John Agbo V. The State (2004)

LawGlobal-Hub Lead Judgment Report

SUNDAY AKINOLA AKINTAN, J.C.A. 

 

This is an appeal from the judgment delivered by Ekumankama, J. sitting at Ohafia High Court formerly in Imo State but now in Abia State. The judgment was delivered on 24th April, 1991, incharge No. HOH/3C/86. The appellant was arraigned before the court on an information in which he was charged with the murder of one Arua Okpo Onuka contrary to section 319(1) of the Criminal Code, Laws of Eastern Nigeria, 1963, applicable in Imo State. The particulars of the offence are that the appellant, John Agbo, on the 26th day of January, 1985 at Ndi Uduma Awoke, Ohafia in the Ohafia Judicial Division murdered Arua Okpo Onuka.

At the trial, the accused pleaded not guilty to the charge preferred against him. Seven witnesses testified for the prosecution and the accused gave evidence in his defence. But he called no witnesses. Learned Counsel for the parties thereafter addressed the court. The learned trial Judge then reserved his judgment. In the reserved judgment delivered on 24th April, 1991, the learned Judge held that the prosecution had proved its case against the accused.

He accordingly found him guilty of the charge of murder and sentenced him to death by hanging.
The accused was dissatisfied with the verdict and he has appealed to this court. Two original grounds of appeal were filed against the verdict. But with leave of this court, four additional grounds of appeal were added bringing the total number of the grounds of appeal to six.

The parties filed their brief of argument in this court. The appellant formulated the following three issues as arising for determination in the appeal:
“(1) Whether the essential elements of murder and the guilt of the appellant were established beyond reasonable doubt as laid down by section 138(1) of the Evidence Act before he was convicted for murder and sentenced to death.
(2) Whether the appellant was exculpated from criminal responsibility for the death of the deceased by virtue of the provisions of section 24 of the Criminal Code.
(3) Whether the conviction and sentence to death of the appellant was done in accordance with the law.”

The respondent, on the other hand, formulated two issues. The two issues are as follows:
“(1) Whether the charge of murder preferred against the appellant was proved by the prosecution beyond reasonable doubt.
(2) Whether the trial of the appellant was valid in law.”

As I consider the three issues formulated in the appellant’s brief adequately cover those formulated in the respondent’s brief, the issues formulated in the appellant’s brief will be adopted in resolving the questions raised in the appeal.

The brief facts of the case are that the appellant was a 24-year old police constable at the time of the incident. He enlisted into the Nigeria Police on 5th October, 1982 and after a three-month course at the Enugu police training school, he was posted to Uwani police station also in Enugu in January, 1983. His first assignment after passing out from the police training school was as an orderly to the divisional police officer in Uwani, Enugu. His next posting was as an orderly to a lady magistrate also in Enugu. The incident that led to his trial in the instant case took place while serving as an orderly to the lady magistrate, Mrs. Jumbo Ofor.

On 26th January, 1985, the lady magistrate sent the appellant to escort her driver, whom she sent to deliver some bags of cement from Enugu to Arochukwu. The appellant left as directed. He was dressed in his police uniform and carried a berretta pistol loaded with seven rounds of ammunition. There were three of them in the vehicle used in conveying the cement: the driver of the lorry, the driver of the magistrate and the appellant. They delivered the bags of cement at Arochukwu as they were instructed. The incident occurred on their journey back to Enugu. It was at Ndi Uduma Awoke road junction on their way back to Enugu, a Peugeot 504 car driven by the deceased was said to have stopped at the center of the road. The car stopped so as to discharge some passengers it carried. The van in which the appellant was traveling had to stop as the road was blocked by the car driven by the deceased.

The appellant came out of the van and went to the driver (the deceased). He asked him why he blocked the road with his car. An argument between the deceased and the appellant then followed. It was in the course of the exchange of words that the appellant was said to have shot the deceased with the pistol he carried with him. There are three eye-witness accounts of the incident given by three witnesses. Two of the witnesses, PW3 & PW5 were passengers in the car driven by the deceased, while the third (PW4) was the driver of the van in which the appellant was traveling back to Enugu on that day.

The account of the incident as given by Fidelis Onuka Okpogho PW3, a relation of the deceased is inter alia as follows:
“…The deceased was a driver. He carried us from Elu Ohafia Motor Park heading towards Arochukwu. At Ndi Uduma Awoke junction, a passenger wanted to disembark and the deceased driver stopped and cleared on the right hand side outside the tar mark. At this moment a van was coming on the opposite direction from Arochukwu. The van stopped after passing us about 5 metres before our car. All of a sudden, the accused who was dressed in police uniform came out of the van and moved towards us. At the time the deceased driver had gone into his seat in the car to move. The accused came to the deceased and asked him why he parked his car there. The deceased tried to explain, but the accused was pointing to the deceased. And as the deceased was still explaining the accused pulled out his pistol from the scarbald and threatened to shoot the deceased driver. All of a sudden, the accused pointed the pistol behind the left ear of the deceased driver and fired. Blood was rushing out from the nose and ear of the deceased…”

Although, the witness at first denied under cross-examination that there was any struggle between the deceased and the appellant on the day, he however admitted that he observed that the uniform of the appellant was torn when he later saw the appellant at the police station after the incident on the same day. He also later, admitted that the driver and the appellant were struggling over the key to the vehicle and that the appellant had not pulled out his gun at the time they were struggling over the car key.

The second eye-witness account was given by Anthony Nweze (PW4), the driver of the van which carried the cement from Enugu to Arochukwu and in which the appellant was returning to Enugu on the day of the incident. His account of the incident is as follows:
“…At Arochukwu, we unloaded the cement and left for Enugu. On our way back and at a place very near to the Ohafia Army Barracks, the road was narrow. There was a taxi cab which packed on the left, but on its own right hand side. I slowed down to enable me pass the taxi cab on the narrow road. As I slowed down, the accused jumped down and the other person who was in the front, asked him to get into the vehicle for us to go on. I had not passed the taxi cab when the accused jumped down. I was concentrating on my driving. I heard the accused struggling with the people and suddenly, I heard a sound of gun shot…”

The third eye-witness account was given by Rosaline Onuka (PW5) who was also a relation of the deceased and a passenger in the taxi cab. Her account of the incident is as follows:
“…When we got to Ndi Umuma village in the deceased taxi cab there he stopped to drop a woman passenger.
There I saw the vehicle in which the accused was coming from the direction of Arochukwu and they met us where the deceased taxi cab was. The accused person came down and was asking the deceased why he obstructed the road. The deceased replied that he did not obstruct the road. At the time the deceased was standing by the booth of the car. After dropping the woman’s loads he was returning into his taxi cab. The deceased was on the seat of his taxi cab. One of his hands was on the steering, while the other was on the key and the accused pointed his gun at the ear of the deceased and released the shot which killed the deceased.”

The witness told the court under cross-examination that there was a struggle between the appellant and the deceased and it was over the deceased’s car key which the appellant wanted to take from the deceased.

The other evidence presented by the prosecution was from Dr. Iroham Wilson (PW1), the medical doctor who performed a post-mortem examination on the deceased’s corpse. His evidence is very brief and scanty. He said, inter alia, as follows:
“On 26/1/85, I performed a post-mortem examination on the body of Arua Okpo Onuka. The condition of the corpse was fresh, packed in shirt and a pair of trousers. On further examination, I found that it was a corpse of a man about 4ft 7 inches, with a penetrating wound, probably due to gun shots seen in inferm posterior aspect of the right ear into the head. No exit point was seen. No significant rigor mortis. In my opinion, the cause of death is the penetrating gun shot wound in the head of the deceased.”

It is clear from the doctor’s evidence that the opinion he expressed about the cause of death was not based on any thorough examination of the corpse with a view to finding out exactly the nature of the damage done by the penetrating wound probably due to gun shot.

He did not tell the court whether he opened up the skull to see how deep the penetrating object was. He also did not say if he examined the heart to see what its condition was and if the death was wholly caused by the penetrating wound or that death was merely expedited by the penetrating wound in case the deceased had any heart disease or any other internal disease for that matter. It is therefore not enough for a doctor called upon to examine a corpse with a view to expressing a professional opinion as to the cause of death to merely have a look at the corpse and give an opinion without actually carrying out an examination of the vital organs of the body that make the human body function and see which of these organs was damaged as a result of which death occurred.

The appellant’s case was that there was a struggle between him and the deceased and that during the struggle, the deceased wanted to take possession of his pistol. It was during that process that the gun was accidentally fired and the bullet from it hit the deceased. He alleged that during the struggle, the deceased tore his uniform.

The learned trial Judge, based on the above evidence placed before him, held that the prosecution had proved its case beyond any reasonable doubt. He rejected the defence of accident put up by the appellant. The court then convicted the appellant and sentenced him to death by hanging.

It is submitted in the appellant’s brief that the learned trial Judge failed to advert his mind to the inconsistencies in the evidence tendered by the prosecution and that if he had taken the inconsistencies into consideration, he would not have rejected the defence of accident put up by the appellant. Reference is made to the evidence of PW3 and PW5, who told the court that the deceased was sitting at the driver’s seat when he was shot by the appellant and that the bullet entered through the right ear. It is argued that since the driver’s seat was on the left hand side of the taxi cab, the bullet fired from the pistol could only have entered the victim’s head through the left ear if he was actually shot while he was sitting on the driver’s seat in the car.

The fact that the evidence was that the bullet entered through the right ear and coupled with the evidence that there was a struggle between the deceased and the appellant over the car key as given by PW4 and PW5, go to support the case for the defence that the shooting was accidental which happened during the struggle. The evidence given by PW5 to the effect that the deceased was standing by the car booth when the appellant accosted him is also said to go to support the appellant’s case that it was not correct that the appellant accosted and shot the deceased while he was in the car.

The evidence of Fidelis Onuka Okpogho (PW3) that the appellant shot the deceased behind the left ear is said to be in conflict with that of the doctor (PW1) who said that the bullet penetrated by the right ear. The learned trial Judge is therefore said to have misdirected himself when he held at page 60 lines 24 – 29 of the record that:
“The deceased was shot at the back of his left ear and this suggests that the shot came from behind. The accused could not be telling the truth when he said that the gun exploded while they were struggling over the gun.”

Similarly, it is submitted that the learned trial Judge was speculating when he held at page 60 lines 21 – 24 of the record that: the deceased could not have been on his seat in his car trying to start the car and at the same time held the accused’s dress and gripped his gun which was at his waist. It is submitted that it was clear from the evidence led at the trial that there was a struggle as a result of which the gun was accidentally discharged. It is finally submitted that for the prosecution to succeed, its case must be consistent. As the prosecution failed to explain the discrepancies, they ought to have been resolved in favour of the appellant. The failure of the learned trial Judge to advert his mind to these material contradictions and inconsistencies and to make a finding on them should vitiate the conviction and lead to a miscarriage of justice.

The point taken up in the appellant’s second issue is whether the appellant was exculpated from criminal responsibility for the death of the deceased by virtue of section 24 of the Criminal Code. Reference is made to the evidence of the doctor who performed the post-mortem examination on the corpse (PW1). It is argued that the evidence of the doctor (PW1) supported the contention that there was a struggle. This is said to be consistent with the appellant’s case that there was an accidental discharge. It is therefore, submitted that the appellant ought to have been covered by the provisions of section 24 of the Criminal Code.

It is submitted in reply in the respondent’s brief on the inconsistencies in the evidence led in support of the prosecution’s case that the instances of contradictions referred to are not material contradictions which could vitiate the outcome of the trial. The decision in Odu v. The State (2003) 7 NWLR (Pt. 666) 283, is cited in support of this contention. Reference is made to the evidence given by two of the eye-witnesses (PW2 and PW5) as to the place the bullet went into the head of the deceased and it is submitted that what would amount to left or right hand side of a witness would depend on where the witness was standing when the appellant released the shot.

It is also submitted on the cause of death that when a person attacked another person with a lethal weapon and the person attacked died on the spot like in the instant case, it is not necessary to prove the cause of death since it can properly be inferred that the wound inflicted on the deceased cause the death. The decision in Akpan v. The State (1994) 9 NWLR (Pt. 368) 347 is cited in support of this contention.

On the defence of accident raised by the appellant, it is submitted that the facts established do not support that defence. That the defence of accident can only be available to an accused if he can show that the act of killing the deceased was a surprise to him and not deliberate or intentional. The decision in Madaki v. The State (1996) 2 NWLR (Pt. 429) 171, is cited in support. The facts of the instant case are said to support a premeditated act of the appellant which resulted in the instant death of the deceased.

It is clear from the evidence presented by the prosecution in this case that the deceased died as a result of the wound he received from the gun shot. The main defence of the appellant was that he did not fire the gun voluntarily. It was an accidental discharge. In other words, the appellant is raising a defence under section 24 of the Criminal Code which provides, inter alia, that:
“Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident…”

The position of the law is that once this defence is successfully taken, the accused would be entitled to an acquittal. This is because to make a man liable for an offence which he does not know that he is committing and is unable to prevent is totally repugnant to the ordinary man’s conception of justice and would bring the law to contempt. See Sweet v. Parsley (1970) AC 132, per Lord Reid; Aguda, Criminal Law and Procedure of the Southern States of Nigeria, 3rd Ed., 1982, para. 1094, page 483; and Ajose v. The State (2002) 7 NWLR (Pt. 766) 302.The appellant in the instant case claimed that what happened during the struggle he had with the deceased was that the pistol he tucked by his waist accidentally discharged one of the live bullets in it which hit the deceased and caused his death. The word ‘accident’ is defined in The Concise Oxford Dictionary, 5th ed., page 9 as:
“Event without apparent cause, unexpected, unforeseen course of events; unintentional act, chance, fortune…”

An accidental discharge of a firearm by a person unintentionally and without the attendant criminal malice or negligence resulting in death will not lead to a conviction in a criminal trial. See Iromantu v. The State (1964) 1 All NLR 311; Chukwu v. The State (1992) 1 NWLR (Pt. 217) 255; and Ajose v. The State supra.

The question to be resolved therefore is whether there is sufficient evidence on record upon which the defence could be sustained. As already stated earlier above, seven witnesses testified for the prosecution. The appellant gave evidence in his defence but called no witnesses. Among the seven witnesses that testified for the prosecution, three were present at the scene of crime. Two were police officers who investigated the case while the remaining two are the medical officers who performed the post-mortem examination on the corpse and the man who identified the corpse to the doctor. Each of the three witnesses that were present at the scene of crime admitted that there was a struggle between the deceased and the appellant even though they differ as to the time the struggle took place.

Fidelis Onuka Okpogho (PW3) who told the court that the deceased was his relation, said that the accused, after coming out of the van which brought him to the place, moved towards the deceased’s car in which himself and Roseline Onuka (PW5) were passengers. He said further thus:
“All of a sudden, the accused who was dressed in police uniform came out of the van and moved towards us. At the time the deceased driver had gone into his seat in the car to move. The accused came to the deceased and asked him why he parked his car there. The deceased tried to explain but the accused was pointing to the deceased. And as the deceased was still explaining the accused pulled out his pistol from the scarbald and threatened to shoot the deceased driver. All of a sudden, the accused pointed the pistol behind the left ear of the deceased driver and fired. Blood was rushing out from the nose and ear of the deceased. We all jumped out from the car and I saw a car from Arochukwu, I then explained what happened to the driver of that car.

The driver picked me on her vehicle and we pursued the accused, who had jumped into their own vehicle and moved away. My intention was to come to the police station Ohafia, to report to the police. Luckily, on reaching the army barracks, the vehicle in which the accused was in branched to the barracks and we followed them. The soldiers went to the scene of shooting and later reported the matter to the police at Ohafia. We were brought from the army barracks to the police station where I made my statement.”

The witness did not mention that there was any struggle between the deceased and the appellant in his evidence in chief. But this was however, extracted from him under cross-examination. The relevant questions and answers in the cross-examination are as follows:
“Q. Did you observe that the accused and deceased struggled over a key?
Ans. I observed that the driver and the accused were struggling over the key to the vehicle.
Q. It was during the time the accused and the deceased were struggling over the ignition key and the gun that the gun exploded and wounded the deceased.
Ans. At the time they were struggling over the key the accused had not pulled out his gun.”

The account of Anthony Nweze (PW4), the driver of the van in which the appellant traveled on that day is very scanty on the question. He told the court, inter alia, thus:
“On our way back and at a place very near to the Ohafia army barracks the road was narrow. There was a taxi cab which packed on the left, but on its own right hand side. I slowed down to enable me pass the taxi cab on the narrow road. As I slowed down the accused jumped down and the other person who was in front asked him to get into the vehicle for us to go on. I had not passed the taxi cab when the accused jumped down. I was concentrating on my driving. I heard the accused struggling with the people and suddenly I heard a sound of gun shot. After the gun shot, the accused jumped back into our vehicle and I ran away. I drove away with my vehicle to the army barracks Ohafia and reported the incident to the army officers, who later brought me to the Ohafia police station.”

The witness was cross-examined and some of the questions put to him under cross-examination and his answers are as follows:
Q. Did you see when the accused fire at the deceased?
Ans. I saw the accused person fire on the deceased.
Q. Did you see the accused fire the shot?
Ans. I did not see the accused fire the deceased, but the accused person admitted he fired the shot.

That is why I took the accused to the army barracks.
The account of the incident as given by the third eye-witness, Roseline Onuka (PW5), is briefly as follow:
“… The accused person came down and was asking the deceased why he obstructed the road. The deceased replied that he did not obstruct the road. At the time the deceased was standing by the booth of the car. After dropping the woman’s loads he was returning into his taxi cab. The deceased was on the seat of his taxi cab. One of his hands was on the steering, while the other was on the key and the accused pointed his gun at the ear of the deceased and released the shot which killed the deceased.”

Based on the above evidence, the learned trial Judge found as a fact that the firing of the gun was not accidental. He said as follows:
“The deceased was shot at the back of his left ear and this suggests that the shot came from behind. The accused could not be telling the truth when he said that the gun exploded while they were struggling over the gun. I do not believe the accused. I believe the evidence of the third prosecution witness and the 5th prosecution witness who testified that the accused fired at the deceased at the left ear, while the deceased was sitting on his seat in the vehicle.”

Since the above finding of fact and conclusion of the learned trial Judge are supported by the evidence led before him, it is inappropriate for an appellate court to set aside the finding of fact or tamper with his conclusions based on the finding of fact. In the result, the defence of accidental discharge is not available to the appellant having regard to the evidence led in the case.

The next question to be resolved is whether there were material contradictions and inconsistencies in the evidence led by the prosecution in support of its case. The contradiction and inconsistency raised in the appellant’s brief centred around, whether the bullet hit the deceased by the left or right ear.

The law is settled that it is not every trifling inconsistency in the evidence of the prosecution witnesses that could be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issue in question before the court and thus, create doubt in the mind of the trial Judge that an accused is entitled to benefit therefrom. See Okonji v. The State (1987) 1 NWLR (Pt. G 52) 659; The State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548; Wankey v. The State (1993) 5 NWLR (Pt. 295) 542; Azu v. The State (1993) 6 NWLR (Pt. 299) 303; and Theophilus v. The State (1996) 1 NWLR (Pt.423) 139.

In the instant case, the main question to be resolved by the court was whether or not, the appellant fired the gun that hit the deceased on the head.

The description of the exact spot or part of the head where the bullet penetrated the head is immaterial. All that need to be established are whether it was the appellant that fired the gun and if so, whether the bullet fired from the gun hit the deceased on the head and resulted in his death. All these questions were satisfactorily answered in the instant case. The so-called inconsistencies referred to in the appellant’s brief are therefore very immaterial.

In conclusion, there is no merit in the entire appeal. I therefore, dismiss it. The judgment of the lower court including the sentence of death passed on the appellant is hereby affirmed.

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Other Citations: (2004)LCN/1538(CA)