NSIKAK BASSEY UKPONG v. THE STATE(2019)

NSIKAK BASSEY UKPONG v. THE STATE

(2019) LCN/4878(SC)

In The Supreme Court of Nigeria

On Friday, the 11th day of January, 2019

SC.646/2016

RATIO

WHAT ARE THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF MURDER THAT A PROSECUTION MUST ESTABLISH

As indicated at the outset of this judgement, Nsikak Bassey Ukpong [the appellant herein] and one other, were arraigned on a one-count charge of murder contrary to Section 326 (1) of the Criminal Code, Cap 38, Vol 2, Laws of Akwa Ibom State of Nigeria. The trial Court convicted the appellant. The lower Court affirmed his conviction. He has further, appealed to this Court. It has long been established that to prove the said offence, the Prosecution had the obligation to demonstrate that (a) the deceased person had died; (b) the act of the accused person caused the death of the deceased person and (c) the act was done with the intention of causing death or grievous bodily harm,Ndike v The State (1994) LPELR – 1971 (SC); Abogede v The State (1996) LPELR -45 (SC); Ogba v The State [1992] 2 NWLR (pt 222) 164; Udosen v State [2007] 4 NWLR (pt 1023) 125, 145; Ibikunle v State [2007] 2 NWLR (pt 1019) 540, 570 – 571. In Akinlolu v State (2015) LPELR – 25986 (SC), this Court [per Nweze, JSC] affirmed that: In the realm of our accusatorial jurisprudence, these tripartite requirements for the proof of the offence of murder have become so well-entrenched – and have been so frequently upheld in a succession of binding authorities – that, by now, they must have matured into a prosecutorial sing-song, Adekunle v State [2006] 14 NWLR (pt 1000) 717, 726; Haruna v AG, Federation (supra); Nwachukwu v State [2002] 12 NWLR (pt 782) 543, 548; Madu v State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v State [2000] 15 NWLR (pt 691) 467. Other cases include: Idemudia v State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607; Maigari v State [2013] 6-7 MJSC (pt 11) 109, 125, citing Ochemaje v The State [2008] SCNJ 143; Daniel v The State [1991] 8 NWLR (Pt 443) 715; Obade v State [1991] 6 NWLR (pt 198) 435; Gira v State [1996] 4 NWLR (pt 428) 1, 125. These ingredients have witnessed consistent espousal in many jurisdictions, for example, by English Courts,R v. Hopwood (1913) 8 Cr. App. R. 143; Hyam v. DPP [1974] 2 All ER 41; Woolmington v. DPP (1935) AC 462; by Nigerian Courts, Madu v. State [2012] 15 NWLR (pt 1324) 405, 443, citingDurwode v. State [2000] 15 NWLR (pt 691) 467; Idemudia v. State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v. State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607 and by Courts in other Commonwealth jurisdictions, see, for example, R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R. v. Tralka (1965) Qd, R. 225, (Queensland, Australia). Scholars have seldom disagreed with judicial authorities on this question, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd, 2009) 209 et seq; A. G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan: Spectrum Books Ltd, 1988) passim; Archbold’s Pleadings: Evidence and Practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passim; K. S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); P, Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) 194 et seq.; see, per Nweze, JSC inAgu v State (2017) LPELR – 41664 (SC) 12 -14; A -B. PER CHIMA CENTUS NWEZE, J.S.C.

WHETHER AN ACCUSED IS PRESUMED TO INTEND THE NATURAL CONSEQUENCES OF HIS ACT WHICH RESULTED IN THE DEATH OF THE DECEASED

…I entirely, endorse the submission of the Honourable Attorney General for the respondent that the appellant must be presumed to intend the natural consequences of his dastardly act – his act of inflicting grievous bodily harm which resulted in the death of John Tom Umoh. True, indeed, this Court has long settled the point that the law presumes that a man intends the natural, probable consequences of his acts, Njoku v State [2013] All FWLR (pt 689) 1083; Ibikunle v State (supra); Nwokearu v State (supra). PER CHIMA CENTUS NWEZE, J.S.C.

POSITION OF THE LAW AS TO WHEN THE TESTIMONIES OF WITNESSES OF A PARTY CAN BE SAID TO BE CONTRADICTORY

… testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That is, such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses, Enahoro v Queen (1965) NMLR 265, endorsed in Ogun v Akinyelu [2004] 18 NWLR (pt 905) 362, 392; Emiator v. State [1975] 9-10 SC 112; Ikemson v State [1989] 3 NWLR (pt 110) 455, 479; Afolalu v State [2009] 3 NWLR (pt 1127) 160. This is so because it would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth, Okoziebu v State [2003] NWLR (pt 831) 327, 341; Nasaru v State [1999] 6- 9 SC 153; Ikemson v State (supra). In any event, Courts have even taken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy, Ogun v Akinyelu [2004] 18 NWLR (pt 905) 362, 392. In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly, in a capital offence, they must raise doubts as to the guilt of the accused person, Nwosisi v State [1976] 6 SC 109; Ejigbadero v State [1978] 9- 10 SC 81; Kalu v State [1988] 4 NWLR (pt 90) 503; Igbi v State [2000] FWLR (pt 3) 358; [2000] 3 NWLR (pt 648) 169. PER CHIMA CENTUS NWEZE, J.S.C.

CIRCUMSTANCES UNDER WHICH THERE WILL NO BE NEED TO ADDUCE MEDICAL EVIDENCE TO ESTABLISH THE FIRST INGREDIENT OF THE OFFENCE OF MURDER, THAT IS, THAT THE DECEASED PERSON DIED

What is more: a clearly evident cause of death, as in the instant case, obviates the need for any medical evidence to establish the first ingredient of the offence of murder, that is, that the deceased person died, Maigari v State [2013] 6-7 MJSC (pt 11) 109, 125; Ochemaje v The State [2008] SCNJ 143; Daniel v The State [1991] 8 NWLR (Pt 443) 715; Obade v State [1991] 6 NWLR (pt 1980)435; Gira v State [1996] 4 NWLR (pt 428) 1, 125; R v Hopwood (1913) 8 Cr. App. R. 143; Hyam v DPP [1974] 2 All ER 41; Woolmington v DPP [1935] AC 462. Other cases include,Madu v State [2012] 15 NWLR (pt 1324) 405, 443; Durwode v State [2000] 15 NWLR (pt 691) 467; Idemudia v State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607; R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R. v Tralka [1965] Qd. R. 225. Thus, in situations, as exemplified in the instant case, where, from the testimonies of the witnesses, the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where death was instantaneous or nearly so, Ben v The State (2006) LPELR -770 (SC) 12- 13; Bakuri v. The State (1965) NMLR 163, 164; Uyo v, Attorney-General of Bendel State [1986] 1 NWLR (pt. 17) 418; Onwumere v. The State [1991] 4 NWLR (pt. 186) 428; Nwachukwu v, The State [2002] 12 NWLR (pt. 782) 543; Oforlete v The State (2000) LPELR -2270 (SC); Ogbu v The State (1992) LPELR -2292 (SC) 18; B-C. PER CHIMA CENTUS NWEZE, J.S.C.

WHETHER AN ACCUSED PERSON CAN RAISE THE DEFENCE OF PROVOCATION AND SELF DEFENCE AT THE SAME TRIAL

…I actually, find it curious that the appellant [as accused person at the trial Court] set up the defences of self defence and provocation at the same trial. Whereas the Criminal Code provides for self defence in Sections 286 and 287, the same Code provides for the defence of provocation in Section 284. Whilst the former [the defence of self defence] is an exculpatory defence because, where it is established, it exonerates the accused person, Uwaekweghinya v The State [2005] 9 NWLR (pt 930) 227, the latter is merely, an attenuating or a mitigating defence. Where available, it merely, attenuates; dis-rates or demotes the offence from murder to manslaughter. In effect, the defence of provocation does not exonerate the accused person. It only, earns him a mitigation of the punishment due for the offence of murder to a sentence for manslaughter, Uraku v State (1976) LPELR-SC. 300/1975; [1976] 6 SC 128; Akang v State [1971] 1 All NLR 47, 49; Musa v State (2009) LPELR-SC.323/2006; [2009] 15 NWLR (pt 1165) 465; Ada v State (2008) LPELR-SC.242/2004; [2008] 13 NWLR (pt1103) 149; [2008] 34 NSCQR 508; Ajunwa v The State [1988] 1 SC 110; Laoye v The State [1985] 2 NWLR (pt 10) 832; C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books, 2000) 240; C. O. Okonkwo, “The Unlawful Act Doctrine and the Defence of Accident” in The Nigerian Bar Journal Vol 11 (1973) 93-97. It is, thus, the dissimilarity in the consequences of the availability of these defences that make them, mutually exclusive, that is, that make them inconsistent defences – defences that cannot avail an accused person at the same time, Ibrahim v State (1991) LPELR-SC.167/1990; [1991] 4 NWLR (pt 186) 399; [1991] 5 SCNJ 129; see, also, the very incisive, and the most stimulating, article by the cerebral Professor of Law, F. I. Asogwah, “The Applicability of Some ‘Inconsistent’ Defences in the Nigerian Criminal Code,” in I. A. Umezulike (ed), Law and Administration of Justice in the Twenty First Century (Enugu: Fourth Dimension Publishing Co. Ltd, 1997) 75-98. PER CHIMA CENTUS NWEZE, J.S.C.

JUSTICES

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

Between

NSIKAK BASSEY UKPONG Appellant(s)

AND

THE STATE Respondent(s)

CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): At the High Court of Akwa Ibom State, Ikot Ekpene Judicial Division, Nsikak Bassey Ukpong [the appellant herein] and one other, were arraigned on a one-count charge of murder contrary to Section 326 (1) of the Criminal Code, Cap 38, Vol 2, Laws of Akwa Ibom State of Nigeria.

Upon their plea of not guilty, the matter went to trial before the Court (hereinafter, simply referred to as “the trial Court). The Prosecution’s case was presented by five witnesses. It made the case that sometime in December, 2006, there was a proposed electrification project in a village close to Ikot Obong Otoro village, in Ikot Ekpene Local Government Area.

The deceased person, namely, John Tom Umoh, who was the Sanitation Chairman in Ikot Obong Otoro Village, indicated the trees that needed to be felled in the impending exercise. In the process, he tagged a coconut tree by the road side as due to be felled.

The appellant, who was not happy with this development, scolded the deceased person for so doing. That notwithstanding, the coconut and other economic trees,

which obstructed the proposed power line, were felled. The aim was to facilitate the electrification project which the community was embarking on.

The appellant who, as shown earlier, was displeased, confronted the deceased person. A fight ensued. The appellant beat the deceased person to the extent that he [the deceased person] could not walk home. He [the deceased person] was in consequence, taken to the Ikot Ekpene General Hospital on the said day, December 13, 2006, when the incident occurred. Two days later, on December 15, 2006, he died.

Although he testified in his defence, he [the appellant] did not call any other witness. He admitted fighting with the deceased person on that day, December 13, 2006. He however, claimed that it was the deceased person who pursued him with a machete to a Road Junction in their village. At the end, the trial Court, persuaded by the Prosecution’s case, convicted the appellant, as charged. The Court, however, dismissed the charge against the second accused person. His appeal to the Court of Appeal, Calabar Division, having been dismissed, he has further appealed to this Court. He entreated the Court to determine the five

issues he concreted from the Grounds of Appeal.
ISSUES FOR DETERMINATION
1. Whether the learned Justices of the Court of Appeal were right in holding that it is not necessary that there should be intent to kill to sustain a murder charge based on the provision of Section 323 (2) and (3) of the Akwa Ibom State Criminal Code, Cap 38, Vol 2 of 2000 and that the appellant intended to kill the deceased [person] because he fought the deceased [person] and death resulted therefrom
2. Whether in view of the contradictory evidence of the prosecution witnesses as to the nature of injury and date of death, the learned Justices of Appeal were right to have upheld the conviction of the appellant for murder
3. Whether the learned Justices of the Court of Appeal were right in affirming the judgement of the learned trial Judge which held that the defences of provocation and self-defence did not avail the appellant to mitigate the conviction for murder to that of manslaughter
4. Whether the learned Justices of Appeal were right when they affirmed the judgement of the trial Judge that the death of John Tom Umoh was a pre-meditated murder when there was no such evidence before the Court

Whether considering the evidence led and the circumstances of the case, the judgement of the Court of Appeal is unreasonable, unwarranted and unsupportable by the evidenceThe Hon Attorney General for Akwa-Ibom State, for the respondent, Uwemedimo Nwoko, adopted Issues One and Five. He adopted issues two and four with modification. He canvassed the view that issue did not arise from the decision of the lower Court.On my part, I take the view that only one issue is determinative of this appeal. After all, this Court is entitled to reformulate issues framed by the parties in order to give them precision and clarity, Okoro v. The State [1988] 12 SC 191; [1988] 12 SCNJ 191; Latunde and Anor. v. Lajinfin [1989] 5 SC 59; [1989] 5 SCNJ 59; Awojugbagbe Light Industries Ltd. v. RN. Chinukwe and Anor. [1995] 4 NWLR (pt. 390) 379; [1995] 4 SCNJ 162; Ogunbiyi v. Ishola [1996] 6 NWLR (pt.452) 12, 24; [1996] 5 SCNJ 143; Lebile v. The Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria Ugbobla and Ors. [2003] 1 SCNJ 463. Simply put, therefore, the purpose of reformulating issues is to accentuate the real

question in controversy in the interest of accuracy, clarity and brevity, Musa Sha (Jnr.) and Anor v. Da Rap Kwan and Ors [2000] 5 SCNJ 01.

For the avoidance of any doubt, therefore, the sole issue for the determination of this appeal is:
Whether the lower Court, rightly, affirmed the conviction of, and sentence on the appellant

ARGUMENTS ON THE SOLE ISSUE
Whether the lower Court rightly, affirmed the conviction of, and sentence on the appellant

APPELLANT’S SUBMISSIONS
At the hearing of this appeal on October 18, 2018, Paul Obi, for the appellant, adopted the appellant’s brief of arguments which, though filed on February 23, 2017, was deemed to be duly filed and served on November 29, 2017. With respect to issue one, he cited pages 310 311 of the record. He contended that the lower Court was wrong.

In his submission, a community reading of Section 323 of the Code (supra) would show that intention to kill becomes immaterial and, therefore, irrelevant in proof of murder, if the offender intends to do to the person killed or to some other person, grievous bodily harm or if death results from the

prosecution of an unlawful purpose of such a nature as is likely to endanger human life. It is therefore, not an absolute exclusion of intention to kill or cause grievous harm.

Praying in aid Section 27 of the Akwa Ibom State Criminal Procedure Law, 2000, he contended that, from the unchallenged and uncontradicted evidence of the appellant at the trial Court, it cannot be rightly inferred that he intended to kill or cause grievous bodily harm to the deceased [person], Ehot v State [1993] 4 NWLR (pt 290) 644, 663; Gira v State [1996] 4 NWLR (pt 443) 375.

He noted that the trial Court based its finding that the appellant had the intention to cause grievous bodily harm to the deceased [person] on exhibits A and B the reports of the post-mortem examination carried out by PW4, a General Medical Practitioner and the cause of death was stated to be as a result of head injuries.

He pointed out that there was no eyewitness account of the fight between the appellant and the deceased [person]. In his submission, the Prosecution did not prove that the appellant had or harboured the intention to do grievous harm to the deceased person during the fight,

Amayo v State [2001] 18 NWLR (pt 745) 251; Maiyaki v State [2008] 15 NWLR (pt 1109) 173; Edoho v State [2010] 14 NWLR (pt 1214) 651; Adava v State [2006] 9 NWLR (pt 984) 152.

He devoted pages 9 14 of the briefs to arguments on what he termed “contradictory evidence” of the Prosecution witnesses. Thereafter, he wondered, at paragraphs 6.1 6.28, pages 14 20 of the brief, “whether the learned Justices of the Court of Appeal were right in affirming the judgement of the learned trial Judge which held that the defences of provocation and self – defence did not avail the appellant to mitigate the conviction for murder to that of manslaughter”

Learned counsel returned to the ingredients of the offence of murder on paragraphs 7.2 7.14, pages 20 23 of the brief and rounded of on pages 23 -26 of the brief.

RESPONDENT’S CONTENTION
On his part, Uwemedimo Nwoko, the Hon Attorney General and Commissioner for Justice, Akwa Ibom State, for the respondent, adopted the brief which, though filed on September 20, 2017, was deemed filed on November 29, 2017.

On his first issue, he re-iterated the long-established duty on the Prosecution in a case of murder,Ogbu v State (2007) 145 LRCN 585, 600; Afosi v State [2013] 13 NWLR (pt 1371) 329, 332; Jimmy v. State (2014) All FWLR 103, 120; Obade v The State [1991] 6 NWLR (pt 198) 435.

He contended that the Prosecution had a duty to prove, inter alia that the accused person, unlawfully, intended to kill the deceased [person], Chukwu v State [2012] 3 LRCN 96. He explained that the deceased person was admitted in the hospital for treatment arising from the fight between him and the appellant on December 13, 2006, being the very day of the fight. He died two days later, that is, December 15, 2006. He cited Section 323 (1) (a) (c) of the Criminal Code, Cap 38 Vol 2, Laws of Akwa Ibom State of Nigeria, 2000.
Placing reliance on Section 323 (2) (b) and (3) (c) of the Code (supra), he contended that the lower Court rightly arrived at the conclusion that it was not necessary that there should be intent to kill before a charge of murder can be sustained. In his submission, by the combined effect of Section 323 (1) (a) (c) and (2) and (3) of the said Code, it

is not necessary that there should be intent to kill. He submitted that murder is the taking of human life by a person who either:
(a) Has a malicious and willful intent to kill or do grievous bodily harm or
(b) Is wickedly reckless as to the consequences of his act upon his victim. For murder, in his submission, there must be an evil intent, that is, a criminal intent; although it is not necessary that there should be an intent to kill,Nwokearu v The State [2013] 16 NWLR (pt 1380) 207, 243; Afosi v State (supra) 332.

He maintained that a person is presumed to intend the natural consequences of his act, such as death resulting in grievous bodily harm,Nwokearu v State (supra) 241; Ibikunle v State [2007] 2 NWLR 546, 555. He drew attention to pages 77 78 of the record for the evidence of PW3. He pointed out that the PW3 was neither challenged nor cross examined on his testimony that he saw when the two men were fighting and that it was the first accused person whom he saw fighting with John Tom Umoh.

He further contended that the lower Court was right when it affirmed the judgement of the trial Court that the act of the

appellant was intentional, Nwokearu v State (supra) 1042, 1070. He urged the Court not to interfere with the concurrent findings of the lower Courts,Akpan v State [2002] 12 NWLR (pt 780) 189.

He pointed out that PW1 and PW2, who were present at the scene of the crime, gave a vivid eye witness account of what took place on December 13, 2006. Above all, there is no dispute that John Tom Umoh is dead and that it was the appellant who caused his death. What was therefore, under contest was whether the appellant had an intention to kill the deceased person. He referred to page 76 of the record for the testimony of PW2; page 77 of the record for the testimony of the PW2 that it was the first accused person who fought with the deceased person. He finally, referred to page 77 for PW3’s corroboration of the evidence of PW2 corroborative evidence that was neither challenged nor controverted, Ebeinwe v State [2011] 204 LRCN 220, 231.

He maintained that cause of death can be proved by direct or circumstantial evidence. It can also be inferred where the person injured or attacked died immediately after the attack. In the instance case, he noted that the deceased

person died two days after the attack, Oguntolu v The State [1996] 2 NWLR (pt 432) 503; Ononuju v State [1976] 5 SC 1; Adekunle v State [1989] 12 SC 203.

He submitted that the direct evidence required to prove the cause of death must be such as would connect the death of the deceased person with the act of the accused person. This may include the evidence of a medical officer who examined or performed the post mortem examination on the corpse of the deceased person and the certificate that the injuries inflicted on the deceased person by the accused person are those that caused the death of the deceased person, particularly, if the deceased died immediately or so soon thereafter. Medical evidence is not necessary, in that case, since the cause of death is the injury inflicted on the deceased person by the appellant.

He drew attention to page 116 of the record for the trial Court’s acceptance of the evidence of PW2 and PW3, the two eye witnesses to the incident who said they saw the appellant beat up the deceased person. He opined that their evidence corroborated the medical evidence of proof of what caused the death of the deceased person since his death took place two days thereafter.

He contended that, though in murder cases, Courts are enjoined to establish with absolute certainty that the act of the accused person caused the death of the deceased person, Uguru v State [2002] FWLR (pt 103) 330, 344; Ahmed v State [2002] FWLR (pt 90) 1358, 1381; 1372, there was a causal link between the death of the deceased person and the act of the appellant and which had been established beyond reasonable doubt, Olalekan v State [2002] 1 MJSC 59, 164. He referred to page 87 of the record for the post-mortem examination on the corpse of the deceased person and argued that the cause of death of the deceased person was established with certainty.

He pointed out that there was overwhelming evidence that the appellant beat the deceased person on December 13, 2006 and inflicted injuries on him to such an extent that the deceased person could not walk back home. He died two days later, pages 76 78 of the record. Thus, the prosecution, sufficiently, proved the death of the deceased person beyond any dispute. Here, it is beyond dispute that the victim or deceased person died as a result of head injuries through impact from a blunt instrument.

He thus, argued that the lower Court, rightly affirmed the findings of the trial Court that the death of the deceased person had resulted from the act of the appellant. The evaluation of evidence also included the findings on exhibits A and B that the act of the appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence.

He therefore, invited the Court to hold that, since the Prosecution was able to establish beyond reasonable doubt all the ingredients necessary to prove the guilt of the appellant; the trial Court, meticulously, considered all the evidence, the lower Court was right in affirming the findings and conclusion of the trial Court.

The learned Attorney General, methodically, debunked all the arguments anchored on the alleged contradiction on pages 12 17 of the brief. Paragraphs 6.1- 6.17, pages 17 19 were devoted to the ingredients of the offence.

Paragraphs 1.1 6.0 of the Reply brief attempted responses to the issues which the respondent canvassed.

RESOLUTION OF THE ISSUE
As indicated at the outset of this judgement, Nsikak Bassey Ukpong [the appellant herein] and one other, were arraigned on a one-count charge of murder contrary to Section 326 (1) of the Criminal Code, Cap 38, Vol 2, Laws of Akwa Ibom State of Nigeria. The trial Court convicted the appellant. The lower Court affirmed his conviction. He has further, appealed to this Court.
It has long been established that to prove the said offence, the Prosecution had the obligation to demonstrate that (a) the deceased person had died; (b) the act of the accused person caused the death of the deceased person and (c) the act was done with the intention of causing death or grievous bodily harm,Ndike v The State (1994) LPELR 1971 (SC); Abogede v The State (1996) LPELR -45 (SC); Ogba v The State [1992] 2 NWLR (pt 222) 164; Udosen v State [2007] 4 NWLR (pt 1023) 125, 145; Ibikunle v State [2007] 2 NWLR (pt 1019) 540, 570 571.
In Akinlolu v State (2015) LPELR 25986 (SC), this Court [per Nweze, JSC] affirmed that:
In the realm of our accusatorial jurisprudence, these tripartite requirements for the proof of the offence of murder have become so well-entrenched and

have been so frequently upheld in a succession of binding authorities that, by now, they must have matured into a prosecutorial sing-song, Adekunle v State [2006] 14 NWLR (pt 1000) 717, 726; Haruna v AG, Federation (supra); Nwachukwu v State [2002] 12 NWLR (pt 782) 543, 548; Madu v State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v State [2000] 15 NWLR (pt 691) 467.
Other cases include: Idemudia v State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607; Maigari v State [2013] 6-7 MJSC (pt 11) 109, 125, citing Ochemaje v The State [2008] SCNJ 143; Daniel v The State [1991] 8 NWLR (Pt 443) 715; Obade v State [1991] 6 NWLR (pt 198) 435; Gira v State[1996] 4 NWLR (pt 428) 1, 125.
These ingredients have witnessed consistent espousal in many jurisdictions, for example, by English Courts,R v. Hopwood (1913) 8 Cr. App. R. 143; Hyam v. DPP [1974] 2 All ER 41; Woolmington v. DPP (1935) AC 462; by Nigerian Courts, Madu v. State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v. State [2000] 15 NWLR (pt 691) 467;

Idemudia v. State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v. State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607 and by Courts in other Commonwealth jurisdictions, see, for example, R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R. v. Tralka (1965) Qd, R. 225, (Queensland, Australia).
Scholars have seldom disagreed with judicial authorities on this question, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd, 2009) 209 et seq; A. G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan: Spectrum Books Ltd, 1988) passim; Archbold’s Pleadings: Evidence and Practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passim; K. S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); P, Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) 194 et seq.; see, per Nweze, JSC inAgu v State (2017) LPELR 41664 (SC) 12 -14; A -B.

PROOF OF THE OFFENCE OF MURDER OF JOHN
In their attempt to prove the case against the

appellant, the Prosecution called five witnesses. The appellant testified and called one other witness. The trial Court, believing the Prosecution’s case, convicted and sentenced the appellant. At page 115 of the record, after setting out the ingredients of the offence, the trial Court found that “[I]n this case, there is no doubt that the Prosecution has proved that John Tom Umoh had died.”

In answer to its question whether the Prosecution did prove that the act of the accused person caused his death, the Court, after discharging the second accused person for having no hand in the victim’s death, proceeded thus:
There is no doubt that the remaining accused [person] was the cause of this pre-meditated murder… It was not only the coconut tree of the accused [person] that was cut down. He lurched around for the deceased [person] to get out into the street. The deceased [person] was unfortunately out on the street on December 13, 2006. I don’t believe the story bandied by the accused [person] that when he placed a curse on the person who cut down the coconut tree, the deceased [person] emerged with a matchete and pursued him with it. I believe

that the deceased [person] was unarmed with any weapon and was going about his legitimate business when the accused [person] pounced on him and beat him mercilessly to the extent that he was unable to walk to his house after the PW2 and PW3 had stopped the fight, if indeed, it was a fight.
There is no doubt that the injuries inflicted on the deceased [person] were occasioned by the act of the accused [person]. The deceased [person] was so battered by the accused [person] that in a couple of days after the attack, the deceased [person] died, in spite of prompt medical attention. In such circumstance, I have no doubt that the death of the deceased [person] had resulted from the act of the accused [person].
I am also of the firm view that having regard to the findings in exhibits A and B, the act of the accused [person] was intentional with knowledge that death or grievous bodily harm was its probable consequence.
[pages 115 116; italics supplied for emphasis].

The lower Court affirmed the above findings. At page 309 of the record, the lower Court found that:
In the instant case, the evidence on record shows that

the deceased [person], John Tom Umoh, was admitted in the hospital for treatment arising from a fight between him and the appellant on December 13, 2006 when the fight took place. On December 15, 2006, he died. PW4 (the doctor who certified the deceased [person] dead said in his finding that the cause of death to be due to severe trauma as a result of head injuries through impact from a blunt instrument).

The Court cited Section 323 (1) (a) (c) of the Code (supra) and Section 323 (2) (b) and (3) (c) of the Code (supra) and held:
From the above provision of the law, it can be seen that it is not necessary that there should be intent to kill before the charge can be sustained. Therefore, the accused/appellant is presumed to intend the natural consequence of his act such as death resulting in a grievous bodily harm, Nwokearu v The State [2013] 16 NWLR (pt 1380) 207.
On the basis of the above, I hereby hold that the trial Court was right in holding that the appellant intended to kill the deceased [person] whom he fought because death resulted therefrom and by the provisions of

Section 323 (2) and (4) of the Code (supra). It is not necessary that there should be an intention to kill.

Now, it must always be borne in mind that in criminal trials, the standard required is proof beyond reasonable doubt. It is not proof beyond any shadow of doubt. The two requirements are completely dissimilar. That is why the expression “proof beyond reasonable doubt” cannot be employed coterminously with the expression “proof beyond any shadow of doubt.” The law has opted for the expression “proof beyond reasonable doubt,”Dibie v State (2007) LPELR -941 (SC); Dimlong v Dimlong [1998] 2 NWLR (pt 538) 381, 178; State v Gwangwan (2015) LPELR -24837 (SC).
I have examined most notable authorities, ancient and modern. They are all unanimous that this expression “proof beyond reasonable doubt” must remain the ubiquitous touchstone for estimating when the prosecution has discharged the burden imposed on it by law. In the realm of criminal justice, the said expression “proof beyond reasonable doubt” connotes such proof as precludes every reasonable proposition except that which it tends to support, Oladele v. Nigerian Army [2004] 6 NWLR (pt 868) 166, 179.

Hence, it connotes sufficiency of evidence, Nsofor v. State (2004) 18 NWLR (pt. 905) 292, 305. It depends on the quality of the evidence tendered by the prosecution. Consequently, if the evidence is strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt.
The cases on this point are many. Only a handful will be cited here, Okere v. State (supra) 415 416; Sabi v State [2011] 14 NWLR (pt.1268) 421; Iwunze v Federal Republic of Nigeria [2013] 1 NWLR (pt.1324) 119; Njoku v State [2013] 2 NWLR (pt.1339) 548; Osuagwu v State [2013] 5 NWLR (pt.1347) 360; Ajayi v State [2013] 9 NWLR (pt. 1360) 589.

In this case, the lower Court, affirmed the following findings of the trial Court findings which could be found at pages 115 116 of the record:
There is no doubt that the remaining accused [person], that is, the appellant, was the cause of this pre-meditated murder. Evidence abound that economic trees belonging to other people in Ikot Obong Otoro

were felled on the 12th of December, 2006, in order for the community to execute electrification project. It was not only the coconut tree of the accused [person] that was cut down. He lurched around for the deceased [person] to get out into the street. The deceased [person] was unfortunately out on the street on 13th December, 2016. I don’t believe the story bandied by the accused [person] that when he placed a curse on the person who cut down the coconut tree, the deceased [person] emerged with a machete and pursued him with it.
I believe that the deceased [person] was unarmed with any weapon and was going about his legitimate business when the accused [person] pounced on him and beat him mercilessly to the extent that he was unable to walk to his house after the PW2 and PW3 had stopped the fight, if indeed it was a fight. There is no doubt that the injuries inflicted on the deceased [person] were occasioned by the act of the accused [person]. The deceased [person] was so battered by the accused [person] that in a couple of days after the attack, the deceased [person] died, in spite of prompt medical attention. In such circumstance, I have no

doubt that the death of the deceased [person] had resulted from the act of the accused [person] [Italics supplied]

My Lords, I find it difficult to fathom the arguments of the appellant’s counsel against the background of these findings. Now, listen to the un-challenged testimony of PW3. At pages 77 -78 of the record, he testified in chief that:
It was on the 13th December, 2006, I was building a house when a woman shouted and ran toward where I was working. She told me to come and separate John Tom Umoh and the first accused [person] who were fighting. I went with Paul Etim Ubom to separate them. The first accused person [that is, the appellant] beat John Tom Umoh to the extent that John Tom Umoh was unable to walk. We took John Tom Umoh to his house. We later took him to the Police station to lodge a report. The Police seeing his condition advised us to take him to the hospital. We took him to the hospital we then left. On the 14th December, 2006, I went to visit John Tom Umoh in the hospital where he told me he was unable to hear anything. Thereafter, I heard that he had died…
[Italics supplied for emphasis]

Pray, what else was the Prosecution supposed to prove

In the con of the grievous bodily harm which the appellant inflicted on the deceased person grievous bodily harm which was such that the deceased person, according to the PW3, was first “unable to walk…” on the first day [that is, December 13, 2006] and, on the following day, December 14, 2006, was “unable to hear anything” In the apt findings of the trial Court, findings duly affirmed by the lower Court:
There is no doubt that the injuries inflicted on the deceased [person] were occasioned by the act of the accused [person]. The deceased [person] was so battered by the accused [person] that in a couple of days after the attack, the deceased [person] died, in spite of prompt medical attention. In such circumstance, I have no doubt that the death of the deceased [person] had resulted from the act of the accused [person]
[page 116 of the record; italics supplied]

Against this background, I entirely, endorse the submission of the Honourable Attorney General for the respondent that the appellant must be presumed to intend the natural consequences of his dastardly act his act of inflicting

grievous bodily harm which resulted in the death of John Tom Umoh. True, indeed, this Court has long settled the point that the law presumes that a man intends the natural, probable consequences of his acts, Njoku v State [2013] All FWLR (pt 689) 1083; Ibikunle v State (supra); Nwokearu v State (supra).

With respect, the appellant’s argument advanced on pages 9 14, on the contradictory depositions of the Prosecution’s witnesses are surely misleading. Surely, learned counsel for the appellant cannot wish away the eye witness accounts of the PW2, pages 76 78 of the record accounts which found firm corroboration in the eloquent unchallenged testimony of the PW3.

Above all, testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That is, such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to

the reliability of such witnesses, Enahoro v Queen (1965) NMLR 265, endorsed in Ogun v Akinyelu [2004] 18 NWLR (pt 905) 362, 392; Emiator v. State [1975] 9-10 SC 112; Ikemson v State [1989] 3 NWLR (pt 110) 455, 479; Afolalu v State [2009] 3 NWLR (pt 1127) 160.
This is so because it would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth, Okoziebu v State [2003] NWLR (pt 831) 327, 341; Nasaru v State [1999] 6- 9 SC 153; Ikemson v State (supra). In any event, Courts have even taken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy, Ogun v Akinyelu [2004] 18 NWLR (pt 905) 362, 392.
In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly, in a capital offence, they must raise doubts as to the guilt of the accused person, Nwosisi v State [1976] 6 SC 109;

Ejigbadero v State [1978] 9- 10 SC 81; Kalu v State [1988] 4 NWLR (pt 90) 503; Igbi v State [2000] FWLR (pt 3) 358; [2000] 3 NWLR (pt 648) 169. No such situation arose in this case.

where, from the testimonies of the witnesses, the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where death was instantaneous or nearly so, Ben v The State (2006) LPELR -770 (SC) 12- 13; Bakuri v. The State (1965) NMLR 163, 164; Uyo v, Attorney-General of Bendel State [1986] 1 NWLR (pt. 17) 418; Onwumere v. The State [1991] 4 NWLR (pt. 186) 428; Nwachukwu v, The State [2002] 12 NWLR (pt. 782) 543; Oforlete v The State (2000) LPELR -2270 (SC); Ogbu v The State (1992) LPELR -2292 (SC) 18; B-C.

As shown above, it was the submission of the appellant’s counsel that the lower Court erred in law in affirming the judgement of the learned trial Judge which held that the defences of provocation and self – defence did not avail the appellant to mitigate the conviction for murder to that of manslaughter. This submission does not need to delay us in this judgement. As this Court held in Edoko v The State (2015) LPELR -24402 (SC) 62 63; D-C, per Nweze, JSC:

I actually, find it curious that the appellant [as accused person at the trial Court] set up the defences of self defence and provocation at the same trial. Whereas the Criminal Code provides for self defence in Sections 286 and 287, the same Code provides for the defence of provocation in Section 284. Whilst the former [the defence of self defence] is an exculpatory defence because, where it is established, it exonerates the accused person, Uwaekweghinya v The State [2005] 9 NWLR (pt 930) 227, the latter is merely, an attenuating or a mitigating defence. Where available, it merely, attenuates; dis-rates or demotes the offence from murder to manslaughter.
In effect, the defence of provocation does not exonerate the accused person. It only, earns him a mitigation of the punishment due for the offence of murder to a sentence for manslaughter, Uraku v State (1976) LPELR-SC. 300/1975; [1976] 6 SC 128; Akang v State [1971] 1 All NLR 47, 49; Musa v State (2009) LPELR-SC.323/2006; [2009] 15 NWLR (pt 1165) 465; Ada v State (2008) LPELR-SC.242/2004; [2008] 13 NWLR (pt1103) 149; [2008] 34 NSCQR 508; Ajunwa v The State [1988] 1 SC 110; Laoye v The State [1985] 2 NWLR (pt

10) 832; C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books, 2000) 240; C. O. Okonkwo, “The Unlawful Act Doctrine and the Defence of Accident” in The Nigerian Bar Journal Vol 11 (1973) 93-97.
It is, thus, the dissimilarity in the consequences of the availability of these defences that make them, mutually exclusive, that is, that make them inconsistent defences defences that cannot avail an accused person at the same time, Ibrahim v State (1991) LPELR-SC.167/1990; [1991] 4 NWLR (pt 186) 399; [1991] 5 SCNJ 129; see, also, the very incisive, and the most stimulating, article by the cerebral Professor of Law, F. I. Asogwah, The Applicability of Some ‘Inconsistent’ Defences in the Nigerian Criminal Code,” in I. A. Umezulike (ed), Law and Administration of Justice in the Twenty First Century (Enugu: Fourth Dimension Publishing Co. Ltd, 1997) 75-98.

In all, I do not find any justification for interfering with the concurrent findings of the lower Courts in the instant case. As a result, I further affirm them. I therefore, enter an order dismissing this appeal. Appeal dismissed.
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WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: I have had the privilege of reading in draft the well-considered and erudite Lead Judgment of my Learned Brother Hon. Mr. Justice Chima Centus Nweze, JSC, just delivered. I agree with his reasoning and the conclusion derived therefrom that the appeal is unmeritorious and should be dismissed. I wish to however make a few comments by way of reiteration.

It is the evidence of appellant that he had cursed the deceased leading to a chase by the deceased, which resulted in a fateful fight during which he defended himself from the assault of the machete wielding victim, while he argues that this fact is uncontroverted, there is clear evidence from PW1 that the deceased was coming from Church when he was attacked by the appellant. This fact is also uncontroverted by the appellant and was believable given the occupation of the deceased who was said to be a catechist (MAIYAKI V THE STATE (2008) 15 NWLR (PART 1109) 173). As such, the central question underpinning this appeal is whether the prosecution has proved its case that the attack was unprovoked and resulted in the homicidal killing of the deceased person.

It is now settled law that for the prosecution to successfully found a case of murder against the accused person, the provisions of Section 323 (1) (a)-(f) of the Criminal code, Cap. 38, Volume 2, Laws of Akwa Ibom State of Nigeria, 2000 which provides as follows, must be proved.
“A person who unlawfully kills another under any of the following circumstances is guilty of murder;
a) If the offender intends to cause the death of the person killed, or that of some other person;
b) If the offender intends to do to the person killed or to some other person some grievous harm;
c) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life… is guilty of murder;
d) If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of the offender who has committed or attempted to commit any such offence;
e) If death is caused by administering any stupefying or

overpowering things for either of the purpose last aforesaid;
f) If death is caused by wilfully stopping the breath of any person for either of such purposes is guilty of murder.”
It is also clear that Section 323(2) & (3) of the same Law states that an intent to kill need not be proven as provided for under the provisions of Section 323 (2) and (3) of the Akwa lbom State Criminal Code. Nevertheless, on the clear authority of this Court in the case of GIRA V THE STATE (1996) 4 NWLR (Part 443) 375, cited by the respondents counsel herein and as observed from the facts as presented by both parties, it may be inferred that the appellant had intended to beat the deceased and it is clear that Grievous Bodily Harm was a foreseeable consequence of such beating. Certainly, the facts stack up against the appellant’s defence of self-defence. Indeed, his cause is not helped by the witness statements of the 2nd and 3rd Prosecution Witnesses which clearly show that the deceased could not stand up following the beating inflicted on him by the appellant. It is therefore obvious that appellant intended the natural consequence of his conduct and his action

of beating the deceased meant that “the offender intends to do to the person killed or to some other person some grievous harm”, as stated in Section 323 (1) (b) of the Criminal Code.
Thus, in totality, the evidence led by the witnesses paint a clear and better tapestry of the facts than that of the appellant, who raised his defences of provocation and self-defence later in the proceedings. His violent attack on the deceased was no doubt the consequence of the destruction of economic trees belonging to the appellant, thus giving him the motive for his assault on the deceased victim. This beating resulted in grievous harm which no doubt had the unfortunate, though foreseen consequence of causing injuries to the deceased, ultimately resulting in his subsequent death.
Appellant further argued that there must be a specific intent to kill the deceased proven by the prosecution. In support of this contention. the case of AMAYO V THE STATE (2001) 18 NWLR (Part 745) 251 was cited. However, it is important to note that the wordings of the Criminal Code as used in that case differs from the expanded definition offered by the

provisions of Section 323(2)(3), which must be given their ordinary meaning in the interpretation of same (see AFRICAN NEWSPAPERS OF NIGERIA & ORS V FEDERAL REPUBLIC OF NIGERIA (1985) 1 S.C. 127). I therefore have no reservation in agreeing with the concurrent interpretations of the lower Courts in this regard.

Finally, the Court is being prayed to depart from the concurrent findings of the Courts below on the grounds set out in the appellant’s brief. When this submission is subjected to the furnace of the conditions laid down by this Court in NWOKAERU V THE STATE (2013) 16 NWLR (Part 1380) 207, it becomes clear that none of these conditions have been satisfied by the appellant such as would move the Court to depart from the clear reasoning of the lower Courts

It is for the above reasons and the more detailed reasons contained in the said lead judgment that I dismiss this appeal and affirm the Judgment of the Court of Appeal, Calabar Division, delivered on the 13th day of November 2015.
Appeal dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the lead judgment just delivered by my learned brother

CHIMA CENTUS NWEZE JSC, I entirely agree with his lordship’s reasoning and conclusion therein that the appeal lacks merit. I hereinunder say it in a few words of mine purely for the sake of emphasis.

The sole issue raised on the basis of which both sides agree the appeal is to be determined reads: –
“Whether the lower Court rightly affirmed the conviction of, and sentence on the appellant”

Notwithstanding the elaborate reproduction of the facts that brought about the appeal made in the lead judgment, it helps to restate some in unraveling how futile the appeal is.

The people of Ikot Obong Otoro had had to make some sacrifices in the course of providing electricity to their community. Appellants coconut trees, as those of other members of the community, were uprooted in facilitating the electricity project for the community. This was on 12th December 2006. On the 13th December 2006, the appellant attacked and mercilessly beat the deceased for being responsible for including the appellant’s coconut trees among those felled to make for the electricity project. The

deceased died on the 15th December 2006 at the hospital where he was conveyed to following the beating he received from the appellant.

It is evident from the issue being agitated that the appeal is against the concurrent findings of fact by the two Courts below. As a rule, this Court is very hesitant to interfere with these findings except where they are shown to be perverse. The appellant succeeds if he shows that the findings neither arise from the evidence on record nor as a result of correct application of the law to ascertained facts and that in either or both situation miscarriage of justice was occasioned. Without any clear evidence of errors in law or fact, therefore, the appeal will fail. See Ogundiyan V. State (1991) 4 SCNJ 44, lyaro V. The State (1988) 1 NWLR (Pt 69) 256 and Ogoejeofo V. Ogoejeofo (2006) LPELR-2308 (SC).

Now, the appellant suggests that the two Courts below are wrong to have convicted him for the murder of the deceased and that if indeed he had caused the death of his victim, he was provoked.
Quite rightly, learned respondent’s counsel contends differently.

It is evident from the record of this appeal that the

appellant did beat the deceased mercilessly on the 13th after confronting and accusing the deceased a day earlier, on the 12th December 2006, for including the appellant’s coconut trees among those felled in facilitating the community’s electricity project. His victim never recovered from the injuries the appellant inflicted on him. He died so soon thereafter on the 15th day of December 2006.

The law is settled that where the cause of death is obvious, as in the instant case, from the circumstances that brought it about the Court is perfectly entitled to draw the necessary inference from the totality of the evidence before it. See Onyejekwe V. The State (1992) LPELR-2731 (SC), Azu V. The State (1993) LPELR-689 (SC).

From the evidence on record, the disability the deceased was caused following the injury the appellant inflicted on him, degeneration of his health and subsequent death barely two days thereafter, the concurrent findings of the two Courts linking the appellant with the death of the deceased cannot be faulted.

Can the appellant insist that the two Courts have wrongly denied him his right to the defence of provocation Certainly not.

Whatever provocation the deceased caused the appellant on the 12th December 2006, if at all, cannot be said to have reasonably endured till the next day, 13th December 2006, to justify the appellant’s resort to violence. It is trite that to avail himself of the defence of provocation the appellant must have done the act for which he is charged: (I) in the heat of passion, (II) the act was caused by sudden provocation (III) he never had time to cool off passion and (IV) the resentment he exhibited is proportionate to the provocation offered.
The law does not specify what acts cause provocation. It only deals with the creation or existence of provocation. The test here is objective. In the case at hand, certainly the appellant was not the only person whose coconut trees were felled having been pointed at by the deceased for same to give way to the electricity project. The defence, the two courts below are right, does not avail him. See Obaji V. The State (1965) ALL NLR 282, Oladipupo V. State (1993) NWLR (Pt 298) 131 and Shande V. State (2005) LPELR-3035 (SC).

It is for the foregoing and more so the fuller reasons

articulated in the lead judgment by my learned brother that I also dismiss the appeal and further affirm the concurrent. conviction and sentence of the appellant by the two courts below.

KUMAI BAYANG AKA’AHS, J.S.C.: My learned brother, Nweze JSC, made available to me before now his judgement just delivered dismissing the appeal. For the reasons he ably adumbrated in the judgement, I too find no merit in the appeal.

The facts leading to this appeal were well laid out in the judgement of my learned brother. The dispute between the appellant and the deceased was the cutting down of the appellant’s coconut tree to make way for a proposed electrification project in a village close to Ikot Obong Otoro village in Ikot Ekpene Local Government Area of Akwa Ibon State. The deceased who was the Sanitation Chairman in Ikot Obong Otoro village had marked the trees to be felled including the coconut tree belonging to the appellant’s father to make way for the electricity line. The appellant was not happy with the action of the deceased and accosted the deceased. This result in a fight from which the deceased sustained an injury.

He became incapacitated and could not walk. He was taken to hospital after the incident had been reported at the Police Station. Two days later he died and the appellant and one other person were charged with the murder of the deceased. The prosecution called five witnesses who testified. It was PW4, Dr. Michael Unoh who carried out the post-mortem examination on the corpse of the deceased and issued the medical report which was admitted in evidence as Exhibit “A”. PW4 observed that the deceased had bruises on the forehead and he had injuries on his brain and skull. He said the injuries could not have been self-inflicted. He was of the opinion that the cause of death was severe trauma as a result of the head injuries through the impact of a blunt instrument. It was PW2 and PW3 who separated the fight between the deceased and the appellant.

Each of the accused testified in his own defence but called no further evidence. In the judgement delivered by the learned trial Judge on 28 October 2013, the second accused was acquitted and discharged leaving the appellant who was found guilty of murder and sentenced to death by hanging.

He unsuccessfully appealed to the Court of Appeal Calabar. This is a further appeal from that Court which affirmed the conviction and sentence imposed on the appellant by the trial Judge.

Learned counsel for the appellant formulated five issues for determination. Learned counsel for the respondent adopted issues 1 and 5 as formulated in the appellant’s brief. He also adopted issues 2 and 4 with modification and stated that Issue 3 will not be adopted since that issue did not arise from the decision of the lower Court.

My learned brother, Nweze JSC decided to reformulate the issues for determination which he limited to a single issue namely: Whether the lower Court, rightly, affirmed the conviction of and sentence on the appellant.

The crux of the arguments of learned counsel for the appellant are centred on the holding by the Court of Appeal that it is not necessary that there should be intent to kill to sustain a murder charge based on the provision of Section 323 (2) & (3) of the Akwa Ibom State Criminal Code Cap 38, vol. 2 of 2000 and that the appellant intended to kill the deceased because he fought the deceased and death resulted therefrom. He argued that a community reading

of the provisions of Section 323 of the Akwa Ibom State Criminal Code shows that intention becomes immaterial and therefore irrelevant in proof of murder, if the offender intends to do to the person killed or to some other person grievous bodily harm or if death results from the prosecution of an unlawful purpose of such a nature as is likely to endanger human life. Learned counsel said that the relevant question to ask is whether the appellant intended to kill or cause some grievous bodily harm to the deceased or to someone else and if this question is answered in the affirmative from the facts of the case, it is then that the prosecution will have no duty to prove intention to kill on the part of the appellant. If the facts and evidence are such that the appellant cannot be presumed to have such intention as provided in Section 27 of the Akwa Ibom State Criminal Procedure Law 2000, then the onus is on the prosecution to prove intent to kill. He referred to the evidence of the appellant and the cases of Ehot v. State (1993) 4 NWLR (Pt. 290) 644 and Gira v. State (1996) 4 NWLR (Pt. 443) 375 and submitted, while conceding that a person intends the natural

consequences of his conduct, that the facts reveal that there was a fight between the appellant and the deceased with bare fists without any weapon used, and so it cannot be inferred to be an act intended to cause death or grievous bodily harm on the deceased. He said the learned trial Judge based his finding that the appellant had the intention to cause grievous bodily harm to the deceased on Exhibits A and B which are the reports of the post-mortem examination carried out by PW4 where the cause of death was attributable to head injuries and there was no eye witness account of the fight. He argued that there was no evidence that the appellant had used a weapon during the fight and PW3 who separated the fight did not say there was any weapon used in the fight. What the appellant disputes is the finding of the learned trial Judge as affirmed by the learned Justices of the Court of Appeal that the appellant intended to kill the deceased when they fought because death resulted therefrom. He did not exclude the possibility that the head injuries sustained by the deceased could have resulted from an accidental fall during the fight. The prosecution did not

prove that the appellant had or harboured the intention to do grievous harm to the deceased during the fight; and the appellant was not shown to have the mens rea apart from the fight. In the absence of the intention to murder, the murder charge is not proved and the appellant is entitled to be acquitted and discharged.

In his response learned counsel for the respondent submitted that in the case of murder, the prosecution is expected to prove beyond reasonable doubt the following ingredients, namely
(a) That the deceased died,
(b) That the death of the deceased resulted from the act of the appellant; and
(c) That the act of the appellant was intentional with knowledge that death or bodily harm was its probable consequence.

He said the three ingredients must co-exist and where one of them is absent or tainted with some doubt, the charge cannot be said to have been proved.

Learned counsel submitted by relying on the case of Obade v. State (1991) 6 NWLR 9Pt. 198) 435 that in the instant case, the three ingredients were established by the prosecution.

On whether the appellant intended to kill the deceased learned counsel referred to Sections 323 (1) (a-c) and 323 (2) and (3) of the Criminal Code Cap. 38 Vol. 2 Laws of Akwa lbom State of Nigeria, 2000 where it is provided that ‘It is immaterial that the offender did not intend to hurt the particular person who is killed or hurt any person and submitted that the lower Court rightly arrived at the conclusion that it was not necessary that there should be intent to kill before a charge can be sustained. He countered the argument put forward by the appellant that since there was no evidence that the appellant used a weapon in fighting the deceased, it cannot be inferred that the act was intended to cause grievous bodily harm to the deceased. He argued that the onus is on the appellant to explain what caused the serious injuries sustained by the deceased since the injuries could not have been self inflicted and there was overwhelming evidence that the appellant beat the deceased to such an extent that the deceased could not walk back home leading to his death two days later. He submitted that murder is the taking of human life by a person who either;<br< p=””

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(a) has a malicious and willful intent to kill or do grievous bodily harm or
(b) is wickedly reckless as to the consequences of his act upon his victim. For murder therefore, there must be an evil intent, that is, a criminal intent; although it is not necessary that there should be an intent to kill and a person is presumed to intend the natural consequences of his act, such as death resulting from grievous bodily harm. Reliance for this submission was placed on Nwokearu v. State (2013) 16 NWLR (Pt. 1380) 207; Afosi v. State (2013) 13 NWLR (Pt. 1371) 329 and Ibikunle v. State (2007) 2 NWLR (Pt. 1019) 546.

Learned counsel conceded to the point that in murder cases, Courts are enjoined to establish with absolute certainty that the act of the accused caused the death of the deceased and contended that there was a causal link between the death of the deceased and the act of the appellant. He referred to the evidence of PW4, the Medical Doctor who carried out the post-mortem examination on the corpse of the deceased and submitted that the cause of the death of the deceased was established with certainty. He maintained

that the evidence that the appellant beat the deceased on 13/12/2006 and inflicted injuries on him to such an extent that the deceased could not walk back home and he died after two days as a result of head injuries through impact from a blunt object, sufficiently placed the cause of death at the door steps of the appellant and the Court of Appeal rightly affirmed the findings of the learned trial Judge that the death of the deceased had resulted from the act of the appellant. He therefore urged this Court to resolve the issue in favour of the respondent.

Section 323 (1) (a-c) of the Criminal Code Cap. 38 Vol. 2 Laws of Akwa Iborn State of Nigeria 2000 provides:-
“A person who unlawful kills another under any of the following circumstances:-
(a) If the offender intends to cause the death of the person killed or that of some other person;
(b) If the offender intends to do the person killed or some other person grievous harm;
(c) If death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such a nature as to be likely to endanger human life is guilty of murder”.

Two of the five prosecution witnesses gave evidence of the fight between the appellant and the deceased. PW2 and PW3 Paul Etim Udom, and Peter Edet James (also called Ndifreke Peter Edet) testified that they heard a woman shouting that Nsikak Bassey Ukpong was fighting with John Tom Umoh. He and Ndifreke Peter Edet went and stopped the fighting. When they got to the scene, John Tom Umoh was lying on the ground. They tried to raise him up, but he fell three times. They then carried him to his house. Three of them namely PW1, himself and Ndifreke lodged a report at the Area Command who advised they should take him to the hospital. On 15/12/2006 they received information that John Tom Umoh had died.

Dr. Michael Umoh, who carried out the post-mortem examination on the corpse of the deceased on 5 January, 2007 testified as PW4 stated that he had injuries on his brain and skull and in his opinion the cause of death was severe trauma as a result of the head injuries through the impact from a blunt object. He ruled out the possibility of the injuries being self-inflicted and expressed the view that the injuries were inflicted through violence.

The appellant testified in person. He said that on 13/12/2006, he left his house to where his father was building to take some vegetables. On his arrival, he observed that the coconut tree in the area had been cut down and the fruits harvested. He then placed a curse on the person who cut down the coconut tree and someone came out with a matchete and went towards his (appellant’s) direction. On noticing the man moving towards him and realizing he was not carrying any weapon, he ran to the Junction leading to the village and Mbiaso. The man pursed and caught up with him. On getting to the appellant, he threw away the matchete and engaged the appellant in a physical combat. They fought and after the fight the man left and he appellant then went home. He said that it was after the fight was over that people then came out. He identified PW3 as one of those who came out after the fight. He admitted under cross-examination that PW3 separated them from the fight. He said he was surprised to hear a few days later that the man he fought with had died.

The learned trial Judge reviewed the evidence adduced at the trial and asked the pertinent question who inflicted those

injuries on the head, if, as the PW4 told the Court, they were not capable of being self-inflicted

He answered the question at page 116 of the record as follows:-
“I don’t believe the story bandied by the accused that when he placed a curse on the person who cut down the coconut tree, the deceased emerged with a matchete and pursued him with it. I believe that the deceased was unarmed with any weapon and was going about his legitimate business when the accused pounced on him and beat him mercilessly to the extent that he was unable to walk to his house after the PWs 2 and 3 had stopped the fight if indeed it was a fight. There is no doubt that the injuries inflicted on the deceased were occasioned by the act of the accused. The deceased was so battered by the accused that in a couple of days after the attack, the deceased died inspite of prompt medical attention. In such circumstance, I have no doubt in my mind that the death of the deceased had resulted from the act of the accused. I am also of the view that having regard to the findings in Exhibits A and B, the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.”

The learned trial Judge drew the correct inference that it was the appellant who inflicted the injuries on the deceased’s head which caused his death since PW4 ruled out the possibility that the injuries were self-inflicted.

Learned counsel for the appellant suggested that the head injuries sustained by the deceased could have been as a result of him accidentally falling down as a result of the fight since there was no evidence that the appellant used a weapon during the fight. It was within the exclusive knowledge of the appellant to state that the deceased fell down and hit his head when they were fighting. Instead he came out with the rather weird story that when he cursed the person who had cut down the coconut tree, the deceased came out and started pursuing him with a matchete and when he got to him, he dropped the matchete and engaged him in a fistcuff fight. The story sounded so unbelievable that the trial Judge had no option but to throw it out and the Justices of the Court of Appeal had no reason to reject the finding made by the learned trial Judge and to draw the necessary inference that the appellant intended

to kill the deceased or cause him grievous bodily harm by inflicting the injuries on his head. As learned counsel for respondent submitted in paragraph 4.13 of his brief, since the appellant did not deny fighting with the deceased on 13/12/2006 and PW3 separated them, he is the one to explain what caused the serious injuries sustained by the deceased as a result of the fight; moreso since there is overwhelming evidence that the appellant beat the deceased to such an extent that the deceased could not walk back home. He is presumed to intend the natural consequences of his act such as death resulting from grievous bodily harm. See: Ibikunle v. State (2007) 2 NWLR (Pt. 1019) 546; Afosi v. State (2013) 13 NWLR (Pt. 1371) 329 and Nwokearu v. State (2013) 16 NWLR (Pt. 1380) 207.
There are two elements in all cases of criminal liability namely: –
(1) actus reus, and
(ii) mens rea. See: Woolmington v. D. P. P (1936) 25 Cr. App R. 72; Gabriel Daudu v. Federal Republic of Nigeria (2018) LPELR SC.172/2017. Although the element of intention to murder was not clearly manifested in the act

but from the injuries which the deceased sustained, it can be presumed that he intended to do grievous harm to the deceased; hence the burden was on him to rebut the presumption which he failed to discharge. This is the purport of Section 323 (2)(b) of the Codewhich states that: –
“It is immaterial that the offender did not intend to hurt the particular person who is killed”.
The learned trial Judge was right in arriving at the conclusion that having regard to the findings in Exhibits A & B, the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
This finding was not perverse and so the lower court was right to endorse it. I too cannot fault that finding.

It is for this reason and the more comprehensive reasons contained in the judgement of my learned brother, Nweze JSC that I hold that it was the appellant who inflicted the injuries on the deceased which led to his death two days later and he did so with the knowledge that death or grievous bodily harm would be the probable consequence of his act. The appeal therefore lacks merit and it is hereby dismissed.

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JOHN INYANG OKORO, J.S.C.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, C. C. Nweze, JSC and I am in agreement with him that this appeal lacks merit and ought to be dismissed. My learned brother has meticulously dealt with the sole issue in this appeal which I also adopt for the purpose of making a few comments in support of the lead judgment, to wit:
“Whether the lower court, rightly affirmed the conviction of, and sentence on the appellant”

The facts of the case have already been stated in the lead judgment and I shall not belabor the point.

Evidence on record reveal that the economic trees belonging to other people in Ikot Obong Otoro together with the appellant’s coconut were felled, on 12th December, 2006 in order for the Community to execute electrification project. The appellant, incensed with the deceased for indicating his coconut tree which was felled together with other people’s economic trees, attacked the deceased the following day being 13th December, 2006. He beat the deceased to the extent that he was unable to walk to his house. In the

aftermath of the beating, the deceased was rushed to the hospital where he subsequently died on 15th December, 2006, just two days after the attack.

The question agitating my mind in this appeal is whether the death of the deceased on 15th December, 2006 could be inferred from or was as a result of the injuries inflicted on him by the appellant. The law as elaborately espoused by my learned brother in the lead judgment is that murder can be inferred where the person attacked died immediately after the attack from injuries sustained therefrom. See Oguntolu v. The State (1996) 2 NWLR (Pt. 432). The health of the deceased drastically deteriorated after the attack. On 14th December, 2006 he could not hear anything and on 15th December, 2006 he died. From the facts of this case, I am of the firm belief that the death of the deceased was caused by the injuries inflicted on him by the appellant on 13th December, 2006.

I wish to state clearly that the defences of provocation and self defence set up by the appellant cannot avail the appellant in the appeal. The appellant was provoked on 12th December, 2006 when the deceased, as sanitation chairman

of his community, indicated ,that the appellant’s coconut together with other trees be felled for the purpose of executing electrification project. The appellant fatally attacked the deceased the following day after provocation had ceased. It is trite that the defence of provocation in a Murder case can only avail the accused to reduce the offence from murder to manslaughter where death occurred in the heat of passion and not after anger had cooled down. See Akalezi v. State (1993) 2 NWLR (pt. 273) 1 qtr 14, Uraku v. State (1976) 6 SC. 128: R v. Igbe (1961) 1 All NLR 476; Musa v. State (2009) 15 NWLR (pt. 1165) 465; Ada v. State (2008) 73 NWLR (Pt.1103) 149.
The appellant cannot be offensive and defensive at the same time.He cannot plead self-defence and provocation at the same time. See per Nweze, JSC in the case of Edoko v. State (2015) LPELR-24402 (SC) 62.

The law is that a man is presumed to intend the natural consequences of his acts. See Njoku v. State (2013) All FWLR (Pt.6890) 1083. The appellant cannot successfully wash his hands clean from the death of the deceased. I therefore do not see any reason to interfere with the concurrent findings of both the trial Court and

the Court below. I affirm them and consequently dismiss this appeal.
Appeal dismissed.

Appearances:

PAUL C. OBI, Esq. with him, O. A. ONAMADE, Esq. For Appellant(s)

UMEMEDIMO NWOKO, (Hon. Attorney General, Akwa Ibom State), with him, JOSEPH UMOREN, (DPP), HELEN UMOH, (ADPP), GODSON UDOM, (PSC) and SHARON EDDIE, (PSC) For Respondent(s)

Appearances

PAUL C. OBI, Esq. with him, O. A. ONAMADE, Esq. For Appellant

AND

UMEMEDIMO NWOKO, (Hon. Attorney General, Akwa Ibom State), with him, JOSEPH UMOREN, (DPP), HELEN UMOH, (ADPP), GODSON UDOM, (PSC) and SHARON EDDIE, (PSC) For Respondent

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