AMECHI IGENTI V. THE STATE
(2013)LCN/6293(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of June, 2013
CA/B/295C/2010
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
AMECHI IGENTI Appellant(s)
AND
THE STATE Respondent(s)
RATIO
THE INCONSISTENCY RULE OF EXTRA JUDICIAL STATEMENT
Let me restate the inconsistency rule. Where a witness in a criminal trial made a prior extra judicial statement materially inconsistent with his evidence on oath, the trial judge, not being permitted to pick and choose which evidence to believe, is obliged to disbelieve both and put no probative value on them. For the rule to be activated by the defence, during cross examination of the witness, the defence counsel is obliged to demand from the prosecution a copy of the said extra judicial statement of the witness which ordinarily should be in the prosecution’s file and part of the proofs of evidence. The portion of the extra judicial statement materially different from the witness’s evidence on oath would be put to him to give him opportunity to explain. Thereafter the extra judicial statement should be tendered and admitted as evidence. The point would then be made an issue during address by defence counsel. See S.232 and S.233 (c) Evidence Act 2011 and Golden Dibie v. The State (2007) 3 SCNJ 160; The State v. Fatai Azeez & Ors. (2003) 4 SCNJ 325; Sunday Udosen v. The State (2007) 1 SCNJ 482. The proper procedure for the admissibility of the extra judicial statement of PW1 was not followed in this case. The document was never tendered nor admitted in evidence. If it were part of the evidence at the trial court, then the probative value put on it by the trial court can be called into question. This would involve the consideration of whether or not the inconsistencies were minor or substantial enough to warrant the application of the inconsistency rule resulting in the disregard of the totality of the evidence of such a witness. PER OGUNWUNMIJU, J.C.A.
HELEN MORONKEJI OGUNWUMIJU (Delivering the Leading Judgment): This is an appeal against the conviction and sentence of the appellant by His Lordship J. Aigbuloko Oyakhirome J. sitting at High Court Benin on the 20th day of April 2010 in charge No. B/80C/2007, The State vs. Amechi Igenti for the offence of murder.
The facts that led to this appeal are as follows: The appellant was charged on a one count charge as follows:-
Amechi Igenti on or about the 31st day of December 2006, at Iyamu Street, off ile Mill Road, Benin City, in the Benin Judicial Division murdered one Shedrack Azawuno (m) and thereby committed murder punishable under S.319 (1) of the Criminal Code Cap. 48, Vol. II, Laws of former Bendel State of Nigeria 1976 now applicable to Edo State.
The case of the prosecution is that on 31st day of December 2006, apparently without any provocation, the accused person stabbed the deceased with a knife on the back of his neck. The deceased died on the way to the hospital. PW1, one Gabriel Ojabuno swore that he was with Shedrack Azawuno (the deceased) and as they came out of the deceased’s house they saw the appellant and two boys in front of a nearby house. He said the appellant shouted at him and the deceased to “forked off” and that he needed blood. That the appellant brought out a knife from inside his stocking and wanted to stab him and that he dodged and the appellant injured him with the knife on his left hand and that he alerted the deceased that Amechi was holding a knife and that the deceased wanted to run and the appellant stabbed him on the neck with a knife. That he ran and called the deceased’s sister Oghenere and that they both pursued the appellant who ran away. PW1 stated that they carried the deceased to the hospital but that the deceased died on the way to the hospital.
Following the death of the deceased, the case was reported at Ogida police station by one Godspower Anana. The appellant was arrested and taken to Ogida police station. The case was initially investigated by the police at Ogida before it was transferred to the State CID, Benin City. The appellant made two statements confessing to stabbing the deceased which he retracted during the trial. The appellant was later charged on information to the Edo State High Court, Benin City where the case was tried and concluded.
At the trial the accused now appellant in his defence on oath claimed that there had been a previous quarrel between himself and PW1. He claimed that on the day of the incident PW1 told the appellant that he, PW1 was above the appellant and that is “he pass me”. He swore that PW1 started the fight by slapping him and a fight ensued. He claimed that PW1 brought out a knife and while the deceased was trying to separate the fight, PW1 stabbed the deceased. The prosecution called six witnesses and tendered eleven exhibits while the accused person testified on his own behalf and tendered an exhibit. The learned trial judge disbelieved his story and rejected all his defences and convicted him of the offence of murder. The appellant, dissatisfied, has appealed to this court.
In the appellant’s brief settled by Emmanuel O. Achukwu and filed on 21/9/2010, learned counsel identified 2 issues for determination as set out below:
(1) Whether the prosecution proved the guilt of the appellant beyond reasonable doubt?
(2) Whether the confessional statements are admissible against the appellant.
The Respondent’s brief settled by Mrs. C.A. Ebosele, Chief State Counsel, Edo State filed on 21/11/2011 also identified two issues for determination as follows:
(1) Whether the ingredients of the offence of murder as required by law was proved by prosecution beyond reasonable doubt to justify conviction.
(2) Whether the appellant was convicted solely on his confessional statements.
From the records and the amended notice of appeal, I am of the considered view that the issues as couched by the learned counsel for the respondent more aptly embrace all the complaints of the appellant against the judgment of the trial court.
ISSUE ONE
Whether the ingredients of the offence of murder as required by law was proved beyond reasonable doubt to justify conviction.
Learned appellant’s counsel argued that the prosecution needed to prove that the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence. He cited Okeke vs. State (1999) 2 NWLR Pt. 590 Pg. 596; Onah vs. The State (1985) 3 NWLR pt. 12 P9.236.
Learned appellant’s counsel argued that from the admission of PW1 under cross-examination that there had been a previous quarrel between him and the appellant, the witness had a previous score to settle with the appellant by implicating him in the murder of the deceased. Counsel urged this court to treat the witness as a tainted witness who had made conflicting statements to the police from which the trial court was not allowed to pick and choose. Counsel urged this court to discountenance the evidence of PW1. He cited Okonkwo v. The State (1998) NWLR Pt. 561 pg.210 at 241.
As regards PW2, we are asked to disregard her evidence since she was not a witness to the crime. With respect to the evidence of PW3, the medical Doctor who performed the autopsy on the deceased, learned appellant’s counsel urged the court to regard the evidence of a stab on the chest as contradictory to the evidence of PW1 who had spoken of a stab to the neck and to ignore the evidence of the cause of death by both witnesses. Counsel also urged this court to disbelieve the evidence of PW4 and PWs who were police officers who investigated the crime. PW4 was the police officer who recorded Exhibit D from the appellant at Ogida police station. PW5 was the police officer who investigated and to whom the appellant made a statement at the state CID Benin. Counsel also urged us to hold that the evidence of PW6 the senior brother of the deceased who did not witness the crime is of no probative value and should be totally ignored. Counsel submitted that the prosecution did not prove the offence of murder beyond reasonable doubt. He cited Morka v. The State (1998) 2 NWLR Pt. 537 Pg. 284; Ogidi v. The State 1 SCNJ 67 at 85-86.
Learned Respondent’s counsel, Mrs. Ebosele, or this issue argued that it is on record that one Shedrack Azawuno died as a result of an unprovoked attack on him by the appellant on the 31st day of December, 2006. PW1 gave evidence and described how the deceased was attacked by the appellant who gave up the ghost on the very day he was stabbed on his way to the University of Benin Teaching Hospital, Benin.
Counsel then submitted that the prosecution proved that the act of the appellant was intentional and that it caused the death of the deceased which was a probable consequence of the appellant’s action. She cited Aiguorenghian v. The State (2004) 3 NWLR Pt. 860 P9.367.
Learned respondent’s counsel insisted that the action of the appellant resulted in the death of the deceased. She argued that the appellant had provoked a quarrel and immediately attacked the deceased and PW1. Since the appellant knew that death or serious bodily harm would result in stabbing someone with a knife, the appellant’s action amounted to murder. The respondent’s counsel urged the court to give credence to the evidence of PW1 who was the only eye witness to the incident. He argued that PW1 was a witness of truth and not a tainted witness. He cited Babugu v. State (1996) 40/41 LRCN 1338, 1341. She urged the court to remember that the appellant agreed that he stabbed the deceased. Counsel argued that since PW2 was informed by the deceased that the appellant stabbed him and the deceased died almost immediately, there was no break in causation as the act of the appellant caused the death of the deceased. Counsel submitted that there is no contradiction in the evidence of PW1, PW2 and PW3 as PW3 gave evidence that the deceased was stabbed in two places, the first on the right upper back almost around the neck area and also on the chest. Counsel submitted that the prosecution proved the guilt of the appellant beyond reasonable doubt and that beyond reasonable doubt does not mean beyond all doubt. She cited State v. Abu (2005) 4 ACLR 582; Bakare v. The State (1987) 1 NWLR Pt. 52 Pg. 579; Aroyewun v. The State (2005) 4 ACLR 631; Friday Aiguorenghian v. The State (2004) 3 NWLR Pt. 860 P9. 367 at 372; Igebele v. The State (2006) 5 LRCN 30 at Pg. 32. Learned Respondent’s counsel insisted that this court should not accept the defence of self defence set up by the appellant during the trial.
There is no doubt that for a charge of murder under S.319 (1) of the Criminal Code Cap 48, Vol. II, Laws of former Bendel State of Nigeria 1976 now applicable in Edo State to be established, the prosecution must perforce prove beyond reasonable doubt the following ingredients of the offence or murder.
(1) That the deceased died;
(2) That the death of the deceased resulted from the act of the accused;
(3) That the action of the accused was intentional, with knowledge that it might result in the death or infliction of serious bodily harm on the deceased.
See Adeboye Ibikunle v. The State (2007) 1 SCNJ 207; Idiok v. The State (2007) 1 SCNJ 482.
From what I can garner from the appellant’s brief, the complaints raised by the appellant’s counsel while arguing this issue are that –
(1) The star witness PW1 had a score to settle with the appellant because they had a previous quarrel and that we should hold the evidence of the said witness as tainted.
(2) Counsel also argued that the evidence of PW1 in court was inconsistent with the previous statement made to the police on 2/1/2007 two days after the incident when the events were fresh in his memory.
(3) All the evidence of PW2, PW3, PW4, PW5 and PW6 as regards what happened on the day of incident was hearsay.
The first complaint is that the evidence of PW1 must be regarded as “tainted” since he had a score to settle with the appellant. The law regarding the classification of the evidence of a witness as tainted is that the description of a witness as “tainted” must be confined to a witness who is either an accomplice or by the evidence he gives (whether as witness for the prosecution or defence) may and could be regarded as having his own purpose to serve. See Garba Mailayi & Ors. V. The State (1968) 1 All NLR 116 at 123; Ishola v. The State (1978) 9-10 SC 81 at 100; Akpan v. The State (1992) 6 NWLR Pt. 248 Pg. 439.
The law is that the evidence of a person defined as a tainted witness must be received with considerable caution and be examined with a fine tooth comb. See Mbenu v. State (1988) 3 NWLR Pt. 84 Pg.615; Olaiya v. State (2010) 3 NWLR Pt. 1181 Pg. 423.
I have considered the evidence at the trial court as given by PW1. On this point the learned trial judge held as follows on Pg. 104-105 of the records:
“PW1 was an eye witness to the stabbing of the deceased. PW1, the deceased and the accused person were together. He saw it all. He heard it all. His evidence was direct as it was positive and cogent. His evidence was not shaken under cross-examination. I watched his demeanor as he gave evidence and responded to questions under cross-examination. He impressed me as a witness of truth. I believe his evidence under cross-examination that the misunderstanding he had with the accused over a boy called two-two’s refusal to run an errand for him (PW1) in accused person’s house in September, 2006 was resolved by Oghenere, Shadrack’s sister. I believe the evidence of PW1 that the accused person approached them (PW1 and the deceased) accused them of ‘forking off’ and attacked them with a dagger/knife from his stockings. I believe accused who said he wanted blood first tried to stab PW1 who dodged and still suffered cuts on his left wrist, before he bounced on and stabbed the deceased.”
The opinion of the learned trial judge on the credibility of PW1 who saw and heard him is in my view sacrosanct where a finding of fact relates to the demeanour of witnesses and ascribing weight to the evidence of said witnesses, it is within the exclusive preserve of the trial court. An appellate court cannot interfere unless the finding is palpably perverse. See Owie v. Ighiwi (2005) 1 SCNJ 181; Ibikunle v. The State (2007) 15 SCNJ 207. There is no evidence on record to suggest that PW1 was not a witness of truth or that his evidence was tainted by his previous quarrel with the appellant. On a careful reading of the evidence, I see clearly that much was made by the defence of the fact that in September, three months before the incident, there was a minor quarrel between the appellant and PW1. Even the appellant on oath confirmed the previous quarrel but however fell short of saying that there was an on-going feud between him and PW1 to warrant the imputation of hatred of the appellant by PW1 and subsequently a need to give false evidence against the appellant. This is because a tainted witness must be one who has his own interest to serve and as a result has a tendency to cover up the true facts of the case. See Ogunye v. The State (1999) 4 SC 30; (1995) NWLR pt. 413 pg. 333; Omotola v. The State (2009) 2-3 SC 7; (2009) 7 NWLR pt. 1139 pg. 148; Olaiya v. The State supra.
From the evidence on record, even though PW1 was the only actual eye witness to the incident, his evidence was properly accepted by the trial judge. Even if it is accepted for the sake of argument that the evidence of PW1 was tainted, the trial judge need only treat such evidence with considerable caution. The trial judge is not legally required to warn himself. In any event, the evidence of PW1 was amply corroborated by other evidence on record.
The second point made by counsel is that the evidence of PW1 on oath contradicted his extra judicial statement to the police made on 2/1/2007. Learned appellant’s counsel gave the impression that the said extra judicial statement of the appellant was tendered in evidence at the lower court. That impression given on Pg. 6 line 24 that the extra judicial statement of PW1 was admitted as exhibit is not borne out by the record. The extra judicial statement of PW1 made on 2/1/2007 transmitted as Pg. 28-29 of the record was never admitted in evidence.
Let me restate the inconsistency rule. Where a witness in a criminal trial made a prior extra judicial statement materially inconsistent with his evidence on oath, the trial judge, not being permitted to pick and choose which evidence to believe, is obliged to disbelieve both and put no probative value on them. For the rule to be activated by the defence, during cross examination of the witness, the defence counsel is obliged to demand from the prosecution a copy of the said extra judicial statement of the witness which ordinarily should be in the prosecution’s file and part of the proofs of evidence. The portion of the extra judicial statement materially different from the witness’s evidence on oath would be put to him to give him opportunity to explain. Thereafter the extra judicial statement should be tendered and admitted as evidence. The point would then be made an issue during address by defence counsel. See S.232 and S.233 (c) Evidence Act 2011 and Golden Dibie v. The State (2007) 3 SCNJ 160; The State v. Fatai Azeez & Ors. (2003) 4 SCNJ 325; Sunday Udosen v. The State (2007) 1 SCNJ 482. The proper procedure for the admissibility of the extra judicial statement of PW1 was not followed in this case. The document was never tendered nor admitted in evidence. If it were part of the evidence at the trial court, then the probative value put on it by the trial court can be called into question. This would involve the consideration of whether or not the inconsistencies were minor or substantial enough to warrant the application of the inconsistency rule resulting in the disregard of the totality of the evidence of such a witness.
The third complaint is that the evidence of PW3, PW4, PW5 and PW6 were hearsay. There is no doubt that the evidence of the medical doctor PW3 who tendered Exhibit B the Medical Report and Exhibit C the death certificate is not hearsay as it relates to the con of the evidence he gave before the trial court. He gave evidence of the result of his autopsy on the deceased but never claimed to be an eye witness to his death so the issue of hearsay does not arise. PW3 revealed that there were two stab wounds found on the deceased, one near the back of neck and the other on the chest. This evidence is consistent with the evidence of PW1 and PW2. PW4 and PW5 are policemen who conducted the investigation of the crime. Exhibit D the first statement made by the appellant was recorded by PW4 on 1/1/2007 at Ogida police station, Benin City. Exhibit D was tendered after a trial within trial because the appellant said he was tortured to make the statement. Exhibit E was recorded by PW5 and the attestation by a superior officer is Exhibit E1. The portion of the testimony of PW4 and PW5 relates to actions they took as police officers in the course of investigating the crime. There is no evidence from PW3, PW4 and PW5 indicating that they witnessed the crime.
In the circumstances, the three points raised by this issue are resolved against the appellant.
ISSUE TWO
Whether the appellant was convicted solely on his confessional statements.
Learned appellant’s counsel argued that a confession is admissible only if it is voluntary. The onus of proving affirmatively beyond reasonable doubt that a confession is voluntary rests on the prosecution. He cited Gbadamosi & Anor. V. The State (1992) 11-12 SCNJ 269. He submitted that a confession is a statement made by any person charged with a crime at any time stating or suggesting the inference that he committed the offence. A conviction for any crime may be based on a single confession if voluntarily made. He cited Girka v. The State (1995) 4 SCNJ 94. One of the fundamental ingredients of a confession is that it must be voluntary, otherwise, it is deemed to be irrelevant and inadmissible. For a confession to be admitted it must be direct, positive and unequivocal. He cited Edamine v. The State (1996) 3 SCNJ 12 and insisted that where a confessional statement was neither direct nor positive, it is not admissible. He cited Patrick Njorens & Ors. V. The State (1973) 5 SC 17.
The argument of learned appellant’s counsel on Pg. 12 and paragraph 5.01 of the brief essentially is that since the two confessional statements of the appellant admitted by the trial court contradict each other as to the type of weapon or sharp object appellant used in stabbing the deceased, then they were not statements given by the appellants voluntarily and should be expunged from the record and disregarded by this court.
Learned counsel argued that the first statement, Exhibit D taken by PW4 did not have the fundamental requirement that a senior officer must attest a confessional statement of the accused to ensure its voluntariness. He cited R v. Ekhomiew & Anor. (1963) 1 All NLR 365; R v. Viap Bomp (1961) NWLR 47. In respect of the 2nd statement, learned appellant’s counsel argued that the statement Exhibits E and E1 should not have been admitted since the appellant stated categorically that he never made any statement to the police at State CID, Benin. He urged the court to ignore Exhibits D, E and E1 and to believe the evidence on oath of the appellant that it was PW1 who stabbed the deceased and thus the appellant should be discharged and acquitted.
In reply, learned respondent’s counsel argued that before a confessional statement can ground a conviction, it must be proved that it has been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt. It will suffice to ground a finding of guilt regardless of the fact that the maker resiled therefrom or retracted it altogether at the trial. Counsel cited Augustine Nwangbomu v. State (2001) 2 ACLR Pg. 9 at 14. Counsel argued that the prosecution at the trial proved beyond reasonable doubt that the appellant voluntarily made the confessional statements as trial within trial was conducted and the statements revealed all the details of the appellant and these information are peculiar to the appellant alone for there was no means by which a police officer will know the history of the appellant as to his birth, tribe and others.
Counsel argued also that the appellant was not a witness of truth and that he was being untruthful in his allegations of torture by the police. He argued that the appellant at the first police station, said he was 22 years of age, a driver and a Christian, while at the State Criminal Investigation Department he said he was 17 years old, a motor boy and a Moslem. Meanwhile during the trial he said he was 15 years, a motor boy and a Christian. Counsel submitted that it is not a rule of law that a senior police officer should attest to the confession of the appellant. She cited Nwaebonyi v. The State (1984) 17 LRCN 104 at 107; State v. Egbeghonome (1993) 13 LRCN PTA Pg. 761 at 766; Okafor v. State (1955) NMLR 20.
Respondent’s counsel argued that the trial court considered the appellant’s statements alongside the overwhelming testimonies of PW1, PW2, PW3 and PW5 before his conviction. Counsel urged the court to ignore the current vogue of every accused person retracting his confessional statement during trial and that the trend should be strongly discouraged by the courts.
Learned Respondent’s counsel concluded that the appellant’s conviction was not entirely based on confession as what was done by the trial court was based on the totality of credible evidence before it and the trial court found as a fact that the prosecution established beyond reasonable doubt that Shedrack Azawuno is dead and that he died as a result of the stab wound inflicted on the back of his neck with a knife by the appellant who did same intentionally and unlawfully, screaming “I need blood”.
Let us first consider the issue of the confessional statements admitted as Exhibits D, E and E1. The objection to Exhibit D is that inspite of the fact that no senior officer attested to it, the learned trial judge held that it was voluntarily made after a trial within trial. The ruling of the trial judge on the trial within trial is on Pg. 46-53 of the records. It is a masterly exposition of the law relating to such confessions by the learned trial judge. The observation of his Lordship on Pg. 52 of the record is spot on. His Lordship said:-
“The statement of the accused that he told the police nothing, it was after the police finished his recording he was asked to sign does not induce belief. This even contradicts the basis of this trial within trial that Exhibit TT1 is his statement but that it was not his voluntary act.”
Let us assume that the Appellant was violently forced to sign the statement admitted as Exhibit D and as he claimed, he never made same at all, then there was no need for a trial within trial. The document is admissible without more and the learned trial Judge need only consider the weight to be attached to the statement. The probative value of the statement would depend on whether or not the court believed that the accused did not make the statement at all but was forced to sign something that did not emanate from him. Where an accused says, Yes! I made the statement but I was induced by reward or violence to make it and to incriminate myself contrary to my constitutional right not to implicate myself, and the court believe him, then the document is inadmissible. See S.29 (1) and (2) of the Evidence Act 2011 and S.35 (2) of the 1999 Constitution. See Dawa V. The State (1980) 8-11 SC 236 at 258; Madjemu V. The State (2001) 9 NWLR Pt. 718 Pg. 349.
In the circumstances of this case, the issue of attestation by a senior officer does not arise since the appellant did not challenge Exhibit D on the basis that he made it but was forced to do so contrary to S. 28 of the then extant Evidence Act which is now S. 29 in the Evidence Act 2011. There is no doubt that the onus is on the prosecution to prove the voluntariness of a confessional statement. One of the things to be considered in concluding that a statement was made voluntarily is the attestation of a superior officer indicating that the accused was interviewed by the superior police officer and the accused confirmed that he indeed made the statement voluntarily. That procedure is part of what is called the Judge’s Rules.
In any event, the Judges Rules are rules of caution, the non observance of which is not necessarily fatal to the admissibility of the statement. The issue of the non applicability of the Judge’s Rules arises only when voluntariness vel non of the statement is an issue. See Igago V. The State (1999) 14 NWLR Pt 637 Pg 1. It is of no relevance in the circumstances of this case.
In respect of the second statement Exhibits E and E1, the law is settled that even where an accused denied making a statement at all as in this case, the statement is admissible. See Nwangbomu V. The State (1994) 2 NWLR Pt. 327 Pg. 380; (1994) 2 SCNJ 107.
I looked at the amended notice of appeal filed on 7/3/2012 by the appellant. Grounds (a) and (b) of the grounds of appeal are that the learned trial judge was wrong in disbelieving the defence of accident put up by the appellant. There was no specific argument or issue raised on the defence of accident by learned appellant’s counsel, nevertheless, I will consider same in view of the nature of the offence and sanction enforced.
The learned trial judge never made a finding on this point since the defence of accident was never raised during the trial. It is being raised for the first time here on appeal. It is unfortunate that at the trial, the energy of the appellant was directed at telling different stories in relation to the incident rather than formulating an acceptable defence and leading evidence in that regard. Exhibit D and Exhibits E and E1 do not show that the appellant was in danger of his life. They both don’t show that the stabbing of the deceased might have been an accident. Nevertheless, the defence of accident is defeated by the multiple wounds on the deceased as evidenced by PW3 the medical doctor who conducted the autopsy. PW3 swore that the deceased had an
“incision wound on the right upper back almost around the back of the neck area measuring about 6cm in length and at least 5 cm deep. There was another incision wound on the chest around the armpit area measuring 2 centimetres in length and one centimeter deep. It was obvious from our findings that these injuries were inflicted by a sharp object”
That was the evidence of PW3 on Pg. 36 of the record. Because the appellant never actually put up a proper defence of accident at the trial, we have to speculate on how the deceased got two stab wounds on very sensitive parts of the body. We are not allowed to speculate. One wound can be explained away as an accident but not two. We have to fall back on the evidence of PW1 who said the appellant attacked both he and the deceased with the knife. In the circumstances, I have to hold that the defence of accident is not borne out by the record.
There is no doubt that the learned trial Judge did not base his conviction on Exhibit D and Exhibits E and E1 alone. His Lordship believed the evidence of the eye witness P.W.1 as against the defence of the appellant. This Court is obliged not to change the findings of fact made by the trial Judge which is based on the credibility of witnesses. In accordance with the best practice, where a judge is faced with the possibility of conferring a death sentence on an accused, all available defences that the accused could possibly have which is supported by the evidence on record even where not raised by him, were meticulously considered and rejected by the learned trial Judge. The learned trial judge considered the defence of self defence and rightly held that it did not avail the appellant in the circumstances. I must commend the learned trial Judge Hon. Justice Aigbuloko Oyakhirome for the meticulous and correct application of the rules of criminal procedure during the trial and his erudite application of the law. I cannot see my way to disturb any of the learned trial Judge’s finding of fact relating to the defences open to the appellant nor his conclusion that in the circumstances, the appellant intentionally stabbed the deceased with intention to cause grievous bodily harm which action caused the death of the deceased. This is inspite of the spirited but untutored defence put up for the appellant at the trial court by the team of Mrs. J. T. Oviasuyi and A. J. Alufokihai Esq. In the circumstances, I affirm the judgment of the trial court delivered on 30th April, 2010 in Suit No. B/80C/2007 which convicted the appellant of the offence of murder.
I affirm the sentence of death by hanging. Appeal Dismissed.
SIDI DAUDA BAGE J.C.A.: I was honoured with a draft of the leading Judgment of my learned brother Hon. Justice H.M. Ogunwumiju JCA, just delivered. I entirely agree with all the reasonings and the conclusion reached. I do not have anything more useful to add. The Judgment of Hon. Justice J. Aigbuloko Oyakhirome in Charge No. B/80c/2007, delivered on the 20th of April, 2010, is also affirmed by me.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. His lordship has dealt extensively and incisively too, with the Issues raised for the determination of the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead Judgment. I have nothing to add to the Judgment. Indeed I hereby adopt the lucid lead Judgment as mine.
Accordingly, I too, resolve the issues in the appeal in the same manner they have been resolved in the lead Judgment and dismiss the appeal. The judgment of the lower court delivered on 30/4/2010 in Suit No. B/80C/2007, wherein the Appellant was convicted of the offence of murder and sentenced to death by hanging therefor; is affirmed.
Appearances
EMMANUEL O. ACHUKWU ESQ.For Appellant
AND
C.A. EBOSELE M (MRS.) Chief State CounselFor Respondent
