MUSLIM FOLORUNSHO V. THE STATE (2020)

Background

Muslim Folorunsho, a police inspector, was prosecuted for the murder of Perry Samuel following a shooting incident in Lagos on 2 August 2005. Samuel and four other young men were travelling in a Mercedes-Benz during a traffic hold-up near CMS Bus-Stop. A commercial bus had earlier collided with their vehicle. Shortly afterwards, policemen travelling in a Danfo bus approached the Mercedes-Benz. Gunshots shattered its rear windscreen, and the occupants were ordered to come out. The prosecution witnesses testified that the men were beaten and that Samuel, who remained in the vehicle, had been shot in the back of the head and was bleeding profusely. He was taken first to hospital and subsequently transferred to St Nicholas Hospital and Lagos University Teaching Hospital, where he underwent three operations before dying approximately seven weeks later.

The appellant made an extra-judicial statement, tendered as Exhibit P3, in which he admitted firing two shots from an AK-47 rifle and acknowledged that one of the occupants was hit and seriously injured. The High Court of Lagos State convicted him of murder on 15 January 2010. The Court of Appeal affirmed the conviction on 20 June 2014. The appellant then appealed to the Supreme Court.

Issues

1. Whether the prosecution’s failure to produce medical evidence proving the death, time of death and proximate cause of death ought to have created reasonable doubt in favour of the appellant.
2. Whether the defences of lawful authority under section 33(2)(b) of the 1999 Constitution and accident were available to the appellant.
3. Whether the confession, documentary exhibits and testimonies of the prosecution witnesses constituted sufficient corroborative evidence linking the appellant to the shooting.

Ratio Decidendi

The Supreme Court held that lawful authority under section 33(2)(b) requires an accused who admits causing the death or injury to establish that the force used was reasonably necessary to effect a lawful arrest or prevent the escape of a person lawfully detained. The appellant failed to show that Samuel or his companions were being lawfully arrested, were escaping, or posed a danger justifying the shooting. The concurrent findings that no arrest had been attempted and that the deceased was not dangerous were therefore properly made.

The Court further held that accident and lawful authority are fundamentally inconsistent when pleaded simultaneously on the same facts. Lawful authority assumes a conscious act which is justified by circumstances, whereas accident involves an unforeseen and unintended occurrence. The two defences may only be advanced in the alternative; otherwise, they mutually destroy each other. In any event, the appellant failed to identify evidence establishing either defence.

Evidence corroborates another item of evidence when it confirms, strengthens or makes certain credible and admissible evidence connecting an accused with the offence. The appellant’s confession was sufficiently corroborated by the eyewitness accounts and the evidence of the investigating police officer. His admission that he fired the weapon and that one of the boys was hit was particularly significant. The Court also reaffirmed that a person who fires a lethal weapon at another is presumed to intend the natural and probable consequences of that act, including grievous bodily harm or death.

Court Findings

Although the prosecution proved beyond reasonable doubt that the appellant fired the shots and inflicted serious head injuries on Samuel, it failed to produce the medical evidence necessary to establish that those injuries were the proximate cause of Samuel’s eventual death. Samuel had remained in hospital for about seven weeks, had been treated in three hospitals and had undergone three major surgeries. The investigating officer testified that an autopsy had been conducted and that an autopsy report existed, but the prosecution did not tender the report or call the pathologist. In these circumstances, medical evidence was a vital piece of evidence capable of resolving the causal link between the shooting and the death.

The Supreme Court held that the omission attracted the evidential presumption under the Evidence Act concerning evidence withheld by a party. More importantly, it generated a serious and reasonable doubt which had to be resolved in favour of the accused. The Court distinguished cases where medical evidence is unnecessary because death is instantaneous or unequivocally attributable to the assault. Here, the prolonged medical history created an evidential gap that could not safely be ignored.

Nevertheless, the facts clearly established the lesser offence of causing grievous hurt under section 332 of the Criminal Code Law of Lagos State. Under section 179 of the Criminal Procedure Law, a court may convict an accused of a lesser offence where the proved facts constitute that offence, even though the accused was charged with a more serious offence. The murder conviction was therefore set aside and replaced with a conviction for causing grievous hurt.

Conclusion

The appeal succeeded in part. The Supreme Court set aside the appellant’s conviction for murder because the prosecution had not proved the proximate cause of death beyond reasonable doubt. It entered a conviction for causing grievous hurt and sentenced the appellant to 25 years’ imprisonment, calculated from 2 August 2005, the date he was taken into custody. The Court observed that life imprisonment under section 332 is treated as twenty years for remission purposes, while a fixed sentence exceeding twenty years requires exceptional justification. The appellant’s conduct as a police officer was considered reckless, callous and lacking in remorse, justifying the 25-year term.

Significance

The decision illustrates the importance of proving causation in homicide cases, particularly where the victim dies after prolonged medical treatment. It also clarifies that the prosecution must present available and material evidence, including the testimony or report of a vital pathologist where the cause of death is disputed. At the same time, the decision confirms that an accused may be convicted of a lesser offence supported by the evidence, even where the major charge fails. It provides an important warning that constitutional justifications for the use of force cannot be invoked without proof of the precise factual conditions prescribed by law, and that mutually inconsistent defences should be pleaded only in the alternative.