AKIM BASSEY v. THE STATE (2013)

AKIM BASSEY v. THE STATE

(2013)LCN/6169(CA)

In The Court of Appeal of Nigeria

On Thursday, the 9th day of May, 2013

CA/C/117C/2012

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

AKIM BASSEY Appellant(s)

AND

THE STATE Respondent(s)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

In a criminal trial the onus and standard of proof is on the prosecution and this is beyond reasonable doubt. See R vs. Basil Lawrence (1932) All NLR 6 at 7. That is why the appropriate phraseology is that the judgment is “unwarranted, unreasonable and cannot be supported having regard to the evidence…” see Isiekwe vs. State (1999) 9 NWLR (Pt.617) 43 and Ubene vs. Commissioner of Police (2005) 1 NCC 624. In civil appeals the learned trial judge considers the “weight of evidence” adduced by the parties on an imaginary scale to determine which preponderates more in favour of one of the parties to arrive at a just decision. See Mogaji vs. Odofin (1978) 4 SC 91 at 93; Anyaoke vs. Adi (1986) 3 NWLR (pt.31) 731 at 742 and Atuyeye vs. Ashamu (1987) 1 NWLR (Pt.49) 267 at 275. The appropriate phraseology is that, “The judgment is against the weight of evidence”. Order 6 rule 3 of the Court of Appeal Rules, 2011 which provides that, “Any ground which is vague or general in terms shall not be permitted, say the general ground that the judgment is against the weight of the evidence and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”
Every issue formulated for determination must relate to a competent ground of appeal. See Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76 at 93. PER TUR, J.C.A.

THE STATUTORY DEFENCE OF PROVOCATION AND SELF-DEFENCE

WHETHER OR NOT AN INTENT TO KILL IS AN ESSENTIAL ELEMENT OF THE OFFENCE OF ATTEMPTED MURDER

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The appellant hails from Okuni Village while Slyvanus Nkom Oyongha (PW1) is from Akam Village. All are from Ikom Local Government Area of Cross River State. They were contesting the ownership of a piece of farmland bordering their respective villages. On 27th day of April, 2009 both met at the farmland and a fight ensued. Both sustained bodily injuries and each reported to the police station at Okuni at different times. The police investigated their respective complaints but subsequently arrested and arraigned the appellant before the High Court of Justice of Cross Rivers, Ikom Judicial Division on a charge which read as follows:

”STATEMENT OF OFFENCE:
ATTEMPT TO KILL, contrary to Section 320(1) Criminal Code, Cap. C16 Vol.13 Laws of Cross River State, 2004.

PARTICULARS OF OFFENCE:
Akim Bassey on the 27th day of April, 2009 in a farm land at Akam in the Ikom Judicial Division did unlawfully attempt to kill one Sylvanus Nkom Oyongha by hitting him with a club on his head.”

The appellant pleaded not guilty. The prosecution called PW1 (Sylvanus Nkom Oyongha); PW2 (Dr. Julius Abang Ayang) who treated Pw1 for the injuries he sustained in the fight on 27th day of April, 2009 and PW3 (Corporal Victoria Okon) the woman police investigating officer. All testified and were cross-examined by the defense Counsel. The prosecution tendered the matchet the appellant took to the police station as the weapon Pw1 used in inflicting injuries on him. This was admitted as Exhibit “A”. Exhibit “B” was the medical form the police issued the appellant for his treatment at a Hospital due to the injuries he sustained as a result of the matchet cut by PW1. The medical form subsequently issued by the police to Pw1 was also put in and marked Exhibit “C”. The first extra-judicial statement of the appellant when he reported the incident to the police was marked Exhibit “D”. The appellant made another statement upon his arrest which was admitted as Exhibit “E”. The appellant had snapped a photograph to show the extent of the wounds inflicted on him by Pw1 on 27th day of April, 2009. The prosecution put in the photograph which was marked Exhibit “F”. The appellant testified as DW1. He called no other witness. At the close of evidence counsel submitted written addresses. On the 25th day of April, 2012 the learned trial Judge convicted the appellant, sentencing him to 5 years imprisonment with hard labour. Being aggrieved the appellant filed a Notice of Appeal on 3rd day of May, 2012 and a brief of argument on 9th day of July, 2012.

The appellant’s learned Counsel submitted the following issues for determination:
“1. Whether the trial Court adequately and or correctly evaluated/reviewed the totality of the evidence before it, before arriving at the decision the way it did.

2. Whether in law, the defence of self defence was available to the convict/appellant in the instant case.

3. Whether the prosecution proved its case beyond reasonable doubt warranting the conviction and sentence of the accused person the way the trial Court did.”

The respondent’s learned Counsel took exception to Ground one and two of the Notice of Appeal and the issues formulated thereon. Counsel argued that ground one is not a proper ground in criminal appeals. That the particulars in ground two have no bearing to the main complaint therein. Grounds one and two and the arguments following or accompanying them should be struck out. I shall determine this appeal by considering the objection to grounds one and two in the Notice of Appeal. If the objections are upheld the issues and grounds are likely to be struck out. From the brief filed by the learned Counsel to the appellant it is clear that issue one relates to ground one and issue two relates to ground two. Issue three relates to ground three of the Notice of Appeal filed on 3rd May, 2012. The grounds of appeal are couched as follows:

GROUND 1:
The findings, judgment, conviction and sentence of the trial Court is against the weight of evidence.

GROUND 2:
The learned trial Judge erred in law and fact when he found the convict/appellant guilty, convicted and sentenced him with hard labour without option of fine, of the offence of attempted murder.

PARTICULARS:
(a) The Investigating police officer, after investigation recommended that the convict/appellant be charged with assault occasioning hard and not with attempted murder.

(b) No medical report from any recognized Government Hospital by law was tendered before the trial court suggesting that the injuries sustained by the complainant was life threatening.

(d) No evidence was led in prove of the offence of attempted murder reliable enough to support conviction of the appellant.

(e) Complainant soon after the encounter was hale and hearty and gave evidence as Pw1.

(f) There were material contradictions in the prosecution’s evidence including admission of the fact that, convict/appellant did not attempt to kill the complainant.

GROUND 3:
The trial court erred in law and facts when it declined or refused to uphold convict/appellant’s plea of self defence when convict/appellant met all the conditions thereto.

PARTICULARS:
(a) There was abundant evidence to the effect that the convict/appellant was free from fault that brought about the encounter.

(b) There was evidence in prove of the fact that complainant dealt deadly matchet cuts on the neck of the appellant which necessitated the convict/appellant to use a stick to repel the attack.

(d) Evidence showed that, but for the convict/appellant repelling the attack, he would have lost his rife during the encounter.”

Section 19(1) of the Court of Appeal Act, 2004 sets out in clear terms how an appellant may couch what is called the “omnibus ground” in a criminal appeal. The section reads as follows:
“19(1) The Court of Appeal on any appeal under this Part of this Act against conviction or against an order of acquittal, discharge or dismissal shall allow the appeal if it thinks that the verdict should be set aside on the ground that if is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court below should be set aside on the ground of a wrong decision on any question of law or that on any ground there was a miscarriage of justice and in any other case, the court of Appeal shall, subject to the provisions of subsection (3) of this section and section 20 of this Act, dismiss the appeal:
Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
The objection on ground one is supported by decided authorities. In Samuel Aladesuru & Ors. vs. The Queen (1955) 3 WLR 515 the West African Court of Appeal struck out a similar ground of appeal, namely, “That judgment is against the weight of evidence” as an inaccurate phrase where the appeal arose from a criminal trial. The decision was upheld by the Committee of the Privy Council. In a criminal trial the onus and standard of proof is on the prosecution and this is beyond reasonable doubt. See R vs. Basil Lawrence (1932) All NLR 6 at 7. That is why the appropriate phraseology is that the judgment is “unwarranted, unreasonable and cannot be supported having regard to the evidence…” see Isiekwe vs. State (1999) 9 NWLR (Pt.617) 43 and Ubene vs. Commissioner of Police (2005) 1 NCC 624. In civil appeals the learned trial judge considers the “weight of evidence” adduced by the parties on an imaginary scale to determine which preponderates more in favour of one of the parties to arrive at a just decision. See Mogaji vs. Odofin (1978) 4 SC 91 at 93; Anyaoke vs. Adi (1986) 3 NWLR (pt.31) 731 at 742 and Atuyeye vs. Ashamu (1987) 1 NWLR (Pt.49) 267 at 275. The appropriate phraseology is that, “The judgment is against the weight of evidence”. Order 6 rule 3 of the Court of Appeal Rules, 2011 which provides that, “Any ground which is vague or general in terms shall not be permitted, say the general ground that the judgment is against the weight of the evidence and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”
Every issue formulated for determination must relate to a competent ground of appeal. See Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76 at 93. I agree that the particulars in ground two do not support the main complaint in that ground in the Notice of Appeal. Neither do the issues support the ground of appeal. Accordingly, grounds one and two and the issues formulated thereto as well as the arguments proffered therein are struck out. The only competent ground in the Notice of Appeal is ground 3 and issue 3 for determination which I shall now consider.
Counsel’s argument on behalf of the appellant is that the prosecution did not prove beyond reasonable doubt the offence for which the appellant was charged, convicted and sentenced to five years imprisonment with hard labour. Learned Counsel referred to the evidence adduced by the prosecution to submit that there was no intention by the appellant to kill Pw1. The prosecution evidence was unreliable and contradictory. The medical doctor was not called to testify as to the nature of the injury Pw1 sustained. Counsel attacked the weight the learned trial Judge attached to the medical report (Exhibit “C”) as not having come from a hospital recognized by the Government or the police. Moreover, Exhibit “C” was not tendered by her maker. It was contended that there was no evidence from the prosecution witnesses to prove that the appellant had the opportunity to escape from the attack having successfully disarmed Pw1 or that there was no danger of his being killed. Counsel referred the Court to the extra-judicial statements of the appellant (Exhibits “D” and “E”) and urged that they should be read together with his evidence at the trial. This will show that the counter-attack was not after the appellant had disarmed Pw1 but it was in the process of doing so. The counter-attack was simultaneous when it became evident that the Pw1 would kill the appellant. The trial Judge should not have relied on the injuries sustained to hold that the counter-attack by Pw1 was not proportionate to the attack by the appellant. Pw1 was wielding a lethal weapon like a matchet and advancing menacingly towards the appellant which put the appellant’s life in danger. The injuries inflicted by Pw1 on the appellant confirmed that fear argued learned Counsel. The learned trial Judge should have upheld the plea of self-defence, according to the learned Counsel’s contention. It was also contended that Exhibit “A” was tendered without objection as the matchet Pw1 used to inflict cuts on the appellant. To hold that it may not have been used by Pw1 was speculative. A trial Judge should make up his mind as to what piece of evidence has been established. Suspicion cannot take the place of proof beyond reasonable doubt. Counsel cited Kor vs. The State (2001) FWLR (Pt.76) 641 and Section 320(1) of the Criminal Code Law (supra) to urge this Court to hold that the prosecution failed to discharge the onus of proof beyond reasonable doubt. The appellant was therefore entitled to a discharge and an acquittal.
The learned Counsel to the respondent replied that the prosecution proved its case beyond reasonable doubt. The ingredients to establish to sustain the charge is to show that the appellant attempted unlawfully to kill Pw1. Pw1 had testified that the appellant, without a lawful order, struck him twice on the head with an iron rod and he fell down, was unconscious for two weeks, and remained in the hospital for three months. Pw2 and 3 confirmed Pw1’s evidence. The appellant also affirmed during cross-examination at page 77 of the record of appeal that “when I hit him he fell down”.
These pieces of evidence remain unchallenged showing that Pw1’s life was unlawfully put on the line by the appellant, bearing in mind the fragile part of the body (head/face) that the appellant struck Pw1, argued learned Counsel to the respondent. Counsel further argued that the medical report tendered and admitted in evidence as Exhibit “C” without objection categorically opines that “This man’s (Pw1) injuries will leave him with severe physical disability requiring care for the rest of his life. He is also psychologically damage (sic) for life.” That the evidence put forward by the prosecution clearly shows that the appellant attempted to kill Pw1. The argument in the appellant’s brief that the medical doctor that issued Exhibit “C” was not called to tender same is not tenable in law as same requirement is not a sine quo non, citing Olabode vs. State (2007) 2 NCC 711 at 729 where this honourable Court, Ibadan Division, held that it is not compulsory for a pathologist to be physically present in Court before his report can be accepted and relied upon.
Counsel contended that none objection to its admissibility in evidence amounts to acquiescence over the state of affairs. The contents of Exhibit “C” represent the health condition of Pw1. The Court should discountenance contrary argument in appellant’s brief. Reference was made to Shurumo vs. State (2011) 6 NCC 84 at 101. It was finally submitted that the respondent adequately discharged the burden of proving the case against the appellant beyond reasonable doubt, citing Shurumo vs. State (2011) 6 NCC 84. On the whole, learned Counsel urged the Court to dismiss the appeal as lacking in merit.
The provisions of Section 320 of the Criminal Code Law Cap C16, Vol.3 Laws of Cross River State of Nigeria, 2004 reads as follows:

“320 Attempt to murder.
Any person who:-
(1) attempts unlawfully to kill another; or
(2) with intent unlawfully to kill another
does any act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony, and is liable to imprisonment for life.”
There was no eye witness when the appellant and PW1 fought on the farm on the 27th day of April, 2009 at Akam Village in Ikom Judicial Division of Cross River State. The only evidence the learned trial Judge had before him was the evidence of Pw1 and the appellant supported by the exhibits put forward by the prosecution. Pw2 and Pw3 could not testify as to what happened on the farmland on that fateful day. Pw2 could only testify as to what he saw, observed or did when Pw1 was brought from the farm after the scuffle. Pw3 who investigated the crime could only give evidence from the time Pw1 and the appellant reported at the police station at Okuni. Pw2 and Pw3 could certainly not determine who was the aggressor on the farm on that day. For Pw2 and Pw3 to give evidence of what occurred on the farmland on 27/04/2009, that will constitute hearsay and inadmissible evidence for the purpose of proving the truth of what happened on the farmland on the day in question. See Section 37 and 38 of the Evidence Act, 2011 and Subramaniam vs. Public Prosecutor (1956) 1 W.L.R. 965 at 969. Section 125 of the Evidence Act, 2011 provides that:
“126 Subject to the provisions of Part III, oral evidence shall, in all cases whatever, be direct if it refers to:-
(a) a fact which could be seen, it must be the evidence of a witness who says he saw that fact.”

The learned trial Judge had before him the evidence of Pw1 and the appellant, and the medical reports to show the nature of the wounds allegedly inflicted by Pw1 on the appellant and vice verse before holding at page 94 lines 1- 28 of the printed record to wit:
“The accused person is charged under section 320(1) of the Criminal Code Laws of Cross River State, 2004. The accused is said to have struck the Pw1 on the head causing him severe injuries that left him unconscious for several weeks. The evidence of pw1, pw2 and even Pw3 shows clearly that the accused caused the injury suffered by the pw1. I agree with the evidence of the prosecution witnesses that it is the act of the accused that cause the injuries that left the pw1 almost dead. I therefore find as a fact the injuries sustained by the accused person. Therefore ordinary the accused person ought to be held criminally liable for the said injuries.
However, there is evidence adduced by Pw3 Victoria Okon, a woman police corporal that in her investigation, Pw3 said in her findings it is Pw1 that first used his matchet on the accused person and that they have been having conflicts over that land. She said it was as a result of the knife cut that provoked the accused to use a stick on the Pw7. Finally that it is Pw1 that first attacked the accused person.
The accused person corroborated the evidence of Pw3 when as Dw1 he stated that Pw1 met him in the farm and tried to force him out. Suddenly he (Pw1) gave him a knife cut on his neck, and it sent him down to the ground. He tried to get back to his feet when Pw1 gave him a second cut. He sense Pw1 was serious so he defended himself with the stick he saw nearby. He disarmed him and used the stick to fight back and took the knife to Area command where he lodged a complaint.
It does appear to me that apart from the defence of self defence, the accused raised the defence of provocation. This defence will not avail the accused person. The accused had disarmed the pw1 and was at the Pw1 was no more armed and no more in a position to inflict further injuries on him.
His reaction by striking the pw1 on the head leading him to state of unconsciousness was not a reasonable reaction in the circumstance, considering the injuries said to have been inflicted on the accused as shown in Exhibit “F”. It does appear to me that the accused received “blunt injuries” and no me. The influence is that the Exhibit “A” was not such a sharp object that court penetrate the neck of the accused or cause grievous bodily harm on him. In the alternative the Pw1 may not have used the sharp side of the knife to inflict injuries. In any case the reaction of the accused was in excess and not proportionate to the injury caused him by the Pw1.
Accordingly, the defences raised by the accused person fail and I so hold.

The correct position of the law if as clearly stated by the learned prosecuting Counsel. The person threatened must believe that there is no way of escaping the examination of the threat against him is then to commits the act in question. In Uwaechwegheije vs. State (supra) the defence must show that he reasonably believed that there was no other way of saving himself from death or grievous bodily harm other than by using such force as he did and that he tried to disengage from the even which led to the application of such force.
In this case the accused had successfully disengaged from the event even if he had the opportunity of esc ape. He preferred to show that he is also a man. That was unnecessary. He ought to have escaped, and this is no evidence of cowardice.
In the circumstances I found that accused person is guilty as charged under Section 320(1) of the Criminal Code Law and convict him accordingly.”
I shall therefore approach the lone question for determination bearing in mind what the Supreme Court said in Customs & Excise Board vs. Barau (1982) 2 NCR 1 at 21:
“In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent… Having made his findings, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to asses the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondent’s testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.”
Again in Balogun vs. Agboola (1974) 1 All NLR (Pt.2) 66 the Supreme Court held alt page 73 that:
“The ascription of probative values to evidence is a matter primarily for the court of trial and it is not the business of a court of Appeal to substitute ifs own views of undisputed facts for the views of the trial court. Interference by a court of Appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the western state court of Appeal took a mistaken view of the law when it embarked, as if did, on a fresh appraisal of the evidence of witnesses to whom the learned trial Judge had himself listened and whom he had seen face to face when they (the court of Appeal) were dealing only with the cold sullen print of the records before them.”
The argument that Exhibit “C” was not tendered by the maker holds no water. The exhibit was tendered as the Form issued by Pw3 to enable the appellant to be treated in a hospital for the injuries he had allegedly sustained in the scuffle between him and Pw1. It was tendered through Pw3 without objection from learned Counsel to the appellant. In Shurumo vs. State (2011) 6 NCC 84 at 101 the Supreme Court held that:
“When a Counsel stands by and allows exhibits to sail smoothly through to become evidence with battling an eyelid, then it becomes obvious that the counsel is comfortable with the evidence and sees no reason why he should challenge its admission… To now ask the court to set aside the statements is tantamount to crying over spilt milk.”

A similar argument was raised by the appellant’s learned counsel in Msughando vs. The State (1990) 2 NCR 23 but rejected by Ademola, JCA at page 31. In R. vs. Sharp (1957) 1 All E.R. 577 Sharp and Johnson were convicted on a count charging them jointly with fighting on a public street and highway which offence constituted affray. The fight took place in the presence of a large crowd. Their faces and clothes were covered with blood. Johnson had a severe cut on the head. A police constable came and separated the fight. Johnson then gave him a razor with which he alleged Sharp had used in cutting him and which he had taken from Sharp. The police constable went after Sharp, stopped him and found part of his left ear had been torn or bitten off, two of his upper teeth had been knocked out and he had a black eye and a cut lip. Both made statements to the police. Johnson admitted he stopped Sharp with whom he had a previous quarrel and said’. “Now what about it, now you are on your own,” and that Sharp then attacked him with the razor and he admitted he had bitten Sharp. Sharp to some extent was disable by poliomyelitis. He admitted that he had the razor but said he used it only in self-defence when Johnson attacked him. Johnson and Sharp were convicted of affray by the Central Criminal Court. Selfdefence by Sharp was rejected by that Court. On appeal to the Court of Criminal Appeal, Lord Goddard, C.J., had this to say on the issue of self-defence raised by Sharp, at page 580 paragraphs “B”-“F”:
“We must now turn to the second ground of appeal. It will be remembered that the appellant Sharp contended that he only acted in self-defence after he had been set on by the other appellant, and, apparently attempted to excuse the use of a razor because he was handicapped by his crippled condition. The appellant Johnson also seems to have endeavoured to justify his conduct in biting off his opponent’s ear by the fact that he was attacked with a razor. Now as the recorder said, and we see no reason why he should not, one object in charging the appellants with an affray which is of necessity a joint offence, is that, in this class of case, each prisoner throws the blame on the other and, directed the jury that it did not matter who started the fight or who was to blame and that in the present case no question of self-defence arose. Indeed, he said more than once and with not attacking that is not a fight and, necessary force, and, again, that may be the case here as a razor was used. It appears to us inescapable that this raised questions for the jury. The appellant Sharp’s case was that he was attacked by the appellant Johnson and that, as a partial cripple, he used the razor to protect himself. The jury might well have rejected this as extravagant, but we do not feel able to say that they must have done so on a proper direction. The facts are such that the court is strongly inclined to apply the proviso, but we think on the whole that were we to do so we should be going further than we ought, and it is obvious that one cannot be convicted and the other acquitted. we reluctantly, therefore, quash the convictions.”
From the findings of the learned trial Judge it is quite clear he preferred the evidence that it was the appellant that attacked Pw1 and that he went beyond self-defence. In the course of self-defence he became an attacker using more force to inflict grievous injury that was unnecessary. I am not, as an appellate Court Judge, in a position to hold that on the evidence adduced by the prosecution and the defence, the learned trial Judge erred to have arrived at that conclusion. That is within the province of the learned trial Judge to determine having heard and seen the appellant and Pw1.
There is the presumption that where the trial was conducted by professionally trained Judges or Magistrates it was conducted within the ambit of the law. It is for the appellant to show that the trial Judge did not advert his mind to elementary principles or points of law regarding proof which will warrant an appeal to be allowed. See Bello vs. Police (1956) 1 FSC 48; Oshianie vs. Okundayo (1980) 2 FCA 51 at 55.
The further argument by learned Counsel on behalf of the appellant is that there was sufficient evidence to sustain provocation and self-defence which would have led to the discharge and acquittal of the appellant by the learned trial Judge. When the defence of provocation is upheld it reduces the sentence to be passed by the learned trial Judge. See Akang vs. The State (1971) 1 All NLR 46 at 49-50. In Obaji vs. The State (1965) NMLR 417 the Supreme Court considered provocation as a defence but held at page 422 that.
“To avail himself of the defence in a charge of murder under section 318 of the criminal Code, the accused must have done the act for which he is charge (i) in the heat of passion, (ii) this must have been caused by sudden provocation, and (iii) the act must have been committed before there is time for his passion to cool. There can be no doubt that the attitude of the Nigerian Courts has been to interprete Sections 283 and 318 of the Criminal Code as impliedly including the mode of resentment or, in other words, that the retaliation must be proportionate to the provocation offered. In this connection, and in consonance with this interpretation by the Nigerian courts the doctrine has developed of “the behaviour of the average man in the community to which the accused belongs.” see R. vs. John Okoro (10) and R. vs. James Adekanmi (11)…”

The criminal Code Law cap c16 (supra) has provisions defining instances when provocation or selfdefence would lead to the acquittal of the accused person and they are as follows:

“283 Provocation:
The term “provocation”, used with reference to an offence of which an assault is an element, includes, except as hereinafter stated, any wrongful act or insult of such a nature as to he likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.
When such an act or insult is done or offered by one person to another, or in the presence of any such relation as aforesaid, the former is said to give the latter provocation for an assault.
A lawful act is not provocation to any person for an assault.
An act which a person does in consequence of excitement given by another person in order to induce him to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.
An arrest which is unlawful is not necessarily provocation for an assault, bit it may be evidence of provocation to a person who knows of the illegality.”

287 Self-defence against the provoked assault:
When a person has unlawfully assaulted another or has an assault from another, and that other assaults him with such violence as to cause reasonable apprehension of death or grievous harm, and to induce him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous harm to use force in selfdefence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous harm.
This protection does not extend to a case which the person using force, which caused death or grievous harm, first began the assault with intent to kill or to do grievous harm to some person; nor grievous harm endeavoured to kill or to do grievous harm to some person before the necessity of so preserving him arose; nor in either case, unless, before such necessity arose, the person suing such force declined further conflict, and quit it or retreated from if as far as was practicable.

293 Defence of possession of real property or vessel with claim of right:
When a person is in peaceable possession of any land, structure, or vessel, with a claim of right, it is lawful for him, and for any person acting by his authority, to use such force as is reasonably necessary in order to defend his possession, even against a person who is entitled by law to the possession of the property, provided that he does not harm to such person.”

Provocation and self-defence are statutory defences offered to an accused which, depending on the circumstances of each case, may reduce the severity of sentence, example from murder to manslaughter or actual discharge and acquittal. There must be evidence before the learned trial Judge suggesting either provocation or self-defence. Like alibi, this must be raised at the earliest opportunity, example, in the extra-judicial statement of the appellant and afterwards supported by his oral testimony in court. See Ukwunnenyi & Anor vs. The State (1989) 3 NSCC 42; 51 and 53 lines 5-6.Pw1 testified on 14th day of April, 2011 as follows:
“On 27/04/2009 I went to my farm with my boy called Etira. There I went to till my farm. While I went to fetch water, I saw the accused person’s motorcycle on the road. On my way back as I branched to cut my plantain, I did not know the accused was hiding there waiting for me. When I saw him the next thing he hit me an iron rod twice on the side of my face and on my right hand. When I fell I became unconscious. I next find myself in the hospital when I became conscious. Before now the accused person was struggling or contesting the bush or farm with me where I had planted plantain and cocoa. I reported to then Chief Osaji Paw Paw. The Chief ordered some persons to go and inspect the land. He did not wait for the people to go and see the place. He decided to kill me. Right now my health is not all right as I cannot go out in the sun and my right hand is not useful to work.
I was in the hospital for 3 months but for the 1st two weeks, I could not talk, could not eat.”
Under cross-examination Pw1 gave evidence as follows:
“Both Okuni and Akam people including the accused the struggling that place with me. I have not taken the accused person to any court. I was not happy to see the accused person in my farm. On that day t was armed with my matchet. I did not attack the accused person that day.
I was taken from the place of incident to the police station that day. I do not know if before I got there the accused person was laying a complaint against me at the police station. I did not provoke the attack and I did not use my matchet on the accused.”

An intent to kill is an essential ingredient or element of the offence of attempted murder and has to be proved beyond reasonable doubt. See Q vs. Nwaugoagwu (1962) 1 All NLR 294.At no time did the learned Counsel to the appellant cross-examine Pw1 to show that he had provoked the attack on the appellant; neither was it shown in evidence that Pw1 was the aggressor. The defending Counsel did not show by way of cross-examination that the appellant acted in self-defence. Be it noted that the appellant did not tender the iron rod he used in disarming Pw1 and inflicting injuries on him. In Sule vs. The State (2009) 4 NCC 456 Ogbuagu, JSC held at page 477 that:
“…self-defence means that the accused person did the act while in the process of defending himself, but with no intention to kill or cause grievous bodily harm.”
It is improper for Counsel not to cross-examine pw1 to discredit his evidence, to establish provocation and self-defence, only for the appellant to do so while testifying in his defence. See Agbonifo vs. Aiwereoba (1988) 2 SCNJ 146; Babalola vs. The State (1989) 7 SCNJ 127 at 139; Nkwa vs. C.O.P. (1977) NNLR 98 at 103 and Okosi vs. The State (1989) 2 SCNJ 183. Exhibit “D” and “E” are the statements made by the appellant to the police. They read as follows:
“…I freely elect to state as follows. I Akim Bassey was working in farm today 27th April, when Nkom Oyongha came and stopped me from work, when I asked why he started fighting me and gave me knife cut on my neck and other part, of my body I tried my best to disarm him and brought the knife he used to the station.
The Youth President took me to the station and reported the matter. I start work on this land two years ago, he is now claiming the land. Sgd. 27/4/2009.
Statement recorded by the – Akim Bassey maker in English language who sign as been correct and I sign as witness. Sgd 27/04/2009.”
“..I Exhibit “E” of 29th April, 2009 the appellant wrote that:
“…I of the above name and address person having been caution in English Language that am not obliged to say anything in answer to the charge unless I wish to do so but whatever I say will be taken down in writing and may be given in evidence. I freely elect to state as follows. Sign 29/04/2009.
I do not have any other statement to make I still maintain my former statement. Sgd, 29/04/2009.
Statement recorded by the maker in English Language who sign as been correct and I counter sign as witness. Sgd. 29/04/2009.”
If Pw1 was the aggressor, started fighting the appellant and gave him a cut with a matchet or knife on his neck using Exhibit “A”, is this supported by the medical report Exhibit “A” issued to the appellant? I do not think so. Exhibit “B” reads as follows:
“THE NIGERIA POLICE FORCE MEDICAL FORM D5
N/D NO.           –     123 of 271412009
Name and address of
injured person     –  Akim Bassey ‘M’ Okuni Village
Nature of offence
and Sec-    Assault OCC. Harm Section 355 of C. C.
F/No./Name of IPO –    027187 W/PC Victoria Okon
Station    –    Area Com. H/qter Okuni
Hospital      –     Holy Family Hospital Ikom Town
Doctor Report: Following a misunderstanding with a colleague, says he was attacked in his farm about 5 hours ago with a matchet. He received several blows to various pads of the body. Complaining of pains on his neck and left upper limb. Nil history of bleeding from any of the natural body inflicts, nil loss of consciousness.
O/C: In painful distress, with multiple cuts on the left neck (posteriors triangle). Blunt injuries.
The above are in keeping with a case of assault.

Doctor’s Name: Odey Kenneth
Doctor’s Sign: Signed.
Doctor’s/Qual: M. B. B.C. H
Date: 27/04/2009.”
Had Pw1 used Exhibit “A” namely, the matchet on the appellant the natural consequences would be that appellant would have sustained injuries and bleeding from those cuts not what Exhibit ‘3B” calls “blunt injuries”. Exhibit “A” is the matchet allegedly used by Pw1 on the appellant and tendered without objection by the respondent’s learned Counsel. Pw1 did not deny having a matchet on the farm on that day. He denied attacking the appellant with the matchet. The kind of injuries Pw1 sustained as a result of the appellant’s attack is material. This is set out in Exhibit “C” the medical report issued to Pw1 by the police to wit:
“…History: This patient was brought to this hospital with depressed level of consciousness. He was allegedly assaulted by someone in Akam Farms on 27/4/2009. He sustained severe Head Injury with loss of consciousness following a blow to his left side of the head, and bleed from the nose and ears.
Examination: Haematoma over the left side of the head. Paralysis of the (Rt) leg and arm. Loss of speech.

Doctor’s Name: Dr. M. Nkwam
Doctor’s Sign: Signed.
Doctor’s/Qual: MD, FRCS, FICS
Date: 30/04/2009.”

Report Cont: Skull XRay showed Star fracture of the left Fronto Parietal Skull bones consistent with (Rt) Hemiplegia (Paralysis of the (Rt) side of the body.

Treatment: Routine Management of an unconscious patient with Head Injury was commenced and continued till the 12/5/2009 when he was transferred to Citizen Clinic Ikom for further treatment.
Physiotherapy was also commenced. He has recovered his speech somewhat but still remains with Rt sided paralysis.
Opinion: This man’s injuries will leave him with severe physical disability requiring care for the rest of his life. He is also psychologically damage for life.
Dr. M. Nkwam, Signed. 8/6/2009.”
Can it be sensibly argued that the injury sustained by Pw1 is proportionate to that inflicted on him by the appellant in self-defence? That question has been determined by the learned trial Judge in favour of the prosecution. The appellant however testified on 2dn day of January, 2012 as follows:
“On 27/04/2009 I was working in my farm when the said Pw1 met me there. He ordered me out of my farm. I ignored him and continued there. I was pulling weeds from my farm. He tried to force me out. I still did not pay any attention to him.
Suddenly he gave me a knife cut on my neck and it set me down to the ground. I tried to get back to my feet. When he gave me a second cut. From his action I saw his seriousness. I tried to defend myself with the stick I saw nearby. In the process I disarmed him. I used a stick to fight back. I took the knife to Area Command where I lodged a complaint. The said knife is Exhibit “A”. I was given a medical form to get treatment in the hospital. The medical form is Exhibit “B”. There is a photograph to show the knife cut – Exhibit “F”. Police investigated the case, Police said it was not at fault. The Pw1 provoked the attack.”
Under cross-examination the appellant testified as follows:
“This incident happened right in my farm. The attack of matchet cut came in front of me. I had a matchet with me that day but it was not where I was working. The matchet was there 50 metres from where I was working. I do not know if Pw1 applied force in effecting the matchet cut but he cut me with it. He gave me a knife cut with force and gave me an injury. Yes the cut was on my nect as shown in Exhibit “F”. I do not know if the second cut was with that same force on the neck. At the give me that second cut. I was conscious when he gave me that second cut. Yes that picture was taken on the same day of the attack. At the time I took Exhibit “F”, I had not gone to the hospital. Of the two cuts in Exhibit “F”, the one on top came first.
Yes I used stick in disarming the Pw1. I cannot tell the size of the stick I used. I cannot really tell at what part I hit him. I really wanted to disarm him. I know I hit him but I do not know where I hit him. When I hit him he felt down. As he fell I collected the knife from him so as not to give him the chance to attack him. I don’t know the state I left him. I went to Area command Police station, Okuni. I first went to the police before snapping the picture.”
There was ample evidence to hold that the prosecution proved the charge beyond reasonable doubt. The learned trial Judge rightly convicted and sentenced the appellant under Section 320(1) of the Criminal Code Laws of Cross River State. I see no merit in this appeal. I uphold the judgment of the lower Court.
The appeal is dismissed.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Tine Tur, JCA. I agree that the Prosecution proved the case against the Appellant beyond reasonable doubt.
The appeal is therefore dismissed. I affirm the conviction and sentence by the trial Judge.

ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft, the judgment just delivered by my learned Brother, Joseph Tine Tur JCA; and, I completely agree with the judgment.
The issues raised for determination have been exhaustively resolved. The evidence proffered before the trial court confirms that the prosecution proved the Charge against the Appellant beyond reasonable doubt. The Appellant was therefore rightly convicted. This appeal is without merit. I also affirm the judgment of the lower court.

Appearances

Emmanuel OkangFor Appellant

AND

E. Amajama (SSC2- Ministry of Justice, Cross River State)For Respondent