Aina knew one of the men. His name was Kingsley. Kingsley used to work for Fakoya, but had recently been sacked for stealing the boss’s bus. Aina suspected this was a vendetta mission.
Aina did not know the other man, Shina. Their visit worried Aina. He quickly left the premises to bring the vigilantes. As soon as he left, Kingsley and Shina entered the main house, and locked it from inside.
Aina returned with the vigilantes, but they couldn’t enter the house. Grabbing a ladder, Aina climbed onto the balcony. He saw Kingsley, who, shocked to see Aina up there, fled.
Aina called out to Fakoya several times, but got no response. Aina started looking around. When he got downstairs, he saw a badly wounded Fakoya, tied to the stairway railings, barely alive. Aina rushed him to a local hospital, whence he was transferred to Ogun State University Teaching Hospital, Shagamu. The man died.
Kingsley and Shina were charged with the murder of Fakoya. The medical jargon listed the cause of death as “acute cardio-pulmonary failure due to diabetes/hypertension with stab status post up”.
Kingsley and Shina were found guilty of murder and sentenced to death.
They appealed. The Court of Appeal held: “The deceased did not die immediately, so it cannot be said with absolute certainty that it was the stab wounds ... that caused his death.
He was found to be a diabetic and hypertensive. The prosecution has therefore not established conclusively that the death was caused by the act or omission of the accused persons. ... The diabetes and hypertension he was suffering from must have contributed to his eventual death. The prosecution ... established a case of attempted murder.” (Omoregie {2009} 10 NWLR {Part 1150} 493, 506 per Akaahs JCA) The Court of Appeal then substituted a conviction of attempted murder in place of the murder verdict rendered by the High Court, and accordingly changed the sentence to life imprisonment.
The Court of Appeal was in error in so interfering with the verdict and sentence of the learned trial judge.
In the first place, the court misdirected itself in law when it held that because “the deceased did not die immediately” the chain of causation might have been breached. Our homicide law does not require “immediate” death to establish the chain of causation. The statutory timetable is death “within a year and a day” (section 314 of the Criminal Code). Fakoya died within a few days, if not hours, of the attack on him by Kingsley and Shina.
Secondly, the court applied the wrong formula in assessing the evidence of causation. The standard of proof in criminal law is not “absolute certainty” as conjured by the court, but proof beyond reasonable doubt. This standard is attainable even in the presence of whimsical or fanciful doubt. No reasonable man would doubt that Fakoya’s death resulted from his attack by Kingsley and Shina.
Thirdly, the Court did not advert its mind, nor was its attention called to, the provisions of section 311 of the Criminal Code: “A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.” In other words, it is no defence to a homicide charge that the defendant’s act was not the only cause of death. As Karibi-Whyte JSC expressed it in Uyo ({1986} 1 NWLR {Part 17} 418, 429H-430A): “It is an elementary principle that the accused must take his victim as he finds him. It is not sufficient for an accused whose physical assault results in the death of another to argue that his victim who has a weak heart died from such defect and not from the assault. The accused is criminally liable if death resulted from his act.” Finally, a conviction for attempted murder cannot be entered when the victim has died from the defendant’s attack. Immediately we say “attempt”, it means the crime was not completed. It was a colossal failure of legal logic for the Court of Appeal to have held Kingsley and Shina guilty of the attempted murder of a killed Fakoya. In so deciding, the Court of Appeal overlooked section 4 of the Criminal Code: “When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.” Wouldn’t you rather die of natural causes?
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