CLEMENT OGUONZEE V. THE STATE
(1997)LCN/0276(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of July, 1997
CA/B/161/96
RATIO
ACTION: THE PRINCIPLE GOVERNING THE FORMULATION OF ISSUES FOR DETERMINATION
The principle governing the formulation of issues for determination is that a number of grounds could where appropriate, be formulated into a single congruous issue. It is perfectly undesirable to split the issues in a ground of appeal. See the case of Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139. PER IGE, J.C.A.
JUSTICES:
JUSTIN THOMPSON AKPABIO Justice of The Court of Appeal of Nigeria
SYLVANUS ADIEWERE NSOFOR Justice of The Court of Appeal of Nigeria
ATINUKE OMOBONIKE IGE Justice of The Court of Appeal of Nigeria
Between
CLEMENT OGUONZEE Appellant(s)
AND
THE STATE Respondent(s)
IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Edokpayi J. delivered on 1st March, 1996 on a murder charge No. B/16c/95. The appellant Clement Oguonzee an Asst. Superintendent of Police was arraigned before the Benin High Court on the offence of murder of Remigious Mekoba contrary to Sec. 319(1) of the Criminal Code Cap. 48 Vol.II Laws of Bendel State of Nigeria 1976 applicable to Edo State.
In the particulars of the offence stated in the information, the appellant was alleged to have shot and murdered one Remigious Mekoba at Oluku Junction along Benin/Lagos Express Way within Benin Judicial Division on 18/8/94. On 28th September 1995 the accused/appellant pleaded not guilty to the charge of murder.
The prosecution called 4 witnesses while the appellant gave sworn evidence for his own defence but called no witness.
After hearing addresses by the defence counsel and the prosecuting legal officer, the learned trial Judge delivered a reserved judgment on 1/3/96 wherein he found the appellant guilty of the offence of murder and sentenced him to death accordingly.
The appellant has appealed against this conviction. In the notice of appeal filed on 7th March, 1996, the appellant raised the following 2 grounds of appeal.
“(1) The decision is altogether unwarranted unreasonable and cannot be supported having regard to the evidence.
(2) The learned trial Judge erred in law when he held:
“I accept the evidence adduced by the prosecution in support of this case as true and reject the evidence of accidental discharge put up by the accused person as untrue”.
Particulars
(a) The evidence adduced by PW4 was not supported by Exhibit “B” the statement he made to the police;
(b) There was no previous quarrel between the accused and the deceased.
(3) Further grounds of appeal to be filed on the receipt of the records of appeal.”
In this court on 22/10/96 the appellant sought leave to file and argue 2 additional grounds of appeal.
He was granted leave and the following additional grounds were deemed properly filed and served.
(3) The learned trial Judge erred in law for not properly evaluating the evidence of P.W.2 and therefore came to a wrong conclusion to the effect that the evidence of P.W.4 corroborated the evidence of P.W.2.
Particulars:
(i) P.W.2 was not a ballistician as to bring him within the precincts of an expert regarding the distance from which the pistol which killed the victim exploded.
(ii) P.W.4 did not give the distance from which the pistol exploded in his statement to the police. His evidence in this regard should have been taken as an afterthought.
(iii) The absence of any evidence from the police in the appellant’s team should have weighed in favour of the ‘accused .
(iv) P.W4 had related his story to many persons at UBTH which said story was not consistent with his statement to the police especially, the invention of the distance of 7 feet to 10 feet which became very crucial in the consideration of corroborative evidence accepted by the trial court.
(v) The trial Judge did not consider the casual way in which the police investigated the case having regard to the circumstances. The investigating police officer who visited the scene of crime did not measure any distance at all.
4. The learned trial Judge misdirected himself and or did not direct himself at all as to whether a case of negligence could be made out in favour of the accused.
Particulars:
(i) The accused did give an uncontradicted evidence that a pistol could on its own explode.
(ii) The trial court did not say what conduct of the accused after the incident could lead anybody to say that the accused wanted to kill for killing sake.
(iii) The policeman who was alleged to have said “No No”, was not called to give evidence bearing in mind that the accused was the leader of the team and that the evidence of P.W. 4 to the effect that one other policeman said ‘no, no’ was not in P.W.4’s statement to the police.
(iv) The trial court could have considered a case of negligence and not having done so led to a miscarriage of justice”.
The appellant in his brief of argument formulated 5 issues thus:
(i) Whether, in the evaluation of evidence the trial Judge was right to have held that the evidence of P.W.2, not an eye witness, corroborated the evidence of P.W4, the deceased’s brother having regard to the circumstance of the case.
(ii) Whether the evidence of the doctor P.W.2, who was not a ballistician could be regarded as the evidence of an expert in respect of the distance i.e between 7 feet to 10 feet as the point of discharge of the pistol as to rule out the possibility of a struggle between the accused and the deceased to lead to the discharge of the pistol in respect of which the trial Judge held as follows:- “I do not believe that the deceased gripped the pistol of the accused person or that the pistol accidentally exploded during any struggle for possession or repossession of the pistol.” Could the trial Judge hide under the cloak of I believe or do not believe? See Akinfe v. The State (1988) 3 NWLR (Pt.85) 729 at 747; Bozin v. The State (1985) 2 NWLR (Pt.8) 465 at 473 respectively. (iii) Whether in the evaluation of evidence the learned trial Judge properly considered the particular aspect of P.W.4’s evidence at page 13 lines 19-3 where he said, “when we got to the hospital one of the doctors came and asked what happened and when I told him what happened he shouted ‘Jesus’. Another student also came and asked me what happened and I told him”. In the circumstance the story of 7 feet to 10 feet and distance of shot must have become common knowledge in the hospital whereas the question of distance was not part of P.W.4’s statement to the police nor did the police investigate it.
(iv) Whether the ‘trial Judge could not have considered a case of negligence on the part of the accused person as to reduce the charge from murder to manslaughter and sentence him accordingly.
(v) Whether the police carried out proper investigation of this matter”.
For the respondent the following 3 issues were formulated for determination:
(i) Whether the learned Judge rightly accepted the evidence of the prosecution and rejected the evidence of accidental discharge put up by the appellant;
(ii) Whether the evidence of the medical doctor (P.W.2) corroborated the evidence of P.W.4
(iii) Whether a case of negligence could be made out in favour of the appellant to reduce the offence from murder to manslaughter.
The counsel for the appellant in formulating his issues for determination has breached the rules pertaining to formulating of issues. Issues must not exceed the grounds of appeal. This court and the Supreme Court have always frowned at proliferation of issues for determination. In this case the appellant has multiplied the issues pertaining to Ground 3. From this ground alone the appellant has formulated Issues 1, 2 and 3. Even his Issue 5 does not relate to any of the grounds but was built up from the particulars of Ground 3.
The principle governing the formulation of issues for determination is that a number of grounds could where appropriate, be formulated into a single congruous issue. It is perfectly undesirable to split the issues in a ground of appeal. See the case of Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139.
In this case the appellant’s Issues 2 and 5 are not covered by any ground of appeal and could therefore not form issues for determination in this appeal. In such a situation the court should discountenance them and all the arguments advanced in their support. This is exactly what I will do in this case following the principles laid in the following cases of Labiyi v. Anretiola (supra); British American Insurance Co. Nig. Ltd. v. Omolayo (1991) 2 NWLR (Pt. 176) 721; Modupe v. State (1988) 4 NWLR (Pt. 87) 130 at 157; Ofondu v. Niweigha (1993) 2 NWLR (Pt. 275) 253. Issues 2 & 5 are hereby struck out as non sequitur.
Before going into the appeal proper, I shall briefly summarize the facts of this case. On 18/8/94 one Remigious Mekoba and his brother Vincent Mekoba were travelling from Lagos to Imo State in a Volvo car driven by Remigious. At a certain point between Ugbowo and Oluku Junction along Benin/Lagos Express Road, some policemen including the appellant stopped them at a check point.
Remigious and his brother Vincent didn’t see the policemen in time hence they drove past the checking point. They had to reverse the car to the police checking point. One of the policemen asked them why they failed to stop when stopped but Remigious Mekoba replied that they have eventually stopped. At that stage the appellant, an Asst. Superintendent of Police who was in charge of that checking point opened the front door of the car, drew out Remigious out of the car and slapped him. As he Remigious laid his head on the bonnet of his car in pains, the appellant moved backwards to a distance, pointed his gun at Remigious and shot him on the left part of his chest. Remigious then shouted to his brother saying “Vincent, I am dying, I am dying, I am dying”.
As Vincent rushed to the aid of his brother, they both fell down. When P.W.4 Vincent got up the appellant pointed his gun to him but he was stopped by the shouting of another policeman who said “No. no, no”. After the shooting. Vincent and some policemen carried Remigious in his Volvo car and drove to the University of Benin Teaching Hospital where a doctor confirmed him dead. That is the story as told by the prosecution. The accused denied the charge and pleaded accidental discharge during a scuffle with him by the deceased.
I shall consider this appeal on Issues 1, 3 & 4 as formulated by the appellant. I must commend the respondent’s counsel for formulating relevant issues relating to this appeal based on the 4 grounds of appeal filed by the appellant. The 3 issues formulated by the respondent are very germane to this appeal and are in line with appellant’s Issues 1, 3 & 4. Now to issue 1 which reads thus: “Whether in the evaluation of evidence, the trial Judge was right to have held that the evidence of P.W.2, not an eye witness corroborated the evidence of P.W.4 the deceased’s brother having regard to the circumstances of the case”.
This issue is almost identical with Issue 2 formulated by the respondent. The counsel for the appellant in this case has lumped up together the argument in respect of all the issues formulated by him leaving the court to sort out which is which. With due respect to the learned counsel for the appellant I must say that his brief falls short of the standard expected in this court. I had the mind of putting aside his arguments and consider only that of the respondent who has set out his issues and arguments on them methodically and according to the rules of brief filing – See Order 6 r. 3 (1-5).
But this case being a murder appeal, where the life of the appellant is at stake the sins of his counsel should not be visited on him.
It has been argued on behalf of the appellant that the learned trial Judge relied heavily on the evidence of P.W. 4 and the alleged corroborative evidence of P.W.2 the medical doctor. Counsel conceded the evidence given by the doctor to the extent of the injury resulting from the discharge of the gun but his contention is as to the distance from which the pistol exploded. Counsel said P.W.4 didn’t mention the distance of 7ft – 10ft in his statement to the police and that the investigating police officer P.W.1 who visited the scene of crime did not measure any distance from which the shot was fired.
For the respondent it was submitted that the trial court was right in accepting the evidence adduced by the prosecution while rejecting the spurious evidence of accidental discharge introduced by the appellants. The learned trial Judge was said to have been perfectly in order on the issue of credibility of witnesses and his findings of fact should not be reversed because they are not perverse. In support he cited the cases of Mufutau Bakare v. State (1987) 1 NWLR (Pt. 52) 579 at 580. Abdullahi v. State (1985) 4 SC 183 at 192; (1985) 1 NWLR (Pt.3) 523.
The learned trial Judge in his judgment said both the accused person and the 4th P.W. are ad idem in their evidence that the missile which killed the deceased emanated from the pistol held by the accused/appellant on that day. Even the learned counsel for the appellant in his brief of argument conceded that much that the evidence of the doctor P.W.2 to the extent of the injury found on the deceased resulted from the discharge of the gun.
These concessions have narrowed down the issues involved in this appeal to whether or not the discharge was accidental or intentional.
The 4th P.W.’s evidence is that of an eye-witness and the learned trial Judge had the opportunity of watching his demeanor in the box and he believed him. The appellant made a heavy weather of the fact that P.W. 4 didn’t include in his statement Exhibit ‘B’ to the police the question of the accused stepping backwards for 7 – 10ft before firing the pistol at the deceased. The appellant referred to it as a contradiction in the evidence of the prosecution. I seem to agree with the view of the learned trial Judge that the issue of 7ft distance before shooting is only an enlargement of P.W.’s previous statement to the police and not a contradiction. What is important in this case is who fired the gun that caused the wounds found on the deceased by 2nd P.W. and the wounds that resulted into the death of the deceased?
Under cross examination by counsel for the appellant the doctor gave the following evidence.
Cross examination by S.I. Osifo Esq.
“No other missile other than gun could have caused the wounds I found on the corpse. A pistol is a gun, double barrel is a gun. Any of these can inflict the injury I am talking about. The gun would have been fired within the range of 7 and 10feet from the deceased. If two persons were struggling for possession of the gun and it exploded, it cannot inflict the type of injuries I found on the corpse of the deceased and which I have just described to this court. If the gunman fired the gun about 2 feet from the deceased, it cannot cause the type of wounds I have described and which I found on the corpse in this case. If the gun is fired one foot from the victim, the injuries will no longer be the same as I have described”.
In his evidence in chief before the court, P.W.4 gave the following account of how the incident happened:
“On 18/8/94, I was coming from Lagos with my senior brother called Remigious in a car. We were going to Awomoma in Imo State of Nigeria. We were coming from Lagos. As we were on speed, we passed the police and he reversed the car back. One of the policemen came to us and asked him why we did not stop and my brother replied that he has now stopped. Another policeman then came up to us and opened the front door and drew my brother out of the car and slapped my brother. As he slapped my brother my brother used his hands in holding his jaw and bent down and laid his head on’ the bonnet of his car. That policeman who drew my brother out of the car and slapped him then drew backwards to a distance of about 7 feet and pointed a gun in his hand and shot my brother through his left chest and my brother shouted my name saying, “Vincent, I am dying, I am dying, I am dying’ He was now holding his left breast with both hands. I then rushed out from the car and held my wounded brother. Myself and my brother fell down and as I got up the policeman who shot my brother faced me and pointed his gun at me. Then one of the policemen around shouted “No, No, No”, and the policeman who shot my brother then lowered his arm and kept the gun. Then myself and about four of the policemen conveyed my brother to the waiting pick-up van of the police………………………………………..I can identify the policeman who slapped and shot my brother with gun. The accused person is that policeman who drew my brother out of the car, slapped him and drew back from my brother for a distance of about 7ft before pointing the gun at my brother and shooting at my brother. I later made statement to the police in this case. The accused person shot my brother along the express way at about 9a.m. in the morning”.
This witness in continuation of answers to his cross examination by the counsel to the accused/appellant stated thus:
“When the policeman slapped my brother, my brother did no other thing apart from shouting, holding his jaw with both hands and putting his head on the bonnet of his car. I refute the suggestion that my brother engaged the policemen in a scuffle and I deny that it was during the scuffle that the gun exploded and hit my brother”.
These 2 witnesses gave evidence before the trial Judge. He believed their evidence. The evidence of the P.W.2 was found to have supplied a corroboration of the evidence of P.W.4 – the brother of the deceased. The 4th P.W. was consistent, categorical and forthright in his evidence and in my view the learned trial Judge was right in accepting his testimony as true. In Exhibit ‘B’ he did not mince words about the action of the appellant. He said and I quote the relevant portion of his statement:
“……As my brother was about to answer the question, one of them fired him on the chest and my brother called me two times before he fell down ……….. I can identify the policeman that fired my brother. My brother did not struggle with any policeman.”
When giving his evidence in court this witness identified the appellant as the person who slapped and shot his brother with a gun in the chest.
From the day he made a statement to the police, this witness knew the person who fired the shot that killed the deceased and the circumstances of the firing. In Exhibit ‘B’ he was sure and very certain that the deceased did not struggle with any policeman. In court he refuted the suggestion by the defence counsel that the deceased engaged the policeman in a scuffle. He denied that it was during the scuffle that the gun exploded and hit his brother.
This credible evidence coupled with the nature of injuries found on the deceased during a post mortem examination in my view has reinforced the case of the prosecution and rendered the story of the accused/appellant that his gun accidentally exploded on that day as incredible and untenable. The learned trial Judge was right in rejecting this evidence of the accused/appellant that the pistol exploded while the deceased and himself were struggling for the possession of the pistol.
Looking at the learned trial Judge’s evaluation of the entire evidence before him and the reasons given before making his findings, I am satisfied that he has put the totality of the testimony adduced by both parties on each side of the scale and seen which preponderates not by the number of witnesses called on each side but the quality or the probative value of the testimony by the witnesses. See the case of Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C. 91 at 93. The learned trial Judge did not simply say I believe this witness and I believe that witness. He made a good appraisal of the evidence and ascribed probative value to each aspect before making his findings of fact.
It is my candid view that the learned trial Judge’s findings in this case can just not be faulted, and I do not intend to interfere with them.
The attitude of the Court of Appeal is well settled that findings of fact made by a trial Judge are matters peculiarly within his domain and he is presumed to be correct. He saw the witnesses and heard them and unless his findings are perverse and unsupportable by credible evidence, the Court of Appeal will not interfere with them.
See the cases of Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683;
Balogun & Ors. v. Agboola (1974) 1 ANLR (Pt. 2) at 66;
Bakare Folorunso v. Adeyemi (1975) 1 NMLR P. 128.
The appellant’s counsel has tried to discredit the evidence of P.W.4 because he is a brother to the victim. He cited in support the case of Hausa v. The State. It is true the court should exercise caution in accepting the evidence of a relation of the victim. The learned trial Judge in this case adverted his mind to this fact before he believed the evidence of the only eye witness and his evidence was corroborated by the evidence of the doctor. This witness is not a tainted witness neither was his credit shaken in the witness box. He is also not shown to be biased – See the case of Jimoh Ishola v. The State (1978), 9 & 10 S.C. 81 at 100. Moreover there is no law which prohibits blood relations from testifying for the prosecution where such a relation is an eye witness of the crime committed.
See the cases of Adelumola v. The State (supra); Onafowokan v. The State (1986), 2 NWLR (Pt. 23) 496 at 503; Hauso v. The State (1994), 6 NWLR (Pt. 350) p. 281 at 308.
The counsel for the appellant has also contended that failure of the prosecution to call any of the other policemen in the team led by the appellant on the day of the incident was fatal to the prosecution’s case. He refers the court to Sec. 138(1) and Sec. 148(d) of the Evidence Act. Sections 138(1) of the Evidence Act and Sec. 148(d) of the Evidence Act not withstanding, the prosecution has no duty to call a host of witnesses to prove its case. There is no rule of law which imposes an obligation on the prosecution to call a great number of witnesses. All they need to do is to call enough material witnesses to prove their case and in doing so they have a direction in the matter:- See the cases of:
Okonofua & Anor. v. State (1981) 6 – 7 SC 1 at 18. Samuel Adaje v. State (1979) 6 – 9 SC 18 at 28. Ali v. The State (1988) 1 NWLR (Pt. 68) 1.
Sec. 179(1) of Evidence Act provides thus:
“(1) Except as provided in this section no particular number of witnesses shall in any case be required for the proof of any fact.”
As a matter of fact the Supreme Court has held in the case of Igbo v. The State (1975), 9 – 11 SC. 129 that it is not necessary for the prosecution in order to discharge the onus of proof laid upon it to call a large host of witnesses.
It is enough if evidence is called sufficient to discharge the onus. Also there is no rule of law or practice which prevents a court from convicting an accused for murder upon the evidence of one eye witness in the case where there is no suggestion that the witness is an accomplice once the court is satisfied with the evidence given.
In the instant case the accused/appellant was charged for murder.
It is well settled that a charge of murder is established when the prosecution proves the following ingredients beyond reasonable doubt.
a. That the deceased has died.
b. That the death of the deceased has resulted from the act of the accused.
c. That the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
See the cases of:
Akinfe v. The State (1988) 3 NWLR (Pt. 85) 729.
Onah v. The State (1985) 3 NWLR (Pt. 12) 236.
In this case the prosecution has led credible evidence that the deceased Remigious Mekoba has died. They have also satisfied the court that the death of the deceased Remigious Mekoba has resulted from the gun shot by the accused/appellant.
The learned trial Judge had considered all the defences that may avail the accused/appellant including the defences of provocation, self defence, insanity and negligence through accident. He has rightly come to the conclusion that the prosecution has proved its case of murder against the accused beyond all reasonable doubt. From the above holdings, Issues 3 & 4 have been resolved against the appellant. The statement of P.W.4 to the police vis-a-vis his evidence in court was well considered by the learned trial Judge before accepting his evidence as against that of the accused/appellant.
It is my candid view that the learned trial Judge considered meticulously a case of possible negligence in favour of the appellant in order to reduce the charge of murder to manslaughter. He could not but reject the accused’s defence of accidental discharge amidst glaring evidence of intentional shooting of the deceased by the appellant. A person is taken to intend the natural and probable consequences of his acts. In this case the accused shot the deceased on 18th day of August along Benin/Lagos Express Road and from the facts of the case the only possible inference which the court can draw and has drawn is that he intended to kill the deceased. This he did and the learned trial Judge has rightly convicted the appellant on a charge of murder and sentenced him to death accordingly.
On a final analysis this appeal fails as lacking in merit. The conviction for murder and sentence of death imposed by Edokpayi J. on the appellant on 1/3/96 is hereby confirmed. Appeal dismissed.
AKPABIO, J.C.A.: I have had the privilege of reading in advance the record of proceedings in this case, as well as the leading judgment of my learned Sister Atinuke Ige, JCA., just delivered and have no hesitation in agreeing with her that this appeal should be dismissed, and the sentence of death passed on the appellant be affirmed.
This is what may be called another “check point murder case”. The uncontradicted evidence in this case was that on 18/8/94 following a report that armed robbers were terrorizing people at Oluku Junction area of Benin City, the appellant, an Assistant Superintendent of Police (ASP), left their headquarters on an Anti-Crime patrol duty in company of one Police Inspector and six other ranks, all of whom were armed, and mounted a check point at a point between Ugbowo and Oluku along Benin/Lagos Road. They were to intercept vehicles coming from Lagos for searching. This exercise continued for some time until the deceased by name Remigious Mekoba drove in an unregistered Volvo Car without registration number from Lagos direction towards Benin. It was flagged down to stop by the policemen in front, but it did not stop. On seeing this the appellant came out and forced the deceased to stop. The deceased then stopped after passing the appellant a little. At this stage there was discordance or lack of unanimity between the evidence of the prosecution and the defence as follows: According to the prosecution, after stopping, the deceased reversed back to where the policemen were standing. They then asked him why he did not stop. The deceased replied that he has then stopped. At that stage the appellant approached the car, opened the driver’s door, and pulled out the deceased who was the driver, and gave him a slap. He then stepped backwards for about between seven to ten feet, pulled out his pistol and fired at the deceased who was still holding his jaw, and leaning on the bonnet of his car. To cut a long story short, the deceased fell down there, and was rushed to the nearby University of Benin Teaching Hospital, where he later died on the same day.
In his defence the appellant first made a statement Exhibit ‘A’ to the police in which he stated that after he succeeded in stopping the deceased, the driver (i.e the deceased) came down from the vehicle and asked him what they were checking when the country was not settled. The next thing the deceased did was to grab his pistol. As the deceased was struggling for the pistol with him the pistol exploded and the deceased was hit.
However, in his oral evidence in court the appellant modified his story to say that when the deceased stopped, one of the policemen went to him to ask for his vehicle particulars, but he refused to give him, whereupon an argument ensued, which necessitated the appellant going there in person. There the appellant personally demanded for the vehicle particulars from the deceased, but he replied that he had none, adding that the police were demanding for particulars while the country was burning.
Appellant then demanded for the ignition key of the car from the deceased, as he suspected the car could be stolen, since it was not registered, and had no number. But the deceased refused to surrender the ignition key, whereupon a struggle ensued. The deceased gripped the pistol of the appellant struggled to recover his pistol from the deceased. It was during this period that the pistol exploded and hit the deceased. Appellant and his men rushed the deceased to the hospital. where he later died.
At the end of the evidence and address, the learned trial Judge carefully evaluated the evidence on both sides, and came to the conclusion, based on the evidence of P.W.4 a brother of the deceased who was in the car with him and that of P.W. 2 a medical doctor who performed the post mortem examination that the type of injury found on deceased, was caused by a direct hit and not by any accidental discharge. He disbelieved the contention that there was any struggle between the accused and the appellant either for the possession of his ignition key or for the pistol. He therefore convicted the appellant of the offence of murder as charged, and sentenced him to death.
Against that judgment he has appealed to this court contending “inter alia” that the defence of “Negligence” should have been considered for him, which could have resulted in the offence being reduced from murder to manslaughter.
My learned sister has adequately considered and resolved all the issues formulated for appellant in this appeal. I want to say here that I myself have considered the defence of negligence, by reference to the case of Samson Uzoka v. The State (1990) 6 NWLR (Pt. 159) 680, which was decided by Ibadan Division of this court. In that case, which was also a “check point murder case”, in which the facts were similar, the appellant had contended that the butt of his rifle which was cocked had accidentally hit the bonnet of the pick-up van carrying the deceased, and went off involuntarily and killed the deceased. As there was no other evidence to contradict the contention that the butt of the rifle hit the bonnet of a car, we held that the learned trial Judge should have accepted the evidence and acted on it. We held that the offence of murder was not proved beyond reasonable doubt, and so reduced the offence to one of manslaughter.
In the instant case however, I find that the appellant has not given any explanation whatsoever whether credible or incredible as to why the “pistol exploded” and hit the deceased. As Omololu, J.C.A. (as he then was) said in the Uzoka case (supra) it is a well known fact that rifles (or pistols) do not go off on their own. Something must happen to make them go off involuntarily. In the absence of any explanation as to why appellant’s pistol “exploded” the conclusion must be reached that appellant had deliberately pulled the trigger of his pistol, which was in his possession at all material times and killed the deceased. As there was no dispute that the deceased died from a gun shot wound caused by a bullet from appellant’s pistol, I have no alternative but to agree with the lead judgment that the appellant was rightly found guilty of murder by the learned trial Judge.
I too therefore hereby dismiss this appeal, and affirm the conviction and sentence passed on the appellant at the trial court.
NSOFOR, J.C.A.: I have had the privilege of reading in draft the leading judgment just delivered by my Lord, Ige, JCA. I am in complete agreement with him that this appeal ought and should be dismissed.
I will only make a few comments of my own in order to support and fortify the conclusions in the leading judgment. The horrenduous nature of what happened in this case deserves nothing but outright condemnation.
The appellant, qua accused person, was arraigned on the information of the Attorney-General of Edo State with the offence of murder made punishable under Section 319(1) of the Criminal Code. Cap. 48 Vol. II. Laws of Bendel State (since defunct) of Nigeria, 1976, applicable in the Edo State now. The “particular of offence” alleged that: .
“Clement Oguonzee (m) on or about the 18th August, 1994, at Oluku Junction, along Benin Lagos Expressway within the Benin Judicial Division shot and murdered one Remigious Mekoba.”
The antecedents, the background facts of the case giving rise to the present appeal have, admirably, been set out in the leading judgment by my Lord, Ige, JCA., succinctly with laudable clarity. But that notwithstanding, I shall permit myself to refer to and carry such of the facts as may be necessary for the purposes of elucidation in order to make my comments hereunder intelligible.
Now, what was the case of the prosecution in the court of trial? The prosecution hoisted its case on the testimony of its four (4) witnesses including – Amos Nkata (P.W.1) who tendered the unsworn statement by the accused person to the police; (the accused wrote his own statement and signed it; that statement is Exhibit A), Dr. Jonathan Aligbe (P.W.2); he, it was, who performed the autopsy on the body of the deceased (Remigious Mekoba) identified to him (P.W.2) by the P.W.3 (Joshua Mekoba): and the P.W.4 (Vincent Mekoba) with whose testimony the prosecution brought its case to a conclusion. Vincent Mekoba could properly and, rightly be described as “an eye-witness” of what events that led to and, claimed the life of the deceased (Remigious). It is necessary to carry the evidence by the P.W.4 in view of what I may be disposed to say, ut infra. It is not too long.
Part of the testimony by the P.W.4 in pages 12/13 of the Record of Appeal, in-chief, read:.
“I am Vincent Mekoba. I live at No. 16 Mba Street, Ajegunle, Lagos I know Remigious Mekoba. He was my brother. On 18/8/94, I was coming from Lagos with my senior brother called Remigious in a car. We were going to Awomoma in Imo State of Nigeria. We were coming from Lagos. As we got to Benin City, policemen stopped us. We did not see the policemen in time as we were on speed. We passed the policemen and my brother Remigious Mekoba stopped the car and he reversed the car back (sic).
One of the policemen came to us and asked him why we did not stop and my brother replied that he has now stopped. Another policeman then came up to us and opened the front door and drew my brother out of the car and slapped my brother. As he slapped my brother my brother used his hands in holding his jaw and bent down and laid his head on the bonnet of his car. That policeman who drew my brother out of the car and slapped him then drew backwards to a distance of about 7 feet and pointed a gun in his hand and shot my brother through his left chest and my brother shouted my name saying.
“Vincent, I am dying, I am dying, I am dying”. He was now holding his left breast with both hands. I then rushed out of the car and held my wounded brother. Myself and my brother fell down and as I got up the policeman who shot my brother faced me and pointed his gun at me. Then one of the policemen around shouted, “No, No; No;” and the policeman who shot my brother then lowered his arm and kept the gun.
Then, myself and about four of the policemen conveyed my brother to the waiting pick-up of the police. After about three minutes the policemen removed my brother from their pick-up van and brought him into my brother’s Volvo car. One of the policemen took the driver’s seat in my brother’s Volvo car and he asked me to enter the car. The policeman then drove my brother’s car with my brother and myself inside it to the University of Benin Teaching Hospital, Benin City. When we got to the hospital one of the doctors came and asked what happened and when I told him what happened he shouted “Jesus”. The policeman was asked to come and sign some papers in the hospital. My brother was then taken to the mortuary, I can identify the policeman who slapped and shot my brother. The accused person is that policeman who drew my brother out of the car, slapped him and drew back from my brother for a distance of about 7 feet before pointing the gun at my brother and shooting at my brother.”
So, this was an account by an eye-witness of how a proposed journey from No, 16 Mba Street, Ajegunle, Lagos to Awomama, Imo State of Nigeria, ended abruptly for and with the deceased (Remigious Mekoba) at a police-check-point in Benin-City, Edo State of Nigeria on the 18th of August, 1994.
The P.W.4 (Vincent Mekoba) was not spared a cross-examination for or by the defence. Cross-examined by counsel. (Osifo, Esq.), the P.W.4 testified further, in pages 13/14 of the Record of Appeal, inter alia:-
“I made a statement to the police. In my statement to the police I told the police that my brother drove pass (sic) the police. As at the time I was making my statement to the police I was still afraid and not composed. The policeman who was recording my statement was not holding a gun.”
But part of the minute by court, in page 14 of the Record of Appeal was:”
Court: Osifo, Esq., tenders the statement of the witness to the police and Oviame Legal Officer, objects.”
The statement was, nonetheless, admitted in evidence and it was marked as Exhibit B.
Answering a question, still in cross-examination, the P.W.4 testified, in lines 10 to 14 of page 14 of the Record of Appeal, thus:
“When the policeman slapped my brother, my brother did no other thing apart from shouting, holding his jaw with both hands and putting his head on the bonnet of his car. I refute the suggestion that my brother engaged the policemen in a scuffle and I deny that it was during (the) scuffle that the gun exploded and hit my brother.”
The appellant, qua accused, pleaded “Not guilty” at the trial. Now, what was the defence case, on oath, at the trial?
Before I embark on the discovery of what the defence case at the trial was, I shall pause here for a while for one or two comments on the admissibility of the extra-judicial statement by the prosecution witness, (P.W.4), to the Police. (Exhibit B), for the purposes of completeness in treatment. I am not unaware, indeed, I am fully aware of the fact that it, (Exhibit B) is not a subject of any challenge herein. No.
Now, the Law of Evidence is a “unity”. Subject to what statutory exception there be or, may be, it applies with equal force and potency in both civil and criminal trials in our courts. Relevancy, admissibility and, proof are distinct concepts and departments of the law of evidence. To be admissible at all, a fact must be a relevant fact. But some relevant facts may not be receiveable in evidence or admissible because they may be remotely relevant. The above, therefore, opens the doors to me to section 6 of the Evidence Act Cap. 112 Laws of the Federation, 1990. The proviso to section 6(b) of the Evidence Act is relevant for my comments herein. It reads:
“6(b) this section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force.”
One of such laws, “for the time being in force”, is the law against hearsay.
The “Best Evidence Rule” demands that only the best evidence be given, subject of course to the exceptions if there be. See Sections 93 and 94 of the Evidence Act, subnomen:
“Primary and Secondary Evidence.”
The evidence by the P.W.4 (Vincent Mekoba) on oath is a “primary” evidence. It is the “best evidence”. Pure and simple. Nothing more and nothing less. His extrajudicial statement, (Exhibit B), is not. In the hands of any person including, the counsel to the accused, who sought to and did tender it as evidence, it was (or is) hearsay evidence.
The unsworn statement (Exhibit B) has only a limited use it may be made of. Very limited use, indeed, vide section 199 of the Evidence Act Cap. 112 Laws of the Federation, 1990.
The question, now, arising becomes this.
Q:-Was the statement (Exhibit B) tendered in evidence and received as evidence to contradict the P.W4? Section 199 of the Evidence Act (supra) provides, inter alia, that-
“A witness may be cross examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, If it is intended to contradict him by the writing, his attention must, before the writing can he proved, be called to those parts of it which are to be used for the purpose of contradicting him.” (The italics are mine). Section 199 (supra) provides the mechanics for its applicability and use. Was Exhibit B properly utilized? Was there, “ex facie”, the Record of Appeal, a compliance with Section 199 of the Evidence Act (supra) to warrant the tendering and the reception of the unsworn statement by the P.W.4 as evidence? And section 199 is, in my respectful opinion mandatory.
I have, “suo motu”, acting “ex proprio motu” undertaken the above exercise, as I said above, in the interest of completeness in treatment to put the points aside. I decline to record any answers to my above posers. Why? Only because and because only whatever the answers be, rightly or wrongly, is “obiter dictum”, unnecessary for the determination of this appeal, one way or the other. Therefore, “let what is broken so remain”. See Tennyson’s “The Lotus Eaters”.
Now, to the defence case at the trial; The accused person testified, “viva voce”. Thereafter, he closed his case. He summoned no other witness. His evidence is contained in pages 15 to 17 of the Record of Appeal. The evidence is not too long. I will, therefore, reproduce it.
Part of the evidence by the accused read:-
“I did not murder Remigious Mekoba. On 18/8/94, I reported at the Operations and Training Office at about 7a.m. and booked myself for anti-crime patrol duty.
I assembled my men comprising one Police Inspector and six rank and file and left Benin City for Lagos Road for anti-crime patrol. I received information that robbers were operating along Benin/Lagos Road. At a certain point between Ugbowo and Oluku along Benin/Lagos Road, ordered my men to come down. I lined them up on the left hand side when facing Lagos direction. I put them in position and they were to intercept vehicles coming from Lagos. I put three of them in front and put four at the back while I was standing at the centre. The two groups were about two poles from each other and I was at the centre. I ordered the police in front to stop all private cars for searching.
When the policemen in front stopped the Volvo and it did not stop, I noticed that it was an unregistered Belgium car without number. When I observed that the driver would not stop, I personally came out and forced him to stop. He drove pass (sic) me a little and stopped before getting to one of my policemen. The policeman then went to him and demanded for the particulars of the vehicle. Later there was argument between them. This drew my attention to go there personally. The 4th prosecution witnesses was in the car and one other person on Army uniform was sitting behind in the car.
The policeman told me that the deceased refused to produce his car particulars. I personally demanded the vehicle particulars from the deceased who told me that he had none, adding that we are demanding particulars when the country is burning. Since the car was unregistered and it had no number, I suspected that it was stolen. I then demanded the ignition key of the car from the deceased. I asked him to hand the ignition key to me. He refused and resisted. I then insisted to take the key from him. He in turn gripped my pistol. I struggled to recover my pistol from him. It was during this period that the pistol exploded and hit him. My men and I rushed him to the emergency section of the University Teaching Hospital for attention. The doctor later came to certify that he was dead.”
The accused was, however, cross-examined by Mr. Oviawe for the prosecution. Answering a question, the accused stated in lines 19 to 20, page 16 of the record.
“We were stopping at that point on the Lagos/Benin Expressway on 18/8/94 for the first time on Anti-Crime Patrol.” (The italics are-supplied by me for emphasis).
Continuing, the accused further testified, still in cross-examination, as follows:-
“I forced him to stop by raising up my right hand and asked him to stop immediately. I equally drew my pistol which I then held in my hand. I think that it was the threat of the pistol I was drawing and was holding that made the deceased to stop the car. The pistol was still in my left hand when I went to the deceased and demanded the key of his car from him. I am not left handed my finger was not on the trigger when I was holding the pistol in my left hand. At no time was my finger on the trigger of the pistol.” (The italics are supplied by me, again, for emphasis).
And in page 17 at lines 1 to 11 of the Record of Appeal, the accused pressed further in cross examination, stated:
“The other policemen were now behind the Volvo which had already passed them. Myself and five other then carried guns and were armed that day. Some of the policemen behind me and towards whom the deceased was driving had rifles. It is not correct that unless the trigger of a rifle is pulled, it does not fire. If there is a struggle for possession or control of a pistol, even though no body touched the trigger, the pistol may fire. I have not come to tell this court any lie. It is not true that the deceased could not have been struggling for the possession of the pistol with me when I had five armed policemen around me.”
How did the trial Judge handle and treat the evidence adduced before him?
It is based on the totality of the evidence that a decision in any given case is ultimately based. Now, belief or disbelief is no magic wand which a trial court waves at will. When a story is probable, reasonable men and women tend to accept it. They believe it as true. But when a story is improbable, reasonable men and women tend to reject it. They disbelieve it as untrue. And Aristotle said many years ago “Probability has never been detected bearing a false testimony”.
Belief or disbelief is a mental reaction to the facts proved in evidence by evidence; their possibilities and probabilities. And I am tempted to ask this:
Q:- Would it most probably be that the deceased (Remigious), an unarmed Nigerian citizen, defenceless, having been stopped by the accused person, an Assistant Superintendent of Police, armed, would be struggling for the possession of the accused’s pistol and the other policemen, armed, subordinates to the accused, would just be standing and looking and watching the struggle and do nothing, just nothing in the circumstances? They, equally, saw, from the trend and drift of the evidence as led, all that transpired, before the alleged explosion of the gun in the hands of the accused.
Now, to the learned trial Judge’s handling of the evidence! It is to be mentioned, for sake of it being said, that the learned Judge was sitting in a dual capacity. He was a Judge of law, qua Judges of law, and a Judge of facts, qua, the Jury, those twelve (12) reasonable men and women.
The learned trial Judge made an elaborate review, exhaustively comprehensively of the whole evidence as led before him. He made some far-reaching and vital findings of fact. Writing in pages 32/33 of the Record of Appeal the Judge expressed himself, inter alia, as follows:-
“From the evidence of the 2nd (Dr. Jonathan Aligbe) and 4th prosecution witnesses which I now believe, I hold that the gun (pistol) which the accused held on 18th April, 1994 did not accidentally explode or discharge. I do not believe the accused person when he testified that the pistol exploded when the deceased and himself were struggling for the possession of the pistol.”
In page 33 of the Record lines 3 to 10 the learned Judge, further wrote:
“There is no evidence that the deceased or anyone in his car on that day was armed. Even if I was to believe that the deceased had any scuffle with the accused, which fact and piece of evidence I do not believe, the accused will not be entitled either under the defence of self defence or provocation, to use a deadly weapon like the pistol in gunning down the deceased who was not shown to be armed or shown to be on the run as a criminal.”
In lines 17 to 20, ibidem, the learned Judge held:-
“From the evidence of the 4th prosecution witness (Vincent Mekoba) which I believe, and which evidence as to distance and cause of death is corroborated by the evidence of the 2nd prosecution witness, the shooting of the deceased was premeditated and therefore, not sudden or accidental.” The learned trial Judge disbelieved the defence story that the deceased gripped the pistol in the accused person’s left hand. He disbelieved the accused that the pistol “exploded”, either accidentally or in the course of a struggle between him (the accused) and the deceased. The Judge wrote, also in page 33 lines 25 to 29 of the Record:-
“I do not believe that the deceased gripped the pistol of the accused person or that the pistol accidentally fired or accidentally exploded during any struggle for the possession of the pistol. I do not believe that the deceased attacked the accused person.”
On the totality of the evidence before him, the trial Judge, convicted the accused of the offence of murder, as charged and, sentenced him accordingly. See section 367 subsection (2) of the Criminal Procedure Act.
When the appeal came before us for the hearing on the 3/6/97, learned counsel to the appellant, Mr. Ihensekhien, Senior Advocate of Nigeria (SAN), in his speech in amplification of the appellant’s brief of argument, urged us to interfere with the conviction of the accused and, “eo ipso”, return a verdict of manslaughter, id est, “Involuntary homicide.”
Mr. P.A. Akhiero, learned Principal Legal Officer for the respondent, “replicando”, urged us contrariwise. The Principal Legal Officer submitted that there was no evidence of negligence by the “defence”. The record, he submitted, does not bear it out.
Now, My Lords, would your Lordships of this court accede to the petition by the learned Senior Advocate of Nigeria, in view of the solid findings of facts, my Lords, solid facts, supported by legally receiveable evidence and, legally received? If so, my Lords, “Qua lege”? On what principle of law and, “Quo iure”?; on what evidence? And it is accepted that an appeal is not an inception of a new case.
Now, in a trial for murder, the trial court has a duty to consider all defences raised by the evidence. It is immaterial that the accused person did not specially set up those defences. It is also, immaterial that those defences are contradictory. See: William Hopper (1916) 11 CR. App. R. 136, Per the Lord Chief Justice at page 141. Vide also, Benjamin Henry Dinnick (1910) 3 CR. App. 77 at page 79. Having said this, one must quickly add that it is no part of the duty of a trial court to go on a wild goose chase looking for defences for an accused person. No court has a duty to conjecture or imagine defences in respect of which no credible evidence exists. The emphasis is on ;”credible evidence”. It is no part of the duty of any court to speculate upon possible defences. See Coker, JSC., in Ogunmola Ojo v. The State (1972) 12 SC. 147 at page 150.
In the opinion of the Judicial Committee of the Privy Council in Bullard v. The Queen (1957) AC. 635,
“every man on trial for murder has a right to have the issue of manslaughter left to the jury, if there is any evidence on which such a verdict can be given … To deprive him of this right must of a necessity constitute a grave miscarriage of justice.”
See The Queen v. Raji Afonja & 6 Ors. (1955) 15 WACA 26.
My Lords, based on the record of appeal before me which I studied with meticulous assiduity, I confess that I have unsuccessfully struggled to see, from the printed evidence on record, on what evidence as led, a verdict for manslaughter could ever or, would be sustainable. There is absolutely none, my Lords.
I found the submission by Mr. Ihensekhien, S.A.N. less than persuasive. I rejected it. It is most deservingly I should. So, I did.
The learned Senior Counsel to the appellant had adopted and relied on the appellant’s brief of argument. It was contended from pages 5 to 7 of the brief (and I seek leave, to borrow the language of the brief), that,
“We concede to the doctor the evidence of the extent of the injury resulting from the discharge but our main contention is as to the distance from which the pistol exploded. The trial Judge relied on this as forming part of the ingredient amounting to corroboration.”
It was contended, further, that the trial Judge ought to have warned himself on the evidence of P.W.4; “who is the brother of the victim as decided in the case of Hausa v. The State (1992) 1 NWLR 219, 600 at 611.”
It was the further contention by the senior counsel, in page 6 of the appellant’s brief, (again I am borrowing the language of the brief), that:-
“It is our submission that it is most strange that the prosecution did not call even one of the policemen who was in. the team to give evidence.”
For support, reliance was placed on section 149(d) of the Evidence Act.
I shall consider and deal with the submissions by the Senior Advocate of Nigeria in two stages.
(A) It was contended that the P.W.4 (Vincent Mekoba) was (or is) a brother to the deceased. And I ask the question:
Q:- And so, what?
(a) He was a competent witness for the prosecution. The trial Judge saw and heard the witnesses testify. He watched them testify. He did not believe the accused that there was a third person or passenger in the Volvo car with or in the company of the deceased (Remigious Mekoba) and the P.W.4, (Vincent Mekoba), who was dressed in an army uniform. The trial Judge rejected that piece of evidence by the accused.
So, “cadit quaestio”. The matter ends.
The above apart, one is disposed to ask this:
Q:(2) Would the prosecution suborn as a witness a person who, though not a brother of the deceased, was not in the car together with the deceased and the P.W.4 to testify, in order, only, to provide evidence of what really happened at the check-point on that fateful 18th of August, 1994 to secure a conviction?
Q:(3) Is there any provision in any law which compels the prosecution to prove its case except as provided for and by Section 138(1) of the Evidence Act Cap. 112? If it can do so, through the testimony of one witness only?
Delivering the judgment of the Supreme Court in Anthony Igbo v. The State (1975) 9-11 S.C. 129, Per Obaseki, Ag. J.S.C. (as then, he was) at pages 134 to 135:
“If the evidence of a single witness sufficiently proves the case against an accused person and the trial court accepts the evidence, there is no rule of law or practice, disentitling the court from convicting on the evidence. In the case of C.O.P v. Daniel Nunoo Kwashie (1952-1953) 14 WACA 319 decided on the 4th day of June, 1953, Foster-Sutton, P., dealing with a similar point said at page 320:
“It is true that the prosecution’s case depended upon the evidence of one police constable but in announcing his decision the learned District Magistrate said, “I believe the evidence of the prosecution. I have no doubt at all in finding the accused guilty of the offences before the court”.
it being clear that there was evidence before the Magistrate upon which he could properly reach the conclusion he did, we are of the opinion that Benson, J. erred in reversing the decision. The Magistrate had the advantage, denied to the appellate Judge of seeing and hearing the witnesses and there is no rule of law or practice which should make a court hesitate in convicting upon the evidence of one witness in a case where there is no suggestion that the witness is an accomplice, if the court is satisfied with the evidence given.”
Ademola, C.J.F., in Joshua Alonge v. Inspector-General of Police (1959) SCNLR 516; (1959) 4 FSC. 203 at page 205 had this to say an the similar point:
“We are not prepared to say that a magistrate may not convict on what is commonly called “oath against oath” if, as in this case, he has sufficient reason to prefer the evidence of the witnesses for the prosecution to that of the accused.”
And in R. v. George Kuree (1941) 7 WACA 175, Kingdom. C.J. Nigeria, delivering the judgment of that court, in which Petrides, C.J., Gold Coast and Strother-Stewart, J., concurred, at page 177 put the point, admirably succintly,
“It is well established that it is the duty of the prosecution to place before the court all available relevant evidence. This does not mean, of course, that a whole host of witnesses must be called upon the same point, but it does mean that if there is a vital point in issue and there is one witness whose evidence would settle it one way or the other. that witness ought to be called.”
See also Rex v. Kofi Mansu (1947) 12 WACA 113, per Harragin, C.J., at page 114: Philip Omogodo v. The State (1981) 5 S.C. 5 at pp. 28/29.
My Lords, I think that the above are an answer enough and conclusive of the submission by the senior counsel, in the appellant’s brief for a failure, as alleged, of the prosecution to call as a witness or witnesses any of the policemen in the team of the accused person. Similarly, it disposes of the submission, based on section 149(d) of the Evidence Act (supra), wrongly in my view.
The evidence by the P.W.4 (Vincent Mekoba) was accepted and believed by the trial Judge, who saw him testify and watched him testify. Secondly, there is no suggestion, (and I think, no such suggestion could ever be made) that the P.W.4 was an accomplice. No. The learned trial Judge qualified him (P.W.4). in page 35 line 14 of the Record, thus:
“The 4th prosecution witness is the only eye witness in this case.”
My Lords, would you allow your good selves to fall into the very error for which the West African Court of Appeal (WACA) in the Commissioner of Police v. Daniel Nunoo Kwashie case (supra), at page 320 of the Report criticized the appellate High Court (Benson, J.), it being clear that there was (or is) evidence before the trial Court (G.E. Edokpayi, J.) upon which it could properly reach the conclusion it did? Of course, most certainly the answer is a capital, No; “Nullo modo”.
The trial Judge was under some heavy fire for relying on the evidence by Dr. Jonathan Aligbe (P.W.2) on the question of the “distance” from which the accused person’s pistol “exploded” to claim the life of the deceased. That part of the evidence by the P.W.2 is contained in page 9 lines 32 to 33 of the Record. It reads:-
‘The range of the gun shot to deceased in my opinion was between 7 to 10 feet.”
When cross-examined by Mr. S.I. Osifo for the defence, the P.W.2 in an answer said in page 10 lines 12 of page 16 of the Record:-
“The gun would have been fired within the range of 7 and 10 feet from the deceased. If two persons were struggling for possession of the gun and it exploded it cannot inflict the type of injuries I found on the corpse of the deceased and which I have just described to this court.”
It is the above evidence that learned the trial Judge the sting from the senior counsel. Now, agreed that the P.W.2 (Dr. Jonathan Aligbe) be no expert in measuring distances. He did not, of course, claim to be any such expert. And granted, too, that his evidence of the “distance” be and is an opinion evidence. What is the legal consequence accepting and believing the P.W.2 ? Apart from the evidence by the P.W.2 of the “distance”, was there no other credible evidence, believed by the trial Judge, on the point? The answer to above poser holds a key to and disposes of the submission by Mr. Ihensekhien, S.A.N.
Now, a good starting point for me for an answer to the poser is J.A. Ajayi v. Olu Fisher (1956) SCNLR 279; (1956) 1 FSC. 90, per Nageon de Lestang, F.J. said he in page 92 of the Report:
“Conversely, the wrongful admission of evidence may be a ground for the reversal of a decision when it appears to the Court of Appeal that the evidence has affected the decision and that such decision would have been different if the evidence had not been admitted. But what is the Court of Appeal to do when it cannot assess the effect of the inadmissible evidence. Is it entitled to reverse the decision? Clearly not in my view.
The position seems to me to be this. If the Court of Appeal is of the opinion that the inadmissible evidence cannot reasonably have affected the decision, it will not interfere. If it is of the opinion that without the inadmissible evidence the decision must be different, it will interfere. If, however, there is other evidence in the case and although the Court of Appeal thinks that the inadmissible evidence must have influenced the decision, yet it is unable to say that without the inadmissible evidence the decision would or would not reasonably have been different, its proper course will be to order a retrial.” (The italics are mine).
Now, apply the principle in the J.A. Ajayi v. A. Olu Fisher case (supra), to the evidence as led by the prosecution! Taking the view, most favourable to the appellant, I have no hesitation that, discarding the alleged opinion evidence by the P.W.2, there is evidence, enough, by the P.W.4, (needless, quoting the P.W.4’s evidence, again and again, “etiam atque etiam”), which the trial Judge believed as to the “distance” at which the accused fired the pistol at the deceased to kill the deceased on the 18/8/94. “Cadit quaestio”. Therefore, I, rejected the learned submission by the senior counsel.
Now, one last word, on the submission of “accident” or an “accidental discharge” of the pistol of the accused person. This leads me, logically naturally, to section 24 of the Criminal Code Act. Needless for me reproducing the section, “hic el nunc”. Suffice it to say that a successful plea or defence of “accident” makes the killing, “Homicide per infortunium”. On this, see Ajegbo, J.S.C. delivering the judgment of the court which included Brett and Onyeama, S.C.J.J. in Ubochi Iromantu v. Queen in case No. FSC 223/64 (1964) 1 All NLR 311.
An event cannot be discussed as accidental, if it is either intended or foreseeable. No. The law imputes to a person who wilfully commits a criminal act an intention to do the very thing which is the probable consequence of the act which constitutes the “Corpus delicti”, which actually ensues. See R. v. Faulkner (1877) 13 Cox C.C. 550 at page 561; R. v. Martin (1881) 14 Cox C.C. 633 at p. 637: Stephen’s Digest of Criminal Law says:
“An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it and when its occurrence, as a consequence of such act, is not so probable that a person of ordinary prudence ought under the circumstance in which it is done, to take reasonable precaution against it.
Now, at the risk of a repetition, but necessary for the purposes of clarity and elucidation, I reproduce once again, part of the evidence by the P.W.4 at page 14 of the record. He said:-
“When the policeman slapped my brother, my brother did no other thing apart from shouting, holding his jaw with both hands and putting his head on the bonnet of his car. I refute the suggestion that my brother engaged the policeman in a scuffle and I deny that it was during (the) scuffle that the gun exploded and hit my brother.”
The version of the evidence by the accused in page 16 of the Record of Appeal was:
“I struggled to recover my pistol from him. It was during this period that the pistol exploded and hit him.”
Now, there were two conflicting versions of the evidence before the learned trial Judge. It became a straight question of credibility. Which version of the evidence did the Judge prefer and believe? This is the all important question. The learned trial Judge resolved the conflict.
He accepted and believed the version of the evidence by the P.W.4. He, thereby, rejected the version of the evidence by the accused person. He wrote in page 38 of the Record of Appeal:
“I accept the evidence adduced by the prosecution in support of this case as true and reject the evidence of accidental discharge put up by the accused person as untrue.”
The above finding is by no means perverse. I confess I see no reason whatsoever to interfere with the Judge’s finding.
In conclusion, therefore, I hereby do affirm the “decision” by the Court below and, “eo ipso”, do hereby dismiss the appeal accordingly.
It is for the above reason and for the reasons more fully detailed in the leading judgment that I do agree, “una voce” with Ige, J.C.A., in the reasoned conclusions that –
“This appeals fails as lacking in merit”, and I hereby, do confirm the conviction of the appellant, speaking for myself, of this “cold-blooded” murder and also the sentence of death passed on the appellant by the court of trial (Edokpayi, J.) on the 1/3/96.
Appeal dismissed.
Appearances
Chief Ihensekhien, SAN;
Messrs L.O. Akhidenor;
H.O. Ofuya; For Appellant
AND
P.A. Akhibiero, P.L.O. (Edo); For Respondent
