NDIDI NKEMAKOLAM v. THE STATE
(2013)LCN/6385(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of July, 2013
CA/OW/205/11
RATIO
DUTY OF COURT: CONSIDERATION OF DEFENSES
The law is settled that it is the duty of the trial court to consider all defences raised by the evidence whether or not the accused person specifically put up such defences or whether they were relied upon, and to deal adequately with any other issue of fact which might reasonably arise out of the evidence given and which would reduce the evidence from murder to manslaughter. See Sokoto vs. State (1976) 2 SC, 133 R Vs. Bio (1945) II WACA 46, Akpabio Vs. State (1994) 7 NWLR (PT. 359) 635. PER UWANI MUSA ABBA AJI (PJ), J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
NDIDI NKEMAKOLAM Appellant(s)
AND
THE STATE Respondent(s)
UWANI MUSA ABBA AJI (PJ), J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of P. O. Nnadi J. of the High Court of Imo State sitting in Owerri, in charge No. HOW/80C/2006 wherein the learned trial judge sentenced the Appellant to death by hanging for the offence of murder contrary to Section 319(1) of the Criminal Code Cap. 30 Vol. II Laws of Eastern Nigerian applicable to Imo State.
The facts of the case briefly, is that, on the 9th day of July, 2006, Curing the early hours of the day, the accused went to the house of PW1 and PW2 who are Okenze Linus Nworgu and Emeka Nworgu respectively and reported to Emeka Nworgu that one Acho Nworgu, his brother was cutting her kola nut tree.
Emeka Nworgu went to the house of the accused and saw the said Acho Nworgu and went back to his house. Sooner or later there were some noises which attracted Emeka Nworgu and upon an inquiry, was told that the accused had killed his brother. Emeka quickly ran to the scene of the incident and saw the corpse of his brother and the kola nut tree that was cut.
This incident caused the accused to run to the Ngor Okpala Police Station and made a report of the incident. The corpse of the deceased, Acho Nworgu, was taken to hospital. The accused was taken into police custody by the Police at Ngor Okpala who later transferred her to Umuneka police station, from there to C.I.D Owerri where the P.W.3, the investigating police officer was detailed to investigate the case. The accused made a statement to the I.P.O.
At the end of investigation, the prosecution file an information dated 17/12/2006 charging the accused with the murder of Acho Nworgu on 9/7/2006 at Eziama Ngor Okpala, Owerri judicial division, Imo State. The accused pleaded not guilty to the charge. The prosecution called 3 witnesses; PW1, PW2 and PW3 and tendered Exhibit A. The defence called 2 witnesses; DW1 and DW2 and tendered Exhibit ‘B’ and closed its case. Though an autopsy was conducted by the prosecution and a report issued, the prosecution did not tender it.
After the close of evidence, learned counsel filed written addresses. The court found the accused guilty as charged and sentenced her to death for the offence of murder.
The accused, being dissatisfied with her conviction and sentence has appealed to this court vide the Notice of Appeal dated 8/4/2011 containing 4 grounds of Appeal which are hereby reproduced shorn of their particulars:
“(1) GROUND I: Error in law,
The learned trial judge erred in law when he convicted the Appellant of the offence of murder and sentenced her to death, holding thus: “in conclusion, I therefore hold that the prosecution has proved the commission of the offence of murder against the accused person beyond reasonable doubt and the accused person is found guilty as charged and accordingly convicted of the murder of the deceased…..”
(2) GROUND II: Error in law,
The learned trial judge erred in law when he tried and convicted the Appellant of the offence of murder without giving him his constitutional right to fair hearing/trial in public.
(3) GROUND III
The decision of the trial court is unreasonable and cannot be supported having regard to the evidence before the court.
(4) GROUND IV IN ALTERNATIVE: Error in law
The learned trial judge erred in law when he convicted the Appellant of the offence of murder and sentenced her to death without considering alternative defence/verdict available to her”
In accordance with the rules and practice of this court, parties filed their respective briefs of argument. The Appellant’s brief of argument, settled by O. N. Ichie Esq. was deemed filed on the 3/4/2012. The Respondent’s brief settled by C. N. Akowundu Esq. Director Public Prosecution, was deemed filed on 19/2/13. Upon receipt of the Respondent’s brief, the Appellant filed a reply brief on 28/7/13. The Appellant formulated the following 3 issues for determination: –
“(1) whether the prosecution discharged the onus of proof placed upon it by law by proving all the ingredients of murder beyond reasonable doubt against the Appellant (ground 1 & 2).
(2) whether the trial court was right to have convicted the Appellant of murder without considering all possible defence, including the verdict of manslaughter availing the Appellant, if no whether in so doing, miscarriage of justice was not occasioned (ground iv an alternative ground).
(3) whether the proceedings of the lower court were in breach of section 36(1) & 36(4) of the 1999 constitution of the FRN (as amended) and therefore null and void (ground 2).
The Respondent also formulated the following 3 issues for determination:
1. Whether the prosecution proved its case beyond reasonable doubt against the appellant.
2. Whether the learned trial judge did not consider all the defence available to the Appellant.
3. The Appellant’s issue 3 was adopted.
The Respondent’s issues 1 and 2 are the same in con with the Appellant’s issues 1. I will therefore adopt the issues for determination nominated by the Appellant in the determination of this appeal.
In arguing issue one, learned counsel for the Appellant contended that it is settled law that to secure a valid conviction in a charge of murder, the prosecution upon whom the Onus of proof lies must painstakingly prove the following ingredients:
(a) That the Appellant killed the deceased;
(b) That the killing was unlawful;
(c) That the Appellant unlawfully killed the deceased under one or the other of the six circumstances enumerated in Section 316 of the criminal code CAP. 30 LFN; 1963.
He cited Onah vs. State (1985) 3 NWLR (PT.1) 236 at 246 and argued that the prosecution can do it either by direct or circumstantial evidence or even both.
Learned counsel contended that the Appellant denied killing the deceased but admitted that the deceased only sustained a knife cut on his hand during a fight/struggle induced by the deceased on the day in question. That prosecution on the other hand relied on circumstantial evidence in their attempt to prove the 3 ingredients of the offence as charged against the Appellant. The reason, according to counsel for the Appellant was, there was no eye witness called by the prosecution to testify. Counsel then submitted that the prosecution did not establish ingredients (a – c) because a vital witness whom PW1 claimed informed him that Appellant killed the deceased was not called to testify. He cited Onah vs. State (1985) 3 NWLR (Pt 12) 237 to submit that the only inference that can be drawn from the evidence of PW1 on the issue is that she was an eye witness to the Appellant committing the offence and that in her absence the story of PW1 become hearsay, and fatal to their case.
Learned counsel for the Appellant argued further that the IPO (PW3) who admitted that an autopsy was conducted on the deceased did not give evidence of the outcome of the autopsy, neither did the prosecution call the medical Dr. (pathologist) that conducted that autopsy; there was evidence of a knife cut at the front side of the deceased as well as a sustained evidence by DW2 (an eye witness) that the deceased hit the back of his head on the pavement while pursuing the Appellant after the fight before he died subsequently. Learned counsel contended that the prosecution did not eliminate by forensic evidence the possibility of death resulting from a forceful collision of the deceased’s head on the rocky pavement during the fit of the epilepsy (a disease admittedly suffered by the deceased). This point, according to learned counsel is material when this court considers the trite law that “cause of death is always a fact in issue in a case of homicide and may be proved by direct or circumstantial evidence. He cited Ahmed vs. State (2003) 3 ACLR 145. Learned counsel, then submitted that where death occurs after injury but there is no medical evidence of cause of death, the injury relied upon must be described so properly that it will amount to prima facie proof of cause of death. He cited Ahmed vs. State (supra) at paragraph 159.
Counsel contended further that, the prosecution and the trial court relied on the injury said to have been inflicted on the deceased by the Appellant vide a knife cut. That there was no evidence of any description of the nature of the injury sustained by the deceased. Exhibit “A” which the court relied upon in convicting the Appellant contains no such description either. That there was no evidence of how deep or shallow the injury was and also it did not show whether the knife cut was inflicted on a delicate part of the body such as the neck, stomach, chest e.t.c nor did it suggest that the deceased bled to death or was found in pull of his own blood or any blood at all before he was taken to the hospital. Learned counsel contented that the only useful evidence was provided by DW2 who was an eye-witness and who gave evidence of the deceased getting involved in a fit of epilepsy and forcefully banging his head on a pavement in the process. As this witness (DW2) was not cross examined by the prosecution, the evidence thus remained unchallenged: In the circumstance he argued, the prosecution cannot be said to have proved cause of death with such certainty and beyond reasonable doubt against the Appellant. He cited Archibong vs. State (1972) ANLR 800.
It is the submission of learned counsel that, by the provision of Section 149(D) of the Evidence Act CAP E14, LFN 2004 (as amended) that the failure of the prosecution to call either the Dr. who admittedly performed the autopsy on the body of the deceased or tender the report arising therefrom is adverse to their case on this point because if called or the report reproduced they will show that the deceased did not die from the injury sustained from the knife cut. He cited Ani vs. State (2009) 6 MJSC (PT 2) 1. It is his further submission that due to these two possible causes of death of the deceased at the trial which the prosecution failed to eliminate, it cannot be said that the circumstantial evidence relied upon by the prosecution was conclusive. He cited @ Woolmington vs. DPP (1935) AC 462 where this inflexible principle was stated and restated over and over by the Appellate courts of the land as in Ani vs. State (2009) 6 MJSC (PT.11) at 16. He cited section 138 of the Evidence Act CAP. E 14, LFN 2004 (as amended); Section 36(5) 1999 Constitution as (amended). R. Vs. Oledinma (6 WACA) 202 referred to in Onyenankeya Vs. State (1964) 1 NMLR 34.
Learned counsel urged that this court can convict the Appellant of the offence of causing harm to the deceased since evidence of both sides disclose it, though not charged with the offence. He cited Ahmed Vs. State (supra) at P.164 para 20 – 40. He finally urged this court to resolve issue 1 in favour of the Appellant.
In reaction to these arguments on this issue the Learned counsel for the Respondent argued that in criminal case of murder under Section 319(1) of the Criminal Code cap. 30. Vol. 11, Laws of Eastern Nigeria 1963, it is incumbent upon the prosecution to prove beyond reasonable doubt that:
a) The deceased died.
b) That the death of the deceased resulted from the act of the accused/Appellant and
c) That the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence. He referred this court to these line of authorities:
Nwachukwu Vs. State (2009) 37 NSCQR P.425 particularly at PP. 459 – 460 (paras H – C) Onah Vs. State (1985) 3 NWLR (PT. 12) P.236, Ogba Vs. The State (1992) 2 NWLR (PT 222) P.164 at 198. Learned counsel submitted that the prosecution has proved the above mentioned ingredients beyond reasonable doubt against the Appellant. Counsel submitted further that as regard to the ingredient 1, the deceased has died. He referred this court to the evidence of PW2, Emeka Nworgu at PP.24 – 26 of the records of appeal. That from his evidence, the deceased died at the spot. Learned counsel also referred this court to Exhibit “A”, a statement of accused person which was tendered before the lower court without objection by PW 3. Counsel concluded on this point that from the above, the prosecution had proved that the deceased died.
On ingredient (b), learned counsel for the Respondent submitted that the prosecution has proved that the death of the deceased resulted from the act of the Appellant. He referred this court to the evidence of the PW2.Counsel further referred this court to Exhibits “A” and “B” which counsel said were voluntary statements of the Appellant and submitted that the prosecution has proved beyond reasonable doubt, the cause of death, and that from the evidence of the prosecution witnesses and the statement of the accused which she admitted in court thus, “but I don’t know the particular place where I cut him and he fell down and died.”
Learned counsel submitted that the act of the Appellant in cutting the deceased with machete was intentional, with full knowledge that death or grievous bodily harm was its probable consequence. He referred this court to Section 316 of the Criminal Code and submitted that there are two intentions relevant to this appeal, vis:
(1) Intention to kill, Section 316(1) of the Criminal Code and,
(2) Intention to do grievous bodily harm Section 316(2)
Counsel contended that, if the act which caused death is done with either of these intentions, the offence is murder. He cited Amayo vs. State (2002) FWLR (PT. 19) PP. 1571 – 1575 (Para G – H) and submitted that intent to kill or to cause grievous bodily harm can be inferred from
(a) The type of weapon used.
(b) The nature of wound inflicted on the deceased.
(c) The part of the body where the wound was inflicted.
Counsel also referred this court to the cases of Bakare Vs. The State (1987) 1 NWLR (PT. 52) P.579. Buje Vs. The State (1991) 4 NWLR (PT. 185) P.287 at 200, and argued that, from the admission of the Appellant that she cut the deceased on the front part of his body, it becomes clear that the Appellant had the two intentions earlier stated. He further referred to the testimony of the PW 3 at page 6 of the record of Appeal.
Learned counsel submitted that based on the above, the accused had not only the intention to do grievous bodily harm to the deceased but the intention to kill him. He argued, it is not the law as contended by counsel to Appellant in his argument on this issue that since the prosecution did not call the medical Dr. who performed the autopsy on the deceased that it is fatal to the case of the prosecution. But rather, he argued, it is the law that where there are other evidence upon which the cause of death can be inferred, it is not vital to have resort to medical report. On this point, counsel cited Ogbu vs. State (2007) ALL FWLR (PT.361) P.1651 at 1674 para B – C (SC) Adamu Vs. Kano M.A. (1956) 1 FSC 25, Lori Vs. State (1980) 8 – 11 SC 81 (1998) 1 ACLR 267 at 279 and submitted that, the fact that the Appellant deliberately used a machete and cut the deceased on the frontal part of his body is most intentional and Appellant was fully aware at the time she gave the machete cut that such could cause his death or grievous bodily harm. He cited Nungu Vs. State (1953) 14 WACA 379, and submitted further that it does not lie in the mouth of the Appellant that she did not intend to cause death of the deceased after inflicting the machete cut on him since a man intends the natural and probable consequence of his act. He cited R Vs. Dim (1952) 14 WACA 154.
It is the contention of the Respondent that the intent to kill can be ascertained from the nature of the instrument used and the wound inflicted. He cited Bakuri Vs. State (1965) NMLR 163 at 164. Gabriel Vs. State (1989) 5 NWLR (PT. 122) P.457 at 467, Lori Vs. State (1980) 8 – 11 SC 81, Uyo Vs. AG. Bendel State (1986) 1 NWLR PT. 17 at 418, and submitted that the prosecution proved the ingredients of offence of murder beyond reasonable doubt against the accused person. And having so proved, the trial court was therefore bound to find the accused guilty. He referred this court to Ehot Vs. State (1993) 4 NWLR (PT 290) P.663 and concluded that though Exhibits “A” and “B” Were statements of the accused, they contained vivid account of how the Appellant murdered the deceased and urged this court to resolve this issue in the affirmative.
In resolving this issue, which is whether, the prosecution discharged the onus of proof placed upon it by law in proving all the ingredients of murder beyond reasonable doubt against the Appellant, I have to examine whether the evidence of the prosecution as presented proved beyond reasonable doubt the following: –
(1) That the Appellant killed the deceased
(2) That the killing was unlawful
(3) That the Appellant unlawfully killed the deceased under one or the other of the six circumstances enumerated in Section 316 of the Criminal Code CAP. 30 LFN See Onah Vs. State (1985) 3 NWLR (PT. 1) 236 at 246.
(4) That the prosecution did this either by direct or circumstantial evidence or both.
Learned counsel for the Appellant had argued that the prosecution had failed to prove or establish ingredients a – c. He contended that the vital witness whom PW1 claimed informed him that the Appellant killed the deceased was not called to testify, neither was the I.P.O, who was the PW3 who admitted that an autopsy was carried out on the body of the deceased called to give evidence of the outcome of the autopsy.
While emphasizing that those ingredients were not proved, counsel contended that the medical Dr.(Pathologist) that conducted the autopsy was not called by the prosecution to give evidence. He submitted that due to the failure of the prosecution to call either the medical Dr. who admittedly performed the autopsy on the body of the deceased or tender the report arising therefrom, is adverse to their case.
Learned counsel further submitted that the circumstantial evidence relied upon by the prosecution was not conclusive, as the two possible causes of death of the deceased at the trial were not eliminated by the prosecution.
It is not in doubt that from the evidence of both parties, the deceased died at the spot the accused met him cutting down the kola nut tree. From the evidence of the PW2 at page 25 line 2-5, the witness stated:
“….I left to my house and was there when I heard some people shouting and I quickly ran back to the scene where I saw the corpse of my brother and the kola nut tree that was cut down”.
Also, a closer look at Exhibit ‘A’, which was the statement of the Appellant at the C.I.D Owerri, the Appellant made a confessional statement tendered before the lower court without objection wherein she admitted that she used knife/machete and cut the deceased. She stated:
“I cannot say the exact position the machete touched him but all I know is that I cut him in the front part of his body. I then ran to Okpala police station and reported that I cut somebody when I was fighting with machete. And later I was taken to Umuneka Police Headquarters and from there, I was brought to Owerri on the same day. I was told that the said Acho whom I gave machete cut has died”.
With the above, it is established from the evidence on record that the deceased died from the machete cut and injury he sustained from the Appellant. The prosecution has established the death of the deceased person.
On the second limb of the first issue, it is argued that a medical report by the pathologist was not tendered by the I.P.O (PW3) but admitted that an autopsy was carried out. The Appellant counsel’s contented that the failure to tender the medical report was adverse to the prosecution’s case.
In the instant case, there were overwhelming evidence as to the cause of death of the deceased, the P.W.1 Emeka Nworgu while testifying at the trial court gave evidence of how he got the information that the deceased was cutting the kola nut tree that belong to the Appellant’s family. His reaction according to his testimony was that:
“after the complaints, she left, I then entered my room and put on my trouser and took my bicycle to see what my junior brother Achor had cut. On getting to my new site I could not see the girl that came and gave us the complain, what I saw was Acho my junior brother who was lying on the pool of his blood.”
There is also undisputed evidence, that the Appellant, on her own volition and without compulsion or arrest, after the incident went to the Okpala Police Station to lodge report that:
“…I cut somebody whom I was fighting with, with machete and later I was taken to Umuneka Police Headquarters and from there I was brought to Owerri on the same day. I was also told that the said Acho whom I gave machete cut has died”.
Having highlighted this evidence by the P.W.1 and the Appellant against the deceased for cutting her kola nut tree and the Appellant running away to the police station to report the incident and the Appellant statement, the court is not in any doubt that the death of the deceased was a direct result of the act of the accused person.
Courts have in a plethora of cases restated that the trial court may in the absence of a medical evidence decide the cause of death of the deceased on the evidence before it showing unequivocably, the nexus between the death of the deceased, the unlawful act of the accused and that medical evidence though desirable in establishing the cause of death in murder cases, it is not indispensable where there are facts which sufficiently show the cause of death to the satisfaction of the court. See Lori Vs. State (1980) 8 – 11 SC 81 Onwumere vs. State (1991) 4 NWLR (PT.186) 428 or (1991) 5 SCNJ 150 at 168 and 170 and Limar vs. State (1976) UILR (PT 11) 248.
From the foregoing, I am satisfied that the act of the accused person in cutting the deceased with a machete on the front part of his body caused the death of the deceased person. The evidence of the DW2 that the deceased was epileptic and may have banged his head on a hard object in a fit of epilepsy is therefore eliminated and rejected. In the circumstance, it can be rightly said that the prosecution proved cause of death beyond reasonable doubt against the Appellant. Issue I is therefore resolved in favour of the Respondent against the Appellant.
Issue 2
“whether the trial court was right to have convicted the Appellant of murder without considering all possible defences, including the verdict of manslaughter availing the Appellant, if no whether in so doing, miscarriage of justice was not occasioned (ground iv and alternative ground)”.
Learned counsel for the Appellant contended that, it is trite law that a court must consider a verdict of manslaughter before convicting the accused person of murder and that the trial court failed to consider the alternative verdict of manslaughter which the evidence of both parties disclosed. This he argued led to a serious miscarriage of justice. He referred this court to the cases of Akpabio Vs. State (1994) 7 NWLR (PT. 359) 635, Apishe Vs. State (1971) 1 ANLR. Ozo Vs. State (1973) 1 ANLR (PT. 2) 183 Oguntolu Vs. State (1996) NWLR (PT. 432) 503, Aigbadion Vs. State (2000) 4 SC (PT. 1) 1.
Learned counsel contended that, the following pieces of evidence are crucial in determining the issue: both the prosecution and defence witnesses gave evidence of the fact that the deceased on 9/7/06 took a knife to cut down a kola nut tree belonging to the Appellant’s father; both the prosecution and defence witnesses also gave evidence that the provocative and unlawful act of the deceased was reported to the family of the deceased including PW2, the provocative act of the deceased and his persistence in cutting down the Appellant’s kola nut tree ultimately induced a fight from where the deceased sustained a knife injury, the reaction against the deceased was simultaneous with the time of provocation and at the heat of passion before any cooling time could come; the Appellant is an ordinary person and there was an element of assault disclosed in the evidence; death resulting from the circumstances above is at best manslaughter.
It is the contention of counsel that, the above facts/scenario constitutes a compass for the trial judge to the effect that a premeditated intention to kill was absent.
Learned counsel for the Appellant submitted that, it was the duty of the learned trial judge to consider the above defences including the alternative verdict of manslaughter as disclosed by the evidence laid before him, led to a miscarriage of justice. He cited Akpabio Vs. State (1994) 7 NWLR (PT.359) 635 Apishe Vs. State (1971) 1 ANLR; Ozo Vs. State (1996) 2 NWLR (PT.432) 503; Aigbadion Vs. State (2000) 4 SC (PT. 1) and urged this court to resolve this issue in favour of the Appellant.
In response to this line of argument of counsel to the Appellant, the Respondent counsel, while conceding to the fact that in our criminal jurisprudence, a court is always enjoined to consider every defence open to an accused person, no matter how stupid that defence might be, but in so doing, the court is also enjoined not to gloss over direct and positive evidence of the prosecution witnesses. He cited Ndukwe Vs. State (37 NSCQR) 425 particularly at P.494 and 495. He contended that the learned trial judge considered all defences available to the Appellant in the course of his judgment before finding her guilty as charged. He referred this court to pages 76 – 82 wherein the trial judge made a meticulous evaluation of the evidence before him and considered whether accused person actually put up any defence in the trial.
Arguing further, learned counsel for the Respondent contended that counsel for the Appellant had argued that the death of the deceased, Acho Nworgu was not as a result of any act of the Appellant and that, there was no eye witness account as to the killing of the deceased. Counsel contended that these defences were considered by his lordship and he dismissed them for lacking in merit. He referred this court to page 76 lines 17 – 22 and also page 77 lines 1 – 9 wherein his lordship considered the above defences.
To buttress further that the learned trial judge did consider the possible defences available to the defence, counsel for the Respondent contended that the learned trial judge considered the defence put up on behalf of Appellant to the effect that prosecution did not call medical evidence or autopsy report, but this argument was dismissed by the learned trial judge. That the learned trial judge while considering the defence of accused, considered the status of the statements of accused person tendered as Exhibits ‘A’ and ‘B’ and concluded that Exhibit ‘A’ is confessional and that the act of the Appellant in cutting the deceased with a machete on the front part of his body caused the death of the deceased person. That the learned trial judge came to the conclusion that the accused has not successfully established any defence to the killing of the deceased and should therefore be held accountable, thereby confirming that the trial judge considered the defence put up by the accused, evaluated them and rejected all. That it is therefore wrong for the Appellant’s counsel to contend that the learned trial judge convicted the Appellant of murder without considering all possible defences including the verdict of manslaughter against the Appellant. He urged this court to dismiss the contention that the lower court failed to consider the alternative verdict of manslaughter before convicting the accused person for murder. Counsel then urged this court to affirm the findings of the learned trial judge in this regard.
Counsel to the Appellant in this issue had questioned the right of the lower court to have convicted the Appellant of murder without considering all possible defences available to the accused person which could have reduced the offence of murder to manslaughter.
The law is settled that it is the duty of the trial court to consider all defences raised by the evidence whether or not the accused person specifically put up such defences or whether they were relied upon, and to deal adequately with any other issue of fact which might reasonably arise out of the evidence given and which would reduce the evidence from murder to manslaughter. See Sokoto vs. State (1976) 2 SC, 133 R Vs. Bio (1945) II WACA 46, Akpabio Vs. State (1994) 7 NWLR (PT. 359) 635.
Counsel for the Respondent had contended that the learned trial court considered all possible defences available to the accused person while urging the court to dismiss the appeal on the ground that the accused person did not succeed in making out any defence to the killing of the deceased or create any reasonable doubt in the mind of the court on the case presented by the prosecution. And that the statement of the accused to the police tendered as Exhibit ‘A’ did not disclose any defence.
In this case, the accused, now Appellant came out of her house one morning and saw the deceased cutting down a kola nut tree in her father’s compound which, crossed over to the deceased own compound, According to her, in her additional statement at page 14 of the record, “it bear fruits and I do use it to help myself and my kids”. It is on record that the Appellant advised him to shape the kola nut tree and not to cut it and he refused. She then took steps to go and lodge the complaint to the elder brother of the deceased, Emeka Nworgu of the cutting of the kola nut tree by the deceased. The elder brother went and witnessed it and went back to his house. The cutting was not abated. The appellant was provoked. Infuriated as it appeared, the Appellant responded by using machete and started cutting palm trees and’ plantain that belong to the deceased family which cross over to their own side of compound.
Provocation is provided for in Section 318 of the Criminal Code thus:
“Where a person who unlawfully kills another in circumstances which but for the provision of this Section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation and defence, there is time for his passion to cool, he is guilty of manslaughter only.”
It is on record that the Appellant is separated from her husband and she came back to her father’s house with her kids to live. In her present state, she struggle to keep and take care of herself and kids. She felt like protecting the kola nut tree from being cut down because it is a cash crop. By the refusal to shape the tree and the continuation of the cutting after her complain to his brother, provocation can be induced. The learned trial judge was wrong not to have considered the defence of provocation because evidence is available for it. This is a case which the law requires provocation to be considered and it was not considered. To this extent, the complaint on appeal is justified
There is yet another question that readily comes to my mind. It is the question of who attacked first. The question could as well resolve the issue of intention, whether it is contemporaneous with the act of killing. It did not appear that the Appellant attacked first. All she could do in provocation, after complaining to the mother and senior brother of the deceased, Emeka Nworgu was to start cutting the palm trees and plantain that belong to the deceased family in retaliation. Having taken this step, the possibility of first launching an attack on the deceased is therefore displaced, even though the DW2 who claimed to be an eye witness gave an uncorroborated evidence that it was the deceased that went and attacked the Appellant first. It does not appear to me that the act of killing of the deceased was premeditated. When fight ensued, the Appellant utilized the weapon she had. She did not arm herself with a machete to kill the deceased but to cut down palm trees and plantain in retaliation of the cutting of their kola nut tree.
In murder cases, what the court is required to consider under Section 316 of the Criminal Code is whether or not the accused intended to kill or cause grievous bodily harm or that his action was of such a nature as to be likely to endanger the life of the deceased. When these ingredients are not proved, the court should consider the verdict of manslaughter. It follows that, where the peculiar circumstances of the case, are not of a nature likely to endanger life, nor did it appear that there was intent to kill or do grievous bodily harm to the deceased, the accused’s act cannot be brought within the ambit of Section 316 of the Criminal Code. It is therefore an unlawful killing, and by virtue of Section 316 of the Criminal Code, unlawful killing in circumstances which do not constitute murder is manslaughter. See Ntah Vs Queen (1961) 2 SCNLR; Rex V. Dogo (1949) 12 WACA, Akpabio Vs. State (1994) 7 NWLR (PT.359) 635 Apishe Vs. State (1971).
While in a charge of murder, the death of the victim must be caused by the act of the accused; but it is settled law that any defence to which an accused person is on the evidence entitled to should be considered however stupid or unreasonable for whatever it is worth. It is certainly not the role of any court of law to formulate or invent a defence for an accused person where on the consideration of the totality of the evidence none is open or available to him. However, where it is available, the court is bound to consider it. See Fadima vs. R (1958) SCNLR 250, Udofia Vs. State (1984) 12 SC 139.
For the reasons given, it could not be said that the trial court considered all possible defences, available to the accused person. The defence of provocation is available to the accused which may reduce the sentence to manslaughter. This issue is resolved in favour of the Appellant against the Respondent.
Issue 3 was formulated thus;
“whether the proceedings of the lower court were in breach of Section 36(1) & 36(4) 1999 Constitution of the Federal Republic of Nigeria (as amended) and therefore null and void). (Ground 2).
Learned counsel for the Appellant had contended that, in this appeal, the trial court did not allow counsel on both sides to address him in open court on the respective cases of parties. Rather the trial court ordered written addresses to be filed and exchanged by both parties. He contended that, when the matter came up on 2/11/2010 for adoption, counsel on both sides in compliance with the order of court adopted their respective addresses and the court subsequently delivered its judgment leading to this appeal. He argued that the addresses of the parties were not read in open court for members of the public to understand the case for or against the Appellant whose civil obligation not to commit the crime as charged was in issue.
Learned counsel submitted that addresses of counsel form an important/integral part of the criminal trial and must be held in public in compliance with Section 36(4) – 1999 Constitution. Submitting further that, the court below was not acting pursuant to any request by a Minister of the Federation or a Commissioner or a Government of a State that it will not be in the public interest for the summing up of argument of both counsels to be publicly disclosed. He referred this court to Section 36(4) of the 1999 Constitution (as amended). This view, according to learned counsel is strengthened by the criminal procedure law, CAP – 31 LFN 1963 and its amending law-criminal procedure (miscellaneous provision) Edict, 1974.
Learned counsel argued that, non of these Laws cited makes provision for a written address of counsel to be filed/exchanged between parties and adopted in court in the manner the instant case was handled. He expressed the view that were such provisions made in the above law, they will obviously conflict with section 36(4) of the 1999 Constitution. Counsel contended that, as addresses were not read in open court, they do not form part of the record of the court. Counsel cited Alhaji Aminu Mika’ilu Vs. The State (2001) 5 WRN 74.
Submitting further on this point, learned counsel stated that, in the instant case, the learned trial judge did not even bother to request counsel to give summaries of their respective addresses. It is the view of counsel that the trial of the Appellant in the circumstance above was a nullity, having infringed on the Appellant’s right to fair trial in public since the trial court lost jurisdiction by so doing. He cited Madukolu Vs. Nkemdilim (1962) 2 SCNJ 341. That it is settled law that an act of a public body not enabled by statute is void. He cited C.C.B vs. AG Anambra state (1992) 10 SCNJ 137 at 167, and concluded that it is against this back drop that the provisions of the 1999 Constitution were made as safe guard in the trial of every accused person in Nigeria such that their fundamental right of fair hearing are not breached in the course of their trial, such rights are of public nature and cannot be waived, lost or compromised by an accused person either by consent, collusion or ignorance. He referred this court to Ariori Vs. Elemo (1983) 1 SCNLR 1 and urged this court to resolve 3 in favour of the Appellant.
While responding to the argument and submissions of counsel to the Appellant, it is the submission of counsel to the Respondent that the lower court in this case was not in breach of the provisions of Section 36(1), and 36(4) of the 1999 Federal Constitution. It is his submissions that Appellant was afforded fair hearing in the course of trial of this case as was provided under the provision of Section 36 of the 1999 Constitution. Fair hearing, according to counsel has been held to be a trial conducted according to all legal rules formulated to ensure that justice is done to the parties in the case. He referred this court to the case of Ogunsanya vs. State (2011) ALL FWLR (PT. 590) P.1203.
On the argument by learned counsel for the Appellant that parties were not allowed to make oral submission and thereby, the court was in breach of Section 36(4) of the 1999 Constitution, the Respondent submitted that the argument does not hold water, that there is nothing on record to show that Appellant’s counsel requested to make further oral submission and was denied that by the trial court. And that an address of counsel is not a sina qua non in the administration of justice, and where counsel fails to address court, it will not amount to a breach of fair hearing. He cited Ogunsanya Vs State (2011) ALL FWLR (PT.590) P.1203 (PP. 1233 – 1334 Para. G – H) and submitted that the trial court did its research before coming to the conclusion of finding the Appellant guilty. Submitting further counsel stated that the Appellant counsel had the opportunity of addressing the trial court by way of written address which he adopted on the 2/11/2010, and that there was no application from counsel for the Appellant for, an oral submission in addition to the written one which was denied him. Counsel then urged this court to resolve this issue in the negative and hold that the trial of the Appellant was not in breach of the provision of Section 36 of the 1999 Constitution and to dismiss that ground of appeal accordingly.
The proceedings at the lower court was conducted in accordance with laid down rules and procedure of the High Court until the address stage when the learned trial judge ordered for the filing and exchange of a written addresses by counsel in this case. Learned counsel for the Appellant lamented that this order for written addresses was in breach of Section 36(1) and 36(4) of the 1999 Constitution of the Federal Republic of Nigerian (as amended). These sections provide thus:
36(1) “in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
36(4)” whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal:
Counsel for the Appellant contended that, as none of these laws makes provision for adoption of written addresses, the conduct of this criminal trial and proceedings is in breach of Section 36(1) and 36(4) of the 1999 Constitution of the FRN.
Cases are fought and won based on credible witnesses and testimony of witnesses called by parties, and not by oral submissions of counsel after the close of a case. The provisions of Section 36(4) of the 1999 Constitution of FRN is a public policy provision, aimed at securing the confidence of the public in criminal trials. If at the address stage, a written address is ordered, it is to save time and stress of verbatim recording. The Imo High Court Rules never outlawed order for written addresses, and counsel is at liberty to apply for an oral address where the need arises to highlight points. I hold that the trial court’s order for the filing and exchange of written addresses was in order. The facts that they were not consulted before the order was made could not be a breach of fair hearing.
The vital thing is that any request for an oral submission on any point could be granted. Even if the order is irregular, any purported breach is procedural not substantive. It behoves on the Appellant to raise it timeously before taking any step, otherwise, he will be deemed to have waived the irregularity and cannot complain. See Lamurde L.G. Vs. Karka & Anor (2012) ALL FWLR (PT 628) 92. The Supreme Court has also held in the case of Ogunsanya Vs. State (2011) ALL FWLR (PT. 590) P.1233 – 1334 that:
“the main purpose of address is to assist the court and is never a substitute for compelling evidence. A case is won on credible evidence and not on address or playing to the gallery by counsel can make up for lack of evidence to prove or defend a case in court. Failure to address will not be fatal or cause miscarriage of justice. This is so because whether counsel addresses a count or not the court must do its own research with the sole aim of seeking the truth and determining which side is entitled to judgment.”
I disagree with learned counsel to the Appellant that the proceedings were a nullity and void and a breach of the provisions of Sections 36(1) and 36(4) of the 1999 Constitution of the Federal Republic of Nigeria. I agree with learned counsel for the Respondent that there was no application by the Appellant for oral submission in addition to the written one which was denied him. This issue is resolved in favour of the Respondent against the Appellant.
In sum, the defence of provocation is available to the Appellant which the learned trial judge did not consider. In the circumstances, the appeal succeeds and it is hereby allowed. The conviction and sentence of the Appellant in Charge No. HOW/80c/2006 by the learned trial judge is hereby set aside.
I substitute a verdict of manslaughter and accordingly sentenced the Appellant to twenty one (21) years imprisonment. The sentence is to take effect from the date of her detention being 9th July, 2006.
JOHN INYANG OKORO, J.C.A.: I read in draft the lead judgment of my learned brother, UWANI MUSA ABBA AJI, JCA, just delivered. My learned brother has ably resolved the three issues in this appeal. I agree with her that it was the desire of the appellant, a divorcee with children, to protect the kolanut tree from being cut down (being an economic tree) by the deceased which led her into the scuffle which resulted in the death of the deceased. I think she is entitled to the defence of provocation under Section 318 of the Criminal Code which the trial court did not consider. It is trite that a trial court as well as an appellate court, before entering a verdict of murder, has a duty on its own to consider all possible defences, including alternative verdict of manslaughter, open to the accused. See AKPABIO vs. STATE (1994) 7 NWLR (Pt.359) 635, SOKOTO vs. STATE (1976) 2 SC 133; R vs. BIO (1945) 11 WACA 46, STATE vs. OJO (1973) 11 SC.331.
Having regard to the facts and circumstances of this case, I think the defence of provocation avails the appellant which of course, would reduce the sentence to be meted out to her. This appeal accordingly succeeds in part as I substitute a verdict of manslaughter. I agree that appellant is to serve 21 years in prison with effect from 9/7/2006 when she was detained.
HARUNA SIMON TSAMMANI, J.C.A.: I have had the privilege of reading before now, the judgment just delivered by my learned brother UWANI MUSA ABBA AJI; JCA.
My learned brother has adequately dealt with the pertinent issues that came up for consideration and determination in this appeal. I agree that, considering the whole circumstances and being a criminal allegation which carries the ultimate penalty known to our law, all available defences as the facts of the case will reveal should have been considered by the learned trial judge. As it is, it is safe to hold that the facts reveal that there was provocation which could have agitated a person of the Appellant’s standing. She is entitled to the benefit of that defence, which could have the effect of mitigating the punishment to be meted on her.
Having observed as above, I agree that we should substitute a conviction for murder to that of manslaughter. We have the power to do that pursuant to Section 179 of the Criminal Procedure Act. See also ODEH v F.R.N. (2009) 13 NWLR (pt. 1103) p.1 and EZEJA v STATE (2008) 10 NWLR (Pt.1096) p.513. In the circumstances, I convict the Appellant for manslaughter in substitution for the conviction for murder found against her by the trial Court. Accordingly, I sentence the Appellant to twenty-One (21) years imprisonment to commence from the date of her arrest and detention i.e from 9th day of July, 2006.
Appearances
O. N. Ichie, Esq.For Appellant
AND
C. N. Akowundu, Esq. D.P.P. MOJ, Imo State with H. O. Evroh, Esq. S. C.For Respondent
