GODWIN OKON ITA & ANOR v. THE STATE
(2013)LCN/6236(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of May, 2013
CA/C/14C(A)/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
1. GODWIN OKON ITA
2. ENO JAMES ESSIET Appellant(s)
AND
THE STATE Respondent(s)
RATIO
THE DEFENCE OF SELF-DEFENCE
“For the defence of Self-defence to avail an accused person he or she must show that his life was so much endangered by the act of the deceased that the only option that was open to him to save his life was to kill the deceased”
The accused must show that he or she did not want to fight and that he or she was at all material time prepared to withdraw. Apugo vs. State (2006) 16 NWLR pt 1002 page 227. PER NDUKWE-ANYANWU, J.C.A.
THE DUTY OF THE TRIAL COURT TO EVALUATE OF EVIDENCE OF WITNESSES BEFORE IT
Evaluation of relevant and material evidence before the court and the ascription of probative value to such evidence are the primary functions of the trial court which saw, heard and assessed the witnesses while they testified, where the trial court unquestionably evaluates the evidence and justifiably appraises the fact, it is not the business of the Appellant court to substitute its own views for the views of the trial court. Agbi-Ogboh (2006) 11 NWLR pt 990 page 65, Bashaya vs. State (199s) 5 NWLR pt 550 page 35 1, Ojokolobo vs. Alamu (1993) 9 NWLR pt 565 page 226, Sha vs. Kwan (2000) 5 SC page 178. PER NDUKWE-ANYANWU, J.C.A.
DEFINITION F AN EXTRA-JUDICIAL STATEMENT
First and foremost, an accused person’s extra-judicial statement to the police is a reaction to police inquiries when the facts that led to the commission of the crime were fresh in his mind. It is however not evidence of the truth of the facts stated therein. See C.O.P vs. Oshifalujo (1983) 1 NCR 309 at 316; Kasa vs. The State (1994) 6 SCNJ (Pt.1) at 14-15; Sanusi vs. The State (1984) 10 SC 166 at 198 and Adelumola vs. The State (1988) 1 NWLR (Pt.73) 683 at 693 and Ozaki v. The State (1990) 1 NWLR (Pt.124) 92 at 113. PER TUR, J.C.A.
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State sitting in Ikono delivered on 20th October, 2010 in Suit No. HKN/12C/2009. The appellant was charged with one other on a one count charge of murder of one Felix Okon Ita on 21st August, 2008 contrary to Section 326 (1) of the Criminal Code. The prosecution stated that the Appellant and another on 21st August, 2008 in the company of six others still at large attacked the deceased first at Odoro Ikpe Junction and later at Ndot Ikpe where the deceased died from matchet cuts and wounds inflicted on him with rods and stones. During the trial, the prosecution called 4 P.W.S and tendered 14 exhibits. The Appellants testified on their behalf and called just one witness, a medical practitioner and tendered 16 exhibits. The Appellant pleaded self-defence. At the end of the trial, the learned trial Judge found the 1st Appellant guilty of the offence of murder as charged and accordingly convicted and sentenced him to death.
Being dissatisfied, the 1st Appellant filed his notice and four grounds of appeal on 23rd November, 2010. The 1st Appellant also articulated three issues for determination in his Appellant’s Brief filed on 22nd March, 2012 but deemed properly filed and served on 6th December, 2012 as follows:
(1) Whether the plea of the defence of self defence availed the 1st Accused/Appellant (Ground 1).
(2) Whether the testimonies of PW2 and PW3 were hearsay evidence which is contrary to Section 77 Evidence Act (Now Section 37 Evidence Act) as such inadmissible (Ground 2).
“Whether the court can pick and choose which prosecution Witnesses to believe when none of the prosecution witnesses was branded a hostile witness and when the testimonies of the prosecution witnesses were manifestly contradictory and inconsistent.
(Ground 4)
The Respondent filed his brief on 5th September, 2012 but deemed properly filed and served on 6th December, 2012. In it the Respondent articulated four issues. They are as follows:
(1) Whether the defence of self defence raised by the 1st appellant availed him.
(2) Whether the conviction of 1st Appellant was based on hearsay evidence.
(3) Whether the Learned Trial Judge erred in law when he believed the credible evidence of one witness against the incredible evidence of the other to arrive at his decision.
(4) Whether the learned trial Judge was right in resolving that what led to the cut left wrist of the 1st Appellant was within the knowledge of the 1st Appellant.
I have perused, the issues articulated by both parties and have decided to use those as articulated by the Appellant.
ISSUE I
The learned counsel to the Appellant submitted that the holding of the learned trial Judge that the defence of self defence did not avail the 1st Appellant was perverse. Counsel stated that it is a cardinal principle of law that in criminal matters all defences raised by the accused must be considered See Udofia Vs State (1984) 12 SC page 139. Counsel continued that it was the deceased who was the aggressor that cut off the 1st Appellant’s left wrist. Counsel submitted that PW4, the Investigation Police Officer testified under oath that the 1st Appellant acted in self defence. Counsel referred the court to the testimony of PW4 as follows
QQ: Read the paragraph 12 of the report from your investigation, who cut off the wrist off the 1st Accused person?
ANS: The deceased may have been the person who cut off the 1st accused person’s hand and in retaliation, the 1st accused person collected the matchet from the deceased and gave him severe matchet cuts all over his body which caused the deceased instant death.
QQ: It is true that the 1st accused person collected the same matchet used by the deceased to cut off the 1st accused person’s hand and in self defence, the 1st accused used it in macheting which caused the instant death of the deceased?
ANS: Yes I agree that this was what I found out. It was true that the 1st accused person in self defence, collected the same matchet that the deceased used in cutting off the hand of the 1st accused and he matcheted the deceased to death.
Counsel submitted that the trial Judge believed PW1 and PW 4. DW 3, the 1st Appellant claimed that he killed the deceased in self defence and was corroborated by DW1, the medical practitioner. This killing is, therefore, excusable and justifiable in law since the deceased was the aggressor.
Counsel referred the court to the criminal law book in Nigeria by Okonkwo and Nash, 2nd edition at page 222 says “at common law, homicide committed while acting in reasonable Self Defence of oneself in excusable. If a man is violently attacked by another and reasonable believing him to be in imminent danger of death he kills assailant, this is not an unlawful killing”.
See also Turner Vs. Metro – Goldwyn Meyer Pictures Ltd (1960) 1 All ER 449.
counsel submitted that by virtue of Section 293 (1) and (3), 294 (1) and Section 295 Criminal Code Cap. 38 Vol. 11 Laws of Akwa Ibom State 2000.
When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary, to make effectual defence against the assault.
Counsel argued further that the 1st Appellant did not provoke this assault by the deceased. Also that even the trial Judge on page 187 lines 29 and 30 confirmed the fact that the 1st Appellant was assaulted by a matchet cut. See Apugo Vs. State (2006) 11 All FWLR pt 341 page 1253 per Onnoghen JSC.
A defence of Self-defence, where it avails an accused person justifies or excuses by law, the act of the accused thereby rendering him not liable for the offence charged. It is usually a complete defence to the charge where it is upheld as in the instant case. Also in Lado vs. State (1999) Vol. 70 LRCN page 1705 the Supreme Court held that:
Where there is possibility of presumption one way or the other as to what caused the clash between the accused person and the deceased as in this case the presumption is that the deceased must have been the aggressor.
Counsel draws the court’s attention to page 95 and 98 of Record of Appeal to show where the 1st Appellant was matcheted See also Exhibit 13A – 13D page 226-229 Exhibits 14A-14H page 230-237, receipts from UNIYO Teaching Hospital and Exhibits 15A- 15C on page 238-240 from DEMAC Clinic.
Learned Counsel to the Appellant urged the court to hold that the deceased assaulted the Appellant and in self defence killed the deceased.
Counsel urged the court to resolve this issue in favour of the Appellant.
In response, the learned counsel to the Respondent submitted that the 1st Appellant, in company of the 2nd Appellant and others, attacked the deceased first at Odoro Ikpe Junction with matchets, rods and stick. Finally, they attacked the deceased at Ndot Ikpe junction and killed him.
PW 1 and PW 2 gave eye witness accounts of what really happened.
Counsel referred the court to PW1’s evidence in chief.
“As Felix reached the end of Odoro Ikpe the accused persons and all the others pounced on Felix and beat him again and this time I saw what they did as I reached there and saw everything. They brought out a matchet and cut Felix to pieces talking as they did that Felix was not out father’s son and that they had warned him to go away but he refused that that day would be his last in the family”.
The learned trial Judge believed and relied on the evidence of PW1 in reaching his decision. See Joshua Alonge Vs. IGP (1959) 4 FSC page 203.
Counsel submitted that the evidence of a single witness sufficient to convict an accused. See Sule vs. State (2009) 38 NSCQR page 1069. Also PW1 saw when the deceased was attacked at the two junctions by the Appellant and others. PW 2 separated them at the first junction and the Appellant and others promised that they were going to follow him to the next junction. They did get there and killed him. See Esangbedo vs. State (1998) 1 ACLR page 109.
Counsel submitted that the 1st Appellant did not kill the deceased in self defence. Counsel referred the court to the evidence of PW1.
“when they finished killing the deceased, I did not notice any injury on the 1st accused person his two hands were still intact. He did not sustain any injury indeed. It was the 1st accused person who pinned the deceased down to be butchered. The only person injured was my brother and he eventuality died”.
See Okpogiade vs. C.O.P. (1993) page 585 PW1 also testified as follows:
“I saw my brother lying on the ground with matchet injuries all over his body. His clothes were torn. My brother was not with any weapon. He was only going on his cyclist business”.
See Onofowokan vs. The State (1937) 3 NWLR pt 61 page 538
The two eye-witnesses, PW 1 and PW 2, gave in evidence.
“No the deceased did not carry any weapon” further on lines 30 page 50 said “on the day of the incident, there was nothing wrong with his hand. He had his two hands intact”
See Anthony Igbo vs. The State (1975) 9-11 Supreme Court page 129
Both PW1 and PW 2 gave evidence that there was nothing wrong with the 1st Appellant’s hand and he had no injuries on his body. PW1 and PW 2 corroborated their stories and the trial Judge relied on it to convict the Appellant. See Okosi Vs. State (1993) 1 ACLR page 281.
Counsel submitted that the Appellant claimed the deceased came to his house early in the morning on 21st October, 2008 and he ran to the Police Station to report. However, there is no evidence that this report was ever incidented. Also the Appellant claimed that the deceased ambushed him and cut him on the right hand before chopping off his left wrist. He said he was rushed to the General Hospital Ikot Ekpene.
Counsel submitted that this story has been so exaggerated that the learned trial Judge did not believe it. See Fatinubi vs. Olanloye (2004) 9 MJSC page 161.
Counsel submitted that there was no Police report in respect of the incident of 20th October, 2008 and 21st October, 2008 as alleged by Appellant. He who asserts must prove the existence of a particular fact.
See Section 132 Evidence Act 2011 and Akinyele vs. Afribank Plc (2005) 17 NWLR pt 955 page 564, Osiegbu vs. Okoh (2005) 16 NWLR pt 950 page 58.
Counsel submitted that the Appellant claimed that the deceased cut off his hand. He then over powered the deceased, took away the matchet and cut the deceased. Appellant claimed to have become unconscious after cuffing the deceased. Surprisingly, he went to the deceased house and brought out his property to burn but for the intervention of PW 3, their father.
Counsel submitted that the trial Judge was right when he held that the loss of hand was within the knowledge of the Appellant who could explain it to the conviction of the trial Judge. See Aiguokhan vs. State (2006) 6 MJSC 1-200 page 192. Counsel further argued that the trial Judge is not bound to believe the evidence of an expert witness, see Tuah Vs. Michael (2010) 10 NWLR pt 1203 page 483. The expert witness did not link Exhibit 13-13D to the Appellant’s cut wrist. No evidence was lead to any injuries to the right hand and head as alleged by the Appellant. Counsel submitted that Exhibits 13a-13d were at variance with the evidence of the Appellant and should be discountenanced See Okeke vs. Attorney General ANS (1997) 9 NWLR pt 519 page 123.
Counsel submitted that PW 4, the Investigation Police Officer stated in his testimony, that the Appellant and others on one side fought with the deceased with rods and matchets”.
“the deceased may have been the person who cut the 1st Appellant’s hand and the Appellant collected the matchet from the deceased and killed the deceased”.
The evidence of PW 4 is neither here nor there and highly incredible. Seismograph Ltd vs. Ogbri (1976) 4 SC page 85.
The PW 4 was just speculating as he was not an eye-witness to the crime. See Ekpo Vs. State (2001) All FWLR pt 55 page 414, Oferlete vs. The State (2000) 7 SCNJ page 162, Ukwa vs. State (1977) 4 SC page 167.
Counsel urged the court to hold that the trial Judge made a mistake on page 189 that he believed the evidence of PW 1 and PW 4. There was nothing on the page that alluded to the evidence of PW 4 rather it was the evidence of PW 1 and PW 3. The PW 3 had stated that the Appellant had come to his house to warn him on 20th October, 2008, that he should send the deceased away that he was not their brother. The trial Judge held as follows:
“I do find an unbroken chain of events from the time the 1st accused and his siblings confronted their father, to the next morning when the deceased left the house on his motorcycle for work through to attack at Odoro Ikpe and then Ndot where he met his death and later the corpse was handed over to the Police and medical evidence obtained which showed stabbing wounds as the course of death, to the removal of the properties of the deceased from the father’s house by the same assailants just as it was promised from the on set”
This goes to show that the learned trial Judge was referring to the evidence of PW 1 and PW 3 rather than PW 1 and PW 4. The trial Judge believed the back ground story of PW 1 and PW 3 and relied on it in convicting the Appellant.
Counsel submitted that the Appellant had put up a defence of self-defence.
It is, therefore, an admission that the accused did the act for which he was charged but it was out of self-defence or accident. The Appellant did not call any witness to support his defence.
Counsel finally urged the court to resolve this issue in favour of the Respondent.
The Appellant in this case put up a defence of self-defence.
“Self defence is a defence of oneself or other persons whom one is under a duty to defend against a wrong doer in prevention of a forcible and violent felony. A man is justified in using against an assailant a proportionate amount of force in defence of himself or other persons who he is under a duty to defence where he considers his life or such persons lives to be in danger”
State vs. Agbo (1973) 3 E 5CLR pt 1 page 4, Audu vs. State (2003) 7 NWLR pt 820 page 516.
Was the Appellant in any danger posed by the deceased? The PW 1 and PW 2 in their evidence in court stated under oath, that the Appellant and the co-accused with six other people still at large attacked the deceased at one junction. The PW 2 separated the scuffle. The deceased climbed on his motorcycle and drove off. The PW 2 said the Appellant and others jumped on their motorcycles and pursued the deceased to another junction where, the Appellant and others still at large used matchets, rods and stones in hitting the deceased who died on the spot. They also tore the clothes of the deceased. It was PW 1 that gave him his own trousers. PW 2 in turn gave PW 1 his work clothes he was carrying. One man against the two Appellant, the co-accused and six still at large.
What type of danger did the deceased pose to the Appellant?
“For the defence of Self-defence to avail an accused person he or she must show that his life was so much endangered by the act of the deceased that the only option that was open to him to save his life was to kill the deceased”
The accused must show that he or she did not want to fight and that he or she was at all material time prepared to withdraw. Apugo vs. State (2006) 16 NWLR pt 1002 page 227.
The deceased did not pose a danger to the Appellant in any way.
The Appellant himself said the deceased drove away and ambushed him.
The Appellant never indicated in his evidence that the deceased was carrying a knife when he did drive away. The Appellant also stated in his evidence that the deceased was with PW 1 and their sister when the deceased attacked him. The Appellant has the burden of proving that his life was so much endangered by the act of the deceased. The Appellant just stated in his evidence that the deceased struck him on the head, right hand and finally almost chopped off his wrist. The Appellant did not call any witness to testify that he got injured during the fracas. The Appellant said after the deceased struck him with the matchet, he wrestled the matchet from the deceased with all the injuries sustained.
He replied
“It was God who supplied me with the power”.
The Appellant also said that, the PW 1 and his sister were there when the deceased attacked him. The Appellant could not supply the name of the good Samaritan that took him to Ikot Ekpene General Hospital. “From there, the Appellant was moved to the Teaching Hospital Uyo”.
The Appellant was there and spent from 21st October to 11th December, 2008, a period of almost two months. The Appellant did not report the incident of assault and grievous bodily harm to the police. In fact, in the normal cause of business when the Appellant regained consciousness, he would have told his wife to report the incident to the police. The most plausible thing was that he went into hiding from October, 2008 to April, 2009. The Appellant claimed he was hospitalized. It is unthinkable that with the injuries described, the Appellant did not report to the Police. He failed to make contact with any of his family members. Did he not know of the death of the deceased? There are so many question the Appellant did not answer to make his story more plausible. Is it possible for the Appellant to be in the teaching hospital with a dangling wrist and nothing was done to ameliorate the situation and the wound became gangerinous?
The Appellant knew he, at best, injured the deceased and he himself got injured too. The right thing to do as soon as he regained consciousness was to report the incident to the Police. Instead, he went into hiding.
Getting receipts from the Teaching Hospital Exhibit 14A-14H is not enough. The Appellant would have gotten a report to show the management of his injuries. The PW1, PW2 and PW 3 said they did not see the Appellant’s injury during the fight. They all saw the amputated wrist in court.
The Appellant in his testimonies did not satisfy the trial court that his life was endangered by the act of the deceased. Did the Appellant show that he did not want to fight from his testimony in court. At all material times did he have the mind to withdraw. Was his life really endangered?.
The PW 1 and PW 2 gave a graphic evidence as to how the deceased met his death.
PW 1 was an eye witness to both encounters with the Appellant and the deceased. The PW 1 recalled that the Appellant, his mother, his brothers and sisters attacked the deceased. The men all had matchets whilst the women used stones and rods in the attack.
The Appellant, the 2nd Appellant and six persons still at large attacked the deceased first at Odoro Ikpe junction. At this junction, the Appellant, his mother and the other six still at large attacked the deceased with matchets and stones. Here PW 2 separated the combatants in the fight. The deceased left again on his motorcycle and the Appellant and his partners in crime still pursued the deceased on motorcycles and caught up with him again at Odoro Ikpe. This time, whilst they were attacking him with matchets, rods and stones, they were saying that
“the deceased was not their father’s son and that they had warned him to leave their father’s compound but he had refused”.
They also promised that that day would be his last day in their family.
PW 3, their father, in his evidence said that the Appellant had called on him in the morning of that day that the deceased was not his son. PW3 confirmed that the deceased was his son and he had a right to be in his house.
These pieces of evidence show that the Appellant had a malice before orchestrating the attack that culminated in the death of the deceased. PW2, another eye witness, said that the Appellant, his mother and his other siblings attacked the deceased. He witnessed the attack. He stated that the Appellant threw the deceased down several times. PW 2 stated that they tore the deceased clothes. It was PW1 who gave the deceased his trousers to cover his nakedness. PW 2 in turn gave PW 1 his work clothes to wear since he had given his deceased brother his. These two eyewitnesses PW 1 and PW 2 gave evidence, and their evidence is very plausible and credible and should be believed.
The Appellant cannot be in danger when he attacked the deceased with others still at large. What chance did the deceased have with all these people holding these very dangerous weapons? Was the life of the Appellant endangered when he was infact the aggressor? See Apugo vs. State (supra).
“Self defence is only available to an accused if there is a reasonable apprehension of death or grievous harm and if the person who claims to have exercised that right had reasonable grounds for believing that the only way to protect himself from death or grievous bodily harm was to kill his assailant. see Audu vs. State (2003) 7 NWLR pt 820 page 516.
In the present case, the Appellant has not satisfied the court that he was in a reasonable apprehension of harm from the deceased.
The prosecution proved beyond reasonable doubt that the Appellant was the aggressor who had a malice afore thought. Even after the murder of the deceased, the Appellant, the co-accused and others went into hiding instead of reporting the incident to the police. The police was only able to catch up with the Appellant over six months after the murder.
Raising a defence of self-defence is an admission that the Appellant did infact kill the deceased as charged.
I have painstakingly reviewed, the evidence of all the witnesses, and the exhibits tendered, I have no doubt in my mind, that the Appellant murdered the deceased without provocation. The defence of self-defence does not in any way avail the Appellant. This issue, is therefore, resolved against the Appellant.
ISSUE 2
Counsel submitted that hearsay evidence as in Section 37 of the Evidence Act is inadmissible. Counsel referred the court to the evidence of PW 2 and PW 3 where they stated that “They were not present when the deceased was killed” That the trial Judge preferred the hearsay evidence of PW 2 and PW 3 and used it in convicting the Appellant.
Counsel argued further that evidence elicited during cross examination is relevant and should be acted upon by the court. See Eze vs. Okoloagu (2010) 3 NWLR pt 1180 page 183.
Counsel urged the court to hold that evidence which is absolutely inadmissible by virtue of statutory provisions will be rejected on appeal even if no objection was raised to its admissibility as was held by the Supreme Court in Anyaebosi vs. R. T Briscoe (Nig) Ltd (1937) 6 SCNJ page 9, Garba Audu vs. Salmanu Ahmed (1990) 5 NWLR pt 150 page 287 at 298, Alade vs. Okukade (1976) 7 SC page 183.
Counsel urged the court to hold that the testimonies of PW 2 and PW 3 were hearsay evidence. Counsel finally urged the court to resolve this issue in favour of the Appellant.
The learned Respondent’s counsel submitted that the guilt of an accused can be proved by
a. The confessional statement of the Accused person
b. The circumstantial evidence
c. Evidence of eye-witness of the crime.
Udoebre vs. State (2001) 6 SCNJ 58, holding 6, Chiokwe vs. State (2005) NWLR pt 918 page 424 at 441.
Counsel re-iterated that an eye witness account is one of the best evidence. See Loni vs. State (1930) 841 SC page 81. PW 1 in his evidence stated as follows.
“Felix left on his bike but I noticed that the accused persons and all the others with them picked some motorcycles and pursued after Felix. I looked for a cyclist who also took me to follow them. As Felix reached the end of Odoro Ikpe the accused persons and all others pounced on Felix and beat him again and this time i saw what they did as I reached there and saw everything. They brought out a matchet and cut Felix with pieces talking as they did that Felix was not our father’s son and that they had warned him to go away but he refused that that day will be his last day in the family”.
…”These people beat and cut the deceased person and he died on the spot”…
“After they matchet my brother they went into his house, broke down the door of his house and threw his things outside. May I refer my lord to Exhibit 6 and 7. It was family house that my brother the deceased was living in” PW 1 went on to day all the male persons had matchets while all the females held rods.” See Sule vs. State (2009) 382 NSCQR 1069 and Udoebre vs. State (supra).
Counsel further contended that a single eye-witness, who is credible, may be sufficient to convict an accused of any crime. See Alonge vs. IGP (1959) 4 FSC page 203, Okogiade vs. C.O.P. (1998) 1 SCLR page 585. PW 1 was an eye-witness who saw everything happen.
See Angagwu vs. Onuche (supra). PW 2 is also an eyewitness who stated in his evidence as follows:
“On that day I was returning from crushing the stones. I saw a fight between the 1st Accused and the 2nd Accused on one side and Felix on the other side.
Benjamin was also in the fight in support of the 1st Accused person. The fight was so fierce that someone could have died. I saw the following persons who were also armed they were the elder sister to the 1st Accused person, also the junior sister to the 1st accused person. These ones had stones on their hands. While the held the stones Benjamin and Godwin the 1st accused person and 2nd accused person were fighting with the deceased. The used stick and long knives to inflict the injuries”. He went further still on page 48 of the record to say, “One of the persons that witnessed it was a man who lives opposite the place where the fight took place, his name is Etefia. The second person is that young man sitted there who ran and met the scene (he points at PW 1)”
…”After I had separated them, the deceased left in a machine but the 1st accused and 2nd accused persons mounted a motorcycle and followed the deceased telling me. “They said that since I had separated the fight at that spot and they could not harm the deceased enough, they taunted me that I should come over to Ndot and try to separate them”
See Igbo vs. State (1998) 1 ACLR page 627.
Counsel submitted that the evidence of PW 2 placed the Appellants at the scene of the 1st attack, Okosi vs. State (1993) 1 ACLR page 281.
The PW 2 also saw the Appellant, the co-accused and others pursued the deceased on motorcycles and soon after saw the deceased propped up on a motorcycle. See Ogidi vs. The State (2005) 5 NWLR pt 918 page 286. This is not hearsay evidence.
The learned counsel submitted that all the PWs stated that the deceased did not have a matchet. PW 1 and PW 2 said at the time of the attack, the deceased was not carrying a matchet. PW 3 also stated that at the time the deceased left the house, he had no matchet. This goes to show that the people who saw the deceased before and during the attack did not see him with a matchet was not hearsay evidence. The PW 2 was not at the scene of the 2nd attack but saw the assailants running after the deceased on their motorcycles. Soon after, he saw the deceased propped up on the back of another motorcycle. This is circumstantial evidence that point to no other conclusion except that the assailants were one and the same people who killed the deceased Omotola vs. The State (2009) 372 NSCQR page 963.
Counsel contended also that PW 3 gave evidence of what he witnessed. He said that on 20th October, 2008 the Appellant and his mother came to his house to warn him to send Felix away that he was not his son. They threatened thus:
That since Felix did not want to leave the compound as a living person that he would depart in death”.
This is the threat that the Appellants told PW 3 which is direct and in proof of what the Appellants eventually did. Omoworare vs. Omisore (2010) 3 NWLR pt 1180 page 74. PW 1 also gave evidence of what the Appellants were saying when they were attacking the deceased:
“They were telling my brother to go, saying he was not of our family that he refused to leave when they ordered him to pack out of the family”
All these go to show that the Appellants had had the intention of doing away with the deceased. Ubieho vs. State (2005) 7 MJSC page 168.
The trial Judge relied on the evidence of PW 1, PW 2 and PW 3 in holding that the Appellants willfully and unlawfully killed the deceased and rejected the defence of self-defence by the Appellant. See Igajo vs. State (1999) 12 SCNJ page 140.
Counsel, finally urged the court to hold that PW 2 and PW 3 evidence were such that when put together with that of PW 1 evidence acquired such potent relevance against the Appellants that created a high degree of certainty that indeed it was the 1st Appellant in the company of 2nd Appellant and others still at large that killed the deceased. Ogidi vs. State (supra).
Counsel urged the court to resolve this issue against the Appellant.
The conviction of the Appellant cannot be said to be based on hearsay evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other persons. JSC vs. Omo (1990) 6 NWLR 6 NWLR pt 157 page 407. The PW 1 and PW 2 gave evidence of what they witnessed. PW 1 witnessed the attack on the deceased at both scenes. PW 2 separated the fight, gave PW1 a change of clothes with his work clothes as PW 1 had given the deceased his own to cover his nakedness at the first scene. Even though the PW 2 did not go to the second scene he saw the Appellant, the co-accused with others chasing the deceased. Soon after, he saw the deceased being carried on a motor cycle with somebody propping him up. This is circumstantial evidence that lead to no other conclusion other than the assailants were still the people he separated ie the Appellant and others attacking the deceased. PW 3 gave direct evidence of the threat to the deceased by the Appellants to him in his own house the morning before the incident.
I dare say that apart from tendering the statement of the accused and giving evidence of how he handled his investigation, every other evidence of the Investigating Police Officer is, his own opinion and what he was told. The trial Judge was right in not accepting his opinion as to what the Appellant and the deceased did or did not do.
I believe, the trial Judge evaluated properly the evidence elicited during the trial of this case. I cannot fault his judgment. This issue is, therefore, resolved against the Appellant.
ISSUE 3
Learned counsel to the Appellant submitted that the learned trial Judge did not resolve the vital issue of how the Appellant’s left wrist was cut. It was only the Appellant who said how his left wrist was cut off. Counsel re-iterated that it was only PW 4 that corroborated the story of the Appellant.
Counsel urged this court to resolve this issue as the trial Judge had failed to do so.
Learned counsel to the Respondent submitted that the learned trial Judge considered the issues that led to the cut left wrist of the Appellant.
Learned counsel referred the court to the holding of the learned trial Judge as follows:
“In the case I found no element of self-defence in support of the 1st accused person I also found no element of accident. The loss of the hand is within the knowledge of the accused person and having disbelieved that part of evidence, the onus is on him to say how he lost the hand”. The Learned trial Judge relied on the case of Sule vs. State (2009) 7 LRCNCC. Counsel argued that he who asserts must prove. The Appellant had the onus of proving that the deceased cut his left wrist See Nwawu Vs. Okoye (2009) 37 NSCQR page 230. The Appellant could not produce any witness to help him prove that the deceased cut his left wrist. See Osadim vs. Tawo (supra). The trial Judge found this very incredible and held “It did not happen” See Fatinubi vs. Olanloye (supra).
Counsel contended that the learned trial Judge can only evaluate evidence properly admitted by the court. The Appellant did not lead any credible evidence as to how his left wrist was cut. The court is not allowed to speculate. See Onyegbu vs. State (1998) 1 ACLR page 3860 Coker vs. Adetanyo (1992) 6 NWLR pt 249 page 612, State Vs. Ibong Udo Okollo & Anor (1964) 1 ALL NLR page 423, Queen vs. Gabriel Adaoju Wilcox (1961) 1 ALL NLR page 631, Iteshi Onwe vs. The State (1975) 9-11 SC 23 page 31.
Counsel urged the court to resolve this issue in favour of the Respondent.
The court needs to be circumspect in relying on and ascribing probative value to the evidence of prosecution witnesses. The trial Judge in this case, painstakingly went through the gamut of evidence placed before him. Evaluation of relevant and material evidence before the court and the ascription of probative value to such evidence are the primary functions of the trial court which saw, heard and assessed the witnesses while they testified, where the trial court unquestionably evaluates the evidence and justifiably appraises the fact, it is not the business of the Appellant court to substitute its own views for the views of the trial court. Agbi-Ogboh (2006) 11 NWLR pt 990 page 65, Bashaya vs. State (199s) 5 NWLR pt 550 page 35 1, Ojokolobo vs. Alamu (1993) 9 NWLR pt 565 page 226, Sha vs. Kwan (2000) 5 SC page 178.
The learned trial Judge had appraised and evaluated the evidence elicited during trial. I don’t see any reason to upturn it. The Appellant who claimed the deceased cut off his left wrist neither called any witness to help him prove this assertion. The evidence of PW 1, PW 2 and PW 3 were authentic and credible and as such the learned trial Judge relied on it in convicting the Appellant. I see no reason to upturn this judgment.
This issue is, therefore, resolved against the Appellant.
All the three issues articulated by the Appellant have all been resolved against him. This appeal is unmeritorious and, therefore, dismissed. I affirm the judgment of the trial court in convicting the Appellant for murder and sentencing him to death as charged.
JOSEPH TINE TUR, J.C.A.: I have read an advance copy of the judgment of my Lord Uzo I. Ndukwe-Anyanwu, JCA and I concur that there is no substance in this appeal.
First and foremost, an accused person’s extra-judicial statement to the police is a reaction to police inquiries when the facts that led to the commission of the crime were fresh in his mind. It is however not evidence of the truth of the facts stated therein. See C.O.P vs. Oshifalujo (1983) 1 NCR 309 at 316; Kasa vs. The State (1994) 6 SCNJ (Pt.1) at 14-15; Sanusi vs. The State (1984) 10 SC 166 at 198 and Adelumola vs. The State (1988) 1 NWLR (Pt.73) 683 at 693 and Ozaki v. The State (1990) 1 NWLR (Pt.124) 92 at 113. The foundation for raising self-defence should be in the extra-judicial statement of the accused person. Godwin Okon Ita made his extra-judicial statement to the police on 7th April, 2009. The statement reads as follows:
“…I, the above person and address having been duly caution in English Language that I am not obliged to say anything to this charge unless I wish to do so, whatsoever I shall say will be given taken down in writing and may be given in evidence. Sgd. 07/04/2009.
I am the first son to the complainant in the case and my mother was also the first wife to the man, and we are four in number, two girls and two boys, but my mother was sent away since 1980, and she lives with me at Odoro Ikpe Village in Ini Local Government Area.
On 20/10/2008, the deceased, his mother, one Augustine and Aniefon Okon all came to my house and look for me all armed with matchets and other weapons but I was not at home, it was mother who informs me, she ran and left the house. When I came back from Uyo on Board Chairman swearing in. After my mother had inform me how the above named people came to the house with weapons, I went to the Police Headquarters and made a report against them. The next day being 21/10/2009, the deceased came from his house at Ndot Ikpe where he lives on his motorcycle and lock my door every early in the morning of 21/10/2008, Odoro Ikpe he start causing problem with me that I use my hand set and to hrs sister photograph and that he came to collect, the photo from me, while causing this problem people came to watch, I use the chance and ran to the Police station and invited some policemen to come and arrest the deceased since I had made report to them on 20/10/2008, he dragged with the policemen who came to arrest him, the deceased ran with his motorcycle back to the village. Immediately he ran away, I took motorcycle to that village to report his conduct to the father also the village to be invited for peace sake, but on my way to the village I met deceased on top of his motorcycle with pool over and his brothers Augustine Okon and Aniefon Okon all male, immediately deceased sighted at me he turn his motorcycle and hide opposite the Primary School bush, as I was about to pass he came out from the bush with matchet, cut my head, my right hand and later cut off my left hand side, on that I struggled and collect his matchet and cut him too, but I did not know the place I cut the deceased because I was unconscious, I was rush to the hospital at Ekpene General Hospital where I was later referred to teaching hospital, Uyo, but I was finally treated at Demark Clinic Ikot Ekpene. I did not go with anybody, I was riding alone on my motorcycle, I did not go with any of my brother or sisters, was there, so I don’t know why the complainant want to involved others, I have no problem with him before we are from the same father. That is all. (Sgd.) Godwin Okon Ita, 7/4/2009.”
If the deceased used a matchet to cut the appellant’s head, his right hand and later left hand side as he claimed there ought to be such evidence even if the wounds had healed. The evidence from the prosecution is that in the course of beating and inflicting matchet cuts on the deceased PW1 and came to the scene. The deceased picked his motorcycle and left. Nevertheless the appellant and his brothers and sisters pursued him to the end of Odoro Ikpe Village where the assault and battery continued in his presence. PW1 testified as follows:
“Felix left on his bike but I noticed that the accused persons and all the others with them picked some motorcycles and pursued after Felix. I looked for a cyclist who also took me to follow them. As Felix reached the end of Odoro Ikpe the accused persons and all the others pounced on Felix and beat him again and this time I saw what they did as I reached there and saw everything. They brought out a matchet and cut Felix to pieces, taking as they did that Felix was not out father’s son and that they had warned him to go away but he refused, that, that day would be his last in the family. The place the accused persons and others killed Felix is called Ndot Ikpe. It is a place directly opposite the Presbyterian Primary School. These people beat and cut the deceased person and he died at the spot. When the deceased left the first spot of the attack and was riding away he did not branch any place as he went. At the place that the accused persons attacked the deceased the deceased was not carrying anything. When I saw the accused persons the accused persons, the accused persons and others had rods and matchet in their hands. I remember that they inflicted matchet injuries all over his body. As they were beating him and cutting him, I could not interfere because they had matchet and knives. They were eight of them. I could only shout and raise alarm. That was what I did. They were still tainting (sic) my brother saying he was not our family that he refused to leave when they ordered him to pack out of the family… I know that this was not the first time they were saying this. They had always told my brother that, he was not a child of their father; that they wanted him to leave the compound and go and look for his own father. Between myself and my late brother he was the older. My deceased brother was by name Felix Okon Ita. His father was also my father. After they matchet my brother, they went to his house, broke down the door of his house and threw his things from the outside.
They first left the scene and went to the house.
It was a family house that my brother the deceased was living in when they finished killing the deceased I did not notice any injury on the 1st accused. His two hands are still intact.
He did not sustain any injury indeed. It was the 1st accused person who pinned the deceased down to be butchered. The only person injured was my brother and he eventually died…”
PW2 also described what happened as follows:
“QQ: Do you know why you are in Court?
ANS: Yes I know. It is because of what I witnessed on 21st October, 2008 at about 7:00am. On that day, I was returning from crushing the stones. I saw a fight between the 1st accused person and the 2nd accused person on one side and Felix on the other.
Benjamin was also in the fight in support of 1st accused person. The fight was so fierce that someone could have died. I saw the following persons who were also around there were the Elder sister to the 1st accused person; also the junior sister to the 1st accused person. These ones had stones in their hands. While they held the stones, Benjamin and Godwin the 1st accused person and the 2nd accused person were fighting with the deceased.
QQ: How did they carry out this fight?
ANS: They carried the deceased up and landed him on the ground. They inflicted injuries. They used sticks and long knife to inflict the injuries. I then separated fight.
QQ; When they were fighting, can you tell the Court the other persons that witness the fight?
ANS: They were many many people watching because of the fierceness of the fight. One of the persons that witnessed it was a man who lives opposite the place where the fight took place. His name is Etefia. The second person is that young man sitted there who ran and met the scene. (He points at the PW1). His name is Augustine. I had separated or intervened in the fight before the arrival of PW1.”
Also at page 49 lines 13-28 of the printed record PW2 gave evidence as follows:
“ANS: After I had separated them, the deceased left in a machine but the 1st accused and the 2nd accused persons mounted a motorcycle and followed the deceased telling me that since I had interrupted the fight there, they would meet the deceased would separate any eventful fight there. They said since I had separated the fight at that spot and they could not harm the deceased enough, they taunted me that I should come over to Ndot and try to separate them. I suspected that they were seriously intent in harming the deceased or killing him.
QQ; You saw the accused persons with the knives fighting?
ANS: They all had knives and sticks and stones. They tore his clothes, caused him bodily injury.
QQ: Was the deceased using any thing to fight back?
ANS: No, the deceased did not carry any weapon.”
PW1 and PW2 were not shaken under cross-examination by the defence Counsel.
PW3 is the father of the appellant and the deceased. He is the Pastor and a prophet of the Church of God Healing.
Nevertheless PW3 gave evidence in favour of the prosecution. That the 2nd accused was his divorced first wife while the appellant was his first son. PW4 was the IPO who investigated the crime. DW1, a Medical practitioner, described the state the appellant came to his clinic on 12th December, 2008 thus:
“I am a general practitioner. I know the 1st accused person. The 1st accused person came to my clinic on 12th December, 2009.
He had a sceptic wound; the left hand was hanging. I mean the left palm was hanging with a sceptic wound. After examination he was advised by me that the best option was to do amputation of that palm so that the infection would not spread. I did amputation of that palm. The patient told me he had a matchet cut from some body…”
See page 84 lines 6- 12 of the record.
This is in conflict with the evidence of PW1, PW2 and PW3, that the appellant had no injury resulting from the beating of the deceased to death. The appellant described how the fight ensued as follows:
“As I was going on the road just about to descend the hill I sited Felix carrying Augustine and Aniefon on their Bike and they were coming from the direction of Ndot. When they spotted me and realizing that I was heading towards Ndot Felix turned and went back towards Ndot. They were going in front and was following behind. That road is not very motorable but they soon rode fast and disappeared. I did not know what direction they had now entered. When I reached a hill place close to the Jehovah witness Premises I was climbing the hill. Usually while at the foot of that steep hill one cannot easily sight another person on the other side. I as was descending the hill about to having a landing at the foot of the hill close to Jehovah witness Premises I saw Felix emerging from the bush. I was not carrying any person. I was all alone on the bike. Felix positioned himself strategically to ensure that there would be no escape route for me.
The hill to my back and a big gallop in front which must compel any rider to slow down. He suddenly emerged menacingly from the bush tying the piece of red cloth over his forehead and on the two arms.
He looked like a warrior and was a frightful sight.
The PW1 and Aniefon also emerged from their hiding with sticks. With that unexpected assailing by Felix, I was afraid and I jumped of my motorcycle.
Felix was already by me. He aimed his matchet at my neck and attempted to cut my head off unfortunately as I dodged the matchet blow fell on my head. It cut my head open and I had to be stitched severally at the Teaching Hospital – Uyo. I was dazed and I tried to escape but there was no way; I summed up some strength as he threw another matchet blow which landed on my right hand. I knew at that point that Felix was determined to kill me. So I took some more courage and as he threw the next matchet blow I dodged and used my hand as a shield. The matchet landed right on my left wrist and cut it leaving my palm barely hanging, somehow I managed to collect the matchet from Felix.
I cannot really say how but I remember that I managed to snatched the matchet from him and gave him a cut with it. I know that I was in immediate danger of death and so when I cut him with the matchet I did not mean to kill him. I was only trying both to save myself and get rid of Felix by discouraging him from further attack. However PW1 and Aniefon joined to beat me with sticks, that is the extent to which I can recall what happened because thereafter I couldn’t remember the next things that happened.
I may have passed out and only saw myself in General Hospital, Ikot Ekpene. I was later taken to Teaching Hospital, Calabar.”
The prosecution’s evidence is that there were two attacks. The first attack did not lead to the death of the deceased. He rode his motorcycle to the end of Odoro Ikpe village. The evidence that the deceased died at the spot during this second attack was not disparaged by the appellant. Where then is the evidence of self-defence if according to the appellant he had dispossessed the deceased of the matchet but went on to inflict such terrible savagery wounds on the deceased as described by PW1 and PW2? Section 293(1)-(3) of the Criminal Code Cap.38 Laws of Akwa Ibom State, 2000 reads as follows:
“(1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault.
(2) Provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm.
(3) If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using 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 harm.”
The force used by the appellant must be that which is reasonably necessary to make effectual defence against an unlawful assault without provocation. See Stephen vs. The State (1986) 5 NWLR (Pt.46) 978 at 988; Jejah vs. The State (1972) 7 NSCC 142; John Mboko vs. The State (1972) 2 SC 123 and Boms vs. The State (1971) l All WLR 334. In Kim vs. The State (1992) 4 NWLR (Pt.223) 17 at 49 paragraphs “C”-“F” the Supreme Court took into consideration the following factors before rejecting the killing of the deceased on grounds of self defence:
“But this is not the end of the problem. For there was a good deal of uncontradicted evidence on record that destroyed the defence of self-defence. According to the evidence of PW4 Dr. Garuba Samuel Dandaaura, the medical doctor who performed the autopsy, he observed cuts on both eyes and a stab wound on the stomach. PW1 added that both the tongue and the penis were completely cut off.
The head was completely smashed. It cannot be doubted that the nature of the wound or other injury can be good evidence of the manner of killing. In this case, the widespread nature, intensity and extent of the wound are evidence not only of the brutality of the killing but also a positive confirmation of the existing animosity between the appellant and the deceased brought about by their old rivalry over the woman called Jumai whom each of them wanted to marry, according to his confessional statement. All these wounds were found on the body of the deceased when the appellant did not sustain even a scratch which he could show the Court. But, under Section 62 of the Penal Code, for the defence of self-defence to succeed to justify the killing of a human-being, it must be shown that the life or body or property of the accused was in imminent danger from an attack by the deceased and that the accused used no more force than was necessary to repel the attack; and that the force used was proportionate to the attack, and was reasonable and justifiable in the circumstances. The defence, therefore, completely failed on the medical and other evidence before the Court.”
Moreover, the injury described in Exhibit “9” the extrajudicial statement of the appellant are materially at variance with the evidence of the medical Doctor (DW1) and the appellant’s oral testimony in Court. The crime for which the appellant was arraigned in Court took place on 21st day of October, 2008 while DW1 examined the appellant on 12th day of December, 2008 almost two months thereafter. The learned trial Judge had the singular opportunity of listening to the prosecution and defence witnesses and observing their demeanors. His Lordship was in a better position to assess their credibility. Motive for the killing of Felix Okon Ita is established on the record, namely, that he is not the son of PW3 and should leave the family compound. Failure to do so meant he had to be killed by the appellant and his brothers and sisters. The presence of motive has strengthened the prosecution’s case that the deceased was killed in cold blood on the grounds he is not a son of Pw3. See Adetola vs. Rex (1960) WRNLR 5 at 7. In Ishola vs. The State (1988) 2 NSCC 499 Supreme Court held at page 511 lines 3-37 as follows:
“We would like, also, to add that although proof of motive on the part of a an accused on a charge of murder is not a sine qua non to his conviction for the offence yet if evidence of motive is available it is not only a relevant fact but also admissible under section 9 of the Evidence Act (also section 9 Cap.30 Laws of Lagos State Vol.2 1973 Edition). Surely, the general rule in criminal as well as in civil cases that the evidence must be confined to the point in issue cannot be applied where the facts which constitute distinct offences are at the same time part of the transaction which is the subject of the charge. Evidence is necessarily admissible as to acts which are so closely and inextricably mixed up with the history of the criminal and itself as to form part of one chain of relevant circumstances, and so could not be excluded in the presentment of the case without the evidence being thereby rendered unintelligible.
Thus, in cases of murder, evidence is admissible to show prior assaults by the accused upon the murdered person or menaces uttered to him by the accused, or to show conversely the irritation behaviour by the deceased to the accused.
Again, the relations of the murdered man to his assault, so far as they may reasonably be treated as explanatory of the conduct of the person charged with the crime, can be admitted to prove as integral parts of the history of the alleged crime for which the accused is on his trial. (See R v. Bond (1906) 2 K.B. 389 as per Kennedy J., at pp.400 and 401).
While still on this point, we think the following observation of Lord Atkinson in R. vs. Ball (1911) A.C. 47 (H.L.) at page 68, with which we agree, is particularly relevant:
“surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to show he entertained feelings of enmity towards the deceased and that is evidence not merely of the malicious mind with which he killed the deceased but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased’s life.
Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his ‘malice aforethought’ inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.”
The attack on the deceased was brutal. I would have been surprised if the learned trial Judge had upheld self defence as a defence in the circumstances of this case. The motives for killing the deceased so brazenly negatived self-defence.
On the whole this appeal lacks merit and is dismissed.
The judgment of the lower is affirmed.
ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading in advance the Judgment just delivered by my learned Broter, Ndukwe-Anyanwu JCA. I am in complete agreement with the conclusion that this appeal lacks merit. All issues raised herein being resolved against the Appellant, I also dismiss the appeal.
I abide with the Order affirming the judgment of the trial Court in convicting the Appellant for murder and sentencing him to death.
Appearances
M. Umoh Esq.For Appellant
AND
F.J. Ibanga AD Ministry of JusticeFor Respondent
