Uche Nwodo V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Appellant, an apprentice, and his Master, Emeka Mba, were arraigned before an Anambra State High Court and charged with murder of Emeka Nnadozie [deceased]. The Appellant allegedly hit the deceased on the head with a “cement baluster while the deceased was fighting with his Master over a debt of N4, 000.00.

After a trial in which the Prosecution called three Witnesses, and the Defendants testified in their own defence, the trial Court found the Appellant’s Master, who was first Defendant, not guilty and discharged and acquitted him. But the Appellant was found guilty as charged, and he was convicted and sentenced to death.

The Appellant’s Appeal to Court of Appeal was dismissed. He appealed to this Court with a Notice of Appeal that contains four Grounds of Appeal, and he has formulated two Issues for Determination in his Brief of Argument, which the Respondent adopted in its own Brief of Argument, and the said Issues are:

1. Whether the Prosecution had satisfactorily proved the ingredients of Murder as to make it safe for the Court to convict the Appellant as charged

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Alternatively, whether from the oral and documentary evidence adduced by both Parties, the Appellant is not entitled to the defence of provocationAs the Parties rightly submitted, the Prosecution must prove the three elements of the offence beyond reasonable doubt, that is: that the deceased died; that the death of the deceased was caused by the Accused; and that the Accused intended to either kill or cause the deceased grievous bodily harm. See Adava V. State (2006) 9 NWLR (Pt. 984) 152, cited by the Appellant, and Omotayo V. State (2013) 2 NWLR (Pt. 1338) 235 and Tegwonor V. State (2008) 1 NWLR (Pt. 1069) 630, cited by the Respondent.

The said three elements of the offence must co-exist at the same time, if not, the Accused is entitled to be acquitted of the offence – see Asuquo V. State (2016) 14 NWLR (Pt. 1532) 309. In this case, that the deceased died is not in doubt; the hanging question is whether it was the Appellant that caused his death.The evidence adduced by the Prosecution through its PW1, Chukwudi Okonkwo, is that the Appellant’s Master was fighting with the deceased, when the

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Appellant came into the compound, and picked up a stick/club, which he used to flog the deceased. When the first stick broke, the Appellant got another stick to use, and when that broke, the Appellant picked up a cement baluster and hit the deceased, and the deceased “slumped immediately”.

PW1 left to report the incident to their landlord, and when he got back with the landlord, they were told that the Defendants had taken the deceased to the first Hospital. They went there and were able to see the Doctor after the initial refusal. He then said:

When the Doctor came out, I introduced ourselves to him that I am the deceased’s friend while the other person is his landlord – Doctor- – allowed us in. We went in and saw the deceased lying on the bed. The Doctor asked us what happened to him, we narrated the incident to him. The Doctor told us that the people that brought him to the Hospital did not tell him the truth but instead they said he got drunk and fell inside the pit so they brought him out and brought him to the Hospital. The Doctor insisted that they must take him away because they did not tell the truth.

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Under Cross-examination by Defence Counsel, PW1 explained –

The Deceased did not die on 9/10/08 [when the incident occurred] I was not present at the Hospital so I did not know the exact day he died. I am aware that he was taken to 3 Hospitals before his death.

The Appellant’s Statements to the Police [Exhibits B2-B3] and the said cement baluster [Exhibit B4], were tendered in evidence through one Evaristus Nwakonobi, PW3, an Inspector of Police.

In Exhibit B2 dated 17/10/2008, the Appellant stated as follows:

My Master insisted that the deceased must pay him back his money otherwise he was not going to allow him to go. Both of them started fighting. I then picked up a piece of concrete cement on the ground and said if they do not stop fighting, I will hit it on them. I was told by my Master that I should drop that piece of concrete cement on the ground but that I should not allow him to run away until he was able to pay him his money. I then picked up a stick on the ground and threatened that I was going to use [it] on them. While the fighting was going on, I used the stick and started flogging both of them on their hands to force them to stop the fight.

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After I had separated them, my Master then ordered me to search for his handset, while I was doing that, the deceased went back and held my Master on his shirt and gave him head bitt (sic) on his mouth, he fell down. I then used the stick on the ground and flogged the deceased on his back. When my Master stood up from the ground, he went and slapped the deceased and the deceased slapped him back at his chick (sic). I cannot recall the first Hospital we took the deceased to, but I do know that the second Hospital we took him to was Boromeni (sic) Hospital, Onitsha. I can still say that it was in that first Hospital we took the deceased to that he hit his head on the step of the staircase. I did not used (sic) any block and hit it on the head of the deceased – – – I left (sic) up the concret (sic) pillar but I did not hit it on the head of the deceased because my Master told me that I should drop it on the ground. I lefted (up) the concret pillar so as to create fear on both of them who were fighting.

In Exhibit B3 dated 27/10/2008, the Appellant further stated-

I never at any time hit the deceased Emeka Nnadozi any stick on his head on the day

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of the incident – – The stick I picked on the ground is the one I used in flogging both [of them] – – I was present when the deceased fell on the ground, I cannot exactly tell why the deceased fell on the ground when I was separating them.

The Appellant, as DW2, said he joined the others to separate his Master and deceased, and when they refused to leave each other, he picked up a stone by the side, and “used it to ginger them”.

When he was shown Exhibit B4, the cement baluster, he said-

This is not the stone I used to scare them away. I did not see Exhibit B4. When I scared them with stone and they refused to separate, I dropped the stone. I collected a stick from the flower and used [it] to hit them on the hands so they separated. The deceased, after their separation, starting longing (sic) abuse on Emeka Mba. After that he went and (sic) down beside the flower and started vomiting. As he was vomiting, Chukwudi [PW1] now entered his car and drove away. We took the deceased to the Hospital Doctor directed us to take him upstairs, we did that. While at the Hospital Chukwudi PW1 now came after the doctor told us to take him away.

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As we were bring (sic) him [deceased] down, he [the deceased] hit himself by hitting his neck on the edge of the staircase.

The Appellant’s contention, as spelt out in his Brief, are as follows:

-The Prosecution failed to prove its case that he had caused the death of the deceased beyond reasonable doubt;

-The Prosecution failed to establish a direct link between his act and the death of the deceased;

– There was a break in the chain of causation of the death of the deceased that raises a reasonable doubt as to the actual cause of the death of the deceased;

– There were material contradictions in the testimonies of the Prosecution Witnesses, used as to the nature and extent of the injury on the deceased; and

– That the Defence of Provocation avails the Appellant.

He argued that the death of the deceased four days after injuries he sustained was not a result of the wound he inflicted on him; that the “possibilities of other intervening factors exist and were not ruled out”, therefore, the Prosecution failed to discharge the burden on it, citing Duru V. State (1993) 3 NWLR (Pt. 281) 283, Kanu V. State (1993) 9 NWLR (Pt. 317)

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304, Audu V. State (2003) 7 NWLR (Pt. 820) 516 and Liman V. State (1976) 7 SC 61.

He also took on the evidence of PW2, the Medical Doctor, Dr. Emeka Agbasi, who conducted the Post Mortem examination, and gave the cause of death as “intra cranial hemorrhage and cerebral contusion resulting from severe head injury”. PW2 said:

Actually, as somebody, who was not at the scene, the most likely thing is that hard blood trauma i.e. a hit on the head can produce such severe injury. Such a hit with a blunt object could be the cause. It is very unlikely that such injuries, I do not believe is self-inflicted.

Under cross-examination by Defence Counsel, PW2 stated thus:

I will not say it is impossible a person may not get the injury from falling from a height. The injury I saw was unilateral and not bilateral injury. At the left side of the head is an injury that can be seen ..

Exhibit A is the Post Mortem Report prepared by PW2, and the Appellant contends that both lower Courts wrongly relied on the evidence of PW2 because Exhibit A did not state with certainty that it was his alleged act that caused the death of the deceased; and

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that PW2 gave two probable conditions that could have led to the injury (i) a hit with a blunt object and (ii) fall from a height.

He also submitted that the Court below erroneously placed an unjustified burden on the defence to prove cause of death by calling medical evidence to show treatments the deceased got, when the Prosecution did not invite the Doctors that treated him; and it is not for the defence to suggest or prove alternative cause of death because the failure to, does not in any way, confirm the Prosecution’s case – Onyenankeya V. State (1964) All NLR 151.

On its part, the Respondent submitted that the Appellant’s contention is misconceived because neither the first Defendant, who testified as DW1, nor Appellant as DW2, gave evidence that the deceased was sick or suffering from one aliment or the other, and none of them said he was drunk or pointed to some other possibilities that could have led to the death of the deceased; that the Court cannot speculate on the alleged possibilities; and it is settled that where the deceased died immediately or almost immediately after the attack on him, it is not difficult to know the cause of

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death, citing Okoro V. State (1988) 5 NWLR (Pt. 94) 255; and that the deceased died four days after the attack on him, and by Section 269 of the Criminal Code Law, a person is deemed to have killed another if death takes place within a year and a day..

It also argued that there was no novus actus interveniens in events leading to the death of the deceased; that the evidence of PW2 corroborated the fact that it was the baluster [Exhibit 41 he hit on the back of the deceased’s head that led to his death, which is in line with PW1’s evidence; that corroborative evidence is evidence tending to confirm, support and strengthen another piece of evidence; and that in considering same, the Court must take the evidence as a whole, and not piece by piece, citing Cpl. Isah Ahmed V. Nigerian Army (2011) 1 NWLR (Pt. 1227) 89.

It further submitted that the Court below rightly applied the provisions of Section 268 of the Criminal Code Law, which says –

When a person does grievous harm to another and such other person has recourse to surgical or medical treatment, and death results either from the injury or the treatment, he is deemed to have killed that

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other person although, the immediate cause of death was the surgical or medical treatment, provided that the treatment was reasonable proper under the circumstance and was done in good faith.

It submitted that the above provision did not impose any burden on the Appellant to establish cause of death; that the Prosecution established the fact that it was injury he inflicted on the deceased that caused his death; that there is nothing on Record showing that the deceased died as a result of mistreatment at any of the Hospitals, rather he died as a result of the severity of the wound the Appellant inflicted on him; and that none of the Defendants had denied that the account given by PW1 was false in any way.

Now, this is an appeal against the concurrent findings of the two lower Courts, which in itself, places the Appellant in a difficult and precarious position, as this Court is usually hesitant and does not make it a practice to disturb concurrent findings of the two lower Courts, unless they are shown to be perverse or that there was substantial error, either in the substantive or procedural law, which if left uncorrected, would lead to a

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miscarriage of justice – see Ben V. The State (2006) 16 NWLR (Pt. 1006) 582 SC.

In this case, the trial Court found as a fact that the Appellant hit the deceased on the head with Exhibit B4. It held as follows:

It is one of the most dangerous weapons that should not be used on the head of a human being. It is significant to note that the fight in issue was between DWI and the deceased, DW2 from nowhere and without any justification whatsoever picked up this Exhibit B4 Baluster and hit the deceased on the head as a result of which he passed out. The evidence of PW3, the I.P.O., reveals that the Baluster was identified by PW1 at the scene of the incident as the sharp instrument used by the DW2 on the deceased. I have examined the accounts of the Defendants in their voluntary statements as in Exhibits E-El, 8432. DWI (sic) in Exhibit E made at the earliest opportunity admitted he picked up a stone to induce fear on DWI and the deceased. I find as a fact that Exhibit B4 is the stone he picked and snuffed away the life of an innocent soul.

As to the issue of medical records, the trial Court concluded that:

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[The] important consideration for determining responsibilities is whether death of the deceased was caused by injuries he sustained through the act of the Defendant and not whether from medical point of view, death was caused by such injuries. If there is abundant evidence of the manner of death, medical evidence can be dispensed with – – Evidence of PW2 the medical doctor, having not been contradicted, is deemed admitted. I disagree with the submission of the defence on issue of medical records in light of the credible evidence of PW1 PW2 and PW3. I have watched the demeanour of the witness, who testified in this case. My view of the 2nd Defendant [the Appellant], while he testified in the witness box is that his claims that Exhibit B4 shown to him was not the particular stone he picked that he hit the deceased on the head are utter falsehood dished out by him in an obvious attempt to wriggle out of his burutality (sic) act – – – The 2nd Defendant [the Appellant] is found guilty.

In affirming the trial Court’s decision, the Court of Appeal held –

The finding of fact that the Appellant’s claim that he did not hit the deceased on the head, is false, that

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PW1 is a witness of truth and that the trial Court is satisfied with the evidence of PW1, PW2 and PW3, is supported by the evidence of PW1 that the Appellant hit the head of the deceased with a stick and concrete baluster, the corroboration of the evidence of PW1 that the Appellant did pick a concrete baluster to hit the deceased, the inconsistencies in the evidence of DW1 and DW2 (highlighted earlier), the unchallenged and uncontradicted evidence of PW2 as to the nature of the injury on the body of the deceased and the cause of death of the deceased. In view of the state of the totality of the evidence adduced by Parties at the trial, I do not agree with the argument of learned counsel for the Appellant that the death of the deceased could not have been caused by the hit on his head with a concrete baluster or stick and could have been caused by the alcohol he took, by his neck hitting the staircase when he fell down while being carried down the stairs at Our Lord’s Glory Hospital (the first Hospital) and his medical treatment in the hospitals he was taken to after the incident. The only medical evidence of the cause of death of the deceased is the evidence

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in examination in chief of PW2, the medical Doctor that did the Post Mortem examination of the deceased.

The evidence, which is consistent, clear and unequivocal states that the cause of death is gross intra cranial haemorrhage and cerebral contusion resulting from severe head injury. This evidence was not contradicted by cross-examination or any contrary medical evidence. The testimony of PW2, the medical Doctor, who post mortem examined the body of the deceased, in examination in chief, constitutes sufficient medical evidence of the cause of the deceased’s death – – – The assertion that the deceased could have died from other causes was made by the Appellant as part of his defence — It is the Appellant, who wants the Court to believe that certain facts exist showing that the death of the deceased could not have been caused by the Appellant hitting him on the head. S. 136(1) of the Evidence Act places the burden of proof of these facts on the Appellant.

The Court of Appeal further observed as follows at pp 236 – 237:

The evidence of PW1 (sic) that the deceased, while being carried down the stairs in the first Hospital – – fell down and his

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neck hit on the staircase was contradicted and defeated by the statement of DW1 in Exhibit B1 that “it is not correct that the deceased fell down at any of the Hospitals”. In the face of this irreconcilably contradicting versions of evidence of witnesses called by one party, a Court cannot choose between them which one to believe or disbelieve. It has no option than to discredit both versions as unreliable – – So, there is no evidence that the deceased suffered any other hit on his head in addition to the one inflicted on his head by the Appellant. It was DWI and DW2 that took the deceased to three Hospitals in succession and DW1 paid the fees for the medical treatment of the deceased in those Hospitals. Both were with the deceased in the Hospital until they were arrested at the Boromeo Hospital by the Police. The Appellant relied on the facts of the deceased treatment in those Hospitals as part of his defence that his hitting of the head of the deceased could not have been the direct cause of the deceased’s death as the deceased was taken immediately to three Hospitals in succession after the incident and that the medical procedures and treatment may

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have caused the death of the deceased. Therefore, he has a duty to produce the medical evidence of the medical treatment of the deceased in those Hospitals. By virtue of S. 136(1) of the Evidence Act, 2011, the Appellant had the duty to prove the medical procedure and treatment the deceased was exposed to when he and DWI took the deceased to those Hospitals. In the peculiar circumstances of this case, where it was the Appellant and DW1 who took the deceased to the Hospitals, caused him to be treated and paid for the treatment, including the brain scan and same Appellant relied on these facts to exculpate himself from responsibility for the death of the deceased, Appellant has the duty to produce the medical evidence of the medical treatment of the deceased and to show that the medical procedures and treatment could have been opportunistic causes of the death of the deceased.

Before I go into the merit or otherwise of the Appellant’s grouse in this case, I must clarify the reference made to the extra-judicial Statements of the first Defendant to the Police [Exhibits B – B1], by the Court of Appeal, as if there is no distinction between the Statements and his oral testimony, in relation to the Appellant.

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Let me explain. The position of the law is that the Statement of the Co-accused to the Police is different and distinguishable from his evidence in Court. The Statement remains his Statement and not his evidence, and it is binding on him only – Suberu V. State (2010) 8 NWLR (Pt. 1197) 586 SC. However, where evidence incriminating an Accused comes from the Co-Accused, the Court is at liberty to rely on it, provided the Co-Accused, who gave such incriminating evidence, was tried along with that Accused Person – see Dairo V. The State (2017) LPELR-43724(SC) and Micheal V. State (2008) 13 NWLR (Pt. 1104) 383, where this Court held –

The fact that the evidence was that of a Co-accused does not prevent it from being a credible and reliable evidence, once he was jointly tried with the other Accused Persons.

In this case, first Defendant, who was discharged and acquitted, was jointly charged with the Appellant. While his extra-judicial Statements, Exhibits B-B1, are irrelevant in the scheme of things, his evidence as DW1, is significant as it relates to the Appellant.

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The question is whether this lapse in the Judgment is significant.

It is well-settled that the Judgment of a lower Court will not be reversed on the basis of an error, which is minor or immaterial, and has no direct impact on the reasoning leading to a decision. It is only when the error is substantial, in that it has occasioned miscarriage of justice that this Court will be bound to interfere – see Tanko V. State (2009) 4 NWLR (Pt. 1131) 430 SC. In this case, there is sufficient evidence to support the concurrent findings of the lower Courts, and the references made by the Court below to the said Statements of the first Defendant, and to DW2 as DW1, do not in any way, affect or detract from its very sound reasoning.

There is no question as to the fact that the Appellant hit the deceased on the head with Exhibit B4, the cement baluster, and immediately thereafter, Appellant and DW1, took the deceased to three different Hospitals before he died four days later – within a year and day from 9/10/2008, when he was hit on the head. Section 269 of the Anambra State Criminal Code Law provides –

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A person is not deemed to have killed another if death of that other person does not take place within a year and a day of the cause of death.

Clearly, the Appellant’s story in Exhibit B2 that he picked a “piece of concrete cement”, which he used to threaten his Master, DW1, and the deceased, when they were fighting, and that he dropped it when DW1 told him to, in the middle of the fight, is ludicrous.

The picture painted by the Appellant as DW2 is that he only hit the deceased on his hands with the stick, the deceased went and sat down “beside the flower and started vomiting”, and then they took the deceased to the Hospital. But in Exhibit B2, he said that it was in the first Hospital they took the deceased to that he “hit his head on the step of the staircase”, and as DW2, he said –

We took the deceased to the Hospital, Doctor directed us to take him upstairs, we did that. While at the Hospital, Chukwudi [PW1] now came after the doctor told us to take him away. As we were bring (sic) him down, he [the deceased] hit himself by hitting his neck on the edge of the staircase.

According to the Appellant in Exhibit B2, they took the deceased to Hospital because he started vomiting after

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fighting with DW1, and he also “hit his head on the step of the staircase” when they were bringing him down, after they were asked to take him away. As DW2, he said the deceased had hit his neck and not his head.

It is important to note that PW1 was never cross-examined on what he said as to why the Appellant and DW1 were asked to take the deceased away from the first Hospital they took him to.

It is settled that when a witness testifies on a material fact, the other Party should cross-examine him or at least show he does not accept the evidence as true and where he fails to do so, the Court can, and will take his silence as acceptance that he does not dispute same – see Simon V. State (2017) LPELR-41988(SC).

In this case, PW1 said that after they narrated the incident to the Doctor at the first Hospital, the Doctor told them that the people that brought the deceased to the Hospital lied to him that he got drunk and fell inside a pit, which is why the Doctor insisted that they should take the deceased away from the first Hospital. The issue is not whether what the Doctor told PW1 is true or not; the point being made is that no attempt was

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made to challenge this piece of evidence, which tends to show that what PW1 said about the incident that led to the death of the deceased, is true.

The Appellant is not denying the fact that DW1 and himself took the deceased to the first Hospital. As DW2, he confirmed that PW1 came to the Hospital and the Doctor asked them to take the deceased away from the first Hospital. Pieced together, it is not surprising that the Court of Appeal readily affirmed the finding of the trial Court that “PW1 is a witness of truth”, indeed.

Even so, the Appellant propagated the same argument that the deceased was drunk in his Brief, wherein he submitted that-

It was sufficiently proved – – that the Accused was heavily drunk at the material time. This was adduced by the Defence witnesses in their testimonies that the deceased vomited alcoholic substance at the scene of the fight and while at the Hospital (Lord’s Glory Hospital). The deceased was refused treatment at the first Hospital due to his inebriated state and that while at the 2nd Hospital (Borromeo Hospital) the Doctor attending to him had to extract alcohol from his system before he commenced treatment.<br< p=””

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The Respondent, on its part, argued that nothing was said about the deceased being drunk at the trial; and that the refusal to treat the deceased at the first hospital “was not because of any state of the deceased but because of the fact that DW1 and Appellant lied to the Doctor as to what led to the state of the deceased.”

The Respondent is right; there is nothing whatsoever in the evidence of DW1 and DW2 at the trial Court that lays credence to the Appellant’s submissions at page 6 of his Brief of Argument. Yes, the first Defendant had stated as follows in Exhibit B that –

When Uche Nwodo [Appellant] hit him the stick, he fell down and started vomiting alcohol. I knew that what the deceased vomited was alcohol because of the odour. I cannot tell the particular alcohol that he vomited. I and Uche Nwodo [the Appellant] then rushed him to Borromeo Hospital, Onitsha – – It was at the Hospital that the Doctor on duty said the deceased was drunk and a rubber pipe was inserted inside the mouth to flush out the alleged alcohol.

As I said, the extra-judicial Statement of an Accused is irrelevant in the trial of a Co-Accused –

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Suberu V. State (supra). As it is, the first Defendant as DW1, made no mention of the deceased being drunk at any time, and under cross-examination, he said –

It is the Doctor, who will say whether he was drunk or not.

The Appellant said nothing in Exhibit B2 or testimony as DW2, about the deceased being drunk. The long and short of it is that contrary to what the Appellant would want this Court to believe, no evidence was adduced to show that the deceased was drunk.

As to Appellant’s contention that PW2, the Medical Doctor, gave two probable conditions that could have led to the injuries on the body of the deceased, which creates doubt that he caused the death of the deceased, I have to agree with the Respondent, who says that the Appellant’s argument “is most misconceived”.

It is true that under cross-examination, PW2 said he will not say it is impossible for any person to get the same injury that he saw on the body of the deceased “from falling from a height”, but this does not mean that PW2 gave two probable conditions that could have led to the injury on the body of the deceased. As Agim, JCA, observed in the Judgment of the Court of Appeal:

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The evidence, which is consistent, clear and unequivocal states that the cause of death is gross intra cranial haemorrhage and cerebral contusion resulting from severe head injury. This evidence was not contradicted by cross-examination or any contrary medical evidence.

The suggestion that the deceased could have fallen from a height is hanging in the air. There is nothing holding it up because there is no evidence from either Party alluding to any fall from a height; rather the Appellant said the deceased hit his head on the edge of a staircase when they were bringing him down at the Hospital, which is a laughable story. In the words of the Court of Appeal, the testimony of PW2 “constitutes sufficient medical evidence of the cause of the deceased’s death”; and that is all there is to it.

He also argued that the Court of Appeal erroneously placed an unjustified burden on the Defence to prove the cause of death of the deceased by calling medical evidence to show treatments the deceased received, when the Prosecution did not call Doctors that treated or operated on the deceased when he was still alive.

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I will quickly say that this line of argument totally lacks merit and is a misapprehension of the decision of the Court of Appeal. Yes, the burden on the Prosecution in criminal cases to prove the guilt of the Accused beyond reasonable doubt never shifts even when the Accused has admitted that he committed the crime.

However, it is the primary onus of establishing the guilt of an Accused, which is always on the Prosecution, that never shifts. What shifts is the secondary onus or the onus of adducing some evidence, which may render the Prosecution’s case improbable, and unlikely to be true and thereby create a reasonable doubt – see Bakare V. The State (1987)1 NWLR (Pt. 52) 579 SC, wherein this Court, per Karibi-Whyte, JSC, very aptly observed as follows:

The Prosecution had discharged the burden that the deceased died from the intention or reckless act of the Appellant. The burden now shifted on to the Appellant to establish on the balance of probabilities, circumstances of exculpation, such as accident, self defence, insanity etc. – The only evidence adduced by the Appellant having not been believed; the burden of proof on him was not discharged.

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The onus did not shift again to the Prosecution and the Prosecution will now be taken to have proved its case beyond reasonable doubt.

In this case, the Prosecution made out a very strong case against the Appellant, which pointed to the fact that he caused the death of the deceased by hitting him on the head with Exhibit B4 when the deceased was fighting with the Appellant’s Master, DW1.

It is an established fact that they took the deceased to the Hospital immediately after the fight. There is nothing to suggest that it was anything else that led to the death of the deceased. In such circumstances, the Court of Appeal was right to hold that:

The assertion that the deceased could have died from other causes was made by the Appellant as part of his defence to the case made out by the Prosecution against him. It is the Appellant, who wants the Court to believe that certain facts exist showing that the death of the deceased could not have been caused by the Appellant hitting him on the head. S. 136(1) of the Evidence Act, 2011, places the burden of proof of these facts on the Appellant – – In the peculiar circumstances of this case, where it was the Appellant and DW1, who took

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the deceased to the Hospitals, caused him to be treated and paid for the treatment, including the brain scan and same Appellant relied on these facts to exculpate himself from responsibility for the death of the deceased, Appellant has the duty to produce the medical evidence of the medical treatment of the deceased and to show that the medical procedures and treatment could have been opportunistic causes of the death of the deceased.

In the peculiar circumstances of this case, the sound reasoning and potent conclusion of the Court of Appeal cannot be faulted. The Court of Appeal did not falter in its duties to the Appellant, and his complaint that it had shifted the burden of proof to him, is a misconception of the law in the circumstances of this case.

Be that as it may, the Appellant also contends that from the facts of this case and evidence adduced at trial, the defence of provocation avails him. The Respondent, however, argued that the Appellant’s contention in this Issue is “most misconceived`.

Both Parties referred this Court to the law on provocation, and canvassed arguments in their respective Briefs of Arguments, but it will not be

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necessary, in my view, to go into all the details, because facts of this case speak for themselves, and what they say is that the defence of provocation cannot avail the Appellant. Provocation, as Devlin, J., said in R. V. Duffy (1949) 1 AER 932 is:

Some act or series of acts, done by the dead man to the Accused, which would cause in any reasonable person, and actually cause in the Accused, a sudden and temporary loss of self-control, rendering the Accused so subject to passion as to make him or her for the moment not master of his mind.

See Kaza V. State (2008) LPELR-1683(SC), where Tobi, JSC, held:

Provocation is an action or conduct, which arises suddenly in the heat of anger. Such action or conduct is precipitated by resentment, rage or fury on the part of the Accused person to the person that offered the provocation. Because of the anger, resentment, rage or fury, the Accused suddenly and temporarily loses his passion and self-control; a state of mind, which results in the commission of the offence. There can hardly be provocation in respect of words or acts spoken or done in the absence of the Accused.

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This is because words spoken or acts done in the absence of the Accused will not precipitate any sudden anger, resentment, rage or fury, as there is time for passions to cool. The very act of reportage of the words or acts of the Accused should materially reduce or drown the anger, resentment, rage or fury of the Accused.

So, for a defence of provocation to avail an Accused, there must be something said or done by the deceased in his presence, which caused him to “suddenly and temporarily: lose his passion and self-control. In effect, it is a direct confrontation between the Accused himself and the person that offered the provocation.

In this case, the deceased was not engaged in fighting with the Appellant; he was fighting with the Appellant’s Master, DW1. There is no evidence that the deceased said a single word to him while the fight with DW1 was going on. It is an established fact that the fight was already on when the Appellant came out and asked the deceased to leave his Master, and when it continued, he used a stick then Exhibit B4 to hit the deceased on the head, which caused the death of the deceased about four days later.

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In the circumstances, the Appellant cannot lay claim to the defence of provocation, and the said defence cannot avail him. The two Issues are therefore resolved against the Appellant.

There is sufficient evidence established by the Prosecution to support the concurrent findings of the two lower Courts and the end result is that this Appeal lacks merit, and it is dismissed.

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SC.85/2016