BLESSING IFIOK EDET v. THE STATE
(2016)LCN/9256(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of March, 2016
CA/C/270c/2013
Before Their Lordships
IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEMEJustice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISIJustice of The Court of Appeal of Nigeria
Between
BLESSING IFIOK EDETAppellant(s)
AND
THE STATERespondent(s)
RATIO
WHETHER OR NOT A CONFESSIONAL STATEMENT NOT TENDERED DOES NOT CALL FOR TRIAL WITHIN TRIAL IN LAW
This argument to me is puerile in the sense that the statement of the Appellant to the police (Exhibit 2) was never tendered as a confessional statement. It therefore did not call for trial within trial in law. However, the said Exhibit 2 sufficiently nailed the Appellant to the offence of causing grievous bodily harm where she admitted that she bite off the ear of PW2 and removed it completely. See DELE v. THE STATE (2011) 1 NWLR (Pt. 1229) 508 at 518.
MBANG v. THE STATE (2010) 7 NWLR (Pt. 1194) 431 at 438. PER NWOSU-IHEME, J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this criminal appeal was arraigned before the High Court of the Itu Judicial Division of Akwa Ibom State presided over by Godwin Abraham, J, on an information of two count charge of wounding with Intent, contrary to Section 341(1) of the Criminal Code, Cap. 38 Volume 2, Laws of Akwa Ibom State of Nigeria, 2000 and Grievous Harm contrary to Section 344 of the Criminal Code, Cap. 38, Volume 2, Laws of Akwa Ibom State of Nigeria, 2000.
The prosecution’s case against the Appellant was that on 29/12/2010 at No. 13 Enen Afaha Road, Itam, Itu Local Government Area of Akwa Ibom State, she bit off the right Ear of Edidiong Francis Edet (PW2) at the trial Court, chewed and swallowed it.
On the said 29/12/2010, at about 6.am, Edidiong Francis Edet went to ease herself in a toilet behind their house at No. 13 Enen Afaha Road, Itam Itu. On her way back from the toilet, she saw the Appellant who started raining abuses on her, called her a prostitute who had contacted disease in the process and has also messed up the toilet without cleaning same. All these the
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PW2 reported to her own mother Mrs. Nseobong Francis Edet. Her mother advised her to ignore the Appellant. The Appellant was said to have slapped PW2’s mother boasting that PW2 was not capable of doing anything. An attempt by PW2’s mother to retaliate was prevented by PW2 who quickly rushed to stop her mother.
At that point, the Appellant got hold of PW2’s hair at that same moment PW2 was said to have felt a very sharp pain on her right ear and discovered that the Appellant had bit off her right ear completely. PW2 showed the pinna of the ear to the trial Court which the Court noted that it was detached completely. The Appellant was said to have admitted in her statement to the police that she swallowed part of the ear she bit off and told the victim PW2 that she did so to prevent PW2 getting married. The Appellant’s husband was said to have told the PW2 to thank God that his wife did not kill her. The I.P.O (PW3) arranged and took photographs of the right ear of PW2 which was tendered as Exhibits 3A and 3B while the Appellant’s statement to the police was admitted as Exhibit 2.
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The defence of the Appellant was that PW2 allegedly sustained the injury
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when she rushed to separate her mother and the Appellant. That the police concluded their investigation speedily by arresting the Appellant same day. That all the statements were recorded the same date of the incident i.e. 29/12/2010 and the police investigation report was written the following day the 30/12/2010.
At the conclusion of hearing, the learned trial Judge in his judgment believed the case of the prosecution and disbelieved the case presented by the Appellant. He discharged the Appellant on Count One for Intention to disfigure under Section 341(1) and convicted and sentenced her for causing Grievous Harm under Section 344 of the Criminal Code.
The Appellant being dissatisfied with that judgment has brought the present appeal. Three Grounds of Appeal were filed from which counsel for the Appellant P. Anselem Eyo Esq distilled three issues for determination namely:
(1) “Whether the judgment of the Learned Trial Judge was not unreasonable, unwarranted and unsupported having regards to the evidence that was adduced.
(2) Whether the Learned Trial Judge did not err in law by refusing or neglecting to consider the defences that were
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available to the Appellant and to hold and or resolve the doubts that existed at the trial in favour of the Appellant and by finding her guilty in spite of those defences that were available in her favour.
(3) Whether the five years imprisonment that was meted out by the Learned Trial Judge to the Appellant upon conviction without an option of fine was not excessive having regard to the circumstances.”
The Respondent’s counsel, Comfort Udoh also set out three issues for determination as follows:
“(i) Whether the judgment of the Learned Trial Judge was unreasonable, unwarranted and unsupported by the evidence adduced during the trial of the case.
(ii) Whether the Learned Trial Judge in his considered Judgment refused or neglected to consider the defences that were available to the Appellant at the trial.
(iii) Whether the Learned Trial Judge in convicting and sentencing the Accused/Appellant to five years imprisonment without option of fine was excessive in the circumstances of this case.”
The issues raised by both counsel are similar and can be compressed into one straight forward issue of narrow compass. It is:
“Whether on
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the facts and circumstances of this case, the Learned Trial Judge was right in rejecting the defence of the Appellant, holding that the prosecution proved its case and proceeded to convict and sentence the Appellant without an option of fine.”
In his brief of argument, learned counsel for the Appellant, Anselem Eyo Esq had contended that it was inexplicably inconsistent how a piece of evidence which the learned trial Judge stated on record that was controverted was at the same time said to have been admitted by the appellant and did not require further proof. Counsel posited that the learned trial Judge appeared to have substituted his own view for evidence.
He argued that the learned trial Judge ought to have subjected the Appellant to medical examination of her mental state of mind since according to counsel the action of the Appellant which the trial Judge described as cannibalistic was so unexpected of a normal reasonable human being.
Counsel made heavy weather about the injury being sustained during a fight and argued that the Appellant ought to have been discharged based on that.
?He submitted that the trial Judge did not take into
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consideration the principles of sentencing after convicting the Appellant. That since there was no evidence of pre-meditation on the side of the Appellant prior to the commission of the offence that the Appellant ought to have been acquitted. There was also Appellant’s Reply brief filed on 18/11/2014 where counsel for the Appellant attempted to respond to some of the issues raised by counsel for the Respondent.
In his reply, learned counsel for the Respondent, Comfort Udoh, referred to the evidence of all the prosecution witnesses and submitted that their evidence sufficiently proved that the Appellant was a heartless and unrepentant person and was justifiably convicted under Section 344 of the Criminal Code for causing grievous harm to another and that the five year jail term was appropriate in the circumstance.
Let me start by referring to Exhibit 2, the statement of the Appellant as recorded by the I.P.O and which the Appellant admitted as having been made and signed by her and adopted as part of her defence at the trial Court. In Exhibit 2, the Appellant admitted that she bite the ear of PW2 and removed it completely. Hear her:
“I now
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bit her ear and removed it completely.”
Having admitted biting off the ear of PW2, the medical report the photographs taken by the IPO when the injury was fresh and the testimony of the victim PW2 all go to confirm what the Appellant had already admitted herself. I describe all that as surplusage.
Looking at the findings of fact of the learned trial Judge borne out of the evidence before his Lordship, the much talked about statement that “This evidence was controverted” becomes irrelevant. It is obvious to even a baby that the above sentence was a slip of pen and didn?t tally with the findings of fact of the learned trial Judge, and did not occasion any miscarriage of justice. I so hold.
The Appellant and her counsel tried to justify the barbaric behaviour of the Appellant by drumming that the Appellant bite the ear of PW2 during a fight and that the Appellant was given human bite. There was nothing on record to show that the Appellant was given human bite, her witnesses never said so.
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There was no evidence on record to justify the defence of provocation or self defence in favour of the Appellant. There was no evidence to show that
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PW2 had by her actions aroused fury, rage or resentment in the Appellant. Again, there was no evidence to show that the Appellant was put in a situation that she had no option than to bite off the ear of PW2 in self defence.
Appellant’s counsel also disagreed with the trial Judge’s failure to determine the veracity of Exhibit 2. This argument to me is puerile in the sense that the statement of the Appellant to the police (Exhibit 2) was never tendered as a confessional statement. It therefore did not call for trial within trial in law. However, the said Exhibit 2 sufficiently nailed the Appellant to the offence of causing grievous bodily harm where she admitted that she bite off the ear of PW2 and removed it completely. See DELE v. THE STATE (2011) 1 NWLR (Pt. 1229) 508 at 518.
MBANG v. THE STATE (2010) 7 NWLR (Pt. 1194) 431 at 438.
On whether the learned trial Judge should have given the Appellant an option of fine, it is my humble but firm view that the Appellant displayed a level of wickedness comparable only to the wickedness of Jezebel in the bible.
In her statement Exhibit 2, she described herself as a married woman with two children.
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There is nothing human in the Appellant as her action portray her as not only a wild animal, but a Barbarian.
Section 344 of the Criminal Code Vol.2, Laws of Akwa Ibom, 2000 the Section of the law on which the Appellant was convicted by the trial Court states:
“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for seven years.”
The harm on PW2 was indeed very grievous and in fact the Appellant does not deserve a reduction in the number of years prescribed by law even for one day.
Before sentencing the Appellant, the learned trial Judge stated as follows:
“…But the accused person cuts the image of a very wicked person. She did not only bite off PW2’s ear, she chewed and swallowed it. My view is that the intention of the accused was to prevent the pinna which she dismembered from PW2 from being sutured. The accused has a cannibalistic tendency.”
The above is very clear and succinct findings of fact, coming from the trial Judge who watched the Appellant testify at the trial Court. It is an impeccable observation and I agree entirely with His Lordship. I have no reason or
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justification to distort or reverse same. In the final result, the issue is resolved in favour of the Respondent against the Appellant. This appeal is bereft of merit. It is dismissed in its entirety. The judgment of Godwin Abraham, J, of the Itu Division of the High Court of Justice Akwa Ibom State delivered on 30/5/2013 in case No. HIT/22c/2011 is hereby affirmed.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree.
ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, C. E. Nwosu-Iheme (Ph.D), JCA, made available to me a copy of the Judgment just delivered in draft form in which the Appellant’s appeal was dismissed. I am in agreement with his reasoning and conclusion, which I adopt as mine. The appeal is completely without merit and is also dismissed by me.
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Appearances
Chief Anselem Eyo, with him,
Miss Rebecca Nkanta, Esq.For Appellant
AND
UrepresentedFor Respondent