IKECHUKWU EZEKIEL v. THE STATE
(2018)LCN/12381(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of February, 2018
CA/OW/54C/2014
RATIO
CRIMINAL LAW: BURDEN OF PROOF
“The said burden does not at any time shift (that is, it is static); except in some instances where the accused person intends to raise or raised some statutory defences to establish reasonable doubts or prove some facts which are peculiarly within his knowledge. See Section 36(5) of the Constitution of Federal Republic of Nigeria, 1999 (as amended); Sections 135, 139, 140 & 141 of the Evidence Act, 2011 and the cases of Duru v. State (1993) 3 NWLR (Pt. 281) 283; Uwa v. State (2013) LPELR 20329; Jeremiah v. The State (2012);LPELR 7950; Madu v. State (2001) 3 NWLR (Pt. 700) 230 and host of others. To successfully make out a murder case against the appellant, the respondent is required to conjunctively establish the following elements beyond reasonable doubts.
1. The deceased died
2. It was the act(s) and/or omission(s) of the accused that caused the death of the deceased.
3. The act(s) and/or omission(s) of the accused which caused the death of the deceased was intentional and it was with the knowledge that it would result in death, or grievous bodily harm would be the probable consequence of the act of the accused.
See Ogba v. State (1992) 2 NWLR (Pt. 222) 164; Daniels v. State (1991) 8 NWLR (Pt. 212) 716 and Akpan v. State (1994) 9 NWLR (Pt. 368) 347.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
DEFENCE: THE DEFENCE OF PROVOCATION
“Provocation was defined by His Lordship, Adio, JSC, in the case of Akpan v. State (1994) 9 NWLR (Pt. 368) 347 as ‘an act or series of acts done by the deceased to the accused to make the latter for the moment not master of his mind’. In essence, provocation is an act or series of acts perpetrated by the injured party (usually the deceased) to the accused person or his family or close relations, that is capable of making the accused to lose control over his anger and unleash the same on the injured party. The purport of this defence of provocation is that, the accused person admitted to have in fact committed the offence he was charged with, but he contended that the act was done when he momentarily lost control over his anger. See the case of Uraku v. The State (1976) 6 S. C. 128; Ofoha v. The State (1976) 1 SC30 and Ejionwu v. State (1995) 3 NWLR (Pt. 386) 640.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
DEFENCE: TO PROVE PROVOCATION
“It is the duty of the accused person to establish the defence of provocation, and he is required to do so on positive and credible evidence. See Edoho v. State (2010) 14 NWLR (Pt. 1214) 651. To successfully rely on this defence, the accused person must establish the following elements:
1. The act of provocation was not instigated by the accused person.
2. The act of provocation was done in the heat of passion that is, the act was done before there was time for him to cool off.
3. The loss of self-control was reasonable
4. The acts(s) of retaliation was proportionate to the provocation.
See Edoho v. State (supra); Okonji v. State (1987) 1 NWLR (Pt. 52) 659 and Uraku v. State(supra).” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
Before Their Lordships
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
IKECHUKWU EZEKIELAppellant(s)
AND
THE STATERespondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of High Court of Abia State (hereinafter referred to as the lower Court), delivered on the 1st day of July, 2013.
Brief facts of the case:
The accused person/appellant (hereinafter referred to as the appellant) together with one Iheukwumere Levi were accused of killing one Ndubuisi Umeonu on the 21st day of July, 2010. The deceased alongside one Ogbonna Ogwuru were alleged to have visited their village Ikwoyi Ibeku, Umuahia, Abia State, with some policemen to effect arrest. In the course of arresting one Ezekiel Agwu, his children Ikechukwu Ezekiel, Iheukwumere Levi and Chinaza Nnokwam were alleged to have obstructed the policemen from carrying out their lawful duty. Also, Chinaza Nnokam was alleged to have struggled with one of the police officers and in the course of the struggle, the said Chinaza was accidentally shot in the foot. As a result of the shot, some of the village youths were said to have mobilized and chased away the policemen. As a result of the development, the police officers ran away leaving behind the deceased and Ogbonna Ogwuru (PW2). Having been left with no protection, the deceased was alleged to have been chased down by the appellant and his brother Iheukwumere Levi (2nd accused person), and he was seriously beaten. The deceased was also alleged to have sustained injuries from the beating which eventually led to his death.
In the course of proving the appellant and the 2nd accused person’s guilt, the prosecution/respondent (hereinafter referred to as the respondent) called five witnesses and tendered several exhibits including the appellant’s extra-judicial statements, that is, Exhibits D & E. The appellant and the 2nd accused person in their defense called three witnesses in addition to themselves, and also tendered some exhibits aimed at proving that they were not at the scene where the deceased was alleged to have been beaten, but were with their brother Chinaza who was shot. That is, the appellant and the 2nd accused person sought to establish the plea of alibi. At the close of trial, the learned counsel for the parties extensively addressed the lower Court, thereafter the case was adjourned for judgment. In a well-considered judgment, the learned trial judge found the appellant and 2nd accused person guilty as charged, and accordingly sentenced them to death by hanging.
As expected, the appellant was dissatisfied with the judgment and has thereby appealed against the same before this Court vide his notice of appeal dated the 28th day of August, 2013 and filed on the 2nd day of September, 2013. In prosecuting this appeal, the appellant filed his appellant’s brief of argument on the 14th day of January, 2016, but the said appellant’s brief was deemed as properly filed on the 9th day of May, 2016 by the order of this Court. The appellant’s brief was prepared by Okey Amechi, SAN. The respondent neither appeared before this Court nor file any brief in respect of this appeal. The above notwithstanding, this appeal will be determined on its merit.
Towards the determination of this appeal, the appellant’s counsel formulated eight issues. However, the issues that are cogent towards the determination of this appeal are:
1. Whether the lower Court was right in law in finding based on the evidence of PW3 that the deceased died of sub-arachunoid haemorrhage, when autopsy also revealed pulmonary edema of the lungs which PW 3 said could also have killed the deceased. (Appellant’s Issue 1)
2. Whether or not the lower Court was right in its finding that the appellant and his co-accused made Exhibits ?D? and ‘F’; and that there was no motive shown by the accused persons why the police would forge Exhibit D and F. (appellant’s Issue 6)
3. Whether the evidence of the prosecution was cogent and unequivocal to justify the lower Court’s decision that the appellant and his co-accused intentionally inflicted extreme injuries on the deceased from which he died. (Appellant’s Issue 3).
ISSUE NO. 1:
The learned senior counsel for the appellant submitted, that the learned trial judge erred in law by placing reliance on the expert opinion of PW3 in arriving at the decision that the deceased died as a result of the injuries sustained from the beating he received from the appellant and his co-accused. The learned silk further submitted that the burden of proving the exact cause of the deceased’s death is placed squarely on the shoulder of the respondent, and failure to discharge this burden successfully is fatal to the respondent’s case. He referred us to the case of Ahmed v. The State (2003) ACCR 152 and Frank Onyenankeya v. The State (1964) ALL NLR, 151. The learned silk contended that in the instant case the autopsy result revealed three likely causes of death, that is:
i. Water in the deceased’s lungs called pulmonary of the lungs.
ii. Fibrotic or thickened heart values.
iii. A breakage of the skull measuring 0.8 centimetres by dimension leading to sub-arachnoids haemorrhage.
The learned silk argued that, PW3, the medical doctor who conducted the autopsy admitted on record that both the 1st and 3rd causes could also have killed the deceased but the learned trial judge without justification chose only the third cause thereby neglecting the first identified which could have likely been the cause of death; which is a natural cause. Thus, the learned senior counsel for the appellant submitted that the learned trial judge did not properly evaluate the evidence adduced by PW3 and this has occasioned miscarriage of justice to the appellant. Also, the learned silk submitted that where there are at least two likely causes of the death of the deceased, doubts have been created as a result thereof, which said doubts must be resolved in favour of the accused person. He referred us to the decisions in the following cases: Tegwonor v. State (2008) 45 WRN 143; Sowemimo v. State (2005) 7 WRN 1 and Adeoti v. State (2009) 20 W.R.N, 113. Therefore, the learned silk urged this Court to resolve this issue in favour of the appellant.
It is trite law as the learned senior counsel for the appellant has submitted, that in a charge for murder, the prosecution is saddled with the responsibility to establish beyond reasonable doubt and on credible evidence, the actual incident and/or cause of the deceased’s death, and that the death was occasioned by the accused person’s act(s) and/or omission (s). See the cases of Gaji v. The State (1975) 5 S.C., 55; (1975) LPELR -1301; Lori & Anor. V. The State (1980) 8 – 11 SC 52; Uguru v. State (2002) 9 NWLR (Pt. 771) 90 and Ogbu v. State (2007) 5 NWLR (Pt. 1028) 635. Also, where there is two likely causes of death of the deceased, and the actual or imminent cause of death cannot be proved to have resulted from the accused person’s act(s) and/or omission(s), doubt is held to have been created in the prosecution’s evidence, which said doubt is required by law to be resolved in the favour of the accused person. See Eze v. State (2013) LPELR-20661; Akpan v. State (1992) NWLR (Pt. 248); 439 (1992) SCNJ, 22 and Tegwonor v. State (2008) LPELR – 4674.
In the instant case, there was sufficient evidence to support the fact that the deceased was actually injured and sustained some degree of injury to his head which affected his brain and/or resulted in brain injury. To prove with certainty that that was the cause of death of the deceased, the respondent fielded PW3, a consultant pathologist/subspecialist in forensics, who gave a graphic explanation of the noticeable injuries on the deceased’s body both internally and externally. The said witness both in his evidence-in-chief and under the heat of cross-examination maintained that the deceased died as a result of sub-arachunoid haemourage, the medical language for blood blocking a person’s brain due to serious injury to the head of the deceased as a result of being hit with a hard metal or accident. The witness stated that the deceased had an open injury on his head which extended to his brain. This fact was not challenged and the appellant did not call any medical expert to discredit PW3’s testimony. In this circumstance, I have no hesitation or doubt in my mind in agreeing with the learned trial judge that the deceased died as a result of the injury afflicted to his head. The issue of who inflicted the injury is another matter which will be considered later in this judgment. This Issue No. is hereby resolved against the appellant.
ISSUE NO. 2:
The learned senior counsel for the appellant set out and submitted that the lower Court ‘erred in law when it came to the perverse decision that the Appellant and his co-accused made Exhibits ‘D’ and ‘F’, respectively.’ The learned silk argued that the learned trial judge failed to compare the entire contents of Exhibits D and F with established facts of this case, in order to determine whether or not the appellant and his co-accused made the said exhibits; as required by law. He contended that the lower Court in determining whether or not the appellant and his co-accused made the exhibits only limited its consideration to the appended signature on the exhibits while ignoring other glaring facts. He submitted, that the failure of the learned trial judge to holistically consider the exhibits has occasioned gross miscarriage of justice to the appellant. He relied on the decision in the cases of Ibeme v. State (2013) 10 NWLR (Pt. 1362) 333 and Afolahan v. State (2012) 13 NWLR (Pt.1316) 185.
The learned senior counsel for the appellant contended that the appellant is an illiterate and there was no evidence that the content of Exhibit D was interpreted to him in his native language, Igbo. He further contended that the fact of the appellant’s illiteracy was better expressed in Exhibit E, where it was indicated that the statement was interpreted to the appellant in Igbo language. Also, the learned silk argued that the appellant vehemently denied making any statement to the Police before the deceased died and the respondent failed to prove that there was any report of assault on the deceased or any related to him that may have prompted such statement. In addition, he contended that Exhibit D is structural and lexically different from Exhibit E which was allegedly written by the same person.
Further, the learned silk contended that the policemen who arrested the accused persons were the same policemen who came for the arrest that led to the shooting of appellant brother’s leg, and there was the possibility for them to concoct the exhibit to cover up their mistake. Finally, the learned silk submitted that the lower Court’s comparison and findings with regard to the signatures in Exhibits D, E, F and G are therefore injudicious and erroneous. Therefore, he urged this Court to resolve this issue in favour of the appellant.
It is instructive to state herein that Exhibit D is an extra-judicial statement allegedly made by the appellant, wherein he admitted to have joined his brother (2nd accused) in beating the deceased to a ‘state of comma’. It is also imperative to observe herein that when the said Exhibit D was tendered, neither the appellant nor his counsel raised any objection to the admissibility of the said exhibit. The objection to the admissibility of the exhibit was raised by the appellant when he testified as DW1. At this stage, the respondent has opened and successfully closed its case, without any indication from the appellant or his counsel that they are or will be contesting the authencity of Exhibit D. It is trite law that a party who objects to the admissibility of a document is expected to raise his objection immediately the document is sought to be tendered.
Where the document is ordinarily admissible and tendered without objection, the complainant party is precluded from raising such objection thereafter, except where the document is completely inadmissible in law. See Raimi v. Akintoye (1986) 3 NWLR (Pt. 26) 97; Oghoyone v. Oghoyone (2010) LPELR -4689-4689 and Adamu v. Takori & Ors. (2009) LPELR-3593. The above notwithstanding, the learned trial judge examined the content of Exhibit D against other surrounding facts and opined that Exhibit D contained some personal facts that could only have been disclosed by the appellant himself and could not have been concocted by the police officers. Also, he examined the signatures on Exhibits E and found them substantially the same with others.
I have also examined the two signatures that is, the signature on Exhibits D and E, and I agree with the learned trial judge that the signatures are substantially the same. Also, I agree with the learned trial judge that Exhibit D contained some facts that are peculiar to the appellant’s personal knowledge and which the police officer who recorded the statement could not ordinarily have known without being told. Interestingly, these set of facts (particularly the appellant?s bio-data and occupation) are the same with those contained in Exhibit E. In the light of these facts, I too agree with the finding by the learned trial judge that Exhibit D was in fact made by the appellant. Thus, this issue is also resolved against the appellant.
ISSUE NO. 3
The learned senior counsel for the appellant submitted that the respondent failed in establishing all the elements of murder against the appellant beyond reasonable doubt. He contended that in order to successfully establish a case of murder against the appellant, the respondent is required to prove the following elements beyond reasonable doubts.
i. That the deceased died
ii. The death of the deceased resulted from the act of the appellant.
iii. The act of the appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
He referred us to the case of Uguru v. State (2002) 4 SCLR 282. The learned silk argued that apart from the first ingredient, the respondent has failed to prove the remaining two elements of the offence. The learned senior counsel submitted, that there was no credible evidence on record to establish the fact that the appellant and the 2nd accused person attacked the deceased with or without any deadly instrument.
He argued that Exhibits D and F relied upon by the learned trial judge did not meet the requirements of a confessional statement, as there were other facts adduced at the lower Court which sharply contradict the contents of the exhibits. Thus, he submitted that the learned trial judge erred by placing undue reliance on the said exhibits in convicting the appellant. He referred us to the cases of Okeke v. The State (2003) 15 NWLR (Pt. 842) 25 and Jimoh Yesufu v. The State (1976) 6 SC, 167 among others.
Also, the learned senior counsel for the appellant argued that in the instant case, there was no credible evidence (direct or circumstantial) adduced to prove the crime of murder against the appellant and the purported circumstantial evidence adduced by the respondent did not point irresistably to the fact that the appellant participated or took any part in the assault that killed the deceased. He further argued that the circumstantial evidence adduced by the respondent is self-contradictory and materially inconsistent, which consequently rendered it unsafe to be relied upon by any Court in finding the appellant guilty of murder. He referred us to the case of Musa v. State (2009) 15 NWLR (Pt. 1165) 467.
In addition, the learned silk argued that the extra-judicial statement made by the deceased before his death, Exhibit C, does not qualify as a dying declaration in accordance with the provisions of Section 40 of the Evidence Act, 2011. He contended that the said Exhibit C was made by the deceased under caution when he was being investigated for attempted murder pursuant to the petition written by the appellant’s father, based on the shooting of the appellant’s brother, Chinasa by the police officer. Thus, he submitted that the deceased was a tainted witness whose evidence should not have been acted upon without corroboration. He referred us to the cases of the Queen v. Enahoro (1964) NMLR, 1 and Jimo Ishola v. The State (1978) 9 -10 SC 81 among others.
Also, the learned senior counsel for the appellant argued that the learned trial judge failed to ascribe proper probative value to the evidence adduced by the appellant. He contended that the mind of the trial judge was already biased before evaluating the appellant’s evidence, thus, he did not pay proper attention to the evidence adduced by the appellant before he was erroneously convicted and sentenced to death. The learned silk argued that the lower Court failed to attach the appropriate probative value to Exhibits H and J, the receipt for the appellant brother’s treatment at Obioma hospital and x-ray result, respectively. The learned silk contended that the said Exhibits H & J showed without doubt that the appellant was one of the persons that rushed his brother, Chinaza, to the hospital after he was shot and was with him throughout the day. Thus, he could not by any means have participated in assaulting the deceased.
Finally, the learned senior counsel submitted in the alternative that the lower Court did not holistically consider the defence of provocation set out by the appellant. The learned silk contended that the deceased and the policemen provoked the reaction that led to the assault on the deceased by not only slapping the appellant?s sister but also shooting his brother, in the course of carrying out an illegal duty. He submitted that the assault meted out to the deceased was commensurate to the deceased’s and the accompanied policemen acts of provocation. He argued that the shooting of the appellant’s brother was more of an attempt to kill him and there was no time for the appellant’s anger to cool off, thus, the appellant was justified in beating the deceased to a state of coma. Therefore, the learned silk urged this Court to resolve this issue in favour of the appellant and allow this appeal.
It is elementary law and equally well settled that in a criminal trial the burden of proving the guilt of the accused person(s) rest squarely on the shoulder of the prosecution. The said burden does not at any time shift (that is, it is static); except in some instances where the accused person intends to raise or raised some statutory defences to establish reasonable doubts or prove some facts which are peculiarly within his knowledge. See Section 36(5) of the Constitution of Federal Republic of Nigeria, 1999 (as amended); Sections 135, 139, 140 & 141 of the Evidence Act, 2011 and the cases of Duru v. State (1993) 3 NWLR (Pt. 281) 283; Uwa v. State (2013) LPELR 20329; Jeremiah v. The State (2012);LPELR 7950; Madu v. State (2001) 3 NWLR (Pt. 700) 230 and host of others.
To successfully make out a murder case against the appellant, the respondent is required to conjunctively establish the following elements beyond reasonable doubts.
1. The deceased died
2. It was the act(s) and/or omission(s) of the accused that caused the death of the deceased.
3. The act(s) and/or omission(s) of the accused which caused the death of the deceased was intentional and it was with the knowledge that it would result in death, or grievous bodily harm would be the probable consequence of the act of the accused.
See Ogba v. State (1992) 2 NWLR (Pt. 222) 164; Daniels v. State (1991) 8 NWLR (Pt. 212) 716 and Akpan v. State (1994) 9 NWLR (Pt. 368) 347.
It was a common ground between the parties that the deceased died as a result of injury to his head resulting from being assaulted by a strong instrument with which he was hit on the head. This fact has been confirmed earlier in this judgment. The next question is who assaulted the deceased? To prove this fact the prosecution called Chief Ambrose Chibuzor Omeonu, who testified to the fact that he met the deceased in his compound lying prostrate in the pool of his blood. He also testified that he noticed that the deceased head was lacerated and was looking as if he would die. The said witness further testified that the deceased in that state gathered strength and was able to inform him that he was assaulted by the appellant and the 2nd accused person.
Thereafter, he made effort to rush the deceased to the hospital in order to save the deceased’s life. Furthermore, Exhibits D and F were tendered by the prosecution and duly admitted by the lower Court. In Exhibit D, the appellant admitted to have beaten the deceased to a state of coma, together with the 2nd accused person, because according to them the deceased beat their sister. All these pieces of evidence, point to the fact that the appellant and the 2nd accused person out of vengeance assaulted the deceased. In his defence, the appellant denied beating the deceased, rather he stated that he was more concerned with the health of his brother, Chinaza who was shot. He stated that he was one of the persons that carried his brother to the hospital. He tendered Exhibits H and J, and his testimony was corroborated by the 2nd accused and Chinaza, who was shot.
In respect of Exhibits H and J, the learned trial judge found as a fact that the exhibits did not bear the name of the appellant and the date on the exhibits was 22/07/2010 while the said Chinaza was allegedly shot on 21/07/2010. It was also discovered that Exhibit H was mutilated in an attempt to super-impose 21st on the face of the exhibit. These discoveries was held by the learned trial judge to have sufficiently debunked the purported alibi of the appellant, which I firmly agree. Also, the learned trial judge found sufficient circumstantial evidence to establish the fact that the appellant indeed was one of the persons that attacked the deceased. In this regard the learned trial judge relied on Exhibits, D, F, C, and K to find that the appellant was guilty. I have carefully reviewed the said exhibits and I completely agree with the learned trial judge that notwithstanding the absence of a credible direct evidence in this case, the respondent has adduced sufficient circumstantial evidence which points irresistably to the fact that the appellant was in fact one of the persons that assaulted the deceased, and which said assault eventually led to his death. I also agree with the learned trial judge that the respondent has successfully established all the elements of murder against the appellant beyond reasonable doubt.
On the issue of provocation, the appellant contended that he was provoked because the policemen brought by the deceased slapped appellant’s sister and also shot his brother in the foot. He contended that as a result of this, the appellant lost control of his anger and in the heat of the moment he beat the deceased to a state of coma.
Provocation was defined by His Lordship, Adio, JSC, in the case of Akpan v. State (1994) 9 NWLR (Pt. 368) 347 as ‘an act or series of acts done by the deceased to the accused to make the latter for the moment not master of his mind’. In essence, provocation is an act or series of acts perpetrated by the injured party (usually the deceased) to the accused person or his family or close relations, that is capable of making the accused to lose control over his anger and unleash the same on the injured party. The purport of this defence of provocation is that, the accused person admitted to have in fact committed the offence he was charged with, but he contended that the act was done when he momentarily lost control over his anger. See the case of Uraku v. The State (1976) 6 S. C. 128; Ofoha v. The State (1976) 1 SC30 and Ejionwu v. State (1995) 3 NWLR (Pt. 386) 640.
It is the duty of the accused person to establish the defence of provocation, and he is required to do so on positive and credible evidence. See Edoho v. State (2010) 14 NWLR (Pt. 1214) 651. To successfully rely on this defence, the accused person must establish the following elements:
1. The act of provocation was not instigated by the accused person.
2. The act of provocation was done in the heat of passion that is, the act was done before there was time for him to cool off.
3. The loss of self-control was reasonable
4. The acts(s) of retaliation was proportionate to the provocation.
See Edoho v. State (supra); Okonji v. State (1987) 1 NWLR (Pt. 52) 659 and Uraku v. State(supra).
In the instant case, it was established in evidence that the deceased was chased down and assaulted in his compound. I am of the firm opinion that the appellant’s fury is reasonably expected to have cooled off in the process of chasing the deceased, from their compound (appellant father’s compound) where the act that instigated the alleged provocation was done, to the deceased own compound. I also agree with the learned trial judge, that the deceased’s act of slapping the appellant’s sister is not proportionate to the deceased being beaten to a state of coma. In this circumstance, I agree completely with the learned trial judge that the defence of provocation did not avail the appellant, merely because the deceased slapped the appellant’s sister.
On the second limb of the appellant’s claim of provocation, wherein the appellant contended that he lost control over his emotions when he saw that his brother Chinaza was shot by the police. It is trite law that for any act to constitute provocation, it must be shown to have arisen from the injured party who is the victim of the retaliatory attack. See the case of Idemudia v. State (1999) 7 NWLR (Pt. 610) 202 where the Supreme Court, per Katsina Alu, JSC, held as follows:
‘It is settled law that provocation offered by one person cannot be a ground for killing another who did not offer such provocation. See Omeninu v. The State (1966) NMLR 356: Ukwuenyi v. The State (1989) 4 NWLR (Pt. 114) 131 at 148.’ See also the case of Biruwa v. The State (1992) 1 NWLR (Pt. 220) 633.
In the instant case, the appellant’s brother was allegedly shot by one of the policemen who came to effect the arrest of the appellant’s father (PW4) and not the deceased, if indeed there was provocation in this circumstance, it should have been directed at the police officer who shot the appellant’s brother and not at the deceased. In the premise, I do not share the contention of the learned senior counsel for the appellant, that the defence of provocation availed the appellant in this case. Therefore, this issue is also resolved against the appellant.
Having resolved the issues formulated in this appeal in the manner stated above, this appeal is hereby found by me to be devoid of any merit and it is accordingly dismissed. The judgment of the lower Court is hereby affirmed by me.
ITA GEORGE MBABA, J.C.A.: I agree completely with the reasoning and conclusions of my learned brother, M.A. OREDOLA JCA, just delivered
I too dismiss the appeal and abide by the consequential orders in the lead judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I read before now the draft of the judgment of my learned brother MASSOUD ABDULRAHMAN OREDOLA (JCA).
I am in full agreement with the reasoning and conclusion therein. I see no merit in this appeal. I also dismiss it and affirm the judgment of the lower Court.
Appearances:
A. C. OkoroaforEsq. with him, H. C. Akanwa Esq.For Appellant(s)
Respondent served but absentFor Respondent(s)
