UTHMAN v. THE STATE (2020)

UTHMAN v. THE STATE

(2020)LCN/15776(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, April 27, 2020

CA/C/247C/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

OLABAMIJI FIYINFOLUWA UTHMAN APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

THE DEFINITION OF CONTRADICTION IN RELATION TO EVIDENCE

THE WAYS OF PROVING A CRIME IN OUR CRIMINAL JURISPRUDENCE

The law is now settled that there are 3 ways of proving a crime in our criminal jurisprudence; see the case of ANYASODOR VS. STATE (2018) LPELR-43720(SC) where SANUSI, JSC said as follows:
“This Court in a plethora of its decided authorities had approved or endorsed three methods or modes of proof in criminal cases which include the followings: – (a) Evidence of eye witness or witnesses account who had witnessed the commission of the offence(s) by the accused person charged. (b) Through confessional statement of the accused made voluntarily by the accused wherein he categorically owned up the commission of the offence by him. (c) Through circumstantial evidence. See also EMEKA VS. STATE (2001) 6 SC 227 OR (2001) 14 NWLR (PT.734) 666; OHUNYON VS. STATE (1996) 3 NWLR (PT.436) 264; BRIGHT CHIBUIKE & ANOR VS. THE STATE (2010) LPELR – 3911; IGRI V. THE STATE (2010) 7 WRN 47; OGBA VS. STATE(1992) 2 MLR (PT.222) 146.” YARGATA BYENCHIT NIMPAR, J.C.A.

THE DEFINITION OF THE INTENTIONS OF A CRIMINAL ACT AND THE PUNISHABLE CONSEQUENCES

It is trite and as known in our criminal jurisprudence that a person intends the consequence of his voluntary act. Intention can be inferred from the circumstantial facts surrounding the offence and how it was committed. Issues like the instrument used and part of the body inflicted with the weapon of offence. Generally, the law imputes to a person who willfully commits a criminal act an intention to do the very thing which is punishable consequence of the act and which constitutes the offence. The apex Court defined intention in the case of HENRY NWOKEARU VS. THE STATE (2013) VOL. 54 NSCQLR 398 as follows:
“Intention is the purpose or design with which an act is performed. It is the fore knowledge of the act coupled with the desire to do the act. The desire and foreknowledge and desire form the cause of the act in so far as they fulfill themselves through the operation of the will. An act is intentional if, and in so far as it exists in idea before it exist in the realm of facts, the idea realizing itself in the fact because of the desire by which it is accompanied.” YARGATA BYENCHIT NIMPAR, J.C.A.

THE DUTY TO PROVE THE INGREDIENTS OF AN OFFENCE BEYOND REASONABLE DOUBT

It is trite that the Respondent has one duty, to prove the ingredients of the offence beyond reasonable doubt and as long as it can do that, they are not under any obligation to call a particular witness, see TAIYE VS. STATE (2018) LPELR-44466(SC) which held:
“The prosecution is merely needed to call enough material witnesses to prove its case and in doing so it has a discretion in the matter on who to call or who not to call. See Oduneye vs. The State (2001) 13 WRN 88; Agbi vs. Ogbeh (2006)11 NWLR [pt.990) 65; Babuga vs. State (1996)7 NWLR (pt.460) 279. In fact, even a murder case can be established by evidence of only one witness provided his evidence is credible and believed by the trial Court. See Effiong vs. State (1998) 8 NWLR (pt.562) 362.”
The Appellant was at liberty to call the said Eno-obong as defence witness if she had anything useful or beneficial to the Appellant in his defence. YARGATA BYENCHIT NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Akwa Ibom High Court sitting at Mkpat Enin judicial Division and delivered by Hon. Justice Felicitas J. Ibanga on the 10th January, 2018 wherein the Appellant was convicted for attempted murder contrary to Section 327(a) of the Criminal Code of Akwa Ibom State. Dissatisfied with the conviction and sentence the Appellant filed a Notice of Appeal on the 20th January, 2018 wherein the Appellant set out 6 grounds of appeal.

Facts relevant to this appeal are amenable to brief summary. The Appellant attempted to kill one Ini-Abasi Uwemedimo Essien on the 10th day of December, 2016 at Golden Lodge, besides Akwa Ibom State University at Ikot Akpaden, Mkpat Enin Local Government Area. It was disclosed that there was a fight over the use of a phone when the Appellant went out, broke a bottle and returned, it was alleged that in the course of the struggle, the broken bottle punctured the said Ini- Abasi in the stomach, the victim testified as PW2. The prosecution called five witnesses and tendered 5 Exhibits while the Appellant gave evidence in defence and tendered Exhibit A and B. At the conclusion of trial, the Court below found him guilty, convicted and sentenced him to 14 years imprisonment.

Upon full trial, the Court below found the Appellant guilty of attempted murder and sentenced him according thus this appeal.

The Appellant’s Brief was settled by ABDUL- AZIZ JIMOH, ESQ., and is date 11th October, 2018, filed on the same day but deemed on the 15th February, 2019. Also a reply Brief settled by PROF. OLUDAYO G. AMOKAYE dated 11th October, 2019 was filed on the 17th October, 2019 but deemed on the 23rd January, 2020. The brief distilled 3 issues for determination namely:
i. Whether there was material contradiction in the evidence of PW1 sufficiently for the Court to have totally discountenanced his testimony.
ii. Whether the confessional statement, Exhibit A was a confession to the crime charged and a fortiori, properly made use of in convicting the Appellant for the crime of Attempted Murder.
iii. Whether on the totality of the evidence adduced by the Prosecution, it proved beyond reasonable doubt the crime of attempted murder.

The Respondent’s brief was settled by EMMANUEL M. UBENGAMAH, ESQ., it is dated 4th March, 2019 filed on the 7th March, 2019 but deemed on the 27th May, 2019. It also formulated 3 issues for determination as follows:
a. Whether the prosecution proved its case against the appellant beyond reasonable doubt.
b. Whether the lower Court was right to convict the Accused/Appellant to 14 years imprisonment on the strength of the evidence adduced by the witness as well as confession of the Accused/Appellant.
c. Whether the defence of accident or provocation avails the Accused/Appellant having regards to the totality of evidence before the Court.

After a careful perusal of the Notice of Appeal, the record of appeal and the Briefs of counsel on both sides which were adopted at the hearing of the appeal on the 23rd January, 2020. The issues formulated by both sides are very similar; I am inclined to adopt the issues donated by the Appellant for determination in this appeal. In doing that all the areas of complaint in the Appellant’s Brief shall be fully addressed and I shall determine them seamlessly because they are related and revolve around evaluation of evidence.

APPELLANTS SUBMISSIONS:
ISSUE ONE
Submitting on the first issue, the Appellant stated that the trial judge relied on the evidence of PW1 and rejected the contention of the appellant that there were material contradictions in the evidence of PW1.

Continuing, the appellant stated that the conclusion reached on the contradiction in the evidence of PW1 is not borne out by the record. He submitted that PW1 in his evidence in chief stated that he witnessed the incident that occurred on 10th day of December, 2016 and quoted from the oral testimony of the witness at page 85 of the record. The Appellant went further to highlight the alleged contradiction during cross examination of the said PW1 at page 88 of the record.

Furthermore, learned counsel for the appellant submitted that the issue as to whether the Appellant actually stabbed the victim PW2 is one that goes to the root and the substance of the charge. He submitted that PW2 stated in examination in chief that he heard some dragging between the appellant and PW2 but that the chair blocked him. Furthermore, the lack of electricity did not allow him to see whathad transpired between the appellant and PW2. That he saw the incident that happened and a result of the dragging PW2 sustained injury on his stomach. The appellant cited the case of GOLDEN DIBIE &Ors vs. STATE (2007) LPELR-941(SC) or [(2007) 9 NWLR (Pt. 1038) 30 where the Supreme Court held that it is necessary to say that for a contradiction to be regarded as material, it must go to the root of the charge before the Court.

Submitting further, the Appellant argued that the material contradiction in evidence of PW1 was never explained by the prosecution through any of its witnesses as required by law, the Appellant referred to page 127 of the record. And that the trial Court agreed with the prosecution and gave no reason for holding that the contradiction is not material in nature and did not go to the root of the matter. The Appellant cited AKPAN vs. ATTA (2012) LPELR-7912(CA).

Appellant argued that the findings that PW2 was wounded on the day of the incident by the learned trial judge is not coterminous with the prosecution having established that the Appellant stabbed PW2 with the intention to murder him. The duty of the Judge is not toexplain the bridge yawning gap between the parties, the Appellant went further to cite the case of AYENI vs. PEOPLE OF LAGOS STATE (2016) LPELR 41440(CA).

The Appellant urged the Court to hold that the contradiction in the evidence of PW1 is material, goes to the root of the prosecution’s case and the testimony of PW1 ought to have been totally discountenanced by the lower Court. Appellant contended that the evidence of PW1 is no doubt false and unreliable, referred to the case of FELIX ANYAKORA & ORS VS. NWAFOR OBIOKOR & ORS. (1989) LPELR-20125 (CA).

ISSUE TWO
The Appellant on to issue two argued that the trial Court set out the part of confessional statement of the accused (Exhibit A) relied upon to reject the Appellant’s testimony in Court that he did not stab PW2 and that PW2 was wounded during the fight between both of them, he referred to pages 29 & 159 of the record of appeal. He contended that the trial Court set out part of Exhibit A stated as follows:
“It is evident that the accused admitted in Exhibit A that the stabbing affected the PW2 on the stomach and on the arm the inference from this is thatthe accused person stabbed PW2.”

Counsel submitted that the learned trial judge placed emphasis on the part of the appellant statement that indicted him, while ignoring another part of the statement exculpatory of the Appellant. He submitted that the appellant in Exhibit A also said:
”Before I knew it, he came to fight me on the bed, collected the phone from me. I was so angry. I went outside and broke bottle, came in to scare him. I was even telling him that I don’t like what he is trying to do, before I knew it he was struggling the broken bottle with me, when he was struggling, the broken bottle punctured his stomach. I did everything out of provocation and I am very sorry for all my actions. The stabbing affected him on the stomach and on the arm. Eno Philip was present when the incident took place.”

Appellant went further to submit that this same statement of the accused person in Exhibit A is buoyed by the fact that PW1 during cross examination stated as follows; “It is true I saw that Iniabasi sustained the injury on his stomach as a result of the dragging between the Accused person and Iniabasi were dragging on the day of the incident, but I told the police that both of them were fighting (page 88 of the record).”

Appellant on PW3, the Investigating Police Officer (IPO) evidence at page 92-93 of the record stated that he was informed by PW1 that there was dragging between PW2 and the Appellant and in that process the PW2 sustained injury on his stomach. He went further to say that “yes, I saw the actual spot where both of them fought. It was inside the room”.

The Appellant argued further that it is clear on record and as made out by the prosecution witnesses, PW1 & PW3; and considering the totality of Exhibit A and not just a portion extracted by the trial judge at page 131-132 of the record that the broken bottled did not only puncture the PW2’s stomach during struggle but with an intention to kill; he said that statement is not borne by the printed record. He argued that it is pertinent to state that there is nowhere in Exhibit A where the Appellant said unequivocally that he stabbed PW2 with broken bottle twice in the stomach and twice on his arm. Appellant argued that it is difficult to agree with the learned trial Judge at page 132 of the record that Exhibit A qualifies as a confessional statement which is voluntary, direct, positive and unequivocal admission of the guilt by the Appellant.

The Appellant went further to submits that the testimony of PW2 that the accused stabbed him and there was no fight between him and the Appellant. He submitted that PW1 and one Eno-obong who was not called by the prosecution saw when the Appellant stabbed him was contradictory as PW1 stated under cross examination that he was unable to see what transpired making the evidence contradictory and irreconcilable. The appellant cited the case of MAJOR HAMZA AL-MUSTAPHA vs. THE STATE (2013) LPELR-20995(CA) where the Court held that where evidence of witnesses is contradictory of each other, it is the duty of the Judge to discountenance same and treat the entire evidence as unreliable. Relied on C.O.P VS. AMUTA (2017) LPELR-41386(SC) and ONUBOGU VS. STATE (1974) 9 SC 1.

Appellant also referred to the evidence of PW4 the medical doctor in Exhibit E (page 151 of the record) where he stated that the patient came in at about 1am with complaint of bottle stab injury to the left abdomen and examination revealed penetrating wound to the same site and at surgery they discovered perforated stomach and small intestine due to the injury which were repaired.

The Appellant stated that Exhibit E (statement of PW4) stated that PW2 was stabbed on the arm and shoulder contrary to what PW2 and PW1 said in Court (page 90 of the record) and during cross examination (page 96-98 of the record) he stated that the team was unable to know what happened because it did not mention that PW2 was stabbed. PW4 was not sure of the magnitude of the wound, because PW2 could have fallen on broken bottle (page 98 of the record). And furthermore, considering the totality of the evidence and Exhibit A, it is not accurate to state that the Appellant admitted guilt. Neither could a safe conclusion be reached that the Appellant admitted guilt to the crime of grievous bodily harm, in view of the absence of means rea.

The Appellant went further to argue that the ingredients of the offence for which the appellant has been charged has not been established by the prosecution considering the nature of the prosecution witnesses, citing the case of AKINOSI VS. STATE(2017) LPELR-42384(CA).

The appellant in arguing further submits that the learned trial Judge in its findings ignored a vital piece of evidence on record, failed to apply the applicable principle of law in relation to intention and thereby occasioned a miscarriage of justice. That the intention of the Appellant can be gleaned from Exhibit A where the Appellant said the following “I was so angry I went outside to break bottle, came in trying to scare him.”

The Appellant counsel argued that the above piece of evidence shows lack of means rea to commit murder also went further to quote (page 90-91 of the record) where the PW2 (the victim) a 300 level student stated thus “He became my roommate in my first year in the university. Before the incident of 10th December, 2016, I did not have any problem with the Accused person. Even on the day of the incident, both of us were together, ate together and went out together.”

That Appellant in his cross examination was emphatic that there was no premeditated action on his part, referred to page 111 of the record which states: “I did not stab the PW2. He was injured by the broken bottle. It is therefore not true that the act was premeditated. The PW1 and Eno-obong were in the when I and PW2 fought……”

The Appellant’s counsel submitted that the last sentence of EXHIBIT A was isolated and heavily relied upon by the learned trial judge while ignoring exculpatory parts of the appellant evidence and it has occasioned miscarriage of justice. The law on this point is that the facts for and against an accused contained in his confessional statement must be considered together, citing USMAN SALIHI LAWAN vs. STATE (2014) LPELR-23647(CA) and MADAKI vs. STATE (1996)2 NWLR (Pt.429)171.

ISSUE THREE
The Appellant urge the Court to adopt the arguments canvass under issue two in support of issue three herein. In addition, the Appellant argued that the refusal by the prosecution to call one Eno-obong as a material witness in this matter was fatal. The appellant submitted that Eno-obong was a material witness who can clear the lingering doubt in the evidence of PW1 and PW2 as to who stabbed PW2 and who witnessed same. The appellant cited the case of AYENI VS. PEOPLE OF LAGOS STATE (2016) LPELR-41440(CA).

He further submitted that Eno-obong was never formally invited, he cited STATE VS. USIFOH (1974)1 NMLR 72 @ 75.

The Appellant urge the Court to allow this appeal as meritorious and set aside the judgment of the lower Court and discharge and acquit the Appellant.

RESPONDENT’ SUBMISSION:
ISSUES 1 AND 2
The Respondent argued issue one and two together and went further to cite Section 327(a) of the Criminal Code, Cap. 38 Vol. 2 Laws of Akwa Ibom state, 2000 which provide for the offence of attempted murder which the Appellant was charged before the Court below. He referred to the definition of attempted murder under Section 327(a) and attempt was defined in Section 4 of the Criminal Code of Akwa Ibom State, also the case of JEGEDE VS. STATE (2001) 14 NWLR Pt. 733) 264. The Respondent stated that the ingredients needed by the prosecution to prove the inchoate crime of attempted murder are:
1. A physical act by the offender sufficiently proximate to the complete offence and
2. An intention on the part of the offender to commit the complete offence.

The burden was discharged by the prosecution through its witnesses PW1,PW2, PW3 and EXHIBIT A, D and E. The Respondent stated that they were able to prove the following:
(a) That the Accused/Appellant on the 10th December, 2016 after dragging with PW2 over PW1’s phone, he went out of the house and broke bottle.
(b) That the Appellant later came back to the house with the broken bottle
(c) That the Appellant stabbed PW2 on his stomach and as PW2 was trying to block him the Appellant stabbed him on his arm and shoulder and then ran away from the house.
(d) That the act by the Appellant stabbed PW2 on his stomach two times with a broken bottle.
(e) That the prosecution established the second ingredient of the offence of attempted murder which is the intention on the part of the Appellant to complete offence by leading evidence to show.
(i)The lethal weapon (broken bottle) used by the Appellant to stab PW2
(ii) The part of the body brutalized (stomach) by the lethal weapon
(iii) The extent of proximity of the victim (PW2) with the lethal weapon used by the appellant.
Respondent cited the case of IDEN VS. STATE (1994)8 NWLR (Pt.365)719 and IHIJASU VS. STATE (2014)15 NWLR (Pt. 1430) 245 at 271The Respondent’s counsel submitted that the confessional statement of the accused Exhibit A was written by the Appellant himself and was tendered without any objection. That pursuant to the combined effect of Section 28 and 29 of the Evidence Act 2011 the lower Court was right to convict the Appellant. He cited OMOJU vs. FRN (2008) 11 M.J.S.C 156 @ 159-161; BRIGHT VS. THE STATE (2012) 8 NWLR (Pt. 1302) and EGBOGHONOME VS. STATE (1993) 7 NWLR (Pt. 306) 383.

He submitted that it is trite law that a Court can convict an accused person on the basis of his confessional statement alone, cited the case of NTAHA VS. THE STATE (1972) 4 S.C 1.

The Respondent further argued that a careful examination of the confessional statement of the accused person (Exhibit A) which is consistent with the evidence of PW1, PW2 and PW4 as rightly considered by the lower Court at page 133-135 of the record of appeal. The confessional statement was consistent The Respondent further argued that there is no contradiction in the evidence of PW1 as raised by the Appellant and that the answer given by PW1 that there was no light in the room did not imply that the room was in total darkness as the appellant during cross examination clarified by saying that:
“……there was no light from power holding in the room at the time of the incident. The only source of light in the room was from the laptop own by PW2 (page 110 of the record).”

Respondent’s counsel submitted that PW2 corroborated the above piece of evidence, when he stated (page 91 of the record):
“……the only light in the room at the time of the incident was the light from laptop in the room.”

Respondent contended that the contradiction in PW1 evidence is not material and substantial as to affects the crux of fundamental issue to be determined. Respondent submitted that not every contradiction will vitiate the conviction and if there are minor contradictions, they do not go to the root of the case. Relied on the case of SHURUMO vs. STATE (2010)16 NWLR (1218)65 @81.

He submitted that the trial Court did not in any anyway try to augment the case of the prosecution because the prosecution has proven its case beyond reasonable doubt. And that given the nature of the weapon used, a broken bottle which is a lethal weapon, the part of the body wounded, the stomach which the appellant stabbed twice and which affected his small intestine, the severity of the injury as can be gleaned from the evidence of PW4 and Exhibit A, the appellant intended to either kill PW2 or cause grievous bodily harm.

The Respondent submitted that the Appellant’s intention was not to scare PW2 but to execute his premeditated act of killing PW2 therefore it was not an accident. He submitted that intention is measured by the effect or proportion of the act as held in the case of HENRY NWOKEARU VS. THE STATE (2013) VOL. 54 NSCQLR 398 and TUNDE ADAVA & ANOR. VS. THE STATE (2008) VOL. 25 NSCQLR 604 where the apex Court defined criminal intention. He contended that during the struggle the victim was not armed. He referred to the surrounding facts as evaluated by the trial Court to submit that the ingredients of the offence were proved.

He agreed with the Court below that there was overwhelming evidence to find the Appellant guilty

ISSUE THREE
The Respondent further submitted that the defense of provocation or accident cannot avail the appellant regard being had to the totality of the evidence before the Court. He submitted that for provocation to avail a person accused, the following must be proved, these are:
a. In the heat of a passion
b. The act must have been committed before there was time for passion to cool
c. The mode of resentment must be pronounced to the provocation offered.

The Respondent submitted that the elements must all be proved for the defence to avail an accused. He observed that there was no evidence to warrant the defence. He referred to the findings of the Court below that the appellant did not act on the spur of the moment and had time for his passion to cool off, more so he was not armed when the struggle started but had time to go and break the bottle.

He submitted that an act is said to be an accidental when the act by which it is caused is not done with intention of causing it. Referred to the case of AYO vs. THE STATE (2008) 6 ACLR P.220 @ 229. He referred to Pag39 on 138-1f the record which shows that the accused person was struggling with PW2 over a phone, went outside broke bottle came back to the room to engage in another struggle with PW2who was not armed with anything. He submitted that there was premeditation. He relied on NWEKWEHINGA VS. THE STATE (2005) 4 ACLR 3 to argue that the defence of provocation will not avail an accused person because premeditation is not compatible with the defence of provocation, relied on the case of AYO vs. THE STATE (2008) 6 ACLR 229 and submitted that the accused person has not adduced evidence in support of his defence of provocation and the court can only rely on the evidence before it. Respondent’s counsel questioned the motive or intention of the appellant going out to break the bottle before coming back to use it on the victim. He rejected the claim that the Appellant merely wanted to scare PW2. He relied on OGUHOR VS. THE STATE (1990) 3 NWLR (Pt. 139) 404 on the principle that a man intends the natural consequences of his actions.

The Respondent further submitted that the appellant who appended his signature on EXHIBIT C, the confessional statement form which is a confirmation of his statement to grievous harm, that it is not within the appellant power to dictate or suggest the offence with which the accused should be charged, citing AKALONU vs. STATE (2005) 4 LRCN 123 and OKOSI VS. THE STATE (1989) 1 ACLR 282. On the failure to call Eno-obong, Respondent submitted that it is not fatal to the case of the prosecution as the choice of witnesses is at the discretion of the prosecution and that discretion is unfettered OLAYINKA VS. STATE (2007) 4 SC (PT. 1 ) 201 @ 219.

The Respondent submitted that it is in evidence that the Appellant spoke to Eno-obong in Yoruba before he went out to break the bottle to use on the victim and knowing that PW1 and PW2 do not understand the language. He contended that intention is clear and established by the evidence.

In conclusion, the Respondent urged the Court to dismiss the appeal on all grounds and uphold the conviction of the appellant.

APPELLANT’S REPLY ON POINTS OF LAW
In reply the Appellant on the issue of contradiction relied on AGBO VS. THE STATE (2006) LPELR-242 (SC) that a contradiction must be material. Learned counsel to the Appellant reviewed the evidence of all prosecution witnesses and said the contradictions were material enough to defeat the charge and relied on THE STATE VS. EMMANUEL GBAHABO & ORS. (2019) LPELR- 48117(SC).

He submitted that parties are bound by the record of Court and therefore the Respondent’s contention that Pw4 said he was told that he was stabbed with a broken bottle is settled. And on the question of intention, the Appellant submitted that speaking Yoruba language cannot mean premeditation or intention to murder PW2 and therefore the Respondent missed the point. Appellant contended that the Respondent missed the mark by formulating issues when he did not file any grounds of appeal and relied on OKOLONJI VS. MBANEFO & ANOR. (2017) LPELR-41887(CA). On the requirement that a confessional statement must unequivocally admit the charge, Appellant relied on the ape court’s decision in MAJOR BELLO VS. THE NIGERIAN ARMY (2008) LPELR-1814(SC) where the apex Court held that a confessional statement unequivocally confesses to the commission of the offence charged.
The Appellant finally urged the Court to allow the appeal.

RESOLUTION OF THE APPEAL:
The Appellant was arraigned before the Court below for the offence attempted murder contrary to Section 327(a) of the Criminal Code of Akwa Ibom State. The prosecution called a total of 5 witnesses and tendered 4 Exhibits A, B, C, D & E, these are:
i. Exhibit A – statement of the accused
ii. Exhibit B – additional statement of the accused person
iii. Exhibit C – Confessional statement
iv. Exhibit D – Police Report
v. Exhibit D – Medical Report.

The Appellant testified as DW1 and did not call any other witness and did not tender any Exhibit.

The contention in this appeal is that the offence was not proved as required by law. It is trite that the burden of proof in criminal matters is constant on the Respondent and the standard is proof beyond reasonable doubt; see the case of NWEZE VS. THE STATE (2017) LPELR-42344(SC) which held:
“Section 135 (2) of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See: Alabi vs. The State (1993) 7 NWLR (Pt. 307) 511 at 531 Paras A-C; Solola vs. The State(2005) 5 SC (Pt. 1) 135.” Per GALINJE, J. S. C.”

The Respondent can do that by presenting evidence to prove every ingredient of the offence and in this case, it is attempted murder. The ingredients of attempted murder were given in the case of OGUNWALE VS. STATE (2013) LPELR- 20281(CA) thus:
“To start with, the Appellant was charged with the offence of attempted murder contrary to Section 320 of the Criminal Code, which provides that – “Any person who – (1) Attempts unlawfully to kill another; or (2) With intent unlawfully to kill another does an act, or omits to do any act which it is his duty to do such act or omission being of such a nature as to be likely to endanger human life is guilty of a felony, and is liable to imprisonment. To ground a conviction, the Prosecution must prove or establish the following – (a) An intention to kill, and (b) Physical act by the accused to commit the complete offence.” Per AUGIE ,J.S.C.

The apex Court described what an attempt to commit a crime is in the case of JEGEDE VS. STATE (2001)14 NWLR (Pt. 733) 264 at 282 in following way:
“To constitute an attempt the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence.”

From above, there are two ingredients required by law to be proved by the Respondent for the offence of attempted murder, these are:
a. A physical act by the offender sufficiently proximate to the complete offence; and
b. An intention on the part of the offender to commit the complete offence.

The trial Court found that the Respondent proved its case against the Appellant and thus the appeal, the Appellant challenged the judgment under three issues. In arguing the 3 issues, Appellant argued issues one and two together. I will resolve them in that order.

The starting point is the contention that the case presented by the Respondent was full of contradictions; the word contradiction was defined in the case of WACHUKWU & ANOR. VS. OWUNWANNE & ANOR. (2011) LPELR-3466(SC) as follows:
“This Court, in the case of Ogidi vs. State (2003) 9 NWLR (Pt.824) 1 at pp. 23 – 24 H – A, defined the word contradiction in relation to evidence placed before a court as follows: “The word ‘Contradiction’ is a simple English word. It derives from two Latin words: ‘Contra’ and ‘Deco- ere-dixi-dictum,’ meaning, ‘to say the opposite’, hence, ‘contradictum’ A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short or, contains a little more than what another piece of evidence says or contains; some minor differences in detail.” Per MUHAMMAD, J.S.C
The Appellant submitted that the evidence of PW1 and PW2 are contradictory principally on the issue of who actually stabbed the victim because PW1 said the room was dark, there was no light and the injury was as a result of a dragging between the two. Furthermore, he argued that PW1 somersaulted under cross-examination when he said he heard some dragging between the two and a chair blocked him and the room was dark. Appellant submitted that the contradiction is material. The law is trite that where there are contradictions in the evidence of prosecution witnesses on a material fact, and the said contradiction is not explained; such contradiction will defeat the charge. The apex Court in the case of MUSA VS. STATE (2009) LPELR-1930(SC) held thus:
“What amounts to material contradiction depends on the circumstance of each case. They are contradictions or inconsistencies in the evidence of the witnesses for the prosecution which are substantial and fundamental to the main issues before the Court and therefore necessarily create some doubt in the mind of the trial Court that an accused is entitled to the benefit there from. Where there are contradictions in the testimonies of the prosecution witnesses on a material fact and the contradictions are not explained by the prosecution through any of the witnesses, the trial Court must not be left to speculate or proffer explanation for such contradictions, so that it will only find itself in a position where it will pick and choose from the evidence of the prosecution which it will believe. Contradictions in the testimony of witness are inevitable but what the law frowns at is material contradictions as they are fatal to the case of the prosecution. Per ADEKEYE, J.S.C.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The trial judge on the alleged contradictions found no material contradictions and even the immaterial contradictions were explained were by other pieces of evidence. Fundamentally, the issue is as to who stabbed PW2. PW1 gave eye witness account of what transpired, PW2 also corroborated what PW1 said. It is in evidence that PW1 said the appellant and PW2 struggled and there was no light in the room. The struggle was before the appellant went out and came back with the broken bottle but the same PW1 also under cross examination told the Court that the only source of light in the room was from the laptop owned by PW2. Therefore the room was not in total darkness and this was also reinforced by PW2. The question to answer is whether that is a contradiction which is material enough to ensure to the benefit of the Appellant. The contradiction that can vitiate a charge is material contradiction which also goes to the root of the charge. The Courts have consistently said it is not every inconsistency or contradiction that will vitiate a decision, see SHURUMO VS. STATE (2010) 16 NWLR (Pt. 1218) 65 at 81. Material contradiction is the one that affect the crux of the charge in a fundamental way. The argument of the Appellant is that there was a doubt as to who stabbed PW2 because the only eye witness said there was no light from electricity in the room. However, it was also made out clearly that there was light from a computer.
The law is now settled that there are 3 ways of proving a crime in our criminal jurisprudence; see the case of ANYASODOR VS. STATE (2018) LPELR-43720(SC) where SANUSI, JSC said as follows:
“This Court in a plethora of its decided authorities had approved or endorsed three methods or modes of proof in criminal cases which include the followings: – (a) Evidence of eye witness or witnesses account who had witnessed the commission of the offence(s) by the accused person charged. (b) Through confessional statement of the accused made voluntarily by the accused wherein he categorically owned up the commission of the offence by him. (c) Through circumstantial evidence. See also EMEKA VS. STATE (2001) 6 SC 227 OR (2001) 14 NWLR (PT.734) 666; OHUNYON VS. STATE (1996) 3 NWLR (PT.436) 264; BRIGHT CHIBUIKE & ANOR VS. THE STATE (2010) LPELR – 3911; IGRI V. THE STATE (2010) 7 WRN 47; OGBA VS. STATE(1992) 2 MLR (PT.222) 146.”
Therefore, the prosecution can adopt or use any of the methods or a combination of the methods in proving a charge. Here, the victim, survived the attack and he told the Court who stabbed him and even if the evidence of PW1 is discountenanced, there will be evidence before on who stabbed PW2. The Appellant admitted he stabbed PW2 in his confessional statement – Exhibit A, which he wrote himself. He retracted the statement and in his evidence in chief he said PW2 fell onto the broken bottle that had fallen down when they were struggling, meanwhile, the evidence before the Court was that they struggled before the appellant went out to break the bottle. It is clear therefore that there was no struggle between them when he came back with the broken bottle and the contention that PW2 fell on the broken bottle cannot stand. There is therefore enough evidence to pin the appellant to the act of stabbing, this is reinforced by the confessional statement admitted without any objection, therein the Appellant said:
“I told him that I wanted to use agueno’s phone and I was so angry I went out to the bed and started operation it before I knew he came to fight me on the bed, collected the phone from me. I was so angry I went outside to break bottle came in trying to scare him, I was even telling him that I don’t like what he is trying to do before I knew it he was struggling the broken bottle with me, when he was struggling the broken bottle punctured his stomach. I did everything out of provocation and am very sorry for all my actions.”
It was established by the Appellant under cross examination that Agueno is the same as PW1. It is therefore undeniable that the Appellant admitted he stabbed PW2, the contradiction if any and I find it does not exist. There is nothing to affect the evidence that the appellant stabbed PW2.
It is obvious that the alleged contradiction is not material enough to vitiate the charge in view of the overwhelming evidence on who stabbed PW2. I also agree with the trial judge in her findings that the alleged inconsistency does not go to the root of the Charge.

The Appellant also challenged Exhibit A, the confessional statement made by the Appellant in his own handwriting and admitted without objection. It is settled that the time to object to the confessional statement is when it is sought to be admitted in evidence, see ISA VS. STATE (2016) 40011(SC) which held thus:
“If an accused person does not object when his confessional statement is being tendered, the only reasonable conclusion is that it was made voluntarily. See Bello Shurumo vs. the State (2010) 19 NWLR (Pt. 1226) 73 wherein it was held that the failure to object the two confessional statements when they were tendered and admitted as exhibits was held as conclusive evidence that they were both made voluntarily. This is more so when a counsel stands by and allows exhibits to sail smoothly through without any objection.” Per OGUNBIYI, J.S.C. Failure to object at the point the statement was being tendered into evidence means the piece of evidence is properly before the Court and shall form part of the entire evidence to be evaluated by the trial judge in arriving at a decision. The confessional statement was duly before the trial Court. When such happens, the Court can on a tested confessional alone convict a person accused, see FRN VS. IWEKA (2011) LPELR-9350 which said thus:
“On the issue of corroboration, a Court can convict on a confessional statement alone without corroboration once it is satisfied of the truth of the confession. See Achaba v. The State (1996) 3 NWLR (Pt. 438) 530 at 533. The u-turn made by the Respondent is of no avail. See Eghoghonome vs. State (1993) 7 NWLR (Pt. 367) 373. Once the trial Court is satisfied, as the trial Court was in this case, that the statement is free, voluntarily made, unambiguous, true, direct and positive with reference to the offence charged, it can convict on it. See Dawa& Anor vs. State (1980) 8-11 SC 236 at 267; Jimoh Yesufu vs. State (1976) 6 SC 167 at 173.”

The situation is the same when the confessional statement is retracted, the law enjoins the Court to test the confessional statement before it can use same, the test is a set of questions which must be answered in the affirmative, see OSENI Vs. STATE (2012) 5 NWLR (Pt. 1293) 351 at 351 and they are:
i. Is there anything outside the confession to show that it is true?
ii. Is it corroborated?
iii. Are there relevant statements made in it of facts as far as they can be tested.
iv. Was the prisoner one who had the opportunity of committing the offence alleged
v. Is the confession possible
vi. Is it consistent with other facts which has been ascertained and have been proved?
See also ONYENYE VS. STATE (2012) 15 NWLR (Pt. 1324) 586 at 619; RABIU VS. STATE (2005) 7 NWLR (Pt. 925) 491 at 514 and ADELEKE VS. STATE (2014) ALL FWLR (Pt. 722) 1652 at 1677.

The Court below dutifully at pages 132-133 of the record listed and answered the question positively and proceeded to rely on it in arriving at a decision. The confessional statement was therefore proved and rightly used in finding the Appellant guilty. The appellant argued that Exhibit C defeats the confessional statement, far from it, the confessional statement was confirmed in the presence of a superior Police officer as confirmed by Exhibit C, it does not affect Exhibit A but supports and verifies it, one of the facts outside the confessional statement that reinforces it.

The other challenge in the appeal is the submission that intention to cause bodily harm or to commit murder is lacking. It is trite and as known in our criminal jurisprudence that a person intends the consequence of his voluntary act. Intention can be inferred from the circumstantial facts surrounding the offence and how it was committed. Issues like the instrument used and part of the body inflicted with the weapon of offence. Generally, the law imputes to a person who willfully commits a criminal act an intention to do the very thing which is punishable consequence of the act and which constitutes the offence. The apex Court defined intention in the case of HENRY NWOKEARU VS. THE STATE (2013) VOL. 54 NSCQLR 398 as follows:
“Intention is the purpose or design with which an act is performed. It is the fore knowledge of the act coupled with the desire to do the act. The desire and foreknowledge and desire form the cause of the act in so far as they fulfill themselves through the operation of the will. An act is intentional if, and in so far as it exists in idea before it exist in the realm of facts, the idea realizing itself in the fact because of the desire by which it is accompanied.”
In this case, the Appellant went outside to break a bottle, came back and went straight to the victim, naturally there was a resistance but the Appellant stabbed the victim in the stomach not once but twice and also twice on the arm. The Appellant submitted that his intention was to scare PW2 with the broken bottle. The fact that the Appellant said he did not intend to cause harm, the Court will have to access/evaluate that along other pieces of evidence before the Court. The question is whether a reasonable man would accept such a pedestrian explanation. Why was the bottle first broken merely to scare? Must one scare with a dangerous weapon? The Appellant forgot he told the Court he went outside to break the bottle. So when the trial Court said: “I think it was to either to kill or cause grievous harm to PW” it cannot mean importing new facts. The Court merely inferred from the circumstances of the case before it to draw a conclusion. Circumstantial evidence is one method of proving an offence and the Court infers from the facts before it. It was described by GARBA, JCA IN EYOP VS. STATE (2012) LPELR-20210(CA) as follows:
“Circumstantial evidence is simply put, evidence of surrounding circumstances which by undersigned coincidence, is capable of proving a proposition with certain degree of accuracy. For the purposes of a Criminal trial, circumstantial evidence is evidence of the circumstances surrounding the commission of an offence with which an accused person was charged given by witnesses who are not eye witnesses but which is capable of proving the essential elements of the offence beyond reasonable doubt. There is no fixed yardstick by which any circumstantial evidence can be measured before it can be entered against an accused person charged with an offence for which the circumstantial evidence is the only one available. Each case would depend on its peculiar facts, but for circumstantial evidence to warrant conviction it must be cogent and compelling and there must be no aspect of the case which weakens the inference as to the guilt of the accused person. It must show that the accused person alone had the opportunity of committing the offence and no other had that opportunity. See Ikem vs. State (1981) 1 NWLR, 278 at 386; Ukora vs. State (1977) 4 SC, 167; Atano vs. A-G, Bendel (1988) 2 NWLR, 201; Igabele vs. State (supra).
Given the nature of the weapons used, the parts of the body targeted and the number of times he struck, intention can be can be inferred and rightly so. The contention of the Appellant does not flow with the surrounding facts established before the Court. An explanation that is diametrically opposed to established facts cannot stand. I agree with the trial judge that there was intention to commit an offence and the contention of the Appellant hold no water and is discountenanced.

The ingredients of the offence provided by law and as noted earlier in this judgment requires the Respondent to prove 2 basic ingredients:
i. Prove a physical act by the offender sufficiently proximate to the complete offence.
ii. An intention on the part of the offender to commit the complete offence.

Arising from the findings made earlier, the act is the stabbing with a broken bottle after preparation. Intention clearly seen from the weapon used, area stabbed and intensity. Accident and provocation are two defences raised by the Appellant.

The appellants also submitted other defences available to the appellant were not fully considered. From the record, the trial judge considered the defences that are obvious from the facts before the Court and the evidence presented by the Appellant. From the record of appeal the Court below considered provocation and accident which it found unavailable to the Appellant and it is obvious. Provocation was described in the case of OKO VS. STATE (2017) LPELR-47995(SC) thus:
“Provocation involves the sudden loss of self-control. Therefore, the lack of evidence of physical attack on the appellant, whether or not he was apprehensive of death or grievous bodily harm or the absence of the actual words uttered by the deceased would not be proper considerations in determining whether the appellant was provoked or not. The important consideration is whether from the facts of the case, a reasonable man and indeed the accused person, could have been provoked by the scenario that played out on the fateful day.” Per KEKERE-EKUN, J.S.C.
Provocation will be available to a person when certain conditions are made out; they were set out in OKO VS. STATE (supra) as follows:
“A defence of provocation on the other hand involves the opposite of reasoning. The elements of the defence of provocation are: (a) The act of provocation was done in the heat of passion. (b) The loss of self-control, both actual and reasonable, that is to say, the act was done before there was time for passion to cool. (c) The retaliation was proportionate to the provocation. Provocation arises from an act or series of acts done by the deceased to the accused person, which would cause in a reasonable man, and did in fact caused in the accused person at the material time, a sudden and temporary loss of self control, rendering him so subject to passion as to make him or her for the moment not the master of his mind. See: Akalezi vs. The State (1993) 2 NWLR (Pt. 273) 1, (1993) 2 SCNJ 19; Stephen vs. The State (1986) 5 NWLR (Pt. 46) 978, (1986) 12 SC 450; R vs. Duffy (1949) 1 All ER 932; Oladiran vs. State (1986) 1 NWLR (Pt. 14) 75. Provocation may be verbal or physical or both. What constitutes provocation is a question of fact to be determined based on the circumstances of each case. See: Lado vs. The State (1999) 9 NWLR (Pt. 619) 369 at page 380, paragraph F. The effect of a successful defence of provocation is to reduce a conviction for murder to one of manslaughter.”
These are the conditions: (a) The act of provocation was done in the heat of passion. (b) The loss of self-control, both actual and reasonable, that is to say, the act was done before there was time for passion to cool. (c) The retaliation was proportionate to the provocation. From the evidence before the Court there was no loss of self control because the Appellant was in his sane mind, he spoke to Eno-obong in Yoruba, walked out of the room and had time to break the bottle, came back to the room and stabbed the victim. Would a reasonable man say there was no time to cool off? That is even if there was loss of self control. There was enough time for the passion if any, to cool off. Furthermore, the two stabs on the stomach and 2 on the arms, these were not proportionate because they were merely struggling over a phone, physical struggle with no weapon. PW2 did not have anything in his hands to suggest he wanted to hurt the appellant. When the appellant came back with a broken bottle he met the victim with nothing in his hand. A broken bottle is not in any proportionate to the bare hands of the victim so the magnitude of the attack cannot be justified. Defence of provocation is not available to the Appellant.

Furthermore, the defence of provocation cannot go with self defence as held by NWEZE, JSC in the case of UKPONG VS. STATE (2019) LPELR-4642(SC) thus:
“…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 theoffence 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 vs. State (1976) LPELR-SC. 300/1975; [1976] 6 SC 128; Akang vs. State [1971] 1 All NLR 47, 49; Musa vs. State (2009) LPELR-SC.323/2006; [2009] 15 NWLR (pt 1165) 465; Ada vs. State (2008) LPELR-SC.242/2004; [2008] 13 NWLR (pt1103) 149; [2008] 34 NSCQR 508; Ajunwa vs. The State [1988] 1 SC 110; Laoye vs. 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 vs. State (1991) LPELR-SC.167/1990; [1991] 4 NWLR (pt 186) 399; [1991] 5 SCNJ 129.”
The facts of the case do not raise the defence of self defence and in any case they are mutually exclusive.

Is the defence of accident available? Accident is described in the judgment of IGAGO VS. STATE (1999) LPELR-1442(SC) thus:
“An accident is the result of an unwilled act, and means an event without the fault of the person alleged to have caused it.” See Section 24 of the Criminal Code. It was held in Adelumola vs. The State (1988) 1 NWLR (Pt.73) 683 that for an event to qualify as an accident under Section 24 of the Criminal Code, it must be a surprise to the ordinary man of prudence, that is, a surprise to all sober and reasonable people. The test is always objective. See also AuduUmoru vs. The State (1990) 3 NWLR (Pt.138) 363 at 370.”
Was the act an unwilled act when even the Appellant said he wanted to scare the victim? That statement alone means he acknowledges the act and that he consciously did but the motive was to scare. The issue of intention was resolved earlier. I find that defence of accident does not avail the Appellant.

The Appellant condemned the Investigating Police Report, my simple answer is to say that the report is not part of what the prosecution must prove and once the offence is proved, a deficient police report has nothing to do with the trial Court’s determination of the case. In fact, appellant should focus on defending the charge and leave out the Police inefficiencies. Agreed they play an important role but what they do will ultimately reflect in whether the crime alleged is proved by cogent evidence or not.

Appellant’s counsel also questioned why the Respondent did not call Eno-obong as a witness. It is trite that the Respondent has one duty, to prove the ingredients of the offence beyond reasonable doubt and as long as it can do that, they are not under any obligation to call a particular witness, see TAIYE VS. STATE (2018) LPELR-44466(SC) which held:
“The prosecution is merely needed to call enough material witnesses to prove its case and in doing so it has a discretion in the matter on who to call or who not to call. See Oduneye vs. The State (2001) 13 WRN 88; Agbi vs. Ogbeh (2006)11 NWLR [pt.990) 65; Babuga vs. State (1996)7 NWLR (pt.460) 279. In fact, even a murder case can be established by evidence of only one witness provided his evidence is credible and believed by the trial Court. See Effiong vs. State (1998) 8 NWLR (pt.562) 362.”
The Appellant was at liberty to call the said Eno-obong as defence witness if she had anything useful or beneficial to the Appellant in his defence.

On the whole therefore, the appeal lacks merit and is hereby dismissed. The judgment of the trial Court delivered on the 23rd October, 2017 by Hon. Justice Felicitas J. Ibanga is hereby affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother YARGATA BYENCHIT NIMPAR JCA.
I agree with the reasoning end conclusion reached in the Judgment.
In particular, I agree with the lead judgment that as a matter of law, an accused person could not at the same time raise the defence of provocation and self-defence
The defence of provocation and self-defence are mutually exclusive as one cannot be defending oneself on reasonable apprehension of death or grievous bodily harm and at the same time loosing self-control in the heat of sudden provocation.

I agree with the lead judgment that the learned trial judge rightly convicted the Appellant as charged. For the above reason and the fuller reasons contained in the lead judgment, I also find no merit in the appeal which is accordingly dismissed.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I was afforded with the opportunity of previewing the judgment just delivered by my learned brother, Yargata B. Nimpar, JCA. My noble Lord has eloquently and decisively considered all the issues canvassed in this appeal. entirely agree that the appeal is mori-bound and should be dismissed, I too dismiss the appeal and affirm the judgment of the lower Court.

Appearances:

ABDUL- AZIZ JIMOH, ESQ.For Appellant(s)

EMMANUEL M. UBENGAMAH, ESQ.For Respondent(s)