AGBORO EGAR v. THE STATE (2014)

AGBORO EGAR v. THE STATE

(2014)LCN/7059(CA)

In The Court of Appeal of Nigeria

On Monday, the 31st day of March, 2014

CA/C/203C/2013

RATIO

INGREDIENTS TO BE PROVEN TO ESTABLISH SELF DEFENCE

The ingredients of self defence in cases where the death occurs have been held to be as follows:
(a) The accused must be free from fault in bringing about the encounter
(b) There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity.
(c) There must be no safe or reasonable mode of escape by retreat, and
(d) There must have been a necessity for taking life.
And, in order to sustain the defence all the above ingredients must coexist and be established. See: Baridam v. The State (1994) 1 N.W.L.R. (Pt. 320) 250; Rtd. Captain Jairo Muser Liya v. The state (1998) 2 NWLR (PT 538) 397; Kwaghsir v. State (1995) 3 NWLR (pt 386) 651; Nwambe v. State (1995) 3 NWLR (pt 384) 385; Omoregie vs. State (2008) 12 S. C. (PT. III) 80. PER ONYEKACHI A. OTISI, J.C.A.

BURDEN OF PROOF IN A MURDER CASE: PROOF BEYOND REASONABLE DOUBT

It is well settled that for the prosecution to succeed in proof of a criminal offence, there must be proof beyond reasonable doubt. The proper interpretation given to the well-worn phrase ‘proof beyond reasonable doubt’ in criminal trials has also been very articulated in a number of judicial authorities. ‘Proof beyond reasonable doubt’ does not mean proof beyond a shadow of doubt. It simply means that there is credible evidence upon which the court can safely convict, even if it is upon the evidence of a single witness.
In Afolalu v State (2010) 6-7 MJSC 187, the Supreme Court, per Mohammed JSC said:
“The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138(1) of the Evidence Act.
Therefore if on the entire evidence adduced before a trial Court, that Court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld even if it is on credible evidence of a single witness as happened in the case at hand.
On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person the benefit of the doubt resulting in his discharge and acquittal.
See Alonge v. Inspector-General of Police (1959) SCNLR.
576; Fatoyimbo v. Attorney-General of Western Nigeria (1966) W.N.L.R. 4 and The State v. Danjuma (1997) 5 NWLR (Pt. 506) 512.”
See also the provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 (formerly Section 138 of the Evidence Act, Laws of the Federation of Nigeria, 1990),which states that:
(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provision of Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.
Therefore, where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt. See: Osetola vs. State (2012) LPELR-9348(Sc); Alabi vs. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi vs. State (2013) 2-3 MJSC (PT 1)59.

It is the well settled legal position that in a murder case, the prosecution must prove beyond reasonable doubt the following ingredients:-
(a) That the deceased died.
(b) That the death of the deceased resulted from the act of the Appellant.
(c) That the act of the Appellant was intentional with the knowledge that death or bodily harm was its probable consequence.
See: Abogede v. State (1996) 5 NWLR (Pt. 448) 270; Ogba v. State (1992) 2 NWLR (Pt.222) 164 at 198; Igabele v State (supra) also reported in (2006) 5 MJSC 96.

The Supreme Court in Edoho v State (2010) 4 MJSC (PT. 1) 1, per Adekeye, JSC, said:
“In effect in order to secure a conviction for murder the prosecution must prove beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused. It is incumbent on the prosecution to establish not only that the act of the accused person caused the death of the deceased but that in actual fact the deceased died as a result of the act of the accused person to the exclusion of all other possibilities. Thus, where a person is attacked with a lethal weapon and he died on the spot or shortly, afterwards, it is reasonable to infer that the injury inflicted on him caused the death. Audu v. State (2003) 7 NWLR (Pt.820) pg.516; R. v. Nwokocha (1949) 12 WACA pg.453; R. v. Owe (1961) 2 SCNLR pg.354; State v. Omoni (1969) 2 All NLR pg.337; Bakurie v. State (1965) NMLR pg.163; Ugwu v. The State (2002) 9 NWLR (pt.771) pg.90; Ubani v. State (2003) 18 NWLR (pt.851) pg.224; Stande v. State (2005) 1 NWLR (Pt.907) pg.218; Iyabele v. The State (2006) NWLR (Pt.975) pg.100; Adawa v. State (2006) 9 NWLR (Pt.984) pg. 155.” PER ONYEKACHI A. OTISI, J.C.A.

Before Their Lordships

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISIJustice of The Court of Appeal of Nigeria

Between

AGBORO EGARAppellant(s)

AND

THE STATERespondent(s)

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment and sentence of the Cross River State High Court of Justice, Ikom Judicial Division delivered on 22nd March, 2013 in Charge No HM/26C/2011 in which the Appellant was convicted and sentenced to death by hanging.

The Appellant and the Deceased, one Nelson Aje, had a dispute over land situate at Enyenghe Forest, Balep, in Ikom Local Government Area of Cross River State. The contentions were as to the boundary marks of their lands and as to which portion of the land was owned by each of them. In the course of these contentions, the Appellant alleged that the deceased chased him and his son with a machete which compelled the Appellant to defend himself by shooting the deceased with a gun.

The Appellant was charged with murder, punishable under Section 319(1) of the Criminal Code Law Cap C.16 Vol. 3 Laws of Cross River State, 2004. At the trial, the prosecution called 2 witnesses, and tendered 2 exhibits. The Appellant testified in his own defence and tendered no exhibit. At the conclusion of trial, the Appellant was convicted and sentenced to death by hanging. The Appellant, aggrieved by his conviction and sentence, filed this appeal.

The Appellant’s Notice and Grounds of Appeal was filed on 26/3/2013 on three grounds of appeal. The Appellant’s Brief of Argument was settled by Emmanuel Okang, Esq. on 19/9/2013. The Respondent’s Brief was settled by F.I. Ititim, Esq., Acting Director, Ministry of Justice, Cross River State, on 29/10/2013. On 24/3/2014, the Appellant’s Brief was adopted by Miss J.O. Otto, of Counsel, holding the brief of Emmanuel Okang, Esq.; while P.S. Bisong, Esq., Director, Public Prosecution, Ministry of Justice, Cross River State, adopted the Respondent’s Brief.

From the three Grounds of Appeal, the Appellant distilled three Issues for determination as follows:
1. Whether the verdict or judgment of the Trial Court, delivered on the 22nd day of March, 2013 is unreasonable and cannot be supported having regards to the evidence.
2. Whether the Prosecution proved all the essential ingredients of murder against the Convict/Appellant.
3. Whether the defence of provocation and self defence were not established by the Convict/Appellant.

The Respondent adopted the issues raised for determination by the Appellant. I shall consider Issues No 1 and No 2 together, and then Issue No 3.

ISSUE NO. 1 AND ISSUE NO.2.
It is submitted for the Appellant that where there is a complaint of judgment being unreasonable, in law, it means that:-
a. The decision runs counter to evidence.
b. The trial court took into account matters which it ought not to have taken into account or it shut its eyes to the obvious.
c. It ignored the facts or evidence before it; relying on Moses vs. State (2006) 11 NWLR (PT. 992) 471; Adenugha v. Okelola (2003) FWLR (PT. 398) 292.

Specifically, it is submitted that the Investigating Police Officer (IPO) under his investigation report said he could not visit the scene of crime but that he made findings as if he visited the scene of crime. The IPO was a material witness but he did not testify. The alleged gun used on the deceased was not brought before the trial court. That it is the duty of the prosecution to bring all relevant evidence and witnesses before the trial court. That where this is lacking, it will create doubts and contradictions; and that the trial court was wrong to have relied on these findings; relying on The State vs. Ajie (2000) FWLR (PT 16) 2836.

It is further submitted that the medical doctor who testified was neither a government medical officer nor shown to be a qualified pathologist who was competent enough to make Exhibit ‘1’, the post mortem report. He was also not called by the prosecution to answer questions based on Exhibit ‘1’; yet the trial court relied on Exhibit ‘1’ to convict the Appellant. It is submitted that this occasioned a miscarriage of justice.

It is submitted that PW2 under cross examination confirmed and agreed with the statement of the Appellant to the effect that the killing of the deceased was not intentional; yet the trial court overlooked this piece of evidence; which also occasioned a miscarriage of justice. It is submitted that the verdict of the trial court was unreasonable and not supported by the evidence before the trial court. The Court is urged to ignore Exhibit ‘1’; resolve the doubt created by the absence of the IPO and the medical Practitioner to testify, as well as the non-tendering of the alleged gun used on the deceased in favour of the Appellant.

On Issue No 2, it is submitted that the essential ingredients of murder were not proved; relying on Ebong vs. State (2012) ALL FWLR (PT 633) 1948-1949; John vs. State (2013) ALL FWLR (Pt.666) 507. Learned Counsel referred to the evidence proffered by the prosecution and submitted that there were material contradictions which the Court ought to have resolved in favour of the Appellant; relying on Garba vs. State (1999) 11 NWLR (PT 627) 425; State vs. Emedo (2001) 12 NWLR (PT 726) 133.

For the Respondent, it is submitted that the trial court properly evaluated and reviewed the evidence before giving its judgment. That the judgment is not unreasonable as has been contended by the Appellant. But, that the said judgment was properly handed down based on the unassailable evidence of the prosecution witnesses. It is submitted that the prosecution is not bound to call all witnesses listed in the information sheet, before the Court can convict an accused person; relying on Akpa vs. State (2008) F.W.L.R. (Pt. 420) 644. Learned Counsel referred to the evidence of PW1 and PW2 and submitted that there was no need for the prosecution to call more witnesses having already proved its case with evidence of PW1 and PW2.

It is submitted that the testimony of PW1 was an eye witness account of the shooting, as well as the evidence of the Appellant himself. The fact that the gun was not tendered was not fatal to the prosecution’s case as evidence of the gun abounds in the entire evidence before the lower Court; relying on Ajayi vs. State (2011) ALL FWLR (Pt. 598). It is further submitted that at the trial court, the Appellant withdrew his objection to the tendering of Exhibit ‘1’, the post mortem report, on his own; and he did not request for the medical practitioner to be presented for cross examination on the said post mortem report. The case of Emmanuel Audu vs. The State (2003) ALL F.W.L.R. (Pt.153) 325 at 333 is relied on to submit that the Appellant did not therefore suffer any miscarriage of justice. It is further submitted that where the cause of death is very clear as in the present case, the attendance of the medical officer is not required; relying on Akpa vs. State (supra).

Learned Counsel for the Respondent finally submitted that the Respondent had proved all the essential ingredients of the offence of murder against the Appellant, relying on Teowonor vs. State (2003) ALL F.W.L.R (Pt 424) 1484 at 1486; Durwode vs. State (2000) 15 N.W.L.R. (Pt. 691) 461; Akpan vs. State (2000) 12 N.W.L.R (Pt. 682) P. 607; Igabale vs. State (2006) 2 N.W.L.R (Pt. 222) 164.

The fact that the deceased died on 1/6/2011 is not in issue. PW1 reported his death to the police. PW2 said in evidence that he met the deceased lying in a pool of blood; and conveyed his corpse to the Holy Family Hospital, Ikom. PW2 also said that the deceased was identified by his father.

PW1 testified as an eye witness to the unfortunate event. In evidence in chief, PW1 testified that there was an altercation between the deceased and the Appellant over ownership of a cocoa farm at Enyaghe forest. Their disagreement got physical. PW1 said:
“The accused went and brought a rifle…Soon thereafter the accused shot the gun at Nelson. Nelson fell down. Where I was standing I only saw smoke out of the mouth of the gun.
Nelson Aje fell down. I ran to him and asked if the gun shot at him. He said yes. Accused ran away with the people he came with. I held Nelson and asked him if he could walk.
He said no. I asked him what we will do. At this time he did not have strength to answer me again…Nelson died.”

See page 25 of the Record of Appeal.
PW2 was Police Inspector John Egbai, who first visited the scene of crime, with 2 other Police Officers and a photographer, upon the complaint of PW1 at the Ikom Police Station. At page 27 of the Record of Appeal, he said:
“We arrived the scene and met the deceased lying in a pool of blood inside the cocoa farm…we conveyed the corpse to Holy Family Catholic Hospital, Ikom.”
Exhibit ‘1’ was the autopsy report written by one Dr. Ojo of Holy Family Hospital Ikom; and, it was tendered by PW2. The report was in respect of Nelson Aje, the deceased. His corpse was deposited at the mortuary on 1/6/2011. He was identified by his brother. Dr. Ojo in Exhibit ‘1’ certified as follows:
“I certify that the cause of death to my opinion to be DEATH BY EXSANGUINATION SECONDARY TO GUNSHOT INJURY TO THE LEFT FEMORAL VESSELS.”

The Appellant has challenged the authenticity of the report, Exhibit ‘1’, contending that the medical doctor who conducted the autopsy was neither a government medical officer nor shown to be a qualified pathologist who was competent enough to make the post mortem report.
That the doctor was not called by the prosecution to answer questions based on Exhibit ‘1’; yet the trial court relied on Exhibit ‘1’ to convict the Appellant.
Exhibit ‘1’ was tendered by PW2. The proceedings at page 28 of the Record of Appeal went thus:
“PW2…This is the autopsy report.
Ani – We seek to tender the autopsy report
Okang – We object on grounds that he is not the maker and is (sic) not in his favour. He cannot answer questions in relation to the report. It should be rejected.
Ani – The objection is a ploy to waste the time of this court.
Okang – I withdraw the objection.
Court: The objection having been withdrawn, the autopsy report is admitted and marked as exhibit 1.”

These proceedings reveal that the Appellant’s Counsel simply gave a halfhearted objection to the admissibility of the autopsy report. He voluntarily withdrew the objection. He never indicated any intention to cross examine the maker of the autopsy report on its findings neither did he indicate he intended to challenge the qualifications of its maker, the doctor, or the authenticity of the document in any way.

In any event, there is no requirement to invite the doctor who wrote an autopsy report to testify or to tender the document, before the report can be valid.
In Edoho v State (supra), the Supreme Court, per Adekeye, JSC, said:
“By virtue of Section 249 (3) of the Criminal Procedure Code, a written report by any medical officer or registered medical practitioner may at the discretion of the Court be admitted in evidence for the purpose of proving the nature of any injuries received by and the physical cause of the death of any person who has been examined by him. On admission of such report, same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the Court. If by reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical officer or registered medical practitioner shall attend or give evidence in person, the Court shall summon such medical officer or registered medical practitioner to appear as a witness. The trial Court did not have occasion to summon Dr. De Bree who conducted the post-mortem examination on the corpse of the deceased.”
See also: Ogbu vs. State (1992) 8 NWLR (Pt.259) 255, [1992] 3 NSCC 178; Okoro v. The State (1988) 5 NWLR (Pt. 94), 255; Enowoh v. The State (1989) 2 NWLR 98(99).
It is essential to keep in mind that although medical evidence as to the cause of death is desirable it is not essential in all cases of homicide.
In the absence of medical evidence, if there is sufficient evidence to infer beyond reasonable doubt that the death of the deceased was caused by the act of the accused, the same can be accepted by the Court. See: Ogba vs. State (1992) 2 NWLR (Pt.222) 164; Ubierho v State (2005) 7 MJSC 168.

The identity of the deceased on whom the autopsy was performed was not in issue. See: Enewoh vs. The State (1990) 4 NWLR (Pt. 145) 469, Okara vs. The State (1988) 5 NWLR (Pt. 94) 255; R. vs. Laoye 6 WACA and Ukoh vs. The State (1972) 5 S.C. 135 Princewill vs. State (1994) 6 NWLR (Pt. 353) 703; Damina vs. State (1995) 8 NWLR (Pt. 415) 513. There was no doubt that the totality of the evidence of the prosecution showed unmistakably that the body on which the doctor performed a post mortem examination was that of the deceased. The death of the deceased was therefore proved beyond reasonable doubt.

The next question to be answered is whether his death was caused by the Appellant. The evidence of PW1, an eye witness, has already been reproduced above. DW1, the Appellant, said in evidence:
“I shot him with my gun.”
Upon cross Examination still at page 36, the Appellant said;
“Yes I am aware that Nelson Aje is dead. Yes I shot him with my gun and he died because I shot him, Yes the gun belongs to me I have had the gun since 1979”.
The fact that the gun was not tendered in evidence is not material.
DW1, the Appellant already admitted that the gun belonged to him; that he took it to the cocoa farm and that he shot the deceased with the gun.
The non-tendering of the weapon is not fatal to the case of the prosecution. See also Edoho vs. State (supra).

The law is certain that the prosecution is not bound to call all its witnesses to give evidence. It has the discretion to call whatever number of witnesses it deems will suffice to prove its case beyond reasonable doubt and supply all missing links that will assist the court in arriving at a just decision. See: Adelumola v State (1988) 1 NSCC 465; State v. Danjummai (1996) CLR 7(g) (CA). The testimony of PW1, an eye witness, and the testimony of DW1 himself clearly is to the effect that the deceased died from the gun shot fired by the Appellant himself with the Appellant’s own gun. The death of the deceased was therefore caused by the Appellant.
It need now be considered whether the act of the Appellant which resulted in the death of the deceased was intentional with knowledge that death or grievous bodily harm would be its probable consequence.

At page 24-25 of the Record of Appeal, PW1 testified of the altercation between the deceased and the Appellant, which got physical, and said:
“The accused and the Nelson (now deceased) were dragging themselves asking each other to leave the farm…The accused went and brought a rifle…Soon thereafter the accused shot the gun at Nelson. Nelson fell down. Where I was standing I only saw smoke out of the mouth of the gun.
Nelson Aje fell down… Nelson died.”
PW2 testified about his findings on investigation and said:
“…before the accused person arrived the scene he had already loaded the gun. He actually intended to come and kill the deceased.”

DW1 also testified that he had his gun on the cocoa farm. This was the gun he used on the deceased. He had a longstanding disagreement with the deceased over ownership and boundaries of the cocoa farm. In evidence in chief at page 35 of the Record of Appeal, he said:
“On 1/6/2011 I went to my cocoa farm. Before then my son told me that people pursued them in that farm to kill them. My son is Egar Agboro. My son, his girlfriend and I went to the farm on that 1/6/2011. We started brushing the farm with my son. I went to the place I used to hide my gun.”

A gun is by no means a garden or farming tool. The Appellant went to the cocoa farm on that day fully prepared with a loaded gun. He shot the deceased point blank. No one takes such an action without intending to kill or at least to cause grievous bodily harm. I therefore agree with the learned trial Judge that the Appellant intended the natural consequences of his action, which resulted in the death of the deceased. See: Aga vs. State (1976) 6 S.C. (REPRINT) 168; Aiworo vs. State [1987] 1 NSCC (Pt.2) 710.

The prosecution, from the evidence proffered before the trial court, succeeded in proving all the essential elements of the offence against the Appellant as charged. The verdict of the learned trial Judge was therefore not unreasonable. Issues No 1 and No 2 are accordingly resolved against the Appellant.

ISSUE NO 3
The Appellant contends that the defences of provocation and self defence are available to him. For the Respondent, it is submitted that these defences were not established by the evidence of the Appellant.
Section 283 of the Criminal Code Law Cap C16 of Cross River State, 2004 provides that:
“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 be 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 another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault …”
Section 284 provides that:
“A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely, to cause death or grievous harm.
Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.”
By these provisions, a defence of provocation cannot be at large without supporting evidence. See: Edoho v State (supra) per Adekeye, JSC; Shande v State (2005) 12 MJSC 152; Jidenwo v State (1997) 1 NWLR (PT 480) 209.

In Ekpenyong v. State (1993) CLR 6(g) (SC), the Supreme Court per Belgore, JSC (as he then was) said:
“In law, to establish defence of provocation, there must be three constituent elements, to wit
1. the act that obviously was provocative, and
2. the provocative act must be such as to let the accused person actually and reasonably lose self-control to do what led to the act now complained of in Court and the
3. the retaliatory act to the provocation must be instantaneous and proportionate to the act reacted against.
The defence is that of the accused and he must set it up clearly; thus the act must be prima facie provocative and so that there was no time for passion to cool down. The fact in a particular case dictates what act is provocative; it is an objective test that the Court must apply. The background of the accused person, his station in life and his susceptibilities are relevant. But surely evidence of premeditated intention to kill or inflict hurt is not consistent with the defence of provocation.”
See also Ajunwa v State (1988) 2 NSCC 493; Ihuebeka vs. State (2000)4 S.C. (PART I) 203

Sections 286 and 287 of the Criminal Code Law Cap C16 of Cross River State, 2004 make provisions regarding self defence against unprovoked assault and self defence against provoked assault. These provisions are as follows:
Self-defence against unprovoked assault
286. 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:
Provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm.
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.

Self-defence against provoked assault
287. When a person has unlawfully assaulted another or has provoked 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 against provoked him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous harm to use force in self-defence, 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 in which the person using force, which causes death or grievous harm, first began the assault with intent to kill or to do grievous harm to some person; nor to a case in which the person using force which causes death or grievous harm endeavoured to kill or to do grievous harm to some person before the necessity of so preserving himself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.

By these provisions, the defence of self-defence is not available to an accused if his defensive measures to protect himself are out of all proportion to the danger which he faced. See: Akpan vs. The State (1992) 6 NWLR (Pt.249) 439; Inyang Etim Akpan vs. State (1994) 9 NWLR (Pt. 368) 347; Uwagboe v State (2008) 7 MJSC 182. Thus, a party relying on the defence of self defence has a duty to show by evidence that his life was so much endangered by that act of the deceased that the only means of escape from imminent death was to kill the deceased. See: Nwede v State (1985) 2 SCC 1351.
The ingredients of self defence in cases where the death occurs have been held to be as follows:
(a) The accused must be free from fault in bringing about the encounter
(b) There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity.
(c) There must be no safe or reasonable mode of escape by retreat, and
(d) There must have been a necessity for taking life.
And, in order to sustain the defence all the above ingredients must coexist and be established. See: Baridam v. The State (1994) 1 N.W.L.R. (Pt. 320) 250; Rtd. Captain Jairo Muser Liya v. The state (1998) 2 NWLR (PT 538) 397; Kwaghsir v. State (1995) 3 NWLR (pt 386) 651; Nwambe v. State (1995) 3 NWLR (pt 384) 385; Omoregie vs. State (2008) 12 S. C. (PT. III) 80.

It is in evidence that the Appellant and the deceased had a pre-existing acrimonious relationship resulting from disputes over ownership of a cocoa farm sited in Enyaghe forest. The evidence of PW1 is that on 1/6/2011, he was engaged by the deceased to work on the cocoa farm.
On the said date, PW1 witnessed the confrontation between the Appellant and the deceased and it got physical. He said in evidence, as already reproduced above:
“The accused and the Nelson (now deceased) were dragging themselves asking each other to leave the farm…The accused went and brought a rifle…Accused asked Nelson to drop the cocoa pod while pointing the rifle at Nelson. Soon thereafter the accused shot the gun at Nelson. Nelson fell down. Where I was standing I only saw smoke out of the mouth of the gun.
Nelson Aje fell down…Nelson died.”
Under cross examination, he said:
“It is the accused that harvested cocoa in the course of the altercation. Nelson was not with matchete but he advanced towards the accused person and in the process they started struggling for that pod of cocoa.”

PW2 said in evidence in chief at page 28 of the Record of Appeal:
“My finding was that the issue of provocation was totally an after thought, because before the accused person arrived the scene he had already loaded the gun. He actually intended to come and kill the deceased.”

In his evidence as DW1, the Appellant traced the beginning of his disagreement with the deceased over the cocoa farm to the year 2000. In Exhibit 2, his statement to the police, which was confessional and which was tendered without objection, he stated thus:
“Yesterday 1/6/2011 and at 07.00 hrs my son Egar Agboro (m) went to the said cocoa farm and late Nelson droved (sic) him out of the farm. When I received the report from my son I followed him back to the cocoa farm, where I met him working. I went to him to asked (Sic) him why he should send my son out of the farm. Quarrell (sic) ensued. He brought out a matchet (sic) to cut my son. He did not know that I hid my single barrel locally made gun by my side. As I was about to remove the gun from where I his (sic) it, the gun exploited (sic) and fire at (sic) him. One of his friends (complainant) was standing very close to us. When I discovered that I have fired him, I ran with the gun…Before this incident I had already fixed in cartridge with the hope of firing him. It was not intentional.”

In evidence in chief, at page 35-36 of the Record of Appeal, the Appellant as DW1 changed his story. He said:
“On 1/6/2011 I went to my cocoa farm. Before then my son told me that people pursued them in that farm to kill them. My son is Egar Agboro. My son, his girl-friend and I went to the farm on that 1/6/2011. We started brushing the farm with my son. I went to the place I used to hide my gun.
I used my knife to clear a stem of cocoa then I went and sat down to eat my moi moi. When I was about to eat, the said Nelson started running to my own portion of the farm. I left that side and shifted to the front. Nelson was looking at where my son was brushing and when he came close I asked him why he was running in my farm with a knife. When his friend come I asked them why they were running in my farm.
Nelson passed to where my son was brushing. He asked me if I come to work. I was now between them. He said he came and saw the cocoa pods in the farm, and said if I harvest any cocoa that day we will not go out of the farm.
I bent the cocoa stem and twisted it Nelson now went after my son as his friend ordered him. I left the cocoa stem and asked my son for my knife. Nelson moved to go and machete my son. My son and his girlfriend ran away.
He did not follow them but ran back to me. The two of them were pursuing me inside the farm to machete me.
Nelson pursued me to the point where I kept my gun. I stopped, picked the gun and defended myself.
Police did not take me to the scene of crime. The deceased and his friend wanted to machete me with their machete – 3 machetes – mine, and two of theirs. Police did not take me to the scene of crime. I shot him with my gun.”

From his statement, Exhibit 2, it is clear that the action of the Appellant was premeditated. He had loaded his gun and hid it from view. He went purposefully to use the gun on the deceased. From the account of the Appellant as DW1, the deceased dared him and threatened that he would not leave the farm with any cocoa pod he harvested on the fateful day. DW1 in response bent a cocoa stem and twisted it. He claims the deceased then ran after his son. He left the cocoa stem and asked his son – who the deceased was purportedly after, for his, the Appellant’s knife. He alleged that the deceased chased after his son but when his son ran away, the deceased came after him. He said:
“Nelson pursued me to the point where I kept my gun.
I stopped, picked the gun and defended myself.”
This account seems very far-fetched to me. A man, who claimed he was being hotly pursued with a machete was able to run directly to where he had already hidden a loaded gun, picked it up and fired at the alleged assailant.

Indeed from his evidence, it was his son who was under threat by the deceased. But, as rightly observed by the trial Judge, his son did not testify to corroborate his story. Even if both different accounts were accepted, neither account establishes provocation or shows that the Appellant acted in self defence. I agree with the learned trial Judge that from the evidence neither provocation nor self defence has been established.

The Appellant obviously nursed a grievance against the deceased.
If indeed he had been threatened or his son had in the past been threatened by the deceased, the correct cause of action was to report to the police. If their boundary dispute was still festering, there were other avenues of complaint and report available. Shooting the deceased was not an option.

As I have noted above, a loaded gun is by no means a garden or a farming tool. For the Appellant who had boundary issues with the deceased to take a loaded gun to the farm, his intentions were suspect. I believe he intended to use it to challenge the deceased. He succeeded in using it, with the result, the deceased, Nelson Aje, died.

The defence of provocation and self defence have not been established by the Appellant. Issue No 3 is therefore resolved against the Appellant.

The issues raised for determination having all been resolved against the Appellant, this appeal fails and is hereby dismissed.

Accordingly, the conviction and sentence of the Appellant is hereby affirmed.

MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment delivered by my learned brother Onyekachi A. Otisi, JCA, in this appeal. The three (3) issues that require decisions in the appeal have been very succinctly and proficiently considered by my learned brother such that no material point was left for further useful comments. The reasoning for the conclusions on the issues is on the firm terrain of the extant position of the law, as demonstrated in the cases cited therein.

The views expressed on the issues are the same with mine and so I completely agree with the conclusions on the issues. For the reasons set out in the lead judgment which I adopt, the appeal is one devoid of merit and I join in dismissing it in terms of the lead judgment.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Onyekachi A. Otisi, JCA.

In murder cases, the prosecution is expected to prove
(1) That the deceased is dead.
(2) That the death of the deceased resulted from the act of the Appellant.
(3) That the act of the Appellant was intentional with the knowledge that death or bodily harm was a Probable consequence.

In this case, the accused got his gun where he was hiding it in the farm and shot at the deceased. The deceased fell down and died soon after in that farm. It was therefore proved that, the deceased died, and that it was the intentional act of the accused/Appellate that caused the death of the deceased. Audu Vs. State (2003) 7 NWLR pt 820 page 516, Uguru vs. State (2002) 9 NWLR pt771 page 90.

The prosecution had proved that the accused intended the consequences of his action. A man who loads his gun, aims at the deceased, pulls the trigger, intended to kill the deceased or at least cause him grievous bodily harm.

My learned brother has convincingly resolved the issues in the lead judgment and I have no difficulty in aligning myself with his conclusions. This appeal is dismissed by me. I abide by all the orders contained in the lead judgment.

Appearances

Emmanuel Okang, Esq.,For Appellant

AND

F.I. Ititim, Esq., Acting Director, Ministry of Justice, Calabar,For Respondent