ASUQUO OKON ASUQUO v. THE STATE (2014)

ASUQUO OKON ASUQUO v. THE STATE

(2014)LCN/7304(CA)

In The Court of Appeal of Nigeria

On Monday, the 23rd day of June, 2014

CA/C/168C/2013

RATIO

CRIMINAL LAW: THE OFFENCE OF MURDER; THE INGREDIENTS OF THE OFFENCE OF MURDER
As shown above, the appellant herein (as accused person) was charged with the offence of murder contrary to section 319 (1) of the Criminal Code Law, Cap C16, Vol 3, Laws of Cross River State. The constitutive ingredients of the said offence have, consistently, been enunciated in Case law, both in Nigeria and elsewhere in the Commonwealth. Instructively, these ingredients, articulated in such early English cases like R v Hopwood (1913) 8 Cr. App. R. 143; Hyam v DPP (1974) 2 All ER 41 and the ubiquitous Woolmington v DPP [1935] AC 462, which has assumed the status of a precedential mantra, have been endorsed by Nigerian courts, see, for example, Madu v State (2012) 15 NWLR (pt 1324) 405, 443, citing Durwode v State [2000] 15 NWLR (pt 691) 467; Idemudia v State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607. Other Commonwealth courts have, similarly, upheld these ingredients, see, for example, R v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R v Tralka [1965] Qd. R. 225, [Queensland, Australia]. These decisions are unanimous on the point that, in a charge of murder, the prosecution is obliged to prove: (1) that the deceased died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. These are the “three elements”, per Ogunbiyi JSC in Adeyeye v. State [2013] 2-3 MJSC (pt 11) 99, 123, which “must co-exist at the same time. The absence of any of the three will entitle the appellant to an acquittal,” per Muhammed JSC in Njokwu v The State [2013] 2-3 MJSC (pt 11) 61, 91, citing Alewo Abogode v The State (1996) 5 NWLR (pt 448) 270; Edwin Ogba v The State [1992] 2 NWLR (pt 222) 160; Obudo v The State [1991) 6 NWLR (Pt 198) 435. We note, in passing, that these are, also, the three elements of the offence of culpable homicide punishable with death, section 221 of the Penal Code, Maigari v State [2013] 6-7 MJSC (pt 11) 109, 125, citing Ochemeje v. The State [2008] SCNJ 143; Daniel v The State [1991] 8 NWLR (Pt 443) 715; Obudu v State [1999] 6 NWLR (pt 198) 433; Gira v State [1996] 4 NWLR (pt 428) 1, 125.
In Madu v State (supra) at page 443, the apex court, further, elucidated on the nature of the duty on the prosecution. In the words of Ariwoola JSC:
…in a murder charge, prosecution owes it a duty to discharge by proving the death of the victim, responsibility of the accused by act or omission, intentional act or omission of the accused with knowledge that it could cause grievous bodily harm or death. The prosecution must prove that the act or omission caused death but not it could have caused death. per. CHIMA CENTUS NWEZE, J.C.A.

CRIMINAL LAW: THE DEFENCE OF ALIBI; WHEN IS THE BEST TIME TO RAISE THE DEFENCE OF ALIBI AND THE RATIONALE FOR THE TIME PRESCRIPTION

It has long been settled that the best time to raise the said defence is at the earliest opportunity, preferably, when the Police is still investigating the allegation against him. The rationale for this strict prescription is that it is at that stage that the prosecution would have the amplitude of time and opportunity to investigate it and either endorse it or debunk it, Aiguoreghian v The State [2004] 3 NWLR (pt 860) 367; Dogo v The State [2001] 3 NWLR (pt 699) 192; Hassan v The Stresate [2001] 6 NWLR (pt 709) 286; Ibrahim v. State [1991] 4 NWLR (pt 186) 399; Ndidi v State (2007) 13 NWLR (pt 1052) 633. per. CHIMA CENTUS NWEZE, J.C.A.

EVIDENCE: PROVING THE INGREDIENTS OF THE OFFENCE OF MURDER; THE REQUISITE MENTAL ELEMENT OF “KNOWLEDGE THAT DEATH OR GRIEVOUS BODILY HARM WAS ITS PROBABLE CONSEQUENCE

In Bakare v State (1987) LPELR-SC.242/1985, Karibi-Whyte JSC had this to say about the requisite mental element of “knowledge that death or grievous bodily harm was its probable consequence”:
The intention to kill or to cause grievous bodily harm, in this case demonstrated by stabbing the deceased … with a dagger, which resulted in death will be, and in this case was, sufficient to establish the offence with which appellant was charged, Gwoji lire v State (1965) NNLR.52 [Italics supplied] per. CHIMA CENTUS NWEZE, J.C.A.

EVIDENCE: PROVING THE INGREDIENTS OF THE OFFENCE OF MURDER; PROVING THE INGREDIENT THAT THE DEATH OF THE DECEASED WAS CAUSED DIRECTLY OR INDIRECTLY BY THE ACT OF THE ACCUSED

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

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

ASUQUO OKON ASUQUO Appellant(s)

AND

THE STATE Respondent(s)

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): At the High Court of Cross River State, Calabar Judicial Division, the appellant in this appeal [as accused person] was charged with the offence of murder contrary to section 319 (1) of the Criminal Code Law, Cap C16, Vol 3, Laws of Cross River State of Nigeria. He was alleged to have killed one Andong Bassey Andong (hereinafter referred to as “the deceased person”) on August 21, 2006, by inflicting machete cuts on him.

In proof of its case, the prosecution called four witnesses, PW1; PW2; PW3 and PW4. Exhibits 1 [Negatives]; 2A, 2B, 2C and 2D (four photographs of the corpse of the deceased person); 3 [Medical Report]; 4 [appellant’s statement at the Odukpani Police Station] and 5 [appellant’s statement at the State Criminal Investigation Department [CID] were tendered through the PW4. On his part, only the appellant testified in his defence.

In its well-considered judgment, the court (hereinafter, simply, referred to as “the lower court”) found him guilty of the murder of the deceased person. The lower court, accordingly, sentenced him to death by hanging. This appeal is his expression of grievance against his conviction and sentence. He formulated only one issue from his grounds of appeal. It was framed thus:
Whether the respondent proved the charge of murder against the appellant beyond reasonable doubt?

The respondent adopted this sole issue. We, too, shall adopt it in the determination of this appeal. Before then, however, we shall set out the factual background to this appeal.

FACTUAL BACKGROUND
At the lower court, the respondent made the case that the appellant killed the deceased person, his uncle, by name, Andong Bassey Andong, on or about August 21, 2006, by inflicting machete cuts on him. In his lifetime, the said deceased person lived in a house that shared a common boundary with the appellant’s family house. When a dispute ensued as to the exact demarcations of the boundary of the said land, at the instance of the parties, the village council intervened. Unfortunately, the decision of the said council precipitated further animosities between the disputants, namely, the appellant’s sister and the deceased person.

It was alleged that on August 21, 2006, at about 7 am, the appellant, armed with a machete, proceeded to the deceased person’s house. Thereat, he, allegedly, raised the said machete in a bid to deal some blows on the deceased person. While the latter ran for dear life, the former chased him, menacingly. The PW2 (wife of the deceased person), expectedly, ran after them. Unfortunately, just a distance away from their house, the deceased person fell down. The appellant, then, vented his spleen on him by administering machete cuts on him.

The prosecution, further, made the case that the said PW2 held the appellant by his waist, imploring him to spare the deceased person’s life. The furious appellant, nevertheless, dealt machete cuts on the deceased person. The latter was taken to the hospital where his death was confirmed, exhibit 3. The PW1 testified to the effect that, on that fateful morning, PW2 [wife of the deceased person] ran to his house.

She narrated to him how the appellant attacked the deceased person and inflicted machete cuts on him.
He, promptly, accompanied her to the gory scene where he beheld the deceased person on the ground in a pool of his own blood. There were signs of several machete cuts on him, exhibits 1, 2A and 2D. On their arrival at the hospital, he was certified dead. These, then, were the sequence of events that prompted the charge against the appellant: a charge that culminated in his conviction and sentence. As noted above, the appellant set out a sole issue for the determination of his appeal, thus:
Whether the respondent proved the charge of murder against the appellant beyond reasonable doubt?

ARGUMENTS OF COUNSEL
APPELLANT’S ARGUMENT
At the hearing of this appeal on April 1, 2014, counsel for the appellant, Sonny Wogu, adopted the appellant’s Brief which he filed on July 17, 2013. In the said brief, he submitted that the respondent did not prove the charge of murder against the appellant beyond reasonable doubt, Uguru v State (2002) 9 NWLR (pt.771) 90, 106; Gira v State [1996] 4 NWLR (pt.443) 375; Nwaeze v State [1996] 2 NWLR (pt.428) 1; Ogba v State (1992) 2 NWLR (pt. 222) 164.

He canvassed the view that, in order to prove the offence of murder beyond reasonable doubt, the respondent had the onus of establishing the fact of the death of the deceased person; that the appellant’s act or omission caused his death and that the said act was of such a nature as likely to endanger life or establish the intention to kill or do grievous bodily harm to the deceased person.
He pointed out that the only person who claimed to be an eye witness to the purported attack on the deceased person was PW2. He referred to her as a tainted witness. He noted that the appellant denied making any of the statements tendered in court: statements which should either not have been admitted or relied upon by the lower court. According to him, the appellant put up a defence of alibi.

In his view, the appellant gave credible and unshaken evidence on oath to the effect that he did not take part in the offence for which he was charged. The appellant, he maintained, did not make the purported confessional statements. He contended that there was no evidence that could have warranted his conviction of the appellant. He highlighted what, in his assessment, were the fundamental errors that characterized the lower court’s judgment, paragraph 2. 08, (page 11) of the brief.

The first of such errors, in his submission, was the erroneous reliance of the appellant’s confessional statement. He pointed out that the appellant’s story was that he, only, made a statement to one Sgt Umoh. That statement was not tendered, citing section 167 (d) of the Evidence Act, 2011. He cited The Queen v Igwe [1960] NSCC 38, 39 and The Queen v Eguabor (1962) 1 All NLR 285, 290 as authorities for the proposition that the proper time to deny a statement attributed to an accused person or to allege that he was, incorrectly, recorded was at his defence.

Notwithstanding the appellant’s insistence on the existence of another statement he volunteered to Sgt Umoh, the lower court still admitted the other statements attributed to him. He impugned the lower court’s selective use of portions of the appellant’s purported confessional statement, citing The Queen v Itule [1961] NSCC 221; AG, Enugu State v Avop Plc (1995) 6 NWLR (pt 399) 90, 120-121. He drew attention to page 51, paragraph 1, line 2 of the record.

Next, he turned to the lower court’s alleged error in overlooking the absence of proof of an essential element of the offence of murder. He submitted that the evidence before the trial court, woefully, failed to establish an essential element of the offence of murder, namely, that the act or omission of the appellant caused the death of the deceased. He referred to the testimonies of PW1 and PW3 who, in his view, were merely witnesses after the attack and PW4, the Investigating Police Officer, who, only, tendered 2 statements. He noted that this witness conceded that he did not, personally, obtain one of the statements. He canvassed the view that the PW2’s testimony manifested many inconsistencies, (paragraph 2.25 (c) – (e), page 15 of the brief).

Citing Sowemimo v State (2004) 11 NWLR (pt 885) 515, 532, he submitted that the lower court ought to have rejected PW2’s evidence. He, further, maintained that the said witness was not an eye witness, [paragraph 2.28 -2.31, page 16] of the brief. He urged the court to hold that an essential element of the said offence was not proved, Alabi v State [1993] 7 NWLR (pt.307) 511; Onah v State [1985] 3 NWLR (pt 12) 236, 247.

He canvassed the further view that the respondent failed to establish that the death of the deceased was caused by the appellant’s act or omission. In his view, apart from the PW2, no one saw the appellant attack the deceased person, R. v Bang Weyeku IX-X WACA 195.
He insisted that, since the lower court relied on the evidence of PW2, this appeal should be allowed. He noted that the lower court, also, relied on the evidence of tainted witnesses without the necessary caution and corroboration. He referred to PW1, PW2 and PW3 as tainted witnesses, citing Ishola v State [1978] NSCC 499, 509; Okoro v State [1998] 14 NWLR (pt.584) (sic); Ifejirika v State (1999) 3 NWLR (pt.593) 58, 77 and Agbanyi v State [1995] 1 NWLR (pt. 369) 1.

He observed that the lower court should have been wary of convicting the appellant on the testimonies of the above witnesses without corroboration, Agbanyi v State (supra) 20-21; Okonji v The State [1987] 1 NWLR (pt 52) 659.
On a final note, counsel pointed out that, faced with the dearth of evidence, the lower court resorted to speculation: an indulgence not granted to our courts, Aiguoreghian v State [2004] 3 NWLR (pt. 860) 367; Tijani v C.O.P (1994) 3 NWLR (pt.335) 692, 703; Onah vs. State (supra) 236, 244.

He drew attention to page 47, paragraph 2, lines 1-6, of the record where, according to him, the lower court placed reliance on speculations. In his view, this wrong reliance on speculations prompted the lower court’s error in overlooking the material contradictions in the respondent’s case. He urged the court to resolve this in favour of the appellant, Oladele v State [1993] 1 NWLR (pt 294) 307, 319; set aside the judgment of the lower court and, in consequence, discharge and acquit the appellant.

RESPONDENT’S SUBMISSIONS
On his part, counsel for the respondent adopted the respondent’s brief which was settled by Leo Moffi, Director, Ministry of Justice, Calabar. As noted above, counsel adopted the lone issue which the appellant set out for the determination of the appeal. He endorsed the submissions of the appellant’s counsel on the ingredients of the offence of murder, Aiguoreghian v State (supra); Uguru v State (2002) 9 NWLR (pt 771) 90, 106; Gira v State [1996] 4 NWLR (pt 443) 375; Nwaeze v. State (supra); Ogba v State [1992] 2 NWLR (pt 222) 164. In his submission, all the conditions to establish the offence of murder co-exist in the instant case. He, first, dealt with the factual situation of the death of the deceased person.

On this first ingredient, he referred to page 44 of the record; the testimonies of PW1 on February 22, 2007; PW2 On March 8, 2008; the PW3 on May 15, 2008; negatives and photographs of the corpse of the deceased person, exhibits 1 and 2A – 2D, respectively and the medical report, exhibit 3. He submitted that the above pieces of evidence establish the death of the deceased person, Andong Bassy Andong; hence, establishing the first ingredient of the offence of murder.

He, then, turned to the second ingredient, namely, the requirement that the act or omission of the accused person caused the death of Andong Bassey Andong. He contended that the testimonies of all the prosecution witnesses point to the appellant as the assailant who killed the deceased, citing the evidence of PW1 who said that the PW2 came to his house to inform him that the appellant had inflected matchete cuts on the deceased person. He went the PW2 to the locus criminis. He saw the deceased on the ground in a pool of his own blood with machete cuts on his body.

PW2, the deceased person’s wife, re-lived the gory tale of the events that precipitated the death of her husband. According to her, the appellant stormed into their house with a machete. He threatened to kill the deceased person. For fear of his life, he [the deceased] took to his heels. The appellant chased him; caught up with him when he fell in front of the Presbyterian Church nearby and proceeded to inflict machete cuts on him. The witness, who ran after the duo of her deceased husband and his assailant, the appellant, caught up with them. The deceased person was, already, on the ground. The appellant, who was inflicting machete cuts on the deceased person, rebuffed this witness’s entreaty to spare her husband’s life. She ran to the house of PW1 to report the incident. That was how the PW1 rushed to the scene.

The story of the PW3 was not different. Alerted by the shouts he heard, came out of his house. He beheld the deceased on the ground shouting that the appellant had killed him. He saw the appellant running away from the scene with a machete.

PW4, the IPO, tendered exhibits 4 and 5, the appellant’s statements to the Police. According to counsel, the contents of exhibits 4 and 5 corroborated the testimonies of the other prosecution witnesses. They all point to the fact that the prosecution had established the condition that must co-exist and proved to establish a case of murder. In his submission, then, the prosecution put before the trial court enough evidence proving: the death of the deceased person; that it was the act of the appellant that caused his death and that the appellant’s act of inflicting machete cuts on him was such that could, and did cause, grievous bodily harm or death. As such, the said offence was proved beyond reasonable doubt.

Counsel, responded to the other issues which the appellant canvassed; first, what the appellant termed “erroneous reliance on the purported confessional statement.” He contended that when a confessional statement is challenged on the ground that it was not made at all, it would be admitted, irrespective of any objection raised as to its admissibility. He explained that the question, whether it was made at all, and in the manner represented by the Prosecution, would be decided at the conclusion of the case by the trial Judge. In effect, whatever objections raised against such a confessional statement could not, at that stage, affect its admissibility, Yahaya v State 1 NCC 120, 122; Ikemson v State [1989] 3 NWLR (pt. 110) 455, 467, 476; Ikpasa v AG, Bendel State [1981] 9 SC 7, 28 – 30; Queen v. Igwe (1960) 5 FSC 55.

He pointed out that the only caveat was that it would be desirable to have some corroborative evidence no matter how slight outside the confession, Onochie v. The Republic (1966) NMLR 307; Ikemson v. State (supra); R. v. Kaktu (1952) 14 WACA 30; Aganmoyi v AG Bendel [1987] 1 NWLR (pt. 47) 26, 35.

He canvassed the view that the lower court, rightly, admitted the statements despite the object of the appellant. Even then, there was sufficient corroboration from evidence of all the Prosecution’s witnesses to establish that the appellant murdered the deceased. He charted a nexus between the appellant’s personal details in exhibits 4 and 5 and his viva voce evidence in open court and contended that they all tied up to the fact that the appellant made the statements. Counsel ruled out the applicability of section 167 (d) of the Evidence Act. He drew attention to the appellant’s statements in exhibit 4, page 11, lines 17-26 of the record; exhibit 5, pages 12 – 13, lines 1-3, of the record. He disclaimed the availability of the defence of self defence which the appellant, unsuccessfully, attempted to set up in exhibit 4. He urged the court to hold that the deceased person had no weapon on him on that fateful day.

Counsel devoted paragraphs 2.38 -2.47, pages 14 – 16 of the brief, in response to the appellant’s submission that the lower court overlooked the absence of an essential element of the offence of murder. He maintained that the appellant was, positively, fixed to the scene of crime, citing the testimonies of PW1; PW2; PW3. He dismissed the suggestion that there inconsistencies in the testimonies of witnesses. He, nevertheless, contended that contradictions that do not touch on the charge are of no consequence, Igabele v State Vol 25 NSCQR (2006) 324; Ehot v. State [1993] 5 SCNJ 65, 80.

Citing Yahaya v. State 1 NCC 120, 124; John Peter v. State (1994) 5 NWLR (pt 342) 45, 68, 74, he canvassed the view that the lower court found sufficient corroboration of the testimonies of PW1; PW2 and PW3 in exhibits 1; 2A; 2B; 2C; 2D, as well as, exhibits 3; 4; 5 and 6, noting that the testimonies of each of these witnesses [PW2 and 3] corroborate each other. On the authority of Aighuoreghian v State (supra), he observed that the best defence of alibi was, always, pleaded at the first opportunity and not at the trial. He urged the court to discountenance the appellant’s suggestion that the lower court resorted to speculation. In all, he urged the court to hold that the respondent proved the charge of murder against the appellant beyond reasonable doubt.

RESOLUTION OF THE ISSUE
As shown above, the appellant herein (as accused person) was charged with the offence of murder contrary to section 319 (1) of the Criminal Code Law, Cap C16, Vol 3, Laws of Cross River State. The constitutive ingredients of the said offence have, consistently, been enunciated in Case law, both in Nigeria and elsewhere in the Commonwealth.

Instructively, these ingredients, articulated in such early English cases like R v Hopwood (1913) 8 Cr. App. R. 143; Hyam v DPP (1974) 2 All ER 41 and the ubiquitous Woolmington v DPP [1935] AC 462, which has assumed the status of a precedential mantra, have been endorsed by Nigerian courts, see, for example, Madu v State (2012) 15 NWLR (pt 1324) 405, 443, citing Durwode v State [2000] 15 NWLR (pt 691) 467; Idemudia v State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607.

Other Commonwealth courts have, similarly, upheld these ingredients, see, for example, R v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R v Tralka [1965] Qd. R. 225, [Queensland, Australia]. These decisions are unanimous on the point that, in a charge of murder, the prosecution is obliged to prove: (1) that the deceased died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm.

These are the “three elements”, per Ogunbiyi JSC in Adeyeye v. State [2013] 2-3 MJSC (pt 11) 99, 123, which “must co-exist at the same time. The absence of any of the three will entitle the appellant to an acquittal,” per Muhammed JSC in Njokwu v The State [2013] 2-3 MJSC (pt 11) 61, 91, citing Alewo Abogode v The State (1996) 5 NWLR (pt 448) 270; Edwin Ogba v The State [1992] 2 NWLR (pt 222) 160; Obudo v The State [1991) 6 NWLR (Pt 198) 435. We note, in passing, that these are, also, the three elements of the offence of culpable homicide punishable with death, section 221 of the Penal Code, Maigari v State [2013] 6-7 MJSC (pt 11) 109, 125, citing Ochemeje v. The State [2008] SCNJ 143; Daniel v The State [1991] 8 NWLR (Pt 443) 715; Obudu v State [1999] 6 NWLR (pt 198) 433; Gira v State [1996] 4 NWLR (pt 428) 1, 125.
In Madu v State (supra) at page 443, the apex court, further, elucidated on the nature of the duty on the prosecution. In the words of Ariwoola JSC:
…in a murder charge, prosecution owes it a duty to discharge by proving the death of the victim, responsibility of the accused by act or omission, intentional act or omission of the accused with knowledge that it could cause grievous bodily harm or death. The prosecution must prove that the act or omission caused death but not it could have caused death.

The eminent and illustrious Justice of the apex court cited, with approval, Ubani and Ors v State [2004] FWLR (pt 191) 1533, 1546; [2003] 18 NWLR (Pt 851) 224; Godwin Igabele v The State [2006] 3 SCM 143, 151; [2006] 6 NWLR (pt 975) 100; Alewo Abogede v State [1996] 5 NWLR (pt 448) 270.

Scholastic espousal of these judicial views is evident in the literature, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd, 2009) 209 et seq; A. G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan; Spectrum Books Ltd, 1988) passim; Archbold’s Pleadings: Evidence and Practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passim; K. S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988).

Further evidence of this academic endorsement of the above views could be found in NIALS’ Laws of Nigeria (Annotated) Criminal Justice Administration Vol One (Lagos: NIALS, 2008) 686; M. A. Owoade, Law of Homicide in Nigeria (Ife: Obafemi Awolowo University Press, 1990) 16 et seq, O. Olanipkekun, “The ‘Actus Reus’ and ‘Mens Rea’ as Basis of Criminal Responsibility’, in The Lawyer Vol 13 (1983) 50; M. A. Owoade, “Recurrent Problems in the Mens Rea of Murder: New Basis for Solutions”, in The Advocate Vol 9 (1983/84) 81-89; P. Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) 194 et seq.

At first instance, the lower court, after reviewing the evidence on both sides, concluded, thus, at page 53 of the record “[t]he prosecution having proved all the three ingredients of the offence charged beyond reasonable doubt, I find the accused person guilty of the murder of Andong Bassey Andong.” Expectedly, counsel for the appellant and that for the respondent had divergent reactions to the judgment. For the appellant, it was contended that the respondent did not prove the charge of murder against the appellant beyond reasonable doubt. On his part, counsel for the respondent endorsed the lower court’s conviction and sentence of murder on the appellant. The only way of ascertaining whether the said court, rightly, convicted the appellant is by going over the above three ingredients, seriatim, first, the requirement of the death of the deceased person.

The lower court dealt with this ingredient on page 44 of the record. On that Page, it is titled “The death of the deceased.” The court proceeded thus:
PW1 on 22nd February, 2007, said:
I rushed to the police and saw my brother in a pool of his own blood. With the help of people around we rushed him to the hospital (University of Calabar Teaching Hospital, UCTH) Okoyong, Ikot Effiong Otop, where he was confirmed dead.”
PW2 on 8th March, 2007 said:
PW1 took my husband to the hospital but he died before getting to the hospital.”

On 15th May, 2008, PW3 said: “we took deceased to hospital at Ikot Effiong Otop where he died.”

Exhibits 1 and 2A -2D are negatives and photographs of the corpse of the subject of this charge. Exhibit 3 is a report signed by a Medical Officer that the corpse of the deceased [person] was identified to him by Effiong Ita and he examined the corpse. From those pieces of evidence, I find and hold that the subject of this charge, Andong Bassey Andong, died.

Counsel for the respondent/prosecution, also, cited the testimonies of PW1; PW2; PW3; exhibits 1 and 2A-2D, as well as, exhibit 3. He contended that the “sum total of the above pieces of evidence establish the death of the deceased [person] and, therefore, satisfy the first requirement. The deceased [person], Andong Bassey Andong, died,” paragraphs 2.04-2-10, page 6 of the respondent’s brief.
Counsel for the appellant did not address this ingredient in isolation, his main ground for impeaching the judgment of the lower court being that the prosecution did not prove the charge against the appellant. On our part, upon a careful perusal of the above exhibits, against the background of the viva voce testimonies of the above witnesses, we entertain no doubt that the lower court, rightly, found that the prosecution proved this first ingredient of the offence of murder. We endorse its position as the concurrent finding of this court.

THE SECOND INGREDIENT
With regard to the second ingredient of the offence in question, that is, that the act or omission of the appellant [as accused person] caused the death of Andong Bassey Andong, the tower court, first, considered the testimony which the appellant gave in court, as DW1, on September 18, 2009. He raised, for the first time in open court, what would appear to be a defence of alibi. The court observed that, from its perusal of exhibits 4 and 5, the two statements which the appellant made to the Police, he [appellant] did not raise any such defence in any of them. On the authority of Ikemson v State [1989] 3 NWLR (pt 110) 455, 475, the court characterised the so-called alibi “raised for the first time by the accused person in the witness box” as an afterthought.

There is no justifiable ground for disturbing this finding. It has long been settled that the best time to raise the said defence is at the earliest opportunity, preferably, when the Police is still investigating the allegation against him. The rationale for this strict prescription is that it is at that stage that the prosecution would have the amplitude of time and opportunity to investigate it and either endorse it or debunk it, Aiguoreghian v The State [2004] 3 NWLR (pt 860) 367; Dogo v The State [2001] 3 NWLR (pt 699) 192; Hassan v The Stresate [2001] 6 NWLR (pt 709) 286; Ibrahim v. State [1991] 4 NWLR (pt 186) 399; Ndidi v State (2007) 13 NWLR (pt 1052) 633.

On the said second ingredient, the lower court referred to the testimonies of PW2 in court March 8, 2007 and May 15, 2008. According to this witness:
On 21st August, 2006, a Monday, in the morning…suddenly accused person appeared with a machete in his hand which he raised to cut my husband, my husband ran from his shop through our sitting room outside until he fell in front of the Presbyterian Church where accused started macheting him. I ran and grabbed the accused by his waist asking him not to kill my husband. He warned me to let him go or he will kill me. I carried my husband from the ground and his neck could not stand. I left him there and ran and informed PW1 … [page 47 of the record].

Part of her response during cross examination was that “…My husband fell down and accused cut him with the machete he was holding.” The court reproduced part of the evidence of pw3, page 48 of the record. On May 15, 2008, he testified inter alia:
On Monday 21st August, 2006 I heard shouts. I went outside and saw somebody lying on the ground shouting ‘Udo Udo has killed me.’ Accused person is aka Udo Udo. The person on the ground was Andong Bassey Andong. I saw the deceased with wounds all over his body. As I turned around I saw accused person running away. We took the deceased [person] to hospital at Ikot Effiong Otop where he died.”

Answering questions under cross examination, he confirmed that “I saw accused person running away with a machete.” The court referred to the accused person’s statements, exhibits 4, page 51 of the record and 5, pages 50 and 51 of the record. On page 51, it summed the sequence of events that confirmed that the second ingredient of the offence had been proved. According to the court:
PW2 saw the events leading to the death of her husband from the beginning to the end and she gave a vivid account of it (sic, them) in court. At no time did the witness loose (sic) sight of the deceased and the accused person for she said she ran after them. That she held onto the waist of the accused person before [the] accused person dealt the first machete blow on her husband.
PW3 said his house was opposite that of the deceased [person]. That he came out because of [the] shouts he heard and saw the accused person running away with a machete in his hand. On exhibits four and five, the accused person confirms that after macheting the deceased [person] he ran away with the machete which he threw into a bush behind their [accused person’s] house.
Even if the alibi in this case had been timeously raised, it would have been destroyed by those pieces of evidence which graphically fix the accused person at the scene of crime. I, therefore, find and hold that it was the accused person who inflicted the machete cuts on the deceased [person] which caused his death.
[Pages 51 -52 of the record, italics supplied for emphasis]

Contrary to the submission of the appellant’s counsel, the lower court, in our humble view, was justified in its conclusion that it was the appellant who inflicted the machete cuts on the deceased person which caused his death. In the first place, the testimonies of PW1 and PW2 fixing the appellant at the locus criminis sufficed to justify the conclusion that it was the accused person who wielded the deadly machete, the lethal weapon that snuffed life out of the deceased person. These pieces of evidence, as the court rightly found, would have dislodged any defence of alibi, had it been relied upon, Almu v State [2009] 10 NWLR (pt 1148) 31; Aolalu v. State [2010] 16 NWLR (pt 1220) 584; Olaiya v State [2010] 3 NWLR (pt 1181) 423. In effect, the testimony of PW2 was direct evidence; the testimonial evidence of a witness who claimed personal knowledge of the gory details of the appellant’s dastardly act that rendered her a widow by the fact of her husband’s death, Ahmed v State (2001) LPELR-SC.27/2001; [2001] 18 NWLR (pt 746) 622; [2001] 12 SC (pt 1) 135.

What is more, inflicting machete cuts on vulnerable parts of a person must be deemed and adjudged to be acts which the aggressor intended to cause bodily injury as he knew that death would be a consequence of his act, see, for example, per Mohammed JSC in Mohammed Garba v State [2000] 12 NWLR (pt 682) 596; (2000) 4 SC (pt 11) 157; (2000) LPELR-SC.157/1999. Indeed, in Bakuri v. State [1965] NMLR 163, cited with approval in Ahmed v State (supra), the deceased person was stabbed in the abdomen with a knife. He died on the spot.

The Supreme Court held that “in cases of this nature, where a man was attacked with a lethal weapon and died on the spot, it is hardly necessary to prove the cause of death; it can, properly, be inferred that the wound inflicted caused the death, also, Adamu v. Kano NA (1965) SCNLR 65; Azu v State [1993] 6 NWLR (pt 299) 303.

In the instant case, the evidence of PW2 is instructive. Answering questions in cross examination she averred that when her deceased husband fell down, “accused cut him with the machete he was having,” page 48 of the record. In her evidence-in-chief on March 8, 2007, the said witness explained that “I carried my husband from the ground and his neck could not stand.”

Learned counsel for the appellant had contended that PW2 was the only person who claimed to be an eye witness. The short and simple answer to this submission is that a “single witness, if believed by the court, can establish a criminal case even if it is a murder charge, Effiong v State [1998] 8 NWLR (pt 562) 362; Akindipe v State (2012) 16 NWLR (pt 1325) 94, 116, paragraph C; Ahmed v State (supra); Onafowokan v. State [1987] 3 NWLR (pt 61) 538, 552; Alonge v IGP (1959) 4 FSC 203; Okosi v. State [1989] 1 CLRN 29,48. Counsel, equally, categorised PW1; PW2 and PW3 as tainted witnesses.

This submission need not delay us here. As Karibi-Whyte JSC, sagaciously, held in Olalekan v State (2002) FWLR (pt 91) 1605, 1628, the evidence of a wife [PW2 was the wife of the deceased person] who witnessed the brutal murder of her husband (as PW2 did on Monday, August 21, 2006) cannot be regarded as that of a tainted witness that would require corroboration because she cannot be said to have “any other interest to serve” than to identify the killer of her husband. As such, she is one “whose evidence is …deserving of utmost credibility and is probative.” In the same vein, PW1 and PW3, although relations of the deceased person, do not fall into the category of tainted witnesses, Oguonzee v State (1998) 5 NWLR (pt 551) 521; Ishola v State [1978] 9-10 SC 81; Ben v State [2006] 16 NWLR (pt 1006) 582; Paul Onyia v State (2006) 11 NWLR (pt 991) 267; Ogunye v State [1995] 8 NWLR (pt 413) 333. Even then, we endorse the submission of the respondent’s counsel that the lower court found sufficient corroboration of the testimonies of PW1; PW2 and PW3 in exhibits 1; 2A; 2B; 2C; 2D, as well as, exhibits 3; 4; 5 and 6, Yahaya v State 1 NCC 120, 124; John Peter v. State (1994) 5 NWLR (pt 342) 45, 68, 74.

One last response to counsel’s submission here: he challenged the propriety of admitting the statements the appellant made to the Police. According to him, the appellant, vehemently, objected to their admissibility on the ground that he did not make the said statements, paragraphs 2.10 et seq, pages 12 -13 of the brief. With respect, this submission would appear to conflate the requirements relating to objections on the grounds of involuntariness and denial of authorship of a statement.

Objections founded on the ground that a statement was not made voluntarily would result in a trial within trial for the determination of its voluntariness, Eke v State (2011) All FWLR (pt 566) 430; Durugo v State [1992] 7 NWLR (pt 255) 430. Contrariwise, objections woven around the denial of the authorship of extra judicial statements or the incorrect recording of such statements would not conduce to their inadmissibility. Such statements that fall into the latter category are admissible in evidence. The trial court, however, will attend to the accused person’s retraction of the said statement in his judgment; that is to say, will determine whether such denial enures in favour of the accused person, Akpa v State (2008) All FWLR (pt 420) 644.

The reason is simple: such questions relate to the weight attachable to them, Madjemu v State [2001] 5 SCNJ 31; Obidozor v. State [1987] 4 NWLR (pt 67) 48; Dibie v State (2007) All FWLR (pt 363) 83; Ogudo v State [2011] 12 SC (pt 1) 71, 97; Owie v State [1985] 4 SC 1, 27; see, generally, S. T. Hon (SAN), S. T. Hon’s Law of Evidence in Nigeria Vol 1 (Port Harcourt: Pearl Publishers, 2012) 258-259; J. Amadi Contemporary Law of Evidence in Nigeria Vol 1 (Port Harcourt: Pearl Publishers, 2011) 260 et seq. In all, we agree with the lower court that the prosecution proved the second ingredient of the offence of murder against the appellant.

THE THIRD INGREDIENT OF THE OFFENCE
On this last element of the offence charged, the lower court found that:
Dealing a machete blow to any part of the human body will always cause grievous bodily harm. I am not here talking of a knife. I mean a machete. However, dealing such a blow with the result that the neck of the victim could not stand immediately thereafter is a different thing altogether. The victim must have lost a lot of blood from the injury in that short time (true, indeed, at page 25 of the record, the PW1 “saw my brother [the deceased person] lying in a pool of his blood,” italics supplied). That gives an indication of the size of the cuts.

I have no difficulty at all in reaching the conclusion that such injuries were afflicted on the deceased (person) by the accused person, that immediately after caused the neck of the deceased (person) to be unable to stand, were inflicted with, at least, knowledge that grievous bodily harm will be done the deceased
[Page 52 of the record, italics supplied]

We, equally, have no difficulty in endorsing the finding of the lower court. We adopt the view that “[i]f a dangerous weapon such as an iron bar or a dagger [in the instant case, it was a machete] or a gun, was used, the courts will infer that death is a probable and not just a likely consequence of the accused person’s act,” see, p. Ocheme, The Nigerian Criminal Law, (Kaduna: Liberty Publications Ltd, 2006) 203, relying on Adamu Garba v The State [1997] 3 SCNJ 68; also, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition), Ibidem page 221; Bakuri v State [1965] NMLR 163; Ahmed v. State (2001) LPELR-SC.27/2001; [2001] 18 NWLR (pt 746) 622; (2001) 12 SC (pt 1) 135; Adamu v Kano NA (1965) SCNLR 65; Azu v State [1993] 6 NWLR (pt 299) 303.

According to His Lordship:
It is clear from the evidence that at the close of the case for the prosecution, the prosecution had discharged the burden that the deceased died from the intentional or reckless act of the appellant. The burden now shifted on to the appellant to establish on the balance of probabilities, circumstances of exculpation, such as accident, self defence, insanity, etc… Police v Anozie (1954) 21 NLR 29. The only evidence adduced by appellant having not been believed the burden of proof on him was not discharged. The onus did not shift again to the prosecution and the prosecution will now be taken to have proved its case beyond reasonable doubt. Since the story of the appellant was not believed there was no evidence upon which to compare, in the totality of the case, and consider the existence of a reasonable doubt with respect to the guilt of the accused. See R v Oshunbiyi (1961) 1 All NLR 453. The court … was therefore right in holding that the case was proved beyond reasonable doubt.
[Italics supplied]

There are two more outstanding issues from the submissions of the appellant’s counsel. In the first place, he took the view that there were inconsistencies in the testimonies of PW1 and PW2. Again, this submission need not delay us here for in Theophilus v. State (1996) 1 NWLR (pt 423) 139, which the apex court, approvingly, relied on in Akindipe v State (2012) 16 NWLR (pt 1325) 94, 113, it was held that:
Though there may be some elements of contradictions and inconsistencies in evidence of witnesses at a trial, only those contradictions and inconsistencies shown by the appellant to be substantial and fundamental to the main issue before the court can lead to a reversal of the judgment appealed against. Minor discrepancy or disparity between a previous written statement and subsequent testimony in court will not destroy the credibility of the witness
[Italics supplied for emphasis]

Counsel did not point to any contradiction which was substantial and fundamental to the main issue whether the three elements of the offence of murder were present before the lower court. Finally, we, entirely, agree with the submission of the respondent’s counsel (paragraph 2. 59, page 19 of the brief). The appellant, in our view, could not substantiate his uncharitable allegation that the lower court “resorted to speculation.”

In conclusion, we hold the view that, from the totality of the evidence before the lower court, it was right in its view that the prosecution proved the three ingredients of the offence charged beyond reasonable doubt, Njokwu v The State (supra); Alewo Abogode v. The State (supra); Edwin Ogba v The State (supra); Obudo v The State (supra); Daniel v The State (supra); Obudu v State (supra); Gira v State (supra). This appeal is unmeritorious. We enter an order dismissing it. In consequence, we affirm the judgment of the lower court. Appeal is hereby dismissed.

UZO I. NDUKWE-ANYANWU, J.C.A: I had the privilege of reading in draft form, the Judgment just delivered by my learned brother C. C. Nweze, JCA. I agree with his reasoning and conclusions set out in the lead Judgment. I have nothing more to add.

ONYEKACHI A. OTISI, J.C.A: I had the privilege of reading, in advance, the Judgment just delivered by my learned Brother, Chima Centus Nweze, JCA, dismissing this appeal.

My learned Brother has, in characteristic manner, adroitly addressed all issues raised in this appeal. I am in agreement with his reasoning and conclusion that this appeal is unmeritorious.

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

The fact that the deceased died on 21/8/2006 is not in issue. He died from injuries arising machete cuts inflicted on him by the Appellant. The Appellant acted with the knowledge that death or grievous bodily harm would be the consequence of his action. The ingredients of the charge of murder were therefore proved.

For these reasons, and, the fuller reasons given in the lead Judgment, I also dismiss the appeal and affirm the judgment of the lower court.

Appearances

Sunny WoguFor Appellant

AND

Leo Moffi, Director, MOJ, CRS, CalabarFor Respondent