⦿ CASE SUMMARY OF:
Festus Amayo v. The State (2001) – SC
– Independent of the will;
(2001) 18 NWLR (Pt.745)251;
(2001) 12 S.C (Pt.1) 1;
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– B.E.I. Nwofor;
* FOR THE RESPONDENT
– J.C. Duru Administrator, General Ministry of Justice, Imo State Esq.;
⦿ FACT (as relating to the issues)
THE FACTS OF THIS CASE CAN BE GLEANED FROM PW.3 TESTIMONY:
“I remember 22nd October 1987, I was going to my school-Ohaji High School. Then I went up to PortHarcourt Road/Federal Low Cost Housing Road Junction where I joined a motor vehicle towards the Port-Harcourt Road. It was a 404 Peugeot Pick Up van. I saw the driver and one other person sitting by him. P.W.1 is the driver of the 404 Peugeot Pick Up. The boy sitting near the driver, P.W.1 allowed me to sit between him and the P.W.1. We drove towards Port Harcourt. As we got near Avu JUNCTION, People in police uniform flagged the vehicle to stop. The driver P.W.1 slowed down to stop. As the P.W.1 was about to stop the policeman who flagged him down turned his back to the vehicle and faced the other side of the road. Then the P.W.1 tried to continue moving onwards. Then another police man immediately fired his gun towards us. He fired at us from the right side of the vehicle. The boy who was sitting outer most near the door of the pick up was hit by bullet from the gun fired by the policeman. The P.W.1 cleared from the road stopped and began to cry. Then the policeman who fired the gun also came to the vehicle and started crying. Later they reversed the vehicle and carried the injured person to a hospital while I continued to my school;”
The Appellant was for the crime of murder tried in the High Court of Imo State presided over by Ubah, J. On 26 November, 1991, the learned trial judge in the concluding part of his judgment held: “The testimonies of the 3rd, the 1st and 5th prosecution witnesses offer ample, and satisfactory proof of the ingredients of the offence of murder. In my humble view, the prosecution has proved the charge beyond reasonable doubt”.
Earlier, he regarded the 3rd P.W as the only eye-witness relied on by the prosecution. He accordingly found the appellant guilty of the offence of murder and convicted him. He then sentenced him to death. On 13th July, 2000, the Court of Appeal (Port Harcourt Division) dismissed the appellant’s appeal and affirmed the conviction for murder and sentence of death.
1. Whether the appellant was exculpated from criminal responsibility for the death of the deceased by virtue of the provisions of section 24 of the Criminal Code.
2. Whether the guilt of the appellant was established beyond reasonable doubt as laid down by law before he was convicted for murder and sentenced to death?
⦿ ARGUMENTS OF PARTIES (SERIALLY IN ACCORDANCE WITH THE ISSUES)
* FOR THE APPELLANT
*FOR THE RESPONDENT
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED, IN PART]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT. THE MURDER SENTENCE WAS REDUCED TO MANSLAUGHTER.
i. The appellant could not therefore be found guilty of murder under s.316(c). From what I have discussed in this judgment, he can be convicted of manslaughter under section 317 of the Criminal Code. I have no doubt that by shooting at the vehicle the present appellant did an unlawful act which was at the same time dangerous, and that it is an act which all reasonable people will so recognise and must condemn as an act bound to subject anyone in the vehicle to the risk of harm. But I cannot categorically say he intended to kill or cause grievous bodily harm to anyone, in fact I will not at all say he had that specific intention. In the circumstances, I think his conviction for murder by the trial court was wrong. The court below was therefore in error to have affirmed the conviction.
S.24 of the Criminal Code;
S. 316(a, b, c) of the Criminal Code;
S. 317 Criminal Code;
⦿ SOME PROVISIONS
Black’s Law Dictionary, sixth edition, p. 134. The term “automatism” is itself defined inter alia as: “Behaviour performed in a state of mental unconsciousness or dissociation without full awareness … Term is applied to actions or conduct of an individual apparently occuring without will … Automatism may be asserted as a criminal defence to negate the requisite mental state of voluntariness for commission of a crime”.
⦿ RELEVANT CASES
Karibi-Whyte JSC in Chukwu v. The State (1992) 1 NWLR (Pt.217) 255 at 269: “Where the voluntary act results in an event which was neither intended nor foreseen, the consequence is an accident.”
Oputa JSC put it in these words in Adelumola v. The State (1988) 1 NWLR (Pt.73) 683 at 692-693 inter alia: “It seems to me that the expression an event which occurs by accident’ used in section 24 of Cap. 42 of 1958 describes an event totally unexpected by any ordinary person, the reasonable man of the law … An event is thus accidental if it is neither subjectively intended nor objectively foreseable by the ordinary man of reasonable prudence.”
⦿ NOTABLE DICTA
There is no doubt that where medical evidence is necessary, it is important to be certain of the identity of the corpse presented for autopsy. This is an aspect of the duty of the prosecution to prove its case beyond reasonable doubt. If therefore, there is reasonable doubt as to the identity of the corpse upon which the doctor performed the autopsy the prosecution’s case fails. The reason for such certainty is to obviate any possible mistake of an autopsy being conducted on the wrong corpse which would produce unrelated and irrelevant cause of death to the corpse in question in the homicide case being tried. – Uwaifo, JSC. Amayo v. State (2001)
An accident as an event is none other than a voluntary act but which results in unforeseen and unintended consequence. It is a matter of ordinary factual evidence which will be subjected to the objective test. – Uwaifo, JSC. Amayo v. State (2001)
It is a clearly erroneous submission assuming that this piece of evidence is available to the appellant, that upon the facts alleged the two arms of section 24 can be combined as a defence of accident. If I may repeat, the first arm of the defence under section 24 is only available if there is an involuntary act or omission or there is an act or omission which happens outside the will of the person concerned, such as is triggered by a spasm, a reflex action, convulsion or sleep-walking, or even perhaps a sudden reaction to a sharp bite, or the like. As already shown, if the rifle dropped from the appellant, it was an unintended event which happens through loss of control or through carelessness. It was not that he was in a state of mental unconsciousness which suddenly arose from the known causes. When the rifle then exploded and the deceased was hit, according to him, that would be an unintended and unforeseen consequence which occurred by accident. – Uwaifo, JSC. Amayo v. State (2001)
It is untidy to combine the defences in the two arms of section 24, as though both relates to and define the defence of accident but they may be raised in the alternative: one being automatism’, the other accident as may be appropriate, depending on the true nature of the evidence. – Uwaifo, JSC. Amayo v. State (2001)
One of the elements of murder as provided for in s. 316(a) or (b) is that the act done must be with the intent to kill or to inflict grevious bodily harm. This is what is known as “specific intention” which is necessary for sustaining a murder charge. – Uwaifo, JSC. Amayo v. State (2001)
On the facts of this case, if the ordinary reasonable person were to be asked: Did the appellant intend to shoot to kill, or did he intend to shoot to cause grievous bodily harm? The answer may well be a straight, no. It is likely to be “I don’t think so.” But perhaps being in some doubt, the answer can be, “I can’t really say”. These possible answers must be because of the way the appellant vaguely shot thoughtlessly at the vehicle and the manner he spontaneously broke down one realising what harm he had done. According to P.W.3, he came up to the vehicle and resignedly held the injured conductor, weeping. It was an unrestrained show of remorse on seeing what he had caused. On the other hand, if the person were to be asked, how can anyone shoot like that, was that not dangerous? There would be no hesitation to answer in the affirmative. This would represent the view of reasonable and sober people. It is I think, a fair view to say that upon an adequate summing-up (or a judge as a jury calmly directing himself) on the facts of the shooting and the accompanying scenerio, a jury must be wary indeed of returning a verdict of murder. – Uwaifo, JSC. Amayo v. State (2001)
The test as to what is unlawful and dangerous does not depend on the knowledge or thinking of the accused. It is based on the objective test, that is, what a reasonable person would describe as unlawful and dangerous. – Uwaifo, JSC. Amayo v. State (2001)