3PLR – ADEBAYO ADEYEMI V. THE STATE

ADEBAYO ADEYEMI

V.

THE STATE

IN THE SUPREME COURT OF NIGERIA

FRIDAY, 12TH JULY, 1991

SC 38/1989

3PLR/1991/14 (SC)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

MUHAMMADU LAWAL UWAIS, J.S.C. (Presided)

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

PHILIP NNAEMEKA-AGU, J.S.C.

ABUBAKAR BASHIR WALI, J.S.C.

UCHE OMO, J.S.C. (Read the Leading Judgment)

 

REPRESENTATION

Chief F.O. Akinrele, SAN, (With him, Chief Debo Akande, SAN, O. Obiakan) – for the Appellant

David Onyeike, Legal Officer, Ministry of Justice, Lagos State – for the Respondent

 

MAIN ISSUES

CONSTITUTIONAL LAW:– Presumption of innocence – 5.33(9) 1979 Constitution – Murder – No-case submission – Where accused discharged thereon but then directed to stand trial for manslaughter – Effect of

CRIMINAL LAW AND PROCEDURE:- Armed robbery – Resistance by residents – Degree of care required

CRIMINAL LAW AND PROCEDURE:- Autrefois acquit – S. 33(9) 1979 Constitution – Murder – No-case submission – Discharge thereon but accused asked to defend manslaughter – Effect thereof

CRIMINAL LAW AND PROCEDURE:– Conviction for lesser offence -S. 179, C.PA. – Conditions for applicability of – – What constitutes lesser offence – Test of

CRIMINAL LAW AND PROCEDURE:- Charge – Dismissal of a charge on the merits – Meaning of.

CRIMINAL LAW AND PROCEDURE:– Doctrine of severance – Applicability to criminal charges.

CRIMINAL LAW AND PROCEDURE:- Manslaughter – Negligence – Decree required

CRIMINAL LAW AND PROCEDURE:– Murder – Whether severance to leave manslaughter.

CRIMINAL LAW AND PROCEDURE:- No-case submission – No-case submission – Meaning of – When sustainable – Discharge of accused person – S. 286, C.P.A. – Effect thereof

CRIMINAL LAW AND PROCEDURE:- No-case submission – Dismissal on the merits – Meaning of.

CRIMINAL LAW AND PROCEDURE:– No-case submission – Order of discharge – Effect on jurisdiction of the Court thereafter.

CRIMINAL LAW AND PROCEDURE:- No-case submission -Substantive offence not established but lesser offence established – Proper order for court to make .

CRIMINAL LAW AND PROCEDURE:- Presumption of innocence – S. 33(5),1979 Constitution -Successful plea of no-case submission – Court discharging accused but calling on him to stand trial for lesser offence – Effect thereof.

CRIMINAL LAW AND PROCEDURE:- ‘Prima facie’ case – What amounts to – Failure thereof – Proper order to be made.

PRACTICE AND PROCEDURE – APPEAL:- Concurrent findings of fact by two lower courts – When Supreme Court will interfere therewith

PRACTICE AND PROCEDURE – APPEAL:- Concurrent findings of fact by two lower courts – When Supreme Court will interfere therewith

PRACTICE AND PROCEDURE – COURT – Absence of jurisdiction in court – Proceedings conducted – Effect.

PRACTICE AND PROCEDURE – COURT – Misdirection by the court – Effect thereof.

PRACTICE AND PROCEDURE – COURT – JUDGMENT AND ORDERS:- Misdirection by the court – Effect thereof.

PRACTICE AND PROCEDURE – EVIDENCE – Admission – Facts admitted not amounting to confession – Effect thereof.

PRACTICE AND PROCEDURE – EVIDENCE -Admission – Facts not within knowledge of party admitting – How treated.

PRACTICE AND PROCEDURE – EVIDENCE:- Confession – Relevant considerations.

PRACTICE AND PROCEDURE – EVIDENCE:- Proof of crime – Standard of proof prosecution must discharge – Misdirection by court – Effect.

PRACTICE AND PROCEDURE – JURISDICTION:- Absence of jurisdiction in court – Proceedings conducted thereunder – Legal effect.

PRINCIPLES OF INTERPRETATION:- Criminal cases – When interpretation requires thereon – Guiding principle.

WORDS AND PHRASES:– Dismissal of a charge on the merits’ – Meaning of.

WORDS AND PHRASES:- ‘No-case submission’ – Meaning of. WORDS AND PHRASES -’Prima Facie case’- Meaning of

 

 

MAIN JUDGEMENT

OMO, J.S.C. (Delivering the Leading Judgment):

The appellant in this appeal was originally charged at the High Court of Lagos on 1st July 1986 with the murder of one Subulola King at Abule Ijesha, Lagos on the 21st of January, 1986. At the end of the vial he was found guilty of manslaughter and sentenced to a term of three years imprisonment on 19th February, 1987. He then appealed to the Court of Appeal which confirmed his conviction and sentence. It is against that decision that he has appealed to this Court.

 

From the seven grounds of appeal filed in support of this appeal, appellant’s counsel has distilled three issues for determination which are set out thus:

(i)      At a stage of the submission of no case to answer by counsel to the appellant could the learned trial Judge ask the appellant to defend himself on a charge of manslaughter while discharging him of the offence of murder?

(ii)     That if this is so, was it necessary to take his plea on that charge?

(iii)    Is the charge against the appellant proved beyond reasonable doubt in the light of the evidence adduced?

 

The issues for determination as seen by the respondent, though couched in different language, and with a different slant, are not really dissimilar. They are stated as follows:

 

(i)      Whether the ruling by the learned trial Judge in the no case submission on the murder charge that a prima facie case of man-slaughter and not murder had been made out against the appellant tantamounted to an amendment or substitution of the said charge requiring a fresh plea from the appellant.

(ii)     Whether the trial Judge and the Court of Appeal were right in holding that the act of the appellant which resulted in the death of the deceased was an act of negligence for which the appellant was criminally liable in manslaughter.

 

Thus, it can be seen that appellant’s issues (i) and (ii) are substantially the same as issue (i) of the respondent; and that issue (iii) of the appellant and issue (ii) of the respondent are the same.

 

The first set of issues complain of the procedure adopted by the learned trial Judge and raise points of law which are indeed rather novel. As stated earlier, the appellant was charged with the offence of murder. The charge was duly read to him and he pleaded not guilty thereto. After the prosecution had called its eight witnesses and a visit to the locus in quo had been conducted, appellant’s counsel made a submission of no case on behalf of his client, the main point of which was that on the evidence before the Court no prima facie case of murder had been established. In his reserved ruling the learned trial Judge agreed with appellant’s counsel’s submission, when he held that –

“Upon a calm view of the prosecution’s evidence, I cannot find facts which tend to prove the essential elements of the offence of murder. The evidence at this point, even if I believe it is such that the accused cannot be convicted of murder upon it. The evidence points to an offence of manslaughter. Therefore, I am unable to find that a prima facie case has been made out against the accused on the charge of murder sufficiently to warrant the accused being asked to defend himself.”

 

He however went further to state that –

“By virtue of Section 317 of the Criminal Procedure Law, this Court has power to convict for manslaughter where the charge has been one of murder if the facts prove only the offence of manslaughter as in this case. By this reasoning, it is my view that a charge of murder includes a charge of manslaughter,

and concluded thus –

“In the result, I hold that no prima facie case of murder has been established against the accused person. It is my finding that a prima facie case of manslaughter has been made out for the accused to answer. I rule accordingly. The accused is discharged on the charge of murder. The accused will now proceed to defend himself on a charge of manslaughter.

 

The learned trial Judge in his reserved Judgment held that the offence of manslaughter had been established and convicted the appellant accordingly. It is against this ruling of the trial Court and the affirmation thereof by the Court of Appeal that the appellant has directed his first and second issues for determination. It is pertinent to observe that in the Court of Appeal the appellant’s first issue for determination was differently couched. It asked.

“Whether the trial of the Appellant of the charge of manslaughter without taking any plea from him is not a nullity”.

 

Appellant therefore seemed to have limited himself to attacking the procedure of the trial court to the failure of the trial Judge to have called upon the appellant to plead to the offence of manslaughter which he called on him to defend himself against. As a result, the Court of Appeal did not have the first issue posed in this Court before it. It confined itself to a consideration of the issue before it, which was anchored on the provisions of Section 164 of the Criminal Procedure Act which deals with the amendment and alteration of charges. It is sufficient at this stage to state that applying the provisions of Sections 315 and 317 of the Criminal Code and Section 179 of the Criminal Procedure Act, the Court of Appeal came m the conclusion that this was simply a question of a more serious offence of murder being reduced m manslaughter; and that since the appellant was not initially charged with manslaughter he did not need to plead to it, having already pleaded to the more serious offence of murder, and only being convicted of the lesser offence of manslaughter. On that basis it found no merit in appellant’s contention that the trial was a nullity and dismissed same.

 

On the first issue for determination in this Court, it is the submission of appellant’s counsel that once the learned trial Judge had ruled that there was no prima facie case made out in respect of the particular charge of murder before him, he had no more power (jurisdiction) to proceed and find that a prima facie case had been made out in respect of a lesser offence of manslaughter for which the appellant had not been charged before him. In coming to this conclusion, appellant’s counsel referred to Sections 286 and 179(2) of the Criminal Procedure Law and relied on – the case of Omorere vs. The Inspector-General of Police (1956) N.R.N.L.R. 58. Section 286 of the Criminal Procedure Law provides that-

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the defendant sufficiently to require him to make a defence the court, shall, as to that particular charge, discharge him” (Italics mine)

Section 179(2) of the Criminal Procedure Law, on the other hand, states that – “When a person is charged with an offence and facts proved which reduce it to a lesser offence he may be convicted of the lesser offence although he was not charged with it.”

 

Whilst therefore Section 286 refers to a discharge on the particular charge before it if no case is made out, i.e. before a defence. Section 179(2) comes into play only at the time of verdict i.e. in delivering judgment after all the evidence has been heard. Appellant’s counsel submitted therefore that in exercise of its powers under Section 286 of the Criminal Procedure Law it is wrong for the learned trial Judge to substitute an alternative charge of manslaughter. A similar point, but this time on stealing and the lesser offence of receiving, appears to have been considered on appeal by the High Court of the then Northern Region of Nigeria in Omorere vs. The Inspector-General of Police (Supra). In that case the appellant and two others were charged with the offence of stealing. At the close of the evidence of the prosecution, the only evidence against the appellant was that of receiving and his counsel submitted that he should be discharged on the offence of stealing for which he was charged. The learned trial magistrate ruled against that submission holding that there was a prima facie case made out of stealing and called on the appellant to defend himself thereon. His Counsel refused to take any further part in the proceedings in respect of the appellant, who did not therefore testify in his defence. At the end of the hearing the Chief Magistrate convicted the appellant of the offence of receiving, relying on his powers under Section 173 of the Criminal Procedure Ordinance. The appellant appealed contending, inter alia, that he ought to have been discharged on the offence of stealing and should not therefore have been called upon to defend himself thereupon. In dismissing the appeal and upholding the decision of the trial Chief Magistrate, the High Court (per Bairamian Ag. C.J (as he then was) dealt with the issue thus:

“Section 173 of the Ordinance enables the court to convict of receiving under a charge of stealing although the defendant was not charged with the offence of receiving. We asked Mr. Ovie-Whiskey, who appeared for the appellant, to explain in what way that section could operate if at the close of the evidence for the prosecution, where the evidence was of receiving, the defendant was to be discharged on the charge of stealing before the court; for then there would be no charge left on which to proceed. Mr. Ovie-Whiskey, as we understood him to say, argued that the magistrate ought to have called upon the appellant, without discharging him, to answer a case of receiving. This argument virtually abandons grounds (2), namely that the appellant ought to have been discharged, and introduces a new ground, namely that upon the evidence the appellant ought to have been called upon to defend himself on receiving only. There are difficulties in the way of accepting this argument……………… The aim of Section 173 of the Criminal Procedure Ordinance is to leave it an open question until the time of the verdict whether a person charged with stealing was guilty of stealing or of receiving.”

 

In that case therefore the appellate court refused the submission of appellant’s counsel that the trial court should have taken a similar (or better) course to the one taken by the trial Judge in the case presently on appeal i.e. to call on the appellant, without discharging him of the offence of stealing, to answer to a case of receiving. The appellate court held that once discharged of the offence of stealing, at the end of the case for the prosecution, there was no charge left on which to proceed; and the only course left to the trial court is to discharge the appellant on the charge before it. The refusal of the trial Chief Magistrate to hold that a case of stealing had been made out (even where the evidence can only sustain a charge of receiving) and to convict on receiving when delivering his verdict at the end of the case, was held to be more in compliance with the provisions of Section 286 of the Criminal Procedure Act.

 

It is however the contention of the respondent in his brief in commending the reasoning of the trial court and the Court of Appeal that –

 

“the offence of murder is severable from a charge of murder which would result in a subsisting manslaughter charge. That is to say that by virtue of the provisions of Section 315, 317 and 179 supra it is possible during the course of a trial of a charge of murder to extract the murder aspect from the charge and still leave the charge standing in respect of manslaughter. So that a discharge on a murder charge at the no case stage does not necessarily mean an end to that charge in totality for it is submitted that a charge of murder necessarily encapsulates both murder and manslaughter, and if, as in the instant appeal, there is a discharge on murder then a charge of manslaughter is still left standing”.

 

He further stated that the fundamental question here is whether in the circum-stances the appellant was prejudiced by the reasoning adopted by the learned trial Judge in his ruling on the no-case submission and then submitted that –

“It is incontestable that the learned trial Judge certainly had residual powers to punish for manslaughter if at the end of the trial on a charge of murder it appears to him that what actually had been proved was the lesser offence of manslaughter. By parity of reasoning, where the question to be answered was whether, at the close of a no case submission, there was made out a prima facie case of murder, it would have been absurd, and in fact prejudicial to the defence of the appellant for the trial Judge to have held that there was no prima facie case of murder made out, and yet proceed to call on the appellant to make his defence to murder. I think that at this stage it was only proper for the learned trial Judge to call in aid his residual powers under 315 and 317 of the Code and Section 179 of the Criminal Procedure Law and extend them to cover the instant situation so that the appellant was clear as to the nature of the allegation he was to meet at this stage with his defence”.

 

What has to be decided in the final analysis on this issue is which of two procedures is in accord with the law. Whether after a no-case submission or at the end of the case for the prosecution, in a criminal trial, where the evidence supports a lesser offence only, the court should either discharge the accused of the serious offence charged, and thereafter call on him to answer to a lesser offence, or hold that a prima facie case for the more serious offence had been. made out, and then proceed in its verdict to convict of the lesser offence. I have no doubt whatsoever that the latter procedure is the one which accords with the law as provided particularly in Section 286 of the Criminal Procedure Law which sets out the power of the trial court at the material stage of a no-case submission (i.e. the end of the case for the prosecution). This is because a discharge on the serious offence charged, for whatever reason, must mean the end of the case, since Section 286 specifically provides that “the court shall, as to that particular charge, discharge him”. The decision of the court in Omorere’s case (supra) is here apposite. The contention that the lesser offence of manslaughter is severable from the more serious offence of murder, where no prima facie case of murder has been made out, has not been supported by any legal authority and is obviously wrong. The fact that on a charge of murder, it is possible to convict of the lesser offence of manslaughter does not permit of any question of severance. That alternative is only available at the stage of verdict/conviction, not before.

 

Where an accused person is charged with murder, it would, in the interest of Justice, be better that he goes through the “psychological agony” of a full trial on the serious offence of murder, and subsequently be found guilty and convicted of the lesser offence of manslaughter, rather than that he be discharged of the more serious offence of murder on a no-case submission, when a verdict of the lesser offence is probable at the end of the trial. The answer to the first issue for determination as posed by the appellant is therefore in the negative, and this appeal succeeds thereon.

 

Since the answer to the appellant’s first issue for determination is in the negative, there is really no need to proceed to answer, the second issue, because it no longer arises. A few comments would not however be amiss on the issue whether the ruling of the trial Judge, particularly his calling the appellant to defend himself on the lesser offence of manslaughter constituted an amendment of the charge of murder, and if so whether a fresh plea to the lesser charge would be necessary in the circumstances. Furthermore, what would be the effect of not taking afresh plea. It is quite clear that the circumstances in this case do not fit into the usual run of cases which have been decided on the provision of Section 164(1) of the Criminal Procedure Act, among which Ukaegbu vs. The State (1979) 11 , S.C.1 is very prominent. Whereas in all the other cases, most of which were considered in Ukaegbu’s case (supra) and include Eronini v The Queen (1953) 14 W.A.C.A. 366, R v. Ogunremi (1961) All N.L.R. 467; (1961) 2 SCNLR 189; Attorney-General of Western Region vs. Raimi Adisa (1966) N.M.L.R.144(146); Joseph Okosun is. The State (1979) 3-4 S.C.36, there were applications made to the court to amend the charge which was duly granted, in the present case on appeal there was no such application. What appellant’s counsel is relying upon is a presumed alteration or amendment of the charge. In other words, that the action of the trial Judge be deemed or assumed to tantamount to an amendment or alteration of the charge before him. I am afraid this presumption or assumption is entirely unfounded. The action of the trial Judge does not in any way fit into the provisions of Section 164(1) of the Criminal Procedure Act. As far as that submission is concerned the Court of Appeal was quite right to hold that section 164(1) is not applicable, and that what happened was not an amendment or alteration but a case of a more serious offence of murder being reduced, wrongly as found by me in considering the first issue, to a lesser offence of manslaughter. The question whether a fresh plea should be taken in such circumstances pursuant to the provisions of Section 164 of the Criminal Procedure Act (or otherwise) does not arise.

 

I now proceed to consider the third issue for determination by the appellant (second by the respondent) which attacks the legal decision, based on the facts before the trial court, that the offence of manslaughter has been established. In this instance both issues for determination are relevant – they constitute both sides of the same coin. To constitute proof beyond reasonable doubt, negligence of the degree required to establish manslaughter must be revealed by the evidence and proved.

 

For a proper consideration of these second set of issues it is necessary to set out briefly the relevant facts of this case which are largely undisputed. The deceased and the appellant lived in apposite and adjacent houses in Abule Ijesha. At about 1 a.m. on the 21st February, 1986 an alarm was raised as to the presence of armed robbers in the street in which they lived. There were shouts of Ole! Ole! (meaning Thief! Thief!) and some shots were fired. Although there was a black-out in the area, an electricity generator provided light for the flat where the deceased lived with her husband. The deceased and two others in the house went downstairs to check on her husband who had gone to purchase fuel oil for the generator. Satisfied as to his safety, they were on their way back upstairs when the Appellant who had been asleep in his room emerged therefrom up to the first floor balcony of his house, with a double-barrelled gun (duly registered) in his possession, with the intention of using same to scare the robbers away. Noticing the deceased and her companions in movement, he shouted on them to get back and immediately thereafter fired shots from his gun into the air. Soon after, the deceased and one of her companions were hit. They were rushed to the hospital, where the deceased was declared dead on arrival. After police investigation, the appellant was charged to court for murder of the deceased.

 

The medical evidence showed that the deceased died from multiple gunshot wounds – thirty three (33) in all, and that twenty eight (28) small bullets were recovered from her body. None of these were tendered in evidence. Whilst there was evidence which the court believed that bullet marks on part of the deceased’s house were made by shots (bullets) from the appellant’s gun, there was no ballistic or other evidence to show that the bullets recovered from her dead body came from the same source.

 

The learned trial Judge however believed that the deceased died from bullets fired at her by the appellant. On the evidence before him the learned trial Judge found the following facts proved:

“1.     That the accused and the deceased lived in flats which are opposite each other on the 1st floor of two adjacent houses about 10 to 15 yards apart at 10/12 Femi Adebule Street, Abule Ijesha, Yaba.

2. That an alarm was raised on the night in question (i.e. 21st January, [199116 NWLR Adeyemi v. State (Omo, J.S.C.) 21 1986) that armed robbers were operating near the residences of the accused and the deceased at Femi Adebule. Street, Abule Ijesha, Yaba.,

 

3. That there was electric power failure and consequently a black out in the area of the residences of the accused and the deceased on the night in question.
4. That there was confusion and pandemonium in the area following the alarm raised.
5. That the accused is the owner of the shot gun Exhibit 6 which the ballistician 7th P.W. examined after the incident, and in respect of which he wrote his report Exhibit 7.
6. That the accused fired shots from Exhibits 6 up in the air and in the direction of the deceased on the night in question.
7. The pellets released from the shots fired by the accused hit the de-ceased and killed her on 21st January, 1986 – see Exhibit 1 (the post mortem examination report) and the evidence of 1st P.W”.

(Italics mine)

 

Of these findings, only the seventh is disputed (and strongly) by the appellant. The learned trial Judge later considered the issue of negligence, and as stated earlier, he found the appellant’s conduct grossly negligent and sufficient to support a charge of manslaughter.

 

The complaint of the appellant has been narrowed down to these two findings/conclusions which were confirmed by the Court of Appeal.

 

After relying on the supplementary brief of the appellant in the Court of Appeal, appellant’s counsel summarised his main complaints to be –

“(a)    That there was no evidence that it was the appellant’s bullet and no one else that killed the deceased.

(b)     That the appellant is not criminally negligence in his conduct on the night in question as regards the deceased.”

 

Submission (a) above cannot be a correct statement of the position. There was evidence of the visit to the locus in quo (which the trial court relied heavily on) and a portion of the appellant’s statement to the police where he stated that

“I fired two shots in the air and the bullet sprayed to hit one Subu King (my note: the deceased) and an unknown stranger”.

 

The correct position, and what the submission was amplified by appellant’s counsel to mean, is that there was no conclusive evidence that the appellant’s bullet, and that of no one else, killed the deceased. It is on that basis that submission (a) will be considered in this Judgment. In it’s consideration of this submission, the Court of Appeal relied heavily on the statement of the appellant Exhibit 4, the salient portion of which it set out thus:

“I fired two gun shots in the air and the bullet stooved (sic) to hit Subu King and an unknown stranger. Upon the alert (sic) of shout I came out and saw that two victims were in pain. I tried to know what happened and I was informed that the bullet hit them. The tenants and myself, I driving my car took the victims to University of Lagos, Akoka clinic, driving behind the car conveying the victims. …… Subu was confirmed dead”.

 

It then held that the statement by the appellant showed that he had no doubt whose shot killed the deceased. Taking the statement as a whole, I do not think it is right to hold that it unequivocally admitted that it was the appellant who shot the deceased. If that is so he could not have made the second and third sentences in Exhibit 4 which, for emphasis read

“Upon the alert of shout (sic) I came out and saw that two victims were in pain. I tried to know what happened and I was informed that the bullet hit them”.

 

If he was sure that he shot them he would not be informed that the bullet (presumably his, in the context) hit them. This piece of evidence cannot lead only to the conclusion that it was in fact the appellant’s shot that killed the deceased. Nor can it aid the conclusion, as the Court of Appeal suggested in its judgment, that the appellant in his evidence did not suggest that someone else shot the deceased. It is enough on this, that there is the evidence of several prosecution witnesses that as many as five to eight shots were fired that night; only two of which were from the appellant’s gun. To aid this submission the appellant’s counsel in his supplementary brief, found a review of the evidence of the prosecution to show that:

(i)      As many as 6 shots were fired out of the same gun and/or by the accused. In fact the evidence of the ballistic expert is to the effect that the Accused gun was fired twice.

(ii)     There is also evidence of shot or shots being fired by some other person (PW4 and PW5; See also PW3 at page 39).

(iii)    There is no evidence that the pellets that killed the deceased and the one still lodged in the body of PW5 were from the same gun neither is there evidence that the pellets that killed the deceased were from the Accused gun.

(iv)    None of the eye witnesses testified as to seeing the accused firing the gun. None also testified as to whether he shot into the air and/ or in the direction of the deceased.”

 

None of these conclusions has been successfully controverted by the respondent’s counsel or indeed the courts. The most important single piece of evidence which could have justified the conclusion complained against, if in favour of the prosecution, is the production of the pellets removed from the body of the deceased and ballistic evidence to show that they are from appellant’s gun. This evidence was not called, and in my view some doubt remains on this issue which must be resolved in favour of the appellant. Whilst it is true that there have been concurrent findings of fact on this issue by the courts below, and that therefore this court would not normally disturb these findings, vide Otubu & Ors vs. Guobadia (1984) 10 S.C. 130; Nwagwu vs. Okonkwo (1987) 3 N.W.L.R. (Part 60) 314; Dibiamaka vs. Osakwe (1989) 3 N.W.L.R. (Part 107) 101. This seems to me a proper case in which this Court should interfere because the evidence relied on is far from conclusive. The decision complained of if allowed to stand will occasion miscarriage of Justice vide Onyekwe v. The State (1988) 1 N. W.L.R (Part 72) 565.

 

The more important submission here however is (b) above which disputes the finding of criminal negligence against the appellant. After considering the evidence led on this issue, and the submission of counsel for the appellant, the learned trial Judge came to the following conclusion there:

“An ordinarily reasonable man would not take the ruinous risk of shooting at all, let alone shooting into the air (not upwards) in the circumstances prevailing on the night of 21st January, 1986 at 10/12 Femi Adebule Street, Abule Ijesha, Yaba, the circumstances being that there was a black out in the area; there were many people around following an alarm concerning the presence of armed robbers in the area; and the accused actually seeing the deceased and shouting at her. To my mind it is grass negligence for the accused to have fired his gun in these circumstances, thus causing the deceased’s death.” (Italics mine )

 

The Court of Appeal made no reference to this particular finding and conclusion but preferred as unimpeachable the earlier comments/findings/conclusions on this issue, set out in an earlier portion of the trial Judge’s Judgment as follows:

“In the instant case, there was a black out; there were many people around to the accused’s knowledge; there was evidence which I accept that he saw the deceased and shouted at her to get back; he fired the gun and the deceased was hit. To my mind, this conduct of the accused amounts to gross negligence which is described in R v. Bateman (1927) 19 C.A.R.8. as “a degree of negligence going beyond a mere matter if compensation between the subjects and which amounts to a crime against the state and a conduct deserving of punishment”. – See also Queen v. Adeleke Adedoyin (1955-56) W.R.N.L.R 69 at page 72. My view that the accused was grossly negligent is strengthened by the uncontradicted evidence that shots from the gun Exhibit 6 fired by the accused made bullet or pellet marks on the balcony of the deceased’s flat and on the wall of the house on the other side of the road opposite the deceased’s house”. (Italics mine)

 

The complaint of the appellant in this appeal is directed more to the finding and Conclusion set out earlier, which while repeating some of the findings in this latter finding/conclusion, revealed the standard of behaviour of the ordinary and reasonable man, on the basis of which the learned trial Judge addressed the appellant’s duty of care. It is precisely this basis of assessment which has been attacked in appellants brief thus –

“It would be too high a standard or abnormal for that matter for the learned trial Judge to say that “the ordinary reasonable man would not take the ruinous risk of shooting at all let alone into the air”. On the converse it may have been unreasonable for a man with a licensed gun not to shoot at all and allow the armed robbers to terrorise and deprive peaceful citizens of their property and even their lives. The learned trial judge appears to have found negligence from the angle of the fatal consequences assuming that it was the appellant’s bullet that killed the deceased rather than from the precaution taken in shooting into the air. The fact that there was a shout for the deceased to go back expressly, negatives, negligence or recklessness. In the case of KING V JOHN ONI AKERELE 10 WACA P.5 where as a result of an injection of sobita improperly applied a patient of the appellant died and some became gravely ill the Privy Council emphasised that a criminal degree of negligence was not proved as there was no gross negligence by merely showing that the appellant did not make as certain as is humanly possible that he injected the correct doses.

In the light of the evidence in this case a shooting on the night in question by the appellant was not out of the ordinary nor was there evidence that it was aimed at the persons who were hit by the bullet nor was it carried out with warning for human safety. The fact that other human measures may have been taken does not bring the case within the ambit of criminal responsibility”.

 

Respondent’s counsel has on the other hand urged this Court to affirm the decision of the High Court and the Court of Appeal finding the appellant guilty of criminal negligence/manslaughter. In so doing he has urged that the criminal negligence required to ground the offence here is not that of gross negligence but as provided by Section 304 of our Criminal Code, which he says, amounts to “little more than what is known as civil negligence in England and elsewhere”. He therefore urges that the decision in AKERELE V REX (Supra), and presumably R v Adedoyin (1955/6) N.R.N.L.R.69 are not applicable here. This view is not shared by the learned trial Judge who cited and relied on Adedoyin’s case (supra) and the case of R v Bateman (supra) in both of which cases the standard of negligence is described as gross. Nor is it shared by the authors of The Criminal Law and Procedure of the Six Southern States of Nigeria (Madarikan and Aguda) where in a commentary under Section 317 of the Criminal Code (definition of manslaughter) vide pages 713 to 719, these very authorities and those similar to them are still cited and relied upon; and paragraph 2555 of Archbold’s Criminal Pleading Evidence and Practice (40th Edition) is stated to apply to Nigeria. The case of R v Bateman (supra) and the high degree of negligence required to ground the offence of manslaughter is therein discussed (vide paragraph 1869 of Madarikan and Aguda supra). Section 304 of the Criminal Code which respondents counsel relies on as governing the duty of care in the present case provides that –

“304, it is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature. that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.”

 

Contrary to the submission of respondent’s counsel the duties imposed under this section are the same as in paragraphs 2551-2562 of Archbold (supra) (vide commentary under paragraph 1839 of Madarikan and Aguda supra). The higher degree of negligence (often described as “gross”) to convict for an offence of manslaughter is still the law of Nigeria.

 

There cannot be much disagreement with both findings of fact by the trial Judge set out earlier except the fording that there is uncontradicted evidence that shots from the gun Exhibit 6 fired by the accused made bullet or pellet marks of the balcony of the deceased’s flat and on the wall of the house on the other side of the road opposite the deceased’s house. This is the result of the trial Judge’s visit to the locus in quo where he saw these bullet of pellet marks; but how he came to the conclusion that they were fired from Exhibit 6 is not stated. Here again the ballistician who gave evidence as P. W.7 should have been of great help. What has been attacked, as stated earlier, is the standard of conduct which was expected of the appellant on that fateful night, which would appear to be too high. In a situation where armed robbers were operating it surely cannot be negligent for the owner of a licensed gun in the vicinity to attempt to scare them away by firing his gun into the air. That pellets therefrom hit a bystander in the process must be adjudged an accident. To say that he should not use his gun at all for fear he may harm others, I agree, is setting too high a standard of conduct. Were it conclusively shown that the appellant shot too low and not upwards, a charge of recklessness may then be considered. I am afraid the evidence here does not bear out such a finding. The appellant would appear to have committed what may be described as a grave error of Judgment which led to fatal consequences, and no more. This does not Justify in my view a finding of gross negligence.

 

The appellant’s submission on part of his third issue for determination is hereby upheld.

 

Accordingly, this appeal is allowed. The Judgments of the High Court and the Court of Appeal convicting the appellant of the offence of manslaughter are hereby set aside. In its place, an order of discharge and acquittal is hereby made.

 

UWAIS, J.S.C.: I have had the opportunity of reading in draft the Judgment read by my learned brother Omo, J.S.C. I entirely agree that the appeal has merit and that it should be allowed.

 

The facts of the case have been fully stated in the said judgment. 1, therefore, need not repeat them here. I think the main issue in this appeal is: where there is a submission of no case to answer and the submission is upheld, is it proper for the trial Judge to proceed with the trial on the basis that a prima facie case has been established against the accused on a lesser offence? The appellant was charged with murder in the High Court of Lagos State by shooting the deceased with a gun. At the conclusion of the case for the prosecution a submission of no case to answer was made on behalf of the appellant and the learned trial Judge, silva J. ruled as follows:

…The meaning of the submission is that there is no evidence on which, even if it believed it, the Court could convict. At this stage, the credibility of the witnesses is not in issue and the question whether or not the Court believes the evidence does not arise- see R. Ogueha (1959) 4 F.S.C.64; (1959) SCNLR 154; Ajidagba v. Police (1958) 3 F.S.C.; (1958) SCNLR 60; and R. v. Coker, (1952) 20 N.L.R.62. The Court only has to be satisfied that there is a prima facie case requiring at least some explanation from the accused person.

 

Murder is defined in Section 316 of the Criminal Code and six circumstances are therein set out under any of which any person who unlawfully kills another is guilty of murder. Upon a calm view of the prosecution’s evidence, I cannot find facts which tend to prove the essential elements of the offence of murder. The evidence at this point, even if I believe it is such that the accused cannot be convicted of murder upon it. The evidence points to an offence of manslaughter. Therefore I am unable to find that a prima facie case has been made out against the accused on the charge of murder sufficiently to warrant the accused being asked to defend himself.” (Italics mine).

 

This should have been the end of the proceedings. The appellant should, under normal course of events, have been discharged. However, it was not to be, for the learned trial Judge continued with his ruling thus –

“By virtue of section 317 of the Criminal Code and section 179(2) of the Criminal Procedure Law, this Court has power to convict for manslaughter where the charge has been one of murder if the facts prove only the offence of manslaughter as in this case. By this reasoning, it is my view that a charge of murder includes a charge of manslaughter.

In the result, I hold that no prima facie case of murder has been established against the accused person. It is my finding that a prima facie case of manslaughter has been made out for the accused to answer. I rule accordingly. The accused is discharged of murder. The accused will now proceed to defend himself on a charge of manslaughter.”

(Italics mine)

 

There is nothing in the record to show that the appellant had in fact defended himself by either testifying or calling any witness to testify on his behalf. Instead the appellant’s counsel at the trial addressed the trial court and canvassed that the evidence adduced by the prosecution did not prove a case of manslaughter against the appellant. After an address, in reply, by counsel for the prosecution, the learned trial judge delivered a considered judgment in which he found the appellant guilty of manslaughter and sentenced him to 3 years imprisonment with hard labour.

 

In an appeal to the court below, the appellant complained inter alia that the failure to take his plea on the charge of manslaughter contravened the provisions of section 164 of the Criminal Procedure Act and, therefore, the subsequent trial of him for manslaughter was a nullity., The Court of appeal (Akpata and Babalakin JJ.C.A. (as they then were) and Awogu J.C.A.) found as follows, as per Awogu, J.C.A. who delivered the lead judgment –

“Since, in the language of section 179 (of the Criminal Procedure Act) the Appellant was not initially charged with manslaughter, he did not need to plead to it because it was a case of conviction for a lesser offence. I find no merit in the contention of counsel that the continued trial to which he did not object was a nullity.”

 

Before us, Chief Akinrele, learned Senior Advocate, for the appellant, submitted, as done in the appellant’s brief of argument, that the trial Judge did not rightly act, when he called upon the appellant to defend himself after having discharged him on a submission of no case to answer. He cited in support of the submission the High Court decision in Omorere v. The Inspector General of Police (1956) N.R.N.L.R.57.

 

In reply, Mr. Onyeike, learned Legal Officer, for the respondent, contended that the trial Judge acted rightly because a discharge of murder on a no case submission does not necessarily mean an end to the charge for murder, since a charge of murder includes a charge of manslaughter. He also argued that the decision in Omorere’s case (supra) is not binding on this Court since it is a decision given by a Court with lesser authority. He further submitted that the decision in the case was based on section 173 of the Criminal Procedure Ordinance (Act) while that of the learned trial Judge, in the present case, was basedlon Section 179 of the Criminal Procedure Act. The provisions of the two sections, he argued, are not the same. He relied on the decision in Nwachukwu v. The State, (1986) 4 S.C. 378 at p.400 line 20 and pp. 405-406; (1986) 2 NWLR (Pt.25) 765.

 

1 think the first question to be considered in this appeal is: what is the procedure in a trial, when a submission of no case to answer has been made? By Section 286 of the Criminal Procedure Act. Cap. 43 of the Laws of the Federation of Nigeria, 1958 which was applicable to the case –

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the defendant sufficiently to require him to make a defence the court shall, as to the particular charge, discharge him.”

 

This is what precisely happened at the trial in the present case when the learned trial Judge stated –

“Therefore I am unable to find that a prima facie case has been made out against the accused on the charge of murder sufficiently to warrant the accused being asked to defend himself …. The accused is accordingly discharged of murder. (sic)”

 

The next question that arises is: what is the effect of a discharge under the provisions of section 286 of the Criminal Procedure Act. Cap. 43? Section 301 of the Criminal Procedure Act, Cap. 43 states thus –

“301. (1)Where a complaint is dismissed and such dismissal is stated to be on the merits such dismissal shall have the same effect as an acquittal.

(2)     Where the complaint is dismissed and such dismissal is stated to be not on the merits or to be without prejudice such dismissal shall not have the same effect as acquittal.”

 

In the present case, the learned trial Judge did not state that the appellant was discharged of the complaint of murder on the merits. However, the fact that the trial Judge went on to convict him of the offence of manslaughter might suggest that it is manifest, from what followed after upholding the submission of no case to answer, that the discharge was not on the merits. Be that as it may, it has long been established that where in a criminal trial a given event is equally open to two different interpretations, the construction that is most favourable to the accused should, in that case, be given by the trial court. Apart from this, the effect of a discharge under section 286 of the Criminal Procedure Act had been considered by a High Court in the case of Inspector-General of Police v. Sydney Marke, (1957) N.R.N. L.R.89. In that case Bairamian, S.P.J. (as he then was) stated on p.94 thereof

“To repeat what has been quoted from Reedv. Nutt; (1890) 24 Q.B.D., 669 at p.673) a dismissal on the merits is a dismissal based on the facts or on the law applicable to the facts. The facts come to light when evidence has been heard: In other words, a dismissal on the merits means a dismissal after evidence has been heard, or as the Chief Justice observed, in the course of the argument in this appeal, where there has been a trial,”.

 

The High Court categorically held, on pp.94 to 95 thereof, as follows:

“The strongest point that could be urged in favour of the view that a discharge under Section 286 is not an acquittal is that in section 284 the word “discharged” is used in contrast with the word “acquitted”. That, however, does not affect the latter section 301 and the question of when the dismissal of a complaint is or is   the merits, as already explained, the complaint is dismissed when the defendant is discharged under section 286 and that dismissal is on the merits”. (Italics mine)

 

The decision was approved when it went on appeal to the Federal Supreme Court as Inspector-General of Police v. Sydney Marke (1957) 2 F.S.C. 5.; (1957) SCNLR 53

 

It follows, therefore, that the discharge of the appellant, in the present case, from the complaint of murder, was a dismissal on the merits and that marked the end of the trial against him for the offence charged. If the appellant were to be tried, on a later occasion, of manslaughter on the same facts, a plea of autrefois acquit would undoubtedly have availed him by virtue of the provisions of Section 181 of the Criminal Procedure Act and section 33 subsection (9) of the 1979 Constitution of the Federal Republic of Nigeria; which states –

“(9)   No person who shows that he has been tried by any Court of competent jurisdiction for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court”

 

When, therefore, the trial Judge, in the case in hand, proceeded to convict the appellant of manslaughter, as a lesser offence, he acted contrary to the provisions of sections 286 and 301 of the Criminal Procedure Act. It is clear that the learned trial Judge confused the procedure under section 286 with the procedure under section 179 of the Criminal Procedure Act, which provides – “179(1) In addition to the provisions hereinbefore specifically made whenever a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.

(2)     When a person is charged with an offence and facts are proved which reduce it to a lesser offence he may be convicted of the lesser offence although he was not charged with it.”

 

Whilst it is true that section 317 of the Criminal Code, Cap. 42 which states:

“317. A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter.”

 

When read in conjunction with section 179 subsection (2) of the Criminal Procedure Act (supra) empowers a trial Judge to convict of manslaughter where  murder is charged; the procedure for doing so, as I will show anon, is not the same as the procedure under section 286 where a submission of no case to answer is upheld.

 

By virtue of the provisions of section 317 of the Criminal Code (supra) and section 179 of the Criminal Procedure Act (supra) when an offence of murder is charged, such charge includes a charge of manslaughter which is a lesser offence sharing common ingredients to a lesser extent with the offence of murder – see Omorere’s case (supra) at pp.61-63 and in particular p.63 where Bairamian, Ag. C.J. (as he then was) said –

“This high authority (i.e. R. v. Simmonite,12 C.A.R.,142 at p.144) for saying that where the law authorises the court under a charge for offence A to convict the defendant of offence B, a prosecution for offence A. is equally a prosecution for offence B”.

 

It follows, therefore, in a submission of no case to answer a discharge on the offence of murder is a discharge on the offence of manslaughter; and since a discharge under section 286 constitutes a discharge on the merits, which in turn amounts to an acquittal, then the trial court cannot go on to convict for manslaughter. Such conviction is an infringement of the provisions of section 181 subsection (1) of the Criminal Procedure Act and section 33 subsection (9) of the 1979 Constitution. In effect after the discharge under Section 286 the trial Judge becomes functus officio and ceases at that moment to have the power to try or convict the accused person of the lesser offence of manslaughter. But where the trial judge, on a submission of no case to answer, finds that although the prosecution have prima facie not proved the offence charged but the lesser offence, then he is obliged to rule that there is a case for the accused person to answer and to proceed with the trial by asking the accused person to enter his defence.

 

In conclusion, the procedure that followed in the present case, after the appellant was found by the trial court not to have a case to answer on the charge o(murder, was grossly irregular and was null and void in the light of the provisions of section 33 subsection (9) of the Constitution and section 181 subsection (1) of the Criminal Procedure Act, which provides –

“181-(I) Without prejudice to section 171, a person charged with an offence (in this section referred to as the offence charged”) shall not be liable to be tried therefor if it is shown –

(a)     that he has previously been convicted or acquitted of the same offence by a competent court or;

(b)     that he has previously been convicted or acquitted by a competent court on a charge on which he might have been convicted of the offence charged; or

(c)     that he has previously been convicted or acquitted by a competent court of an offence other than the offence charged, being an offence for which, apart from this section, he might be convicted by virtue of being charged with the offence charged.”

 

Consequently, the remaining issues in the appeal pertaining to whether the appellant was guilty of manslaughter become irrelevant since I have found that the rest of the procedure under which the issues arose was null and void. To consider them will amount to academic exercise, to which this Court does not lend itself. It will be an exercise in futility.

 

Accordingly, the appeal succeeds. Both lower courts were in error to have held that, the appellant was guilty of manslaughter. It is not, therefore, necessary to set aside his conviction and sentence for manslaughter since the whole exercise was a nullity and of no effect. The appellant stands discharged on the merits of the charge of murder.

 

 

KARIBI-WHYTE, J.S.C.:

This appeal has raised inter alia, a novel point of law of critical and crucial constitutional importance. I am tempted to conclude that a point primae impression is has been raised. I say so because neither the researches of learned counsel in this case nor my own modest and limited effort has led to the discovery of any decided case within the jurisdiction on the issue.

 

The paint of law involved is whether a court of trial can after discharging an accused person of an offence upon the submission that he had no case to answer in respect of such charge, proceed to trial and conviction for a lesser offence arising from such charge? There is no doubt that if this question is answered in the negative quaesito cadit. the trial Judge having no jurisdiction, the subsequent trial after the discharge on a submission of no case to answer is a nullity. If it is otherwise then the trial being valid the conviction remains only impeachable on other grounds. This Judgment is concerned with the examination of this issue.

 

I shall now proceed to state the facts of the case, which are in themselves neither complicated nor unusual. Appellant and the deceased lived in adjacent houses at Nos. 10 /12 Femi Adebule Street, Abule Ijesha; Yaba. The balconies of their flats faced each other on the first floor of each house. The fateful day was 21st January, 1986. The time was 9 p.m. There was a failure of electric power and consequently a black out. An electric generator in the flat of deceased provided light. An alarm of the presence of armed robbers in the neighborhood and in the front of the houses of the appellant and the deceased created a stampede. The deceased accompanied by two guests went downstairs to ascertain what was happening and to ensure whether her husband who had gone out to buy fuel for the electric generator had returned and was not affected by what was happening. Deceased and her guests were returning to her flat when the Appellant came out of his room and to the balcony of his flat. Appellant shouted at them to get back, and fired shots into the air in the direction of the deceased, from the double-barrel gun he was carrying. The deceased and one of the guests with her were hit. The deceased died shortly afterwards from the injuries received from the gun shot. In the two statements appellant made to the Police during investigation of the offence, Exhibits 4 and 8, and in his testimony on oath in his defence, he admitted shooting into the air to scare away the robbers and not directly at the deceased on the night in question. He also admitted shooting in the direction of the robbers. He stated that he was told that stray bullets from his shooting had hit someone in the deceased’s flat. On investigation he discovered it was the deceased who was hit’

 

The Appellant was charged on an information with the offence of murder that on or about the 21st of January, 1986, at Abule Ijesha Yaba, in the Lagos Judicial Division, he murdered one Subulola King (f) contrary to section 319(1) of the Criminal Code; Cap. 31 Laws of Lagos State. He pleaded not guilty to the charge. The prosecution led evidence in support of the charge.

 

After the close of the case for the prosecution, learned defence Counsel submitted that the offence of murder having not been established on the evidence, the accused ought to be discharged. The learned trial Judge upheld the submission and accordingly discharged the accused of the offence of murder with which he was charged. He however went on to rule that an offence of manslaughter contrary to section 317 of the Criminal Code had, on the evidence before him, been made out and invited accused to make his defence to that offence. It should be noted that Appellant was not charged with this offence after being discharged. Accused accordingly defended himself by giving evidence on oath, and was convicted of this latter offence and was sentenced to 3 years imprisonment with hard labour.

 

Accused appealed to the Court below against both conviction and sentence. There were six original grounds of appeal against findings of fact, and the question of the burden of proof on the prosecution. The additional ground of appeal was that “The learned trial Judge erred in law, when without taking the plea of the appellant, he proceeded to hear evidence on the charge of manslaughter, convicted him and sentenced him to 3 years imprisonment”.

 

In the particulars of error, it was alleged as follows –

“The proceeding on manslaughter without a plea from the accused is a nullity.”

 

The two issues which were formulated by learned Counsel to the Appellant, adopted by Respondent’s counsel, and relied upon in the Court below are as follows –

(i)      whether the trial of the Appellant on the charge of manslaughter without taking any plea from him is a nullity?

(ii)     whether the evidence before the court, assuming that the trial was not a nullity, could support the conviction of the Appellant? Chief Debo Akande, SAN, for the Appellant relying on Ukaegbu v. The State (1979) 11 S.C. 1 submitted that the learned trial Judge was in breach of the mandatory provisions of section 164 of the Criminal Procedure Law, in the subsequent trial of the Appellant on the charge of manslaughter. His reason for the submission was that the trial Judge did not comply with the provisions of section 164 of the Criminal Procedure Law, on amendment and alteration of charges. In the alternative he submitted that the learned trial Judge was in error when he held that there was proof of gross-negligence to support a conviction for manslaughter. The Court of Appeal rejected these submissions. The Court referred to the issue of the consequences of the breach of section 164 of the Criminal Procedure Act, set out the words of the section verbatim, and referred to the dictum of Aniagolu, JSC in Ukaegbu v. State (supra) and held quite correctly that the intendment of section 164 of the Criminal Procedure Act was with respect to amendment or alteration of charges. The instant case is neither.

 

The Court of Appeal then went on to hold at p.205 that

“The appeal on hand was simply a question of a more serious offence being reduced to a lesser offence (i.e. Murder to manslaughter and, under section 315 of the Criminal Code “any person who unlawfully kills another is guilty of an offence which is called Murder or manslaughter” and under sec. 317, if the unlawful killing is not murder, it is manslaughter. As a result section 179 of the Criminal Procedure Act makes provision which cover the situation, to wit: “when a person is charged with an offence and facts are proved which reduce it to a lesser offence he may be convicted of the lesser offence although he was not charged with it.”

Relying on its construction of this section, the Court of Appeal concluded as follows:

“Since, in the language of section 179 the Appellant was not initially charged of manslaughter, he did not need to plead it because it was a case of a conviction for a lesser offence. I find no merit in the contention of counsel that the continued trial to which he did not object was a nullity”.

 

Commenting on the second issue relating to the finding of fact of gross-negligence against the Appellant, the Court of Appeal held that on the evidence before the learned trial Judge, the findings were unimpeachable. The Court endorsed the findings. The appeal against conviction and against sentence was dismissed. This further appeal is the one before us now. Five original grounds of appeal which are substantially repetition of the grounds argued in the Court below were filed. These are

“(i)     The Court of Appeal erred in law in its interpretation of s.164 of C.P.A.

(ii)     The Court of Appeal erred in law when it held that the degree of negligence established by the evidence amounted to “gross” negligence.

(iii)    The findings of facts confirmed by the Court of Appeal were wrong in law and on the facts and the degree of proof was not beyond reasonable doubt.

(iv)    The Court of Appeal erred in law in considering the oral argument of the Respondent Counsel of issues not raised in his brief.

(v)     The Court of Appeal erred in law when in the circumstances of this case it confirmed the sentence of 3 years imprisonment.” Subsequently learned Counsel to the Appellant, Frank Akinrele Esqr. SAN, sought and was granted leave to file additional grounds of appeal. The relevant additional grounds of appeal

“(vi)   The Court of Appeal erred in law in upholding the conviction of the appellant after he had been discharged on a no-case submission on the charge before the Court, to wit, murder.

Particulars of Error:

The Court having found that there was no case to answer on the charge (which included the charge of manslaughter) had no more charge before it on which to try the appellant.

(ii)     The Court of Appeal erred in law in upholding the conviction of manslaughter when the trial judge had no jurisdiction, at the time of no case submission to another charge and if he did so, failed to take a plea,

Particulars of Error:

The jurisdiction conferred on the Court for the substitution of manslaughter for murder is at the time of verdict or conviction in accordance with Sec. 179(2) of the Criminal Procedure Act.

(iii)    The Court of Appeal erred in law when it held that the degree of negligence established by the evidence amounted to ‘gross’ negligence.

Particulars of Error:

(a)     There was no positive evidence of negligence from any witness on the record.

(b)     There was evidence of intentional killing which the Court has rejected in a no case submission.”

 

Learned Counsel to the parties formulated the issues for determination differently. In substance only the third formulation of the Appellant and the second formulation of the Respondent raise the same issues. Whereas the 1st formulation of the Respondent is still tied to the question of the amendment of charges canvassed in the Court below, the 1st formulation of the Appellant raised the effect of a discharge of appellant on a no case submission on the subsequent trial of the appellant on a charge of manslaughter. I reproduce below the two formulations in the interest of clarity and to obviate ambiguity.

 

Appellant formulated the following three issues

(i)      At a stage of the formulation of no case to answer by Counsel to the appellant could the learned trial Judge ask the appellant to defend himself on a charge of manslaughter while discharging him of the offence of murder?

(ii)     That if this is so, was it necessary to take his plea on that charge? (iii) Is the charge against the appellant proved beyond reasonable doubt in the light of the evidence adduced?

 

I think what Appellant means in the first issue is whether the learned trial Judge could after the discharge of the accused on a submission that he had no case to answer, for murder, require Appellant to defend himself on a charge of manslaughter. Learned Counsel to the Respondent’s formulation is as follows: –

 

(i)      Whether the Ruling by the learned trial Judge in the no case submission on the murder charge that a prima facie case of manslaughter and not murder had been made out against the appellant tantamounted to an amendment or substitution of the said charge requiring a fresh plea from the appellant.

(ii)     Whether the trial Judge and the Court of Appeal were right in holding that the act of the appellant which resulted in death of the deceased was an act of negligence for which the Appellant was criminally liable in manslaughter.

 

It is important and pertinent to observe that neither formulation has brought out neatly, the refinements in the nature of the procedure adopted and the breach of the principles involved. First, it is of crucial relevance to mention that appellant was charged with the offence of murder. The evidence of the prosecution in respect of which learned Counsel to the appellant made a submission of no case to answer was directed towards establishing the offence of murder. The ruling of the teamed trial Judge in favour of the appellant was that the evidence had not established a case sufficient for the appellant to answer the charge of murder. In other words, the evidence adduced by the prosecution in support of the offence of murder was insufficient to require him to make his defence to that charge.

 

The question now to be answered is whether the learned trial Judge having discharged appellant of the offence of murder, in respect of what charge was appellant called upon to defend himself? The answer to this question rests on the proper construction of the relevant provisions of section 179 of the criminal Procedure Law and its application by the Courts.

 

Chief Akinrele’s submission both in his brief of argument and orally before us is that by construction of section 286 of the Criminal Procedure Law a successful submission of a no case to answer, the trial Judge is bound to discharge the accused in respect of that charge. He further submitted that the application of section 179(2) of the Criminal Procedure Law can only be resorted to at the conclusion of the case after due trial and not after the accused has been discharged of the charge against him. Learned Counsel relied on Omorere v. ICP (1956) NNLR 58 for this sub-mission.

 

Learned Counsel to the Respondent in his submission adopted the reasoning of the Court below which endorsed the view of the learned trial Judge. Counsel distinguishing between the offence of murder and a charge of murder, contended that the offence of murder which is severable from a charge of murder would on the circumstances of this case result in a subsisting manslaughter charge. His argument was formulated in his brief as follows:

 

“…by virtue of the Provisions of sections 315, 327 and 179 supra, it is possible during the course of a trial of a charge of murder to extract the murder aspect from the charge and still leave the charge standing in respect of manslaughter”. (Italics mine) ‘

 

I have italicized the pertinent expression which I hope to elaborate upon in this judgment.

 

Learned Counsel therefore contended that a discharge on a murder charge on a submission that accused had no case to answer did not necessarily mean an end to that charge, because as he contended, “a charge of murder necessarily encapsu lates both murder and manslaughter, and if as in the instant appeal, there is a discharge on murder then a charge of manslaughter is still left standing” It was further contended that since the learned trial Judge did not “amend of substitute the charge, but merely extracted from it that which he felt was no longer applicable, i.e. murder, leaving a substantive and still operative charge of manslaughter;…” there was no need for the learned trial Judge to take a fresh plea.

 

Counsel argued that appellant was in no way prejudiced by the procedure adopted by the learned trial Judge and that he had correctly exercised his residual powers to punish the accused for manslaughter at the end of a trial for murder; if it appeared to him that offence proved was manslaughter.

 

Learned Counsel pointed out the absurdity of proceeding with the offence of murder after a successful submission that an accused person had no case to answer, merely because the learned trial Judge is aware of the offence of man-slaughter in respect of which the accused could be subsequently convicted.

 

It was argued that the learned trial Judge could rely on his residual powers to convict for manslaughter in a charge of murder whether it was after a discharge of the accused of the offence on a no-case submission, or at the conclusion of the trial.

 

I consider it more convenient to dispose of this novel point of immense constitutional importance because if successful it can result in the determination of the appeal in favour of the Appellant.

 

The real crux of the issue concerns the proper legal effect of the successful defence of the submission that the accused person has no case to answer. The defence is clearly set out in section 286 of the Criminal Law which provides as follows:

“286. If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence they shall, as to that particular charge, discharge him”

 

The expression that “The accused has no case to answer” is equivalent to the provision in the United Kingdom, of the power vested in the Judge to withdraw a case from the jury. Thus when counsel makes a submission that the accused has no case to answer, the meaning is that in law, there is no evidence on which, even if believed, the court can convict – See Ibeziako v. C.O.P (1963) 1 Al 1 NLR.61; (1963) SCNLR 99; Ajidagba v. IGP (1958) 3 FSC.5; (1958) SCNLR 60. Hence the question whether or not the evidence is believed is immaterial, and does not arise. Similarly the credibility of the witnesses is not in issue. The governing considerations are that (a) an essential ingredient of the offence having not been proved, or (b) where the evidence has been so discredited and rendered unreliable by cross-examination that it would be unsafe to convict on such evidence. What then is the consequence of a successful submission. It has been held in Ibeziako v. C.O.P. (Supra) that such a discharge is equivalent to an acquittal and a dismissal of the complaint on merits – See Police v., Marke (1957)2 FSC.5; (1957) SCNLR 53.

 

In Ajidagba v. I.G. of Police (1958) SCNLR 60, the Federal Supreme Court considering the effect of the making of a prima facie case and construing S.286 of the Criminal Procedure Ordinance, adopted the meaning of the phrase prima facie in the Indian case of Sher Singh v. Jitendranathsen (1931) 1 L.R. 59 Ca1c.275. It was there said,

“The term so far as we can find has not been defined either in the English or in the Nigerian Courts. In an Indian case, however, Sher Singh v. Jitenddmnthsen(I) we find the following dicta:

“what is meant by prima facie (case)? It only means that there is ground for proceeding… But a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty, “(per Grose J) and “the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused” (per Lort-Willams, J)

 

Accordingly where the prosecution has failed to make a prima facie case, sufficiently to require the accused to make his defence, the court shall, and this is mandatory, discharge him as to that particular charge. See Ajidagba v. I.G. of Police (supra), Okora v. State (1988) 12 SCNJ 191; (1988) 5 NWLR (Pt.94) 255; and R v. Plain (1967) 1 All ER.614. The words of section 286 of the Criminal  Procedure Law are clear and unambiguous in favour of such a construction.

 

Let us refer again to the undisputed facts of the instant case, that learned Counsel to the Appellant made his submission at the close of the case for the prosecution. The learned trial Judge upheld the submission and agreed that the prosecution having not made any prima facie case in respect of the charge of murder laid against Appellant discharged him of that charge. The accused was then called upon to defend himself on the prima facie case of manslaughter found to have been established from the evidence led by the prosecution.

 

Learned Counsel to the Appellant has submitted that after a discharge on the submission that no prima facie case of murder was made, on the evidence of the prosecution, there was no more charge against Appellant, and the learned trial Judge could not have convicted him for any other offence. It was also contended that the learned trial Judge had no powers under section 286 of the Criminal Procedure Law to substitute an alternative charge. The case of Omorere v. IG of Police (1956) NNLR.57 was cited and relied upon.

 

In reply to these submissions Counsel to the Respondent contended that the charge of manslaughter was implied in a charge of murder, and that failing the latter, the trial Judge can resort to his residual powers to punish for the offence proved instead of that charged.

 

Now, the point being argued is one fairly governed by the Criminal Procedure Law, and decisions of our courts on the interpretation of the relevant provisions of section 179 of the Criminal Procedure Law which provides that:

“(I)    In addition to the provisions herein before specifically made, whenever a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved he may be convicted of such lesser offence or may plead guilty there to although he was not charged with it.

(2)     When a person is charged with an offence and facts are proved  which reduced it to a lesser offence he may be convicted of the lesser offence although he was not charged with it”.

 

The above section has been construed in several decisions of our courts. The opening words of the section, i.e. subsection (i) suggests that it is far from being exhaustive; and that it refers to earlier specific sections of the Criminal Code providing for situations where at the end of trial for a serious offence, conviction should lie where only a less serious offence was proved. There are such provisions in Sections 175-176 of the Code. Hence section 179 is intended to cover the cases not specifically provided.

 

The section seems to me to provide for those cases where only a combination of some of the particulars of the serious offence charged but not proved would constitute the lesser offence in respect of which the accused was not charged.

 

The court is empowered by this section to convict for the lesser offence either on the trial of the offence charged, or by the accused pleading guilty to such lesser offence with which he was not charged. – See the Nwaugoagwu v. Queen (1962)1 All NLR. 294; (1962) 1 SCNLR 434. This Court has in Agumadu v. The Queen (1963)1 ALL NLR.203; (1963) 1 SCNLR 379 followed in Okwuwa v. State (1964) l All NLR. 366 explained what should be regarded as a lesser offence. In that case Appellant was charged with the offence of Attempted Murder under section 320(1) of the Criminal Code. Evidence before the Court disclosed that appellant wounded the victim, but that there was no intention to kill. The Court convicted appellant for unlawful wounding which I regarded as a lesser offence. In convicting for the lesser offence, Brett F.J. said:

“A person convicted under S.300 of the Criminal code is liable to imprisonment for life, whereas a person convicted under S.338 is liable at most for imprisonment for three years, and the offence under 5.338 is manifestly a lesser offence.”

 

Attempt was made in Torhamha v. Police (1956) NRNLR.94, to provide a guide for the determination of what constitutes a lesser offence. In that case Bairamian Ag. C.J. laid down the test required by S. 179 as follows –

“…the lesser offence is a combination of some of the several particulars making up the offence charged; in other words the particulars constituting the lesser offence are carved out of the particulars of the offence charged. For example if the charge is wounding with intent to do grievous harm, the lesser offence is unlawful wounding; and if unlawful wounding is proved but not the intent to do grievous harm, the defendant may be convicted of unlawful wounding. Again if a person is charged with murder, he may be convicted of manslaughter; for murder is unlawful killing with malice and manslaughter is unlawful killing merely, or it may be murder reduced to manslaughter by provocation which furnishes an example under sub-s (2)…”

 

It seems to me that a helpful test is to discover whether the elements of the two offences are the same as in Murder and Manslaughter, or different as in Stealing and Unlawful possession. Where the elements are the same, there can be a lesser offence in respect of which an accused can be convicted without a charge. It is useful to understand that for an accused to be convicted for a lesser offence, the following conditions must be fulfilled.

 

First the elements in the offence charged and those in the lesser offence for which the accused is convicted must be the same.

 

Secondly, the evidence adduced and the facts found must be insufficient for conviction in respect of the offence charged, but at the same time support the lesser offence in respect of which the accused was convicted. – See R v. Adokwn 20 NLR. 103, at p.105, where Bairamian J. said,

“If he is to be convicted under section 179 of the Criminal Procedure Ordinance of a lesser offence, this must be on facts embraced in the particulars of the greater offence charged, otherwise he cannot properly be deemed to have notice of the lesser offence.”

 

Thirdly, the lesser offence in respect of which the accused was convicted is usually not charged. This is clearly envisaged by the expression in sub-section (1) italicized waiving the requirement of a formal charge. Finally, the accused must be tried on the more serious offence.

 

Applying the above test to the facts of this case, it is not disputed and as counsel to Respondent rightly submitted, that manslaughter is a lesser offence of murder with which appellant was charged. There was insufficient evidence to convict appellant for the offence of murder, and the facts are sufficient for conviction for manslaughter. There was no charge against appellant for man-slaughter.

 

Notwithstanding these favourable points, there are two fatal defects in the procedure adopted in the case before us. First, the appellant having been discharged of the charge of murder, he was no longer standing trial for that offence. It is well settled that after a successful submission of a no case to answer had been made in respect of the murder charge, accused is no longer to be regarded as charged with that offence and must be discharged on the merits-See Police v. Marke (1957) 2 FSC.5; (1957) SCNLR 53. This proposition follows from the fact that a successful submission is a confirmation that there was insufficient evidence in respect of the offence of murder for which the accused was charged and that it would be unconstitutional to call upon the accused to make his defence. – See S.33(9) Constitution 1979. A fortiori, the offence was not established.

 

This proposition leads inevitably to the fact that the lesser offence for which the accused can be convicted must be derived from the more serious offence in respect of which he was tried. Hence in the instant case appellant having been discharged on the merits of the charge of murder, and was not tried for that offence there was no offence the insufficiency of proof of which could result in a conviction for manslaughter.

 

I am not aware of any decided cases or statute in support of the view here contended for by the Respondent that on a successful submission of a no case submission there is an excision of the charge not established by the prosecution at that stage leaving extant for the defence the charge constituted by the lesser offence, that is to say, the submission succeeds in respect only of the more serious offence charged not supported by the evidence adduced by the prosecution. This cannot be so. The words of the section refer to a discharge of the accused from the charge. There is no suggestion of leaving any offence extant for the defence to answer.

 

I agree entirely with the submission of Mr. Akinrele for the Appellant that section 179 envisages a situation where the accused was tried on the offence and where the evidence in support thereof is insufficient to establish that offence, but is sufficient for conviction of the lesser offence. All the decided cases where a more serious offence has resulted in conviction for a lesser offence have been cases after trial for the more serious offence. This is not the position in the case before us.

 

There being no extant charge of murder after appellant was discharged there was no other charge before the Court. Proceeding, as the learned Judge has done, with the trial despite the discharge of the Appellant on the charge is precisely the absurdity which the law wants to prevent. There was no longer any charge before the Court on the discharge of the Appellant.

 

The submission that the procedure adopted tantamount to an amendment or alteration of the charge is a complete misapprehension of the correct legal position. As I have already pointed out, there was no extant charge after the discharge of the appellant to amend. The procedure adopted violated constitutional right of the appellant in an important and fundamental respect. The trial Judge held there was no case for the appellant to answer at the end of the case of the prosecution. This holding undoubtedly established his innocence of the offence of murder with which he was charged. – See S.33(5).

 

The appellant is entitled to enjoy the presumption of innocence guaranteed him by section 33(5) of the Constitution 1979. At the time appellant was called upon to make his defence to the offence of manslaughter, there was no charge of manslaughter formulated, to which he pleaded. The plea of not guilty to the offence of murder in respect of which he was charged, expired with his discharge from that offence. Stricto sensu, the trial Judge acted without jurisdiction, and the trial from that point was a complete nullity.

 

Under our constitution, there is no onus on an accused person to establish his innocence. Hence where at the close of the case of prosecution, no case has been made out against the accused, asking him to answer any charge connected with the offence with which he has been discharged is a reversal of the constitutional presumption of innocence by asking him to establish his innocence. No court has such a jurisdiction – See Mumuni v. The State (1975)6 S.C.79. In re Maiduguri (1961) 1 All NLR.673; (1961) 2 SCNLR 341; Osarodion Okoro v. The State (1988)12 S.C. N.J. 191.(1988) 5 NWLR (Pt.94) 255. Consequently every proceeding subsequent to the violation of the provisions of section 33(5) of the Constitution is void having been conducted without competence – See Madukolu v. Nkemdilim (1962) 1 All NLR.688; (1962) 2 SCNLR 341. Having held that the proceedings subsequent to the discharge of appellant was a violation of the provisions of section 33(5) and a complete nullity, it follows that the conviction of the Appellant for the offence of manslaughter is void and of no effect.

 

It seems to me that this point was not raised in the court below, as the issue there was that the learned trial judge by the procedure he adopted exercised by implication the powers under section 164 of the Criminal Procedure Law for amendment or alteration of charges. The Court below considered the facts of this case and the provisions of section 164 of the Criminal Procedure Law relied upon. The Court also cited the decision of this Court in Ukaeghu v. State(supra) where Aniagolu JSC referred to the meaning of the words “alteration” and “amendment” as explained by Jibowu Ag. OF in Okwechime v. I.G. of Police (1956) SCNLR 193 and came to the conclusion that this was not a matter of alteration or amendment of charges. The Court correctly, pointed out that it”…was simply a question of a more serious offence being reduced to a lesser offence (i.e. murder to manslaughter)”.

 

The Court below appeared to have taken a simplistic view of the issue when it thought that merely because section 315, 317 of the Criminal Code read together unequivocally states that unlawful killing amounts to murder or manslaughter, and that when unlawful killing is not murder it is manslaughter. It was then argued that S. 179 of the Criminal Procedure Law covers the situation. The reason for so holding was summed up like this

“Since, in the language of section 179 Appellant was not initially charged of manslaughter, he did not need to plead it because it was a case of a conviction for a lesser offence. I find no merit in the contention of counsel that the continued trial to which he did not object was a nullity.”

 

It is pertinent to observe that parties cannot confer jurisdiction on the Court where it has none or can have none. Thus where the court has no jurisdiction and the act done without jurisdiction is a nullity. The fact that appellant co-operated did not clothe it with jurisdiction and the consequent act with validity.

 

Now the real basis for the error of the Court below was that it was assumed appellant was tried on a charge of murder. The fact that he was discharged on the ground that his act could not have amounted to the offence of murder was ignored. In the circumstance the question of a trial for a more serious offence being reduced to a lesser offence does not arise. In my view the application of section 179 of the Criminal Procedure Law would have been relevant and appropriate where the submission was dismissed and accused was called upon to make his defence. At his trial for the offence of murder, the defences of provocation, or self-defence could be relied upon to reduce the offence charged to one of manslaughter. In such a situation, there would have been a trial of the more serious offence and a formal charge for manslaughter unnecessary.

 

In my considered opinion, and I so hold, section 179 of the Criminal Procedure Law is only applicable to enable verdict of a less serious offence where there was a trial on the merits of the more serious offence and the evidence supports conviction for the lesser offence. It is not designed for cases where there was no trial as in the instant case.

 

One final observation on this issue. Section 181 of the Criminal Procedure Law provides an absolute defence in respect of charges where the accused has been previously convicted or acquitted by a competent court exercising jurisdiction, if the offence in respect of which he was convicted or acquitted is the same as that in the charge now before the court, or the charge before the court is for an offence in respect of which he could have been convicted in the previous case. It seems to me hardly disputable that appellant having been discharged of the offence of murder in respect of which he could have been found guilty for manslaughter comes within the protection of section 181 of the Criminal Procedure Law.

 

For the reasons adduced in this judgment the Court of Appeal ought to have allowed the appeal and set aside the conviction of the Appellant. I have read the judgment of my learned brother Uche Omo, J.S.C. in this appeal, I agree entirely with his reasoning. I associate myself with the fuller reasons he has given for allowing the appeal.

 

 

NNAEMEKA-AGU, J.S.C.:

This appeal brings into focus quite an unusual problem, to wit: the proper order a court should make on a submission of “no case to answer” at the conclusion of the case for the prosecution when it is satisfied that although no case has been made out against an accused person on the particular charge before the court, a case has been made out on a lesser charge of which the accused person could be convicted on the charge before the court.

 

My learned brother, Omo, J.S.C in his lead judgment has fully set out the facts and circumstances from which the issue arose I am also of the view that the correct order to make cannot be one discharging the accused person of the particular charge of which he has been charged and calling upon him to make his defence on the lesser charge of which the ingredients are covered by the charge before the court. For, it stands to reason that once he is discharged of the greater offence the particulars of which include those of the lesser offence and more, the accused person cannot be tried or convicted of any offence constituted on the same facts by any combination of particulars of the offence of which he has been discharged. If it were otherwise, it would have negated the spirit of section 181(1)(c) of the Criminal Procedure Law of Lagos State (cap 32) Laws of Lagos State 1973.

 

That sub-section provides as follows:

“181(1) Without prejudice to section 171, a person charged with an offence (in this section referred to as “the offence charged”) shall not be liable to be tried therefor if it is shown –

x x x x x

(c)     That he has previously been convicted or acquitted by a competent court of an offence other than the offence charged, being an offence of which, apart from this section, he might be convicted by virtue of being charged with the offence charged”.

 

It cannot be disputed that manslaughter is an offence of which an accused person could, in a proper case, be convicted on a charge of murder. And it is settled that a discharge after the prosecution has closed its case amounts to an acquittal which can support a plea of autrofois acquit: see Police v. Marke (1957) 2 KS.C.5; (1957) SCNLR 53; Nwali v. Police (1956) 1 E.N.L.R.1. As it is so, the appellant could successfully plead autrofois acquit on all the ingredients of the offence of murder arising from the same facts of which he had been tried and discharged at the conclusion of the evidence for the prosecution. It is, therefore, not competent for him to be subsequently tried of any combination of those ingredients or for any court to find him guilty of them or combination of them.

 

I would prefer to hold that the case did not come under section 164(l) of the Criminal Procedure Law for which a plea would have been necessary because manslaughter is simply unlawful killing without any of the circumstances enumerated in section 316 of the Criminal Code Law of Lagos State. To put it conversely, murder is unlawful killing in any of those circumstances. So, a plea to a murder charge includes a plea to manslaughter plus the particular circumstance relied upon to support the charge. When, therefore, a court, in exercise of its powers under section 179(1) of the Criminal Procedure Law, after trying a murder charge convicts of the lesser offence of manslaughter, all that its verdict comes to is that the unlawful killing has been proved but that the circumstance which would have made it murder has not been proved. A fresh plea is not necessary before such a conviction for the lesser offence can be handed down because the relevant ingredients to support a conviction for manslaughter, the lesser offence, have already been pleaded to in the plea for the greater offence of murder. If a plea were necessary before the conviction for manslaughter, I would have been inclined to hold that the word “alter” in sections 162-164 of the Criminal Procedure Law is wide enough to include a situation in which the charge has been changed from the fuller offence charged to the lesser offence for which a conviction is entered. But, in my view, there is no room for any further plea, for the reason 1 have given.

 

For the same reason, the argument of learned counsel for the respondent is, with respects, a non-sequitur. He has contended that “the offence of murder is severable from a charge of murder which would result in a subsisting manslaughter charge”. One can sever a part from a whole, not the other way round. Once there is a discharge, after evidence, on the charge for murder, the full offence, there is nothing left to be severed.

 

In my view, the Court of Appeal was in error to have held that the appellant admitted that it was bullets from his gun that killed the deceased and on that found the charge proved. The law is now pretty settled that an accused person can be convicted mainly on his own confession contained in an extra-judicial statement to the police where such is a voluntary and unequivocal confession of guilt and there have been proved some facts and circumstances which show that he had the opportunity of committing the offence charged, that the confession has been corroborated; that the confession is possible; that there are facts outside the confession to show that it is true; and that the confession is consistent with other facts proved in evidence. See on this R. v. Sykes (1913) 8 Cr.App.R.233; also R. v. Kanu (1952) 14 W.A.C.A. 30; Afolabi v. C.O.P. (1961)1 All N.L.R.654; (1961) 2 SCNLR 307. Where, however, the confession is equivocal, the appellate court may quash a conviction based on it: R. v. Barker (1916) Cr. App. R.191. The extra-Judicial statement of an accused person which is tendered at the hearing is part of the evidence called by the prosecution and will therefore be looked upon from the standpoint of the onus on them to prove their case beyond reasonable doubt, an onus that never shifts. Where, therefore, what is being relied upon in the statement is only an admission which falls short of a voluntary confession, its weight and value depend upon a variety of considerations, including the circumstances of the admission, the competence and capability of the accused person to know what was allegedly admitted by him. Also, because of the nature of the burden of proof in criminal cases, there is a more restricted scope for proof by admission in criminal cases. Even in civil cases an admission by a person of a fact of which he knows nothing is of no evidential value: see Seismograph Service (Nig.) Limited v. Eyuafe (1976) 9-10 S.C. 135, Comptroller of Customs v. Western Electric Co. Ltd. (1966) A.C.367. In the instant case in which the appellant in his so-called admission stated that he fired his gun into the air in the night and there was evidence that there were other gun shots from other persons that night, he was in no position to admit conclusively that it was bullets from the shot of his gun that hit and killed the deceased. Only an expert evidence from a ballistician could have fixed the culpability on him. In the absence of that evidence, I agree that it was not proved that it was he who shot at and killed the deceased. I also agree that the learned trial Judge placed the standard of care far too high when he stated that in the circumstances that prevailed that night when armed robbers invaded Abule Ijesha, the appellant should not have shot at all. A substantial misdirection as to standard of proof robs a court of the capacity to decide an important issue correctly. In a case like this in which proof of gross negligence is a sine qua non for conviction absence of it is fatal to conviction. The court below was in error to have confirmed it.

 

I must note that the appellant had a proper trial up to and including his discharge on the charge of murder of which he was charged. It was only the conviction for manslaughter of which he was not charged that was a nullity. The conclusion I have reached is that quite apart from the fact that the conviction for manslaughter was a nullity, even if it was not the charge was not proved

 

For the above reasons and the fuller reasons contained in the judgment of my learned brother, Omo, J.S.C., I also allow the appeal set aside the conviction of the appellant, and enter a verdict of not guilty in his favour.

 

 

WALI, J.S.C.:

I have been privileged to read in advance, a copy of the lead Judgment of my learned brother, Uche Onto, JSC. I agree with him in toto that the appeal has merit, it must therefore succeed.

 

I do not intend to write another judgment in this appeal but only to add by way of emphasis that the basis of any criminal trial before the High Court is the charge, upon which the accused person is arraigned. Where the trial court. after hearing the evidence in support of the charge rules that the accused has no case to answer on the said charge and proceeds to discharge him, the matter ends there. It is not open for the trial Judge to thereafter proceed to call upon the accused person to defend himself on a lesser charge, the ingredients of which are present and prima facie proved at that stage in the charge for which he has been discharged.

 

Section 286 q/the Criminal Procedure Law of Lagos State does not give the learned trial Judge power to proceed with the trial of the appellant in this case after discharging him on the only charge for which he was arraigned. The correct procedure to be adopted as stated by my learned brother, Uche Onto, JSC.. in the lead judgment. would be to give a short and precise ruling at the conclusion of the prosecution’s case and the submission of no case to answer, that having regard to the evidence adduced before him the appellant had a case to answer and then call upon him to enter his defence. The law does not require him at that stage to state the nature of the offence that he is to defend himself upon or to frame a charge for any lesser offence revealed in the prosecution’s evidence. And on this Section 179(2) of the Criminal Procedure Act of Lagos State, is very clear. It states:

 

“When a person is charged with an offence and facts proved which reduce it to a lesser offence. he may be convicted of the lesser offence although he was not charged with it’.

 

An accused person can only be convicted for a lesser offence at the conclusion of the trial and where he is, for any reasons, discharged on the charge for which he was arraigned, S.179(2) at the Criminal Procedure Act cannot apply to resuscitate the trial, as his plea of not guilty at the time of his arraignment covers the ingredients of the lesser offence and his discharge under section 286 of the Criminal Procedure Law will automatically amount to a discharge of the ingredients of such a lesser offence.

 

The principle of concurrent findings of fact by the lower courts cannot apply in this case as there is no direct, positive and unequivocal evidence that it was the shot fired by the appellant that caused the death of the deceased. And not only that the proceedings that followed after the verdict of discharge are null and void as they do not relate to any pending charge.

 

It is for these and the fuller reasons in the lead judgment, of my learned brother. Uche Omo, JSC, and which 1 adopt as mine, that 1 too will allow this appeal. It is accordingly allowed.

 

The proceedings leading to the conviction of the appellant for the offence of manslaughter are declared null and void and the verdict of discharge of the appellant for murder by the trial court is hereby sustained.

 

Appeal allowed.