IDOKO OCHANI V. THE STATE (2017)

IDOKO OCHANI v. THE STATE

In The Supreme Court of Nigeria

On Friday, the 28th day of April, 2017

SC.255/2011

 

JUSTICES

WALTER SAMUEL NKANU ONNOGHEN    Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD    Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN    Justice of The Supreme Court of Nigeria

EJEMBI EKO    Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE    Justice of The Supreme Court of Nigeria

Between

 

IDOKO OCHANI  Appellant(s)

AND

THE STATE  Respondent(s)

 

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): The appellant herein (2nd accused), his father (1st accused) and his sister (3rd accused) were all arraigned before the High Court of Benue State, sitting at Makurdi on a two-count charge as follows:
“1. That you, OCHANI IDOKO, IDOKO OCHANI and AGNES IDOKO on or about the 28th day of July, 2002 at about 1200 hrs at Ukwo Centre. Owukpa, Ogbadibo Local Government Area, Benue State within the jurisdiction of this Court agreed to do an illegal act to wit: cause the death of one Mathew Adikwu by cutting him with matchet on the head and hitting him with pestle and wood on the forehead and back respectively which acts were done in pursuance of the agreement and that you thereby committed an offence punishable under Section 97 of the Penal Code.
2. That you, OCHANI IDOKO, IDOKO OCHANI and AGNES IDOKO on or about the 28th day of July, 2002 at about 12 hours at Ukwo Centre, Owukpa in Ogbadibo Local Government Area of Benue State within the jurisdiction of this Honourable Court did commit Culpable Homicide Punishable with death in that you caused the death of Mathew Adikwu

 

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by cutting him with a matchet, on the head and hitting him with pestle and wood on the forehead and back respectively with the intention of causing his death and thereby committed an offence punishable under Section 221 of the Penal Code.”

The facts that gave rise to the charge are as follows: There was a land dispute between the appellant’s father and the deceased, Mathew Adikwu. The dispute went to Court and was decided in favour of the deceased. There was a toilet on the land, which the deceased did not want the accused persons to use. Although there was an appeal against the judgment there was nothing before the Court to show that it had been determined. However, the appellant’s father obtained an order for stay of execution of the judgment. The deceased remained adamant that the appellant’s family members could not use the toilet, which he claimed belonged to him. The prosecution’s case was that the appellant and the co-accused attacked the deceased in the disputed toilet on 28/7/02 and killed him. The accused persons pleaded not guilty to each count of the charge and contended that it was the deceased who attacked the 2nd accused i.e. the appellant.

 

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The prosecution called four witnesses while the accused persons testified on their own behalf and called four other witnesses. At the conclusion of trial, the trial Court found the appellant and his co-accused not guilty of the offence of conspiracy. However he and the 1st accused were sentenced to death by hanging for culpable homicide punishable with death under Section 221 of the Penal Code. The 3rd accused, Agnes Idoko, was convicted of the lesser offence of criminal force, contrary to Section 265 (a) of the Penal Code and sentenced to a fine of N1000 or a term of three months imprisonment. All three convicts appealed to the Court of Appeal, Jos Division, which on 16th December 2010 dismissed the appeal and affirmed the convictions and sentences imposed by the trial Court. The appellant is still dissatisfied and has further appealed to this Court.

At the hearing of the appeal on 2/12/2017, Chief Mamman Mike Osuman, SAN leading a team of learned counsel, adopted and relied on the amended appellant’s brief, which was deemed filed on 28/1/2016 and urged the Court to allow the appeal. Bola Aidi Esq. adopted and relied on the respondent’s brief filed on

 

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28/1/2016 in urging the Court to dismiss the appeal. The appellant distilled 3 issues for the determination of the appeal, which were adopted by the respondents, as follows:
1. Informed by the decision of this Apex Court in Princewell Vs The State, did the lower Court heed the cautions and indices enumerated therein before concluding that PW2’s evidence along with Exhibit 1 constitute sufficient legal evidence regarding the identity of the deceased
2. Whether the lower Court sufficiently re-evaluated the facets of evidence relating to the physical attacks occasioned on the appellant before rejecting his Plea of self defence
3. Whether PW1’s evidence should be construed as tainted by reason of his relationship with the deceased.

Issue 1
Before commencing the consideration of this issue, it is necessary to note that Exhibit 1 referred to is the autopsy report as to the cause of death of the deceased prepared by PW2, Dr. Teraver Samuel Abiem, a medical doctor attached to the General Hospital, Otukpo, Benue State. It is contended by learned senior counsel for the appellant that the prosecution failed to link the body upon which an autopsy

 

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was performed in Exhibit 1 to the deceased, Mathew Adikwu. He argued that Exhibit 1 failed to meet the litmus test enunciated in Princewell vs The State (1994) 7-8 SCNJ (pt.II) 226 @ 235 and Igabele vs The State (2006) 15 NWLR (895) 314.

Learned senior counsel argued that there were several inadequacies in Exhibit 1, which ought to have dissuaded the lower Court from relying on it, such as, the failure to state the date and hour the corpse was received at the hospital and the name of the policeman who identified the corpse. He submitted that the failure of the prosecution to provide this vital evidence was fatal to its case
He relied on: Oladele Vs The State (1993) 1 WLR (Pt. 269) 294; Princewell Vs The State (supra); Oguonzee Vs The State (1998) 5 NWLR (Pt.551) 521; Ahmed vs The State (1999) 7 NWLR (Pt.612) 641; Kada vs The State (1991) 8 NWLR (Pt.208) 134 @ 164. Another factor, which in his view, called for closer scrutiny was the fact that in his testimony at the trial Court, PW1, the son of the deceased stated that his father had only a wrapper tied around his waist while in Exhibit 1 PW2 stated that the deceased was packed in his “personal

 

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clothing”. He opined that a simple wrapper around the waist and personal clothing cannot mean the same thing and submitted that the failure of the prosecution to explain the discrepancy evoked serious doubt as to the true identity of the deceased. Relying on Igabele’s case (supra), he argued that the identity of the corpse upon which the post mortem examination was performed is a necessary prerequisite ingredient, which must be established by the prosecution.

At paragraph 3.3 on page 10 of his brief, he set out certain questions, which in his view were not satisfactorily answered by PW2 under cross-examination, He submitted that not only did PW2 fail to state the name of the police officer he claimed accompanied and identified the corpse, he also failed to state the name or identity of the corpse. Learned senior counsel argued that having regard to the evidence of PW1 that his father was wearing only a wrapper around his waist, the body upon which PW2 conducted a post mortem examination, which was clad in his personal blood soaked clothing must be someone other than the deceased. In support of this submission he referred to the evidence of PW2 when he

 

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stated in the course of his evidence that the autopsy “was to be done on one Mathew Adikwu” and contended that the statement suggests that the autopsy could have ended up not being done on Mathew Adikwu or that the intended autopsy was never done.
Relying on the case of Damina vs The State (1995) 8 NWLR (Pt.415) 513 @ 542 B, he submitted that a defect in the identification of the corpse of a deceased person in a murder trial and the failure to establish that the body examined by the doctor was that of the deceased, is incapable of grounding a conviction.

In reaction to the above submissions, learned counsel referred to the following excerpt from the case of Princewell vs The State (1994) LPELR – 2926 SC relied upon by learned counsel for the appellant at Page 22:
“There can be no doubt that the best possible way of establishing the cause of death is by medical evidence. But it is equally true that the cause of death may be inferred from the circumstances of a case by the Court. In other words, where the victim died under circumstances which leave no doubt as to the manner and cause of death, medical evidence may be dispensed with. Thus where a person

 

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is attacked with a lethal weapon and he died on the spot, it is reasonable to infer that the inquiry inflicted on him caused the death.”

He submitted that there was incontrovertible evidence before the trial Court that Matthew Adikwu was attacked by lethal weapons on the fateful afternoon of 28th July, 2002 and that he died on the spot. In paragraph 2.05 (a), (b) and (c), he reproduced excerpts of the evidence of PW1, DW5 and DW7, which confirmed the fact that the deceased died in circumstances that left no doubt as to the manner and/or cause of his death. He noted that PW1 and DW7 specifically mentioned Mathew Adikwu as the person who was hit with a pestle and therefore left no doubt as to the person who died.
He submitted that the evidence of DW3, DW5 and DW7 that they fled the scene immediately the deceased fell down suggests that the fight was much more serious than an ordinary fight with no fatal consequences.

He argued that there was no doubt as to the identity of the deceased or the circumstances of his death nor the fact that the appellant was conclusively connected with his death. He submitted that whether the deceased was wearing a

 

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wrapper or any other item of clothing is not a material contradiction as to the manner and cause of death. He urged the Court to resolve this issue against the appellant.

In a charge of culpable homicide punishable with death under Section 221 of the Penal Code, the prosecution must establish the following facts beyond reasonable doubt:
1. That the deceased died.
2. That his death was caused by the accused.
3. That the act of the accused which caused the death was intentional having the knowledge that death or grievous bodily harm was the probable consequence of the act.
See: The State Vs Danjuma (1997) 5 NWLR (Pt. 506) 512; Ochemaje Vs The State (2008) 15 NWLR (Pt.1109) 57; Ochiba Vs The State (2011) 17 NWLR (pt.1277) 663.

The circumstances that led to the death of the deceased were narrated by PW1 as follows at pages 54 – 55 of the record:
“My name is Enock Adikwu. I am a student living at Ukwo Centre Owukpa in Ogbadigbo L.G. of Benue State. I know the three accused persons before the Court. We are neighbours living in the same place. I also know one Mathew Adikwu. He is my father. I can tell the Court the circumstances

 

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that led to his death. On 20.7.2002 myself and my father, late Mathew Adikwu went for Sunday service at Assemblies of God Church at Ukwo Centre, Owukpa.
Immediately after the service we came back home. On reaching home my father undressed, tied a wrapper around his waist. He told me that he was going to the bush behind our compound. He left myself, my junior brother and my junior sister in the compound eating groundnuts. After some minutes I head a shout and I knew it was my fathers voice. I ran out and I saw the 1st, 2nd and 3rd accused persons all surrounding my father. The 3rd accused person, Agnes Idoko was holding a firewood. Idoko Ochani  2nd accused person was holding a pestle, and 1st accused person – Ochani Idoko was holding a cutlass. The 3rd accused person was hitting my father at his back with the wood. On remaining there. I tried to inquire what was happening, but I was pushed down by the 2nd accused person. Before I could get up, the 2nd accused person had hit my father with the pestle on the forehead. My father then fell down. Then the 1st accused person quickly used the cutlass and cut him on the head. On seeing this I

 

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started shouting and people started running to the scene. The people who got to the scene before my father gave up are Augustina Onoja, Amos Adikwu and Isaac Apeh. When these people came they still met the 3 accused persons at the scene. I ran to the Police station at Ukwo Owukpa and they wrote down my statement.
That is all. My father died.”

PW2 testified inter alia as follows:
“My name is Dr. Teraver Samuel Abiem. I am a medical officer with Benue State Health Management Board, attached to the General Hospital, Otukpo. I have been working with the Health Management Board for 17 years. Presently, I am a principal Medical Officer. On 20.7.2002, I was at my station, General Hospital Otukpo. My attention was called to the mortuary where I was ordered to do an autopsy or post mortem examination. …. What I mean by I was ordered to do an autopsy is that there is usually a form signed by a Magistrate. We refer to this form as an order. The autopsy was to be done on one Mathew Adikwu. The corpse was identified to me by the police officer who accompanied the corpse. I carried out the post mortem. [Post mortem report admitted as Exhibit 1]
The corpse

 

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was in his personal clothing with stale blood soaked in most part of the clothing.
There was a deep laceration otherwise called a cut in the centre of the head extending from the posterior to the anterior fontanel. This also extended to a fractured skull that saw part of the brain outside. There was also another blunt injury on the forehead, which was swollen. Grossly, these were the findings that I made. The whole body was roughened by which I mean as if it was dragged. … I came out with the conclusion that the deceased had bled profusely from the deep cut an the head leading to severe anemia and subsequently hypovolemic shock i.e. shock resulting from low volume of blood in the body. The consequence is that the heart will stop functioning because it will have no blood to pump out … The death of the deceased was due to hypovolemic shock as indicated in Exhibit 1.”

Under cross-examination he admitted that the date and time the corpse was received, the name of the deceased and the name of the person who identified the body were not reflected in Exhibit 1.

It is the contention of learned senior counsel for the appellant that the death and

 

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identity of i.e deceased is shrouded in doubt. With due respect to him, I am unable to agree. The fact that Mathew Adikwu died is not in doubt. The evidence of PW1, the son of the deceased, who witnessed part of the altercation between his father and the accused persons and testified that his father died in the process is positive and unequivocal. Secondly the result of the autopsy carried out by PW2 on the deceased tallies with injuries he sustained, as narrated by PW1. PW1 testified that the deceased was hit on the head with a cutlass and a pestle. In Exhibit 1, it is stated that the injuries on the deceased were a deep laceration extending from the posterior to the anterior fontanel, which extended to a fractured skull with part of the brain exposed and a blunt injury on the forehead. These injuries are no doubt consistent with being struck by a long and sharp object such as a cutlass and a blunt instrument such as a pestle.

There is no doubt that there are certain lapses in Exhibit 1. The question is whether those lapses raise any doubt as to the fact that the deceased died or how he died, The answer is NO. The identity of the deceased was not

 

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in dispute, nor was the manner of his death. The evidence of PW1 was not discredited in this regard. The argument of learned senior counsel for the appellant that the evidence of PW2 wherein he stated that an autopsy “was to be performed on one Mathew Adikwu” left room for doubt as to whether indeed the autopsy was performed on the said Mathew Adikwu is not sustainable. A careful reading of the entire excerpt of his evidence reproduced above, as opposed to extracting a phrase in isolation as the learned senior counsel has done, clearly shows that the post mortem examination was carried out on Mathew Adikwu and no other person. As rightly held by the trial Court, relying on the case of:Amusa Vs The State (2002) FWLR (Pt.85) 382 @ 393 C – D, the desirability of calling as a witness the person who identified the body of the victim to the doctor who performed the autopsy is necessary only where the identity of the body examined by the doctor is shrouded in doubt. It was held in that case that where the identity can be inferred, such direct evidence is not essential. See also A.G Federation vs Ogunro & Ors. (2001) 10 NWLR (Pt.720) 175 @ 186 – 187; Igago Vs

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The State (1999) 6 NWLR (Pt. 608) 568: Adamu Vs Kano N.A. (1956) 1 FSC 25. In the instant case, as stated earlier, there was no doubt as to the identity of the body upon which PW2 carried out the autopsy. PW1, the son of the deceased did not at any stage express any doubt as to the fact that PW2 carried out the autopsy that gave rise to Exhibit 1 on his father’s body. In any event, where a person attacks another with a lethal weapon and the victim dies on the spot, it is hardly necessary to prove the cause of death by medical evidence. See:Oguonzee vs The State (1998) 5 NWLR (Pt. 551) 521 @ 564 C – D; Bakuri Vs The State (1965) NMLR 163.

In affirming the judgment of the trial Court, the lower Court at page 257 of the record held thus:
”In the instant case, the chain of events tied the appellants to the death of the deceased, from the period of the land dispute which was resolved in favour of the deceased to the period when PW1 met all the appellants and the deceased at the scene of crime. The evidence of PW1 was uncontroverted and unchallenged and also no doubt was cast on the report of the medical doctor who gave evidence to the fact that the body

 

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of the deceased was identified by the police officer. He thus stated in his report:
“There was a deep laceration otherwise called a cut in the centre of the head extending from the posterior to the anterior fontanel. This also extended to a fractured skull that saw part of the brain outside.”
There is therefore no doubt that the corpse on which the autopsy was carried out was no other than that of the deceased Mathew Adikwu and the injuries described therein fitted those on the body of the deceased like a glove.
There is no doubt however that the deceased died on the spot during the fight. There was no intervening or supervening cause of death which equivalents the ‘novus actus intervenient’.

The concurrent findings of the two lower Courts on this issue are firmly rooted in the evidence before the trial Court. They are not perverse and the appellant has not proffered any reason warranting interference by this Court. This issue is accordingly resolved against the appellant.

Issue 2
This issues concerns whether the plea of self defence availed the appellant.

For a successful plea of self defence, the following

 

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conditions must co-exist:
(a) the accused must be free from fault in bringing about the encounter;
(b) there must be present an impending peril to life or of great bodily harm, either real or apparent as to create honest belief of an existing necessity;
(c) there must be no safe or reasonable mode of escape by retreat; and
(d) there must have been a necessity for taking life.
See: Liyal Vs The State (1988) 2 NWLR (Pt.538) 397; Omoregie Vs The State (2008) 18 NWLR (pt. 1119) 464; Kwaghsir vs The State (1995) 3 NWLR (Pt. 386) 651; Nwambe Vs The State (1995) 13 NWLR (pt.384) 385.

In relying on this defence, learned senior counsel for the appellant relied mainly on the evidence of DW5, DW7 and PW4, the IPO. DW5, Ezekiel Ameh Agbo testifted that on the fateful day, he went to the home of the accused persons to visit his friend Lawrence. He did not meet anyone at home. According to him, as he was leaving he heard the appellant shouting somewhere behind the compound. He ran to the direction of the shouting and on arrival saw the appellant lying down and a man (the deceased) was hitting him with a pestle. He continued thus:
“As he

 

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raised the pestle again to hit the 2nd accused person [appellant], I shouted at him not to kill him. As I shouted the man turned and looked at me, then the 2nd accused person got up. The 2nd accused person wore only a singlet without even a pant. The 2nd accused person started struggling with the man for the possession of the pestle. He succeeded in collecting it from the man. As he was going away with the pestle the man started pursuing him and he swung the pestle and hit the man. The man then fell on the ground and as there was nobody there I ran into the market to inform some persons. The man was putting on a shirt and trouser of the same colour. He was taller and fatter than the 2nd accused person. I did not see any Enoch Adikwu at the scene. Apart from the 2nd accused person the man and myself there was no other person at the scene. (Shown Exhibit 4 and asked if it is what was used by the parties). It is not what I saw them use at the scene. (Shown Exhibit 2 and asked if he saw anybody use it). I did not see anybody use Exhibit 2 at the scene.”
(Emphasis mine)

Exhibit 2 mentioned above is a cutlass while Exhibit 4 is a piece of wood recovered by

 

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the Police from the scene in the course of their investigation.

The appellant testified as DW7. His evidence was that he was in the toilet between 12pm-1pm on the fateful day when the deceased knocked away the zinc he used in covering the entrance and challenged him for using the toilet after being warned to stay away. That he was squatting over the toilet when the deceased kicked him in the chest and he fell backwards. As he was trying to escape the deceased hit him on the arm with the pestle. He fell down again and began shouting. It was his testimony that while he was down the deceased tried to use the pestle to hit him again and he warded it off with his hand. That DW5 arrived at the scene and pleaded with the deceased not to kill him. He continued:
“When DW5 said this, then Mathew Adikwu turned to him and I used this opportunity with the support of my right arm to get up. It was the left arm that was hit and it was paining me. As I stood I went and held the pestle that Mathew Adikwu was holding and I seized it from him and ran backwards and Mathew Adikwu was pursing me. As I was moving backwards and as Mathew Adikwu was coming to hold me, I

 

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started swinging the pestle to repel him. In the process, the pestle hit him on the head and he fell down. As he fell down I dropped the pestle and ran away. I did not see Enoch Adikwu at the scene. The assertion by PW1 that he saw me together with the 1st and 3rd accused persons inflicting fatal injuries on his father is not correct.”
(Emphasis mine)

He denied knowledge or ownership of Exhibits 2 and 4. Learned senior counsel for the appellant maintained that from the evidence of DW5 and DW7, the deceased was the aggressor. He submitted that the manner in which the appellant was accosted by the deceased entitled him to the defence of “duress by threat”, which he contended, is similar to self defence. He submitted that the evidence of these two witnesses was to the effect that the deceased was bigger, taller and older than the appellant and that the appellant hit the deceased in defence of his own life. He submitted that the fact that PW4 testified that he found the piece of wood, Exhibit 4 outside the toilet, corroborates the evidence of self defence given by the appellant. He submitted that although the learned trial Judge commended DW6 (the 1st

 

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accused, who is the appellant’s father) for the various steps he took to ensure that the deceased complied with the order for stay of execution, such as reporting him to the Police and the Upper Area Court, she curiously, in his view, somersaulted by returning a verdict of guilt against him. He was of the view that the fight with the appellant was premeditated and that the deceased lied when he told PW1 he was just going to the bush. He submitted that the appellant entertained a real apprehension of danger to his life and retaliated in self defence.

In reaction to the above submissions, learned counsel for the respondent argued that the trial Court rightly evaluated the evidence before it and correctly concluded that the evidence of PW1 was more credible. He submitted that since DW5 and DW7 maintain that the deceased was taller, bigger and older than the appellant, the type of blow to the head sustained by the deceased could not have been inflicted by a shorter person merely swinging a pestle in front of him. That such a blow could only have been achieved by a deliberate aim to the head. Relying on the case of Okonkwo vs Okonkwo (2010) LPELR-9357 (SC) at

 

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page 12, he submitted that it is the trial Court that has the exclusive and singular benefit of seeing and hearing the witnesses. That the trial Court having preferred the evidence of PW1 to that of DW5 and DW7, an appellate Court would be reluctant to disturb such finding unless it is not supported by the evidence on record. He also referred to:Nnajiofor & Ors vs. Ukonu & Ors (1985) 2 NWLR (Pt. 9) 686 @ 705 – 706; Ben Vs The State (2006) 16 NWLR (Pt.1006) 582 @ 593 – 594. He urged the Court not to interfere with the concurrent findings of the two lower Courts.

At pages 167 to 171 of the record, the learned trial Judge painstakingly reviewed and evaluated the evidence of DW5 and DW7 vis-a-vis the evidence of PW1 and found a number of inconsistencies therein. For instance, while the appellant DW7 testified that the deceased hit him once on the arm with the pestle after giving him a kick in the chest and that he was still on the ground when DW5 came along and distracted him, DW5 testified that the deceased continued hitting the appellant with the pestle while he was on the ground and at the same time stated under cross examination that he was not

 

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very close to them while this was going on. The Court observed that even though the appellant and DW5 alleged that the deceased was taller and stronger than him and hit him with a heavy pestle, there was no evidence of any injury warranting medical attention as a result. The Court was also of the view that even if the Court were to believe that the deceased attacked him with a pestle, there was evidence that he successfully disarmed the victim. The Court held:
“Whichever version is taken, at the time the 2nd accused [appellant] stuck the victim, the latter was no longer armed and the 2nd accused had the opportunity of escaping from the scene after seizing the pestle. He rather chose to use it when there was no longer any reasonable apprehension of death or grievous hurt to him. It was after using it that he found his feet to run.
The story of the 2nd accused in Court that the pestle hit the deceased on the head while he was swinging it is most unbelievable since the 2nd accused person had the opportunity of retreating from the scene after disarming the deceased (if he was actually armed) without endangering his life, and having used more force than

 

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was necessary, I hold that the defence of private (sic: self) defence does not avail him.”

The Court below affirmed these findings. I am of the view, and I do hold that the concurrent findings of the two lower Courts cannot be faulted. There is nothing in the evidence before the trial Court to suggest that the appellant had a reasonable apprehension of death or grievous bodily harm, particularly as he had seized the pestle from the deceased. The story of the appellant that he was running backwards as the deceased was pursuing him and that it was in the process of warding him off that he swung the pestle in front of him and it hit the deceased on the head is most incredible. A person running backwards would have trouble maintaining his balance, talk less of being stable enough not only to hit his alleged pursuer, who was taller and bigger than him on the head, but with such force as to cause his death. Furthermore, as rightly held by the learned trial judge, having dispossessed him of the pestle at that stage, the victim had become harmless and the appellant had an opportunity to retreat. The two lower Courts were right in holding that the defence of self

 

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defence did not avail him. This issue is accordingly resolved against the appellant.

Issue 3
Under this issue, it is the contention of learned senior counsel for the appellant that the Court ought to have construed the evidence of PW1 as tainted because of his relationship with the deceased.

Learned senior counsel argued that there were inconsistencies between the evidence of PW1 and PW2 (the medical doctor) as to what the deceased was wearing at the time he was killed, thereby raising doubt as to whether the autopsy performed by PW2 was indeed performed on the body of the deceased, Mathew Adikwu.
That whereas PW2 stated that the deceased was in his personal clothing soaked with blood, PW1 stated that his father only wore a wrapper. He contended that a wrapper and personal clothing do not mean the same thing. He argued further that there were inconsistencies in the evidence of PW1 that ought to have raised doubts in the mind of the Court as to the credibility of his evidence. Another alleged inconsistency alluded to by learned counsel is that PW1 said his father told him and his siblings that he was going to the bush and that when he heard

 

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his father shout, he ran outside to find him being battered by the accused persons. He is of the opinion that “running out” suggests emerging from a house or enclosure into an open space and that if his father was in the bush, he could not have seen him outside, as claimed. He contended that outside the house is not the same thing as the bush. He reiterated his submissions regarding the validity of Exhibit 1 (the coroner’s report), which has been addressed earlier in the judgment. He argued that being the son of the deceased, PW1 was not only an interested person but he was a person who must have wanted revenge or retribution and therefore he was a tainted witness whose evidence ought to have been taken with a pinch of salt. He submitted further that Augustine Onoja, Amos Adikwu and Isaac Apeh, the three persons named by PW1 as having witnessed the crime ought to have been called by the prosecution to testify. He submitted that this amounts to withholding evidence and urged the Court to invoke the provisions of Section 167 (d) of the Evidence Act, 2011 against the respondent. He submitted that the facts of this case constitute special circumstances warranting this

 

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Court’s interference with the concurrent findings of the two lower Courts.

In response to the submissions above, learned counsel for the respondent submitted, relying on the case of Adetola Vs The State (1992) 4 NWLR (Pt.235) 267, that a tainted witness is one who is either an accomplice or a person who, by the evidence he gives, could be regarded as having some purpose of his own to serve. He also relied on: Mbemi Vs The State (1988) 3 NWLR (Pt. 84) 615. He relied on the findings of the trial Court, affirmed by the Court below, to the effect that there was nothing before the trial Court to suggest that PW1 had any other interest to serve other than to speak the truth as to what he saw. He urged the Court to resolve this issue against the appellant

As rightly submitted by learned counsel for the respondent, a tainted witness is a person who may or may not be an accomplice, but who, by the evidence he gives (whether as witness for the prosecution or for the defence) may be regarded as having some purpose of his own to serve. In addition to the authorities cited by learned counsel for the respondent, see also: Oguonzee vs The State (supra) @ 554 F:

 

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Ishola Vs The State (1978) NSCC 499 @ 509: Omotola & Ors vs The State (2009) 2 – 3 SC 7: (2009) 7 NWLR (Pt. 1139) 148; Alhaji Muazu Ali vs State (2015) 10 NWLR (Pt. 11460) 1. The onus is on the appellant to satisfy the Court that PW1 had an interest of his own to serve other than truthfully stating what he saw. See: Ojo vs Gharoro & Ors. (2006) 10 NWLR (Pt. 987) 173 where it was contended that the 1st respondent was a tainted witness because, as an employee of the 2nd respondent he had given evidence in favour of his employer. At pages 209 – 210 Paragraphs H – B of the report, His Lordship, Niki Tobi, JSC held:
“The word “tainted” in the con of our law of evidence is bereft of its ordinary dictionary daily meaning of impurity, undesirability decay, infection and what have you. On the contrary, it has and carries the element of bias for the particular reason of the nearness or closeness in relationship and deliberate and uninstigated slant qua unsolicited and undeserved expression of favour to a particular person, in our con, the employer. I am not prepared to extend the frontiers of that law beyond its present onerous ambit. In the

 

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circumstances I hold that the 1st respondent is not a tainted witness.
See also: Oguonzee vs The State (supra) at 558 A – B. where this Court held that mere relationship by blood without more cannot be tantamount to a disqualification as a prosecution witness.
In other words, there must be clear evidence that the witness had an interest of his own to serve. In the instant case, the mere fact that PW1 is the son of the deceased without more is not sufficient to brand him a tainted witness. On whether PW1 was a tainted witness and the failure of the prosecution to call as witnesses the three persons named by him, the learned trial Judge, who had the opportunity of seeing and hearing PW1 testify and of forming an opinion as to his credibility held as follows:
At page 150 lines 16 -22 and page 151 lines 13 – 26 of the record:
Apart from the relationship between PW1 and the victim, there is no evidence before the Court, it was also not even suggested to the witness under cross-examination that he has an interest to serve. This is not a matter that can be presumed. The mere fact of the relationship is not sufficient for this Court to

 

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declare PW1 as a tainted witness or his evidence unreliable The evidence of PW1 does not require corroboration as a matter of law.
There is no evidence in this case that PW1 has any interest other than coming to Court to testify to what he said he saw. The prosecution is not bound to call all the witnesses listed in the proof of evidence. It is only bound to call those it considers vital. If the prosecution consider PW1 sufficient in proof of their case, that is entirely within their discretion.”

The Court found no basis for the call by the defence counsel not to rely on the evidence of PW1 and also refused to invoke Section 149 (d) (now Section 167 (d) of the Evidence Act against the prosecution, The lower Court at page 268 of the record affirmed the finding of the trial Court. His Lordship P.M. Ekpe, JCA in the lead judgment held thus:
“It is my considered opinion however that PW1 could not have fabricated and articulated such evidence involving all the appellants at the same time. It is noted that the appellants were all neighbours of PW1 and his father, the deceased, so it would not be farfetched to find all three appellants at the

 

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scene of crime when the incident occurred.

The findings of the two lower Courts have not been shown to be perverse. I shall not disturb them. I hold that PW1 was not a tainted witness and that his evidence was found credible and rightly relied upon by the trial Court. As regards the failure of the prosecution to call the persons named by PW1 as being present at the scene and the invitation to the Court to invoke the provisions of Section 167 (d) of the Evidence Act against the respondent, the two lower Courts. have correctly stated the position of the law that the prosecution is not bound to call every witness listed in the proof of evidence if it is satisfied that the witnesses called are sufficient to discharge the onus of proof beyond reasonable doubt. It is pertinent to observe that Section 149 (d) of the Evidence Act (now Section 167 (d) of the 2011 Act) relates to evidence that is withheld and not to the fact that a particular witness was not called. See: Oguonzee vs The State (supra) at page 229 B-F. The appellant was also at liberty to call witness not called by the prosecution.

With regard to the submissions of learned senior counsel for

 

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the appellant that a wrapper tied around the waist of the deceased is not the same thing as “personal clothing” described by PW2, who performed the autopsy and issued Exhibit 1; that PW1s testimony that he ran outside when he heard his fathers cry is in conflict with his evidence that his father told them he was going to the bush, the law is that it is only material inconsistencies that go to the substance of the charge that are capable of rendering the evidence of a witness unreliable and a conviction thereon liable to be overturned. The observations of the learned senior counsel are with due respect speculative and totally irrelevant in the circumstances of this case where the evidence of PW1 was positive, credible and uncontradicted as to the fact that the deceased died, the manner of his death and the role of the appellant in causing his death.

For the reasons variously stated above, this issue is resolved against the appellant.

In conclusion, I hold that this appeal lacks merit. It is accordingly dismissed. The judgment of the Court of Appeal, Jos Division delivered on 16th December, 2010 affirming the conviction and sentence

 

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imposed on the appellant by the High Court of Benue State, holden at Makurdi on 9/3/2005 is hereby affirmed.

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have had the benefit of reading in draft the Lead Judgment of my learned brother KEKERE-EKUN, JSC just delivered.

I agree with his reasoning and conclusion that the appeal is devoid of merit and should consequently be dismissed
I therefore order accordingly and affirm the Judgment of the lower Court. Appeal dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft the lead judgment of my learned brother Kekere-Ekun JSC. I entirely agree with the reasoning and conclusion therein that the appeal is devoid of merit and should accordingly fail. l therefore, also dismiss the appeal and abide by the consequential orders made in the lead judgment.

EJEMBI EKO, J.S.C.: The Appellant, as the 2nd Accused at the trial High Court of Benue State, was convicted and sentenced to death for the offence of culpable homicide punishable with death. His appeal to the Court below was unsuccessful He has further appealed to this Court contending three issues, to wit –
”1. Informed by the decision of this Apex

 

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Court in PRINCEWILL v. THE STATE, did the lower Court heed the cautions and indices enumerated therein before concluding that PW2’s evidence along with Exhibit 1 constitute sufficient legal evidence regarding the identity of the deceased
2. Whether the lower Court sufficiently re-evaluated the facets of evidence relating to the physical attacks occasioned on the appellant before reflecting his plea of self defence
3. Whether the PW.1’s evidence should be construed as tainted by reason of his relationship with the deceased”

I had the privilege of reading in draft the judgment just delivered in this appeal by my learned brother, K.M.O. KEKERE-EKUN, J.S.C. It represents my view on all the issues argued in this appeal. The judgment and all the orders made therein are hereby adopted by me.

I will, however, add just a few comments.
Issues 1 and 3, as argued, turn largely on facts. The attitude of this Court to concurrent findings of fact by the trial Court and the intermediate Court is quite settled. Unless the appellant is able to show satisfactorily, that the findings of fact are perverse, not supported by evidence and unreasonable, or

 

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that have occasioned miscarriage of justice, this Court will loathe to interfere and disturb such findings of fact, particularly, where the findings of fact are supported by evidence in the printed record. See NNAJIOFOR & ORS. v. UKONU & ORS. (1985) 2 NWLR (pt.9) 686 at 705 – 706; BEN v. THE STATE (2006) 16 NWLR (pt.1006) 582 at 593 – 594.

The learned Senior Counsel for the Appellant had made so much fuss, making an issue to the effect that there was contradiction between the PW1 and PW2 as to what the deceased wore at his death. And that by this contradiction there is doubt as to whether the corpse identified to the PW2 was the corpse of the deceased. The PW1 testified that the deceased, before his death, wore only a wrapper round his waist. The PW’2, the medical doctor who conducted the autopsy, averred that the corpse was packed in his personal clothing soaked with blood. Apart from mere semantics, that is quite immaterial, I do not see how the PW.1 and PW.2 can be said to have materially contradicted themselves on the identity of the deceased or his corpse. The evidence of the PW.2 on the injuries found on the head of the corpse

 

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substantially tallies with the evidence of the PW.1, as to how those injuries were inflicted on the head of his father, the deceased. I cannot see the very much orchestrated contradiction.

The learned Senior Counsel for the Appellant had submitted that the PW.1, by the fact of his being the son of the person killed, was a tainted witness. lt is clear from OGUONZEE v. THE STATE (1998) 5 NWLR (pt.551) 521 at 558, that the mere fact of blood relationship between the PW1 and the deceased is not what makes him a tainted witness. He would be a tainted witness if it was shown or established that he had testified to serve or satisfy some ulterior interest or purpose other than the advancement of the truth or the interest of justice. The PW1 has not been shown to be malicious in his testimony. On the contrary his evidence was a mere narration of the factual situation. I do not think he was a tainted witness.
A tainted witness is nonetheless a competent witness. The only thing is that the Court should be wary about readily extending or ascribing credibility to his evidence. There was proper evaluation of the totality of the evidence at the trial before the

 

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trial Court came to ascribing credibility to the PW.1’s evidence. From the printed record, it is hard to see that the PW.1 was interested in misleading the Court. I do not agree with the learned Senior Advocate that the PW.1 was a tainted witness.

The Appellant pleaded self-defence. It is clear from the narration of the PW1 as to how the deceased sustained the injuries on his head, which fact is corroborated by PW 2 and his autopsy report, the plea of self-defence cannot be sustained. The PW2 testified undiscredited by cross-examination, that-
”There was a deep laceration otherwise called a cut in the centre of the head extending from the posterior to the anterior fontanel. This also extended to a fractured skull that saw part of the brain outside. There was also another blunt injury on the forehead which was swollen.”

These findings corroborate the PW1’s account. He had testified, inter alia:
“l ran out and I saw the 1st, 2nd and 3rd accused persons all surrounding my father, the 3rd accused person, Agnes Idoko was holding a firewood. Idoko Ochani, – 2nd accused person, was holding a pestle, and 1st accused person- was holding a cutlass –

 

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I was pushed down by the 2nd accused person. Before I could get up, the 2nd accused person had hit my father with pestle on the forehead. My father fell down. Then the 1st accused person quickly used the cutlass and cut him on the head.

This piece of evidence coming from the PW1 believed by the trial Court and corroborated by the P.W.2, completely eliminated the plea of self- defence. These are not acts of a retreating man swinging the pestle merely to forestall or wade off the further attacks of an unarmed attacker. The Courts below were right in rejecting the plea of self-defence, I cannot fault their concurrent findings of fact in which the Plea of self-defence was dismissed.

There is no substance in this appeal. it is hereby dismissed by me. The judgment of the Court of Appeal in the appeal No CA/J/90c/2006 delivered on 16th December, 2010 affirming the conviction and sentence imposed on the appellant on 9th March, 2005 by the Benue State High Court is hereby affirmed.

SIDI DAUDA BAGE. J.S.C.: My Brother Kekere-Ekun, JSC availed me with a copy of the Judgment just delivered, which I am in complete agreement with. I intend to add a

 

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few words of my own, in total support, on the defence of self defence which I agree cannot avail the present appellant. In that defence of self defence, two words are key to a defence i.e. necessity and proportion. The relevant Legislation dealing with the defence of self defence is Section 286 of the Criminal Code Cap 77, which reproduction states as follows:-
When a person is unlawfully assaulted and has not provoked the assault it is lawful for him to use such force to the assailant as it is reasonably necessary to make effectual defence against the assault. Provided that the force used is not intended and is not such as is likely to cause death or grievous harm.
lf the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes on reasonable ground that he cannot otherwise preserve the person defended from death or grievous harm, it is Lawful for him to use such force on the assailant as is necessary for the defence even though such force may cause death or grievous harm.
The defence of self defence by nature is determined essentially

 

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on facts and circumstances of each case. See OMOREGIE vs. THE STATE (2008) 12 S.C. (Pt.111) 80. The guiding principles of self defence are necessity and proportion. The two questions which ought to be posed and therefore answered before the trial Court were:
(1) On the evidence, was the defence of self defence necessary
(2) Was the injury inflicted proportionate to the threat offered Or was it excessive
If however the threat offered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand such a self defence, then the defence cannot avail the Accused. See R. v. Onyea Maizu (1985) NRLR 93.
It is also trite that the defence is weakest where the position of the victim is weaker than that of the Accused, and hence the issues not arise; the defence will also not be available. See; Udofia vs. The State (1984) 9. S.C (Reprint) 51., Adeyeye vs. The State (2013) 1-2 S.C. (Pt.1) 143; Ojo Adeyeye vs. The State (2013) 1-2 S.C. (Pt.1) 143.

In the case of the appellant in this appeal, on the evidence the defence of self defence was no

 

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longer necessary, as he had dispossessed the deceased of the pestle which was the major instrument used against him. The victim thereafter became harmless. The appellant had an opportunity to retreat. Instead of doing that, he used the same instrument and battered his victim. If as claimed by the appellant that, the same instrument was used against him by the deceased person, it did not cause such bodily harm on him visible, as against his own case of the same instrument on the deceased person which had resulted into instant death. The injury caused on his victim was disproportionate to that which the appellant claimed he had suffered. The defence of self defence certainly cannot avail the appellant. For the more Lucid and detail reasoning, contained in the Lead Judgment, I hold that this appeal lacks merit. It is also dismissed by me.

The Judgment of the Court of Appeal, Jos Division delivered on 16th December, 2010 affirming the conviction and sentence imposed on the appellant by the High Court of Benue State, holden at Makurdi on 9/3/2005 is hereby affirmed by me.

 

 

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Appearances

Mamman Mike Osuman SAN, with him Oba Maduabuchi, Sam Adda, violet Emeka-Aneke (Mrs.), Wilson Emeka Osoke,llo Veronica Asueliemen (Miss) and Manin Ilopa Adaba Esq. For Appellant

 

AND

Bola Aidi, with him; Rebecca Igwebuike (Mrs ). lbiye Thomson (Miss ) and M E Ogah Esq. For Respondent

 

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