EMEKA EZE v. THE STATE
(2018)LCN/12465(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 4th day of July, 2018
CA/E/37C/2017
RATIO
CRIMINAL LAW: OFFENCE OF MURDER
“It is settled by a long line of cases that for the prosecution to secure a conviction of an accused charged with an offence of murder under the above provisions of the criminal code, the prosecution must prove the following ingredients of murder: (i) That the deceased died;
(ii) That the death of the deceased was caused or resulted from an act of the accused; and
(iii) That the act of the accused was intentional with the knowledge that death or bodily harm was probable and not a likely consequence. See SHAIBU V STATE (2017)16 NWLR (PT. 1592) 396 AT 432 (F – H). DARE JIMOH V THE STATE (2014) LPELR 22464 (SC). UDOR V THE STATE (2014) LPELR 23064 (SC) AT 27 (A – C). OGEDENGBE V THE STATE (2014) LPELR 23065 (SC) AT 50 (A – C). ALAO V. THE STATE (2015) LPELR 24686 (SC) AT 24 – 25 (F – D).” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
DEFENCE: PLEA OF SELF-DEFENCE
“See also OMOREGIE V THE STATE (2008) LPELR 2658 (SC) 24-25 (G-D ), JOHN V. STATE (2017) 16 NWLR (PT. 1591) 304 AT 342 {C-F), JOHN V. STATE (2017) 16 NWLR (PT. 1591) 304 AT 342 (C-F). In AFOSI V.THE STATE (2013) LPELR-20751(SC) AT 36-38(F-C) the Supreme Court held as follows:
‘It is the law that the defence of self defence is open and available only to an accused person who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm. It is his entitlement to use and apply such force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from the danger, and this he is entitled to do even though such force may cause death or grievous harm. However, if the act said to be a self defence is committed after all danger from the assailant is past and by way of revenge, then the defence will not be available to such an accused person. See; R. v. Dummeni (1955) 15 WACA 75.
Similarly, the position of the law is that where an accused person has not expressly raised issue of self defence this issue could only be considered if from the available evidence the defence avails him so that the Court will advert to: See; Ehot v. State (1993) 4 NWLR (Pt. 290) 644; Frank Uwagboe v. The State (2008) 7 SCM 152 at 162-163.
The plea of self defence may afford a defence where the party raising it uses force, into merely to counter an actual attack, but mainly to ward off or prevent an attack which he has honestly and reasonably anticipated.'” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
DEFENCE: WHETHER THE COURT IS TO CONSIDER ALL DEFENCES
“The law is settled that it is the duty of the Courts including the appellate Courts to consider all possible defences which may be available to an accused and disclosed by the evidence on record whether or not the defences are specifically raised. In LAOYE V THE STATE (1995) LPELR 1754 (SC) AT 15 (A – B), the Supreme Court held that:
It is trite law that it is the duty of the Court to consider all possible defences open to an accused person on the evidence before the Court or even from his statements to the Police, notwithstanding that such defences were not specifically raised by the accused person or his counsel. It is equally trite that such possible defences ought to be fully considered no matter how stupid they may seem.
See also ABEGUNRIN V. THE STATE (2009) LPELR 8282 (CA) AT 19 (F – G). OSUAGWU V STATE (2016) LPELR 40836 (SC) AT 35 (A – C). AKWUOBI V. THE STATE (2016) LPELR 41389 (SC) AT 23 (B – C).”PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JUDGMENT: WHERE THERE IS DELAY IN DELIVERY OF JUDGMENT
“It is clear from the provision of Section 294 (5) of the Constitution that the condition precedent to setting aside a judgment delivered after the expiration of 90 days of adoption of final addresses by the trial Court is that the delay has occasioned a miscarriage of justice. See AKOMA & ANOR V. OSENWOKWU & ORS (2014) LPELR 22885. In the determination of whether or not delay in delivery of judgment has occasioned a miscarriage of justice, the appellate Court must be guided by the following:
(1) The burden is on the party complaining to satisfy the Court that the non – compliance with Section 294(1) of the Constitution has occasioned a miscarriage of justice.
(2) The emphasis is not the length of the delay per se but the effect it has had on the memory of the trial judge.
(3) It must be shown that the trial judge failed to take a proper advantage of having seen or heard the witnesses testify or that he has lost his impression of the witnesses and the trial due to inordinate delay. (4) That the delay has affected the trial judge’s perception, appreciation and evaluation of the evidence and the issues for determination.
(5) The party complaining must identify the specific findings or facts or evaluation which is faulty or affected as a result of the delay. See AKPAN V. UMOH (1999) LPELR 375 (SC) AT 15 (A-C). EGBO V. AGBARA & ORS. (1997) LPELR 1036 (SC) AT 31 (D – F), AKOMA & ANOR. V. OSENWOKWU (SUPRA). OGUNDELE V. FASU (1999) LPELR 2329 (SC). ATUNGWU & ANOR. V. OCHEKWU (2013) LPELR -20935 (SC). ” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
Before Their Lordships
TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFFJustice of The Court of Appeal of Nigeria
Between
EMEKA EZEAppellant(s)
AND
THE STATERespondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Enugu State delivered in Charge no. N/16C/2006 on 7/2/2017. The appellant was alleged to have murdered Michael Oli by stabbing him with knife on his neck, head and back. He was charged under Section 270 of the Criminal Code Law, Cap. 36 Vol.1, Laws of Anambra State of Nigeria now Section 270 of the Criminal Code Law,Cap 30 Volume 11, Laws of Enugu State. Seven witnesses testified for the prosecution. The appellant testified in his own defence and called no other witness. Trial commenced with the testimony of PW1 on 16/6/2010. Hearing was concluded with the evidence of the appellant who testified as DW1 on 4/2/2014. Final written addresses were adopted on 31/3/2015. Judgment was delivered on 7/2/2017, 36 months after the conclusion of the evidence and 23 months after the adoption of final addresses. The learned trial judge found the appellant guilty of murder and sentenced him to death.
The appellant is aggrieved by the judgment. He filed a notice of appeal dated 31/3/2017.
The five grounds of appeal contained in the notice of appeal are stated below with their particulars:
GROUND ONE
The learned trial judge erred in law in relying on some exhibits written in foreign/alien language and also the evidence of PW1 whose statements Exhibits A and B and his oral evidence at trial were contradictory.
PARTICULARS OF ERROR AT LAW
a. The learned trial judge relied heavily on the evidence in chief of PW1 and did not put into consideration the contradictory evidence of PW1 during cross examination.
b. The knife was brought by the deceased and it was the deceased that attacked the accused first.
c. Exhibit J is a document written in a language foreign and alien to Court.
GROUND TWO
The Learned trial judge was biased which led to miscarriage of justice when he stated thus at page 9, 2nd paragraph of his judgment: “The deceased was stabbed to death with a knife. It then becomes necessary to find out how that knife that was used in stabbing the deceased came to the scene. The accused in his statement EXH G stated that the deceased came with the knife and that after giving him a head butt he brought out the knife and stabbed him. In other words, when the deceased was leaving their (sic) house to go and confront the accused person at the beer parlour, he was prepared and took a knife with him. He used the knife on the accused person first. That was when the accused realized he was in grave danger. Fortunately for him, he recovers the knife when it fell off. Unfortunately, rather than run away with the knife as every person in his right senses would do, he took advantage of the deceased who was still lying on the ground and gave him multiple stabs which led to his death”.
PARTICULARS OF ERROR
a. There was no doubt that the deceased brought the knife with him and had the intention of causing harm to the accused.
b. There is bias on the part of the learned trial Judge in concluding and suggesting that the accused did not act as a person in his right senses when his life was at stake.
c. There was evidence of miscarriage of justice by the learned trial judge sentencing the accused to death for murder.
GROUND THREE
The learned trial judge erred in law which led to miscarriage of justice by stating at page 11, 4th paragraph thus:
“He stabbed the deceased with a knife. The appearance of the knife at the scene is however strange. The accused was not shown to have gone to the beer parlour with a knife. It is then likely that the deceased could have been there with a knife. Was the accused acting in self – defence when, after having been wounded by the deceased, he picked up the knife which had fallen down and stabbed the deceased? I do not think so. He was rather on a revenge mission.”
PARTICULARS OF ERROR
a. The learned trial judge erred in law by denying the accused the defence of self – defence.
b. The trial judge was wrong to have ruled out the defence of self defence without any challenge to the defence.
c. The learned trial judge failed to put into consideration the heat of the moment and that the accused did not leave the scene to later come back and stab the deceased.
d. The law is not based on speculations or assumptions.
e. The learned trial judge was biased which led to miscarriage of justice.
GROUND FOUR
The learned trial judge erred in law by delivering judgment 23 months (one year, 11 months) after adoption of final written addresses without ordering for re adoption of the said final argument.
PARTICULARS OF ERROR
a. By an order of Court dated 4th February, 2014, the learned trial judge made an order for final written addresses on the above charge.
b. On 31st day of March, 2015, one year after written addresses were ordered and served, the said final written addresses were adopted by counsel and adjourned for judgment.
c. Judgment was delivered on 7th Day of February, 2017 without the Court ordering for a re ? adoption of final written addresses by counsel.
d. Counsel on 7th February, 2017 did not re-adopt their written addresses.
GROUND FIVE
The judgment of the Court is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
The appellant’s brief of argument was filed on 10/7/17. The respondent’s brief was filed on 19/3/2018 and deemed properly filed on 21/3/2018. The appellant’s brief was settled by C.C Echetebu. He formulated the following three issues for determination:
1. Whether the appellant’s constitutional rights were infringed by the trial Court delivering judgment, 23 months after adopting the final written addresses/arguments of counsel thereby leading to miscarriage of justice/failure of justice.
2. Whether there was miscarriage of justice by the trial Court sentencing the appellant to death not withstanding that there was clear evidence that the appellant acted in self -defence.
3. Whether there was bias on the part of the trial Court thereby arriving at a perverse decision/judgment.
The respondent’s brief was settled by Chief M.E Eze, the Attorney – General of Enugu State. He formulated the following two issues for determination:
(1) Whether the judgment is a nullity as the judgment was delivered outside the statutory period of 90 days after the conclusion of evidence and final addresses.
(2) Whether there was miscarriage of justice and or bias by the trial Court by sentencing the appellant to death notwithstanding his claim of self defence.
I have considered the grounds of appeal and the issues formulated by counsel for determination. The following in my view are the issues thrown up for the determination of this appeal;
1. Whether the delivery of judgment, 23 months after adoption of the final written addresses/arguments of counsel occasioned a miscarriage of justice.
2. Whether the learned trial judge was right in sentencing the appellant to death having rejected his defence of self -defence.
On issue 1, the appellant’s counsel submitted that failure of the trial Court to deliver its judgment within the 90 days stipulated by Section 258 (1) of the Constitution is a violation of the provisions of the Constitution and failure of justice which has rendered the judgment null, void and of no effect. He further submitted that a delay of three years before the delivery of judgment after conclusion of trial is an infringement of the appellant’s fundamental right and a miscarriage of justice, the appellant having been incarcerated for a period of twelve (12) years. He referred to IFEZUE V. LIVINUS MBADUGHA & ANOR (1984) ALL NLR (256). AGIP V. AGIP PETROL (2010) 42 NSCQR 167. Counsel submitted that by Section 36 of the Constitution, every citizen is entitled to the right of fair hearing within a reasonable time which means a period of time which does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to the reasonable person to have been done.
He referred to EGBO V. AGBARA (1997) 1 NWLR (PT. 481) 293 AT 314 (A – C). He argued that the delay in the delivery of the judgment adversely affected the interest of the appellant and the justice of the case as there is no doubt that the trial judge had forgotten the demeanour of the witnesses during trial which has led to a perverse justice in the sense that some of his findings were speculative. He referred to OGWUEGBU V. AGOMUO & ORS (1999) 7 NWLR (PT. 609) 144. OGUNDELE V. FASU (1999) 12 NWLR (PT. 632) 662. SEMBE V. PITTI (2016) LPELR 40822 (CA).
In his response, the learned Attorney – General of Enugu State for the respondent submitted that the requirements for the invocation of the consequence of non – compliance with the provisions of Section 294 of the Constitution have not been established by the appellant. He further submitted that the bulk of evidence led at the trial Court being documentary evidence corroborated by the oral testimonies of witnesses, the question of forming ‘impressions of the witnesses’ do not arise as a perception of what transpired in Court can hardly be affected by the lapse of time before delivery of judgment in this case. He referred to WALTER V SKYLL NIG. LTD. (2001) 3 NWLR (PT. 701) 438. Counsel submitted that the submission of the appellant’s counsel that there is no doubt that the trial judge had forgotten the demeanour of witnesses during trial and which has resulted in a perverse judgment is speculative and a mere presumption devoid of any proof.
He further submitted that the burden is on the appellant to show that there was indeed a miscarriage of justice as a result of the effluxion of time by pointing to facts which show that the trial Court did not properly remember, analyze or perceive the evidence led which the appellant failed to do. He referred to LAWAL V. QUADRI (2004) 6 NWLR (PT. 868) 1, EGWU V. EGWU (1995) 5 NWLR (PT. 396) 493. He argued that there was no basis for the insinuation that the delay in the delivery of judgment has infringed on the appellant’s constitutional right of fair hearing as right of fair hearing is not breached where the Court fails to make a pronouncement on the submissions made in Court and nor where there is merely a delay in delivery of judgment. He referred to LAWAL V. QUADRI (SUPRA). He finally submitted that the important requirement for the invocation of the consequence of failure to deliver judgment within 90 days of adoption of final addresses has not been proved by the appellant to move the Court to hold that the trial Court has infringed on Section 294 of the Constitution. He urged the Court to resolve the issue in favour of the respondent.
RESOLUTION:
Section 294(1), (5) and (6) of the Constitution provide that:
(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof?.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of Subsection (1) of this section, the person presiding at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.
In the instant case, parties are ad idem that the judgment being appealed against was delivered 36 months after the conclusion of the evidence and more than 23 months after the adoption of final addresses. There is therefore no controversy about non – compliance with the provisions of Section 294(1) of the Constitution. It is settled by a plethora of authorities that non – compliance with the provisions of Section 294(1) of the Constitution does not automatically lead to the judgment being set aside or declared a nullity since Section 294(5) stipulates the condition that must be satisfied before any judgment delivered outside the 90 days can be set aside or declared a nullity. It is clear from the provision of Section 294 (5) of the Constitution that the condition precedent to setting aside a judgment delivered after the expiration of 90 days of adoption of final addresses by the trial Court is that the delay has occasioned a miscarriage of justice. See AKOMA & ANOR V. OSENWOKWU & ORS (2014) LPELR 22885. In the determination of whether or not delay in delivery of judgment has occasioned a miscarriage of justice, the appellate Court must be guided by the following:
(1) The burden is on the party complaining to satisfy the Court that the non – compliance with Section 294(1) of the Constitution has occasioned a miscarriage of justice.
(2) The emphasis is not the length of the delay per se but the effect it has had on the memory of the trial judge.
(3) It must be shown that the trial judge failed to take a proper advantage of having seen or heard the witnesses testify or that he has lost his impression of the witnesses and the trial due to inordinate delay.
(4) That the delay has affected the trial judge’s perception, appreciation and evaluation of the evidence and the issues for determination.
(5) The party complaining must identify the specific findings or facts or evaluation which is faulty or affected as a result of the delay.
See AKPAN V. UMOH (1999) LPELR 375 (SC) AT 15 (A-C). EGBO V. AGBARA & ORS. (1997) LPELR 1036 (SC) AT 31 (D – F), AKOMA & ANOR. V. OSENWOKWU (SUPRA). OGUNDELE V. FASU (1999) LPELR 2329 (SC). ATUNGWU & ANOR. V. OCHEKWU (2013) LPELR -20935 (SC).
The appellant’s counsel submitted that there is no doubt that the learned trial judge had lost or forgotten the demeanour of witnesses and this led to some speculative findings and a perverse judgment. However, counsel failed to identify or point out the specific findings which are speculative. Counsel also failed to show how the delay in the delivery of judgment has affected the perception, appreciation and evaluation of the evidence by the trial judge. As submitted by the respondent’s counsel, the most important piece of evidence which form the basis of the trial Court’s decision was the statement of the appellant (Exhibit G) where he described vividly what transpired between him and the deceased. The demeanour of a witness plays no role in the ascription of probative value to documentary evidence. A document speaks for itself. See WALTER V. SKYLL NIG. LTD (SUPRA). The law is settled that it is not enough to emphasize the fact that there is an inordinate delay in the delivery of judgment and that the party complaining has suffered a miscarriage of justice, the party complaining must show or demonstrate to the satisfaction of the appellate Court how the perception, appreciation and evaluation of the evidence by the trial Court was affected which the appellant failed to do. The appellant?s counsel merely emphasized the length of delay. It is my view that the appellant has failed to show that he suffered a miscarriage of justice as a result of the delay.
Having strictly applied the law, I must register my strong disapproval of the delay in the trial of the appellant and delivery of the judgment in this case. I have perused the record of proceedings of the trial Court and the judgment.
I cannot find any reason for the delay in the trial and delivery of the judgment in this case. It seems the learned trial judge is oblivious of the provisions of Section 294(6) of the Constitution or does not appreciate the grave consequences of failure to comply with those provisions of the Constitution. The delay in the trial and delivery of judgment in this case which is a criminal case is totally inexcusable, embarrassing and unacceptable. In my view, everyone involved in the case, the Court, the prosecution and the defence recklessly abandoned their duty to justice and the accused person who had a murder charge hanging over his neck and had to deal with all the daily psychological trauma and torture of the uncertainty of his fate. Everyone involved in the administration of justice has a solemn duty not only to ensure that justice is done but also that it is done within a reasonable time. Not only is the accused entitled to know his fate within a reasonable time, the victim of the alleged crime is also entitled to justice. The victim’s family is also entitled to justice by giving them an early closure and not subjected them to an endless wait with all its attendant psychological trauma.
An inordinate delay in a criminal trial may or may not have fatal legal consequence but it is certainly an unfair practice which must no longer be tolerated. Issue 1 is resolved against the appellant.
On Issue 2, appellant’s counsel referred to the finding of the Court below that the appellant should have run away when the knife which the deceased used to stab him fell from the deceased’s hand rather than taking the knife and stabbing the deceased multiple times. He submitted that from the pronouncement of the Court, it is clear that the deceased took the knife with him when he was going to the appellant and that he had the intention of causing him harm and did cause harm to the appellant. He argued that the defence of self – defence ought to avail the appellant because he had the fear that his life was in danger and reacted but the Court below failed to consider the fact that the appellant acted in the heat of the moment and in the process of defending himself. He referred to SILAS SULE V. THE STATE (2009) 4 NCC 456 AT 459. Counsel further submitted that the Court below was biased against the appellant as the Court shut its eyes to the obvious fact that the appellant acted in self defence. He urged the Court to allow the appeal.
In his response, the respondent?s counsel submitted that none of the ingredients of the defence of self-defence as enumerated in OMOREGIE V. STATE (2008) 18 NWLR (PT. 1119) 464 was established by the appellant. He further submitted that from the appellant?s own statement, it is obvious that the appellant had the alternative of running away when the knife fell off the hands of the deceased and the deceased was still lying on the ground harmless and helpless but the appellant rather than taking to his heels decided to pick up the knife and gave the appellant several stabs in revenge to a stab which he claimed the deceased gave him. He argued that the appellant did not stab the deceased in self-defence as the apprehension of death from the assailant had passed. He argued that the force the appellant used to stab the deceased who the appellant said stabbed him once was not only a revenge but also disproportionate with the attack by the deceased, it is therefore clear that the appellant was determined to kill the deceased who was at the time harmless and helpless.
He referred to EDOKO V STATE (2015) 9 NWLR (PT. 1465)454. He submitted that the appellant woefully failed to show that his life was in danger at the time he eventually stabbed and killed the deceased and that the only way he could escape death or grievous bodily harm to himself was to kill deceased when he had the opportunity to run away rather than kill the deceased. He urged the Court to hold that the defence of self defence will not exonerate the appellant.
RESOLUTION:
Section 270 of the Criminal Code Law, Cap 30, Volume 11, Laws of Enugu State of Nigeria, 2004 provides that:
“Any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter, according to the circumstances of the case.”
Section 271 of the Law defines murder as follows:
“Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say-
(a) If the offender intends to cause the death of the person killed, or that of some other person;
(b) If the offender intends to do to the person killed or to some other person some grievous harm;
(c) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
(d) If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
(e) If death is caused by wilfully stopping the breath of any person for either of such purpose; is guilty of murder.
In the second case, it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the third case it is immaterial that the offender did not intend to hurt any person.
In the three last cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.”
It is settled by a long line of cases that for the prosecution to secure a conviction of an accused charged with an offence of murder under the above provisions of the criminal code, the prosecution must prove the following ingredients of murder:
(i) That the deceased died;
(ii) That the death of the deceased was caused or resulted from an act of the accused; and
(iii) That the act of the accused was intentional with the knowledge that death or bodily harm was probable and not a likely consequence.
See SHAIBU V STATE (2017)16 NWLR (PT. 1592) 396 AT 432 (F – H). DARE JIMOH V THE STATE (2014) LPELR 22464 (SC). UDOR V THE STATE (2014) LPELR 23064 (SC) AT 27 (A – C). OGEDENGBE V THE STATE (2014) LPELR 23065 (SC) AT 50 (A – C). ALAO V. THE STATE (2015) LPELR 24686 (SC) AT 24 – 25 (F – D).
The content of Exhibit G on which the Court relied to convict the appellant reads:
“I know the deceased Oli Michael, he was my friend. There was no previous misunderstanding between me and the deceased. On 27/04/05 at about 7pm, I was in the beer parlour belonging to Mr. Christian Igwe (Alias Aguntie) drinking beer with Ugbo Melitus and Cajethun before Cajethen and Melitus came, I was taking local gin (Kai kai) with the said aequatic.(sic) Suddenly the deceased arrived the beer parlour at about 8pm greeted us and requested me to follow him outside. Then I followed the deceased outside to receive a message from the deceased as he requested. The deceased took me to a corner where there is no light and held me by the neck. The deceased question why I should beat his sister. I appealed to the deceased to forgive me for beating his sister and I accepted to treat the sister of the deceased if she was injured. The deceased flared up and threatened that he will deal with me at the very spot before I could offer further explanation, the deceased gave me head butt by the side of my cheek and blood was coming from the side of my eye. I immediately had a swollen face. The deceased quickly brought a knife and I held the hand of the deceased. The deceased gave me knife cut on my head when I was struggling with the deceased, we fell inside gutter and the knife fell off his hand. I then picked the knife, stabbed the deceased on the head, throat and at the back. The deceased shouted and fell down and I took to my heel when I sighted somebody coming. I heard that the deceased has died following the knife injury.”
I have carefully perused the entire evidence led, the finding of the Court below and submissions of counsel to both parties in this appeal. It is clear that both parties agreed that the three ingredients of the offence of murder were proved beyond reasonable doubt as required by law as the Court below found that Michael Oli died, that his death was caused by the act of the appellant stabbing him on the head, neck and back and that the appellant intentionally stabbed the deceased with the intention to cause him bodily harm knowing that death was probable consequence of his action. The Court below was right in relying on Exhibit G which is the statement of the accused made to the police on 9/5/2005 wherein the appellant narrated the unfortunate event that led to the death of the deceased. He admitted stabbing the deceased in the head, the neck and at the back and that the deceased died as a result of the stabbing.
The Court below considered the defence of self- defence taking into consideration the evidence on record and held as follows:
‘I accept the version as contained in EXH G. which was made freely by the accused person at the time the event was fresh in his memory.
At that time, he had not had sufficient time to do the re-construction which is the vice that affected his oral testimony in Court. It was his act that caused the death of the deceased.
The accused gave evidence that he was drinking in a beer parlour when the deceased who came back from the urban area came to call him. He had taken some alcoholic drinks but not enough to make him lose his senses.
He stabbed the deceased with a knife. The appearance of the knife at the scene is however strange. The accused was not shown to have gone to the beer parlour with a knife. It is then likely that the deceased could have been there with a knife. Was the accused acting in self defence when, after having wounded the deceased, he picked up the knife which had fallen down and stabbed the deceased? I do not think so. He was rather on a revenge mission. He was the last person to handle the knife and instead of trying to escape from the scene, decided to fatally wound the deceased. He bled to death within a matter of some minutes.
The accused person has no defence to the charge. He is therefore found guilty by this Court.
Self defence as a defence to a charge of murder is provided for by Sections 49 – 51 of the Criminal Code Law of Enugu State, Cap 30, VOLUME 11, Laws of Enugu State, 2004. They are reproduced below:
49. (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:
Provided that the force used is not intended and is not such as is likely to cause death or grievous harm.
(1) 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.
50. 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 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; the person using such force declined further conflict and quitted it or retreated from it as far as was practicable.
51. In any case in which it is lawful for any person to use force in any degree for the purpose of defending himself against assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first ‘mentioned person.’
The above provisions of the Criminal Code have been interpreted in a plethora of cases. In KWAGHSHIR & ANOR V THE STATE (1995) LPELR 1726 (SC) AT 25 (B – D), the Supreme Court stated the conditions that must be established to justify a plea of self defence as follows:
“Four cardinal conditions must have existed before the taking of the life of a person is justified on the plea of self defence. Firstly, the accused must be free from fault in bringing about the encounter; secondly, 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; thirdly, there must be no safe or reasonable mode of escape by retreat; and fourthly, there must have been a necessity for taking life.
See also OMOREGIE V THE STATE (2008) LPELR 2658 (SC) 24-25 (G-D ), JOHN V. STATE (2017) 16 NWLR (PT. 1591) 304 AT 342 {C-F), JOHN V. STATE (2017) 16 NWLR (PT. 1591) 304 AT 342 (C-F). In AFOSI V.THE STATE (2013) LPELR-20751(SC) AT 36-38(F-C) the Supreme Court held as follows:
“It is the law that the defence of self defence is open and available only to an accused person who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm. It is his entitlement to use and apply such force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from the danger, and this he is entitled to do even though such force may cause death or grievous harm. However, if the act said to be a self defence is committed after all danger from the assailant is past and by way of revenge, then the defence will not be available to such an accused person. See; R. v. Dummeni (1955) 15 WACA 75.
Similarly, the position of the law is that where an accused person has not expressly raised issue of self defence this issue could only be considered if from the available evidence the defence avails him so that the Court will advert to: See; Ehot v. State (1993) 4 NWLR (Pt. 290) 644; Frank Uwagboe v. The State (2008) 7 SCM 152 at 162-163.
The plea of self defence may afford a defence where the party raising it uses force, into merely to counter an actual attack, but mainly to ward off or prevent an attack which he has honestly and reasonably anticipated.
In that case, the anticipated attack must be imminent. See R v. Chisam (1963) 47 Cr App. R. 130 at 134, Iheanyighiehi Apugo v. The State (2006) 12 SCM (Pt.1) 148 at 168.
Generally, raising defence of self defence by an accused person charged with murder presupposes that the Appellant committed the offence. The reason is that in the administration of Criminal justice, self defence admits of the offence by the accused. All the accused person says is that he committed the offence in self defence. In other words, he says he had no choice in the matter than to commit the offence, the reason being that if he did not do that, the deceased could have killed him.
See; Silas Sule v. The State (2009) 8 SCM 177.
Applying the above principles of law on the plea of self ?Z defence in this case, there is no doubt that the deceased was the aggressor. He was the one who went to meet the appellant at the beer parlour and invited him out. He accused him of beating his sister. In spite of the explanation and apology of the appellant, the deceased decided to teach the appellant a lesson. He first gave him a head butt and then brought out a knife and stabbed him.
That evidence was not challenged in any way. The appellant further stated that a fight ensured, both of them fell down and the knife fell down from the hands of the deceased which he took and stabbed the accused on the head, the neck and the back. The prosecution?s contention is that the act of the appellant was not an act of self- defence but an act of revenge. The appellant?s counsel contended that the appellant was fighting for his life and that he acted in the heat of the moment. I agree with the finding of the Court below that the deceased having been on the ground and the knife having fallen into a gutter, the appellant had an opportunity to escape. However, while it may be said that he was no longer in serious danger, it is difficult to conclude that he was no longer faced with any danger to his life or further grievous bodily harm. The appellant could have tried to run for his life but instead of doing that he decided to stay and stabbed the deceased. The test of whether the accused has reasonable cause to believe that his life is in danger and whether there was avenue to escape and not do what he did is objective and not subjective.
It does not depend on the caprices or temperament of an individual. In ADEYEYE V THE STATE (2013) LPELR-19913 AT 25 , the Supreme Court held that:
The legal right to kill in self-defence cannot be made dependant upon the temperament or phlegmatic nature of the individual killer. For those who claim to have exercised this legal right to kill, the law insists upon one standard. It is the standard of a reasonable man. See again the case of Udofia v. The State (supra). For the defence to be available and to exclude criminal responsibility the accused must face imminent apprehension of death or grievous harm from the victim.
Also in CHUKWU V THE STATE (2012) LPELR 9829 (SC) AT 9 (E – G) the Supreme Court held that for Self defence to succeed, it must be proved to be a response to a attack and that it was the attacker or assailant that was hit back.
On the facts and circumstances disclosed by the evidence on record, the Court below rightly rejected the defence of self – defence. However, the Court below ought to have considered other defences which are available to the appellant.
The law is settled that it is the duty of the Courts including the appellate Courts to consider all possible defences which may be available to an accused and disclosed by the evidence on record whether or not the defences are specifically raised. In LAOYE V THE STATE (1995) LPELR 1754 (SC) AT 15 (A – B), the Supreme Court held that:
It is trite law that it is the duty of the Court to consider all possible defences open to an accused person on the evidence before the Court or even from his statements to the Police, notwithstanding that such defences were not specifically raised by the accused person or his counsel. It is equally trite that such possible defences ought to be fully considered no matter how stupid they may seem.
See also ABEGUNRIN V. THE STATE (2009) LPELR 8282 (CA) AT 19 (F – G). OSUAGWU V STATE (2016) LPELR 40836 (SC) AT 35 (A – C). AKWUOBI V. THE STATE (2016) LPELR 41389 (SC) AT 23 (B – C).
In the instant case, the appellant’s counsel made submissions on defences of self – defence and provocation in his final address at the Court below.
The Court below considered the defence of self – defence but failed to consider the defence of provocation. Where a trial Court fails to consider a defence that is implicit in the evidence led in a criminal case, the appellate Court has the power and indeed a duty to consider such defence.
The defence of provocation is available to an accused charged with murder by virtue of Sections 46 and 47 of the Criminal Code Law of Enugu State which provide that:
46. (1) 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.
(2) 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.
(3) A lawful act is not provocation to any person for an assault.
(4) An act which a person does in consequence of excitement given by another person in order to induce him to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault. An arrest which is unlawful is not necessarily provocation of person who knows of illegality.
47. 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 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.
It is clear from the provisions of the Criminal Code that for the defence of provocation to succeed, the following facts must be disclosed by the evidence:
(1) The act of provocation done by the deceased.
(2) Reasonable loss of self control by the appellant.
(3) The retaliatory act proportionate to the act of provocation.
See OLUDIRAN V THE STATE (1986) LPELR 2250 (SC) AT 15 – 16 (G – E). And the following conditions must be satisfied.
(1) That the act of the appellant which caused the death of the deceased was done in the heat of passion.
(2) That the act of the appellant was precipitated by grave and sudden provocative act of the deceased.
(3) That the appellant’s action happened before there is time for passion to cool.
STEPHEN V THE STATE (1986) LPELR 3117 (SC) AT 15 (B – D), EDOKO V THE STATE (2015) LPELR 24402 (SC) AT 55 – 60 (D – A). NJOKWU V THE STATE (2013) LPELR 19890 (SC) AT 25 (C – G).
In the instant case, the evidence clearly established the fact that the deceased was the one who started the fatal fight. He was the one who first stabbed the appellant. The evidence clearly established the fact that the appellant picked up the knife immediately it fell from the hands of the deceased and stabbed him with the same knife. The stabbing of the appellant by the deceased after giving him head butt is clearly an act of provocation. There is no doubt in my mind that the appellant acted in the heat of the moment and before there was passion to cool down. Can the stabbing of the deceased be said to be disproportionate to the act of the provocation by the deceased. My answer is no. The stab to the head of the appellant could also have killed him just as the stab to the head, neck and back of the deceased killed him. In OGBODU V THE STATE (1987) LPELR 2282 (SC) AT 22 – 23 (C & A), the Supreme Court stated the meaning of provocation as follows:
‘Provocation has been appropriately defined as some act or series of acts, done by the dead man to the accused person which would cause, in any reasonable person, a sudden temporary loss of self control rendering the accused so subject to passion as to make him or her for the moment not master of his mind.In considering whether provocation has not been made out, you must consider the retaliation in provocation, that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given. Fists might be answered with fists but not with deadly weapon and that is a factor you have to bear in mind when you are considering the question of provocation.
See also KASSIM V STATE (2018) NWLR (PT. 1608) 20 AT 57 – 58 (G – H). In LAWAN V THE STATE (2014) LPELR 23647 (CA), this Court on similar facts as in this case considered the defence of provocation which was not considered at all by the Court below after rejecting the defence of self ? defence raised by the appellant. The facts which formed the basis of the decision of this Court as contained in the statement of the accused and stated on pages 34-36 of the report are as follows:
I could remember on 15/6/05 at about 20:30 hrs, while I was at my business place at our area, one Ashiru my friend came and met one Nura and Ali who were sitting by the mosque. Before that day during sallah celebration I ride (sic) a horse so he came and met me and was telling me that, they have went to use (sic) me through homosexual and they have given me a horse ride. I became annoyed but did not say or uttered a word. But after Ashiru continued with that statement anytime he came to my place. I finally went and informed my mother, and my mother warned me to get out of his way and that is what I did. But on 15/6/05 at about 20:30 hrs, Ashiru came and met me and started abusing me as he used to do to the extent that I grew annoyed and he said either I or him we should set a place to fight. Then I asked him where did he want us to go and fight. He said Kofa Na Isa. I followed him and on our way, he picked a wood and hit me on my stomach from there I fell down and woke up and started fighting. Ashiru then brought out a knife trying to stab me with it, which on the struggle to collect the knife…my hand after seizing the knife with annoyance I don’t know when I Stabbed him with knife on his back.
IKYEGH, JCA in his lead judgment considered the facts and the state of the law. He held as follows at PAGES 38 – 41(G -D):
‘Going by Exhibit A, the deceased initiated the encounter thus satisfying the first ingredient (supra) that the appellant was free from fault in bringing about the encounter.
The appellant stated in Exhibit A that he overpowered the deceased and received the knife from the deceased in the course of which he was injured in the hand. Having disarmed the deceased, the appellant no longer faced impending danger or peril to his life or grievous bodily harm, either real or apparent, to create honest belief of an existing necessity to save himself by killing the deceased, which established that the sound ingredient of the defence was not available to the appellant.
That the appellant was able to escape after stabbing the deceased who had not blocked his escape route prior to the stabbing showed the appellant had the opportunity to escape or retreat after he disarmed the deceased; however, the appellant stayed put to inflict the fatal knife wound on the then unarmed deceased before making good his flight from the scene, which establish that the third ingredient of the defence (supra) was not available to the appellant.
Further, the appellant was not confronted with the compelling and inevitable urge or need to kill the deceased in order to save his life as he was armed, while the deceased was unarmed at the material time, therefore by stabbing the deceased with the knife in the circumstances of the case could not have been in self defence. The fourth ingredient of the defence (supra) was also not available to the appellant, as there was no indication the appellant was acting in defence of himself from unlawful violence at the time he stabbed the defenceless deceased.
Accordingly, Exhibit A does not disclose all the ingredients of a successful plea of self defence under Section 59, 60 (a), 62, 63 and 65 (a) of the Penal Code and the Court below could not have held the defence available to the appellant on the strength of Exhibit A, see Afosi v State (supra) following the case of Liya v State (1998) 2 NWLR (pt. 538) 397, Kwaghshir v State (1995) 3 NWLR (pt. 386) 651, Nwambe v State (1995) 3 NWLR (pt. 384) 385, Omoregie v State (2008) 18 NWLR (pt. 1119) 464.
Be that as it may, the totality of Exhibit A, also indicated that the appellant and the deceased were engaged in a fight in the course of which the deceased hit the appellant with a piece of wood in the stomach which brought down the appellant; the deceased removed a knife and attempted to stab the appellant who over ? powered the deceased and seized the knife from the deceased and in the heat of passion stabbed the deceased instantly or on the spot before there was time for passion to cool which led to the subsequent death of the deceased on the same day, which, in my considered opinion, brought the offence under Section 222 (1) of the Penal Code dealing with provocation and punishable as culpable homicide not punishable with death under Section 224 of the same code.
I would allow the appeal in part on the ground of provocation and set aside the conviction and sentence of the appellant for culpable homicide punishable with death and substitute therefore conviction and sentence of the appellant for culpable homicide not punishable with death under Section 224 of the Penal Code.
Accordingly, the appellant who on record is a young man with prospect of positive change in future is sentenced to 15 years (fifteen years) imprisonment on account of the gravity of the offence which led to the untimely loss of life of a human being, the deceased.
I completely agree with sound judgment of his Lordship and hereby apply same to this case. The Court below clearly erred in law by failing to consider the defence of provocation which is clearly available to the accused by the evidence led. The law is settled that the onus is always on the prosecution of disprove the accused person’s plea of provocation which onus was not discharged by the prosecution in the instant case.
I hereby allow the appeal in part. The defence of provocation is upheld in favour of the appellant. The verdict of guilty for murder, the conviction and sentence passed on him are hereby set aside. In its place, I hereby enter a verdict of guilty for manslaughter.
The appellant is hereby sentenced to 15 (Fifteen) years imprisonment. The sentence shall start to run from the date on which the appellant was arrested and taken into custody.
TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the judgment prepared by my Lord MISITURA OMODERE BOLAJI-YUSUFF, J.C.A., on this appeal. I am in agreement with the reasons proffered therein, which culminated in the appeal being allowed, in part.
Let me chip in word, with the vexed question of non-compliance by judicial officers, with Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. In Pat Onegbedan Esq., v. Unity Bank Plc (2014) LPELR – 22186 (CA) at pages 25-27 thereof at paragraphs B & A; I had this to say:
‘Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended provides, inter alia:
294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.’
It is constitutionally incumbent on the judex such as the learned trial judge that by virtue of Section 294(1) of the 1999 Constitution, he was obliged to have delivered his opinion/judgment on the case within 90 days (three months) and not later than that after learned counsel proferred and submitted their written addresses to him. His failure to do so, though inexcusable and perhaps condemnable, nevertheless does not translate without more, to a miscarriage of justice suffered by the complainant such as the appellant herein. The appellant who established that the judgment was delivered outside the three months period after final addresses by counsel, stipulated by the 1999 Constitution for the delivery of judgments, in order to have such a judgment set aside, on the ground that it was delivered outside the constitutional limit, is not to stop at the establishment of contravention of the constitutional provision. He must go further and establish that a miscarriage of justice has been caused him by reason of the contravention by the judge. James Ogundele V. Dare Julius Fasu (1999) 9 SCNJ 105; Owoyemi V. Adekoya (2003) 12 SCM 277; Joshua Oto & Ors V. J. M. Adojo & Ors. (2004) All FWLR (pt. 203) 2151 (CA); I believe that the legislative wisdom embedded in Subsection (5) of Section 294 of the 1999 Constitution, is to obviate the injustice that would be caused where an otherwise sound judgment could be over-turned by an appellate Court, on the mere complaint and without more that a judgment was delivered outside the period mandated or prescribed by the Constitution. Hence, the onus is now placed on the complaining appellant, to establish that the delay in delivery of a judgment outside the constitutional limit indeed and in fact caused him a miscarriage of justice.
In the circumstances of this case, the appellant failed to convincingly demonstrate that the non-compliance with Section 294(1) of the 1999 Constitution by the learned trial judge, occasioned a miscarriage of justice to him.
In the instant case, although the appellant failed to demonstrate that the delay in delivering the judgment against him by the learned trial judge, occasioned a miscarriage of justice, I must say that his Lordship at the Court below had no excusable reason to have delayed the delivery of that judgment, which pertained to life and death of the appellant. The delay is undoubtedly, condemnable. It could turn out to be an unwitting invitation to a charge of an act of gross misconduct against a defaulting judicial officer, for which he may be sanctioned. I say no more, this Court, being not the final Court on this matter.
I am in agreement with the lucid reasons advanced by my Lord, in the lead judgment, that the facts and circumstances of this case, squarely demonstrated that although the defence of self- defence was not available to the appellant, he was nevertheless entitled to the defence of provocation. Therefore, I too allow the appeal, in part.
Hence the verdict of guilty of murder handed down on the appellant and the sentence of death decreed on him, by the learned trail judge, are hereby set aside.
The appellant is guilty of manslaughter and consequently sentenced to a term of fifteen (15) years imprisonment, which started to run from the date that the appellant was incarcerated, in respect of this case.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother – MISITURA OMODERE BOLAJI -YUSUFF, JCA.
I agree with her reasoning and conclusion.
I also find the Appellant guilty of manslaughter, and allow the appeal in part.
He is hereby sentenced to a prison term of fifteen years which commences from the date on which the Appellant was arrested and put into custody.
Appearances:
C. C. Echetebu with him, N. M OgeneFor Appellant(s)
Dr. Anayo N. Ede, A.C.L.O with him, U. D. Nebo, S.L.O. both of the Ministry of Justice, Enugu, Enugu StateFor Respondent(s)
