OKECHI JEREMIAH V. THE STATE
(2012)LCN/5245(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of March, 2012
CA/PH/258/2001
RATIO
EVIDENCE: THE POSITION OF THE LAW ON WHEN A PIECE OF EVIDENCE IS CONTRADICTORY TO ANOTHER
The Supreme Court, in the case of KENNETH OGOALA V. THE STATE (1991) 2 LRCN 660 AT 679 held as follows: “A piece of evidence is contradictory to another when it asserts or affirms the opposite of what that other asserts, and not necessarily when there are minor discrepancies in say, details between them. As I see it, contradiction between two pieces of evidence goes rather to the essentiality of something being or not being at the same time, whereas, minor discrepancies depend rather as the persons astuteness and capacity for observing details”. The word “contradict” comes from the two latin words contra (opposite) and dicere (to say). Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains is minor discrepancies in details. On the other hand, minor discrepancies between previous written statements and subsequent oral testimony are to be expected and do not destroy the credibility of the witnesses. Indeed, when such occur, it may lead to suspicion that the witness has been tutored. See AYO GABRIEL V. THE STATE (1989) 5NWLR (Pt. 122) 457. In the instant case, what the Appellant is alleging as contradictions are noting more than minor discrepancies as rightly observed by the learned trial Judge. See SALE DAGAYA V. THE STATE (SUPRA) and ATANO V. A. G. BENDEL STATE (SUPRA). For a contradiction to be fatal to the prosecution case, it must go to the substance or root of the case and not of a minor nature as rightly observed by the learned trial Judge in the instant case. Per. UWANI MUSA ABBA AJI, J.C.A.
CAUSATION: WHETHER THE CONVICTION OF AN ACCUSED FOR MURDER CAN BE SUSTAINED IN THE ABSENCE OF MEDICAL EVIDENCE
In TONARA BAKURI V. THE STATE (SUPRA), the Supreme Court held that in cases of this nature where a man was attacked with a lethal weapon and died on the spot, it is hardly necessary to prove the cause of death. It can properly be inferred that the wound inflicted on the deceased caused the death. See GAROS GWASHI V. THE STATE (SUPRA) where it was held that where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such situation arises where death was instantaneous or nearly so. The rational for this proposition which is founded on logic and common sense is that since the act of the accused is the most proximate event to the death of the deceased, it could be regarded as the deciding factor even where it may be taken as merely contributory to the death of the deceased. As long as the intention to kill or to cause grievously bodily harm has been established the intention for the offence of murder is complete. See ERIC UYO V. A.G. BENDEL STATE (SUPRA) AND MATHEW OKE ONWUMERE V. THE STATE (SUPRA). In the instant case, the Appellant tried to shift the act that led to the death of the deceased on the PW1. That it was PW1 while trying to strike him the second time and he dodged that the fatal blow landed on the deceased that killed him instantly. The learned trial Judge disbelieved this story by the Appellant. In any event, this story was not corroborated. I also disbelieved the Appellant that it was the PW1 that dealt the fatal blow that killed the deceased. It was the Appellant that stabbed the deceased with a dagger, a lethal weapon on the chest region a vital part of the body and he fell down and died instantly. It needs no medical evidence to prove that it was the stabbing on the chest region, a vital part of the body that killed the deceased. The law remains settled that the medical report is not a requisite for establishing a cause of death in a murder charge. Once the prosecution had established the death of the deceased and provided proof that the death is as a result of the unlawful and intentional act of the accused; medical report ceases to be a sine-qua-non to the conviction of the accused person. In the instant case, the evidence of PW1 and PW2 had provided direct and satisfactory evidence of not only the death of the deceased, but also that the death followed from after the unlawful and intentional act of the Appellant. See ADAMU V. KANO N. A. (1956) SCNLR 65: TONARA BAKURI V. STATE (1965) NWLR 163; and MICHEAL V. THE STATE (2008) 13 NWLR (PT 1104) 361 AT 377. In other words, where facts exist which sufficiently show the cause of death without doubt, a medical report showing cause of death is not necessary and may be dispensed with. See EFFIONG V. THE STATE (1998) 8 NWLR (PT 562) 362: GAGO V. THE STATE (2001) 3 WRN 159. Per. UWANI MUSA ABBA AJI, J.C.A.
CONFESSTIONAL STATEMENT: THE POSITION OF THE LAW ON WHEN AN ACCUSED DENIES HIS STATEMENT
Two situations arise when an accused denies his statement. It is either an accused says he did not make the statement voluntarily or that he did not make the statement at all. Where an accused person says, he did not make the statement voluntarily, it behoves on the trial judge to conduct trial within trial to at least determine the voluntariness or otherwise of the statement before admitting it is evidence. In the second situation where the accused person says he did not make the statement, the trial judge can go ahead and admit the statements and wait until the end of the trial to determine whether the accused made the statement or not. See QUEEN V. IGWE (1988) 5 NWLR (PT 94) 225. Per. UWANI MUSA ABBA AJI, J.C.A.
SELF DEFENCE: CONDITIONS THAT MUST BE SATISFIED BY AN ACCUSED PERSON BEFORE DEFENCE OF SELF DEFENCE CAN AVAIL HIM
In any case, the Appellant has not satisfied any of the conditions that must be satisfied by an accused person before defence of self defence can avail him as laid down in the case of OMOREGWE V. STATE (2009) ALL FWLR (PT. 458) 230 AT 245. These conditions are as follows:
1. That the accused must be free from fault in bringing about the encounter;
2. There must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity.
3. There must be no safe or reasonable mode of escape by retreat; and
4. There must have been a necessity for taking life.
In order to sustain the defence, all the above ingredients must co-exist and be established. In the instant case, none of the above ingredients was present; therefore the learned trial Judge was right when he held that there was no evidence of self defence. See LIYA V. STATE (1998) 2 NWLR (PT 538) 397; KWAGHSIR V. STATE (1995) 3 NWLR (PT 386) 651: and NWANBE V. STATE (1995) 5 NWLR (PT 384) 385. Per. UWANI MUSA ABBA AJI, J.C.A.
CRIMINAL LAW: ON WHOM LIES THE ONUS TO PROVE THE GUILT OF THE ACCUSED PERSON BEYOND REASONABLE
In criminal trials, the prosecution has the duty to prove the guilt of the accused person which it accuses of committing the crime and the burden never shift beyond reasonable doubt. See Section 138 (1) of the Evidence Act and 36 (5) of the Constitution of the Federal Republic of Nigeria (1999) (as amended); NJOVENS V. STATE (1973) NWLR 331; AMEH V. STATE (1973) 7 SC 27. MILLER V. MINISTER OF PENSIONS (1947) 2 ALL ER 372: KALU V. THE STATE (1988) 4 NWLR (PT 90) 503: AYO V. STATE (2006) 6 WRN 134: SAM V. C. O. P. (2009) ALL FWLR (PT 450) 760 AT 769. In the case of MILLER V. MINISTER OF PENSIONS (SUPRA), it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote possibility in his favour, which can be dismissed with the sentence of course it is possible but not in the list probable; the case is proved beyond reasonable doubt. In other words, once the proof of a case as offered by the prosecution drowns the presumption of innocence of the accused, the court is entitled to convict him although there could exist shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or actus reus or both, the prosecution has discharged the burden placed on it by Section 138 (3) of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. See DIEBE V. STATE (2007) ALL FWLR (Pt. 363) 83; and OKOH V. STATE (2009) ALL FWLR (PT 453) 1358 at 1400. Per. UWANI MUSA ABBA AJI, J.C.A.
CRIMINAL LAW: THE INGREDIENTS OF MURDER
A charge of murder is established when the prosecution proves the following ingredients beyond reasonable doubt:
1. That the deceased died
2. That the death of the deceased resulted from the act of the accused
3. That the killing was unlawful
4. That the act of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See OGBA V. THE STATE (1992) 2 NWLR (PT 222) 146: STATE V. AIGBANGEE (1988) 3 NWLR (PT 297) 29; OLADIPUPO V. THE STATE (1994) 6 NWLR (PT 298) 131; OKEKE V. THE STATE (1999) 2 NWLR (PT 590) 253, OGBU V. THE STATE (1992) 8 NWLR (PT 259) 255, IGAGO V. THE STATE (1999) 14 NWLR (pt 637) 1; ONYIA V. THE STATE (2006) 11 NWLR 267 AT 293 and ABIRIFON V. STATE (2009) 35 WRN 37 AT 79. Per. UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
OKECHI JEREMIAH Appellant(s)
AND
THE STATE Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Hon. Justice E. I. Isuama sitting at the High Court of Isiala Ngwa of Abia State delivered on the 19th day of December, 1994 wherein the Appellant was convicted and sentenced to death under Section 319 (1) of the Criminal Code.
The facts of this case from the evidence on record is that on the 11th day of June, 1987, the Appellant was said to have gone to the house of PW1 around 8pm and requested to know from the PW1 why PW1 asked him not to come to his house any longer. The PW1 asked the Appellant to go away in that he was tired. The Appellant refused to leave the house and there ensued an altercation which attracted the deceased who was the brother of PW1 to come to their place. The deceased tried to intervene in the quarrel but the Appellant picked offence with him and drew a dagger from his pocket which he used in stabbing the deceased on the chest. The deceased fell and died immediately. The Appellant ran away from the scene but was arrested 4 days later in a railway station.
In his own defence, the Appellant stated that he was called by the PW1 as he was returning from the market and he stopped in answer to the call but the PW1 and the deceased fought him and injured him. That it was the PW1 who dealt the fatal blow that killed the deceased
Three witnesses gave evidence for the prosecution and tendered Exhibits A, B and C being PW2’s Statement to the Police, Appellant’s confessional Statement to the police and proceedings from an earlier trial in evidence. The Appellant testified in his own defence and called two other witnesses. At the end of the trial, the Appellant was found guilty and sentenced to death.
It is against the said Judgment that the Appellant appealed before us upon the following two Grounds of Appeal, vide a Notice and Grounds of Appeal dated 4th day of January, 1995 to wit:-
1. The learned trial Judge erred in law by failing to consider whether the issue of self defence availed the Appellant in view of overwhelming evidence from both the prosecution to the effect that there was a serious fight. (Particulars of error supplied.)
2. The learned trial Judge erred in law by picking and choosing amongst contradictory evidence of the prosecution witnesses as to what happened at the scene of the incident.
With the leave of the court granted on the 30th October, 2011, the Appellant filed the following additional Grounds of Appeal, to wit:-
3. The learned trial Judge misdirected himself and came to a wrong conclusion when he accepted the evidence of PW1 (the only eye witness) to convict the deceased person in view of material contradictions in his evidence both oral and written.
4. The learned trial Judge erred in law when he found the Accused person guilty of murder when there was no medical evidence that the injury sustained by the deceased (the cause of death) was capable to being inflicted by the weapon allegedly used by the accused (i.e. a dagger).
5. The learned trial Judge erred in law when he wrongly applied the principles of six tests of confession laid down by the West African Court of Appeal in KALU V. THE KING 14 WACA PAGE 30 and admitted the statement credited to the accused person as a confession.
6. The learned trial Judge erred in law when he found the accused person guilty of the offence of murder without adequate consideration of the accused’s account of the incident that led to the death of the deceased which is more probable than the evidence of PW1 (the only eye witness).
(All particulars of error and misdirection were supplied)
As it is the practice in this court, parties filed and exchanged briefs of argument. In the Appellant’s brief of argument settled by G.I. Abibo Esq. four (4) Issues were distilled for the determination of the appeal, to wit:-
(a) Whether the evidence of the prosecution witnesses was cogent enough and beyond reasonable doubt to sustain the conviction of the accused person for murder in view of the material contradictions in the said evidence.
(b) Whether the conviction of the accused person for murder can be sustained in the absence of medical evidence as to the consistency of the act of stabbing, credited to the accused with the injury allegedly sustained by the deceased.
(c) Whether the written statement credited to the accused was rightly admitted as a confession and acted upon in view of the suspicious nature of the document.
(d) Whether defences put up by or that were open to the accused person were adequately considered by the trial Court.
In the Respondents brief of argument, settled by the learned Director for public Prosecutions, U.T. Uwachukwu Esq., the following three Issues were distilled for determination, to wit:-
(i) whether there were material contradictions in the evidence of the prosecution witnesses as to say the case against the Appellant has not been proved beyond reasonable doubt.
(ii) whether medical evidence in the instant case was essential and not merely desirable for the just determination of the case.
(iii) Whether the learned trial Judge was right in convicting the Appellant in this case.
At the hearing of the appeal on the 23rd day of January, 2012, learned Counsel for the Appellant adopted and relied on the Appellant’s brief of argument dated 17th February, 2010 and filed on the 18th February, 2010 but deemed properly filed on the 10th January, 2011, and urged the court to set aside the conviction and sentence of the Appellant and to discharge and acquit him.
The Respondent adopted its brief of argument dated 14th day of May, 2010 and filed on the 17th May, 2010, and urged the court to dismiss the appeal and to affirm the Judgment of the lower Court.
I have considered the issues for determination as formulated by the respective counsel and I am of the view that, while the Appellants Issues (a) in and (b) are similar con but couched differently with the Respondent’s Issue (i) and (ii), the Respondent’s issue (iii) encapsulates both Appellants Issues (c) and (d). Therefore, Appellants Issues will be considered in the determination of this appeal.
ISSUE (a)
Whether the evidence of the prosecution witnesses was cogent enough and beyond reasonable doubt to sustain the conviction of the accused person for murder in view of the material contradictions in the said evidence.
In arguing this issue, it is submitted by the learned counsel for the Appellant that this being a capital offence, the case against the Appellant must be proved beyond reasonable doubt and the burden rest on the prosecution to adduce evidence that possesses the needed quality, citing the cases of MILLER V. MINISTER OF PENSION (1974) 2 ALL E. R. 373: AND KALU V. THE STATE (1988) 4 NWLR (PT. 90) 503 AND HON. JUSTICE C. A OPUTA ON MONDERN BAR ADVOCACY AT PAGE 29 – 30.
He submitted that it is abundantly clear from the pieces of evidence before the Court that there are lots of material contradictions in the evidence of the prosecution witnesses both individually and when compared with one another. He referred to page 7 lines 8 – 9 of the record, where PW1 testified that the accused came to his (PW1’s) house to ask him why the accused should not come to his house. That at page 77 lines 26 – 28 PW 2 testified in an earlier proceedings Exhibit C that the accused came to PW1 to find out why PW1 could not forgive him (the accused). His view is that this contradiction is material in view of the accused’s testimony that PW1 lured him, the accused to come into his house where he was attacked.
It is also submitted that at page 7 lines 16 – 17 of the records PW1 testified that the accused had his hand in his pocket from where he brought out a dagger to stab the deceased. That at page 10 lines 12 – 13; the same PW1 stated that when the accused came, he (the accused) lighted his cigarette. That PW 2 did not mention anything about smoking anything. Learned Counsel submitted that such a contradiction casts a shadow of doubt on what actually happened at the scene of the incident.
Learned Counsel also submitted that at page 12 lines 14 – 16, PW2 gave evidence that there was an exchange of blows between PW1 and the deceased on the one hand and the accused on the other hand. That PW1 made no mention of the scuffle that took place. That the evidence of PW 2 is in conformity with the testimony of the accused at page 27 line 13 of the records. His views that this is a cover up by the prosecution as PW 3 also testified that PW1 did not tell him that there was exchange of blows.
Learned Counsel further submitted that the Lower Court while evaluating the evidence of witnesses observed at page 69 lines 5 – 11 that there were material discrepancies in the PW2’s evidence when compared with her statement to the police and her previous testimony in Exhibit C, that yet, the Lower Court held that there is over whelming evidence emanating from the testimonies of the prosecution witnesses including PW2 (page 74 lines 1 – 7).
Learned Counsel thus submitted that when the above contradictions are properly considered it is easy to see that they are material enough to make it dangerous to sustain a conviction for murder, citing the case of ENAHORO V. THE QUEEN (1965) NMLR 265. It is also his view that the learned trial Judge having observed some discrepancies in the evidence of PW2 as compared with her statement to the police, he went on to provide explanation for the discrepancies when he held at page 69 line 1 – 5 that PW2 is a split personality with a divided loyalty to the accused (her paramour) and PW1 her real husband and submitted that it is not for the judge to provide explanation for inconsistency in the statements of witnesses citing the case of CHRISTOPHER N. ONUGBOGU V. THE STATE (1974) 9 SC1. He therefore submitted that the contradictions are material and urged the Court to resolve same in favour of the Appellant.
In his response, learned Counsel for the Respondent argued that there were no contradictions allegedly contained at page 7 lines 8 – 9 of the records of appeal when compared to page 77 lines 26 – 28. He submitted that the Appellant came to the house of PW1 and whether he came to beg for forgiveness or whether he came to find out from PW1 why PW1 banned him from coming to his house is of no moment.
He also submitted that there is no contradiction at page 7 lines 16 – 17 of the records when compared to the contents of page 10 lines 12 -13. He submitted that the fact that PW1 said that Appellant’s hand was in his pocket from where he brought a dagger to stab the deceased does not mean that it was impossible for the Appellant to light a cigarette when he came to pick quarrels with the PW1 and his deceased brother. He submitted that PW2 could not say so because she was at the back yard preparing food for her husband. He went on, that the learned trial Judge acknowledge that there appears some slight, but not in the least material discrepancies in the evidence of PW2 when compared with her statement to the police and her previous testimony but that it is not enough to vitiate the conviction of the Appellant at the Lower Court. Reliance was placed on the following cases; KENNETH OGUALA V. THE STATE (1991) LRCN 660 AT 675; AYO GABRIEL V. THE STATE (1989) 5 NWLR (PT 122) 457: SALE DAGAYA V. THE STATE (2006) 134 LRCN 397; ATANO V. A. G. BENDEL STATE (1988) 2 NWLR (PT 75) 201, AND KALU V. THE STATE (1988) 4 NWLR (PT 90) 50. The Court was urged to resolve this issue in favour of the Respondent.
In his reply on this issue, learned Counsel for the Appellant referred to the case of AMODU V. STATE (2010) 2 NWLR (PT 1177) 47 AT 52 to submit that the prosecution has the duty to prove all and not merely some of the ingredients of the offence charged beyond reasonable doubt. It is his view that the contradiction is material since it has to do with one of the ingredients the prosecution is expected to prove beyond reasonable doubt that the death of the deceased resulted from the act of the accused person. He also referred to the following cases: KALU V. NIGERIAN ARMY (2010) 4 NWLR (PT.1185) 433 AT 440. AND KINGSLEY V. STATE (2010) 6 NWLR (PT 1191) 393 AT 595.
The Appellant is contending under this issue that the evidence of the prosecution witnesses are full of material contradictions as to sustain his conviction on a charge of murder. The question that needs to be answered is whether there are material contradictions in the evidence of the prosecution witnesses both individually and when compared with one another as contended by the Appellant?
The point made by the learned Counsel for the Appellant is that PW1 testified at page 7 lines 8 – 9 of the record that the Appellant came to his house to ask him why he (the Appellant) should not come to his house. That PW2 testified at page 77 lines 26- 28 of the record that the Appellant came to PW1 to find out why PW1 could not forgive him (the Appellant). Also that PW1 testified at page 7 lines 16 – 17 of the record that the Appellant had his hand in his pocket from where he brought out a dagger and stabbed the deceased. While at page 10 lines 12 – 13 the same PW1 testified that when the Appellant came, he lighted his cigarette. That PW 2 did not mention anything about smoking anything.
He also referred to the evidence of PW2 at page 12 lines 14 – 16 of the record where she gave evidence as to what took place at the scene that there was exchange of blows between the PW1 and the deceased on the one hand and the Appellant on the other hand. That PW1 made no mention of the scuffle that took place. That this evidence of PW2 is in conformity with the testimony of the Appellant at page 27 line 13. He concluded that all these are material contradictions which ought to weigh heavily on the mind of the trial Judge.
It is my view that, the issue is not whether he the Appellant came to the house of PW1 to ask PW1 why the Appellant should not come to his house as stated by the PW1 or that he came to find out why PW1 should not forgive him as stated by the PW2. The issue is, was the Appellant in the house of PW2 or at all for whatever purpose or reason? The fact that the Appellant was in the house of PW1 at about 8pm on that day was not in dispute. In this respect, there is no material contradiction as to the fact that the Appellant came to the house of PW1. What happen is only some minor discrepancies in the evidence of PW1 and PW2 which do go to the root of the matter before the Court. The learned Judge was right to observe some minor discrepancies.
With respect to alleged contradiction at page 7 line 16 – 17 of the record when compared to the contents of page 10 lines 12 – 13, this fact is also clear. The fact of putting his hand in his pocket from where he brought out a dagger to stab the deceased and the fact that when the Appellant came he lighted his cigarette are not referring to a single act but two different events. The act of lighting a cigarette when he came and the act of bringing out a dagger from his pocket to stab the deceased are not contemporaneous acts or acts performed at the same time. The two events are different, one at the time he came and the other when the quarrel en-sued. This cannot be said to be a material contradiction.
Again, PW2 was not in a position to mention that the Appellant was smoking anything in view of the fact that when the Appellant came, she was at the back yard preparing food for her husband at the material time. It was the shout she heard that attracted her to the scene.
The evidence of the Appellant that it was the Appellant that lured him into his house where he was attacked was not corroborated by any of the witnesses called by him and was not believed by the trial judge.
Also, it is my candid view that, the fact that PW1 did not mention scuffle between him and the Appellant does not make the statement contrary to that of PW2. It is only a discrepancy which does affect the quality of the evidence of PW1. PW3 is only the Investigating Police Officer. His evidence is the information he gathered from his investigation.
The learned trial Judge in evaluating the evidence of witnesses observed at page 69 lines 5 – 11, that there appears to be some slight discrepancies in the evidence of PW2 when compared to her statement to the police and her previous testimony in Exhibit C.
The Supreme Court, in the case of KENNETH OGOALA V. THE STATE (1991) 2 LRCN 660 AT 679 held as follows:
“A piece of evidence is contradictory to another when it asserts or affirms the opposite of what that other asserts, and not necessarily when there are minor discrepancies in say, details between them. As I see it, contradiction between two pieces of evidence goes rather to the essentiality of something being or not being at the same time, whereas, minor discrepancies depend rather as the persons astuteness and capacity for observing details”.
The word “contradict” comes from the two latin words contra (opposite) and dicere (to say). Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains is minor discrepancies in details.
On the other hand, minor discrepancies between previous written statements and subsequent oral testimony are to be expected and do not destroy the credibility of the witnesses. Indeed, when such occur, it may lead to suspicion that the witness has been tutored. See AYO GABRIEL V. THE STATE (1989) 5NWLR (Pt. 122) 457.
In the instant case, what the Appellant is alleging as contradictions are noting more than minor discrepancies as rightly observed by the learned trial Judge. See SALE DAGAYA V. THE STATE (SUPRA) and ATANO V. A. G. BENDEL STATE (SUPRA). For a contradiction to be fatal to the prosecution case, it must go to the substance or root of the case and not of a minor nature as rightly observed by the learned trial Judge in the instant case.
This issue is therefore resolved against the Appellant.
ISSUE (b)
Whether the conviction of the accused person for murder can be sustained in the absence of medical evidence as to the consistency of the act of stabbing, credited to the accused with the injury allegedly sustained by the deceased.
Arguing this issue, learned counsel for the Appellant submitted that it is the law that medical evidence as to cause of death in murder case is desirable, it is not essential as the cause of death may be inferred from the circumstances of the case citing the following cases: CHIWMOH V. THE STATE (1986) 2 NWLR (PT 22) 331; AND ALARAPE V. THE STATE (2001) 25 SCNJ 162.
He submitted that in the instant case, Pw 3 testified at page 18 lines 1 – 6 that a post mortem examination was conducted on the deceased by one Dr. Chima Nwafor at the General Hospital Okpuala Ngwa and that post examination result was issued to him after the exercise. He submitted that PW1 testified that the accused took out a dagger from his pocket and stabbed the deceased on the chest. He submitted that neither the Doctor was called to give evidence nor the post mortem report tendered in evidence and that no explanation was offered by the prosecution as to why all these were kept away by the prosecution.
Learned counsel submitted that in a case of murder, the cause of death must be related to the act of the accused and Doctor’s evidence must confirm this. The following cases were relied upon; ATEJI VS THE STATE (1976) 2 SC 79 AT 86 and REX V. ABENGOWE 3 WACA 85. He also submitted that photographs of the deceased taken before he was taken to the mortuary were not tendered in evidence.
He thus argued that the shouts of the deceased as quoted by the trial Judge do not include the mentioning of a dagger. He opined that the importance of the medical evidence to relate the cause of death to dagger becomes inevitable when the testimony of the accused was to the effect that it was PW1 who hit the deceased with an object.
He concluded that the failure of the prosecution to call medical evidence both written or oral is fatal to the conviction of the Appellant for murder. The court was urged to resolve this issue in favour of the Appellant.
In his response, learned Counsel for the Respondent submitted that there was evidence that the Appellant stabbed the deceased with a dagger at the chest region and the deceased fell down and died (PW1 at page 7 lines 27 – 31) and submitted that in the face of such evidence, medical evidence of the cause of death was no longer a necessity. He relied on the following cases; TONARA BAKURI V. THE STATE (1965) NWLR 163 AT 164; GAROS GWASHI V. THE STATE (1972) 6 SC 93: ERIC UYO V. A.G. BENDEL STATE (1986) (PT 17) 418 AND MATHEW OKE ONWUMERE V. THE STATE (1991) 4 NWLR (pt. 186) 428 at 444. He therefore submitted that though medical evidence is desirable in establishing the cause of death in murder trial, it is not indispensible where there are facts, which sufficiently show the cause of death to the satisfaction of the Court. He also relied on the following cases: MATHEW OKE ONWUMERE V. THE STATE (SUPRA) EGBE ENEWOH V. THE STATE (1990) 4 NWLR (PT 145) 469: SUNDAY IHUEBEKA V. THE STATE (2000) 17 LRCN 1055: SUNDAY EFFIONG V. THE STATE (1998) 58 LRCN 3961: UCHENNA NWACHUKWU V. THE STATE (2002) 12 NWLR (PT. 782) 543 AND QUEEN V. NTAH (1961) 1 ALL NLR 590. The court was urged to resolve this issue in favour of the Respondents.
Replying, learned counsel for the Appellant submitted that those cases cited by the Learned Respondent’s Counsel are not applicable to the facts of this case as they are distinguishable. His view is that, in the instant case, there is a dispute as to whose act i.e. between the Appellant and the PW1 led to the death of the deceased and therefore, medical evidence becomes the best evidence to establish the cause of death citing the case of ONWUMERE V. THE STATE (1991) 4 NWLR (PT 186) 428 AT 448 – 449. The court was thus urged to hold that the prosecution has failed to prove the case against the appellant beyond reasonable doubts.
The issue raised here is whether the conviction of the Appellant for murder can be sustained in the absence of medical evidence as to the consistency of the act of stabbing credited to the Appellant with the injury sustained by the deceased. In other words, whether the absence of medical report of the post mortem examination conducted on the deceased, the report of which was issued but not tendered are to be presumed against the prosecution where it is necessary to relate cause of death to the act of the Appellant.
In instant case, it was in evidence before the Lower Court that the Appellant stabbed the deceased with a dagger at the chest region and the deceased fell down and died. PW1 testified at page 7 lines 27 – 31 of the record as follows:-
“The accused asked my brother to shut up that it did not concern him. The accused took out dagger from his pocket and stabbed the deceased on the chest. He fell down and died”.
In TONARA BAKURI V. THE STATE (SUPRA), the Supreme Court held that in cases of this nature where a man was attacked with a lethal weapon and died on the spot, it is hardly necessary to prove the cause of death. It can properly be inferred that the wound inflicted on the deceased caused the death. See GAROS GWASHI V. THE STATE (SUPRA) where it was held that where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such situation arises where death was instantaneous or nearly so.
The rational for this proposition which is founded on logic and common sense is that since the act of the accused is the most proximate event to the death of the deceased, it could be regarded as the deciding factor even where it may be taken as merely contributory to the death of the deceased. As long as the intention to kill or to cause grievously bodily harm has been established the intention for the offence of murder is complete. See ERIC UYO V. A.G. BENDEL STATE (SUPRA) AND MATHEW OKE ONWUMERE V. THE STATE (SUPRA).
In the instant case, the Appellant tried to shift the act that led to the death of the deceased on the PW1. That it was PW1 while trying to strike him the second time and he dodged that the fatal blow landed on the deceased that killed him instantly. The learned trial Judge disbelieved this story by the Appellant. In any event, this story was not corroborated. I also disbelieved the Appellant that it was the PW1 that dealt the fatal blow that killed the deceased. It was the Appellant that stabbed the deceased with a dagger, a lethal weapon on the chest region a vital part of the body and he fell down and died instantly. It needs no medical evidence to prove that it was the stabbing on the chest region, a vital part of the body that killed the deceased.
The law remains settled that the medical report is not a requisite for establishing a cause of death in a murder charge. Once the prosecution had established the death of the deceased and provided proof that the death is as a result of the unlawful and intentional act of the accused; medical report ceases to be a sine-qua-non to the conviction of the accused person. In the instant case, the evidence of PW1 and PW2 had provided direct and satisfactory evidence of not only the death of the deceased, but also that the death followed from after the unlawful and intentional act of the Appellant. See ADAMU V. KANO N. A. (1956) SCNLR 65: TONARA BAKURI V. STATE (1965) NWLR 163; and MICHEAL V. THE STATE (2008) 13 NWLR (PT 1104) 361 AT 377. In other words, where facts exist which sufficiently show the cause of death without doubt, a medical report showing cause of death is not necessary and may be dispensed with. See EFFIONG V. THE STATE (1998) 8 NWLR (PT 562) 362: GAGO V. THE STATE (2001) 3 WRN 159. In the instant therefore, medical evidence becomes unnecessary to establish the cause of death of the deceased. Medical evidence does not determine that it was a blow A and not B that killed the deceased. It is more concerned with the type of weapon used and the part of the body struck. Consequently, I therefore resolve the issue against the Appellant.
ISSUE (c)
Whether the written Statement credited to the accused was rightly admitted as a confession and acted upon in view of the suspicious nature of the document.
Learned Counsel for the Appellant submitted that the learned trial Judge treated the question of whether the statement of the Appellant admitted as Exhibit B was actually that made by the accused person too lightly, placing reliance of the case of ADAMU V. ATTONEY GENERAL OF BENDEL STATE (1986) 2 NWLR (PT 22) 284 AT 286, on the distinction between retracted and statement and one allegedly made involuntarily under inducement, threat or promise. He submitted that the Court’s duty is to ascertain whether the statement was in fact made and it is in that respect that the genuineness or otherwise of the makers signature comes into consideration.
Learned counsel submitted that the Appellant made a statement which he thump pressed as opposed to the one which was signed and the question is who signed for the accused person? He submitted that the learned trial Judge in his judgment stated that Exhibits B is no doubt the voluntary statement of accused as PW3 identified the accused as the person who made the statement relying on the case of QUEEN V. AGAGARIGA ITULE (1961) 1 ALL NLR (PT 3) 462.
Learned Counsel contended that the case of QUEEN V. AGAGARIGA ITULE (SUPRA) does not apply to the present circumstances of this case. It is his view that the objection in the instant case is that the statement sought to be tendered was different from the one signed by an unknown person and not the one thump printed by the accused person. Those six tests of a confession considered by the learned trial Judge in determining the confessional statement made by the accused was true does not apply in the instant case. His view is that, the question as to who wrote the name Okechi or Okechukwu on the statement sought to be tendered has not been answered. The court was urged to resolve this issue in favour of the Appellant.
The learned counsel for the Respondent submitted that the confessional Statement of the Appellant which was tendered through PW3, the Investigating Police Officer was direct and unequivocal and that the learned trial Judge was right in applying the test laid down in R. V. KANU (1952) 14 WACA 136 in proof of the confessional statement. He also submitted that it is trite that where the confessional statement of an accused person is direct, positive, true and unequivocal about his committal of that crime, he can be convicted for the offence. The following cases were relied upon; OGUGU V. THE STATE (1990) 2 NWLR (PT. 134) 589; AKPAN V. STATE (1990) 7 NWLR (PT 160) 101. Learned Counsel submitted that it is of no moment that the Appellant resiled from his extra Judicial statement while testifying in Court. He referred to the case of MATHEW OKE ONWUMERE V. THE STATE (SUPRA) to submit that it is for the Appellant to explain to the Court as part of his defence the reason for the inconsistency save to say that his name is Okechi Jeremiah and that the person that signed the statement is Okechukwu Jeremiah and it is submitted that the two names can be used interchangeably as they mean the same thing. We were urged to resolve the issue against the Appellant.
The contention under this issue is whether the written statement credited to the Appellant was rightly admitted as a confession and acted upon by the Court in convicting the Appellant. The main argument is that the Appellant did not sign the statement but only thump printed the Statement and that he was not the author of the signature on Exhibit B the confessional Statement and that the learned trial Judge did not decide who the author was.
The learned trial Judge came to the conclusion that the mere denial of the Statement by the accused did not affect its admissibility at that stage, relying on QUEEN V. JOHN AGAGERIGA ITULE (1961) 1 ALL NLR and found in his judgment that Exhibit B is the voluntary statement of the accused person as identified by PW3 and tested Exhibit B the voluntary statement of the Appellant with the six tests for a confession laid down by the west African Court of Appeal in KANU v. THE KING (1952) 14 WACA 30.
In the instant case, the Appellant made a statement which he sought to retract at the hearing. What matters in the circumstance is whether the accused made the statement or better still whether he was in a position to make the statement. From the evidence on record, the Appellant never denied the contents of Exhibits ‘B’ but that he only thumb printed not signed.
Two situations arise when an accused denies his statement. It is either an accused says he did not make the statement voluntarily or that he did not make the statement at all. Where an accused person says, he did not make the statement voluntarily, it behoves on the trial judge to conduct trial within trial to at least determine the voluntariness or otherwise of the statement before admitting it is evidence.
In the second situation where the accused person says he did not make the statement, the trial judge can go ahead and admit the statements and wait until the end of the trial to determine whether the accused made the statement or not. See QUEEN V. IGWE (1988) 5 NWLR (PT 94) 225.
In the instant case, it clear that the case of the Appellant falls within the category wherein the judge would admit the statement and wait until the end of the trial to determine whether he made the statement or not. In the circumstances, the learned trial Judge was perfectly right in applying the test laid down in KANU v. QUEEN (SUPRA) to determine whether the Appellant made the confessional statement or not. The tests being:-
1. Is there anything outside the confession to show it is true?
2. Is it corroborated?
3. Are there statements made in it of fact so far as they can be tested?
4. Is the accused person a man who had opportunity of committing the murder?
5. Is it consistent with other facts, which have been ascertained and which have been proved?
The learned trial Judge tested the Appellant’s confessional statement and answered all the questions in the affirmative. I agree with him. The facts surrounding the circumstances of this case show that this statement is true. This is also corroborated by the evidence of the prosecution witnesses. There are also statements made in it of fact as they can be tested as far as the circumstances of this case are concerned and indeed the Appellant had the opportunity of committing the murder by going to the house of PW1 to accost him and brought out a dagger to stab the deceased on the chest, who fell down and died instantly and this is consistent with the facts which have been proved by the prosecution.
It is settled law that a confession does not become in admissible as evidence merely because the accused person denies having made it to the police. A confession by a person under arrest is not to be treated differently from other confession. See IKEMSON V. THE STATE (1989) 3 NWLR (PT 100) 405; EKPENYONG V. THE STATE (1991) 6 NWLR (PT. 200) 683; OGUGU V. THE STATE (1990) 2 NWLR (PT 134) 539, AND AKPAN V. STATE (1990) 7 NWLR (PT 160) 101.
In the instant case, the Appellant denied the said statement not on the ground that it was not voluntary made but that the statement was not signed by him and after hearing evidence, the learned trial Judge found that the Statement was made by the Appellant and admitted the same in evidence. The Appellant was taken before a Superior Police Officer, M. O. Maribe, Superintendent of Police, where he admitted making the statement. It is now settled that if an accused person resiles from his confessional statement, it is his function to explain to the court as part of his defence, the reason for the inconsistency. In such circumstance, if he is to be believed, the accused has to lead evidence to establish that his confessional statement could not be correct. It may be that he was not correctly recorded or that in fact he did not make the statement or that he was unsettled in mind at the time the statement was made or that he was induced to do so. That explanation must come from him without prompting from the prosecution. It is in rare cases that a Court would attach credence to the evidence of an accused person as against his extra judicial statement where he fails to show that the extra judicial statement could not be correct. See MATHEW OKE ONWUMERE V. THE STATE (SUPRA). In the instant case, the Appellant has failed to establish that the Statement was not his. I therefore resolve this issue against the Appellant.
ISSUE (d)
Whether defences put up by or that were open to the accused person were adequately considered by the trial Court.
Learned Counsel for the Appellant submitted that the law requires that all the defences put up by the accused person and those that open to him by virtue of the evidence before the Court must be considered by the Court however stupid. He places reliance on the cases of ALGBADION VS. THE STATE (2000) 4 SCNJ 1 AT 13 and OFORETE VS. THE STATE (2000) 7 SCNJ 162 AT 164 to submit that the learned trial Judge failed to consider the defence of self defence open to the Appellant.
Learned Counsel referred to page 27 lines 21 – 26 where the Appellant testified that it was PW1 that hit the deceased when he dodged a weapon the PW1 aimed at him. Also that PW2 gave evidence that there was an exchange of blows among PW1, the deceased and the Appellant at page 12 line 15 and also the evidence of the Appellant at page 27 line 13 where he gave evidence that PW1 and the deceased began to beat him, to submit that the defence of self defence was not considered by the learned trial Judge in his judgment. He also referred to pages 72 – 73 of the judgment to submit that a brief allusion to self defence without an actual appreciation and proper consideration of the facts on which the self defence is based is not what the law requires. It is submitted that the defence was not properly considered and we were urged to resolve the issue in favour of the Appellant.
Learned Counsel for the Respondent also submitted that it is true that all defences put up by the accused and those that are open to him by virtue of the evidence before the Court must be considered however stupid and cited the following cases: AIGBADON V. THE STATE (2000) 4 SCNJ 1; AND OFORETTE V. THE STATE (2000) 7 SCNJ 162 AT 164.
Learned Counsel submitted that the grouse of the Appellant is that the learned trial Judge did not consider the issue of self defence in extenso, but raised the question if self defence avails the Appellant in the circumstances of this case. Learned Counsel referred to the law regarding self defence as contained in Sections 286, 287, 288 and 32(3) of the Criminal Code to submit that the self defence now raised by the Appellant amounts to contradiction of some sort, as he cannot be invoking self defence and at the same time saying that another person killed the deceased.
Learned Counsel urged the Court to reject this porous defence of self defence which is an afterthought. That the defences of “not my act” and “self defence” are mutually exclusive. He submitted that the learned trial Judge duly considered the defence available to the Appellant and came to the conclusion that they did not avail him.
Learned Counsel submitted further that the learned trial Judge painstakingly evaluated the evidence of all the witnesses even to the point of repetition and drawing his inferences and making his findings and there is nothing to complain about his evaluation of the evidence before him. He submitted that the prosecution has established with high standard of proof that:
a. The deceased has denied
b. The death of the deceased resulted from the act of the accused person.
c. The killing was unlawful; and
d. The act of the accused person was intentional with the knowledge that death or grievous bodily harm is the probable consequence of his act.
The following cases were cited to buttress his submission; OGBU V. THE STATE (1992) 8 NWLR (PT 259) 255; IGAGO V. THE STATE (1999) 14 NWLR (PT 639) 1, and ONYIA V. THE STATE (2006) 11 NWLR 267 AT 293. He also submitted that the evidence of PW1 who the learned trial Judge described as a simple man who told the simple truth, PW2 and PW3 left no one in doubt that the Appellant killed the deceased. The following cases were also referred to; SOLOMON EHOT V. STATE (1993) 12 LRCN 522 AT 540; BASIL AKALEZI V. THE STATE (1993) 10 LRCN 264: AND MILLER V. MINISTER OF PENSIONS (1947) 2 ALL E. R. 377, to also submit that the prosecution has proved beyond reasonable doubt and that Section 138(1) of the Evidence was met and that the learned trial Judge was right in convicting the Appellant. The Court was urged to resolve this issue in favour of the Respondent.
This issue deals with whether the defences put up by or that were open to the Appellant were adequately considered by the trial Court and it was submitted that the Learned trial Judge failed to consider the defence of self defence open to the Appellant on the evidence before the Court.
It is trite law that in a criminal trial, any defence raised by an accused person must be considered however stupid. It is also settled that law that any defence to which an accused person is on the evidence entitled to should be considered however stupid or unreasonable. See AIGBADION V. THE STATE (2000) 4 SCNJ 1 AT 13 AND OFORELE V. THE STATE (2000) 7 SCNJ 162 AT 164.
The learned trial Judge was mindful of this position of the law when he said at page 72 lines 2 – 5 of the record as follows:
“Nonetheless, the Court must advert its mind to all the possible defences available to the accused in a capital offence namely insanity, provocation and self defence”
The learned trial Judge proceeded to treat them after the other. The grouse of the Appellant is that the trial judge did not consider the issue of self defence in entenso. With regard to self defence, the learned trial Judge held at page 74 lines 8 – 15 of the record as follows:
“On self defence Section 32 (3) of the Criminal Code provides a defence wherever the act committed by anyone is reasonably necessary in order to resist actual and unlawful violence threatened to him or to another person in his presence.
Again, I do not see any evidence in favour of the accused person in this regard.”
Sections 286, 32(3) of the Criminal Code are opposite and they provide as follows:-
286 “When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use force to the assailant as is reasonably necessary to make effectual defence against the assault.”
Provided that the force used is not intended, and is not likely to cause death.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using such force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”
32 (3) “A person is not criminally responsible for an act or omission if he does not omit to do the act under any of the following circumstances:- (3) when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him or to another person in his presence.”
There was evidence on record that the Appellant went to the house of PW1 in the afternoon of the day of the incident and accosted the wife of PW1 his lover unknown to the PW1. He went back again to the house that evening of the incident, perhaps with a mission.
The Appellant testified to the effect that they fought PW1 and the deceased on the one hand and himself on the other hand. He said that it was PW1 who brought out an object with which he hit him in the first instance and that PW1 tried to hit him again the second time and he dodged. The second attempt now hit the deceased and he started shouting, “Dede – e e Dede – e e you have killed me”. That at that stage, they left him and he went away. See page 59 lines 20 – 29.
From the above passage, the Appellant never admitted that he did anything to the deceased. Rather, he shifted the blame of the act that led to the death of the deceased to the PW1. Will the defence of self defence avail the Appellant in the circumstances? I think not. The Appellant cannot claim self defence under any provoked or unprovoked attack from PW1 or the deceased. The Appellant who claimed ignorance of the death of the decease cannot claim or rely on self defence as a defence. The trial judge is right when he held, “I did not see any evidence of self defence”.
In any case, the Appellant has not satisfied any of the conditions that must be satisfied by an accused person before defence of self defence can avail him as laid down in the case of OMOREGWE V. STATE (2009) ALL FWLR (PT. 458) 230 AT 245. These conditions are as follows:
1. That the accused must be free from fault in bringing about the encounter;
2. There must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity.
3. There must be no safe or reasonable mode of escape by retreat; and
4. There must have been a necessity for taking life.
In order to sustain the defence, all the above ingredients must co-exist and be established. In the instant case, none of the above ingredients was present; therefore the learned trial Judge was right when he held that there was no evidence of self defence. See LIYA V. STATE (1998) 2 NWLR (PT 538) 397; KWAGHSIR V. STATE (1995) 3 NWLR (PT 386) 651: and NWANBE V. STATE (1995) 5 NWLR (PT 384) 385.
On the whole, the question that many now be asked is whether the prosecution has established its case against the Appellant beyond all reasonable doubt.
In criminal trials, the prosecution has the duty to prove the guilt of the accused person which it accuses of committing the crime and the burden never shift beyond reasonable doubt. See Section 138 (1) of the Evidence Act and 36 (5) of the Constitution of the Federal Republic of Nigeria (1999) (as amended); NJOVENS V. STATE (1973) NWLR 331; AMEH V. STATE (1973) 7 SC 27. MILLER V. MINISTER OF PENSIONS (1947) 2 ALL ER 372: KALU V. THE STATE (1988) 4 NWLR (PT 90) 503: AYO V. STATE (2006) 6 WRN 134: SAM V. C. O. P. (2009) ALL FWLR (PT 450) 760 AT 769.
In the case of MILLER V. MINISTER OF PENSIONS (SUPRA), it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote possibility in his favour, which can be dismissed with the sentence of course it is possible but not in the list probable; the case is proved beyond reasonable doubt. In other words, once the proof of a case as offered by the prosecution drowns the presumption of innocence of the accused, the court is entitled to convict him although there could exist shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or actus reus or both, the prosecution has discharged the burden placed on it by Section 138 (3) of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. See DIEBE V. STATE (2007) ALL FWLR (Pt. 363) 83; and OKOH V. STATE (2009) ALL FWLR (PT 453) 1358 at 1400.
A charge of murder is established when the prosecution proves the following ingredients beyond reasonable doubt:
1. That the deceased died
2. That the death of the deceased resulted from the act of the accused
3. That the killing was unlawful
4. That the act of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See OGBA V. THE STATE (1992) 2 NWLR (PT 222) 146: STATE V. AIGBANGEE (1988) 3 NWLR (PT 297) 29; OLADIPUPO V. THE STATE (1994) 6 NWLR (PT 298) 131; OKEKE V. THE STATE (1999) 2 NWLR (PT 590) 253, OGBU V. THE STATE (1992) 8 NWLR (PT 259) 255, IGAGO V. THE STATE (1999) 14 NWLR (pt 637) 1; ONYIA V. THE STATE (2006) 11 NWLR 267 AT 293 and ABIRIFON V. STATE (2009) 35 WRN 37 AT 79.
In the instant case, the prosecution effectively proved the case against the Appellant beyond reasonable doubt through the testimonies of PW1 whom the learned trial Judge described as a simple man who told the simple truth, PW2 and PW3. Once the Learned trial Judge is satisfied beyond reasonable doubt that on the evidence offered by the prosecution that the accused and no one else committed the offence, the judge is entitled to find him guilty. See SOLOMON EHOT V. STATE (1993) 12 LRCN 522 AT 540. In the circumstances of this case, the learned trial Judge rightly convicted the Appellant for murder.
On the whole therefore, I find that this appeal has no merit and it is hereby dismissed. The judgment of the Lower court convicting and sentencing the Appellant to death contrary to Section 319 (1) of the Criminal Code, delivered on the 19th day of December, 1994 is hereby affirmed.
MOJEED A. OWOADE, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother UWANI MUSA ABBA AJI, (PJ). I agree with the reasoning and conclusion. I also abide with the consequential orders.
HARUNA M. TSAMMANI, J.C.A.: I had the advantage of reading in draft form the judgment just delivered by my learned brother, UWANI MUSA ABBA AJI, JCA (Presiding).
My learned brother comprehensively considered all the issues that arose for determination and came to the inevitable conclusion that the appeal is devoid of any merit. He consequently dismissed same.
I am in complete agreement with the reasoning and conclusions of my learned brother on all the issues that arose for determination in this appeal. I only wish to comment on the defence of “self defence” raised by the Appellant.
The purport of self-defence in law is to negative the existence of an offence, so that when a person kills another in self-defence, the killing does not amount to an offence but leads to a total exoneration of the accused. Where the defence is established in a criminal trial, the accused will be entitled to a discharge and acquittal. See section 286 of the Criminal Code and NWAEKWEGHINYA V. THE STATE Vol. 21 NSCQR pg. 570 at pg. 590-591 per Belgore, JSC (as he then was). However, for the defence to avail an accused person, there must exist at the time the killing took place, reasonable apprehension of death or grievous harm and the deceased reasonably believed the act of killing was necessary for his own protection. In other words, the act of the accused person must be that of a reasonable man placed in similar situation. It is not measured on the temperament of the individual killer. See UDOFIA v. THE STATE (1984) 2 S.C. pg. 139 and R v. ONYEAMAIZU (1959) N.M.L.R. Pg. 93.
In the instant appeal, I do not find a scintilla of any provocative act or attack by the deceased on the Appellant as to cause any reasonable apprehension on him that the deceased would likely or probably kill him or cause him bodily harm. The evidence on record only portrayed the Appellant as an irrational or easily excitable individual who was ready to and did kill. The learned trial judge was therefore right in convicting and sentencing him to death for murder. This appeal therefore has no merit and is accordingly dismissed. The conviction and sentence passed on him is hereby affirmed by me.
Appearances
E. C. Aguma, ESQFor Appellant
AND
Chief Ume Kalu, ESQ, Attorney General, Abia State with U. T. Nwachukwu, ESQ and Dave Kalu, ESQFor Respondent
