IMO DENIS AKPAN OBOT v. THE STATE (2019)

IMO DENIS AKPAN OBOT v. THE STATE

(2019)LCN/13698(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of July, 2019

CA/C/377C/2017

RATIO

WHERE AN APPELLANT DOES NOT SEEK LEAVE TO BRING A NEW ISSUE
Where there has been no leave sought and obtained by the appellant to argue his new issue and there are no special circumstances disclosed to warrant it being entertained, such a new issue would be incompetent and liable to be struck out by an appellate Court. See SALIU V STATE (2018) 10 NWLR (pt 1627) 251 at 259. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

WHEN THERE ARE CONTRADICTIONS IN THE EVIDENCE OF PARTIES

Finally, on the alleged contradiction in the evidence of pw1 and pw4 as to the time when the incident occurred, the law does not insist that there cannot be contradictions in the evidence of witnesses by a party on any issue in contention. However, the contradictions should not be material in such a way that they cast serious doubt on the case presented as a whole by that party. See IKEMSON V STATE (1989) 3 NWLR (pt 110) 455, STATE V AZEEZ (2008) 14 NWLR (pt 1108) 439, BASSEY V STATE (2012) 12 NWLR (pt 1314) 209 and SANI V STATE (2015) 15 NWLR (pt 1483) 522. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

AN ACCUSED PERSON IS TAKEN TO INTEND THE CONSEQUENCE OF HIS VOLUNTARY ACT

Generally, an accused person is taken to intend the consequences of his voluntary act, when he foresees that it will probably happen, whether he desires it or not. Thus, the law presumes that a man intends the natural and probable consequences of his act. See GARBA V STATE (2000) 6 NWLR (pt 661) 378, KIM V STATE (1992) 4 NWLR (pt 233)17, IGABELE V STATE (2006)6 NWLR (pt 975) 100 and RICHARD V STATE (2018) 18 NWLR (pt 1651) 224 at 239. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

CONFESSION IS THE BEST PROVE OF AN ACCUSATION

Confession always remains the best proof of what the person had done. See NWACHUKWU V STATE (2002) 2 NWLR (pt 751) 336, DOGO V STATE (2013) 10 NWLR (pt 1361) 160 and KAMILA V STATE (2018) 8 NWLR (pt 1621) 252 AT 268.
The first issue is therefore resolved against the appellant. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

JUSTICES

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

IMO DENIS AKPAN OBOT Appellant(s)

AND

THE STATE Respondent(s)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State sitting at Ikot Ekpene, Coram Hon. Justice Stephen E. Okon delivered on 4/11/2013 wherein the appellant was convicted for murder and accordingly sentenced to death by hanging. The appellant being dissatisfied filed this appeal on 15/6/2017 upon four grounds of appeal.

At the hearing of the appeal on 15/5/2019 Chief Paul C. Obi on behalf of the appellant adopted and placed reliance on the appellant?s brief filed on 15/2/2018 but deemed as properly filed on 15/5/2019 in urging this Court to allow the appeal. Learned Attorney General of Akwa Ibom State, Uwemedimo Nwoko adopted and relied on the respondent?s brief also deemed as properly filed on 15/5/2019. He urged this Court to dismiss the appeal in its entirety.

Learned counsel for the appellant distilled three issues for the determination of this appeal as follows:-
?1. Whether the learned trial judge was right in holding that the defence of provocation was not proved and does not avail the accused person because there was no evidence that

the accused person received treatment for injury inflicted on him by the deceased and did not show any scar to the Court while testifying. (Distilled from ground 1).
2. Whether the learned trial judge was right in convicting the accused person and sentencing him to death by hanging based on the insufficient and contradictory evidence of the prosecution witness and when the prosecution had not proved all the essential ingredients of murder beyond reasonable doubt. (Distilled from ground 2).
3. Whether considering the evidence led and the circumstances of this case, the judgment of the learned trial judge is unreasonable, unwanted, and unsupported by evidence (Distilled from ground 3).

Learned counsel for the respondent on his part, formulated two issues for the determination of this appeal thus: –
1. Whether or not the offence of murder was proved against the appellant beyond reasonable doubt.
2. Having regards to the circumstances of the case and the evidence on record, whether the defence of provocation was properly made out by the appellant.
?
A perusal of the above formulations reveals that they are seemingly the same except that

they are couched differently. Both the issues questions the evaluation of evidence by the trial Court. Nonetheless, the two issues formulated by the respondent are concise, precise and quite apposite to the just determination of this appeal. I shall therefore adopt them in determining this appeal. Before dealing with them, however, a re-statement of the factual background of the case, culminating into this appeal would not be out of place here.

On 8/7/2010 at Akpautong Ikot Udo Idem in Essien Udim Local Government Area, Akwa Ibom State, the appellant and the deceased, one Aniefon Patrick Umoh had verbal altercations. These verbal altercations resulted in the appellant using matchet to inflict injuries on the deceased?s shoulders and thereby causing his death on the spot.
?
Proffering argument on the first issue, learned counsel for the appellant contended that throughout the prosecution?s case there was no eye-witness testimony that linked the appellant to the scene of the crime not to talk of linking him with injuries that led to the death of the deceased. Still in contention, learned counsel argued that the post-mortem report, Exhibit D

which was relied to show the magnitude of the injury allegedly inflicted was prepared by a general medical practitioner and not a pathologist as required by Section 55(1) of the Evidence Act.
In further contention, he argued that there is material contradiction between the evidence of pw1 and pw4 as to when the incident took place. While pw1 stated that ?the incident took place at about 8:30pm and at that time it was dark?, pw4 had stated during cross-examination that ?the alleged crime did not take placed in the night?. Thus, it was submitted that the evidence of the prosecution witnesses was insufficient and contradictory and that the prosecution failed to prove all the essential ingredients of murder beyond reasonable doubt. In aid, learned counsel relied on the following cases ?AL-MUSTAPHA V STATE (2013) LPLR ? 20995, YUSUF V STATE (2013) LPELR 22038, RASAKI V THE STATE (2011) LPELR – 4859, ARUM V NWOBODO (2013) 1 LPELR ? 20390, OBOT V STATE (2014) LPELR 23130, IJIOFOR V THE STATE (2001) 122 WRN 1 at 3,

UDOSEN V STATE (2007) 4 NWLR (pt 1023) 125 and hosts of other cases.

On his part, learned counsel for the respondent has alluded to the fact that though the burden of proof rests squarely on the prosecution to proof its allegations beyond reasonable doubt but same can be discharged in either or a combination of the following:-
(a) Direct evidence of an eye witness,
(b) Confessional statement of an accused person which must be free and voluntary, and
(c) By circumstantial evidence.

On the offence of murder, learned counsel submits that the prosecution is under duty to prove the following ingredients beyond reasonable doubt, that is:-
(a) That the deceased had died,
(b) That the death of the deceased resulted from the act of the accused person, and
(c) That the act of the accused person was intentional, with the knowledge that death or grievous harm was its probable consequence.
?
Respecting the first essential ingredient that is the deceased?s death, he referred to the evidence of pw1, 2, 4 and 5 wherein the witnesses were unanimous that the deceased is dead which evidence were neither challenged nor

contradicted. He referred to OKORO V THE STATE (2012) Vol 207 LRCN 108 at 137.

On the second ingredient, that the death of the deceased resulted from act of the appellant, reliance was placed on the evidence of pw1 to the effect that the witness was firm and unshaken even under the fire of cross-examination that ?my brother shouted ?Imo Denis has killed me, when I came out, I saw the accused person with a blood stained matchet. When the accused person saw me, he ran into the bush.?

The evidence of pw1 according to the learned counsel has settled the question on the cause of death of the deceased. Moreso, the medical report, Exhibit D shows clearly that the deceased died of injury inflicted on him by the appellant. He therefore submitted that the evidence on record and the appellant?s admission in his extra-judicial statements, Exhibits A & C point irresistibly that the deceased died as a result of the injury inflicted on him by the appellant as there is no evidence stronger than one?s admission. He referred to OSENI V THE STATE (2012) LPELR ? 7833, IDOWU V STATE

(2007) 1 SC (pt 11) 50, OLAOYE V THE STATE (2018) VOL 282 LRCN 161 at 189 and GABRIEL V STATE (2010) 6 NWLR 9pt 1190) 280.

On the third ingredient, learned counsel relied on the Supreme Court authorities in the cases ofMATTHEW V THE STATE (2018) VOL. 280 LRCN 172 at 192 and AKINLOLU V THE STATE (2016) VOL. 251 LRCN 1 at 37 to submit that a man intends the natural consequences of his act and that the appellant intended to kill and or cause grievous harm to the deceased by stabbing him with a sharp object on a vulnerable part of the body knowing that death could result from his action. He also referred to ALAO V THE STATE (2016) 251 LRCN 166.

On the alleged contradiction as to the time when the incident occurred, learned counsel argued that for a contradiction to be accorded premium, it must be grave and must relate to material facts in evidence. Thus, whether the incident occurred in the night or in the day, the facts remains that the appellant killed the deceased in the bath room as admitted by the appellant in Exhibits A & C. He referred to NAMSOH V THE STATE

(1993) 5 NWLR (pt 244) 642 and EFFIA V. THE STATE (1999) 8 NWLR (pt 613).

It was also contended on the respondent?s behalf that the fact that pw1 is the brother of the deceased does not ipso factor renders his evidence unreliable. The appellant has the onerous task of showing the motive of pw1 other than saying the truth which the appellant has failed to do. Learned counsel referred to ASUQUO V STATE (2016) LPELR ? 40597 and OJO V GHARORO (2006) 10 NWLR (pt 987)173 in urging this Court to discountenance the appellant?s attack on the evidence of pw1. It was also contended by the respondent that the purport of the evidence of pw2 was not to establish the truth of what he was told but that he merely give evidence on what he saw as regards the incident and to that extent, his evidence cannot be hearsay. He referred to AROGUNDADE V THE STATE (2009) LPELR ? 559 and SUBRAMANIAM V PUBLIC PROSECUTION (1956) 1 WLR 765 at 969 in submitting that the evidence of pw2 was more on what he saw and not what he was told as erroneously argued by the appellant.

On the competence of pw5 to conduct post-mortem examination on the deceased, learned counsel argued that being a fresh issue, same cannot competently be raised on appeal for the first time. Thus, the appellant is precluded from setting a fresh issue on appeal without seeking the leave of court. He referred to GTB V UMEH (2017) LPELR ? 42163, EZUKWU V UKACHUKWU (2004) ALL FWLR (pt 224) 2137 and DAHIRU & ANOR V KAMALE (2000) LPELR ? 10322.

In his reply brief, learned counsel for the appellant relied on the evidence extracted from pw5 in the course of cross-examination which shows that pw5 is a general practitioner and not a pathologist as the basis of canvassing the issue of his competence to perform the autopsy.
?
The law would appear to be settled that in murder cases, the burden lies heavily on the prosecution to prove the three elements of the offence beyond reasonable doubt that the deceased died, that the death of the deceased was caused by the accused and that the accused intended to either kill or cause the deceased grievous bodily harm. The three elements must co-exist at the time. If not,

the accused is entitled to be acquitted of the offence. See ASUQUO V THE STATE also reported in (2016) 14 NWLR (pt 1532) 309.

From the totality of the evidence before the trial Court, there is consensus ad idem as regards the first element, that the deceased one Aniefon Patrick Umoh is dead. See evidence of pws 1 ? 5 and DW1 as well as Exhibits A, C, D, E ? E6, F ? F6. The bone of contention was therefore, whether it was the appellant that caused the death of the deceased.
?
Learned counsel for the respondent has submitted rightly that the guilt of the accused could be proved either by direct evidence or circumstantial evidence that creates no room for doubt or speculation. The direct evidence required to prove the cause of death must be such as would connect the death of the deceased person with the act of the accused. This may include the evidence of the medical officer who examined or performed post-mortem examination on the death and certifies that the injuries inflicted on the deceased by the accused are those that caused the death of the deceased, particularly if the deceased did not die in the course of the act of his

assailant.

In the instant case, the prosecution led credible evidence to show that the appellant inflicted matchet injury on the deceased?s shoulder as a result of which the deceased died on the spot. In his evidence, at page 47 of the record of appeal pw1 said:-
?I witnessed the killing of my brother by the accused. My brother shouted ?Imo Denis has killed me?, when I came out, I saw the accused with blood detained matchet. When the accused saw me, he ran into the bush. My brother shouted at the back yard.?
When led in chief at page 46, pw1 was very emphatic that:-
?When the accused saw me he ran into bush, while the body of my brother was on ground. He was in his pool of blood. He had a matchet cut on his neck.?
On his part, pw5 at pages 58-59 of the record of appeal said:-
?I remember I carried out post-mortem examination on the body of Aniefon Patrick Umoh. I found that the body was embalmed, non-decomposing corpse of a young man. He had a very deep laceration across the left shoulder to the connection between the neck and the shoulder. It was about 25cm long. That is the

laceration. It was deep enough to expose the chambers of the chest. I also saw massive blood clot inside the wound.?

In his extra-judicial statement, Exhibits A & C, appellant did not mince any word in admitting using matchet to cut the deceased on the neck. In Exhibit A, the appellant stated inter alia that:-
?I ran home later I went back to Aniefon with a stick to go and revenge, but on getting there I saw a matchet in front of his house while he Aniefon was taking bath behind, I dropped the stick and picked the matchet, I wanted to matchet him on the hand but he dogged the matchet entered his neck he fell down and died.?

The evidence of pw1 and pw5 as well as Exhibit D couple with the appellant?s admission, that his act point to one direction and that is, he is the one responsible for the death of Aniefon Patrick Umoh. Thus, the lower Court rightly found that the appellant was sufficiently linked with the death of Aniefon Patrick Umoh at page 68 of the record of appeal that:-
?In this case, there is no doubt that the injury that led to the death of Aniefon Patrick Umoh was inflicted by the

accused. That much has been admitted by the accused.?

In the circumstance, I unhesitatingly endorse the conclusion of the trial Court that the prosecution proved the second element of the offence charged which means that the deceased died as result of the act of the accused person, to the exclusion of all other possibilities.

Learned counsel for the appellant has however faulted the evidence of pw1 alleging that being a blood relation to the deceased, the trial Court ought to have treated it with caution as pw1 was not an independent witness. Not being an independent witness, the appellant is implying that pw1 is a tainted witness. The word ?tainted?, in the con of our law of evidence, is bereft of its, ordinary dictionary meaning of impurity, undesirability, decay, infection and what have you. On the contrary, it has and carried the element of bias for the particular reason of nearness or closeness in relationship and a deliberate and instigated slant qua unsolicited and unfavour to a particular person. See OJO V GHARORO (supra).
?In the instant case, pw1 was not a tainted witness just because he was a

brother to the deceased, Aniefon Patrick Umoh. The appellant must show that pw1 had an interest to serve by giving the evidence beyond speaking the truth which was not the case here.

On the appellant?s contention that the evidence of pw2 and pw4 are hearsay, the position of the law is firmly settled on that point. Hearsay evidence is all evidence which does not derive its value from the credit given to the witness himself, but which rests also in part, on the veracity and competence of some other person. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who himself not called to testify. Thus, when a third party relates a story to another as proof of contents of a statement, such story is hearsay. See JUDICIAL SERVICE COMMITTEE V OMO (1990) 6 NWLR (pt 157) 407 UTTEH V STATE (1992) 2 NWLR (pt 223) 257 and JOLAYEMI V STATE (pt 887) 322.
Hearsay evidence or hearsay rule has been succinctly formulated by Professor Cross thus:-
?Express or implied assertions of persons other than the witness who is testifying and assertions in documents

produced to the Court when no witness is testifying are inadmissible as evidence of that which is asserted.? See Cross ? Evidence, 4th edition, page 387.
Flowing from the above, evidence of a statement made to a person called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it proposed to establish by evidence, not the truth of the statement but the fact that it was made.

The evidence of pw2 at page 49 of the record of appeal is that ?
?I was present when the police visited the scene of the incident. At the scene, I saw the corpse. I saw where he was stabbed.”
The above is not hearsay as same was purely an evidence of what he actually saw. On his part Pw4 is a police investigating officer and that the outcome of investigation by police officer on what he discovered concerning the commission of crime is not a hearsay evidence and therefore admissible in law. See OBOT V STATE (2014) LPELR ? 23130.

Learned counsel for the appellant also challenged the competence of pw5 on the ground that being a general doctor; he cannot perform post-mortem examination on the body of the deceased. The facts of this case has revealed that the deceased was attacked by the appellant with a matchet and that he died instantly as a result of the injuries sustained from the matchet on his shoulder. Where cause of death is obvious, medical evidence ceases to be of any practical or legal necessity. It is not an immutable requirement of the law that the cause of death must be proved by medical evidence. Whereas in the instant case, the deceased is attacked with a lethal weapon and dies on the spot, it can properly be inferred that the wound inflicted caused his death. See BEN V STATE (2006) 16 NWLR (pt 1006) 582, OFORLETE V STATE (2000) 12 NWLR (pt 681) 415, BABUGA V STATE (1996) 7 NWLR (pt 460) 279 and PATRICK V STATE (2018 16 NWLR (pt 1645) 263.

In the instant case, apart from the mountain of evidence linking the appellant with the death of the deceased, the appellant himself had in Exhibits A & C admitted killing the deceased,

Aniefon with a matchet. I also subscribe to the submission of the learned counsel for the respondent that the competency or otherwise of pw5 to conduct post-mortem on the body of the deceased being a fresh issue cannot be entertained on appeal without the leave of Court. See OBIAKOR V THE STATE (2002)10 NWLR (pt 716) 612 and A.G. OYO STATE V FAIRLAKES HOTELS LTD & ORS (1988)5 NWLR (pt 92).
Where there has been no leave sought and obtained by the appellant to argue his new issue and there are no special circumstances disclosed to warrant it being entertained, such a new issue would be incompetent and liable to be struck out by an appellate Court. See SALIU V STATE (2018) 10 NWLR (pt 1627) 251 at 259.

(1989) 3 NWLR (pt 110) 455, STATE V AZEEZ (2008) 14 NWLR (pt 1108) 439, BASSEY V STATE (2012) 12 NWLR (pt 1314) 209 and SANI V STATE (2015) 15 NWLR (pt 1483) 522.

In this case, the mix up in the evidence of pw1 and pw4 regarding the time when the incident took place was not fundamental to the issue in question before the trial Court. Whether the incident took place in the night or in the day, the facts remains that the appellant has admitted killing the deceased in the bath room.

Turning to the third element that is he intended to either kill the victim or cause him grievous bodily harm, intent can be proved either positively where there is proof of the declared intent of the accused or inferentially from his overt act.

IGABELE V STATE (2006)6 NWLR (pt 975) 100 and RICHARD V STATE (2018) 18 NWLR (pt 1651) 224 ? at 239.

In the instant case, pw1 was emphatic and his evidence remains undiscredited that he witnessed the killing of his brother by the accused. And when the accused saw him, he ran into the bush while the body of his brother was on ground. He was in his pool of blood and he had a matchet cut on his neck. Pw1 clearly fixed the appellant to the killing of Aniefon Patrick Umoh and also what killed him was the appellant?s matchet cut on his neck.

I am therefore not in the slightest doubt that the appellant intended to kill and or cause grievous harm to the deceased by attacking him with a lethal weapon on the sensitive part of his body. As stated elsewhere in this judgment that the appellant had freely and voluntarily admitted that he attacked the deceased with a matchet which entered his neck as a result of which he fell down and died. Confession always remains the best proof of what the person had done. See NWACHUKWU V STATE (2002) 2 NWLR (pt 751) 336, DOGO V STATE (2013) 10 NWLR

(pt 1361) 160 and KAMILA V STATE (2018) 8 NWLR (pt 1621) 252 AT 268.
The first issue is therefore resolved against the appellant.

On the second issue, learned counsel for the appellant submitted that the appellant was provoked and that the provocation was the unjustified slapping and that there was no time for the passion to cool between the provocative act of the appellant. He further submitted that the retaliation was also not disproportionate to the provocation offered as the evidence shows that the deceased was the one that stabbed the appellant first on his right shoulder with a dagger. Thus, the trial Court was in grave error to have held that the appellant was not entitled to the defence of provocation. He referred to the cases of NIGERIAN SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD V KLIFCO NIGERIA LTD (2010) 13 NWLR (pt 1211) 307 and WAZIRI V THE STATE (1997) 3 NWLR (pt 496) 689 at 721 to contend that the appellant?s evidence that it was the deceased who first stabbed him is neither attacked nor successfully discredited and that the prosecution equally failed to cross-examine the

appellant on this vital point. The consequential effect, according to the learned counsel is that the prosecution accepts the appellant?s evidence on this point as true and that the defence of provocation was sufficiently proved.

On his part, the learned counsel for the respondent relied on the appellant?s extra-judicial statements, Exhibits A & C wherein he admitted stabbing the deceased on the right shoulder and his evidence in Court to submit that where an accused gives evidence in Court that is inconsistent with his earlier statement, the later evidence will be taken as an afterthought. He referred to EDOKO V STATE (2015) ALL FWLR (pt 772) 1728 at 1753.

In further submission, learned counsel submitted that the time between the alleged provocative act of the deceased and the retaliation by the appellant was not spontaneous. He referred to DAJO V THE STATE (2018) LPELR ? 45299 and ABDU V STATE (2016) LPELR – 41461 in urging this Court to hold that the defence of provocation does not avail the appellant.
?
Provocation is some act or series of acts done by the dead person to

the accused which would cause in any reasonable person temporary loss of self-control rendering the accused so subject to passion as to make him or her for the moment not a master of his or her mind. See GEORGE V STATE (1993)2 NWLR (pt 273) 1644, STEPHEN V STATE (1986) 5 NWLR (pt 46) 978 and EZEOZOR V STATE (2019)1 NWLR (pt 1654) 513 at pages 534 – 535.

By virtue of Section 318 of the Criminal Code Act, when a person who unlawfully kills another in circumstances which, but for the provisions of the section, would constitute murder, does the act which causes death in the heat of passion caused by grave and sudden provocations and before there is time for his passion to cool; he is guilty of manslaughter only.

However, for an accused to successfully invoke the defence of provocation he must state clearly:
(a) The fact of provocation to enable the Court to determine how much he was provoked.
(b) He has to show that provocation was enough to deprive him of self-control
(c) He must show a retaliation which is proportionate to the provocation offered him by the deceased.?
These are all

questions of fact to be established by the person relying on the defence. See EDOKO V STATE (Supra), BIRUWA V STATE (1992), NWLR (pt 220) 633, AKANGA V STATE (1971) 1 ALL NLR 46 and AHUNGUR V STATE (2019) 2 NWLR (pt 1657) 393.

In his evidence in chief, the appellant as DW1 at page 60-61 of the record of appeal said:-
He asked me why I liked to be pompous. He asked whether I was proud because my father was a retired soldier and sent me to school. I replied that whether I am the one who stopped his father from being a retired soldier, one who built a big house and sent him to school. When I said so, the deceased ran into the house. I thought he went to bring the food. He came out and stabbed me and I fell down. I stood up and asked him why he slapped me. At that point I told him if he slapped (sic) me again, I would slap him back. He brought a dagger and stabbed me on my right shoulder. He ran into their house. I pursued him. I saw a matchet on the ground. I took the matchet and when I wanted to stab his hand he dogged and the matchet cut his neck.?

In considering

the defence of provocation, there are two things to which the law attaches great importance. The first is whether there was time for passion to cool and for reason to regain dominion over mind or there has been time for reflection. Secondly, in considering whether provocation has or has not been made out; one 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. For instance, fists might be answered with fists but not with a deadly weapon. See EDOKO V STATE (Supra).

In the instant case, the appellant?s claim to the defence of provocation when viewed and considered together with his earlier statements in Exhibits A and C, one is left with no option but to arrived at the conclusion that it is an afterthought. I am in complete agreement with the reasoning of the learned trial judge at pages 69 ? 70 of the record of appeal wherein he concluded that ?
?He pleaded provocation. Throughout the case of the defence no attempt was made to prove that in actual fact, the deceased first stabbed

the accused. There was no evidence that he received treatment of any injury inflicted on him by the deceased. He did not show any scar to the Court while testifying, I am unable to believe that the deceased ever stabbed him. The deceased did not stab him. And so the defence of provocation does not avail the accused.?

The above finding was borne out from credible evidence led by the prosecution and the appellant was duly cross-examined on that very point by stating that:-
?Our house and that of the deceased is up to nine (9) poles. I made two statements to the police. I did not tell the police that after I had argument with the deceased, I ran to our house. It was when the deceased stabbed me; I pursued him to get the knife from him.?

In actual fact there was no provocative act or insult proved in evidence before the trial Court not to talk of one capable of depriving the appellant the power of self-control. The second issue is invariably resolved against the appellant.

Having resolved all the two issues against the appellant, the appeal is devoid of any scintilla of merit and is hereby dismissed. I affirm the judgment of

the trial Court that convicted and sentenced the appellant to death by hanging.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in draft, the leading judgment delivered by my learned brother; Muhammed L. Shuaibu, JCA. I endorse, in toto, the reasoning and conclusion in it. I, too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in it.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was given the privilege of reading in advance a copy of the judgment just delivered by my brother, MUHAMMED LAWAL SHAUIBU, JCA and I agree with the resolution of the appeal. I also agree that the appeal lacks merit. I also abide by the other orders made therein.

Appearances:

Chief Paul C. ObiFor Appellant(s)

Joseph Umoren (DPP AKS) with him, Godwin Udom (PSC) and Unyime Effiong (SSC)For Respondent(s)

Appearances

Chief Paul C. ObiFor Appellant

AND

Joseph Umoren (DPP AKS) with him, Godwin Udom (PSC) and Unyime Effiong (SSC)For Respondent