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Law/Judiciary

Implied Contract: Meaning, Form(VII)

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ADEREMI OMOTAYO
v.
THE STATE
COURT OF APPEAL
(AKURE DIVISION)
CA/BI I 44C2/2007
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
(Presided)
CHINWE EUGENIA IYIZOBA, J.C.A. (Read the Leading Judgment)
MOORE A. A. ADUMEIN, J .C.A.
THURSDAY, 12TH JULY, 2012
CRIMINAL LAW AND PROCEDURE – Circumstantial evidence –
Meaning and nature oj.
CRIMINAL LAW AND PROCEDURE – Circumstantial evidence –
When conviction can be based thereon.
CRIMINAL LAW AND PROCEDURE – Circumstantial evidence –
When prosecution can rely on.
CRIMINAL LAW AND PROCEDURE – Conviction – When can be based on circumstantial evidence.
CRIMINAL LAW AND PROCEDURE – Offences – Murder – Ingredients of – What prosecution must prove to establish.
CRIMINAL LAW AND PROCEDURE – Proof of crime – Burden of proof – On whom lies – Standard of proof required – Where there is doubt about guilt of accused – Need to resolve in favour of accused.
CRIMINAL LAW AND PROCEDURE – Suspicion – Whether can ground conviction.
CRIMINAL LAW AND PROCEDURE – Witnesses – Vital witness –
Failure of prosecution to call – Effect.
EVIDENCE – Circumstantial evidence – Meaning and nature oj.
EVIDENCE – Circumstantial evidence – When conviction can be based on.
EVIDENCE – Circumstantial evidence – When prosecution can rely on.
EVIDENCE – Presumptions – Witnesses – Vital witness – Where not called by party to an action – Presumption raised thereby.
EVIDENCE – Proof- Burden ofp ro of of guilt of accused – On whom lies – Whether shifts – How discharged .
EVIDENCE – Proof of crime – Burden of proof – On whom lies – Standard of proof required – Where there is doubt about guilt of accused – Need to resolve in favour of accused.
EVIDENCE – Suspicion – Whether can ground conviction.
EVIDENCE – Witnesses – Vital witness – Failure of prosecution to call – Effect.
WORDS AND PHRASES – “Circumstantial evidence” – Meaning oj.
Issue:
Whether the trial court
was right in holding that the prosecution proved a case of murder against the appellant beyond reasonable doubt in the light of the evidence adduced.
Facts:
The appellant and two other persons were arraigned for the offences of conspiracy and murder contrary to sections 324 and 319 of the Criminal Code, Cap. 30, Volume II, Laws of Ondo State of Nigeria, 1978 (now Cap. 37 Volume I, Revised Laws of Ondo State) at the High Court of Ondo State sitting in Akure.
The prosecution’s case was that the deceased, one Joseph Olatunde, was on 20th day of September 1996 shot and killed in the sitting room of the residence of the I” accused at Ubi Camp,
Idanre by the 1st accused who conspired with the appellant and the 3rd accused to carry out the unlawful act.
The wife of the deceased who had hitherto been at the scene of the quarrel between the deceased and the appellant and the other accused persons, testified as PW 1. In her testimony, she said she left the scene of the argument to attend to her baby who was crying; that she heard a gun shot not quite long after she left the scene, and that upon her return to the scene, she met her husband dead with a gun on the table.
On its part, the defence case was that the 1 st accused and the deceased were arguing over missing cocoa beans which the I” accused alleged were stolen by the deceased; that a crowd later
gathered, and the deceased walked into the house of the 1 st accused, locked the door from behind and shot himself with the gun; and that the police had to break into the house to gain access to the corpse of the deceased.
The appellant made three statements to the police. The statements were admitted as exhibits I, J and Dl. Exhibit J is in line with the oral evidence of the appellant and the case of the defence.
Exhibits I and Dl differed as to the cause of dispute between the 1st  accused and the deceased. Both exhibits confirmed the case of the prosecution that the dispute arose over Indian hemp deposited in
the farm of the deceased by the I” accused for which the deceased raised an alarm, but maintained that the deceased shot himself in the living room of the 1 st accused.
As there was no direct eye witness account of the shooting, the trial court relied on circumstantial evidence on the ground that the appellant was present at the scene of the shooting and thereby convicted and sentenced the appellant for the offences of conspiracy
and murder as charged.
Aggrieved, the appellant appealed to the Court of Appeal.
1.On Ingredients of offence of murder –
To secure a conviction for murder, the prosecution must prove:
(a) that the deceased died;
(b) that the death of the deceased was a result of the act or omission of the accused, and
(c) that the act of the accused was intentional knowing that death or grievous bodily harm
would be the probable consequence of the act. (P.248,paras.C-D)
2. On whom lies burden of proof of crime and standard of proof required –
The presumption in section 36(5) of the Constitution of the Federal Republic of Nigeria, that an accused is innocent until proven guilty places a very heavy burden on the prosecution. The prosecution must not only prove the guilt of the accused, the proof must be beyond reasonable doubt as stipulated by section 138(1) of the Evidence Act. The burden rests throughout on the prosecution and does not shift. There must be no doubt in the mind of any person reading the facts of the case that the accused is indeed guilty of the offence charged. Where there is doubt or where the prosecution’s case is shaky, the accused would be entitled to have the benefit of such doubt resolved in his favour. [Alonge v. I.G.P. (1959) SCNLR 516; Okogbue v. C.O.P. (1965) NMLR 232; Umeh v. State (1973) 2 SC 9; Aigbadion v. State (2000) 7 NWLR (Pt. 666) 686; Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367 referred to.] (Pp. 247-248, paras. H-B)
3.    On whom lies burden of proof of guilt of accused and whether shifts The burden of proving the guilt of accused persons remains throughout on the prosecution and not shift. This includes the burden of leading evidence to disprove any defence set up by the accused or likely to arise in the case. In the instant case, the prosecution did not discharge the onus of proof beyond reasonable doubt that the appellant and his co-accused killed the deceased because it did not lead evidence to eliminate the possibility that the deceased may have committed suicide. [Idowu v. State (2000) 12 NWLR (Pt. 680) 48; Alonge v. I.G.P. (1959) SCNLR 516; R. v. Abengowe (1936) 3 WACA
85; R. v. Oledima 6 WACA 202 referred to.] (P. 257, paras. C-E)
4. On Meaning and nature of circumstantial evidence Circumstantial evidence is evidence of surrounding . circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. In the instant case, the evidence led by the five witnesses called by the prosecution was simply inadequate to discharge the burden on the prosecution to prove the case beyond reasonable doubt. (P. 252, paras. G-H)
5 On When prosecution can rely on circumstantial evidence – Where there is no direct eyewitness evidence as to the commission of a crime, such as murder, the prosecution may rely on circumstantial evidence to prove its case. [Mohammed v. State (2007) 11 NWLR (Pt. 1045) 303; Adeniji v. State (2001) 13 NWLR (Pt. 730) 375; [komi v. State (1986) 3 NWLR (Pt. 28) 340 referred to.] (Pp. 258-259, paras. H-A)
6. On When conviction can be based on circumstantial evidence – For a conviction to be based on circumstantial evidence, the circumstantial evidence must point to only one rational conclusion namely that the offence had been committed and that it was committed by the accused. In other words the circumstantial evidence must point unequivocally and irresistibly to the fact that the offence was committed by the accused person. [Nasiru v. State (1999) 2 NWLR (Pt. 589) 87 referred to.] (P. 249, paras. D-E)
7. On When conviction can be based on circumstantial  evidence –
In order to draw the inference of an accused person’s guilt from circumstantial evidence, there must not be any other co-existing circumstances which would weaken or destroy the inference. That fact must be such that they cannot be accounted for on any other rational hypothesis, other than the guilt of the accused. [State v. Edobor (1975) 9-11 SC 69; Eze v. State (1976) 1 SC 125; Mohammed v. State (2007) 13 NWLR (Pt. 1050) 186 referred to.] (P.
249, paras. E-F) Per IYIZOBA,J.C.A. at pages 249-250, paras. G-G:
“The facts which the lower court deemed circumstantial evidence sufficient to convict the appellant and his co-accused are as follows:
1.That the three accused persons and the deceased are all dwellers of Ubi camp in Idanre.
2. That the 1 st accused is the master of the 2nd accused and the two of them live in the same house while the 3rd accused is a friend of the I” accused. The deceased was also a friend of the I” accused.
3. That the deceased discovered some bags of Indian hemp in his cocoa farm and raised an alarm. After this the 1 st accused started to look for the deceased.
4. That on 20/9/96, the 1 st accused succeeded in getting the deceased when he invited the deceased to his house. The pi accused had already assembled the 2nd and 3rd accused and one Ojo still at large in his house.
5.    That the 1st accused confronted the deceased with the Indian hemp issue and demanded to know what had happened to it.

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Features

Judiciary As Last Hope Of The Common Man

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The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended.  Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings.  The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?

 

By: Chidi Enyie

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Law/Judiciary

Elele OSPAC Seeks Govt’s Assistance

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Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.

It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.

Ikwerre people are proud of him and will back till eternity.

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Law/Judiciary

Legal Departments In LGAs And Justice Dispensation

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Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels:  NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing,  nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the  Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National  Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the  various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in  Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers,  the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.  A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.

 

By: Sylvester Udemezue with reports from King Onunwor

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