Emmanuel Audu V. The State (2002)

LawGlobal-Hub Lead Judgment Report

OGBUAGU, J.C.A. 

This is an appeal against the decision of the High Court of Benue State holden at Gboko presided over by I. Nwande, J. on 7th June, 1994 convicting the appellant of the murder of one Joseph Ogbada and sentencing him to a detention in prison custody pursuant to the provisions of section 270 and 272(1) of the Criminal Procedure Code (CPC).

Dissatisfied with the conviction and sentence, he has appealed to this court. The facts of the case on the prosecution’s side, as appear from the record of proceedings, are that on 9th September, 1991, the deceased – Joseph Ogbada, in company of one Mathias Enemeri – PW4 who also answers Sunday Enemeri and who was riding a bicycle, were going to Ukwo Market in Otukpa. On their way, they saw several masquerades displaying at the said market.

One of the masquerades beat or attacked PW4 with a cane and he came down from his bicycle and retaliated with his hand. A fight ensued between the PW4 and the said masquerade and in the process, PW4 unmasked the said masquerade in order to know his identity.

It turned out to be one Christopher Anthony. The other masquerades rushed to the scene and also began beating the PW4. It was at this point in time, that the appellant came to the scene and held the deceased. The appellant and the deceased fought and in the process, the deceased unmasked the appellant and threw him on the ground and was on top of him. The appellant drew an army jack Knife from its sheat that was tied to his waist and stabbed the deceased twice on his abdomen. The deceased shouted that he had been stabbed. The PW1 – an eye witness and PW4, testified that before the stabbing, the 2nd accused person (who is the father of the appellant and who was arraigned with the appellant who was the 1st accused person, on a separate count of aiding the appellant), had held the deceased before the appellant stabbed the deceased. The deceased was rushed first, to a private clinic and later, to the General Hospital, Ankpa where he died five (5) days after admission. The matter was reported to the Police the same day of the incident. It was after investigation, that the appellant and his said father, were charged to court.

The defence of the appellant is that on the date of the incident, he was also dancing in order to collect money. That it was when a passenger in a vehicle that had stopped on the road near the motor park, invited him to come and dance, that the deceased, PW1, PW4 and one Emmanuel Godwin, ran towards him. He did not know why. That the deceased and the PW1 collected the gong and stick from him on the ground that he was going to assist the said Christopher “Ono” who was fighting with the PW4. That he did nothing. That the deceased who had collected the cane from him, started beating or using the cane on him and that the PW4 and the said Emmanuel Godwin, helped the deceased in beating him.

It is his evidence that he held the deceased and both of them fought. That he threw the deceased on the ground as they fought.

That he and the deceased got up together and the fighting or struggling continued. It was at that juncture, that the deceased brought a knife from where he did not know and attempted to stab him, but he the appellant, dodged and so, the deceased did not succeed in stabbing him. That the knife the deceased used was the said army jack knife exhibit “A”.

It is his further evidence that he moved to one side and brought out his ordinary knife from his waist. That both he and the deceased, held their respective knife. That he then stabbed the deceased with his own knife. That he removed the knife from the body of the deceased and saw blood on it. He then ran away. That it was when he was running away, that the PW 1 threw stones at him and one of the stones hit his mask, which fell off as a result. He said he did not intend to kill the deceased when he stabbed him, but was only protecting himself.

At the close of the case for the prosecution that called a total of five witnesses and the defence that called three witnesses including the appellant, and after the written addresses/submissions of both learned counsel for the parties, the learned trial Judge, in a considered judgment, found the appellant guilty of murder of Joseph Ogbada, the deceased, and convicted and sentenced him as afore-stated in this judgment. The 2nd accused person was acquitted and discharged.

The appellant filed ten grounds of appeal. Without their particulars, they read as follows:

1. The conviction is unreasonable, unwarranted and cannot be sustained having regard to the evidence.
2. The learned trial Judge erred in law by convicting the appellant under section 221 of the Penal Code when the cause of death was not proved.
3. The learned trial Judge misdirected himself in law by relying on exhibit ‘D’ and finding the cause of death therein.
4. The learned trial Judge misdirected himself in law by holding:

“To my mind, where PW1 admitted that her earlier statement was in error no useful purpose will be served in referring to the earlier statement. This amounts to an explanation of the contradictory evidence. Where a satisfactory explanation has been offered regarding a contradictory piece of evidence then it is the evidence as explained by such a witness that need be taken into account.”

5. The learned trial Judge erred in law by relying on the evidence of PW1 and PW4 when the two witnesses materially contradicted each other.
6. The learned trial Judge erred in law when he stated:

“Exhibit ‘C’ was brought out by the 1st accused more than one week after the event. 1st accused best knows how exhibit ‘C’ had blood stains on it.

If the 1st accused used two knives on the deceased that he knows best.”

7. The learned trial Judge erred in law by rejecting the appellant’s plea of self-defence and this had occasioned a miscarriage of justice.
8. The learned trial Judge misdirected himself in law when he stated:

“1st accused robbed himself of this defence when he decided to stab the deceased two times on the abdomen when the deceased was not armed as found by the court. 1st accused took undue advantage of the fact that the deceased was not armed and acted cruelly. He cannot therefore take advantage of section 222(4) of the Panel Code.”

9. The learned trial Judge erred in law by convicting the appellant based on the evidence of PW1 and PW4 when in the judgment the court stated:

“In the event of the evidence of DW1 and 2nd accused against that of PW1 and PW4 it is difficult to form an opinion as to who is speaking the truth and who is not.”

10. The learned trial Judge erred in law by ordering:

“In line with section 272(1) of the CPC, the convict is ordered to be detained in prison custody during the Military Administrator/Governor’s pleasure. The detention has to be in prison custody as the convict is now about 19 years of age.”

The parties filed and exchanged their respective brief of argument. On 7th November, 2002, as the learned counsel for the respondent, was not in court and there was no reason for his absence, Adah, C. Eche Esq., adopted their brief and finally urged the court to allow the appeal and quash the conviction of the appellant by the lower court. thereafter, judgment was reserved till today.

The appellant in the brief, formulated five (5) issues for determination, namely:

“1. Whether the cause and fact of death were established before the trial court?.

2. Whether there are material contradictions or inconsistencies in the evidence adduce (sic) (meaning adduced) by the prosecution?.
3. Whether the prosecution discharged the onus of proof that the killing of the deceased was not done in the exercise of the right of self-defence?.
4. Whether the trial court was right in rejecting the defence of sudden fight?.
5. Whether the trial court was right in ordering for the detention of the appellant in prison custody during the pleasure of the Military Administrator/Governor?.”

The respondent in its brief, formulated three (3) issues for determination, namely:

“1. Whether the prosecution proved its case before the trial High Court?.

2. Whether the defence of self-defence with its attendant consequences avail the appellant in the circumstances of this case?.
3. Whether the lower court was right in ordering for the detention of the appellant in prison custody during the pleasure of Military Administrator/Governor?.”

As could be seen from the issues of the appellant and the respondent, issues 3 and 5 of the appellant are identical with issues 2 and 5 of the respondent. Although issue 1 of the appellant, is substantially the same as issue 1 of the respondent, I will take the two issues separately. I will first consider issue 1 of the appellant and thereafter, consider issue 1 of the respondent.

Issue 1 of the appellant. This issue relate to and are distilled from grounds 2 and 3 of the grounds of appeal.

Now, dealing with cause of death, it is settled that the prosecution must prove that the death of the deceased was caused directly or indirectly, by the act of the accused person. They must establish not only that the act of the accused person could have caused the death of the deceased, but that in actual fact, the deceased died as a result of the act of the accused person to the exclusion of all other possibilities. See: Rex v. Abengowe (1936) 3 WACA 85; R. v. Nwokocha (1949) 12 WACA 453 at 455; The State v. Omoni (1969) 2 ANLR 237; (1949) 12 WACA 511; Delu Liman v. The State (1976) 7 SC 61; R. v. Owe (1961) 2 SCNLR 354; Prince will v. The State (1994) 6 NWLR (Pt. 353) 703; (1994) 7-8 SCNJ (Pt. 11) 226 at 240 per Iguh, JSC. just to mention but a few. It need be stressed and this is settled that it is not for an accused person to suggest let alone prove an alternative cause of death. See: Onyenankeya v. The State (1964) NMLR 34 at 35.

Learned counsel for the appellant has referred to the evidence of the PW1, PW3 and PW4. He submitted that based on the totality of the evidence before the trial court, no cogent, conclusive or unequivocal evidence relating to the cause and fact of the death of the deceased was adduced.

He has also submitted that none of the said three witnesses testified that:

(i) they saw the deceased in the hospital either before or after the death; and

(ii) the dead body the Doctor saw in the hospital was that of Joseph Ogbada or that the corpse was identified by any of the witnesses. Indeed all that the witnesses stated amount to hearsay and none of the witnesses testified that they saw Joseph Ogbada dead at the scene of the incident or his corpse after his death.

In order to dismiss this submission, with respect as lacking any substance, the fact of the death of the deceased at the General Hospital, Ankpa, was never in issue at the trial or was it disputed by the appellant and his learned counsel. Firstly, PW2 Godwin Okewu, testified in his evidence in-chief, inter alia, unchallenged in cross-examination and uncontroverted by the defence thus:

“We took the deceased to General Hospital Ankpa. The man stayed on admission for five days and he died”

(see page 51 of the record of proceedings).

The PW3 Inspector Daniel Okoh who took over the investigation of the case later swore unchallenged in cross examination and uncontroverted by the appellant in his evidence in court, inter alia, thus:

“In the course of my investigation, I discovered that Joseph Ogbada was taken to Ankpa General Hospital

where he later died. I collected a medical report from the General Hospital Ankpa in respect of the deceased”.

(The italics mine)

The trial court noted that the PW3 had identified the medical report and that he said that due to scarcity of forms in the Hospital, he made a photocopy of the form and gave same to the medical officer. That it was duly stamped.

It must be noted that when the said medical report was tendered, learned counsel for the appellant never objected as to its admissibility. The medical report was admitted in evidence and marked exhibit ‘D’. I will come to exhibit ‘D’ later on in this judgment. In any case, the trial court recorded thus:

“Court: The medical report in respect of the deceased Joseph Ogbada is admitted as exhibit ‘D’.” (see page S4 of the record of proceedings)

PW4 Mathias Enemeri, testified in his evidence in-chief, inter alia. as follows:

“The deceased was taken to the Hospital. We got a cloth from PW1 and tied the places where the deceased was injured before we took him to Aboh Clinic. We were referred to General Hospital Ankpa and we went there. He died at the General Hospital Ankpa.” (The italics mine)

The court notes that this evidence was never challenged in cross examination or controverted in the evidence of the appellant or that of his witnesses.

There is no how the evidence of the PW3 and the PW4 in respect of the death of the deceased at the said Hospital (and who was stabbed on the stomach/abdomen and the fact of the stabbing, was admitted or confessed by the appellant), could by any stretch of imagination, be described as hearsay as submitted by learned counsel for the appellant. The learned counsel for the appellant has attacked exhibit ‘D’.

It is submitted that exhibit ‘D’ has no probative value as (according to him):

(i) the person by whom the corpse was said to have been identified was not summoned to testify.

(ii) it does not bear the name of the Hospital or Doctor who carried out the medical examination. It only bears the signature of a person whose identity is shrouded in utter mystery.

The PW3, as noted hereinabove, produced exhibit ‘D’ as to the document that was given to him by the medical officer. The signature of the medical officer as also found by the learned trial Judge appears therein/thereon. The official stamp of the said Hospital also appears on exhibit ‘D’.

Had learned counsel for the appellant objected to the admissibility of exhibit ‘D’ on the ground that it ought to be tendered by the maker, I have no doubt in my mind, that the prosecution should have called the said medical officer who performed the autopsy or proffer a reason or an explanation why he could not be called or appear in person in court to testify.

Learned counsel for the appellant during cross-examination, did not ask or press for the name of the said Medical Doctor who signed the said signature if he thought that it was important or crucial to their case. He raised no objection as to the admissibility of exhibit ‘D’. he did not raise the issue of admissibility for whatever reason. However, the learned trial Judge had this to say, inter alia in his judgment:

“There is evidence to the fact that the deceased died of injuries he sustained from the wounds inflicted on him at the market. There is also evidence that 1st accused stabbed the deceased with a knife on the fateful day.”

(see page 110 of the record of proceedings). He also had this to say, inter alia:

“I do not think that from the evidence available there is need again to give elaborate evidence to prove the death of the deceased Joseph Ogbada. The witnesses for the prosecution all confirmed the death of Joseph Ogbada. PW3 Inspector Daniel Okoh testified and tendered the medical report from General Hospital Ankpa that confirmed his death. Cause of death is said to be due to visceral injury which refers to the wound at the upper abdomen. Exhibit ‘D’ is also clear as to who identified the dead body for the post-mortem examination. The person is named as Emmanuel Akehe. The deceased is stated to have died on 13/9/91. Exhibit ‘D’ is pat1 of the evidence before the court and there is no reason why the court should not make use of it. I have not seen any contradiction as regards the date the deceased gave up at General Hospital, Ankpa. Exhibit ‘D’ appears to be in order and bears the stamp of General Hospital Ankpa. The signature of the medical officer is on it. It is not the duty of the prosecution to establish that exhibit ‘D’ is regular. Once it appears to be regular the proof of its irregularity rests with the defence. This cannot be achieved by throwing some punches at it in address of counsel as was done by learned counsel to the accused in this case. The attack ought to have come from solid evidence rebutting the presumption of regularity. In the absence of such evidence, I hold that exhibit ‘D’ is regular and reliable.” (see page 111 to 112 of the record of proceedings).

All these, are findings of fact and I cannot in fairness, fault them or disturb them. Exhibit ‘D’ speaks for itself. It was a document tendered from proper custody and it was relevant to the case of the prosecution. It was tendered, as a ‘res’ or ‘thing’ or the document the Hospital authorities or the said medical officer gave to the PW3.

When he tendered it, the learned counsel for the appellant who conducted the defence, raised no objection as to its admissibility even in his written address at the trial court. Exhibit ‘D’ was not only admissible, but also relevant and speaks for itself as to the contents. See Kuruma v. R. (1955) AC 197 at 203.

The court notes or observes that Mr. Adah has raised the issue of admissibility of exhibit ‘D’ for the first time in this court in their brief and this is without leave. The effect is trite. Again, the above said findings have support in the case of Princewill v. The State (supra) citing the case of Enewoh v. The State (1990) 4 NWLR (Pt. 145) 469; (1990) 7 SCNJ 1. As to rebuttal of presumption of regularity, see James Edun & Ors. v. Inspector General of Police (1966) 1 All NLR 17 at 21 and Lockman & Anor. v. The State (1972) 5 SC 22.

I will pause here and deal, even firstly, with medical evidence in case of murder as the instant one.

It is settled law in a plethora of decided cases, that medical evidence is an opinion of an expert made admissible by the statute and by its very nature, it must of necessity, be strong and compelling in the light of the facts adduced by the prosecution in a particular case. It must not be nebulous and an unsatisfactory medical evidence, cannot assist the prosecution in proving the case beyond reasonable doubt. See Okafor v. The State (1990) 1 NWLR (Pt. 128) 614 at 626 CA.

Also firmly established, is that medical evidence to be accepted, it must unequivocally establish the cause of death and provide the necessary nexus between the death of the deceased and the act of the appellant. See Onwumere v. The State (1991) 4 NWLR (Pt. 186) 428; (1995) 5 SCNJ 150 at 170.

Also settled, is that although medical evidence as to cause of death is desirable, it is not essential in all cases of homicide. In the absence of medical evidence, the court can infer the cause of death from the circumstances of the evidence adduced before it. See Adamu v. Kano N.A. (1956) 1 FSC 25; (1956) SCNLR 65; Bakari v. The State (1965) NMLR 163 and Eric-Uyo v. Attorney-General Bendel State (1986) 1 NWLR (Pt. 17) 418 (1986) 2 SC. 34 referred to recently, in the case of Idemudia v. The State (1999) 7 NWLR (Pt. 610) 202; (1999) 5 SCNJ 47. As a matter of fact, where there is medical evidence and it is inconclusive, the court is entitled to examine the evidence before it and draw necessary inference. See Essien v. The State (1984) 3 SC 14 at 12; Adekunle v. The State (1989) 5 NWLR (Pt. 123) 505 at 516, referred to in Kada v. The State (1991) 8 NWLR 9 (Pt. 208) 134; (1991) 11 SCNJ 19 at 34 cited by the learned counsel for the appellant; Ogbu v. The State (1992) 2 NWLR (Pt. 222) 164; (1992) 2 SCNJ (Pt. 1) 106 at 125; and Oyegbu v. The State (1994) 1 NWLR (Pt. 300) 328 at 341 CA. In other words, a trial court may in the absence of medical report or evidence, decide to infer the cause of death on the evidence before it showing unequivocally, the nexus between the deceased and the unlawful act of the accused. See Edwin v. The State (1972) 4 SC 160; Bwashi v. The State (1972) 6 SC 93; Lori v. The State (1980) 8-11 SC 810; Akpuenya v. The State (1976) 11 SC 269, 278 and recently, Igago v. The State (1999) 14 NWLR (Pt. 637) 1, (1999) 12 SCNJ 140 at 169 and many others in this regard.

It need be stressed and this is also settled that the report of the medical officer, is the certificate envisaged by section 41(1)(a) of the Evidence Act. A medical officer in the service of the State for the purposes of undertaking post-mortem examination is a pathologist and his certificate is sufficient evidence of the facts stated therein.See Ehot v. The State (1993) 4NWLR (Pt. 290) 644 at 647-8; (1993) SCNJ 65 at 24, and recently, The State v. Godfrey Ajie (2000) 11 NWLR (Pt. 678) 434, (2000) 7 SCNJ 1 at 9.

Mr. Adah in his further attack of exhibit ‘D’ submitted that exhibit ‘D’ was of no evidential value as according to him, it was most irregular on its face. (Italics by him). His reasons are that:

(i) the name of the medical officer was not given;

(ii) the medical officer was never called to testify nor was any explanation given relating to his absence at the trial.

He further submitted that exhibit ‘D’ was clearly inadmissible as according to him, it amounted (spelt as amounted) to hearsay under section 77 of the Evidence Act. That the cause and fact of the death of the deceased were not proved beyond reasonable doubt to warrant the decision given by the trial court.

As noted by me in this judgment, exhibit ‘D’ bears the official stamp of the said Hospital. So, it cannot be true that the name of the Hospital was or is not indicated on it. Learned counsel for the appellant at the trial court and in their brief, had all the opportunity to cross-examine the PW3 and question him about the name of the said medical officer if he was in doubt about the authenticity of exhibit ‘D’ and the signature on it. I do not, with respect, share the view of the learned counsel for the appellant that the learned trial Judge treated exhibit ‘D’ “as sacrosanct”. I have hereinabove, referred to his findings of fact at the said page III of the record of proceedings. I still hold the view that those findings cannot in my humble view, be faulted or impeached.

My reason for holding this view, also, is that there is statutory support for the said finding by the provisions of section 250(2) of the C.P.C. sub-section 2, gives the trial court a discretion in the matter. It provides as follows:

“The court may if it appears desirable for the ends of justice summon any person making a report under

section (1) to give evidence in person.” (Italics mine)

I believe that “desirable for the ends of justice”, means that a court has a duty to consider carefully the desirability of summoning the expert or doctor to give evidence in person, and that it should do so, if the accused person reasonably requests it or makes the demand.

As a matter of fact, in the case of Yahaya Idirisu v. The State (1967) 1 All NLR 12 (1968) NMLR 88 at 89, it was held that where a medical practitioner is not a witness, his written report can, at the discretion of the court, be admitted in evidence provided there is no objection by the defence that the report, bore the signature of somebody other than that of the medical practitioner. In the instant case, there was no such suggestion by the defence.

In this case also, the Supreme Court stated that it is desirable that where a request is made by an accused person, to have the maker of a medical report called as a witness and that such an application should not be lightly refused.

In the case of Audu Tanka Juwa v. The State (1969) NMLR 168 at 169; (1969) 1 All NLR 264, (although it was a case relating to the sanity of the accused person), it was held that a doctor’s certificate could be admitted in evidence in accordance with the provisions of section 250 of the C.P.C. in the absence of the doctor who issued the certificate, but not called as a witness. See perhaps, Ibekendu v. Ike (1993) 6 NWLR (Pt. 294) 287; (1993) 7 SCNJ (Pt. 1) 50 at 63 and section 91(1) of the Evidence Act. As noted by the court hereinabove in this judgment, the learned counsel for the appellant, never made any application/request that the maker of exhibit ‘D’ and who also signed it, be made available to the court either by the said Hospital Authorities or by the prosecution. Section 91(1) of the Evidence Act, allows the tendering in evidence of a medical report when the maker is shown not to be available and I will add also, when there is no objection to the tendering in his absence of the medical report made by him. This takes care of No. (ii) reason hereinabove. Exhibit ‘D’, I hold with respect, is not a hearsay evidence. It was admitted without any objection from the learned counsel to the appellant. It was admissible also by virtue of section 250 of the C.P.C. Exhibit ‘D’ was not the sole and only evidence establishing the cause of death. Three other witnesses for the prosecution afore-mentioned gave evidence also in this regard. The appellant himself who swore that he did not intend to kill the deceased, knew that the deceased died as a result of the stab wounds he deliberately inflicted on his body or stomach/abdomen.

Therefore, for purposes of emphasis, it is also firmly established that much as medical evidence is desirable to prove the cause of death in homicide cases, it is not a sine qua non, as the same may be established by sufficient evidence (as in the instant case) other than medical evidence showing beyond reasonable doubt, that such death resulted from the act of the accused person complained of. See Edobor v. The State (1975) 9-11 SC 69; Azu v. The State (1993) 6 NWLR (Pt. 299) 303 and Oguntolu v. The State (1996) 2 NWLR (Pt. 432) 503; (1996) 2 SCNJ 65 at 69. I will pause here to agree with learned counsel for the appellant, that a court may draw an inference where death is instantaneous or immediate or occurs at the scene of violence. That where death does not occur on the spot, the prosecution has the duty of proving beyond reasonable doubt the fact and cause of death. He has cited and relied on the cases of Uche-Williams v. The State (1992) 10 SCNJ 74 at 84-85 and Akpan v. The State (1992) 8 NWLR (Pt. 261) 515; (1992) 6 NWLR (Pt. 248) 439; this is settled law. See also Iyang Etim Akpan v. The State (1994) 9 NWLR (Pt. 365) 347; (1994) 12 SCNJ 140 at 152; referred to in Uguru v. The State (2000) 4 SCNJ 282 at 293 and Onwumere v. The State (1991) 4 NWLR (Pt.186) 428; (1991) 5 SCNJ 150 at 168, 170. I will now deal even briefly with issue No.1 of the respondent.

It is true that by virtue of the provisions of section 138 of the Evidence Act, the burden of proof is on the prosecution and the standard of proof, is beyond reasonable doubt, but as held in the case of Akalezi v. The State (1993) 2 NWLR (Pt. 273) 1 at 12; (1993) 2 SCNJ 19 and restated in the case of Nasiru v. The State (1999) 2 NWLR (Pt. 589) 87; (1999) 1 SCNJ 83 at 94 – Per Uwais, C.J.N., the expression “beyond reasonable doubt”, certainly, does not mean “beyond any shadow of doubt”. See also Hycienth Egbe v. The King (1950) 13 WACA 105; Regina v. Herworth & Feamley (1955) 3 WLR 331 at 334 per Lord Goddard, C.J.

From the totality of the evidence before the learned trial Judge, I am satisfied that there was overwhelming evidence that the nature of the attack on the deceased was that the appellant intended to kill or to cause grievous bodily harm. Death having resulted directly from such act of the appellant. The appellant, surely, intended the natural consequences of the act. A man is presumed to intend the natural consequences of his act by stabbing the deceased not only once, but twice with a lethal weapon such as exhibit ‘A’, the presumption is that he must have intended to kill him or to cause him grievous bodily harm. Whatever was the intention, he would and is in fact, guilty of murder. The appellant as I have stated herein above in this judgment/admitted stabbing the deceased on his abdomen. I repeat, a man intends the natural consequences of his act. This is a legal presumption. See R. v. Hanson Owarey 5 WACA 66; D.P.P. v. Beard (1920) PC. 479; R. v. McCarthy (1954) 2 Q.B. 105 and many others in this regards. The learned trial Judge in my judgment, rightly, on the evidence before him, convicted the appellant. In fact, I have seen exhibit ‘C’. It is a Dagger not even an “ordinary knife.” As a matter of fact, or perhaps it can safely be inferred by me that when the appellant heard or learnt of the death of the deceased as a result of or from the stab wounds he admittedly, inflicted on him, that was why in his evidence in-chief, he stated that he did not want to kill the deceased. He said that he was only protecting himself and that he did not actually aim at the abdomen of the deceased. He did not however, say where he aimed at in striking the deceased’s body.

However, the pronouncement of the Supreme Court – Per C Mohammed, JSC, in the case of Garba v. The State (2000) 6 NWLR (Pt. 661) 378 at 387-388; (2000) 4 SCNJ 315 at 322, is apt or apposite in the present case on appeal; viz:

“Under section 221(b) of the Penal Code it has been made clear that whether death was the probable or only a likely consequence of an act or any bodily injury, is a question of fact. Thus, where born injuries intended to be inflicted are sufficient in the ordinary course of nature to cause death the offence falls under section 221(b) of the Penal Code. If from the intentional act of injury committed the probability of death resulting is high, the finding should be that the accused intended to cause death or injury sufficient in the ordinary cause of nature to cause death … It is the intentional murderous assault on a vital part of the body, which leads to conviction for culpable

homicide punishable with death. There can be no doubt that a person delivering a violent blow with a stick or club on a vulnerable part of the body, such as the head must be deemed to have intended to cause such a bodily injury as he knew that death would be the probable consequences of the act.” (The italics mine).

In the instant case, as noted by me the vulnerable part of the deceased’s body was the abdomen. The stabbing was twice and the instrument used, is exhibit ‘A’ – Army jack knife.

I therefore, resolve the said issue of both the appellant and the respondent, against the appellant. My answer to issue No.1 of the appellant and also issue 1 of the respondent is in the affirmative.

Issue No.2 of the appellant

Although learned counsel for the appellant has made very lengthy submissions in respect thereof, I want to say straightaway that the said issue with the greatest respect and humility, is of no moment or consequence.

The material issue before the trial court, was whether the stab wounds or injuries, the appellant admitted he inflicted on the deceased on his abdomen, caused the death of the deceased. As noted hereinabove in this judgment, the trial court from the evidence before it, rightly in my view, convicted the appellant of the offence of murder.

I hold the firm view that the alleged contradictions and inconsistencies, had nothing to do with the proven fact that the deceased died from the injuries inflicted on him by the appellant.

But if I must deal/comment on the said issue, as all issues raised by a party/parties, must be considered. See Ishaya Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 270; (2001) 4 SCNJ 103 at 116 -117 citing The State v. Ajie (supra); Honourable Emmanuel O. Araka v. Ambrose N. Ejeagwu (2000) 12 SCNJ 206 and 7-up Bottling Co. Ltd. & 2 Ors. v. Abiola & Sons Bottling Co. Ltd. (2001) 13 NWLR (Pt. 730) 469; (2001) 6 SCNJ 18 at 32, 42, 49.

It is now settled that a trial Judge could, under certain circumstances accept part of the testimony of a witness and reject the rest. See Obiode & Ors. v. The State (1970) ANLR 36; (1970) 1 All NLR 35.

Again, where the witness, either gives reasons or makes an explanation as to the inconsistency (as was the case with the PW1), that is enough/sufficient for the trial court not to treat such a witness as unreliable. See Asuquo Williams v. The State (1975) 9-11 SC 139. The courts have never been applying the inconsistency rule as a rule of the thumb. See the new approach in the case of Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 382; (1993) 9 SCNJ (Pt.1) 1 and recently, Stephen Emoga v. The State (1997) 7 SCNJ 518 at 528 – Per Onu, JSC, overruling Asanga v. The State (1991) 3 NWLR (Pt. 180) 422; (1991) 4 SCNJ 1 at 10 & 11. Of course, had there been no explanation by the PW1, the contradiction, would/will be resolved in favour of the appellant if in any case, it was material to the issue in question – i.e. the stabbing of the deceased by the appellant. See Jizurumba v. The State (1976) 3 SC 89; Muka & Ors. v. The State (1976) 9-10 SC 305 and Arehia v. The State (1982) 4 SC 78.

However, as noted above by me, issue No.2 being of no consequence in the face of all the circumstances of this case, including the credible evidence before the trial Judge, it is discountenanced by me.

I wish to comment briefly on the submission of Jijingi, D. A. Esq. (principal State Counsel 11) Ministry of Justice, Gboko, Benue State, to the effect that the failure of the appellant to call evidence in support of his defence, will lead to the invocation of the provisions of section 149(d) of the Evidence Act (Cap. 112) of the Law of the Federation of Nigeria, 1990 against him. With respect, that is not the law. In the first place, in homicide cases, as stated in this judgment, the onus of proof, remains on the prosecution and never shifts except perhaps in cases where insanity for instance, is raised as a defence. See Ejinima v. The State (1991) 7 SCNJ (Pt. 11) 318 at 329.

As to the application of section 149(d) of the Evidence Act, see with respect, the beautiful and succinct pronouncement by Iguh, JSC in the case of Oguonzeke v. The State (1998) 4 SCNJ 226. As to the burden or onus of proof on the prosecution, see Utteh v. The State (1990) 3 NWLR (Pt. 138) 301 at 310 CA; on appeal (1992) 2 SCNJ (Pt. 1) 183 at 194; and Alabi v. The State (1993) 7 NWLR (Pt. 307) 511; (1993) 9 SCNJ (Pt. 1) 109 at 117 just to mention but a few.

Secondly, and this is also settled, the provisions of section 149(d) as to the presumption that evidence which could be but is not produced, would if produced, be unfavourable to the person who with-holds it, cannot be applied in a criminal case so as to shift the burden of proof from the prosecution. See Adeyimi v. Comm. of Police (1961) ANLR 380; (1961) 1 All NLR 387; R. v. Modem & Anor. 12 WACA 224; Mandillas Karabaris Ltd. v. I.G.P. (1958) SCNLR 335; (1958) WNLR 241; (1959) 3 FSC 20 at 23; Omobo v. Comm. of Police (1965/66) MNLR 42.

In other words, there is nothing like weakness in the defence in a criminal charge. This is because, a defence, however weak or stupid, must be considered. See Frank Williams v. Inspector General of Police (1965) NMLR 470. As a matter of fact, an accused person need not give evidence.

He may decide to remain silent and say nothing throughout the proceeding. See Okoro v. The State (1988) 5 NWLR (Pt. 94) 255; (1988) 12 SCNJ (Pt. 2) 191; Candide-Johnson v. Mrs. Esther Edigin (1990) 1 NWLR (Pt. 129) 659 at 672 CA.; Uche Williams v. The State (supra) and Adamu Garba v. The State (1997) 3 SCNJ 68.

Perhaps, the limitation is that a trial court is entitled to comment about the failure of an accused person to testify. See Nasiru v. The State (supra) at 100.

Issue No.3 of the appellant and issue 2 of the respondent.

Learned counsel for the appellant has in their brief under this issue, referred to the evidence of the PW3 as PW5 as regards exhibit ‘A’ and ‘c’ (the two knives) and exhibit ‘E’ – the statement of the appellant. He then submitted that the evidence of these two prosecution witnesses, (some of them which he highlighted) ought to have swayed the trial court to hold that a defence of self-defence had been successfully made out.

It is his further submission that when the defence of self-defence avails an accused person, the onus is on the prosecution to disprove it, and not on the accused person to establish the plea. He cited and relied on the case of Sunday Baridam v. The State (1994) 1 SCNJ 13 and referred to sections 60 and 65 of the Penal Code. Mr. Adah further submitted that their contention is that all the ingredients of the plea of self-defence, existed in the instant case namely. That:

(i) the victim was about to attack the appellant in a manner that grievous hurt or death was possible;

(ii) the appellant acted to defend or protect himself instantaneously or contemporaneously with the threatened attack; and

(iii) the mode of manner (sic) of self-defence was commensurate or proportionate with the threatened attack.

He cited and relied on the cases of Laoye v. The State (1985) 2 NWLR (Pt. 10) 832; Ogonna Nwede v. The State (1985) 3 NWLR (Pt. 13) 444; (1985) 12 SC 32; Alou Chukwu v. The State (1992) 1 NWLR

(Pt. 217) 255; (1992) 1 SCNJ 57 at 62 and Ofoke Njoku v. The State (1993) 6 NWLR (Pt. 299) 272; (1993) 7 SCNJ 36 at 41. He then submitted that the trial court committed a fatal flaw by not holding that the prosecution failed to disprove the plea of self-defence. He gave their reasons for stating so. He however, stated that they are not oblivious of the evidence of the PW1 at page 49 line 4 and PW4 at page 60 lines 14-15 of the record of proceedings who testified that the deceased was not armed.

For Mr. Jijingi, learned counsel for the respondent, he agreed in their brief with his learned friend for the defence on the general principles of the defence of self-defence. He referred the court on the same issue to section 62 and 222(4) of the Penal Code Law, Cap. 89, Laws of Northern Nigeria, 1963 and as well as the case of Ozu v. The State (1993) 2 SCNJ 166.

He also referred to the evidence of the PW1 and PW4 on pages 47 line 31, 49 line 4 and 57 lines 12, 13, 24, 25, 28, 29 and 30 respectively of the record of proceedings to the effect also, that the deceased was not armed with any weapon when he was attacked and stabbed twice on the abdomen by the appellant.

He also referred to the admission of the appellant, of stabbing the deceased on the abdomen when, according to the appellant, the deceased was armed with exhibit ‘A’ and had attempted to stab him with same but missed him. He referred to pages 69 lines 22 to 27, at 29 to 31 and 70 lines 11 and 12 respectively of the record of proceedings. That the appellant maintained that he stabbed the deceased once and not twice. That the appellant failed to call witnesses to establish this position of his. It was this last submission that gave rise to my dealing with the effect of section 149(d) of the Evidence Act in this judgment.

Learned counsel then submitted that the appellant acted cruelly and disproportionately when he stabbed the deceased twice on the abdomen. Therefore, the defence of self-defence does not avail him.

He finally submitted that the appellant naturally intended the result which he got which is the death of Joseph Ogbada given that he chose exhibit ‘A’ with which he struck and in the process of striking, he struck twice on the abdomen of the deceased. He cited and relied on the case of Lamba Kumbin v. Bauchi N. A. (1963) L.R. 40 (sic) (it is (1963) 2 NNLR 49).

It may be relevant to see if exhibit ‘A’ belonged to the deceased as claimed by the appellant. PW1 swore under cross-examination, that the deceased did not come with any instrument. That he merely came to separate the fight. That when the appellant came to the scene, he and the deceased, started exchanging blows. That it was after the exchange of blows, that the deceased threw the appellant on the ground. That she saw when the appellant stabbed the deceased. PW2 swore in his evidence-in-chief that it was PW4 who gave him the knife used in stabbing the deceased. That he himself handed the said knife to the Police while they were in the hospital.

PW3 in his evidence-in-chief, testified that when they took over the investigation of this case, a Jack knife – exhibit ‘A’ was one of the items that were handed over to them by the Police at Okpoga.

That exhibit ‘C’ was recovered from “the accused person”, i.e. the appellant and his father by two of his officers in his team. Under cross-examination, he testified that the appellant confessed that he used exhibit ‘C’. That their investigation revealed that both exhibits ‘A’ and ‘C’ were used during the fight between the appellant and the deceased. “Both knives had blood stains on them” he stated. That he did not do anything to establish who was the owner of exhibit ‘A’. He further testified, inter alia, thus:

“1st accused (i.e. the appellant) said that exhibit ‘A’ was carried by the deceased. 1st accused told me that the deceased attempted to stab him with exhibit ‘A’ but he (the appellant) dodged the knife. I confirmed from my investigation that the deceased wanted to use a jack knife on the 1st accused … I have forgotten how I confirmed that the deceased attempted to stab 1st accused.” (Italics mine).

PW4 testified in his evidence-in-chief, inter alia, as follows:

“1st accused (i.e. the appellant) stabbed the deceased two times on the chest. 1st accused used an Army Jack knife in stabbing the deceased. I quickly retrieved that jack knife from the 1st accused. I gave the knife to PW2.”

He identified exhibit ‘A’ as the knife he recovered from the appellant. He later testified that the deceased was close to him when he was fighting with the masquerade who turned out to be the appellant. That the deceased carried nothing on him when they were going to the market. He himself held nothing.

Under cross-examination, he swore that the deceased was fighting with his bare hands. That the deceased did not have any knife on him and was not the one carrying the jack knife (exhibit ‘A’).

PW5 in his evidence-in-chief, testified that it was the Police at Okpoga that gave them a jack knife and told him that it was the knife used in killing the deceased. That the appellant denied this underlined assertion and told him that the knife he used, was at Otukpa in his father’s house. That the jack knife had blood stains on it. He further testified that the second knife – i.e. exhibit ‘C’ is an ordinary knife. He finally swore, thus:

“Nobody told me that the deceased also had a knife at the time of the fight.”

Under cross-examination, he stated that exhibit ‘A’ can cause injury, but that there was only a small blood stain on it. That he expected the knife to have blood all over. That nobody came to claim exhibit ‘A’ as his own. He maintained that nobody told him the knife belonged to the deceased. That the appellant did not tell him that the knife belonged to the deceased.

It is his further evidence under cross-examination, that the appellant brought out exhibit ‘C’ from where there were palm kernels. That there was blood stain all over exhibit ‘c’ when the appellant brought it. He also testified that he believed the appellant that he was the one that killed the deceased.

Learned counsel for the appellant has relied on the said evidence of PW4 and PW5. For the avoidance of doubt, the appellant in his defence (and as stated by PW3, and by the appellant both in exhibit ‘E’ and in his evidence in court), was emphatic that the attempt by the deceased to stab him, was futile as he dodged from the deceased’s said knife. In other words, the deceased’s said knife, never touched any part of his body.

So, the question is, if exhibit ‘A’ did not touch or strike any part of the body of the appellant, how come that it had blood stains?

One or I may ask. The appellant swore that after stabbing the deceased with his (appellant’s) own knife, that he removed the said knife “and saw blood on it”. Exhibit ‘A’ from the evidence of both the PW3 and PWS, had blood stains. The appellant, swore both in his evidence-in-chief and under cross-examination, that he hid the knife because he saw blood stains on it.

Now, the appellant testified that he used exhibit ‘C’ in stabbing the deceased. This is his evidence in respect of exhibit ‘C’, inter alia, thus:

” … I moved to one side and brought out my knife from my waist. Mine was an ordinary knife. I bought the knife in 1990 when my father wanted to kill a goat and had no knife.” He identified exhibit ‘C’ as the said knife.

Most significantly, the father of the appellant testifying as DW3, had in his evidence-in-chief told the trial court that after their attention had been drawn by three children about the stabbing of the deceased, that:

“We saw the boy stabbed pressing his stomach. We pulled off the shirt and saw blood where the boy was

stabbed. We looked for… As blood was still coming out PW1 removed her head tie and gave us ….”

In respect of exhibit ‘C’, under cross-examination, he swore inter alia, thus: “I have seen exhibit ‘C’, for the first time in this court. I did not use it slaughtering (sic) a goat in 1990.”

Then under re-examination at page 77 of the records, he swore inter alia, as follows:

“I killed a goat in 1990 during Christmas. The knife I used was different. It was 1st accused that slaughtered the goat. He roasted (sic) it and cut it into pieces. Whether it was the knife of my younger son or exhibit ‘C’ that 1st accused used I will not know. I have my knife in my house. I do not know it was my knife that my son used or a different one in 1990.”(The italics mine) The reason for the re-examination was obvious. This was having regard to the evidence of this witness-in-chief, reproduced herein above.

These evidence in my humble view, completely debunked and rubbished the appellant’s lies about his said father having no knife to slaughter a goat in 1990. It is not difficult for me to see that exhibit ‘C’ was a ruse and was invented or produced for the purposes of the defence.

If exhibit ‘C’ according to the appellant, was hidden under palm kernel “in our store after removing its cover” and according to the PW5, exhibit ‘C’ was brought out from where there were palm kernels, and exhibit ‘A’ according to the appellant, never touched him the appellant, it is not difficult for me in all the circumstances hereinabove adumbrated to hold and I do hold that it was exhibit ‘A’ of the appellant and not exhibit ‘C’ that the appellant used in stabbing the deceased which eventually resulted in his death.

This is exactly why the learned trial Judge stated that the appellant best knows how exhibit ‘c’ had blood stains on it. I have gone this far because of the submissions of the learned counsel for the appellant and on the decided authorities cited and relied on by him. This is so, because, if as found from the credible evidence of the PW2 and PW4 who the learned trial Judge believed that the deceased was not armed with any knife, and was fatally wounded or stabbed with exhibit ‘A’, then it would be nonsensical, if not absurd, in my view, for the appellant to reply on the defence of self-defence.

Self-defence it is now settled, is justified if the assault is so violent as to make the person so violently attacked, consider his own life to be in danger. Self-defence is a defence of oneself or other persons whom one is under a duty to defend against a wrong doer in prevention of a forcible and violent felony. See The Queen v. Adelodun (1959) WRNLR (Pt. 11) 114 at 119; The State v. Agbo (1973) 3 ECSLR (Pt.1) 4. It was said in Howel s case (1221) Maitland’s Select Pleas 94, that a man is justified in using against an assailant, a proportionate amount of force in defence of himself.

In the instant case, as found as a fact by the learned trial Judge, that at the time the appellant stabbed the deceased, the latter was not armed with anything, instrument or knife or exhibit ‘A’.

It is now firmly established that where a person who was attacked used a greater degree of force than was necessary in the circumstances, and thereby caused the death of his assailant, the learned trial Judge was or will be entitled, after considering all the evidence adduced to reject the issue of self-defence raised by the accused person and convict him of murder. See Duru v. The State (1993) 3 NWLR (Pt. 281) 285; (1993) 7 SCNJ 9. This is exactly what happened in the instant case where the appellant, armed with a lethal weapon exhibit ‘A’ stabbed the deceased who was unarmed and fighting with his bare hands was brutally attacked and stabbed on his abdomen, a vulnerable part of the body.

The test is said to be objective. See Laoye v. The State (supra) also cited and relied on by learned counsel for the appellant. Maye Nungu v. The Queen (1953) 14 WACA 379 and David Aganmonyi v. A.-G., Bendel State (1987) 1 NWLR (Pt. 47) 26; (1987) 1 SCNJ331 and many others.

Also settled, is that in an appropriate case, self-defence is a complete answer to a charge of murder or manslaughter. The appellant, to avail himself of this defence, must show that his life was so much endangered by the act of the deceased with the only option that was open to him, to save his own life was to kill the deceased. He must show that he did not want to fight and that he was at all material times, prepared to withdraw. See Baridam v. The State (supra) also cited and relied on by Mr. Adah; Stephen v. The State (1986) 5 NWLR (Pt. 46) 978.

“It is to be observed that the defence of self-defence is only available if there is reasonable apprehension of death or grievous harm and if the person who claims to have exercised that right had reasonable grounds for believing that the only way to protect himself from death or grievous harm was to kill his assailant.”

The learned Chief Judge then had this to say:

“It is not open to an abnormally nervous or excitable person who on being assailed by a comparatively minor assault or an assault of any nature which falls short of that which is described in the section, unreasonably believes that he is in danger of death or grievous harm. Such a person may hope for clemency from other quarters, he cannot expect it from the law. It would be surprising and indeed dangerous, if it were otherwise. The legal right to kill in self-defence can not be made to depend upon the temperament, nervous or courageous, robust or weak phlegmatic or excitable of the individual killer – for those who claim to have exercised this legal right to kill, the law insists upon one standard: it is the standard of the reasonable man …” (Italics mine)

I, with the utmost respect, agree. I adopt the same in this judgment.

In Laoye v. The State (supra) Nnamani, JSC (of blessed memory) also referred to the case of R. v. Mclnes (1971) 3 All E.R. 295 where it was stated that the defence of self-defence could not avail a prisoner who killed an unarmed person, (as the deceased in the instant case on appeal) by stabbing him with a dagger (and here, an army jack knife exhibit ‘A’ which the appellant described its component parts.)

Thus, the plea of self-defence is not open to an abnormally nervous or excitable person because the defence is predicated on the reasonableness of the apprehension of death or grievous harm. See also the case of Mallam Zakari Ahmed v. The State (1999) 7 NWLR (Pt. 612)641; (1997) 5 SCNJ 223 at276-277; (2001) FWLR (Pt. 34) 438 at 495, Per Achike, JSC (in his dissenting judgment).

It need be pointed out, that the learned trial Judge, rightly and justifiably, in my view, disbelieved the story of the appellant about exhibit ‘A’ being that of the deceased.

He stated, inter alia as follows:

“PW3 is of the view that both knives were used at the fight. He was however not at the scene of the fight.

Asked how he knew that both knives were used PW3 said the two knives both had blood stains on it. It is

however curious how exhibit ‘A’ would have blood stains where it was in possession of the deceased. 1st accused himself testified that the deceased could not reach him with the knife as he dodged the attempt of the deceased to stab him. 1st accused was therefore not stabbed. How come that exhibit’ A’ had stains on it? The only conclusion to my mind will be that it was held by 1st accused who used it on the deceased”. (Italics mine).

The learned trial Judge made other findings of fact as appear also at pages 114 and 115 of the record of proceedings. After stating some other evidence of the appellant and his statement to the Police, exhibit ‘E’, he concluded as follows:

” … This story appears too good to be true to my mind, I find as a fact that the deceased had no knife on him at the time 1st accused stabbed him. 1st accused was therefore not in any bodily danger that needed the use of a jack knife to defend himself against the deceased.

Section 62 of the Penal Code states that: ‘The right of private defence in no case extends to the infliction of more than it is necessary to inflict for the purpose of defence.” He went on thus:

“That 1st accused resorted to the use of a leather (sic) (meaning lethal) weapon against the deceased who was fighting him with bare hands takes his act outside the sphere of self-defence as envisaged by section 224(2) of the Penal Code. The defence of self-defence can only avail the accused where he had reasonable apprehension of his impending death or grievous bodily harm. See the case of Ozu v. The State (1993) 2 SCNJ 166.”

I am unable and cannot fault all the above pronouncements herein reproduced. I am in total agreement with the above findings and the law as have been decided in a string of decided authorities even by the apex court of this country. I have also in this judgment, held similar views on the story or evidence of the appellant as regards exhibits ‘A’ and ‘C’.

It has been held, that evidence which is properly rejected by a trial court, cannot ground or form the basis of the defence of self-defence or indeed, any other defence for that matter. See Bakare v. The State (1997) 1 NWLR (Pt. 52) 579; (1987) 3 SCNJ 1. Whether or not a given defence is or may be available to an accused person must be decided against the background of accepted facts or evidence. Evidence that has been properly considered and rejected as of no value or consequence, must accordingly, be discountenanced.

Therefore, once (as in the instant case), the evidence upon which the defence of self-defence in issue was founded, was sufficiently considered by the trial court and rightly, in my respectful view, rejected upon good and cogent reasons, such rejected evidence can no longer or cannot form the basis of the defence. See again Baridam v. The State (supra) at page 14.

Let me reproduced the observation of Widgery, L. J. in the case of In Julien (1969) 1WLR 839 at 843; (1969) 53 CR. APP. RA07 at 411. Said he, inter alia:

“It is not as we understand it, the law that a person threatened must take to his heels and run in the dramatic way suggested by Mr. Mchale, but what is necessary is that he should demonstrate by his actions that he does not want to fight. He must demonstrate that he is prepared to temporise and disengage and perhaps to make some physical withdrawal, and that is necessary as a feature of the justification of self-defence is true, in our opinion, whether the charge is a homicide charge or something less serious.”

I suppose that it is said that this is the modern law as against paragraph 2496 of Archbold’s Criminal Pleadings 37th Edt. (1969) citing a passage in 1 Hales pleas of the Crown 479.

I will again, pause here to touch on the statement of the appellant in exhibit ‘E’ where he stated as follows:

“I used the knife for protection, I do not think I am going to kill somebody with it.”

In his evidence in chief, he had stated that he carried a knife on that day because “it is our custom to carry a knife to protect ourselves when we appear in public masquerades”. So, the intention of the appellant for carrying a knife which turned out to be exhibit’ A’. was to use it against anybody who dared to offend or challenge him or even engage him in a fight. Said he:

“I stabbed the deceased only once. It was on the abdomen that I stabbed the deceased. I did not want to

kill the deceased when I stabbed him. I was only protecting myself I did not actually aim at the abdomen.”

So, it can safely be said that the appellant was relying on the motive for his cruel and vicious act of using an army jack knife on the vulnerable part of the body of the deceased.

It is now firmly established that what is relevant in our criminal law, is that the act of the accused person resulting in the death of the deceased must be unlawful. The mens rea or malice afore-thought, no longer governs the criminal law concepts. Motive is also irrelevant except that where it is proved, it strengthens the case of the prosecution. See Nwali v. The State (1991) 3 NWLR (Pt. 182) 663; (1991) 55 SCNJ 14 at 23; Nwaebonyi v. The State (1994) 5 NWLR (Pt. 343) 138; (1994) 5 SCNJ 86; and Mallam Zakari Ahmed v. The State (1999) 7 NWLR (Pt. 612) 641; (1999) 5 SCNJ 223 at 251 (supra), per Kalgo, JSC; citing the cases of R. v. Ball (1911)A.C. 47 (H/Lords) and R. v. Buckley 13 Cox 293, just to mention but a few.

Before concluding in respect of issue 3 of the appellant and issue 2 of the respondent, I am satisfied that from all the circumstances of this case and based on the evidence before the trial court, the appellant was the aggressor. He had, on his own admission or confession, armed himself with a lethal weapon such as exhibit ‘A’ before even coming out to display or dance for money. His intention was to use it against any person who dared to stop him in whatever a manner.

I am satisfied that it did not occur to learned counsel for the appellant, and he never addressed his mind to the glaring and proven fact, that at the time the appellant launched his attack on the deceased and stabbed him with a lethal weapon, exhibit ‘A’, that the deceased was not armed with any knife whatsoever. He, the deceased, as rightly found, by the learned trial Judge was fighting the appellant with his bare hands. Had learned counsel for the appellant realized or appreciated this solid fact, and that his client, the appellant, produced exhibit ‘C’ many days after the incident of his stabbing the deceased, it should have dawned on him that all the fuss about cause of death, contradictory and inconsistent evidence, self-defence, have ultimately been an exercise, with respect, in utter futility. My answer to the said issue is certainly in the affirmative.

Issue 4 – Sudden Fight

Although this issue was canvassed by learned counsel for the appellant at the trial, but I have observed that it is not covered by any of the grounds of appeal herein-above reproduced in this judgment. It is now firmly settled that issue or issues for determination, must relate to and be distilled from the grounds of appeal. If it does not, the consequence is that such issue or issues is or are unarguable and incompetent and must be struck out. See Igago v. The State (1999) 12 SCNJ 140 at 156 citing Azeez Okoro v. The State (1998) 14 NWLR (Pt. 584); (1998) 12 SCNJ 84; Garba v. The State (2002) 4 SCNJ 315; Igunbor v. Mrs. Afolabi & Anor. (2001) 11 NWLR (Pt. 723) 148 CA; (2001) 5 SCNJ 124 both per Karibi Whyte, JSC and Alhaji Kokoro – Owo & 6 Ors. v. Lagos State Government & 4 Ors. (2001) 11 NWLR (Pt. 723) 237 CA; (2001) 5 SCNJ 203.

I therefore, strike out issue No.4 of the appellant.

Assuming I am wrong in that I have herein above in this judgment, stated that the courts are enjoined to deal with all issues raised particularly, by an appellant, I will deal with the said issue ex abundanti cautela. Learned counsel for the appellant has also cited and relied on the case of Mato Tsoho v. The State (1986) 4 NWLR (Pt. 38) 710. The learned trial Judge agreed with the submission of the learned counsel for the prosecution/respondent – Amedo, S., Esq., State counsel, that by stabbing the deceased two times on the abdomen, the appellant took undue advantage and as such, was/is not entitled to this defence.

The learned trial Judge’s reason for so agreeing was clearly stated by him, thus:

“1st accused robbed himself of this defence when he decided to stab the deceased two times on the abdomen when the deceased was not armed as found by the court. 1st accused took undue advantage of the fact that the deceased was not armed and acted cruelly. He cannot therefore take advantage of section 22(4) of the Penal Code.”(sic) I agree with him and I have no reason to disturb or interfere with the above findings of fact which are amply supported by the material evidence before him.

I therefore, render my answer in respect of this issue also in the affirmative. I do not agree with learned counsel for the appellant, that the trial court or Judge, was not right in rejecting the defence of sudden fight. The appellant was battle ready, well armed with exhibit ‘A’ and had intended to use it on any person who dared fight him, even if the person so fighting him, was unarmed as happened in this case.

Before concluding this judgment in respect of the issues already dealt with hereinabove, what is the attitude of an appellate court to the findings of fact by the trial court, have been stated and re-stated in a line of decided cases.

It is not the function of an Appeal Court to interfere. But where on the evidence before the court, credibility of a witness is not in issue, the Court of Appeal, is in as good a position as the court of trial, in the evaluation of evidence. See Oguntade v. The State (1978) 6 FCA 40 at 45; Omoregie & Ors. v. Idugienwanye & Ors. (1985) 2 NWLR (Pt. 7) 282; (1985) 6 SC 150 at 151, Per Eso, JSC; Olubode & Ors. v. Alhaji Salami (1985) 4 SC 41 and Obodo & Anor. v. Ogba & Ors. (1987) 2 NWLR (Pt. 54) 1; (1987) 3 SC 459 at 460-461, 466; (1987) 2 NWLR (Pt. 54) 1;(1987) 3 SCNJ 82 which are civil cases. See also Paquin Ltd. v. Beauclerk (1906)AC 148 at 161 per Lord Loreburn L.C

If an appellant asserts that the prosecution has failed to prove the prisoner’s guilt beyond reasonable doubt before convicting, it is for him to establish that it is so and it is the duty of an Appeal Court to examine the assertion against the whole background of the case and in particular, against the evidence leading to the guilt of the appellant. So said the Supreme Court in the case of Edet Offiong Ekpe v. The State (1994) 9 NWLR (Pt. 368) 263; (1994) 12 SCNJ 131 at 135 citing the case of Oteki v. The State (1986) ANLR 371 at 378.

Thus, in all cases, where culpable homicide is in issue, it is very essential that the court receive evidence, in very certain terms, that the deceased died as a result of the act of the accused person. Where therefore, the circumstances of the attack on the deceased are clear and the injuries inflicted upon him as a result of the attack are graphically described, (as in the instant case) to lead to no other conclusion that the deceased died as a result of the attack and the injuries, the trial court can convict and as I have demonstrated or stated in this judgment, even if there is no medical evidence. See the pronouncement of the Supreme Court, Per Belgore, JSC in the case of Alhaji Babuga v. The State (1996) 7 NWLR (Pt. 460) 279; (1996) 7 SCNJ 217 at 228.

I therefore, hold that the learned trial Judge was justified in his conclusion when he stated as follows:

“I find as a fact that the 1st accused (meaning the appellant) during a fight with the deceased stabbed the

deceased twice on the abdomen. That this was done to the deceased that had no weapon on him. I also find as a fact that by stabbing the deceased on the stomach more than once, the 1st accused intended his (deceased’s) death or grievous bodily harm. The deceased died from the injuries he suffered at the hand of 1st accused. It is for the above reasons that I hold that the prosecution has established its case against the 1st accused beyond reasonable doubt. I convict him under section 221 of the Penal Code as charged.”

I will conclude in respect of all the issues herein above raised by referring to the powers of the Court of Appeal in section 16 of the Court of Appeal Act. The power to interfere, includes the power by way of rehearing. See Comptoir Commercial & Ind. S.P.R. Ltd. v. Ogun State Water Corporation & Anor. (2002) 9 NWLR (Pt. 773) 629; (2002) 4 SCNJ 342 at 353 and A.-G., Anambra State & Ors. v. Okeke & 4 Ors. (2002) 12NWLR (Pt. 782) 575; (2002) 5 SCNJ 318 at 333.

Issue 5 of the appellant and issue 3 of the respondent

Learned counsel for the appellant has contended that the trial court ought not to have specified the place and condition of detention. He relied on the provisions of section 303(1) of the Criminal Procedure Code (C.P.C.) which he also reproduced in their brief, thus:

“When any person is ordered to be detained during the Military Governor’s pleasure he shall not withstanding any thing in this Criminal Procedure Code or in any other written law be liable to be detained in such place and under such conditions as the Military Governor may direct and whilst so detained shall be deemed to be in legal custody.”

He has submitted that it is only the Governor who can determine the place and conditions of detention. That sub-section 1 of section 303, does not confer any person on (sic) (meaning or) the trial court to specify the place or condition of detention. It is his further submission that the detention ordered by the learned trial Judge effectively deprived the appellant the privilege to enjoy the benefit provided in section 303(2) of the Criminal Procedure Code.

He finally submitted that the trial court was not right in ordering the detention of the appellant in prison custody during the pleasure of the Military Governor/Administrator.

Learned counsel for the respondent has drawn in their brief, the attention of the court to page 118 lines 17 to 26 of the record of proceedings. During allocutus, learned counsel for the appellant is recorded as stating inter alia, thus:

“We most respectfully urge the court to apply section 272 in line with section 303 of the C.P.C. I will urge the court to order the 1st accused to be remanded at the children any young persons law.” (sic).

The learned trial Judge dutifully in my humble view, applied section 272(1) of the C.P.C. because, the appellant was about sixteen (16) years of age at the time the offence was committed. The appellant was below seventeen (17) years of age at the time he committed the offence. Section 270 of the C.P.C provides that no sentence of death shall be imposed on a person who is under seventeen years of age or on a pregnant woman.

For the avoidance of doubt, I herein reproduce the provisions of section 272(1) of the C.P.C. It provides as follows:

“Where a person is convicted of an offence punishable with death and if it appears to the court by which he is convicted that he was under the age of seventeen when he committed the offence the court shall order that he be detained during the Military Governor’s pleasure, and if the court so orders, he shall be detained in accordance with the provisions of section 303, notwithstanding anything to the contrary in any written law.” (Italics mine).

The said provision is so clear and unambiguous, that it needs no further interpretation. The learned trial Judge made the following order:

“In line with section 272(1) of the C.P.C. the convict is ordered to be detained in prison custody during the Military Administrator/Governor’s pleasure.”

In 1994, the Military were still in power/control. Because the appellant was then about nineteen (19) years of age and no longer under seventeen (17) years of age, the learned trial Judge, and rightly in my view, ordered as follows:

“The detention has to be in prison custody as the convict is now about 19 years of age.”

Learned counsel for the appellant had requested or applied to the trial court, that the appellant be detained or remanded at the Children and Young Persons Law (sic) (meaning home). Of course, that couldn’t be, as the appellant was no longer a juvenile. By his age at the time he was even entitled to vote.

I agree with learned counsel for the respondent, that section 271(1) and 303(1) are to be read together. It is after the trial court has ordered such detention during the pleasure of the Military Governor, that the convict or detainee shall be liable to be detained in such place and under such conditions as the Military Governor may direct and whilst so detained, shall be deemed to be in legal custody.

As rightly submitted by the learned counsel for the respondent, the trial court, after completing its own role or duty, never gave any conditions. It must be noted that section 303(1) of the C.P.C. did not use the words:

“notwithstanding anything in this Criminal Procedure Code or in any other written law to the contrary”.

Section 272(2) of the C.P.C. which provides that the trial court shall report to the commissioner (which commissioner it is not stated), every case in which an order has been made under the provisions of sub-section (1), in my opinion, is purely administrative.

It is not part of the order that the trial Judge is required to make under section 272(1). Learned counsel for the appellant has not complained that no such report was ever made by the trial court to the relevant authority or commissioner. Honestly, in my respectful but firm view, I hold that this issue is completely misconceived and is an exercise in futility. It has been time wasting. I however, commend Mr. Adah for his industry both at the trial court and in their said brief. My answer to the said issues 5 and 3 is rendered in the affirmative.

While concluding the judgment, I observe that the appellant through his learned counsel, never and did not relate any of the issues to any of the grounds of appeal in their brief. I also made this same observation in respect of issue 4. This is wrong and can result in the striking out of the said issues. An Appeal Court only hears and decides on issues raised on grounds of appeal. See Management Enterprises v. Otusanya (1987) 2 NWLR (Pt. 55) 179; (1987) 4 SCNJ 110 & A.-G., Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 NWLR (Pt. 66) 547; (1987) 11-12 44 SCNJ.

The real question in controversy in an appeal are the questions which arise from the grounds of appeal. This is why it is settled that issues for determination must flow from competent grounds of appeal in order to be competent. See Salami v. Mohammed (2000) 6 SCNJ 281. But in the interest of justice, I have in this judgment, dealt with all the said issues raised by the appellant, by relating or distilling them from the said grounds of appeal, perhaps as follows:

Issue 2 relates to or predicated on grounds 4 and 5, Issue 3 relates to or predicated on grounds 7 and 8

Issue 4 no grounds, Issue 5 relates to or predicated on ground 10.

Even if I am wrong or mistaken, in the end result or final analysis, this appeal is unmeritorious. It lacks substance and it fails. It is accordingly dismissed. I hereby affirm the said judgment of the learned trial Judge Nwande, J. delivered on 7th June, 1994.

---

Other Citations: (2002)LCN/1314(CA)