UBONG MONDAY JACK v. THE STATE (2011)

UBONG MONDAY JACK v. THE STATE

(2011)LCN/4664(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 31st day of May, 2011

CA/C/81/2010

 

JUSTICES

JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

UBONG MONDAY JACK Appellant(s)

AND

THE STATE Respondent(s)

JA’AFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ita J. sitting in the High court of cross River State, Calabar in suit No.HC/36C/2006 and delivered on the 4th day of March, 2009. An information was filed against the appellant for the offence of murder contrary to section 319 (1) of the criminal procedure faw of Cross River State.
The issues for determination are whether the accident and self-defence raised by the appellant was considered and available to him and whether the lower court was right in holding that the prosecution proved its case beyond reasonable doubt.
Before the lower court charge No.HC/36C/2006 was brought against the appellant for the offence of murder contrary to section 319(1) of the criminal code of cross River state, that the appellant on the 27th day of September, 2005 at No.5 Umo Orok Street, Calabar, Calabar division murdered one Micheal Clement Effiong.
The information was filed on the 7th day of July, 2006 and attached to the information one (1) the list of names of four (4) persons the prosecution intended to call as witnesses (2) complainant’s statement (3) post mortem examination sheet (4) police information report and (5) Appellant’s statement.
The Appellant case at the court below was that, he lived in the same house with the deceased. The house belongs to the appellants father, and it is at No.5 Umo Orok Street, Calabar. That a tenant who had parked out of the premises left a room divider in his custody. In his absence the deceased collected the room divider defence from his room. When he went to recover the room divider from the deceased on the 27/9/2003 a fight ensured behtween him and the deceased. During the said fight which took place in the deceased room the deceased used hammer on him twice and the third time he brought out a machete and gave him a cut. They started to struggle for the matchet. That he collected the matchet from the deceased and defended himself with it. In the appellant’s words he said “so I used the matchet and wanted to “flock” him and the matchet cut him at his chest and side ribs and he died at the hospital.
The question for determination of this appeal is whether the defence of accident and self-defence raised by the appellant were considered and available to the appellant. It is to be noted that the appellant in his first statement to the police, exhibit 2 stated that so when I asked him he (deceased) used the hammer and hit me on my face, second time he took shoe to flog me and I collected the shoe from him. The third time he took matchet and cut me on my left hand. From there as we were dragging, I collected the matchet from him and the matchet cut him at the side of his arm….”.
The appellant also stated in his second statement to the police, that is exhibit 2A as follows:-
“(a) It was on Tuesday 27/9/2005 that I went to Effiong (deceased) and asked him of a room divider that was with hammer and stated to drag with me that the room divider was not mine” continuing.
(b) He used the hammer and beat me. He beat me with the hammer the second time, then the third
time.”
(c) He took one matchet which was recovered by the police and cut me the first time and we started to drag the matchet together,,…….
(d) “I collected the matchet from him and defence myself, continuing
(e) So I used the matchet and wanted to flock him and the matchet cut him at his chest and side ribs, and he died at the hospital,,.
It is the submission of the learned counsel for the appellant that the learned trial Judge ought to have specifically considered the issue of self defence by the accused, even if only as raised on the record and also when the issue of two fighting and dragging is not in dispute and avail the appellant of this defence.
It is also the submission of the appellant’s counsel that the court below ought also to have considered the defence of accident as arising from the record. Refer to exhibit 2A, pages 10-64 in the last two lines when the appellant state as follows:-
“So I used the matchet and wanted to flock him and the matchet cut him at his chest and side ribs and he died at the hospital”
The learned appellant counsel avers that this is a clear case of accident. That the learned trial Judge having adverted his mind to this issue should not have treated it with levity but should have considered it and availed the appellant of it. Refer to page 4g of the record, line 4 to 9 where the trial Judge stated as follows…….!
“…while on exhibit 2 accused said the matchet he collected from the deceased cut the deceased at the side of the rib. That in exhibit 2A the accused said he wanted to flog the deceased with the matchet and the matchet cut the deceased at his chest and side ribs”.
The appellant counsel has further submitted that if the learned trial Judge had done ‘a proper examination of the evidence before him, he would have seen the reasons for considering the defence of accident and self defence and should have availed the appellant of it. Refer to case of CHUKWU VS. STATE (2007) ALL FWLR (Part 389) 1231. Therein it has been made clear that it is not only a requirement of caution but that of law that a trial court in charges of murder, should consider defences that may be available to an accused person even when and where such defences were not raised by him specifically. Thus in SHALLA vs. STATE (2008) ALL FWLR (Pt.397) 44 it was held that “no court is bound to speculate on what possible defences can be opened to a person accused before it, but where in a trial for homicide the evidence suggests a line of defence, whether or not the accused or his counsel expressly raised that defence by the legal terminology ascribed to it by lawyers.
Thus it has been made clear that where trial Judge does not consider defences available to the appellant in homicide case an appellate court can consider such defence with alt available evidence on record having regard to the provision of the Court of Appeal rules.
It is to be noted that the defence of self defence is open only to an accused person who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm. But he is even entitled to u e such force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from danger, and he is entitled to do even though such force may cause death or grievous bodily harm, if the act of self-defence is committed after all the danger from the assailing is past and by way of revenge the defence will not be avaitable. Refer also to the case of CHUKWU VS. STATE (2007) ALL FWLR (pt.389) 1257 where it was held when the defence of self defence will avail an accused’ In the case of CHUKWU vs. STATE (supra) 125-1258 cardinal conditions for self defence to avail an accused person have been made clear. They are:_
(a) The accused might be free from fault in bringing about the encounters.
(b) There must be present an impending peril to life or great bodily harm, either real or apparent to create honest belief of an existing necessity;
(c) There must be no safe or reasonable mode of escape by retreat; and
(d) There must be the necessity for taking life or causing grievous bodily harm.
It has been submitted by the appellant counsel that the above conditions have been satisfied in this case.
It has been submitted by the appellant counsel that the above conditions having been satisfied in this case, the court should avail him of defence of self defence and discharge and acquit him. It is trite that where a plea of self-defence is upheld it will completely absolve the accused of criminal liability, Refer also to the case of MAIYAKI VS. STATE (2008) ALL FWLR (Pt 41A) 522 paral E-G. This issue is determined in favour of the appellant.
It is trite that where a plea of self defence is upheld it will completely absolve the accused of criminal liability. Refer also to MAIYAKI vs. STATE ALL FWLR (pt 41a) 522 paras E-G. The next question is whether the court was right in holding that the prosecution proved its case beyond reasonable doubt.
In the case of CHUKWU VS. STATE (supra) and in many authorities it has been held that in order to convict an accused for murder under s.316 of the criminal code, s.319 the prosecution must prove beyond reasonable that:
(a) The death of a human being
(b) That it was caused by the act of the accused
(c) That the act or acts was/were done with the intention of causing death or grievous bodily harm or was probable consequence.

It is the submission of the appellant counsel that the prosecution case did not prove all the three essential ingredients of murder as made clear in CHUKWU V. STATE (supra) beyond reasonable doubt to warrant the finding of quilt and the sentence of the appellant’ Here the contention of the appellant is that the prosecution was not able to establish that the act or acts was or were done with the intention of causing death or causing grievous bodily harm. In CHUKWU VS. STATE (supra) page 1253 the court restated the law as follows:-
“that intention can properly be inferred from facts, evidence and circumstances of a given case, since it is rarely disclosed or made manifest by accused persons”
In our case as can be seen from the record, the appellant went to the deceased unarmed to demand for a return of the room divider he took from his room it was the deceased that attacked him using hammer, shoe and matchet. Even when the appellant collected the matchet from the deceased he only wanted to use it to flog him in order to stop the attack on him. This shows that the appellant never had the intention to cause grievous bodily harm or to kill the deceased.
Appellant counsel has maintained that if the prosecution and the trial court have adverted their mind to the fact that the issue of accident or self-defence raised by the appellant they would not have come to the conclusion that the appellant had the intention to murder the deceased.
The appellant counsel has further argued that it amounts to speculation and wrong evaluation of evidence for the trial court to hold that the deceased was an undefended person when the appellant flogged him with the matchet as there was no such evidence before the trial court and the trial court was wrong to conclude that there is evidences of intention to cause grievous bodily harm.
It has been opined by the appellant counsel that it amounts to speculation and wrong evaluation of evidence for the trial court to hold that the deceased was an undefended person when the appellant flogged with the matchet as there was no such evidence before the court and the court below was wrong to conclude that this shows an intention to cause grievous bodily harm.
In the final conclusion I agree with the submission of the learned appellant counsel that the prosecution having not proved all the ingredients of the offence of murder has not proved the case against the appellant beyond reasonable doubt, So the appellant is entitled to be discharged and acquitted, In CHUKWU VS. STATE (supra) it has been made clear that the law requires the proof by the prosecution of all the ingredients or elements of the offence of murder conjunctively or together before the charge can be properly said to have been proved beyond reasonable doubt. If one or more of the elements or ingredients of the offence is/are not proved then the burden on the prosecution wouLd not have been satisfactorily and fully discharged as required by law.

In the final conclusion it is clear that the trial Judge did not do a proper evaluation of the evidence before him or else he would have noted the issue of accident and self-defence raised by the appellant that transverse exhibits 2 & 2A and the evidence-in-chief and cross examination of the appellant, Having not considered the defence available to the appellant in a homicide case, he did not avail him of it and this has occasioned a miscarriage of justice.
From the circumstances of the case the defence of self-defence as raised by the appellant and as adumbrated in the appeal is resolved in favour of the appellant.
It is clear that the prosecution was able to prove only two ingredient of the offence of murder. The third, which, has to do with intention was not proved because both the court and prosecution never adverted their mind to the issue of self-defence raised by the appellant. Refer to ABUBAKAR DAN vs. STATE (2005) 1 NCC page 46 E-G where the court held that the failure by trial court to consider the defences available to an accused person amounts to or is tantamount to failure by the prosecution to prove the offences alleged against the accused person beyond reasonable doubt and alleged against the accused person beyond reasonable doubt and also a miscarriage of justice by the trial court against such an accused person.
In the final conclusion the prosecution has not proved all the ingredients of murder. Therefore the prosecution has not proved the guilt of the accused person beyond reasonable doubt as required by law. This issue is resolved in favour of the appellant. The judgment (as well as the sentence) is hereby set aside and the appellant is discharged and acquitted.

ISAIAH OLUFEMI AKEJU, J.C.A.: I read before now the lead judgment just delivered by my learned brother, Ja’faru Mika’ilu, JCA. I agree with the reasoning and the conclusion that the appeal has merit. I allow the appeal and I abide by the consequential order therein.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the advantage of reading before now, the lead judgment of my learned brother, Mika’ilu, JCA, which has just been delivered. I am in agreement with conclusion that the respondent did not sufficiently and with cogent and compelling evidence prove the guilt of the appellant to the hilt and beyond reasonable doubt as required by law. In the end result, the appeal is allowed, his conviction and sentence are hereby set aside. He is accordingly discharged and acquitted.

 

Appearances

R. O. S. Ogbeche, Esq.For Appellant

 

AND

John U. Ogban Esq.For Respondent

 

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