Cases Are Authorities For What They Decided

This is an appeal against the judgment of the Court of Appeal,
Lagos Division delivered on the 22 day of November 2013 setting
aside the appellant’s conviction and sentence for murder contrary
to Section 316(3) of the criminal Code Cap 1 laws of Lagos State
2003 and substituting in its place a conviction and sentence for
manslaughter contrary to Section 317 of the same code.

Respondent’s case at the Lagos State High Court, hereinafter
referred to as the trial court, is that the appellant, a policeman,
on the 5th April 2009 shot and killed three year-old Kafusara
Muritala. Along with four other police officers, the appellant was
deployed to Obanle-Aro/Mr. Biggs axis of Ketu Alapere, in Lagos, to
prevent criminal activities of hoodlums. The team mounted a check
point at the black spot. On the fateful day, PWl Muritala Saliu,
his wife, the deceased and some other passengers were being
conveyed by one Saheed in a Nissan Sunny Saloon car towards mile 12
from a naming ceremony in a friend’s house. At about twelve meters
from the check point and soon after the sound of a gunshot,
Kafusara’s mother on noticing the deceased had slumped raised
alarm. PWl, the deceased’s father, the vehicle having stopped,
carried the deceased back to the check point shouting profusely
that the police had killed his daughter. Further to the complaint
lodged on the incident and the investigation conducted thereon, the
appellant, who had confessed shooting at the tyres of the vehicle
in which the family of the deceased were being conveyed, was
arraigned, convicted and sentenced to death for the murder of the
deceased. Dissatisfied, the appellant appealed to the Court of
Appeal Lagos Division which decision of 22nd November, 2013 allowed
the appeal in part. Still aggrieved, the appellant has further
appealed to this Court on a notice filed on l6th December, 2013
containing ten grounds.

At the hearing of the appeal counsel identified, adopted and
relied on parties respective briefs of argument. At page 3 of the
appellant’s brief of argument settled by Emmanuel Umoren Esq and
deemed duly filed and served on 11th January, 2018 the six
unnecessarily prolix issues distilled read:

Whether from the facts and circumstances of this case, the Court
of Appeal was right to hold that the deceased died of gunshot and
the failure of the Respondent to tender the post mortem report was
not fatal to its case. (Ground 2).

Whether from the facts and circumstances of this case, the Court
of Appeal was right in law to convict the Appellant for the offence
of manslaughter. (Grounds 7 and 8)
Whether in a murder charge which attracts capital punishment, the
Court of Appeal was right to ignore and or fail to consider the
various defences open to the Appellant or raised by the Appellant.
(Grounds 1 and 4).

Whether from the facts and circumstances of this case, the Court
of Appeal denied the Appellant his constitutional right to fair
hearing” (Grounds 3 and 5)
Whether the Court of Appeal was right when in sentencing the
Appellant, it refused to follow the binding decision of the Supreme
Court in OMINI V. STATE (1999) 12 NWLR PART 630 PAGE 168. (Ground
9).

Whether from the facts and circumstances of this case, the Court
of Appeal was right to sentence the Appellant to life imprisonment
for the offence of manslaughter. (Grounds 6 and 10).”

For the purpose of the case at hand, it appears that in
resolving appellant’s 2nd issue, his 5th and 6th issues it subsumes
will equally be resolved. Though appellant’s 1st 2nd, 3rd and 4th
issues are glaringly similar to respondent’s four issues, the
latter’s issues, being better couched, shall however inform the
determination of the appeal.

On the 1St and 2nd issues, learned appellant’s counsel submits
that to secure conviction, the law places the burden of proving all
the ingredients of the offence, the appellant is charged with
beyond reasonable doubt on the respondent. It is not enough for the
respondent to establish the fact of death of a human being. For the
court to convict the appellant, it is submitted, respondent must
further link the death with the act of the appellant done with the
intention or knowledge that death of his victim was probable. The
report of the postmortem carried out by DW3, which the respondent
failed to tender, is necessarily required to establish the cause of
death. Furthermore, it is argued, not only are there material
contradictions in the evidence of the prosecution witnesses, the
evidence of some of them which are in support of the appellant’s
case are withheld from the court. The law, it is submitted, does
not allow the respondent to conceal any fact even where it supports
the appellant’s case from the court, where it does so, the
prosecution is liable to loose-its case. Relying inter-alia on
Section 135 of the Evidence Act 2011 Eziegbo v. ‘State (2012) 16
NWLR (Pt 1326) 318, Ahmed v. State (2001) 18 NWLR (Pt 746) 622,
Omini V. State (1999) 12 NWLR (Pt 630) 168, learned counsel submits
that the decisions of the two courts on the guilt of the appellant
though concurrent, not having drawn from the evidence on record, is
not sustainable.

Assuming without conceding that evidence abound in proof of
manslaughter against the appellant, it is further argued, the
sentence imposed on the appellant by the lower court is excessive.
The appellant, it is contended, had urged the lower court to comply
with the Supreme Court’s decision in 0mini V. State (1999) 12
NWLR‘(Pt 630) 168 by reducing appellant’s sentence to ten years.
Notwithstanding the lower Court’s findings at pages 219 and 227 of
the record that the facts of the instant case are on all fours with
those in 0mini V. The State (supra), the court, learned counsel
contends, all the same refused to reduce the sentence to ten years
as was done in 0mini V. State (supra). Learned counsel submits that
it is wrong of the lower court to have so refused. Relying on m
Odulami V. Nigerian Navy (2013) 12 NWLR (Pt 1367) 20, he urges that
this Court invokes its powers to reduce the sentence in enforcing
compliance with its decision by the lower court. Learned counsel
prays that the two issues be resolved in appellants favour.

Firstly, cases are authorities for what they decided. The
doctrine of stare-decisis learned appellant’s counsel asserts the
lower court has violated is about past decisions of courts binding
them in subsequent occasions where the facts and legislations
applicable to the settled facts are same or similar to, those the
courts earlier pronounced upon. Our case law has remained
consistent on this principle. It is therefore settled that a court
lower in the judicial ladder is bound by its own or the ratio
decidendi of a higher court in an earlier case, if the issues of
fact and the legislation the court considers subsequently are same
or similar. See Dr. Umar Ardo V. Admiral Murtala Nyako & ors.
(2014) LPELR-22878 (SC) and 0Nigeria Agip Oil Company Ltd V. Chief
Gift Nkweke (2016) LPELR-25050 (SC). Where the lower court, as in
the instant case, holds itself bound by the decision of this Court
on same or similar facts, appellant’s grudge against the lower
court’s decision cannot, therefore, be taken seriously. See Dalhatu
V. Turaki (2003) 15 NWLR (Pt 843) 310 and Nobis-Elendu V. lNEC
& ors (2015) LPELR-25127 (SC).

The appellant in the instant case, like the appellant in the
Omini v. State case (supra) the lower court is alleged to have
circumvented, was tried and convicted for the offence of murder.
The decision of this Court the lower court lavishly reproduced in
its judgment, see pages 223 224 of the record, inter-alia
reads:

“It seems to me that the trial Judge having found as a fact,
which was accepted by the Court of Appeal, that the death of the
deceased was as a result of the act of the Appellant, the shooting
which resulted in the death of the deceased was as a result of the
culpable disregard of his legal duty to take care, but without the
necessary intent. The intention of Appellant was clearly to shoot
at the vehicle. If as it appears from the evidence he failed to
exercise sufficient care and consequently resulting in the death of
the deceased, it seems to me that the action comes clearly within
the purview of Section 317 of the Criminal Code. The Court below
regrettably failed to direct its mind to this aspect of the law.
The trial Judge ignored this part of the evidence before him and
therefore came to the erroneous conclusion that the prosecution
proved the offence of murder beyond reasonable doubt. The reason
why the judgment of the trial judge should be set aside is that the
prosecution having not proved that Appellant intended to cause the
death of the deceased, the offence of manslaughter because in
complete and culpable disregard of his legal duty to take care in
the handling of his gun in the discharge of his lawful duty, his
act resulted in the death of the deceased. ‘See Onah v. The State
(1977) 7 SC 69.”

In submitting to the foregoing decision of this Court, the lower
court at pages 224 225 of the record enthused thus:

“I most respectfully borrow and rely in toto on the binding
words of the Supreme Court in Omini v. State (supra) to allow the
appeal by setting aside the verdict of murder entered against the
appellant by the court below and quashing the sentence of death
passed on the appellant by the court below for the murder of the
deceased under Section 316(3) 0f the Criminal Code and substitute
in its place a conviction of the appellant for the lesser offences
of manslaughter as defined under Section 317 of the Criminal Code
CapC.17 Laws of Lagos State, 2004, and punishable under Section 325
of the same Code read with section 19(3) of the Court of Appeal
Act, 2003.

Considering the seriousness of the crime of manslaughter which
by Section 325 of the Criminal Code states that ’any person who
commits the offence of manslaughter is liable to imprisonment of
life’, I hereby impose the sentence of imprisonment for life on the
appellant for manslaughter accordingly.”

By correctly binding itself to the earlier decision of this
Court on all fours with the matter it decided in the foregoing,
appellant’s allegation of impertinence against the lower court is,
clearly, unsustainable. Appellant’s grudge under the 2nd issue is
thus baseless. The issue is resolved against him.

On the whole, I find no merit in the appeal and accordingly
dismiss same. The concurrent judgments of the two courts below are
hereby further affirmed.

Representations:

Emmanuel Umoren Esq. for the Appellant.

R.A.O. Adegoke with Oluwaseye Afolabi, for the Respondent.

This is an appeal against the judgment of the Court of Appeal,
Lagos Division delivered on the 22 day of November 2013 setting
aside the appellant’s conviction and sentence for murder contrary
to Section 316(3) of the criminal Code Cap 1 laws of Lagos State
2003 and substituting in its place a conviction and sentence for
manslaughter contrary to Section 317 of the same code.

Respondent’s case at the Lagos State High Court, hereinafter
referred to as the trial court, is that the appellant, a policeman,
on the 5th April 2009 shot and killed three year-old Kafusara
Muritala. Along with four other police officers, the appellant was
deployed to Obanle-Aro/Mr. Biggs axis of Ketu Alapere, in Lagos, to
prevent criminal activities of hoodlums. The team mounted a check
point at the black spot. On the fateful day, PWl Muritala Saliu,
his wife, the deceased and some other passengers were being
conveyed by one Saheed in a Nissan Sunny Saloon car towards mile 12
from a naming ceremony in a friend’s house. At about twelve meters
from the check point and soon after the sound of a gunshot,
Kafusara’s mother on noticing the deceased had slumped raised
alarm. PWl, the deceased’s father, the vehicle having stopped,
carried the deceased back to the check point shouting profusely
that the police had killed his daughter. Further to the complaint
lodged on the incident and the investigation conducted thereon, the
appellant, who had confessed shooting at the tyres of the vehicle
in which the family of the deceased were being conveyed, was
arraigned, convicted and sentenced to death for the murder of the
deceased. Dissatisfied, the appellant appealed to the Court of
Appeal Lagos Division which decision of 22nd November, 2013 allowed
the appeal in part. Still aggrieved, the appellant has further
appealed to this Court on a notice filed on l6th December, 2013
containing ten grounds.

At the hearing of the appeal counsel identified, adopted and
relied on parties respective briefs of argument. At page 3 of the
appellant’s brief of argument settled by Emmanuel Umoren Esq and
deemed duly filed and served on 11th January, 2018 the six
unnecessarily prolix issues distilled read:

Whether from the facts and circumstances of this case, the Court
of Appeal was right to hold that the deceased died of gunshot and
the failure of the Respondent to tender the post mortem report was
not fatal to its case. (Ground 2).

Whether from the facts and circumstances of this case, the Court
of Appeal was right in law to convict the Appellant for the offence
of manslaughter. (Grounds 7 and 8)
Whether in a murder charge which attracts capital punishment, the
Court of Appeal was right to ignore and or fail to consider the
various defences open to the Appellant or raised by the Appellant.
(Grounds 1 and 4).

Whether from the facts and circumstances of this case, the Court
of Appeal denied the Appellant his constitutional right to fair
hearing” (Grounds 3 and 5)
Whether the Court of Appeal was right when in sentencing the
Appellant, it refused to follow the binding decision of the Supreme
Court in OMINI V. STATE (1999) 12 NWLR PART 630 PAGE 168. (Ground
9).

Whether from the facts and circumstances of this case, the Court
of Appeal was right to sentence the Appellant to life imprisonment
for the offence of manslaughter. (Grounds 6 and 10).”

For the purpose of the case at hand, it appears that in
resolving appellant’s 2nd issue, his 5th and 6th issues it subsumes
will equally be resolved. Though appellant’s 1st 2nd, 3rd and 4th
issues are glaringly similar to respondent’s four issues, the
latter’s issues, being better couched, shall however inform the
determination of the appeal.

On the 1St and 2nd issues, learned appellant’s counsel submits
that to secure conviction, the law places the burden of proving all
the ingredients of the offence, the appellant is charged with
beyond reasonable doubt on the respondent. It is not enough for the
respondent to establish the fact of death of a human being. For the
court to convict the appellant, it is submitted, respondent must
further link the death with the act of the appellant done with the
intention or knowledge that death of his victim was probable. The
report of the postmortem carried out by DW3, which the respondent
failed to tender, is necessarily required to establish the cause of
death. Furthermore, it is argued, not only are there material
contradictions in the evidence of the prosecution witnesses, the
evidence of some of them which are in support of the appellant’s
case are withheld from the court. The law, it is submitted, does
not allow the respondent to conceal any fact even where it supports
the appellant’s case from the court, where it does so, the
prosecution is liable to loose-its case. Relying inter-alia on
Section 135 of the Evidence Act 2011 Eziegbo v. ‘State (2012) 16
NWLR (Pt 1326) 318, Ahmed v. State (2001) 18 NWLR (Pt 746) 622,
Omini V. State (1999) 12 NWLR (Pt 630) 168, learned counsel submits
that the decisions of the two courts on the guilt of the appellant
though concurrent, not having drawn from the evidence on record, is
not sustainable.

Assuming without conceding that evidence abound in proof of
manslaughter against the appellant, it is further argued, the
sentence imposed on the appellant by the lower court is excessive.
The appellant, it is contended, had urged the lower court to comply
with the Supreme Court’s decision in 0mini V. State (1999) 12
NWLR‘(Pt 630) 168 by reducing appellant’s sentence to ten years.
Notwithstanding the lower Court’s findings at pages 219 and 227 of
the record that the facts of the instant case are on all fours with
those in 0mini V. The State (supra), the court, learned counsel
contends, all the same refused to reduce the sentence to ten years
as was done in 0mini V. State (supra). Learned counsel submits that
it is wrong of the lower court to have so refused. Relying on m
Odulami V. Nigerian Navy (2013) 12 NWLR (Pt 1367) 20, he urges that
this Court invokes its powers to reduce the sentence in enforcing
compliance with its decision by the lower court. Learned counsel
prays that the two issues be resolved in appellants favour.

Firstly, cases are authorities for what they decided. The
doctrine of stare-decisis learned appellant’s counsel asserts the
lower court has violated is about past decisions of courts binding
them in subsequent occasions where the facts and legislations
applicable to the settled facts are same or similar to, those the
courts earlier pronounced upon. Our case law has remained
consistent on this principle. It is therefore settled that a court
lower in the judicial ladder is bound by its own or the ratio
decidendi of a higher court in an earlier case, if the issues of
fact and the legislation the court considers subsequently are same
or similar. See Dr. Umar Ardo V. Admiral Murtala Nyako & ors.
(2014) LPELR-22878 (SC) and 0Nigeria Agip Oil Company Ltd V. Chief
Gift Nkweke (2016) LPELR-25050 (SC). Where the lower court, as in
the instant case, holds itself bound by the decision of this Court
on same or similar facts, appellant’s grudge against the lower
court’s decision cannot, therefore, be taken seriously. See Dalhatu
V. Turaki (2003) 15 NWLR (Pt 843) 310 and Nobis-Elendu V. lNEC
& ors (2015) LPELR-25127 (SC).

The appellant in the instant case, like the appellant in the
Omini v. State case (supra) the lower court is alleged to have
circumvented, was tried and convicted for the offence of murder.
The decision of this Court the lower court lavishly reproduced in
its judgment, see pages 223 224 of the record, inter-alia
reads:

“It seems to me that the trial Judge having found as a fact,
which was accepted by the Court of Appeal, that the death of the
deceased was as a result of the act of the Appellant, the shooting
which resulted in the death of the deceased was as a result of the
culpable disregard of his legal duty to take care, but without the
necessary intent. The intention of Appellant was clearly to shoot
at the vehicle. If as it appears from the evidence he failed to
exercise sufficient care and consequently resulting in the death of
the deceased, it seems to me that the action comes clearly within
the purview of Section 317 of the Criminal Code. The Court below
regrettably failed to direct its mind to this aspect of the law.
The trial Judge ignored this part of the evidence before him and
therefore came to the erroneous conclusion that the prosecution
proved the offence of murder beyond reasonable doubt. The reason
why the judgment of the trial judge should be set aside is that the
prosecution having not proved that Appellant intended to cause the
death of the deceased, the offence of manslaughter because in
complete and culpable disregard of his legal duty to take care in
the handling of his gun in the discharge of his lawful duty, his
act resulted in the death of the deceased. ‘See Onah v. The State
(1977) 7 SC 69.”

In submitting to the foregoing decision of this Court, the lower
court at pages 224 225 of the record enthused thus:

“I most respectfully borrow and rely in toto on the binding
words of the Supreme Court in Omini v. State (supra) to allow the
appeal by setting aside the verdict of murder entered against the
appellant by the court below and quashing the sentence of death
passed on the appellant by the court below for the murder of the
deceased under Section 316(3) 0f the Criminal Code and substitute
in its place a conviction of the appellant for the lesser offences
of manslaughter as defined under Section 317 of the Criminal Code
CapC.17 Laws of Lagos State, 2004, and punishable under Section 325
of the same Code read with section 19(3) of the Court of Appeal
Act, 2003.

Considering the seriousness of the crime of manslaughter which
by Section 325 of the Criminal Code states that ’any person who
commits the offence of manslaughter is liable to imprisonment of
life’, I hereby impose the sentence of imprisonment for life on the
appellant for manslaughter accordingly.”

By correctly binding itself to the earlier decision of this
Court on all fours with the matter it decided in the foregoing,
appellant’s allegation of impertinence against the lower court is,
clearly, unsustainable. Appellant’s grudge under the 2nd issue is
thus baseless. The issue is resolved against him.

On the whole, I find no merit in the appeal and accordingly
dismiss same. The concurrent judgments of the two courts below are
hereby further affirmed.

Representations:

Emmanuel Umoren Esq. for the Appellant.

R.A.O. Adegoke with Oluwaseye Afolabi, for the Respondent.