimes, are defined by statutes that usually contain a word or phrase indicating, for example, the mental element. Thus, a typical statute, for example, may require that a person acts knowingly, purposely or recklessly.

In all, having thus resolved the issues against the appellant, I have no hesitation in dismissing this appeal. In consequence, I endorse the concurrent judgments of the Lower Courts. Put differently, I affirm the judgment of the Lower Court: which judgment had affirmed the trial Court’s conviction of, and sentence on the appellant to death by hanging. Appeal dismissed.

IBRAHIM TANKO MUHAMMAD, J.S.C.: This is an appeal (2018)against the LPELR-45157(SC) conviction and sentence of the appellant in which judgment was entered by the Court of Appeal, Ado- Ekiti Division in the 27th November, 2013.

I have read the lead judgment of my learned brother, Nweze, JSC. I agree with his reasoning and conclusion in dismissing the appeal. I too dismiss the appeal.

25 KUMAI BAYANG AKA'AHS, J.S.C.: I was privileged to read before now the judgment of my learned brother, Nweze JSC dismissing the appeal for lacking in merit.

The facts leading to this appeal are as follows:- On 23 March, 2011, there was a face off between the supporters of ACN and PDP at Kota Junction Omuo-Ekiti. About seven policemen led by ASP Adewale Lukman the DPO Omuo were mobilised to restore peace and maintain law and order at the scene. Among the policemen mobilised to the scene were the two accused persons, Ameh Richard and Akinyede Olaiya. The Divisional Police Officer (DPO) had a pistol. Five of the policemen including Ahmed Richard (now appellant) and Akindele Olaiya (whose appeal No. SC.562/2014 now reported as (2017) 9-12 SC. 86 was dismissed on 8 December, 2017) carried AK 47 rifles officially assigned to them from the office. The mobsters at the scene of the crime were allegedly armed with dangerous weapons consisting of guns, cutlasses, bottles etc. The (2018)DPO fired shotsLPELR-45157(SC) into the air to draw attention to the mobsters and warn the volatile crowd.

26 The appellant and Akinyede Olaiya later firedshots from their respective rifles leading to the deaths of Ipinlaye Michael and Faluyi Ayo Kehinde whose bodies were later taken to the University Teaching Hospital Ado-Ekiti for post mortem examination. They were arraigned in the High Court of Ekiti State holden in the Omuo-Ekiti Judicial Division on an information containing a two count charge of the murder of Ipinlaye Michael and Faluyi Ayo Kehinde. The charge read:-

COUNT 1 STATEMENT OF OFFENCE Murder contrary to Section 316 and punishable under Section 319 of the Criminal Code Act Cap. C38 Laws of the Federation of Nigeria 2004.

PARTICULARS OF OFFENCE Ameh Richard and Akinyede Olaiya on or about the 23 day of March, 2011, at Kota, Omuo-Ekiti Judicial Division murdered Ipinlaye Michael.

COUNT II Murder (2018)contrary to LPELR-45157(SC) Section 316 and punishable under Section 319 of the Criminal Code Act, Cap C38 Laws of the Federation of Nigeria 2004.

PARTICULARS OF OFFENCE Ameh Richard and Akinyede Olaiya on or about the 23 day of March, 2011 at Kota, Omuo-Ekiti in Omuo Judicial Division murdered one Faluyi Ayo Kehinde.

27 The prosecution called three witnesses out of ten witnesses in the proof of evidence. PW1 was Dr. O. J. Taiwo of Ekiti State University Teaching Hospital Ado-Ekiti. He is a Pathologist who conducted a post mortem examination on the body of Faluyi Ayo Kehinde and issued a report, Exhibit A. The autopsy was carried out on 30/3/2011. He attributed the cause of death to asphyxiation and gun shot injuries. He also carried out post mortem examination on Ipinlaye Michael. The report he issued became Exhibit A1. He attributed the cause of death to cardiac laceration/injury as a result of gun shot.

The PW2 to testify was Cpl. Ereibor Timibra. He carried out investigation into the case and tendered Exhibits B-F. He also tendered the various statements made by the two accused persons i.e. Exhibits B, C, C1 and Exhibits C2, C3 and C4 made by the 1st and 2nd accused respectively. He also tendered six expended shells of AK 47 ammunition which were recovered from the scene as Exhibit “C”. According(2018) to PW2, an LPELR-45157(SC) identification parade was conducted on 12/4/2011 and two people identified the 1st accused as being responsible for the death of Ipinlaye Michael. The 1st accused admitted during the investigation that

28 he fired four out of the 60 AK 47 ammunition he booked. According to pw2 his investigation revealed that the 2nd accused was responsible for the death of Faluyi Ayo Kehinde. He was identified by Mrs. Jaiye Bamisile whose statement was marked Exhibit F. He said the 2nd accused admitted firing two ammunition at the scene of crime. ​ The third witness was Femi Bankole who said he knew Ipinlaye Michael now dead. He PW3 was present at Kota Junction on 23/3/2011 when Ipinlaye Michael was shot by the 1st accused at Kota Junction roundabout. He got to know the 1st accused on the date of the incident. When he was cross-examined PW3 said that the supports of the ACN and PDP did not carry any offensive weapons on the day of the incident. When pandemonium broke out the DPO wanted to arrest a member of the PDP but the wife of the PDP boss intervened and when the DPO insisted on arresting the man, the woman kept quiet. He said that the DPO shot into the air twice before carrying out the arrest. The people(2018) retreated LPELR-45157(SC) when the DPO shot into the air. It was then the 1st accused shot at Ipinlaye Michael and he fell down and died.

29 The accused called Gbenga Oladunjoye whotestified as DW1. He was in Police custody at the State CID in Ado-Ekiti and on 8/4/2011, himself and the two accused were among the 10-15 suspects who were lined up for identification. He said that two people pointed to two people in the line but the two accused were not the people identified. Their photographs were taken and the suspects were returned to the cell. Another identification parade was carried out on 12/4/2011 which excluded the two people earlier identified. It was during the second exercise that 1st accused was identified but the 2nd accused was never identified. ​ The appellant testified as DW3. He admitted he was one of the six Police Officers who were drafted to Kota Junction on 23/3/2004 to restore peace when members of the ACN fought with the PDP. That on getting to Kota Junction, they saw the crowd and the DPO ordered the driver to park by the side of the road while he (DPO), P and G and Inspector came down from the vehicle. The DPO went to address the crowd to(2018) maintain peace. LPELR-45157(SC) He, appellant/1st accused stayed by the side of the patrol vehicle. Shortly after, he saw Bamisile who rode on a motorcycle.

30 When he came down from the motorcycle, he noticed that Bamisile was carrying a small pistol. He went round the crowd but did not speak with any policeman. About two seconds later, a jeep drove into the scene and some boys alighted from the jeep and entered the crowd. Immediately the boys entered the crowd he heard gun shot. It was a pistol and he later saw the boys with AK 47. At this stage other policemen who were in the crowd began to move back and as they retreated he heard gun shots of AK 47 and pump action rifles. He, 1st accused then fired twice into the air in order to defend himself from being killed and the rifle taken away. The DPO then ordered them to board the vehicle and return to the office. Although he did not see anybody fall, the DPO informed them that two people fell when they got to the office. He claimed that Force Order 237 allows a Police officer to fire when his life is in danger and that he fired into the air to escape the danger. ​ The appellant admitted that PW3 identified him when the second identification(2018) LPELR-45157(SC) parade was carried out as the person who was responsible for the death of Ipinlaye Michael.

31 The learned trial Judge found that it was the shots fired by the accused that resulted in the deaths of Ipinlaye Michael and Faluyi Ayo Kehinde based on the evidence of PW2 and PW3 as well as Exhibit F coupled with the admission by the accused persons in their statements to the police and their evidence in Court that they fired their AK 47 rifles at the scene i.e. 1st accused firing four rounds of ammunition and 2nd accused firing two rounds of ammunition making a total of six rounds of ammunition and Exhibit E i.e. six expended shells of AK47 ammunition that were recovered at the scene by PW2.

The learned trial Judge disbelieved the defence put up by the appellant that he was apprehensive of danger and in order to defend himself he shot into the air so that the people would not kill him and take away his rifle. He found his evidence to be unreliable.

On the claim that Police Force Order 237 allows him to fire his gun (2018)when his life LPELR-45157(SC) is in apparent danger, the learned trial Judge said at page 147 of the records: "The 1st accused claimed that Police Force Order 237 allows him to fire his gun when his life is in apparent danger but in the circumstance of this case, I do not see how he could avail himself of such

32 provision. There is nothing to show or from which to urge that at the time he was at the scene of crime his (1st accused) life was in danger."

The learned trial Judge found the accused guilty and accordingly sentenced them to death for the murder of Ipinlaye Michael and Faluyi Ayo Kehinde. The conviction and sentence were affirmed on appeal. In the leading judgment Galinje JCA (as he then was) at page 239 of the records said:- "It is in evidence that of all the Police that went to the scene, only the appellant and his co-convict shot directly into the crowd. From all indication, the team leader did not order them to shoot. The two Policemen who took a decision to open fire on the crowd acted on their own volition and were therefore not covered by any rules of engagement. It is imperative for the security men who bear arms in this Country to exercise maximum restraint in the use of the weapons assigned to them in order not to endanger(2018) the lives of LPELR-45157(SC) the citizens that they are employed to protect."

My learned brother, Nweze JSC considered the two issues raised in the appeal and resolved them against the appellant.

33 Both the learned trial Judge andthe Court below exhaustively considered the evidence adduced at the trial and the defences raised by the appellant and came to the conclusion, rightly in my view, that appellant knew that death of a human being would be the natural consequence of firing an AK 47 rifle into the crowd, but he went ahead to fire the rifle into the midst of the people. By so doing, he intended to kill or cause bodily harm to the people.

See: Ameh v. State (1978) 6-7 SC 27; Kim v. State

(1992) 4 NWLR (Pt. 233) 17;Aigbadion v. State (2000) 7 NWLR (Pt. 666) 586; Ubani v. State (2003) 18 NWLR (Pt. 851) 224; Igabele v. State (2006) 5 NWLR (Pt. 975) 100; Agbo v. State (2006) 6 NWLR (Pt.977) 545. There is no redeeming feature in this appeal which enures to the benefit of the appellant. The appeal is bereft of any merit. It is accordingly dismissed. The judgment of the learned trial Judge is rock solid and its confirmation by the Lower Court unshaken. The conviction(2018) and sentenceLPELR-45157(SC) of the appellant to death just as in the sister case of Akinyede v. State (2007) 9 – 12

SC 86 is further affirmed. Appeal dismissed.

34 AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment delivered by my learned brother, Nweze, JSC, and I agree entirely with his reasoning and conclusion that this appeal lacks merit, and it is dismissed in its entirety. I affirm the Judgment of the Lower Court which judgment had affirmed the trial Court's conviction of, and sentence on,the appellant to death by hanging. Appeal dismissed.

EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered by my learned brother, CHIMA CENTUS NWEZE, JSC. I agree with His Lordship that this appeal being unmeritorious, deserves to be dismissed.

​The two issues formulated by the Appellant all turn on facts. The two Courts below having found concurrently on those facts the Appellant herein, in this further appeal, has the burden of convincing us that those concurrent findings of fact are perverse, unreasonable and have occasioned a miscarriage(2018) of justice LPELR-45157(SC) to him. Those are the special circumstances that warrant this Court to disturb or interfere with concurrent findings of fact by the two Courts below. In this regard, the Appellant, through his Counsel, has failed to satisfactorily establish in what

35 respects the said concurrent finding are perverse and or occasion miscarriage of justice to him.

The PW.3 was emphatic, and his evidence remains undiscredited, that it was this Appellant who shot and killed Ipinlaye Michael. This makes the heavy weather made of the necessity for the ballistician's report totally irrelevant and immaterial. It was unnecessary. It would have been, if the prosecution was not certain, evidentially, as to who, between the 1st Accused and the Appellant (the 2nd Accused), shot and killed Ipinlaye Michael. No doubt whatsoever exists in the prosecution's case as to who shot and killed the said Ipinlaye Michael.

From the evidence of the PW.3, there was no doubt as to who caused the death of Ipinlaye Michael and also what caused it. The PW.3 had fixed the Appellant to the killing of Ipinlaye Michael, just as the same evidence also identified who was killed by the Appellant’s fatal shot from his AK47 riffle. (2018) LPELR-45157(SC)

What was the mens rea for this unlawful killing? The Appellant’s reckless act of shooting live ammunitions from AK47 riffle into the crowd and killing unarmed man, who posed no threat either to him or

36 others, was prima facie evidence of intent to kill a human being or to cause grievous hurt to a human being. There was no evidence of any imminent danger to the Appellant or his fellow Police Officers. There was no iota of evidence upon which any extenuating circumstance, either of provocation or self-defence, could be inferred in favour of the Appellant. ​ The judgment of the Court of Appeal, affirming the conviction and sentence of the Appellant for the murder of Ipinlaye Michael by the trial Court, cannot be faulted. Accordingly, I hereby endorse the judgment of my learned brother, CHIMA CENTUS NWEZE, which dismissed this appeal in its entirety. Appeal dismissed.

37 (2018) LPELR-45157(SC) Appearances:

O. O. Ogungbade with him, C. Maduka, T. Owoade, O.O. Oluwatomi and A. Adenipekun For Appellant(s)

Kolapo Kolade (Hon A.G. Ekiti State) with him, I. J. Adelusi (DDPP, Ministry of Justice, Ekiti State) For Respondent(s)

(2018) LPELR-45157(SC)