JOSEPH v. NIGERIAN NAVY (2020)

JOSEPH v. NIGERIAN NAVY

(2020)LCN/14180(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/C/393C/2017

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Between

PETTY OFFICER UDOETTE JOSEPH APPELANT(S)

And

THE NIGERIAN NAVY RESPONDENT(S)

RATIO

THE CARDINAL RULE OF INTERPRETING STATUTES

The cardinal rule of interpreting statutes is that where a statute is clear and unambiguous, the Court has the duty to simply interpret the clear provision by giving the plain wordings their ordinary interpretation. See Abacha vs. FRN (2014) 6NWLR (pt. 1402) 43, Kraus Thompson Org. Ltd vs. NIPSS (2004) 17NWLR (pt. 901) 44. This is so, because the interpretation of statutes is meant to discover the intention of the lawmaker deducible from the language used, and where the words used are clear and unambiguous, they must as a matter of principle be given their natural and ordinary meaning, unless where by doing so, the interpretation would lead to an absurdity. SeeOjokolobo vs Alamu (1987) 3 NWLR (pt 61) 377, Kuusu vs. Udom (1990) 1NWLR (pt. 127) 421. PER BARKA, J.C.A.

WHETHER OR NOT THE EVALUATION OF EVIDENCE RESIDES WITH THE TRIAL COURT

It is now elementary the fact that the evaluation of evidence resides with the Court of first trial. Where it conducts its duty evenly, a Court of appeal is always loathe in disturbing those findings of fact, particularly where it involves the issue of credibility of witnesses.
This position of the law was amplified by the Supreme Court in the case of Olabanji & anor vs. Salami Adeoti Omokewu & ors (1992) LPELR – 2541 (SC) per Wali JSC, thus:
“I find it necessary to point out that miscarriage of justice will definitely result from adopting such a course of action when it is unwarranted, (appeal Court substituting its views with that of the trial Court) the need to ensure that justice is not miscarried should always dominate the attitude and thinking of appeal Courts when dealing with appeals raising question of fact”. PER BARKA, J.C.A.

THE LAW ON SELF DEFENSE

It would have been available to the appellant where at the time the accused person was said to have killed the deceased a reasonable apprehension of death or grievous harm, and the belief by the accused that the act of killing was necessary in other to save his own life. It must be a spontaneous reaction by the accused to an unprovoked attack, to ward off or avoid the said attack against him and to defend himself from further attack. See Jeremiah vs. The State (2012) 14 NWLR (pt. 1320) 248, Omoregie vs. The State (2008) 18 NWLR (pt. 1119) 464, Famakinwa vs. The State (2016) 11 NWLR (pt. 1524) 538, Baridam vs. The State (1994) 1NWLR (pt. 320) 262, Saheed vs. The State (2018) LPELR-46675 (CA), Sule vs. The State (2018) LPELR – 46110) (CA).

In the case of Sule vs. The State (supra), I relied on the holding of the eminent jurist, Ogbuagu JSC in Annabi vs. The State (2008) 4-5 SC (pt. 2) 229, particularly where he stated that, the defense open to an accused person which a Court whether of trial or appellate has a duty to consider, in my respective view must be the defenses of such defense that appear or are contained in the evidence before the Court or appear or are contained in the record of proceedings even if the accused person did not specifically raise them, and this is regardless of whether such defense or defenses are hopeless, weak or stupid. It is however not based on the address of counsel. PER BARKA, J.C.A.

MEDICAL EVIDENCE IN ESTABLISHING THE CAUSE OF DEATH IN A MURDER TRIAL

It is also trite law that medical evidence, though desirable in establishing the cause of death in a case of murder, is not essential provided that there are facts, which sufficiently show cause of death to the satisfaction of the Court… The position, therefore, it seems to me is that the principle that failure to call the people, who allegedly identified the corpse of the deceased.. is fatal to the case of the prosecution, though good law, is narrow in its application. It is restricted to situations where the identity of the body examined by the doctor is shrouded in doubt and there is “no other evidence to clear the doubt”.
Settled the issue. See also Achukwu vs. The State (supra).
“The law is that where there are facts to infer that the corpse examined by the doctor was that of the deceased, then, the evidence of the person who identified it is not indispensable: Enewoh v. State (1990) 4 NWLR (Pt. 145) 469; Afosi v. State. It flows that the evidence of Cpl. Charles Edeh, who identified the deceased’s corpse, was not a desideratum in considering the identity of the deceased. After all, in our criminal jurisprudence, Court has the license of the law to convict an accused person without the corpus delicti, the body of the crime: Ubani v. State; Edoho v. State; Jua v. State. PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the decision of the General Court Marshall, Eastern Naval Command Calabar, sitting as a Court of first instance, which decision was delivered on the 1st day of September, 2014. By the said decision, appellant was convicted and sentenced to life imprisonment for manslaughter, and 2 years imprisonment for fighting and disorderly behaviour respectively.

History of the case.
The appellant prior to his conviction by the General Court Marshall on the 1/9/2014, was a serving naval personnel with the NNS Victory, Calabar, Cross River State, and subject to military law. Based on facts contained in the circumstantial letter forwarded by the Naval Command to the General Court Marshall, which facts appear to be that:
“Following the allegation of Murder on Mr. Sunday Agida a serving Policeman against the Accused person, investigations were carried out and the following facts were established against him:
a. POBD Udoette J was on leave and came into Calabar to visit his family. He left his house in the company of his 2 children to buy suya at Bogobiri at

about 20:21 on 10 Feb 13.
b. The Accused was involved in an accident with one Mrs. Usoro along Barracks Road, Calabar on that same night of 10 Feb 13.
c. Mrs. Usoro informed her husband Mr. Usoro who came to the scene of the accident. The Accused accepted his fault and offered to fix the car. However, Mr. Usoro insisted that the agreement between him and the Accused should be documented at the Police Station.
d. The Accused refused to go to the Police Station for documentation and a fight ensued between him and some persons who had gathered at the scene.
e. The Accused became violent when the policeman tried to take his 2 children away to the police station. He ran to his car and picked up a Seaman Knife with which he stabbed Mr. Sunday Agida a serving Policeman hereafter referred to as deceased.
f. Post-mortem was conducted and it was ascertained that the deceased died from the injury he sustained from the knife stab by the Accused.
g. The Accused was arrested and detained at Akim Police Station and subsequently transferred to State Criminal Investigation Department (SCID), Police HQ Calabar for further investigation. He is

currently in NNS Victory DQ.

At the time of the committal of the alleged offence, the Accused was then serving onboard NNMS OTTA, but was subsequently drafted to NNS VICTORY Reference A, in order to confer jurisdiction on the Court for the purpose of trial.

The appellant having pleaded not guilty to the charges read to him, prosecution proceeded to prove its case. In an effort at proving its case, the prosecution called five witnesses and tendered 4 exhibits, while the defense called two witnesses in defense. At the close of trial, the prosecution addressed the Court, which was followed by the defense final address. The judge advocate then made submissions with respect to the case, which were all filed and adopted. The findings and judgment of the Court in the case was delivered on the 1st of September, 2014, convicting the appellant of manslaughter and disorderly behaviour.

Dissatisfied with the judgment of the Court Marshall, appellant appealed the said decision vide a notice of appeal deemed properly filed with leave Court granted on the 23rd of May, 2017, predicated on eight grounds of appeal. The record of appeal was transmitted to this

Court on the 24th of October, 2017, but deemed as having been properly transmitted on the 8th of March, 2018. Thereafter, appellant filed a brief of argument on the 29th of March, 2019, but deemed filed on the 14th of October, 2019. Appellant on receipt of the respondent’s brief, filed a reply brief on the 4th of May, 2020. The appeal having come up for hearing on the 7th of May, 2020, learned counsel identified the two processes filed, adopted the same in urging the Court to allow the appeal, set aside the conviction and sentence imposed, and to enter a verdict of discharge and acquittal in favour of the appellant.

In opposing the appeal, the respondent filed a respondent brief on the 27th of April, 2020, deemed filed on the 28th of April, 2020. Learned counsel for the respondent equally adopted the lone process filed, and urged the Court to dismiss the appeal and to affirm his conviction and sentence imposed by the Court martial. By way of adumbration, counsel submitted that appellant having raised the issue of fair hearing before the lower Court, sufficient finding was made thereon. He urged the Court to therefore dismiss the appeal and to affirm

the decision of the lower Court.

In the appellants brief settled by Rotimi Aremu, and from the eight grounds of appeal raised, two issues were distilled for the resolution of the appeal namely;
1) Whether the confirmation of the findings and sentence of the General Court Martial that tried the appellant by the confirming authority after withholding the confirmation is in line with the provisions of the Armed Forces Act Cap. A20 laws of the Federation of Nigeria, 2004 so as to sustain same.
2) Whether the findings and sentence of the general Court Martial against the appellant and allegedly confirmed by the confirming authority can be sustained considering the facts and evidence before the Court.

On the other hand, Mr. Ekpedeme Iyoho, who settled the brief for the respondent, identified the following issues for the Court’s consideration:
i. Whether considering the provisions of the Armed Forces Act, the confirmation of the findings and sentence of the General Court Martial can be sustained.
ii. Whether considering the totality of evidence before the General Court Martial, the findings and sentence of the appellant was

properly founded upon proof beyond reasonable doubt.

A critical examination of the issues distilled for the determination of the appeal by the two parties are more or less similar, but for the twist in the use of language. I however find the issues drafted by the respondent clearer, precise and to the point, and therefore elect to be guided thereby.

ISSUE ONE.
Whether considering the provisions of the Armed Forces Act, the confirmation of the findings and sentence of the General Court Martial can be sustained.

Learned counsel on the issue reminded the Court that the Court of trial is the Court martial with peculiar laws and rules regulating its proceedings. Obisi vs. Chief of Naval Staff (2004) 11 NWLR (pt. 885) 482, Onitiri vs. Benson (1960) SCNLR 314 @ 317. Submits that appellant being a serving military personnel, subject to military law was tried by a Court martial duly constituted pursuant to the provisions of the Armed Forces Act CAP A20, Laws of the Federation of Nigeria 2004. Still submits that appellant was tried for offences cited against him contrary to the provisions of Section 106 (b) and 55 of the Armed Forces Act Cap A20, 2004.

Still submits that a trial before a Court martial includes the findings and sentence pronounced as well as the confirmation of such finding and sentence by the confirming authority, Sections 137 – 142 and 148 of the Armed Forces Act, 2004 were cited in that regard. He argued that the implication of the provision of Section 148 (3) of the Act is to the effect that the confirmation of the findings and sentence of the Court martial by the confirming body forms an integral part of the trial. He referred to the case of Akinwale vs. Nigerian Army (2001) 16NWLR (pt. 738) 109 @ 122 per Galadima JCA. Further refers to the provision of Section 151 (1) (a) (b) and (c) with regard to the powers exercisable by the confirming authority, submitting that there are consequential implications as regards the steps taken. Submits that the legal implication of the withholding of confirmation to the findings and sentence of the Court martial by the confirming authority are as provided for in Section 171 (2) (a) and (3) of the Armed Forces Act. Learned counsel then proceeded to submit that the implication of Section 171(2) (a) is that where the confirming authority

withholds confirmation, the proceedings before the Court martial are deemed erased and extinguished. That even though subsection (3) of Section 171 of the Act, seeks to provide a window for a retrial, such must be exercised within a time frame of 28 days.

With respect to the case at hand, learned counsel alluded to the contents of the letter of the confirming authority dated the 23rd day of September, 2015, with reference number NH.08/10/14/vol. v/13, made subject to Section 141 (2) of the Armed Forces Act, submitting that the confirmation letter falls short of the expectation and authority of the duties and powers conferred on the confirming authority. He argued in line with the decision in Kamba vs. Bawa (2005) 4NWLR (pt. 914) 43 @ 74, that where a statute makes provision for a particular method of doing things, that method and no other must be adopted. Still complains that the confirming authority went outside the scope of its powers and authority given to it, and argued that the confirming authority had earlier withheld its confirmation owing to irregularities, and having published that its confirmation was withheld, the original trial is deemed not

to exist.

In his response on the issue, learned counsel understood the hub of the appellant’s complaint as being that; since part of the letter of confirmation made reference to withholding of the said confirmation, the same should be deemed withheld and the trial nullified. He alluded to Section 151 (7) of the Armed Forces Act, and relying on the record argued that throughout the gamut of the record, there was nowhere stated or record of a notice of promulgation being issued by the confirming authority to the effect that its consent has been withheld as demanded by law. Still relying on the case of Cooperative and Commercial bank of Nigeria Ltd vs. AG of Anambra State (1992) 8NWLR (pt. 261) 528 @ 556 counsel re-emphasized the point that where a statute provides for a particular method for performing a duty regulated by statute, that method and no other must be adopted, and continued to argue that whereas there was no promulgation of a notice evidencing the withholding of the Court martials confirmation, the exercise cannot be said to have been deemed done other than the method provided.

On points of Law, it was argued that the issue of

withholding of confirmation by the confirmation authority i.e., the Chief of Naval Staff is clear from paragraph 2 of the letter afore stated, and therefore, the fact that confirmation was withheld due to identifiable irregularities is beyond doubt. He urged the Court to give the letter its natural and literal meaning and to hold that the promulgation of the withholding confirmation was established.

RESOLUTION
The crux of the Appellants complaint as rightly submitted borders on whether the confirming authority in this case of the Chief of the Naval Staff, by the letter earlier alluded to, withheld the confirmation of the findings and sentence of the Court martial constituted to try the Appellant.

It is common ground that the confirmation by the confirming authority of the sentenced passed on the Appellant by the General Court Martial that tried him can only stand in accordance with the provisions of the Armed Forces Act. Parties are equally on common ground that once there is withholding of confirmation by the confirming authority, the sentence passed on the Appellant as well as the conviction thereto cannot be allowed to stand in law.

The area of contention to my mind, is whether the confirming authority withheld the confirmation of the findings and sentence pronounced on the Appellant by the General Court Martial that was convened to try him.

The learned Counsel for the Appellants now alluded to the provisions of Sections 171 (2) and 171 (3) of the Armed Forces Act, submitting, that once the confirmation of the finding and sentence of the Court martial is withheld by the confirming authority, the entire trial becomes a nullity and the person tried shall be deemed as not having been tried at all.

Let me for the sake of clarity produce the two relevant sections of the Armed Forces Act relevant to this issue:
Section 171(2)
“For the purpose of this section
(a) A person shall not be deemed to have been tried by a Court Martial if confirmation is withheld of a finding by the Court Martial that he is guilty of the offence by reason of insanity;
(b) ….
(c) ….
Section 171(3)
Where the confirmation of a finding of guilty of an offence is withheld, the accused shall not be tried again by a Court Martial for that offence unless the order

convening the latter Court martial is issued not later than 28 days after the promulgation of the decision to withhold confirmation”.

Mr. Iyoho, for the Respondent is of the view that the Appellants argument on the issue was made without resorting to subsection (7) of Section 151, of the same Armed Forces Act which provides: –
“Where the confirming authority withholds confirmation under this section, notice thereof, shall be promulgated, and it shall have effect as from the date of promulgation”.

The Arguments by the Learned Counsel cannot be effectively understood without giving consideration to the letter of the Chief of Naval Staff located at page 331 of the record thus: –
CONFIRMATION OF COURT MARTIAL TRIAL – POBD UDOETTE JH BD0599
References:
A. HQENC: 08/10/14/Vol. XIII/86 dated 4 Nov 14.
B. NHQ: 08/98/93/A/IV/217 Dated 31 Mar 15.
1. I am directed to convey CNS confirmation of the trial and punishment of the above-named rating. The rating was tried by a General Court Martial convened by Comd NNS VICTORY for the offences of ‘murder’ as well as ‘fighting, quarrelling and

disorderly behaviour’. On completion of the trial, he was found guilty of ‘manslaughter’ and ‘fighting, quarrelling and disorderly behaviour’. Consequently, he was sentenced to ‘Life Imprisonment’ and ‘2 years’ Imprisonment’ respectively.
2. It would be recalled that upon review of the case, confirmation was withheld due to some identified irregularities in the trial. Thus a re-trial was ordered vide Reference B at Enclosure 1, in line with Section 150 of the AFA. However, the order of re-trial became status barred due to failure to commence re-trial within 28 days of withholding of confirmation as required under Section 171 (3) of the AFA. The Confirming Authority has therefore invoked its powers Section 151(4)(a) of the AFA and approved the sentence of ‘Life Imprisonment’ awarded the Accused for ‘manslaughter’. However, the sentence of 2 years’ imprisonment’ awarded for ‘fighting, quarrelling and Disorderly behaviour’ was reduced to ‘6months imprisonment. Affected commands, units and Establishments are therefore to take appropriate actions

on the subject matter.
3. Please note and treat accordingly, Sir.
Enclosure:
1. Copy of Ref B.
Distribution:
External:
Action:
FOC EAST
CND
Information:
NNS VICTORY
Internal:
Action:
NAVSEC
Information:
NPM
NA-CNS
NA-COA
File

It is clear from the foregoing that the resolution of the issue under consideration rests squarely on the interpretation of the letter just produced, read together with the provisions of Section 171 of the Armed Forces Act, 2004. The cardinal rule of interpreting statutes is that where a statute is clear and unambiguous, the Court has the duty to simply interpret the clear provision by giving the plain wordings their ordinary interpretation. See Abacha vs. FRN (2014) 6NWLR (pt. 1402) 43, Kraus Thompson Org. Ltd vs. NIPSS (2004) 17NWLR (pt. 901) 44. This is so, because the interpretation of statutes is meant to discover the intention of the lawmaker deducible from the language used, and where the words used are clear and unambiguous, they must as a matter of principle be given their natural and ordinary meaning, unless where by doing so, the

interpretation would lead to an absurdity. SeeOjokolobo vs Alamu (1987) 3 NWLR (pt 61) 377, Kuusu vs. Udom (1990) 1NWLR (pt. 127) 421.

Indeed, the conviction of the appellant by the Court martial was made subject to the confirmation of such conviction and sentence by the confirming authority as demanded by the provisions of Section 141 (2) of the Armed Forces Act, 2004. It flows therefrom that where such confirmation is withheld, a person shall not be deemed to have been tried. The appellant now argue that where such a confirmation is withheld on the finding and sentence by the Court martial by the confirming authority, the entire trial is as if it never held, and a nullity. The learned counsel on this preposition sought for support from the provision of Section 171 (3) of the same act. Further positioning his arguments on the cases of Cooperative and Commercial Bank of Nigeria Ltd (supra) and Kamba vs. Bawa (supra), maintained that where a statute provides for a particular method of performing a duty, and regulated by statute, that method and no other must be adopted. Appellant now points at paragraph 2 of the confirming authorities letter of the 13th

September, 2015, contending that by the stated paragraph the confirming authority had withheld its confirmation, and failing to invoke the provisions of Section 171 (3) within 28 days provided for in the statute, the trial by the Court martial should be deemed in law as not to have taken place.
This argument according to the respondent must be balanced against the provisions of Section 171 (7) of the Armed Forces Act, which demands that the withholding of the confirmation by the confirming authority be by way of a notice of promulgation and not subject to speculation.
I have accorded the arguments by the two parties a thorough but solemn consideration. The determinant question to my mind will reside in whether the confirming authority promulgated any notice to the effect that it had withheld its confirmation to the findings and sentence of the Court martial, and thereby rendering the trial of the Court martial otiose, null and void. It is true as posited by the respondents, that a clear notice by the confirming authority indicating that it has withheld confirmation cannot be found from the record. It seems to me that appellant counsel hinged his

submission, that the confirming authority withheld its confirmation on the letter earlier mentioned, written by the confirming authority. I have therefore given the said letter with ref. No: NH, 08/10/14/vol. XIII/86 dated the 4th of November, 2014 a religious but calm perusal. The contents therein are self-explanatory. It is headed confirmation of Court martial trial- POBD Udoette JH BD0599. The 1st paragraph began with the sentence, I am directed to convey confirmation of the trial and punishment of the above named rating. The letter went further to assert that upon a review of the case, confirmation was withheld due to some identified irregularities in the trial… the confirming authority has therefore invoked its powers under Section 151 (4) (a) of the AFA and approved the sentence…
An appeal is an indication that the judgment of the lower Court cannot be sustained in view of specified reasons stated in the grounds of appeal. To this end, It must be understood that by law, appellant owes the Court a duty to show that the decision of the lower Court, was wrong and which area of the trial Court’s decision, procedural

or substantive, affected the regularity of the Court’s decision, and in the instant case, Appellant owes this Court, proof that his trial by the Court martial was rendered null and void by the operation of the armed Forces Act, that is that the confirming authority withheld its confirmation and that the said authority promulgated that it was withholding its confirmation as required by the law. Going by the recognized import of the decision of the apex Court in the cases of CCB (Nig) Ltd vs. AG Anambra State (supra), which implies that the confirming authority in withholding confirmation must abide the stipulation in Section 151 (7) of the AFA, 2004, the respondent counsel is on firm footing contending that no such promulgation is evident from the records. I wholly agree with the respondent that this statutory requirement cannot be subjected to speculation and or presumption, for it is the act of the promulgation of its decision that it has withheld its confirmation for reasons adduced that legally satisfies the provision of Section 151 (7) of the Armed Forces Act, 2004. The letter referred to has not dislodged that requirement. From the foregoing

therefore, it seems to me that the letter in question rather confirmed the findings and sentence imposed by the Court martial, and the fact that the confirming authority delayed its confirmation, does not render the confirmation by itself defective. I resolve this issue against the appellant.

ISSUE TWO
Whether the findings and the sentence of the General Court Martial against the Appellant and allegedly confirmed by the confirming authority can be sustained considering the facts and evidence before the Court.

It is the contention of the Learned Counsel that the finding of the General Court Martial was devoid of comprehensive consideration and evaluation of evidence. Placing reliance on the cases of Ojogbue vs Nubia (1972), 1 ALL NLR (pt. 2) 226 @ 232, A. G. Leventis (NIG) PLC vs Akpu (2007) 17 NWLR (pt. 1063) 416 @ 447 and Sagay vs Sajere (2000) 6 NWLR (pt. 661) 360 @ 370, Counsel submitted that a judgment of the Court of law, must demonstrate in full a dispassionate consideration of all issues properly raised, and argued that in the instant case, the judgment was not derived from demonstrable evaluation.

In particular, counsel argued

that Appellant’s defense of self-defense was not considered at all. It was further argued by the learned counsel that there was no concrete or conclusive evidence, showing that the person who inflicted the lethal weapon allegedly used, was the appellant, owing to the fact that there was a free for all fight, and further that the weapon said to have been used in the commission of the crime was not tendered, thus creating doubts which ought to have been resolved in favour of the Appellant. Learned counsel went further to argue that there was no evidence to the effect that the person allegedly killed was Sunday Agida, since nobody identified the corpse. He urged the Court on the foregoing to resolve the issue in favour of the Appellant, and to allow the appeal on that score.

Arguing to the contrary, it was contended that there was ample direct evidence, particularly that of the PW 4, and PW 5 to the effect that appellant stabbed the deceased. Also submitted that the consequence of using a deadly weapon such as the appellant’s knife to stab the deceased, translates to the fact that appellant intended the natural consequence of his act. The case of

Afolabi vs. The State (2013) LPELR – 20700 (SC) was cited to support his argument. He argued that the defense of self-defense was not available to him in the circumstance, and the failure to identify the knife used, or the fact that the corpse of the deceased was not identified for post mortem are of no moment as held in the cases of Sale vs. The State (2020) 1NWLR (pt. 1705) 221 @ 242, Achukwu vs. State (2015) ALL FWLR (pt. 779) 1079 @ 1108.

The appellant’s complaint with regards to this issue is anchored on his contention that the judgment of the Court martial was devoid of comprehensiveness and evaluation of evidence. In other words, appellant is by this issue questioning the evaluation of evidence carried out by the Court below.

(1992) LPELR – 2541 (SC) per Wali JSC, thus:
“I find it necessary to point out that miscarriage of justice will definitely result from adopting such a course of action when it is unwarranted, (appeal Court substituting its views with that of the trial Court) the need to ensure that justice is not miscarried should always dominate the attitude and thinking of appeal Courts when dealing with appeals raising question of fact”.

In the instant case, there is uncontested evidence before the Court martial, that on the 10th day of February, 2013, the accused person left his house at Akim Barracks with two of his children to purchase suya somewhere in town. On his way home, he was involved in a motor accident involving himself and one Mrs. Usoro. The prosecution while leading evidence before the lower Court, called PW 2, Inspector Samuel Akang who testified to the effect that he was called to the scene of the accident, and narrated how he tried to settle the minor incident between the parties involved. He further narrated how the accused, now appellant rushed at the deceased and stabbed him with a dagger which he retrieved and

identified at the trial. At the point of cross examination, this witness maintained that “I saw him stabbing the person because he ran from me”. PW 3, Dr Godwin Abe Ebughe, a pathologist working with the University of Calabar Teaching Hospital, narrated how he performed a post mortem examination on the body of one Sunday Agida, and stated further in evidence that in his opinion as such Medical Doctor, who was saddled with the duty of performing the autopsy on the body of the deceased, of the firm view that the deceased died from a stabbed injury on the right side of his flank. Also giving evidence for the prosecution, PW 4, Mrs Mercy Sunday Agida, who identified herself as the wife of the deceased police officer, narrated as follows:
“My husband asked him why he was dragging the boy that he was one of his problem, why must you trouble this boy, only that statement he made, this navy man used dagger and chucked my husband. When he chucked him that dagger I was still standing there I was shocked. I didn’t even know what was going on, when my husband ran to my shop I followed him I said what was the problem he was still holding his

stomach, he said he has daggered me”

PW 5, Samuel Otu, while giving evidence before the Court martial corroborated the fact that appellant indeed stabbed the deceased person with a service knife to death in his presence. The appellant who in his testimony did not dispute the fact that there was actually a fight involving him and other persons, however denied stabbing the deceased as alleged.

The Court martial in its brief findings and judgment relied on the statement of one Mr. Usoro, the evidence of the PW 3, PW 2, and DW2 in arriving at the conclusion that appellant was guilty of the offense of manslaughter. Even though it was wrong of the Court martial to have used the statement of Mr. Usoro, who was not called to give evidence and to be cross examined thereon, there is ample direct evidence roping the appellant with the commission of the heinous crime. There is no contention on the effect of the appellant using a military knife to stab the deceased, other than to kill or to cause grievous bodily harm, and further it can safely be deduced that appellant intended the natural consequence of stabbing the deceased in the right flank with a

military knife.

It was also argued by the appellant that the Court failed to consider the defense of self defense set out by the appellant. Let me briefly restate the law on self defense. It would have been available to the appellant where at the time the accused person was said to have killed the deceased a reasonable apprehension of death or grievous harm, and the belief by the accused that the act of killing was necessary in other to save his own life. It must be a spontaneous reaction by the accused to an unprovoked attack, to ward off or avoid the said attack against him and to defend himself from further attack. See Jeremiah vs. The State (2012) 14 NWLR (pt. 1320) 248, Omoregie vs. The State (2008) 18 NWLR (pt. 1119) 464, Famakinwa vs. The State (2016) 11 NWLR (pt. 1524) 538, Baridam vs. The State (1994) 1NWLR (pt. 320) 262, Saheed vs. The State (2018) LPELR-46675 (CA), Sule vs. The State (2018) LPELR – 46110) (CA).

accused person which a Court whether of trial or appellate has a duty to consider, in my respective view must be the defenses of such defense that appear or are contained in the evidence before the Court or appear or are contained in the record of proceedings even if the accused person did not specifically raise them, and this is regardless of whether such defense or defenses are hopeless, weak or stupid. It is however not based on the address of counsel.

In the case at hand, do agree with the learned counsel for the respondent, that this defense of self defense, is not available to the appellant. The record of appeal shows that appellant was in no way apprehensive of his life to have acted the way he did. At the time of the commission of the offence, there was evidence that appellant who was seriously irritated by the fact that his authority was being questioned by a bloody civilian, refused all entreaties to settle the incident between him and the other party amicably. He equally refused to follow the police who had arrived at the scene to their station so as to settle the friction that led to the instant case. None of the alleged people that appellant

claimed were invited by Mr. Usoro, and who allegedly beat him were said to be armed, neither was there evidence in support of his contention that his children were in danger of being harmed, and worse of all, it was a bye stander who was not involved in the scuffle that was incidentally killed by the appellant, and not those allegedly fighting him. The Court martial was right in the prevailing circumstance to have discountenanced appellant’s assertion which tried to raise the issue.

The learned respondent counsel is equally correct in contending that the prosecutions failure to identify the knife used in killing the deceased, and the failure to identify the corpse of the deceased, in the face of strong evidence confirming that appellant stabbed the deceased and died, are of no moment. The recent case of Sale vs. The State (supra) @ 242, to the effect that:
“If there are facts from which it can be inferred that the corpse examined by the doctor was that of the deceased the evidence of the person said to have identified the corpse is not indispensable. Indeed a conviction for murder can be made without the recovery of the dead body if there

is positive evidence that the deceased had been killed in effect the need for anyone to identify the body of the deceased to a doctor is sine qua non in all murder cases. It is also trite law that medical evidence, though desirable in establishing the cause of death in a case of murder, is not essential provided that there are facts, which sufficiently show cause of death to the satisfaction of the Court… The position, therefore, it seems to me is that the principle that failure to call the people, who allegedly identified the corpse of the deceased.. is fatal to the case of the prosecution, though good law, is narrow in its application. It is restricted to situations where the identity of the body examined by the doctor is shrouded in doubt and there is “no other evidence to clear the doubt”.
Settled the issue. See also Achukwu vs. The State (supra).
“The law is that where there are facts to infer that the corpse examined by the doctor was that of the deceased, then, the evidence of the person who identified it is not indispensable: Enewoh v. State (1990) 4 NWLR (Pt. 145) 469; Afosi v. State. It flows that the evidence of Cpl.

Charles Edeh, who identified the deceased’s corpse, was not a desideratum in considering the identity of the deceased. After all, in our criminal jurisprudence, Court has the license of the law to convict an accused person without the corpus delicti, the body of the crime: Ubani v. State; Edoho v. State; Jua v. State. These effectively deflate all the undeserving strictures which the Appellant passes on Exhibit B. I therefore, hold that Exhibit B is quite relevant even as it solidifies the vital point that is, was the bullet wound from the Appellant’s gun, which damaged the deceased’s necks, which approximately led to his cardio respiratory failure and ultimate death.”
The fact that appellant was shown to have stabbed the deceased with a knife, and that act of the appellant led to the death of the deceased, having been proved to the hilt, it does not lie in the mouth of the appellant to argue that the judgment be vitiated for reasons stated in their submissions. I do not agree that a case of lack of fair hearing was actuated against the appellant, but rather of the view that the Court below meticulously, and admirably conducted the

proceedings that led to the appellant’s conviction, being that the Court is a special Court, in particular, a military Court, struggling to conform with the rule of law, which it admirably did. This issue is resolved against the appellant.

The two issues having been resolved against the appellant, the consequence of which is that the appeal fails, and same is dismissed by me. The decision of the general Court Martial, delivered on the 1st of September, 2014, wherein appellant was sentenced to life imprisonment, and 2 years all subject to the confirmation of the confirming authority is hereby affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Hamma Akawu Barka, JCA. My learned brother has adequately dealt with the two (2) issues nominated for the determination of the appeal. I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal lacks merit and should be dismissed.

I abide with the consequential orders.

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion expressed by learned

brother, H.A. BARKA, JCA, in the lead judgment, just delivered.

I also dismiss the appeal, the delay and flaws of the confirmation letter of the decision of the Court Marshall, by the Confirmation Authority, notwithstanding.

Appearances:

Alice Ewa Esq., holding the brief of Rotimi Aremu For Appellant(s)

Ekpedeme Iyoho Esq., leading Mark Tambe For Respondent(s)