IZOUKWUMORE SABAYO v. THE STATE
(2018)LCN/11948(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/B/286C/2015
RATIO
DEFENCE : THE DEFENCE OF ALIBI
“It is the duty of the police (prosecutor) to investigate Alibi, so also it is the duty of the accused to furnish the particulars of Alibi to the police at the earliest opportunity. He must furnish his whereabout and those present with him. After all these the failure to investigate will lead to acquittal. See YANOR V. THE STATE (1965) NWLR 337; ODU & ANOR. V. THE STATE (2001) 5. SC. (Pt. 1) 153; EKE V. THE STATE (2011) 1-2 S.C. (Pt.11) 219 at 235.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
DEFENCE: THE DEFENCE OF PROVOCATION
“Considering the ingredients of the defence of provocation as laid down in the case of UWAGBOE V. THE STATE (2010) 8 LRCNCC page 122 and ANNABI V. THE STATE (2008) 13 NWLR (part. 1103) page 79, that:
(a) The act relied upon by the accused must be obviously provocative.
(b) The provocative act must be one that can and did deprive the accused of self control.
(c) The provocation act must have emanated from the deceased.
(d) The accused must have resulted to the deceased’s without allowing his passion to cool.
(e) The force used by the accused in retaliating must be disproportionate to the act reacted against.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
IZOUKWUMORE SABAYO Appellant(s)
AND
THE STATE Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A.(Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Delta State, Udu Judicial Division holding at Otor-Udu in charge No. W/6C/2007 and delivered on the 27th day of July 2015. The Appellant was arraigned on a one count charge of murder of Bombe Akre at Igbemene Village Ogbe-Ijoh contrary to and punishable under S. 319 of the Criminal Code Cap. 48 Vol. 11, Laws of defunct Bendel State of Nigeria 1976 as applicable to Delta State.
The Appellant pleaded not guilty to the charge and hence the matter went into full trial. In the end, the learned trial Judge in his considered judgment found the Appellant guilty and sentenced him to death by hanging. (See pages 116 -117 of the Record of Appeal). Miffed by the outcome of the trial the Appellant filed his original Notice of Appeal on 13th August 2015. The said notice has Ten grounds. (See pages 118 ? 124 of the Record of Appeal). By the order of this Court granted on the 22nd day of March 2016, the original notice of appeal was amended.
The amended notice of appeal filed on 10th November 2015 was deemed as properly filed and served on 22nd day of March 2016. The said amended notice of appeal has seventeen grounds. I herein under reproduce the grounds but without the particulars.
GROUNDS OF APPEAL
(1) The judgment of the trial Court is unreasonable and cannot be supported having regard to the evidence.
(2) The learned trial Judge erred in law when he convicted the Appellant on a charge of murder and imposed a sentence of death by hanging on him.
(3) The alleged confessional statement of the Appellant (Exhibit A) was wrongly admitted and relied upon by the trial Court in convicting the Appellant without reliable extrinsic corroborative evidence of same.
(4) The learned trial Judge erred in law and occasioned a miscarriage of justice when he relied on the evidence of the blood relatives and wife of the deceased Bombay Akre (who did not witness the alleged incident and have their owned interest to serve) to convict the Appellant.
(5) The learned trial Judge erred in law by relying on the biased evidence of PW2 (alleged wife of the deceased) to convict the Appellant.
(6) The learned trial Judge erred in law when he held that the deceased, Bombay Akre was stabbed by the Appellant, without calling for forensic evidence in view of the availability of the weapon alleged used.
(7) The learned trial Judge erred in law when he held that the Appellant killed the deceased, Bombay Akre.
(8) The learned trial Judge erred in law and on the facts, when he failed to hold that the prosecution ought to have conducted a forensic on the alleged broken bottle and blood of the Appellant and the deceased, to link the Appellant with the death of Bombay Akre.
(9) The learned trial Judge erred in law when he failed to consider the defence of provocation and self defence used by the evidence of the prosecution in favour of the Appellant.
(10) The learned trial Judge erred in law when he failed to consider the alibi raised by the Appellant in his defence.
(11) The learned trial Judge erred in law when he failed to consider the effect of the contradiction of the prosecution witnesses regarding the alleged place of commission of the murder.
(12) The learned trial Judge erred in law when he relied on the evidence of PW2, one Dr. Francis Nkadi Nwochokor who was neither the person that was served a witness summons, was unable to give credible evidence of the identity of the corpse of Bombay Akre, neither was he also the subject of the coroner’s request.
(13) The learned trial Judge erred in law when he relied on the evidence of PW2 (the star witness) and the purported only ‘eye witness’ whose extra judicial statement was smuggled in after the close of investigation on the 21st of July 2006 by the Assistance Commissioner of Police ‘D’ Department Asaba.
(14) The learned trial Judge erred in law when he failed to adequately consider the circumstances, truthfulness, possibility and integrity of the purported confessional statement of the Appellant with independent credible evidence, before relying on same to convict the Appellant.
(15) The learned trial Judge erred in law when he held that the evidence of PW1, PW2, PW3 and PW4 confirm the contents of Exhibit ‘A’, the purported confessional statement of Appellant.
(16) The learned trial Judge erred in law when he continued hearing this matter after he had been transferred outside the Warri Judicial Division and without any warrant of the Chief Judge of Delta State authorizing the hearing of the case by him as a Judge sitting at the Otor – Udu Judicial Division of Delta State High Court.
(17) The trial Court erred in law when he relied on the hearsay and inadmissible evidence of PW3 (the pathologist) without calling the pointer to testify.
RELIEFS SOUGHT.
(1) An Order setting aside the whole trial proceedings on the ground of nullity/lack of jurisdiction
OR
(2) An Order setting aside the conviction for murder and sentence of death made by the trial Court on the 27th of July 2015, and in its place enter an order of acquittal in respect of the count of murder in favour of the Appellant
OR
(3) An Order setting aside the conviction for murder and sentence of death and instead enter a conviction on the lesser charge of manslaughter with a reduced sentence.
The Record of Appeal was transmitted on 12th, October 2015 and consequent upon the said transmission, respective counsel filed and exchanged their brief of argument.
APPELLANT’S BRIEF OF ARGUMENT
The Appellant’s brief of argument was filed on 12th day of April, 2016. In the said brief authored by Otladua A. Okpokpor Esq., the following issues were distilled for the determination of this appeal.
APPELLANT’S ISSUE FOR DETERMINATION
(a) Whether the learned trial Judge had jurisdiction to continue to hear the case, without warrant, after he was transferred from the Warri Judicial Division to the Otor-Udu Judicial Division? (Distilled from ground 16)
(b) Whether the evidence of PW 3 ‘D Francis Nkadi Nwochokor’ regarding the examination conducted on the alleged deceased victim, was credible, possible and admissible to establish identity of the corpse and cause of death? (Distilled from ground 12 and 17)
(c) Whether the contradictory evidence of the prosecution witnesses and the failure of the prosecution to prove the locus criminis of the offence as stated in the information, is not fatal to the proof of the charge? (Distilled from issue 11)
(d) Whether the extra judicial statement and evidence of PW2 (Tina Ebiyebo the alleged wife of the deceased victim were credible, tested for objectivity and consistent with natural course of police investigation, which should have made the trial Judge more cautious before relying on same? (Distilled from ground 4, 5 and 13)
(e) Whether there was any material and credible evidence connecting the Appellant with the death of Bombay Akre ? (Distilled from ground 1, 2, 6, 7, 8 and 10).
(f) Whether the alleged confessional statement of the Appellant was not wrongly admitted or wrongly relied on in convicting the Appellant, in the absence of credible extrinsic corroborating evidence making it true and possible? (Distilled from ground 3, 14 and 15)
(g) Whether the learned trial Judge adequately considered the Appellant’s defence of self defence and provocation? (Distilled from ground 9)
RESPONDENT’S BRIEF
The Respondent brief of argument was settled by O.F. Enenmo, Director of Appeals Ministry of Justice Delta State and filed on 30th January 2018, but out of time. By the order of this Court granted on the 20th day of February 2018, the said brief of argument was deemed as properly filed and served on 20th day of February 2018. He distilled the following two issues for the determination of the appeal.
RESPONDENT’S ISSUE FOR DETERMINATION
(1) Whether the learned trial Judge was right in law when he held that the prosecution proved the one count charge of murder against the Appellant beyond reasonable doubt?
(2) Whether the defence of provocation and/or self defence are available to the Appellant in this case?
On the 30th day of April 2018, Respective counsel adopted their written argument. While the Appellant urged the Court to allow the appeal and set aside the judgment of the trial Court. The learned director of Appeals Delta State representing the Respondent urged the Court to dismiss the appeal and affirm the judgment of the trial Court.
I have carefully read through all the foregoing processes and the issues formulated by respective party for the determination of the appeal.
The Appellant’s complaint against the judgment of the trial Court are encapsulated in the 17 amended grounds of appeal. It is these 17 grounds of appeal that metamorphosed into the seven issues distilled for the determination of the appeal. In my humble view, the issues are all on lack of proper evaluation of the evidence before the Court and which resulted into the alleged misdirection by the Court.
But for the seeming complaint on jurisdiction wherein the competence of the trial Judge was challenged and the issue of defence of provocation. If that is so, the seven issues formulated tend to be recycling the same principle of law on evaluation of evidence and palbably misdirection. Therefore, I am of the humble view that the seven issues need to be restructured. In doing that I have put into consideration the two issues formulated by the Respondent. Even though I find them suitable, but the Court will have to redraft them. In essence I adopt issue one by the Appellant and the two issues formulated by the learned Director of Appeals Delta State Ministry of Justice O.F. Enenmo Esq. for the determination of this appeal. However, the issues are redrafted as follows:
(1) Whether the learned trial Judge had jurisdiction to continue to hear the case without warrant, after he was transferred from Warri Judicial Division to the Otor-Udu Judicial Division? (Distilled from ground 16).
(2) Whether the defence of provocation and or self defence and Alibi are available to the Appellant in this case.
(3) Whether the learned trial Judge properly evaluated the totality of the evidence placed before the Court and no misdirection occasioned.
Before the resolution of issues 2 and 3, I will like to put to rest the seeming challenge to the competence of the learned trial Judge to preside over the case. This is born out of ground sixteen of the ground of appeal and issue number one formulated by the Appellant. I reproduce hereinunder ground sixteen and issue number one respectively.
GROUND SIXTEEN
The learned trial Judge erred in law when he continued hearing this matter after he had been transferred outside the Warri Judicial Division and without any warrant of the Chief Judge of Delta State authorizing the hearing of the case by him as a Judge sitting at the Otor-Udu Judicial Division of the Delta State High Court:
ISSUE NO. ONE
Whether the learned trial Judge had jurisdiction to continue to hear the case, without warrant, after he was transferred from the Warri Judicial Division to the Otor- Udu Judicial Division? (Distilled from ground 16)?.
The contention of the learned counsel representing the Appellant is that jurisdiction of a Court is conferred by law. He relied on the case ofMINI LODGE LTD. & ANOR V. NGEI & ANOR. (2010) Vol. 182. LRCN at 208 AK. Ratio 13. He argued that a single Judge of the High Court must hear a case and conclude same, save when the Judge is on transfer from the particular Judicial Division. He relied on S. 35 of the High Court Law of Delta State, Cap H3 Laws of Delta State of Nigeria 2008. His complaint in the main is that, Hon. Justice F.N. Osadebay -Akpunonu (Mrs) presided at the commencement of the trial while it was concluded by Hon. Justice F.N. Azinge (Mrs) and that there was a subsequent transfer of the Judge to Otor-Udu Judicial Division mid way hearing of the case but the learned trial Judge continued hearing the case to conclusion. He contended that there is no warrant authorizing the trial Judge to so do in the record of proceeding. He cited Section 39 of the High Court Laws of Delta State. He submitted that the action of trial Judge is void in law and relied on the case of U.A.C. V. MACFOY (1961) 3 E.R. Pg. 1163. AT 1172.
The reaction of the Respondent to this challenge is that the contention of the Appellant’s counsel is in the realm of misconception both on the fact and in law and not worthy of consideration. He argued that Hon. Justice F.N. Osadebay -Akpunonu (Mrs) commenced the trial as at 20th Novmber 2007 at the Warri Judicial Division and as at 17th February 2009 the name of the Judge changed to Hon. Justice F.N. Azinge (Mrs) and that there was a subsequent transfer of the learned trial Judge to Otor-Udu Judicial Division and the learned trial Judge continued the trial of the case to conclusion. This informed the comment of the learned trial Judge on page 191, line 32 – 34 of the record of Appeal when the learned Judge said
”Before I proceed to resolve the issue before the Court, it should be noted that this matter was commenced before me at the High Court Warri as Flora Ngozi Osadebay – Akpunonu and concluded on warrant now as Flora Ngozi Azinge Judge at the High Court Otor – Udu.”
He argued that the contention of the learned counsel representing the Appellant that every warrant issued to a Judge should form part of the Record of Proceeding is not strictly followed and that transfer orders, warrant or fact do not form part of the proofs of evidence filed in Court and neither are they exhibits. A transfer order is issued in the exercise of the administrative power of the Chief Judge of a State. He urged that the contention of the Appellant that a search was conducted in the registry for the warrant cannot be seen in the Record of Appeal. The Appellant’s counsel cannot now providing evidence of such.
He relied on the case of SOMMER V. F.H.A. (1992) 1 N.W.L.R. Part 219. page 548. He argued that mere transfer of a Judge from one Judicial Division to another does not amount to removal of jurisdiction of the Judge to hear to conclusion part-heard matters. The creation of Judicial Division is for administration convenience. Hereby on Section 2 and 35 of the High Court Law. Cap. H3 Laws of Delta State 2006 and the case of EGBO V. LAGUMA (1988) 3 NWLR (Part. 80) page 109; ONAGORUWA V. I. G. P. (1991) 5 NWLR (Part 193) Page 593; OLANIYAN & 3 ORS V. OYEWOLE & 4 ORS. (2008) NWLR Part. 1079 Page 114. at Page 133, para A-B, he submitted that matters of transfer orders, Judicial Division, warrant and fiat etc. are administrative matters and being strictly administrative, they do not go to jurisdiction and therefore, a Judge of a Judicial Division of the State does not loose the jurisdiction to sit and adjudicate on a matter by mere fact of his transfer to another Judicial Division of the same state.
The issue at hand is given the colouration of a challenge to the jurisdiction of the trial Court. Generally the word jurisdiction means the authority which a Court has to decide matters that are litigated before it or take cognisance of matters presented in a formal way for its decision. See MOBIL PRODUCTION NIGERIA LIMITED V. LAGOS STATE ENVIROMENTAL PROTECTION AGENCY & ORS. (2002) 12 SC. (Pt.1) 26; MUSACONI LIMITED V. ASPINAL (2013) 6-7 SC (Pt.1) 1. In the light of the foregoing definition, the question that readily come to mind is whether the complaint of the Appellant on non availability of the warrant authorizing the learned trial Judge to attend to matter in the Judicial Division by the Chief Judge of the State in the record of appeal constitute lack of jurisdiction of the Court to entertain the suit. Without wasting time, my reaction to this is in the negative. The issue of issuance of warrant of transfer of a Judge from one Judicial Division to another does not and should not be made a subject matter of proceeding because it is an internal administrative matter and correspondence between the head of Court and in this instance the Chief Judge and his Judges.
I wonder whether the learned counsel representing the Appellant, Izoukumor Sabayo Esq wanted a Court at the commencement of trial to parade his order or transfer from one Judicial Division to the other. That day will never come. As I have said earlier this challenge is not that of jurisdiction but a mere exercise of right of argument. I am of the humble view that what the learned trial Judge did by his comment on page 191, lines 32 – 34 by saying thus:
”Before I proceed to resolve the issue before the Court, it should be noted that this matter was commenced before me at the High Court Warri as Flora Ngozi Osadebay – Akpunonu and concluded on warrant now as Flora Ngozi Azinge Judge at High Court Otor – Udu”. (underline is mine).
Is a display of prudence and diligence. He owes neither of the party any duty to even give such explanation. Having done that I do not feel it lies in the mouth of a counsel that worth its salt to again start demanding for the warrant of transfer or vomiting words that suggest doubt on the integrity of the Judge. The learned counsel should create time to read soberly the provision of Section 35 of the High Court Law of Delta State, Cap. H3, Laws of Delta State of Nigeria 2005. In nowhere does the law say that trial Judges should display their warrant of posting as part of the record of proceeding in assigned cases to them. Having said this much, I discountenance this challenge to jurisdiction. Accordingly, I expunge the argument in support and ground 16 from the record.
ISSUE TWO:
Whether the defence of provocation and or self defence and Alibi are available to the Appellant in this case.?
Having put this to rest, I will now consider the complaint that the learned trial Court failed to consider the defence of provocation and self defence raised by the Appellant.
This complaint are traceable to ground Nine of the ground of Appeal. I will consider this with the complaint by the Appellant that the learned trial Judge also failed to consider the defence of Alibi raised by the Appellant. Therefore both the issues of Alibi, provocation and self defence would be taking together.
The argument of the Appellant on the foregoing complaints is that in the most unlikely event that the Court disagrees with him on any of the accentuated issues, the taking of the evidence of the prosecution witnesses and the case of the prosecution, the Appellant is entitled to acquittal upon his plea of self defence and provocation. He argued that the evidence of PW1, PW2, PW3 and PW4 are very unreliable, inadmissible and contradictory.
He contended that Exhibit ‘A’ has also been shown to never have been made but squeezed into the proceedings after the close of formal investigation by the police. He contended that, in that situation the Court is left with the evidence of the Appellant. At that stage he submitted that the trial Court would have discharge the Appellant for inability of the Respondent to prove its case as going further would amount to shifting the owns of proof on the Appellant contrary to the provision of S. 36(5) of the Constitution of the Federal Republic of Nigeria 1999. Exhibit A sufficiently adduced fact of provocation which should entitled the Appellant to acquittal or at worst a reduced sentence of manslaughter.
On the part of the Respondent is the argument that the defence of provocation and self defence are clearly not available to the Appellant. After an attempt to define provocation he submitted that for an accused to avail himself of the defence in a murder case such as this the Appellant must have done the act of murder for which he is charged in the lost of passion caused by sudden provocation and the act must have been committed before there is time for his passion to cool down. He cited the following cases: ULUEBEKA V. THE STATE (2001) Vol. 2. A.C.L.R. page 183 at 203 to 204; OGBOLU V. THE STATE (1987) 2 NWLR (Pt.54) page 20, at 33; JIDEONWO V. THE STATE (1997) 1 NWLR (Part. 480) page 209 at 219.
He contended that in order to establish provocation, the Supreme Court in the case of UWAGBOE V. THE STATE (2010) 8 LRCNCC page 122 and ANNABI V. THE STATE (2008) 13 NWLR (part 1103) page 79 outlined the following ingredients
(a) The act relied upon by the accused must be obviously provocative.
(b) The provocative act must be one that can and did deprive the accused of self control
(c) The provocative act must have emanated from the deceased
(d) The accused must have reacted to the deceased?s act without allowing his passion to cool.
(e) The force used by the accused in retaliating must not be disproportionate to the act reacted against.
He argued that in Exhibit ‘A’, the Appellant stated that the deceased threw N20.00 (Twenty Naira) on him, refused to go elsewhere to buy ogogoro drink and that the deceased insulted him by calling the accused Mugun (Imbecile) and accused ran into the store took a star bottle, broke the bottle and stabbed the deceased with the bottle. He queried whether words without more can afford the Appellant the defence of provocation. His answer is in the negative.
He relied on the case of REG V. SHERWOOD 17 ENGLISH REPORT 936 cited in the case of ULUEBEKA V. THE STATE (2001) Vol. 2. A.C.L.R. page 183 at 205 where it was decided that no provocation by words alone will reduce the offence of murder to that of manslaughter. He contended further that the learned trial judge at page 198 of the records applied the ingredient of provocation to the words ascribed to the deceased and found that provocation does not avail the Appellant. He submitted that anger or annoyance is not a defence to murder and that mere anger is not provocation. He relied on the following cases:NWANIBE V. THE STATE (1995)3 SCNJ . page 77 at page 93; NKEMEHOR V. THE STATE (1985) 5 SC page 1.
On self defence, he submitted that the defence is a far cry from the Appellant because it does not avail him. He argued that where an accused raised a defence 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 death and would have been killed or was in such fear when he committed the act. He contended that the defence is open only to an accused who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm, use such force to defend himself as he believed reasonable and necessary to prevent himself from the danger and this he is entitled to do even though such force may cause death or grievous harm.
He submitted that the trial Court in considering the defence called in aid the ingredient of self defence as clearly outlined by the Supreme Court in the case of AGBONMWANRE OMOREGIE V. THE STATE (2008) 12 SC. Part. 11 SC (Pt.11) page 80 at 91. Where Aloma-Mariam Mukhtar JSC as he then was said:
(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.
(d) There must have been a necessity for taking life.
It was further held that the accused must show that he did not want to fight and that at all material time, he was prepared to withdraw. He submitted that the above highlighted conditions are not present and hence the conclusion of the trial Court on pages 196 – 197.
He submitted that the two defence of provocation and self defence were well considered by the learned trial Judge and rejected because they are unavailable to the Appellant.
In the light of the foregoing, I will start by considering the defence of Alibi raised. In my view, the Appellant did not do much on this. He merely raised it but failed to back it up with the material requirements. Alibi as a defence is a plea by the accused person saying that he was ‘elsewhere’ at the time of the alleged offence. It is on the prosecution to lead strong and credible evidence fixing the accused to the scene of the crime. Where the Court accepts such evidence by the prosecution, the defence of Alibi naturally collapses. See SUNDAY & ANOR V. THE STATE (2010) 5-7 (pt. 11) 156 at 185 – 186; THE STATE V. AZEEZ & 5 ORS (2008) 4 SC. 188; ONUOHA & ORS. V. THE STATE (1989) 2 SC. (Pt. 11) 115; OKOSI & ANOR. V. STATE (1989) 2 SC. (Pt.1) 126.
It is the duty of the police (prosecutor) to investigate Alibi, so also it is the duty of the accused to furnish the particulars of Alibi to the police at the earliest opportunity. He must furnish his whereabout and those present with him. After all these the failure to investigate will lead to acquittal. See YANOR V. THE STATE (1965) NWLR 337; ODU & ANOR. V. THE STATE (2001) 5. SC. (Pt. 1) 153; EKE V. THE STATE (2011) 1-2 S.C. (Pt.11) 219 at 235.
In this appeal the Appellant raised issue of Alibi to my surprise, he also raised the defence of provocation and self defence, if the allegation against the Appellant is that he killed the deceased (Bombe Akre) and he raised a defence of provocation and self defence, that unequivocally suggest that he was present at the scene, had an encounter with the deceased and defended himself against act or acts by the deceased which he consider grave and harmful to him. By raising a defence of provocation and self defence, the purport of the defence of Alibi, which simply suggests that he was not present at the scene of crime is defeated. It is like blowing hot and cold at the same time. I rather conclude that the defence of Alibi raised is self defeating and apart from the fact that it is unsubstantiated it can also not stand having regard to the defence of provocation and self defence raised by the Appellant. If he was provoked, it is the victim that can palbably be said to have provoked him. With the defence of self defence, he might palbably defended himself from grave injurious act from the deceased against him. The defence of Alibi raised is unsubstantiated and it is discountenanced.
I now consider the defence of provocation which the Appellant alleged was not considered by the learned trial Judge. Provocation can be said to be some acts done by the deceased to the accused which would cause a reasonable person (the accused) a sudden and temporary loss of self control, rendering him to subject to passion as to make him for the moment not master of his mind. See the case of ULUEBEKA V. STATE (2000) 4 SC. (Part. 1) 203 at 213. The act of the deceased which the Appellant alleged was done to him is that he threw at him N20.00 (Twenty Naira) that he must sell to him Ogogoro and thereafter insulted him by calling him ‘MUGUN’ meaning (Imbecile). If that is so, the question is whether such alleged act and utterance by the deceased is provocative enough to deserve the act of the Appellant going inside his shop, picked a bottle broke it and stabbed the deceased by the neck. My answer to this is in the negative.
Considering the ingredients of the defence of provocation as laid down in the case of UWAGBOE V. THE STATE (2010) 8 LRCNCC page 122 and ANNABI V. THE STATE (2008) 13 NWLR (part. 1103) page 79, that:
(a) The act relied upon by the accused must be obviously provocative.
(b) The provocative act must be one that can and did deprive the accused of self control.
(c) The provocation act must have emanated from the deceased.
(d) The accused must have resulted to the deceased’s without allowing his passion to cool.
(e) The force used by the accused in retaliating must be disproportionate to the act reacted against.
In my humble view, the alleged provocative act and words said by the deceased are not sufficient nor commensurate to warrant the taking of a bottle and breaking same and shooking the deceased with the broken bottle by the neck. I cannot but agree with the finding and pronouncement of the learned trial Judge rejecting the Appellant defence of provocation and self defence on pages 112 – 114 of the record of appeal. In particular pages 113 – 114 of the record of appeal. Listen to the Court-
?The accused stated in Exhibit ‘A’ that he was threatened with something that looked like a knife, however there is no evidence that he was attacked with whatever it was the accused said he saw and he did not tell the Court that his life was in danger as a result of the threat or that he lost self control. Rather the evidence before the Court shows that the accused ran into his store, took bottle, broke it and stabbed the deceased on the neck.
There was no act of provocation that was grave and sudden. The accused stated in Exhibit ‘A’ that the deceased threw N20.00 (Twenty Naira) on him, refused to go elsewhere as he asked him, he insulted him and called him a mugun (Imbecile). Are these enough for the accused to break a bottle and stab the deceased?
The answer is in the negative. Beside there is no evidence that if there was force, he withdrew. Could such make a reasonable person lose self control? Hardly could such make a reasonable man lose self control. Anger or annoyance is not a defence to murder. That is why I said there was no act of provocation that was grave and sudden.?
The foregoing clearly put to rest the complaint by the Appellant as to whether or not his defence of Alibi, provocation or self defence was considered by the learned trial Judge. On that note I am of the firm view that both defence were adequately and judiciously considered before the conclusion reached by the trial Court rejecting them. Accordingly, I resolve these complaints against the Appellant and in favour of the Respondent.
ISSUE THREE
Whether the learned trial Judge properly evaluate the totality of the evidence placed before the Court and no misdirection occasioned.?
The contention of the Appellant which culminated into this redrafted issue by the Court stemmed from his issues b, c, d, e and f. They are all complaint against failure of the Court to properly consider the evidence of PW3 with a view of determining whether he conducted the examination on the deceased and whether his evidence is admissible secondly, that the evidence of the prosecution is poised with contradictions, thirdly whether the extra judicial statement of PW2, the wife of the deceased is credible, fourthly whether there is material evidence connecting the Appellant with the death of the deceased and lastly whether the alleged confessional statement of the Appellant can be relied upon in convicting the Appellant in the absence of credible extrinsic corroborating evidence.
On the complaint against the evidence of PW3. Dr. Francis Nkadi Nwochokor. The Appellant’s argument is that the evidence is completely hear say and lacks credibility. His reasons are that the fellow who identified the corpse to PW3 was not called, secondly that the name of the doctor was not listed in the proof of evidence. This line of complaint is also registered against the testimony of PW2 the wife of the deceased, the Appellant complained that her extra judicial statement was recorded after the close of investigation by the police and hence her name was not listed as a witness. Further to this is that her testimony cannot be used to convict the Appellant.
The Respondent’s reaction to the foregoing is that it is the Appellant’s view that the statement of PW2 was smuggled into the proceeding and also that the postmortem examination report was also smuggled in. He submitted that the contention of the Appellant is misconceived. He argued that the corpse was identified to the doctor by his younger brother. This fact was not challenged under cross examination. Also there is no evidence before the trial Court that the postmortem was on a wrong corpse. He contended that this therefore creates an exception to the rule of calling the fellow who identified the corps. He relied on the following cases: EHOT V. THE STATE (1993) 4 NWLR (Pt.290) 644; OGBA V. THE STATE (1992) 2 NWLR (Pt. 222) 164.
In my view the learned trial Judge considered the evidence of PW2 and PW3 in the evaluation of evidence before the Court. See pages 108 ? 113 of the record. In the circumstance of the fact of the case, there is no cinthela of evidence suggesting that PW3 the Medical Doctor carried out his examination on a wrong corpse. It has also not been disputed that the said Ziakedem Akran is truly not a brother of the deceased. I wonder where the argument of the learned counsel to the Appellant is coming from. It is trite that without a Medical report a conviction in a case of Murder can still be secured. The contention of the Appellant that the wife of the deceased PW2 cannot testify where his husband is a victim is a rues and grave misconception.
The wife PW2 is a competent witness. It is the law that the prosecution is not bound to call witnesses whether or not their name appear on the information sheet or proof of evidence. See STATE V. AZEEZ & 5 ORS (2009) 4 SC. 188; OKONOFUA V. THE STATE (1981) 6-7 SC. 1 at page 18; SAIDU V. THE STATE (1982) 4 SC. 41 at 68. See also Section 131(1) of the Evidence Act 2011.
Let me also correct the notion of the learned counsel representing the Appellant that once a report on the investigation by the police is issued no further investigation can be carried out. The fact that an investigation report by the police is issued does not mean that the police cannot proceed on further investigation even when trial in the case has commenced. Also the fact that the statement of PW2 was recorded after the issuance of investigation report by the police does not render such statement inadmissible. Also there is nothing in the record to suggest that the examination carried out is not on the deceased Bombe Akre.
There is also that seeming complaint that forensic test ought to be carried out on the broken bottle used by the Appellant that caused the death of the deceased. In the circumstance of this case, wherein there is an eye witness evidence of PW2 as to the cause of death and which is corroborated by the evidence of PW3, the medical doctor. The need for any forensic examination to be carried out on the bottle is unnecessary. Even if the said broken bottle is not tendered, it will not affect the case of the prosecution nor affect the finding of the Court that the Appellant caused the death of the deceased.
On the allegation of contradictory evidence, I am hesitant to accommodate the submission of the learned counsel representing the Appellant. The fact pointed to by the Appellant are not direct and apposite in nature to hold them as contradictory. Contradiction can be said to be a statement, action or fact that contradicts another or itself. A contradictory statement is that which state the opposite of what is being contradicted. It is an affirmation of the contrary of what was earlier stated or spoken. The Appellant has failed to bring out any material contradiction in the case of the prosecution against the accused. See the case of DAGAYYA V. STATE (2006) 1 SC (Pt.11) 1 at 16.
The issue of difference in the spelling of the name of the town or village does not change the fact that the incident did not happen. That is to say that on the faithful day, the deceased and the Appellant did not have altercation in front of the Appellant’s shop. It does not change the fact that the Appellant sell Ogogoro drink. It does not also change the fact that the deceased wanted to buy Ogogoro. There is that fact and which is undisputed that the Appellant was irritated by the alleged outburst of the deceased and in order to send the deceased away took a bottle from inside of the shop broke it and shook the deceased by the neck. The deceased died on the spot. (See the testimony of PW2, the eye witness). Therefore the complaint of contradictory evidence by the Appellant to me is nothing but a rues and an afterthought.
On the issue of the confessional statement by Appellant which the learned counsel argued was involuntary. An objection was registered, and a trial within trial was conducted before the Court admitted it as Exhibit ‘A’. For better understanding let me quickly put on record what is a confession. It is trite and settled that a confession is an admission made by a person. If made, it is the duty of the Court to consider the circumstances under which it was made and decide the weight to be attached to it. As a condition to render a confession supportive of the case of the prosecution, it must be direct, clear, positive and unambiguous. See the cases of AKPA V. THE STATE (2008) 4 ? 5 SC. (Pt.11) 1; OSENI V. THE STATE (2012) 2 SC. (Pt.11) 51; BASSEY V. THE STATE (2012) 4-5 SC. 119; JUA V. THE STATE (2010)1-2 SC. 96; BRIGHT V. THE STATE (2012) 1. SC. (Pt. 11) 47; ADESINA V. THE STATE (2012) 6 SC. (Pt.111) 114.
It is on record, that the learned trial Judge put to test the condition to be fulfilled before relying on a confessional statement to ground the conviction. Not this alone the Court also found the evidence of the eye witness PW2 to be corroborative of the said confession. (Exhibit A). see pages 113 – 116 of the record. As the learned trial Judge concluded, I have no hesitation that both Exhibit A, and the testimony of PW2, and PW3 are strong evidence pointing to no other person than the Appellant as the one that caused the death of the deceased.
The totality of the foregoing is that I have no iota of doubt in my mind that the learned trial Judge properly evaluated the evidence placed by both the prosecution and the Appellant before getting to the finding and conclusion reached and no miscarriage of justice is occasioned. Therefore, I also resolve this issue against the Appellant and in favour of the Respondent.
In conclusion therefore, this appeal is devoid of any merit and it is hereby dismissed.
In consequence the judgment of the High Court of Delta State Udu Judicial Division in charge number W/6C/2007 delivered on 27th day of July 2015 is hereby affirmed.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read in draft the judgment just delivered by my learned brother M.N. ONIYANGI, JCA. The reasoning and conclusions arrived thereat are quite apt and I adopt same as mine. I have nothing further to add. In the same vein, I hold that the appeal lacks merit and it is hereby dismissed. I abide by the consequential order made in the lead judgment.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the opportunity of reading in draft form the judgment just delivered by my learned brother, Mudashiru Nasiru Oniyangi, JCA. I agree that this appeal is devoid of any merit and I also dismiss it. I affirm the decision of the trial Court.
Appearances:
KUNLE and EDUN O.OJARIKREFor Appellant(s)
O.F. ENENMO and C.O. AGBAGWUFor Respondent(s)
