EKPOUDO v. STATE (2021)

EKPOUDO v. STATE

(2021)LCN/15024(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, February 11, 2021

CA/C/477C/2017

RATIO

CRIMINAL LAW: BURDEN OF PROOF IN CRIMINAL TRIAL

In a criminal trial, the burden of proof throughout lies upon the prosecution to prove the guilt of the accused person beyond reasonable doubt. The onus does not shift even where the accused person admits committing the offence. The prosecution still has to prove the guilt of the accused person. This is because the accused person is constitutionally presumed to be innocent until the contrary is proved by the prosecution. The accused person may not even utter a word in his defence in a criminal trial and still be discharged of the offence against him. See Akinfe v. The State (1988) 3 NWLR (pt.85) 729 SC and Igabele v. The State (2006) 6 NWLR (pt. 975) 100. PER JAMES SHEHU ABIRIYI, J.C.A.

CRIMINAL LAW: WHAT AMOUNTS TO MANSLAUGHTER

The unlawful killing of a human being without premeditation amounts to manslaughter. See Blacks Law Dictionary 10th Edition. See also Ejeka v. The State (2003) 7 NWLR (pt. 819) 408.
By Section 324 of the Criminal Code Law Cap 38 Laws of Akwa Ibom State, a person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter. PER JAMES SHEHU ABIRIYI, J.C.A.

CRIMINAL LAW: MEANING AND NATURE OF SELF-DEFENCE

Self-defence means the use of force to protect oneself, one’s family or one’s property from a real or threatened attack. Generally. a person is justified in using a reasonable amount of force in self-defence he or she reasonably believes that the danger of bodily harm is imminent and that force is necessary to avoid the danger.
The appellant in this case admitted flinging the matchet at the deceased simply because he did not want to be overpowered by the deceased and PW1. For an accused to avail himself of the defence of self defence, he must show by evidence that he took reasonable steps to disengage from the fight or make some physical withdrawal. PER MUHAMMED LAWAL SHUAIBU, J.C.A

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

UNWANA PETER EKPOUDO APPELANT(S)

And

THE STATE RESPONDENT(S)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 11th July, 2017 in the High Court of Akwa Ibom State holden at Uyo. The Appellant stood trial in the High Court (the Court below) for murder and assault occasioning grievous harm contrary to Sections 326(1) and 341(a) and (b) of the Criminal Code Law Cap.38, Vol. 2, Laws of Akwa Ibom State 2000.

The facts of the case are simple and short. According to the PW1 who may be considered as the star witness for the Respondent, the Appellant, PW1 and the deceased were sleeping in one room. He (PW1) woke up at about 3.45am in the morning to see the Appellant and the deceased fighting. He tried to separate them. Then the Appellant stabbed the PW1 on the shoulder. The PW1 fell down immediately. The Appellant ran out of the room. The deceased ran after the Appellant. The PW1 also followed them. Outside, he saw the deceased on the ground. He tried to carry the deceased up and saw saliva coming out of his mouth. The deceased was swollen up. The PW1 stopped a tricycle and took the deceased to the hospital. The deceased died before he could be

attended to in the hospital.

Although he had reportedly made statements to the police, the Appellant did not lead any evidence in his defence in Court. He merely stated that his brother Inemesit Peter Ekpodudo was died.

The Court below considered the evidence led by the Respondent and addresses of learned counsel for the Respondent and the Appellant. It found the Appellant guilty of the lesser offence of manslaughter and sentenced him to life imprisonment.

The Appellant immediately approached this Court by a notice of appeal dated and filed 3rd August, 2017 seeking the setting aside of the judgment, discharge of the Appellant or reduction of the sentence to a term of years for the alleged offence of manslaughter. The notice of appeal contains three grounds of notice of appeal. From the three grounds of appeal, the Appellant in an Appellant’s Brief filed on 27th April, 2020 but deemed duly filed and served on 14th September 2020 presented the following three issues for determination:
4.1.0. The first issue for determination as can be distilled from ground one of the appeal is whether or not the judgment of the lower Court was not

unreasonable, unwarranted and can be supported by the evidence that was adduced.
4.2.0. The second issue for determination as can be distilled from ground two of the appeal is whether or not the Learned Trial Judge did not err in law by holding in his judgment that the defence of self was not sustainable.
4.3.0. The third issue for determination as can be distilled from ground three of the appeal is whether or not the Learned Trial Judge did not err in law by sentencing the Appellant to life imprisonment.

The Respondent formulated a sole issue for determination:
That is, whether from the totality of the evidence adduced at the trial, the prosecution has proved the offence of murder against the Appellant beyond reasonable doubt?

On issue 1, learned counsel for the Appellant submitted that the Respondent had failed to attain the standard of proof beyond reasonable doubt because:
“(a) The eye witness account of what the PW1 saw the Appellant did (sic) to the deceased in the fight, was limited and terminated at the scene in the room;
(b) The Appellant having been shown to have fled from the room but with the deceased

chasing him outside the room, it was rather the deceased, but not the Appellant, who was at such instance the aggressor;
(c) The Appellant would in such circumstance have either been provoked again or had acted in his self defence against the deceased’s renewed attack;
(d) There is therefore serious doubts as to the allegation and or proof that based on the circumstance of the death occurring during a fight, whatever the Appellant did, would have been as a result of the combined effects of extreme provocation and self defence, and in which, in the final analysis, would avail him as justifiable excuse in terms of criminal liability thereby.
(e) In fact, the issue of the deceased accidentally sustaining the injury that would have led to his death in the course of his chasing the Appellant who had ran out from the room, cannot be ruled out.”

It was contended that the Court below ignored the assertion by the Appellant that the PW1 was on the side of the deceased in the fight between the Appellant and the deceased. This fact coupled with the Appellant’s initial grievance, that the deceased was using his cult friends to

terrorize him spoke volumes of the PW1’s role in the feud it was contended. In such circumstances, the evidence of PW1 could not be free from bias in favour of his deceased friend and against the Appellant, it was further argued. The Court below, it was submitted, ought to have been cautious in treating PW1’s evidence as a tainted witness instead of relying on it. Furthermore, PW1’s evidence as an eye witness is unreliable to the extent that it related to aspects of the incident which he did not witness, it was submitted.

It was submitted that the extra-judicial statement of the Appellant is consistent with both his guilt and innocence being an explanation of what happened. Therefore the Court below ought not to have relied on it as providing corroboration to PW1’s evidence. The Court was referred Ukwaekeginya v. State (2005) All FWLR (pt. 259) 1911; Atte v. Commissioner of Police (1974) All NLR 599 and Mariagbe v. State (1977) NSCC 130. From the nature of the inconclusiveness of the Pw1’s account of what happened outside the room, it was improper for the Court below to come to its decision on such inconclusive evidence, it

was submitted. The PW1, it was pointed out, did not see what happened between the Appellant and the deceased outside the room apart from seeing the deceased lying on the ground.

Learned counsel for the Appellant submitted that the appeal should be considered from the following perspectives. One, that the Court below ought to have considered the fact that the PW1 did not see what happened to the deceased outside. Secondly, the defence of the Appellant however feeble ought to have been considered and given the treatment it deserved.

It was submitted that the Court below ought to have shown by its evaluation of evidence what impression it had with regards to the general conduct of the Appellant. That the conduct of the Appellant that would have been considered included the running away of the Appellant from the room to escape after the fight had started. To have been considered also by the Court below was the Appellant’s proceeding straight to the police station to lay a complaint of assault.

It was contended that upon a proper investigation, it would have been discovered that the Appellant was more of an innocent victim of unintended

consequences, than a damned guilty felon of a premeditated incident. The Court was referred at some length to the evidence of PW2 as to the investigation of the case. The Court below, it was further contended, made no mention of the poor investigation by the police of the allegation. For example, there were conflicting versions as to what actually killed the deceased. Was it a matchet which the Appellant claimed he flung or a screw driver which PW2 tendered as Exhibit F.

On issue 2, it was submitted that from the circumstances of the case, self defence availed the Appellant.
On issue 3, it was submitted that since self defence if established will lead to a discharge an acquittal, the Court below ought to have discharged and acquitted the Appellant, it was submitted.

The Appellant, it was submitted, is a first offender and should be discharged and acquitted or the sentence reduced.

Learned counsel for the Respondent submitted that the Respondent had proved the offence of murder beyond reasonable doubt. The law, it was submitted, is settled that to succeed in proving murder, the prosecution must prove the following:

(1) That the deceased died.
(2) That the death of the deceased resulted from the act of the accused.
(3) That the act of the accused caused the death of the deceased and was done with the knowledge that death or grievous bodily harm was its probable consequence. The Court was referred to Uwagboe v. The State (2008) Vol. 163 LRCH 97.

It was submitted that the fact that the deceased, one Inemesit Peter Ekpoudo is dead had been established by the evidence of PW1, PW2 and the post mortem report Exhibit G.

It was submitted that the PW1 was an eye witness and that before his death, the deceased told the PW1 that the Appellant stabbed him with a knife.

It was submitted that the death of the deceased arose from the singular act of the Appellant who stabbed the deceased on the left shoulder. It was submitted that the evidence of the Respondent was given weight by the admission of the Appellant in his statements exhibits A and C. It was submitted that in criminal procedure, the best form of evidence is the confessional statement of the accused person. The Court was referred to Ikechukwu Okoh v. State (2014) 7 FWLR (pt. 736) 433 at 447 – 448.

The Court was urged to hold that the prosecution through the unchallenged evidence of PW1 and PW2 and the exhibits had proved the offence of murder against the Appellant beyond reasonable doubt.

The Court below, it was submitted, observed the demeanour of the PW1 throughout the trial and took cognizance of the way he answered the questions put to him without vacillation. The Court was referred to pages 87 and 99 of the record.

In the instant case, it was argued, the Appellant in exhibits A, C and D gave a narrative of how the deceased and the PW1 were not armed but the Appellant was. That the life of the Appellant was not in danger. There was an escape route for the Appellant and he did escape but not before injuring the PW1. That there was no necessity of taking life.

The Appellant’s reply brief is more or less an Appellant’s re-argument. It was contended that what the Appellant allegedly admitted in his extra-judicial statement is different from what was proved by the prosecution and the consequence of such difference is that some doubt is therefore created as to the truthfulness of the admission contained in the extra-judicial statements. For

instance while the Appellant claimed in the extra-judicial statements that he flung a matchet, the prosecution tendered a screw driver as the alleged weapon used by the Appellant. This, it was submitted, is a contradiction which needed to have been reconciled. It was submitted that since prosecution was unable to give evidence in proof of whatever happened outside the room between the Appellant and the deceased, the doubts as to what happened between the deceased and the Appellant or how the deceased met his death should be resolved in favour of the Appellant.

The only issue for determination in this appeal is; whether the Respondent proved the offence for which the Appellant was convicted beyond reasonable doubt.

may not even utter a word in his defence in a criminal trial and still be discharged of the offence against him. See Akinfe v. The State (1988) 3 NWLR (pt.85) 729 SC and Igabele v. The State (2006) 6 NWLR (pt. 975) 100.

In the instant case, it is clear from the evidence of the PW1 and the extra-judicial statements of the Appellant Exhibits A and B that there was an early morning fight in the room between 3.30am and 4.00am. The PW1 claimed the fight was between the Appellant and the deceased who were brothers. The Appellant on the other hand in Exhibits A and B claimed that the PW1 joined the deceased to fight against him. PW1 claimed to have only tried to separate the two brothers from the fight. Whether PW1 participated in the fight or not does not seem to me to matter. What matters is the fact that there was a fight. In the course of this fight, the deceased suffered a fatal injury. PW1 who was in the room during the fight did not help the Court as to how the injury was inflicted on the deceased. The prosecution tendered a screw driver as well as Exhibit G in attempt to prove the source of the injury inflicted on the deceased. Learned counsel for the

Appellant had argued at great length on the apparent conflict as to the source of injury sustained by the deceased. Superficially the arguments are weighty. But it is not difficult to see that all the apparent contradictions as to when and how the fatal injury was sustained were solved by the Appellant himself in Exhibits A and B. In Exhibits A and B the Appellant stated how he slapped the brother (the deceased). The deceased hit him with a shoe. That the deceased and PW1 fought him. Since he (Appellant) was alone he carried a matchet and flung it at the deceased. He then ran to the police to report. It is clear from the foregoing that whatever contradictions as to how the deceased sustained the fatal injury, they were resolved by the Appellant himself. It is clear from Exhibits A and B that the deceased sustained the fatal injury from the matchet flung at him. However, on the evidence before the Court, there is nothing to show that the Appellant intended to kill the deceased. However, the deceased died the same day in the hospital. The unlawful killing of a human being without premeditation amounts to manslaughter. See Blacks Law Dictionary 10th Edition. See

also Ejeka v. The State (2003) 7 NWLR (pt. 819) 408.
By Section 324 of the Criminal Code Law Cap 38 Laws of Akwa Ibom State, a person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter. In the instant case, the Appellant flung the matchet at the deceased merely because he did not want to be overpowered by two people fighting against him before he had the chance to run out of the room. As PW1 stated in his evidence in chief:
“The accused left his brother Inemesit and tried to run outside. The accused succeeded in opening the door and ran out. Inemesit ran after him. I also ran outside following them.”
The Court below convicted the Appellant for manslaughter. I am of the view that the conviction for manslaughter is justified for a reason other than the reason given by the Court below. The Court below found that the offence was reduced to manslaughter because the Appellant was provoked by the deceased. That defence was not available to the Appellant anyway because none of the people who the Appellant alleged that they fought against him was armed. The conviction for manslaughter is

upheld instead because the Appellant did not intend to kill or cause grievous harm when he flung the matchet at the deceased.

Learned counsel for the Appellant urged the Court to either discharge the Appellant or reduce the prison term imposed on him by the Court below.
I have no reason to interfere with the sentence of life imprisonment.

The only issue formulated by the Court is therefore resolved against the Appellant and in favour of the Respondent.
The appeal is dismissed by me.
The sentence of life imprisonment imposed by the Court below is affirmed by me.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, James S. Abiriyi, JCA just delivered, I agree entirely with the reasoning and conclusion that the appeal is bereft of any merit.

As comprehensively stated in the lead judgment, the appellant predicated this appeal inter alia on the ground that the trial Court failed to consider the available defences open to him. Learned appellant’ counsel contended that the general conduct of the appellant such as running

away from the room to escape after the fight entitled him to the defence of self-defence.
Self-defence means the use of force to protect oneself, one’s family or one’s property from a real or threatened attack. Generally. a person is justified in using a reasonable amount of force in self-defence he or she reasonably believes that the danger of bodily harm is imminent and that force is necessary to avoid the danger.
The appellant in this case admitted flinging the matchet at the deceased simply because he did not want to be overpowered by the deceased and PW1. For an accused to avail himself of the defence of self defence, he must show by evidence that he took reasonable steps to disengage from the fight or make some physical withdrawal. In the instant case, there was no evidence showing that the life of the appellant was endangered by act of the deceased such that the only means of survival was for the appellant to have killed the deceased, The defence of self defence was therefore not available to the appellant. I too dismiss the unmeritorious appeal.

Appearances:

Chief P. Anselem Eyo For Appellant(s)

Mary Ntewo, Assist Chief State Counsel, Uyo, Aks. For Respondent(s)