APPLICABLE AREA: Criminal Law and Procedure


An accident was defined by Karibi-Whyte, JSC (as he then was) as a “Result of an unwilled act, and means an event without the fault of the person alleged to have caused it.” It was also defined by Oputa JSC, (as he then was and of a blessed memory) as “…an event totally unexpected by the doer of the act and also not reasonably to be expected by any ordinary person, the reasonable man of the law. In other words, the test is both subjective from the stand point of the doer of the act, as well as objective from the stand point of the ordinary man of common prudence. The event should, to qualify as accidental, be a surprise both to the doer of the act that caused it and a surprising thing to all and sundry. An event is thus accidental. It is neither subjectively intended nor objectively foreseeable by the ordinary man of reasonable prudence.”

A successful plea of “accident” relieves a person of criminal responsibility as it would constitute a negation of any deliberate act or omission. However, willed deliberate act, negatives the defence of accident.


The appellant (Sergeant Kalejaiye Ola) was posted on night guard duty at the Edo State Government Chalets located along the Central Road, G.R.A., Benin City on 22nd June, 2003. He was issued with AK 47 Rifle and ten rounds of life ammunition.

​In the early hours of 23rd June, 2003 at about 3a.m., Sergeant Kalejaiye Ola accosted Paul Erimafo and arrested him for straying into the premises of the Government Chalets. He led his captive to the residence of one Dr. Erhabor who assisted him in carrying the suspect in a Peugeot 505 car to the Government House Benin City. On reaching there, Police Officers on duty directed Sergeant Kalejaiye Ola to carry Paul Erimafo (the suspect) to the nearest police Station. On the way to the nearest police Station, along the Central Road, G.R.A, Benin City, by the official residence of the Edo State Chief Judge, a scuffle ensued between Sergeant Kalejaiye Ola and Paul Erimafo. Dr. Erhabor then parked his car and got out of it. The scuffle between Sergeant Kalejaiye Ola and Paul Erimafo attracted the mobile Policemen and other security staff at the aforesaid Chief Judge’s residence. The mobile Policemen rushed to the scene and intervened. Both Sergeant Kalejaiye Ola and Paul Erimafo introduced themselves, and each narrated their stories to the mobile policemen.

Sergeant Kalejaiye Ola alleged that Paul Erimafo was struggling with him in order to retrieve his riffle from him. Paul Erimafo, raising up his hands, denied the allegation. Sergeant Kalejaiye Ola then fired two shots from his riffle, at the left leg of Paul Erimafo who fell down and groaning in pains. Sergeant Kalejaiye Ola rushed to report a case of armed robbery against Paul Erimafo, at the Edo State Police C.I.D. Headquarters, Benin City. Later, Sergeant Kalejaiye Ola came along with some police officers to pick Paul Erimafo. On the way to the Aideyan Police Station, Paul Erimafo became deceased and Sergeant Kalejaiye Ola became an accused person.

He was charged to Court where his defence of accident was rejected. He was convicted and sentenced to death by hanging until he be dead. On appeal to the Court of Appeal, his conviction and sentence were affirmed and his appeal dismissed. Further dissatisfied, Sergeant Kalejaiye Ola has appealed to the Supreme Court.


The appeal was determined on a lone issue viz:

“Whether the Court of Appeal was right in affirming the decision of the trial Court holding that the prosecution did prove the offence of murder against the Appellant beyond reasonable doubt.”


​In a unanimous decision, the Supreme Court dismissed the appeal for want of merit. The concurrent decisions of the lower Courts was further affirmed.


CRIMINAL LAW AND PROCEDURE – OFFENCE OF MURDER: Essential ingredients that must be proved by the prosecution to ground a conviction for murder

“This Court has held in a plethora of cases that to sustain a conviction in a charge of murder, the prosecution must prove the following ingredients beyond reasonable doubt. That is to say:-

  1. That the deceased died.
  2. That it was the unlawful act or omission of the accused person that caused the death of the deceased and,
  3. That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.

See Okeke v. The State (1996) 2 NWLR (Pt. 590) 246, Adekunle v. The State (2006) All FWLR (Pt 332) 1452, Jimmy v. The State (2013) 18 NWLR (Pt. 1386) 229, Asuquo v. The State (2016) LPELR-40597 (SC).”Per OKORO, J.S.C. (P. 19, Paras. A-E).

CRIMINAL LAW AND PROCEDURE – DEFENCE OF ACCIDENT: Whether a plea of accident disputes only the mens rea and not the actus reus of an offence

“Let me add that the accused person who pleads accident disputes only the mens rea not the actus reus of the offence. In other words, he admits the actus reus by implication on his plea of accident: IROMANTU v. THE STATE (1964) 1 ALL N.L.R. 311; CHUKWU v. THE STATE (1992) 1 N.W.L.R. (Pt. 217) 225 at 269. The defence of accident avails the accused only for the purpose of exoneration from criminal responsibility: BRAIDE v. THE STATE (1997) 5 N.W.L.R. (Pt. 504) 141 at 150.”Per EKO, J.S.C. (P. 32, Paras. B-E).

EVIDENCE – CROSS-EXAMINATION: Effect of failure to cross-examine a witness on material point

“In Patrick Oforlete v. The State (2000) LPELR-2270 (SC) at pp. 24-25, this Court stated the position of the law on failure to cross-examine a witness on material particular as follows:-

“….Where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. See Akinwunmi v. Idowu (1980) 3-4 108, …Bello v. Eweka (1981) 1 SC 101 … After all, the noble act of cross-examination constitutes a lethal legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his client’s case through cross-examination he should, as a matter of the utmost necessity, use the opportunity to negative the credit of that witness whose evidence is under fire. Plainly, it is unsatisfactory if not suicidal bad practice for counsel to neglect to cross-examine a witness after his evidence-in-chief in order to contradict him or impeach his credit while being cross-examined but attempt at doing so only by calling other witness of witnesses thereafter. That is demonstrably wrong and will not even feebly dent that unchallenged evidence by counsel leading evidence through other witness to controvert the unchallenged evidence.”

See alsoGaji & Ors v. Paye (2003) 8 NWLR (Pt. 823) 583, Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325, (1988) 2 SCNJ 146, Egwumi v. The State (2013) 13 NWLR (Pt. 1372) 525.”Per OKORO, J.S.C. (Pp. 22-23, Paras. C-D).

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