OBINNA OCHI v. THE STATE
(2018)LCN/11962(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/E/54C/2017
RATIO
CRIMINAL LAW: THE BREAK OF CAUSATION
“It is trite that for a break in causation to occur, there has to be in evidence that some other person or event occurred which could have caused the death or further injury to the deceased after the time that the injury was inflicted on the deceased by the accused and the death of the deceased. What occurred must be an intervening act that would have been in such proportion as to duplicate or exacerbate the injury inflicted by the Appellant and could now become the cause of the deceased’s death. Paragraph 623, Page 211 of AN ALMANAC OF CONTEMPORARY JUDICIAL RESTATEMENTS volume 3 explains thus:
Where although act of accused constitutes a cause sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim’s death, thereby reliving the accused of criminal responsibility. This is what is referred to asnovusactusinterveniens where such effect is accepted.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CRIMINAL LAW: INGREDIENTS OF PROVOCATION
“The following are the ingredients of provocation:
a) there has to be grave and sudden provocation offered by the victim to the accused
b) the act of the assault must have been done in the heat of passion before there was time for the passion to cool
c) there must be retaliation not disproportionate to the provocation. When any of the ingredients is missing, the defence of provocation will fail. Let us now consider the facts and the law.
The position of the Supreme Court is that the Appellant in his statement to the Police or on oath must adduce credible evidence of provocation otherwise the Court must then rely on the evidence of the prosecution. See Shalla v The State (2007) 18 NWLR Pt. 1066 Pg. 40 and Edoho v The State (2010) 14 NWLR Pt.1214 Pg. 651.
There is no doubt that the loss of self-control after the assault must be actual and reasonable. Let us consider the circumstances of this case.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
OBINNA OCHI Appellant(s)
AND
THE STATE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Justice, Enugu State, delivered by Hon. Justice A.A. Nwobodo on 02/05/17 wherein the learned trial judge convicted the Appellant for the offence of murder and sentenced him to death by hanging.
The Appellant was arraigned before the High Court of Enugu State on the 10th day of February 2012 with Charge No: E/51C/1997 on a one count charge of murder of one Kenneth Azuonye to wit:
STATEMENT OF OFFENCE
MURDER contrary to Section 274 (1) of the Criminal Code Cap 30, Laws of Enugu State of Nigeria 2004.
PARTICULARS OF OFFENCE
Obinna Ochi on or about the 19th day of October, 2010 at No. 49 Presidential road, Enugu within Jurisdiction unlawfully killed one Kenneth Azuonye by stabbing him with a knife.
In the course of the trial, the prosecution called six witnesses namely PW1 Mr. Aneke Amezilo; PW 2 Elder Uche Azuonye; PW 3 Cpt Cajetan Ugwu, PW 4 Dr. Ohayi Robson; PW5 Mrs. Oby Aneke and PW6 ASP Barry Nwibani. The Appellant testified in his own defence to the charge against him and called no other witness. At the end of the trial, the Appellant was convicted of the offence of murder and sentenced to death by hanging.
The Appellant filed a Notice of Appeal on 3rd July 2017. The Record of Appeal was transmitted on 29/8/2017, and supplementary Record was transmitted on 6/10/17. The Appellant’s brief of Argument was filed on 12/10/2017. In opposition to the appeal, the Respondent’s Brief of argument was filed on 16/4/2018 and was deemed filed the same day. The Appellant also filed a reply brief on 27/4/18.
Chief Mrs A.J. Offiah, SAN; Mr. Ikechukwu Onuoma Esq.; Chinaecherem Nwaubani (Mrs) who settled the Appellant’s brief identified three issues therein, for the determination of the appeal to wit:
1. Whether the trial Court was right when it failed to uphold the Appellant’s defence of Self Defence (distilled from Grounds 4 and 5 of the Notice of Appeal)
2. Whether the learned trial judge was right when in the face of the evidence before the Court he held that the defence of provocation was not available to the accused person. (distilled from Grounds 2 and 3 of the Notice of Appeal)
3. Whether the learned trial Court was right when without sufficient evidence it found the Appellant guilty of Murder and recorded and pronounced a sentence of death. (distilled from the Omnibus Ground of Appeal)
In the Respondent’s brief settled by the Hon. Attorney General, Chief M.E. Eze, counsel adopted the issues as formulated by the Appellant, and argued issue one and two together as:-
Whether the defence of provocation and self defence avail the appellant.
I have looked at the record, and the grounds of the appeal. It is my humble view that the complaints raised by the Appellant can be determined with the following sole issue:
Whether the defence of provocation and self defence avail the appellant in the face of the evidence before the Court.
SOLE ISSUE
I will take the points raised by the Appellants and the Respondent’s answers to them seriatim before I give my opinion.
Appellant’s counsel submitted that the trial Court was wrong in finding the Appellant guilty of murder and in recording and pronouncing a sentence of death by hanging on him, as there was no sufficient evidence in support of the conviction and sentence.
Counsel further submitted that the law places a special duty on the judge that before convicting an accused of murder and proceeding to sentence him to death, he must look for all possible exculpatory evidence in favour of the accused. Counsel cited: Apishe & 2 ORS v. The State (1993) 7 SCNJ Pt.1 361 at 4; (1993) NWLR Pt. 299 272; Grace Akpabio & 2 Ors v. The State (1994) 7-8 SCNJ (Pt.III) 429.
Counsel submitted that to establish the offence of murder, the following must be proved beyond reasonable doubt:
That the deceased died
That the death of the deceased resulted from the act of the Appellant.
That the Appellant caused the death of the deceased intentionally, with the knowledge that death or grievous bodily harm was its consequence. Counsel cited: Eze v State (2015) All FWLR Pt. 811 Pg.1394 at 1424; Akinfe v. State (1988) 3 NWLR Pt 85 729; Ogba v. The State (1992) 2 NWLR Pt. 222 Page 164 at 198; Oteki v. A.G Bendel State (1986) 2 NWLR Pt. 24 Page 648; Onah v. The State (1985) 2 NWLR Pt. 12 Pg. 236; Festus Amayo v. State (2001) 18 NWLR Pt.745 Pg. 251
Counsel further submitted that on the issue of cause of death in a charge for the offence of murder,in order to hold an accused criminally responsible, the chain of causation must not be broken. Once there is a break in the chain, it must be resolved in favour of the accused person as it affects the actus reus of the offence. Counsel cited: Tegwonor v. State (2008) ALL FWLR Pt. 424Pg. 1484 at 1502.
Counsel submitted that the wound inflicted on the deceased by the Appellant did not cause instantaneous death of the deceased. The deceased died the following day after initial treatment. Where the injury inflicted by the accused is not the direct cause of the death of the deceased, benefit of doubt must be given to the accused. Counsel cited: Uyo v A.G. Bendel State (1986) 1 NWLR Pt.17 Pg. 418; Oguntolu v. State (1996) 2 NWLR Pt.432 Pg. 503; Idowu v. State (2000) FWLR Pt.16 Pg. 2672; Ahmed v. State (2001) FWLR Pt.34 Pg. 438; Aiguoreghian v. State (2004) All FWLR Pt. 1995 Pg. 716.
Counsel further submitted that the Appellant admitted to stabbing the deceased, but that admission would have been direct evidence that the injury caused the death of the deceased if he had died on the spot consequent upon being stabbed by the Appellant. Counsel cited: Idiru v State (1968) NMLR 88; Alarape v State(2001) FWLR Pt.41 Pg. 1872
Counsel submitted that there appears to be two causes of death; there is a cause of death apparently testified to by PW2, PW4 and PW6 on the fact of the attack and another alleged cause of death given by the pathologist who allegedly performed a post mortem examination. This scenario has created a break in the chain of causation, and should be resolved in favour of the Appellant. It is settled that when what caused death has not been ascertained, who caused the death becomes one of the casual connection between the act of the accused and the biological cause of death. Counsel cited: Ahmed v. State (supra)
Counsel submitted that the defence of an accused ought to be adequately considered, no matter how weak such a defence is. Counsel Cited: Oladipupo v. State (1993) 6 SCNJ 233; Omoruyi v, The State (2014) All FWLR Pt.741 Pg. 1480 at 1520
Respondent’s counsel submitted that unless there is contrary evidence, the cause of death was sufficiently linked to the act of the Appellant. The deceased did not receive any other stab injury other than the ones given to him by the Appellant, and therefore reject the proposition that the cause of death was not linked to the Appellant.
Respondent’s counsel argued that it is wrong for the Appellant to claim that the cause of death was not properly established. But appellant never denied that the person he stabbed and who died as a result of that stab was the deceased. Counsel cited: Solomon Ehot v. State (1993) LPELR-1055; (1993) 4 NWLR Pt. 260 Pg.644.
Counsel further submitted that the issue of cause of death as raised by the deceased therefore amounts to fishing for a nonexistent evidence to support their case and urged this Court to jettison such proposition.
The Appellants counsel submitted that the doctrine of self defence is a justification rather than an excuse; that is the defence asserting that his action was not a crime at all. The plea is predicated on the natural principle of Kill or be killed. Counsel cited: Maigari v. The State (2010) ALL FWLR (Pt. 546) 405 (CA); Briade v. State (1997) 5 NWLR (Pt. 504) 141 (SC); Amala v.The State (2004) All FWLR (Pt219) 1102(SC).
Counsel submitted that from the evidence before the Court, Kennedy came to the abode of the appellant and not the other way round. The evidence thereafter was that there was a fight between the accused and the deceased. It was uncontroverted that the deceased pulled out a knife during the fight between him and the appellant. The fight was thus provoked and initiated by the deceased. It was uncontroverted that it was the deceased who pulled out the knife during the fight. Counsel further submitted that this evidence was established through the appellant’s statement to the police and corroborated by the evidence of Cpl Cajetan. The law is that the statement of an accused person made to the police is the very foundation of his defence. Counsel cited: Olayinka v. State (2008) 6 ACLR 194 SC at 212.
Counsel submitted that any reasonable man on sighting a knife would ordinarily feel a sense of impending danger and it is natural to defend oneself from the danger. The injury marks on the hands of the appellant shows that the attack by the deceased was not merely an anticipated attack there was indeed an actual attack by the deceased on the Appellant which culminated into an injury treated at the ESUT Teaching Hospital.
Appellant’s counsel further submitted that other facts the trial Court looks at in determining the availability of the defense to an accused person are: the behaviour of the accused person immediately after the incident; the part of the deceased body hit in self-preservation by the accused; whether the accused had opportunity to retreat; whether the accused person was the aggressor in the first place; whether there are other availing ways to avoid the attack; the threat given, the experiences of the accused and the manner of attack. Counsel cited: Akpan v. State (1994) 9 NWLR Pt.368 Pg.363-364 para D-A (SC); Bassey v The Queen (1963) 1 ALL NWLR 280. Counsel further submitted that applying all the above requirements to the facts of the instant case, it is quite clear that the Appellant in stabbing the deceased had acted in defence of himself and under a reasonable belief that he was in danger of death or grievous bodily harm.
Counsel submitted that running away from the fight had not been an option because the deceased was older and bigger and would not have let him. On the behaviour of the accused immediately after the incident, counsel argued that even though the accused ran away he at the slightest opportunity he got, he later enquired about the welfare of his assailant and was relieved when he received an assurance of quick recovery. This reveals the true state of the Appellant’s mensrea.
Counsel submitted relying on Harrison Owhoruke v. C.O.P. (2015) LPELR 24820 SC that the prosecution at the trial Court argued that the threat to the life of the Appellant had ended when he overpowered the deceased, and took the knife from him. The principle in that case is not applicable in the instant case as the circumstances of both cases are materially different. The Appellant herein did not overpower the deceased before stabbing him and could not have given that the deceased was much bigger than the Appellant.
Counsel further submitted that the Appellant’s act of stabbing the deceased was in the process of defending himself; he took steps, the only ones available to him at the time, considering the entire scenario and how quickly the events unfolded. The Appellant never intended to kill the deceased.
Counsel submitted that the trial judge was wrong to have held on the issue of self-defence that the site of the wound on the deceased showed he was stabbed while on the ground or running away since that is pure speculation and the Court cannot indulge in same.
Counsel submitted that the Appellant in defending himself was proportionate with the exact same force as he had been threatened with; a stab with a knife. The evidence of the injury sustained by the Appellant in his arm and finger is conclusive proof that before he stabbed the deceased, he was first at the receiving end of that knife, which is enough to ground his defence of self-defence. Counsel cited: Bello v State (2013) All FWLR Pt. 695 Pg. 395.
The Appellant submitted that without prejudice to the submissions on the issue of self-defence the judgment of the trial Court that the defence of provocation was not available to the Appellant was wrong.
Counsel further submitted that although the ingredients of self-defence and provocation are different, the same set of facts can sustain either of the two defences. However, counsel rightly conceded that both defences cannot be raised simultaneously, they can be raised and/or considered together from the same set of facts or available evidence or record, as a defence of self-defence can merge with a defence of provocation and vice versa. Counsel cited: AloChukwu v. State (2012) ACLR 175 SC at 198-199; Akpan v. State (1990) 7 NWLR Pt.160 101 at 111; Stephen v State (1986) 5 NWLR Pt.46 978 at 1000,(1986) 2 NSCC 1416; Udofia v State (1984) All NLR 444 SC at 468. Suleiman Danta Annabi v. The State (2008) 13 NWLR Pt.1103 179; (2008) 4-5 S.C Pt.11 Pg. 229.
Counsel further submitted that the criteria required to establish the defence of provocation was met in the evidence before the trial Court as contained in the testimony of the Appellant at page 21 of the record.
The following are required to establish the defence:
1. Sudden fight between the accused and the deceased which was continuous with no time for passion to cool down.
2. That in the course of that the Appellant was deprived of his self-control.
3. That the provocative act came from the deceased.
4. That the force used by the Appellant in repelling the provocation was not dis proportionate in the given circumstances. Counsel cited: Shande v. State (2005) All FWLR Pt. 279 Pg. 1342 at 1354, paras A-C; Ekpenyong v. State (1993) 6 SCNJ 191 at 197; Uwagboe v. State (2008) All FWLR Pt.419 Pg. 425 at 439; Nwede v. State 1985 3 NWLR Pt. 13 444.
Counsel submitted that the Courts have been consistently unanimous on the view that words alone and or action can constitute provocation in a case of murder. Counsel cited: Edache v. The Queen 1962 WLR 56 SC; Lado v. State 1999 NWLR Pt. 619 Pg.369.
Counsel further submitted that the Appellant was not just confronted with threats, the deceased started beating him, and when he fought back, the deceased pulled a knife with which he inflicted injury on the Appellant, this is sufficient to cause loss of self-control and provoke anyone.
Respondent’s counsel in reply submitted that to avail himself of the defence of self-defence, the Appellant had the duty to show by evidence that his life was so much endangered by the act of the deceased that the only means of escape from imminent death was to kill the deceased. He should have demonstrated by his actions that he did not want to fight and that he was prepared to withdraw. Having been warned to be careful of the deceased, a reasonable man would not have followed the deceased when he was invited downstairs and that would have been evidence of his withdrawal. Counsel cited: The State v. John Umunu (1968) NMLR. 15 at 20.
Respondent’s counsel submitted that the defence of provocation did not avail the Appellant in this case as the evidence before the trial court suggests a premeditated murder. The knife used in stabbing the deceased was from the room the Appellant shared with PW5, according to the evidence of PW4 and PW5. The Appellant most probably introduced the knife into the fight, as the deceased who had just entered the room could not have reached for the knife before inviting the Appellant to meet him downstairs, moreso without the Appellant noticing.
Counsel further submitted that the summary of the evidence before the trial Court was that the deceased invited the Appellant downstairs, knowing very well that the deceased was not happy with the way he treated him on 14/10/2010 when he locked him out, and that in the event of a fight between them, he had no chance against the deceased who is older and bigger, he picked the knife in their room and went down to meet the deceased with it. It was a deliberate introduction of a knife into the scene of the fight by the Appellant that brought about the death of the deceased.
Counsel submitted that for provocation to be proved, it must be grave and sudden, there must be loss of self-control both actual and reasonable, and the retaliation must be proportionate to the provocation. Counsel cited: Chukwu v. State (1992) LPELR-854 at 23; Nwede v. State (1985) LPELR-2118.
Counsel submitted that the Appellant’s admission that he stabbed the deceased made it very clear that he had formed the intention to kill the deceased. By stabbing the deceased at the heart, a vital part of the body, the Appellant knew that his act would lead to the death of the deceased. The law presumes that a man intends the natural consequences of his acts. Counsel cited: Akinkunmi & Ors v. The State (1987) 3 SC 152; Musa v State (2014) LPELR-22912; Njoku v. State (2013) 2 NWLR Pt. 1339 Pg. 548; Osiriejor v. State & Anor (2015) LPELR-25304; Adeboyega v. State (2007) LPELR-8068.
In reply to the respondent’s arguments in paragraphs 1-13 of the Respondent’s brief of argument, the Appellant submitted that it was wrong for the Respondent to argue that the defence of provocation did not avail the Appellant in this case and that the evidence in this case rather suggests a premeditated murder. Appellant’s counsel argued that it was mutually agreed by the parties that a fight ensued. Premeditation is a factual mental state akin to malice aforethought. Being a fact, same ought to be established by evidence and in a criminal proceedings, proof is beyond reasonable doubt not on a balance of probabilities. Counsel cited: Madu v State (2012) LPELR-7867(SC); Adisa v State (1991) 1 NWLR Pt. 168 Pg 490 at 504.
Appellant’s Counsel in reply to the Respondent argued that there is no clear evidence of where the knife was removed and that any gaps in the case of the prosecution must be resolved in favour of the Accused/Appellant.
Counsel submitted that the case of Chukwu v. The State (1992) 1 NWLR Pt.217 Pg. 255 cited by the Respondent at paragraph 28 of the Respondent?s brief is factually distinguishable from the present case. A major distinguishing factor between the case of Chukwu and the present case is the fact that while in Chukwu’s case, he was convicted on the evidence of eye-witnesses; none of the prosecution’s witnesses in the instant case was present at the scene of the fight. The only eye-witness account of the fight between the Appellant and the deceased is the Appellant’s uncontradicted testimony. For previous decisions of the Court to bind any Court, the facts and the law in the subsequent case must be same or similar to those which informed the Court’s earlier decision. Counsel cited: Ibrahim v. JSC (1998) 14 NWLR Pt.584 Pg.1; Dongtoe v. CSC Plateau State (2001) 9 NWLR Pt. 717 Pg. 132 at 155.
In reply to the submissions in Paragraph 33 of the Respondent’s brief, counsel submitted that Section 271 (c) is not the provision under which the Appellant was charged at trial. The Respondent cannot change the specific provision of law under which the Appellant was charged now on Appeal. Counsel cited: Ojo v FRN (2008) 11 NWLR Pt. 1099 Pg 467 at 513-514; Edet v State (2008) 14 NWLR Pt.1108 Pg. 52 at 65-66.
OPINION
In cases of murder, there are five essential ingredients to be proved by the prosecution.
They are set out below:
a) that the death of a human being has occurred
b) that the act or omission that led to the death of the deceased was that of the accused
c) that the act or omission of the accused was intentional knowing that death or grievous bodily harm will result.
d) that there was no lawful excuse for the act or omission of the accused.
e) that the death occurred within a year and a day of the act or omission of the accused.
Counsel to the parties are in agreement that in this case (a) (b) and (e) of the ingredients above were established. That is to say, all parties are agreed that the deceased Obinna Ochi died and that the Appellant had stabbed him. The first complaint raised by the Appellant in this case, is the contention whether the appellant by stabbing the deceased during a fight could be said not to have committed the offence of murder because of an intervening event. The second contention is the important consideration of whether the defence of self defence or provocation would avail the appellant in the circumstances of this case. See Omoregie v The State (2008) 12 SC Pt.111 pg. 80
It is trite that for a break in causation to occur, there has to be in evidence that some other person or event occurred which could have caused the death or further injury to the deceased after the time that the injury was inflicted on the deceased by the accused and the death of the deceased. What occurred must be an intervening act that would have been in such proportion as to duplicate or exacerbate the injury inflicted by the Appellant and could now become the cause of the deceased’s death. Paragraph 623, Page 211 of AN ALMANAC OF CONTEMPORARY JUDICIAL RESTATEMENTS volume 3 explains thus:
Where although act of accused constitutes a cause sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim’s death, thereby reliving the accused of criminal responsibility. This is what is referred to asnovusactusinterveniens where such effect is accepted.
In homicide cases, the burden of proving the cause of death lies squarely on the prosecution and not the defence; cause of death must be proved with certainty and this must be due to the act or omission of the accused. It is not a matter of probability. The last link of causation causacausansis important as an intervening cause, novusactusinterveniens that breaks the chain of causation and would be resolved in favour of an acquittal for the actusreus as it gives rise to a benefit of doubt since there would be no certainty on the proximate cause of death. Where there are two possible causes of death, there would be a doubt to the accused’s benefit: Aiguoreghian v State (2004) FWLR (Pt. 185) 716 @748-9 S.C.; (2004) 1 S.C(Pt.1) 65 @ 73.
From the facts contained on the record, there is no evidence of an intervening act. The portion of evidence referred to by the Appellant is insufficient to break the chain of causation already set in motion by the act of the Appellant. The fact that the deceased was not quickly attended to and had bled a lot before receiving medical attention cannot detract from the fact that it was the Appellant who caused the factual injury which led to his death.
The Appellant and all the witnesses called are not Doctors except for Dr. Ohayi Robsam who tendered the medical report which stated thus:
”Presented to us with a history of stabbing to the back. Examination reveals extensive hemorrhage both externally and internally. Patients condition progressively deteriorated with death eventually resulting.”
The logical conclusion to draw from the above evidence is that the Appellant’s act of stabbing the deceased caused the hemorrhage and other complications, ultimately leading to the death of the deceased the following day after the incident. See: Edoko v The State (2015) LPELR-24402(SC) (Pp.33-34, Paras G-B), Ajunwa v The State (1988) LPELR-308(SC) (Pp. 10-11, Paras G-E); (1988) NWLR Pt.89 Pg.380
Under Section. 314 of the Criminal Procedure Code applicable in the North and not Enugu State where this crime was committed; it is only where the deceased died a year and a day after the attack by the accused that there can be said to be a break in the chain of causation. I am just using that as an analogy to show that generally there cannot be a break when death accrued a day after the incident as in this case.
I do not agree that the fact that the deceased was carried from one hospital to the other and was not quickly attended to and he bled a lot before he was treated can be different intervening acts that broke the chain of causation. The jurisprudence on this issue is that the accused has to be given the benefit of doubt if another event apart from the incident involving him could have caused the death of the deceased, particularly where it occurred just before or just after the incident with the accused. Consequently, the argument of the appellant on this point fails; the Appellant and none other caused the death of the deceased.
Let us now consider whether there are viable defences available to the Appellant. On the defence of provocation, it is settled that the Appellant must prove that the victim did something to provoke the assailant as a result of which he reacted in the manner that he did thereby causing the death or grievous bodily harm to the victim.
The following are the ingredients of provocation:
a) there has to be grave and sudden provocation offered by the victim to the accused
b) the act of the assault must have been done in the heat of passion before there was time for the passion to cool
c) there must be retaliation not disproportionate to the provocation.
When any of the ingredients is missing, the defence of provocation will fail.
Let us now consider the facts and the law.
The position of the Supreme Court is that the Appellant in his statement to the Police or on oath must adduce credible evidence of provocation otherwise the Court must then rely on the evidence of the prosecution. See Shalla v The State (2007) 18 NWLR Pt. 1066 Pg. 40 and Edoho v The State (2010) 14 NWLR Pt.1214 Pg. 651.
There is no doubt that the loss of self-control after the assault must be actual and reasonable. Let us consider the circumstances of this case. There is no doubt as to the fact of a spontaneous fight between the deceased and the Appellant. There is evidence that the deceased provoked the Appellant on the day of the incident. The deceased went to the PW5’s residence on 19/10/2010 to confront the Appellant about being locked out of the said residence on the 14/10/2010. A fight ensued which resulted in the death of the deceased. Even though I can see some elements of provocation here, I do not think the evidence on record supports the defence of provocation, Provocation does not excuse murder; it merely has the effect of reducing a murder charge to a lesser offence of manslaughter. Self defence on the other hand is a complete answer to the charge of murder.
For any of these defences to avail the appellant in this case, there ought to be enough credible evidence on which to found these defences. See: Edoho v The State (Supra), Shalla v The State (2007), Sanusi v The State (Supra).
In a case of murder, the prosecution must prove that there has not only been unauthorized or unjustified killing, not excused by law, it must also result from the direct act of the accused person. The Court had always held that to prove murder, the act or omission of the accused which caused the death of the deceased or victim was intentional with knowledge that death or grievous harm would be a probable consequence of his action. See: Ubani & Ors v. State (2004) FWLR Pt.191 Pg.1533 at 1546, State v. Usman (2004) ALL FWLR Pt.226 Pg. 231 at 254.
There is a distinction between murder and manslaughter. While murder is unlawful homicide with malice aforethought (premeditation), manslaughter is unlawful homicide without malice aforethought. In the latter case, there must have been some risk of harm resulting from the act albeit not serious harm to amount to manslaughter. See: Amayo v. The State (2002) FWLR Pt.91 Pg.1571 at 1595 & 1597Edoko v The State(2015) LPELR-24402(SC) (Pp.33-34, Paras G-B), Ajunwa v The State (1988) LPELR-308(SC) (Pp. 10-11, Paras G-E);(1988) NWLR Pt.89 Pg.380.
I can see no clear facts of provocation in this case unless one wants to say that the drawing out of a knife by the deceased amounted to provocation. The law is that in determining the application of the defence of provocation, the law looks at the impact of the words, actions, omissions could have on the emotion, psychology, ego and belief of the accused. Thus provocation is not considered in vacuo, but by taking into consideration the entire scenario, including the person of the Appellant, background, age, beliefs etc. See: Adamu Kumo v. The State 1967 All NLR 289; R v. Edache 1962 NMLR 56.
The facts on record even by the Appellant did not disclose anything that would amount to the triggering of a unilateral act of aggression on the part of the Appellant which is what the defence of provocation anticipates, that is he becomes the aggressor as a result of the act and utterances of the deceased. Provocation has been defined as an act or series of acts done by the deceased to the accused to make the latter for the moment not to be master of his own mind. See: Akpan v The State (1994) 9 NWLR Pt.368 Pg. 364 Paras. F-G; Akalezi v. State (1993) NWLR Pt. 273 Page 10 Paras F-G.
However, some utterances or actions of the deceased may degenerate into physical fight between the Appellant and the deceased and where this happens and results in death of one of the fighters, the accused can in certain circumstances claim self defence or provocation. As I said earlier, I do not believe the facts here support the defence of provocation put up by the Appellant.
Let me now consider whether the defence of self defence as an absolute defence cannot avail the Appellant in the circumstances of this case. The learned trial judge found as follows on Pg 200-201 of the record:
”The evidence of the accused is that while he was fighting with the deceased, he brought out a stainless knife. As soon he saw the knife, he held the hand of the deceased and a struggle for the knife ensued, which led to the knife breaking. And he used the part of the knife with him to stab the deceased and left the knife in his body.
Now there is evidence before the Court that the deceased was stabbed on the left side of his back. See Exhibit ‘c’ and the evidence of PW3 to that effect.
The stabbing of the deceased on his back could mean one of two things:
1. The accused may have been running away when he was stabbed at the back or
2. He was on the ground when he was stabbed.
Any of these scenarios will neutralize the defence of self defence.
On the whole I hold that the prosecution has proved the allegeation against the accused person beyond reasonable doubt, the Court therefore finds the accused guilty as charged.”
There is no evidence to support the above inference or suggestion of the learned trial judge that the deceased was running away or had fallen down before he was stabbed. It is trite law that Courts should not speculate on evidence but rely on and decide on the evidence presented before it. The Court is only entitled to rely on the evidence before it and not on speculations. See: Okoko v. State (1964) 1 All NLR 423 at 428; Seismograph Service (Nigeria) LTD v.Ogbeni (1976) 4 SC at 101.
A Court cannot decide issues on speculation no matter how close what it relies on may seem to be to the facts. Speculation is not an aspect of inference that may be drawn from facts that are laid before the Court. See: Ivienagbor v. Bazuaye (1999) 9 NWLR Pt. 620 552 at 561; Overseas Construction Co Ltd v. Creek Enterprises Ltd (1985) 3 NWLR Pt. 13 Pg. 402
It is very unfortunate that the learned trial judge decided to become a forensic expert. It is only a forensic expert who could give an opinion on the position of any person stabbed which is dependent on where the stabber was standing/sitting. That is only relevant in advanced countries or in Hollywood/Nollywood films where there are crime scene experts who had taken pictures of the position of a dead body. In this case, the victim was rushed to the hospital and there was no eye witness testimony that supports the speculation of the learned trial judge that the Appellant stabbed the deceased after he had fallen down or after he attempted to run away from the Appellant.
Exhibit ‘C’ tendered at the trial Court as the confessional statement of the Appellant in part reads as follows:
“On Tuesday being 19th October 2010 around 3 p.m. I and Ebuka were in our room when Kennedy, one girl and one boy came inside our room. Kennedy then called me to follow him and I followed him to downstairs and at the gate, he asked me what I did I do that day, i.e. why did I refused to drop key for him. I asked him what I have done. He said ok you are asking me question. He started blowing me on my body and as a result of that we started fighting. He brought out a stainless knife and I immediately held the knife and broke it. Meanwhile he had already cut me on my hand and my right finger. I then use the part of the knife with me to stab him once.”
The Appellant gave further evidence on oath. He was consistent with his story about what happened and was not discredited in my view under cross examination.
Let us now consider the defence of self defence which as I said is an absolute defence to the charge of murder. For self defence to avail the appellant, the facts on record must show the following which the prosecution has not been able to disprove:
a) he was assaulted by another,
b) he has not provoked the person assaulting him
c) the nature of the assault may be one that causes reasonable apprehension of death or grievous harm.
d) he used reasonable force to defend himself.
e) he never intended to kill that person or inflict grievous bodily harm.
The Supreme Court settled the issue of self defence by stating that the defence of self defence by nature is determined essentially on facts and circumstances of each case. Obaseki JSC in Ajunwa v The State (Supra) approving and following Laoye v The State (1985) 2 NWLR Pt.10. Pg 832 held that:
”Under our legal system, if a man is attacked in circumstances where he seriously believes his life was in danger of serious bodily harm, he may use such force as he believes is necessary to prevent and resist the attack. And if in using such force he kills his assailant, he is not guilty of any crime even if the killing was intentional. In deciding whether it was reasonably necessary to have used such force as was used regard must be had to all the circumstances of the case including the possibility of retreating without danger or yielding anything that he is entitled to protect.”
The appellant relied on the same facts to plead provocation and self defence. The person being attacked, in the instant case, the appellant must bear in mind Necessity and Proportion. He must be able to say that he did what he did out of necessity to save his own life and that the force he applied was proportional to that of his attacker. In the instant case, the deceased accosted the appellant and started beating him, from the evidence before the Court, the deceased cut the Appellant on the hand with a knife. It was only natural for the Appellant to struggle to save himself from further harm as that is how a reasonable man would feel and act. The question remains, if he had not stabbed and killed the deceased would the deceased have stabbed and killed him instead? The answer is in the affirmative. I am therefore convinced based on the evidence before us that the appellant can say that his act of stabbing and killing the deceased was borne out of necessity and that he reacted proportionately. See: Adeyeye v The State (2013) 11 NWLR Pt.1364 Pg.47.
It is of no moment that the Appellant had stabbed the deceased after he collected the knife, as the struggle and fight was continuous; temporarily getting a hold of a part of the knife is not coterminous with overpowering the deceased.
In order to rely on the defence of self defence, an accused has to show that his life was so much endangered by the act of the deceased that the only means of escape from imminent death was to kill the deceased. The legal right to kill in self defence cannot be made dependent upon the temperament or phlegmatic nature of the appellant. For anyone who claims to have exercised this legal right to kill, the law insists upon one standard. It is the standard of the reasonable man. See Akpan v The State (1994) 9 NWLR Pt. 368 Pg.347,Afosi v State (2013) 13 NWLR Pt.1371 Pg. 329 at 357 – 358.
At all material times, the evidence available was that the deceased constituted a threat to the Appellant, from the moment he came into the house the Appellant shared with P.W.5 till the moment he was stabbed, even after the stabbing occurred, the Appellant took to his heels presumably to avoid any more confrontation or harm.
Undoubtedly, in a criminal case such as this the onus is on prosecution to establish the guilt of the appellant beyond all reasonable doubt but not beyond any shadow of doubt. For an appellant to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable one arising from some evidence before the Court. See Friday Aiguoreghian & Anor v State 17 NSCQR 442 at 475.
The Appellant in the circumstance took the only option available to him to prevent further harm from being inflicted on himself, in a manner proportionate. I am persuaded from the evidence that the lawful excuse of self-defence is available for the killing of the deceased by the appellant in the circumstances of this case.
The Respondent’s counsel had argued in the brief that PW.4 and PW.5 stated in their evidence on oath that the Appellant used the kitchen knife in the kitchen of his house to stab the deceased and that he took it along when he left his bedroom to fight with the deceased. It is unfortunate that these arguments are based on outright falsehood. Because of the fact that such an important fact would prove premeditation on the part of the Appellant, I took the pains to read the evidence of PW.4 and PW.5 several times over.
I found no such evidence from either witness on oath. It is unfortunate that the prosecution developed an overactive imagination of the facts of this case to turn the evidence of the Appellant that there was a kitchen near the stairs to the fact that the Appellant took a knife from the kitchen. Respondent’s Counsel also stated that the Appellant stabbed the deceased in the heart which is patently untrue and even contrary to the evidence tendered by the prosecution.
Where one is charged with murder, the aim of the state cannot be to secure another death even in the absence of cogent and verifiable evidence. Surely, the Respondent Cannot be suggesting that it is okay to order the death of the accused based on Ifs, WOULD HAVEs and MAYBEs. One cannot afford to gamble with life; there must be absolute certainty of culpability before life should be taken under any circumstance, this is because of the sacred nature of life which is God given. See:Ononuju v. State (2015) All FWLR Pt.810 1198 at 1232.
Defence and prosecution counsel should never allow the competitive spirit to win make them forget that they are officers in the temple of justice and that human lives are at stake in criminal trials.
Both the Appellant and PW.5 who knew the deceased gave evidence that the deceased was bigger in size and older then the Appellant. I believe the evidence of the Appellant that he was provoked into a fight by the deceased who drew a lethal weapon first. I believe that he was in danger for his life and because of the size of the deceased had no opportunity to withdraw from the fight. I believe he inadvertently stabbed the deceased with part of the broken knife when he was trying to escape from the deceased. The I.P.O. confirmed that the Appellant had injuries on his hands from the wounds inflicted by the deceased.
The injury marks on the hands of the Appellants shows that the attack by the deceased was not merely an ‘anticipated attack’ and that there was indeed an ‘actual attack’. The natural reaction in the said situation is that of self preservation. Self-preservation in law translates to self-defence in these circumstances. The Appellant believed that the deceased was going to cause him grievous bodily harm or death, and as such the plea of self-defence should afford the Appellant.
See: Apugo v. State (2006) All FWLR Pt. 341 Pg. 1253, (2006) 12 SCM Pt.1 Pg.168; Kwaghshir & Anor v. State (1998) 1 ACLR 548 SC Pgs. 560-561.
The Law is well settled that an accused is presumed innocent until proven guilty, and it is not the duty of the accused to prove his innocence, rather the duty lies with the prosecution to establish the guilt of the accused beyond reasonable doubt. See: Alatise v. State (2013) All FWLR Pt.686 552 CA at 566; Bello v. State (Supra); lgabele v. State (2006) All FWLR Pt. 311 1797; Ani v. State (2003) 11 NWLR Pt. 830 142; Ifejlrika v State (1999) 3 NWLR (593) 59
I am of the humble view that the onus of proof that the Appellant premeditated the murder or willfully without any excuse inflicted grievous bodily harm on the deceased has not been discharged by the prosecution in the circumstances of this case and that the Appellant is entitled to the defence of self-defence.
In the circumstances, the judgment of Hon. Justice A.A Nwobodo in suit no. E/51C/2011 finding the Appellant guilty and sentencing him to death delivered on 2/5/17 is hereby set aside. I enter a finding of acquittal and discharge of the Appellant. Appeal allowed.
IGNATIUS IGWE AGUBE, J.C.A.: I have had the benefit of reading the draft of the leading judgment just delivered by my learned brother, the PJ., HELEN MORONKEJI OGUNWUMIJU JCA. His Lordship has admirably and exhaustively dealt with all the issues submitted to us for determination in this appeal.
Indeed, I agree with his reasoning and conclusions reached therein. I also abide by the consequential Orders.
JOSEPH TINE TUR, J.C.A.: I agree
Appearances:
Ikechukwu Onuomw with him, Chimaecherem Nwanbami,
Chioma Orji, Oguguo Ezema,
Chizoba UzodinmaFor Appellant(s)
Chief M.E. Eze (Attorney General Enugu State) with him, S.U. Madu and U.D. Nebeh.For Respondent(s)
