HARRISON OWHORUKE v. COMMISSIONER OF POLICE
(2012)LCN/5560(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of July, 2012
CA/B/32c/2007
RATIO
EVIDENCE: BURDEN OF PROOF IN CRIMINAL MATTERS
Authorities abound and by the Evidence Act Section 137 (1) that it is the duty of the prosecution to prove the case against an accused person beyond reasonable doubt. The burden on the prosecution never shift. This is brought into special prominence by the constitutional right of the accused person to the presumption of innocense as provided by Section 36(5) of the 1999 Constitution. The prosecution must prove the element of the offence strictly as contained in the charge because the purpose of the charge is to give notice to the defence of the case it is put up against him. See F.R.N. v. USMAN (2012) 8 NWLR (Pt.1301) 141 at 156-157; OKORO v. THE STATE (1998) 14 NWLR (Pt.584) 181; OSHO v. APE 1998 8 NWLR (Pt.562) 492. PER GEORGE OLADEINDE SHOREMI, J.C.A.
CRIMINAL LAW: INGREDIENTS OF PROVING THE CASE OF MURDER
The prosecutor in a case of murder must prove the following to secure a conviction viz;
- a) That the deceased had died
- b) That the death of the deceased was caused by the accused and
- c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. PER GEORGE OLADEINDE SHOREMI, J.C.A.
EVIDENCE: ADMISSIBILITY OF A CONFESSIONAL STATEMENT
Confession does not become inadmissible merely because the accused person denied having made it. See MBANEGEN SHADE v. THE STATE (2005) 8 SCM 128.Therefore confessional statement without any more can secure a conviction. YAYA v. THE STATE (2005) 1 Nigeria Criminal Case 24. PER GEORGE OLADEINDE SHOREMI, J.C.A.
CRIMINAL LAW: WHETHER THE DEFENCE OF PROVOCATION AND SELF DEFENCE ARE COMPACTABLE
The defence of provocation and self defence are not compactable.
A defence of self defence is an admission the accused did the act but reacted to the danger with which he was confronted. In the cases under consideration I am of the opinion that the Appellant was not serious in putting up this defence on the question of provocation. Premeditated until is incompactible with the defence of provocation so that an accused who kills intentionally cannot be said to have been provoked. See INYAMA v. THE STATE (1972) 3 SC 94; UWAEKWEGHINYA v. THE STATE (2005) NIG. Criminal Cases 369. PER GEORGE OLADEINDE SHOREMI, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
Between
HARRISON OWHORUKE Appellant(s)
AND
COMMISSIONER OF POLICE Respondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Delta State High Court sitting at Oleh Judicial Division delivered on 10th day of May, 2011 in which the Appellant was convicted for murder.
The facts leading to this appeal are that –
the Appellant Harrison Owhoruke was charged with the offence of murder of one Augustine Eveh (m) punishable under Section 319(1) of the Criminal Code Cap. 48, Volume II, Laws of Defunct Bendel State of Nigeria, 1976. The particulars of the offence are the “Harrison Owhoruke (m) on the 4th day of November, 2004 at Uruto Quarters Ozoro within the Oleh Judicial Division murdered on Augustine Eveh (male)”.
In proof of its case, the prosecution called a total of four (4) witnesses while the Appellant testified in his defence but called no witness.
At the conclusion of trial, the learned trial Judge found the Appellant guilty as charged and sentenced him to death.
Dissatisfied with the judgment, the Appellant has appealed to this Honourable court. The Appellant notice and grounds of appeal are at pages 44-46 of the record of Appeal. By motion dated 15th August, 2007, the Appellant was granted leave to file additional grounds of appeal.
Original ground of appeal are contained at pages 4-43 of Record. I quote with particulars
GROUND 1
The learned trial Judge erred in law and on the facts when he held that exhibits C and D, the extra judicial statements made by the accused to the police and his evidence in court are inconsistent.
GROUND 2
The learned trial Judge erred in law and on the facts when he failed to believe the evidence of the accused/Appellant.
GROUND 3
Judgment is against the weight of evidence. Additional grounds of appeal shall be filed upon the receipt of the record of proceedings.
The additional grounds of appeal are as follows:
GROUND 4
The learned trial Judge erred in law and on the facts when he held at page 43 of the record as follows of the record as follows:
“…I believe the prosecution witnesses that the accused not under provocation, not acting in self defence nor accidentally stabbed the deceased with a broken bottle on the neck leading to the transcending of the major blood vessels into two…”.
GROUND 5
The learned trial Judge erred in law and on the facts when he failed to believe the testimony of the Appellant.
GROUND 5
The learned trial Judge erred in law and on the facts when he held at page 40 lines 8-15 of the record as follows:
“In the circumstances, it is thus very clear that there is a divergence between the accused statements to the police and his oral evidence in court. The effect is that the defence of the accused on the bases of the three versions make it difficult for the court to believe. There is no way a court can accept three versions from one single person on a single event which holding influenced his decision that the defence and or provocation of self defence did not avail the Appellant.
GROUND 7
The learned trial Judge misdirected himself in law and on the facts when he held at pages 32 – 33 lines 19-1.
“…he attack on exhibit B, the 2PW statement made on 9/11/04 is neither here nor there. Why? The issue as to who stabbed the deceased is not in doubt what then is the trouble with the role of
Omedo Christopher whether he held the hands of the deceased or not…”
GROUND 8
The learned trial Judge erred in law and on the facts when he held that it was the defence provided for 2PW to run from Uzezi by the deceased that appeared to have provoked the accused, into stabbing the deceased.
GROUND 9
The learned trial Judge erred in law and on the facts when he held that the defence provided by the Appellant was merely an after thought.
GROUND 10
The learned trial Judge erred in law and on the facts when he held that the statement made by the deceased Harrison had stabbed me qualified as a dying declaration.
In all the Appellant filed 10 grounds of appeal as stated above.
In line with the practice and Rules of this court briefs of arguments were exchanged by parties and when the appeal came up for hearing B. D. Ojumah Esq. of counsel to the Appellant adopted and relied on his brief of argument of the Appellant dated 11/3/90. He adopted and relied on the brief as argument in favour of the Appellant and he urged the court to allow the appeal.
I. A. Onweche Senior State Counsel Delta State of Nigeria adopted and relied on his brief dated 5/2/11 but deemed properly filed and served on 25/1/12.
He urged the court to dismiss the appeal. Let me quote part of the judgment complained of for ease of reference-
“In my humble opinion, the story of the accused that he somersaulted when he fell over a chair and the bottle injured the deceased is an after-thought. On 5-11-04 within 24 hours of the incident when the facts were still very fresh in his memory he said:-
“And I used it to stab him on his neck”.
There are no facts to support the defence of accident. Was the accused provoked? The law is settled that in deciding whether or not there is provocation regard must be had to:-
a) The nature of the act by which the offender caused death.
b) The time which elapsed between the provocation and the act which caused death.
c) The offenders conduct during that interval.
d) All other circumstances tending to show the state of his mind.
When provocation is relied upon as a defence to a charge of murder the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter. The provocation must be such as temporarily to deprive the person provoked of the power of self control, and the result of which he commits the unlawful act which causes death.
Based on the facts before me, what was the provocative act of the deceased towards the accused?
Did the accused lose his power of self control?
What of the mode of resentment? Applying these ingredients of provocation to the facts before me. I am unable to reach the conclusion that the defence of provocation is available to the accused. After all, the issue of provocation are questions of fact on which the judge is in the best position to make findings. See Oghor vs. State (1991) 3 NWLR (pt. 139) 471 at 496 and 498. There is no evidence of unprovoked attack upon the deceased in the circumstances where the unprovoked attack was sudden and unavoidable and the accused cannot escape the probable fight due to where he was when the unprovoked attack began. See Arala v. State (2004) All FWLR (Pt.218) 1102 at 1146.
On the whole, I believe the evidence of the prosecution witnesses in support of the charge of murder against the accused. The 1PW, the doctor who performed the post-mortem as to the cause of the death of the deceased – Augustine Eveh; the 2PW who saw the accused with the deceased, who over heard the deceased assert that he was stabbed by the accused, the 3PW who identified the corpse and the 4PW who recorded the statements of the accused. I disbelieve the accused. His defence was merely an after – thought. It is sad that Uzeziwho started this ugly event is not at trial with the accused. Christopher Omede is not at trial. One Ezekiel is also not at trial. The accused who came into the fray is now on his own faced with the offence of murder. I believed the prosecution witnesses that the accused not under provocation, not acting in self – defence nor accidentally stabbed the deceased with a broken bottle on the neck leading to the transecting of the major blood vessels into two. The injury was not self inflicted and the cause of death was severe bleeding secondary to the stab wound. The root cause of this ugly event is a woman, is named Blessing, said to be a girl friend to the 2PW. Since man was created and Evegiven to him as a wife, he has been contending to have peace. The said Blessing in this case in my view has not brought blessing to either the 2PW nor the accused or the deceased. Blessing has brought hardship and sorrow to their respective families. Yet men will still run after women. I totally reject the defence of the accused. I hold that this case was proved beyond reasonable doubt against the accused. I reject the defence of the accused. I upheld the submissions of S. O. Monye – Asst. Director for the State and with due respect in spite of the hardwork by B.O. Ojumah for the accused, say that I disagree and reject his submissions. I find the accused guilty as charged and convicted accordingly for the offence of murder punishable under Section 319(1) of the Criminal Code Cap. 48, Vol. II, Laws of the defunct Bendel State 1976 as applicable in Delta State”.
The Appellant from the 10 grounds of appeal distilled 7 (seven) Issue which he couched as follows:
ISSUES FOR DETERMINATION
1) Whether the learned trial Judge was right in holding that he believed the prosecution’s case when there was no prosecution witness save the appellant that witnessed the very circumstances/encounter in which the deceased was stabbed. Original ground 2
2) Whether the learned trial Judge was right in holding that the motive/reason why the accused stabbed the deceased was as a result of the defence the deceased provided for the 2PW to escape
from Uzezi. Based on additional ground 8.
3) Whether the learned trial Judge did not miss the point in issue in his evaluation of exhibits A and B and the circumstances they were tendered and therefore has not occasioned a serious miscarriage of justice. Based on additional ground 7.
4) Whether the learned trial Judge was right in believing the prosecution’s case in the face of manifest variations/inconsistencies in the evidence of 2PW in court and his extra judicial statements to the police with regards to the circumstances/transaction in which the deceased was stabbed. Based on additional ground 4.
5) Whether the learned trial Judge was right in holding that the statement made by the deceased Harrison has stabbed me constitutes a dying declaration and therefore refuted the defence(s) available to the accused/appellant. Based on additional ground 10.
6) Whether the learned trial Judge was right in rejecting the accused/appellant’s account narrated in exhibit C and E is extra judicial statements to the police and his oral testimony in court which exhibits and testimony raise the defence(s) of self defence and or provocation. Based on additional grounds 1, 5, 6 and 9
7) Whether the learned trial Judge properly evaluated the entire evidence before him. Based on original ground 3.
I have intentionally spelt out the grounds of appeal as filed by the Appellant and also substantial part of the judgment complained of.
Viewing the grounds of appeal together as a whole and the facts contained in the Record of Appeal. I am of the opinion that two issues will survive to decide this appeal one way or the other. The judgment complained of was mainly based on the evidence of PW2 eye witness and the confession of the Appellant and the defence of provocation put up by the Appellant.
Issues that to my mind arise for determination can be classified as follows:
i. Whether the prosecution proved the charge of murder against the Appellant beyond reasonable doubt
ii. Whether the defence of self defence/provocation are available to the Appellant in this case.
The Appellant in his brief seems to be repetitive. A situation created for himself the way he couched his issues for determination. He argued that it is settled law that under the Nigeria system proof beyond reasonable doubt is a sine qua non in criminal cases. He argued that the prosecution must prove its case beyond reasonable doubt relying on so many authorities including STATE v. USMAN (2005) 1 NWLR (Pt.906) at 161; YAW v. THE STATE 2005 NWLR (Pt.917) 1 at 21; LAOYE v. THE STATE 1985 NWLR (pt.10) 832.
He restated the law that the prosecution must lead evidence to debunk facts that constitutes a defence. He argued that the prosecution failed to adduce evidence of an eye witnesses. The Appellant went at large to review the evidence of the 2nd Prosecution witness. He argued that there was contradiction in the 2nd PW evidence in court as manifested in the Record.
He submitted that before a trial court would hold that the prosecution has fulfilled the duty of proving the guilt of the accused. It must have considered the totality of the evidence before the court cites OGIADI v. THE STATE 5 MJSC 155 at 173-174.
He also argued that the statement of 2nd PW to wit “that he heard the deceased saying that Harrison had stabbed him with a broken bottle” and that piece of evidence constitute a dying declaration.
It would not be too early to say that this argument as out of tune as there was no where in the proceeding that the issue of Dying declaration was tried. He argued that the learned trial Judge picked and chose part of evidence of 2nd PW who gave two statement to the police bat refused pick the favourable part in favour of the Appellant.
He cited the case of ITULE v. QUEEN (1061) 3 All NLR 462 at 465. He argued that this is a clear case where this court should interfere with the findings of fact of the trial court as being unreasonable. He urged the court to allow the appeal set aside the judgment of the trial court and enter a verdict of acquittal.
The Respondent distilled two issue as I have done above. I therefore need not state the issues raised by him. He argued that he uncontradicted evidence adduced by the prosecution proved the case beyond reasonable doubt. He urged the court to evidence of PW2, PW4 and submitted that they linked the death of the deceased to the Appellant.
He argued that PW2 is an eye witness. He also referred to the evidence of the Doctor who performed the post-mortem Examination. He submitted that the death of the deceased was caused by the Appellant. He argued that a careful reading of Appellant’s grounds of appeal and the submission in the Appellant’s brief shows that the complaint is predicated on the alleged contradictions in the evidence of PW2 and extra judicial statement Exhibits “A” & “B”. He argued that there may be discrepancies but not contradiction that goes to the root of the charge against the Appellant.
On the issue of Self Defence/Provocation the Respondent argued that where the defence of an accused person is one of self defence it means that he admits that he did the act which resulted in the death of the deceased and was justified in doing so to protect his own life because he was in the risk of imminent danger of death. He submitted that the Appellant did not show nor give any evidence that he did it to escape imminent danger. Refers to LAOYE V. THE STATE (1985) 2 NWLR (Pt.10) 832; UWAGBOE v. THE STATE 2008 13 NWLR (Pt.1102) 621 at 648.
On the defence of provocation he submitted that to avail himself of the defence the accused must have done the act which he is charged in the heat of passion. He concluded that the Appellant had not shown that the decision of the lower court is perversed or not supported by evidence. Authorities abound and by the Evidence Act Section 137 (1) that it is the duty of the prosecution to prove the case against an accused person beyond reasonable doubt. The burden on the prosecution never shift. This is brought into special prominence by the constitutional right of the accused person to the presumption of innocense as provided by Section 36(5) of the 1999 Constitution. The prosecution must prove the element of the offence strictly as contained in the charge because the purpose of the charge is to give notice to the defence of the case it is put up against him. See F.R.N. v. USMAN (2012) 8 NWLR (Pt.1301) 141 at 156-157; OKORO v. THE STATE (1998) 14 NWLR (Pt.584) 181; OSHO v. APE 1998 8 NWLR (Pt.562) 492. The prosecutor in a case of murder must prove the following to secure a conviction viz;
a) That the deceased had died
b) That the death of the deceased was caused by the accused and
c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
The evidence relied upon to establish a charge of murder may be direct or circumstantial which ever way it must establish the guilt of the accused person beyond reasonable doubt. The onus on the prosecution never shift. SOLOMON ADEKUNLE v. THE STATE (2006) 10/11 SC 147.
Let me at this point deal with the statement of the Appellant which he claimed before the admission of being direct, unequivocal statement of an accused can ground a conviction even if retracted by the accused. Confession does not become inadmissible merely because the accused person denied having made it. See MBANEGEN SHADE v. THE STATE (2005) 8 SCM 128.Therefore confessional statement without any more can secure a conviction. YAYA v. THE STATE (2005) 1 Nigeria Criminal Case 24.
Before I decide on whether the prosecution has proved its case beyond reasonable doubt in this case under consideration let me consider the defences of Provocation/Self defence put up by the Appellant’s counsel I am the view that the Appellant is confused as to which of the defence he should take advantage of. The defence of provocation and self defence are not compactable.
A defence of self defence is an admission the accused did the act but reacted to the danger with which he was confronted. In the cases under consideration I am of the opinion that the Appellant was not serious in putting up this defence on the question of provocation. Premeditated until is incompactible with the defence of provocation so that an accused who kills intentionally cannot be said to have been provoked. See INYAMA v. THE STATE (1972) 3 SC 94; UWAEKWEGHINYA v. THE STATE (2005) NIG. Criminal Cases 369.
Without much ado the trial Judge was right in his decision with regards to the confused defence of the Appellant.
From the facts of this case the trial Judge had considered all the facts before coming to the conclusion reached. The prosecution has proved the case of murder against the accused person and the conclusion is not perversed therefore not liable to be interfered with.
The two issues postulated by me are resolved against the Appellant. The judgment of the trial court i.e. Delta State High Court of Justice sitting at Oleh delivered on 10th August 2006 is affirmed.
The appeal is unmeritorious and it is dismissed.
RACHAEL CHIKWE AGBO, J.C.A: I agree.
OYEBISI FOLAYEMI OMOLEYE, J.C.A: I had the privilege of reading in draft the judgment just delivered by my learned brother, Shoremi, JCA. I agree that this appeal is lacking in merit. It is hereby dismissed by me accordingly.
Appearances
B. O. Ojumah Esq.For Appellant
AND
Mrs. I. A. Onweche SSC Delta State with Mrs. A. E. OkiemureFor Respondent
