Agbonmwanre Omoregie V. The State (2004)
LawGlobal-Hub Lead Judgment Report
PATRICK IBE AMAIZU, J.C.A.
The appellant was convicted of murder, contrary to section 319 of the Criminal Code, Laws of Bendel State, applicable in Edo State. He was sentenced to death by the High Court of Justice, Edo State in the Benin Judicial Division.
A summary of the case of the parties is as follows:
On the 22nd day of November, 1994, one Mary Iginigie (PW1), paid a visit to her brother Friday Agbonghae (the deceased), at No.48 Isokpan Street, Benin City. On the way to her brother’s house, she saw Elizabeth Omerigie (2nd accused), plaiting her hair in a house opposite her brother’s house. It is her evidence, that she heard the 2nd accused send for Isoken Osawaru (the 3rd accused). At the time relevant to this case, the 2nd accused person, the 3rd accused person, PW1, and her husband (PW2), and the appellant lived in the same compound – No.7 Aghedo Street, off ile Mill Road, Benin City. PW1 however had packed out of the house before the incident. This was because of her misunderstanding with the 2nd and 3rd accused persons.
Continuing, PW1 said that she was conversing with the deceased in front of his house when the 3rd accused approached her. The 3rd accused asked her (PW1), if she was the one who drove her out of her husband’s house. She answered her NO. The 3rd accused slapped her and they fought. The 2nd accused joined the fight in order to assist the 3rd accused. The deceased and PW2 tried to separate them. The 2nd accused sent for the appellant (her son) while the fight was going on. The appellant rushed to the scene of the fight with a broken bottle. He joined the fight and in the process stabbed the deceased. The evidence of PW1 was corroborated by the evidence of PW2 and PW4 (the wife of the deceased). The two witnessed the fight.
The appellant made two statements to the police. The first statement was made at Ogida Police Station, Benin City to PW8. The Statement was under caution. Because, the statement appeared to be a confession, the appellant was taken to a superior police officer one Andrew Iyare. Before the officer, the appellant adopted the statement. The statement was tendered at the trial as Exhibit P6.
PW8 the police officer that investigated the case initially, in answer to a question put to him denied being told by the appellant that he (the appellant) was defending himself during the fight. PW8 also denied being told anything about the cutlass which was allegedly used on the appellant. The case file was later transferred to the State C.I.D. Police Headquarters, Benin City. It was there that PW5 took the 2nd statement of the appellant. The statement was tendered as Exhibit P3. To a question put to PW5 by the court as to whether he investigated the part of the statement of the appellant “that the deceased used a cutlass on his hand,” PW5 answered:
“I cannot remember whether he had a cutlass mark on his hand.”
The body of the deceased was identified by PW7 (the deceased’s sister) to the doctor who performed the autopsy. The doctor gave evidence as PW6. In the opinion of the doctor, the deceased died from left arm pit deep stabbed wound with rupture of the arm pit artery and the resultant hypovolemic shock. He testified also that it is very unlikely that the wound on the deceased could be self inflicted because the depth of the destruction required a force which could not be generated by an individual in an attempt to wound himself.
It was the appellant’s case that he was attacked by the deceased with a cutlass. In the appellant’s words:
“When he (the deceased) has cut me, I looked for a broken bottle. As I was going to use it on Friday (the deceased) he raised his hands and it met him on the arm pit.”
The appellant claimed that he told the police at the local station that the deceased attacked him. He claimed that he was treated for the injury the deceased inflicted on him.
The appellant, the 2nd and 3rd accused persons were arraigned before the lower court. The 3rd accused person was discharged on a no case submission. Only the appellant and the 2nd accused stood the full trial.
After the address of the learned counsel for the parties, the learned trial judge reviewed the evidence before her. She accepted the case of the prosecution and found the appellant guilty as charged. The 2nd accused was discharged and acquitted.
Dissatisfied with the decision, the appellant appealed to this court on four grounds. From the said four grounds he distilled one issue for consideration.
The issue is:-
Whether the learned trial judge properly considered the defence of the the appellant.
The respondent also formulated one issue to wit:-
Whether the prosecution had proved the charge of murder against the appellant beyond reasonable doubt in view of the totality of the evidence led by the prosecution.
In my view, the difference between the two issues is fine. I intend however to consider the appeal on the issue formulated by the appellant.
Arguing the lone issue, Longe ESQ, of counsel referred to Exhibits P3 and P6. These are statements made by the appellant. He also referred to the appellant’s evidence before the lower court. In particular, he referred to part of the appellant’s evidence in chief which runs thus:
“When he cut me, I looked for a broken bottle.”
The learned counsel also called in aid the evidence of the 2nd accused that she heard when people at the scene of the incident shouted that the deceased was coming with a cutlass. The learned counsel contended that the sum total of the evidence is that the twin defence of provocation and self defence are available to the appellant.
He then referred to the findings of the lower court on the issue of provocation. He submitted that as the defence of the appellant in Exhibit P3 was that the deceased was the first to cut him with a cutlass before he stabbed him with a broken bottle, the defence of provocation was available to the appellant. The evidence of the police investigation of the allegation if it is accepted by the court may negate the defence, the learned counsel contended. He relied on the case of Akanu v. The State (1971) 1 All N.L.R. 46 at 49 where the Supreme Court held that before provocation can reduce the offence of murder to manslaughter, the act must not be an act of revenge but the natural and justified reaction of a person who reacted immediately in anger to a situation imposed on him.
The learned counsel reminded the court that the appellant did not say that he used the broken bottle on the deceased because the cutlass was directed at his mother. It is the learned counsel’s view that the circumstances leading to the unfortunate use of the broken bottle by the appellant on the deceased constituted sufficient act of provocation. It is further his view that the learned trial judge erred by not considering the use of the cutlass by the deceased on the appellant as an act of provocation. He urged the court to hold that the learned trial judge did not avert her mind to the defence of provocation raised by the appellant.
On the issue of self defence, the learned counsel referred to the findings of the lower court. He also referred to a number of decisions on self defence including-
a). R. vs. Jinobu (1961) All N.L.R. (Pt. 4) 627
b). Njoku vs. The State (1993) 8 K.L.R. 60 at 66
c). Ahmed vs. The State (1999) 5 S.C. (Part 2) 39 at 48, and submitted that the learned trial judge having remarked that she saw a faint mark which “was not easy to discern what instrument caused the scar” misdirected herself on the facts when she held that there was no evidence of a wound. He submitted that if the prosecution’s case is that the scar was not caused by a cutlass cut, the prosecution should prove what caused it.
It is the learned counsel’s view that a court should base its decision only on the evidence before it. It is further his view that the reasons given by the lower court in preferring the case of the prosecution to that of the defence are not tenable. He relied on the case of BOZIN VS. THE STATE (1985) 2 N.W.L.R. (Pt. 8) 465 at 473.
The learned counsel referred to the observation of Oputa J.S.C, in that case, to wit-
“There is no onus on the defence to establish the innocence of an accused. The law presumes him innocent, and one does not set out to prove what is presumed in his favour.
It is the learned counsel’s view that the learned trial judge by holding that the defence of the appellant that he stabbed the deceased because the deceased used a cutlass on him is an after thought placed the burden of proof on the appellant. The learned counsel referred to the evidence of PW4 that she did not see the deceased bring any cutlass. He remarked that PW4 was giving evidence in chief when she made that statement. He cited the case of Onah v. The State (1985) 3 N.W.L.R. (Part 12) 236 at 244 where the Supreme Court observed that our courts are in duty bound to give critical examination to the evidence adduced before them in order to ensure that innocent people are not punished or the guilty set free. He referred to the following cases-
1). Esangbedo v. The State (1989) 4 N.W.L.R. (Part 113) 57 at 69 – 70
2). Opayemi v. The State (1985) 2 N.W.L.R. (Pt.5) 101 at 102
In the latter case, the learned counsel observed that the Supreme Court held that a court will not allow a defence no matter how improbable or stupid to go uninvestigated, once it raises a reasonable doubt in the case of the prosecution. He urged the court to resolve the issue in favour of the appellant.
In his reply, Irenlen ESQ., of counsel, submitted that the prosecution should prove its case beyond reasonable doubt. He was quick to add that it does not mean that the prosecution has to prove its case beyond an atom of doubt that an accused is guilty of the offence for which he is standing trial. It is the learned counsel’s view that the prosecution in the present case discharged that burden of proof which the law placed on him. The learned counsel referred to the case of The State v. John Ogbubunjo & Or. (2001) 83 L.R.C.N. P. 125, and to what the prosecution has to prove in order to establish a case of murder. He contended that the evidence of the witnesses called by the prosecution established the ingredients of murder.
Continuing, the learned counsel submitted that the defence of provocation is not available to the appellant. This is because, in the learned counsel’s view, the appellant “acted in an unusual manner by resorting to an excessive force in reaction to an imagined provocation.” He submitted that there was no evidence that the life of the appellant or that of his mother (2nd accused), was in danger when the appellant stabbed the deceased.
The learned counsel contended that the defence of self defence is not also available to the appellant. He repeated the reason he earlier gave that there was no danger to the life of the accused or that of his mother (2nd accused) at the time of stabbing the deceased.
Finally the learned counsel urged the court not to readily disturb the findings of the lower court which had the opportunity of hearing and seeing the witnesses. He relied on the following cases –
- Bakare Folorunso v. I.A. Adeyemi (1975)1 N.M.L.R. 128.
- Lucy Onowan & Or. V. J.J.I Iserhien (1976) 1 N.M.L.R. 263.
- Mohemat Sele v. The State (1993) 1 N.M.L.R. (Part 269) 279.
He urged the court to dismiss the appeal as it has no merit.
In considering the submission of the learned counsel it has to be borne in mind that in a criminal trial, there are certain defences which do not have to be proved by an accused person. These defences are three in number. They all apply to the case of assault. They are namely, consent, provocation, and self defence. In the present case, Longe ESQ of counsel is of the view that the defences of provocation and self defence are available to the appellant. It has been accepted that the defence of provocation presupposes, the loss in the accused person of self control; both actual and imagined. This loss of self control should in any given case be the motive force behind the retaliation.
On the other hand, a person acting in self defence is at all material time, master of his own passion. And, he acts, only to prevent himself from being destroyed. A careful examination of the two defences shows that they appear to be in conflict. I quickly add that it is never against an accused person to set up the two defences. It follows that I have to consider the two defences.
In the present case, it is not contested that the deep injury inflicted on the deceased by the appellant caused his death. From the evidence, the incident occurred on the 22/11/94. The appellant ran away after stabbing the deceased. He later surrendered himself to the police on the same day. He made his first statement under caution on that day. The relevant part of the statement reads –
“………. One small boy named Solo ran to inform me that I should come, that people are fighting my mother. I quickly ran to the place and on getting there I met them, while the deceased Friday and the complainant started holding me. As they were hold (sic) me, Friday pushed me. I ran back and broke bottle (sic) and as he was about holding me I used the broken bottle to stab him. When I saw that he was bleeding I ran away to one of my sister’s house at Uwelu Road to report to them what I have done. They now asked me to report myself to the police which I later did….”
The above statement was made by the appellant when the incident was fresh in his mind.
On the 28/12/94, the appellant made a 2nd statement, Exhibit P3. In the said statement he added-
“……… Friday Agbonghae (the deceased) told me that he has been waiting for me. Both of us rushed each other and we started fighting. Friday left me and went inside his house. I waited for him because I want to die with him as he said. The next thing, Friday came out with a cutlass. He used the cutlass to cut my left hand and shoulder. I then ran to a pit they use as dust bin and picked a bottle. I intended to stab Friday with the bottle on his hand but because he pushed it off, the bottle hit his arm pit. When I saw that he could not fight me again I ran away ….”
I pause here to observe that it was only in the above statement that mention was made of the use of a cutlass during the fight. I also observe that none of the persons interviewed by the police during the investigation mentioned that he or she heard any body shout “Ebo run, Friday is coming with a cutlass.”
In the course of hearing the case PW5 who took the 2nd statement of the appellant was asked by the Court –
“Question: The 1st accused said the deceased used cutlass on his hand.
Did you investigate it?”
He answered- “I cannot remember whether he had cutlass mark on his hand.”
Longe ESQ., of counsel urged this court to allow the appeal on the authority of Opayemi v. The State (1985) 2 N.W.L.R.(Part 5) 101 at 102 to 103. The Supreme Court in that case per Obaseki J.S.C., observed –
“The Court will not allow a defence no matter how improbable or stupid to go uninvestigated once it raises a reasonable doubt in the cake of the prosecution.”
The above pronouncement by the apex Court is qualified. The qualification is that the uninvestigated part of the case must raise a reasonable doubt on the prosecutor’s case. The question then does the alleged uninvestigated part of this case raise a reasonable doubt on the prosecutor’s case?
According to Black’s Law Dictionary, Seventh Edition, P. 1272:-
“Reasonable doubt is a term often used probably pretty well understood, but not easily defined. It is not a mere possible doubt, because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which after the entire comparison and consideration of all the evidence leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty of the truth of the charge.”
In the case of Mufutau Bakare v. The State (1987) 3 S.C. p.1 at p.35 it was held that evidence that is not accepted cannot possibly create a doubt on the mind of a fair minded jury. It follows that if the court disbelieved the uninvestigated part of the present case, it is the end of the matter. This is because there will be no evidence on which to consider the existence of a reasonable doubt.
Part of the judgment of the lower court in respect of this issue reads:-
“On self defence, 1st accused said that the deceased took a cutlass and wounded him on the hand. There is no evidence of the wound. The 1st accused showed a very faint scar on the hand. The court had the opportunity of seeing the scar. I do not believe it was the cutlass wound that caused it. PW8, P.C. Abada who was the 1st police who was in charge of the case said that 1st accused did not tell him anything about the cutlass. There was no evidence that the wound was treated. He said it was treated but he did not state where it was treated. I do not believe that the deceased used cutlass on him. The 1st accused did not in his first statement, Exhibit P6 mention that the deceased used cutlass on him. I believe this is an after thought.”
In my view, if that part of evidence is regarded as an after thought by the court it could, not have created a reasonable doubt in the mind of the court. It is beyond peradventure that if a cutlass was used on the appellant, blood would have dropped from the wound. By the time the appellant gave himself up to the police the blood would have caked and consequently would be visible. I am of the opinion that in the light of the foregoing, the present case is not caught by the pronouncement of the apex court in the case of Opayemi v. The State supra.
Because of the importance we attach to this submission of learned counsel for the defence we intend to consider the submission from another angle. The common Law system which we in this
Country inherited from our Anglo Saxon Colonial past depends so much on the doctrine of binding precedent. A judgment of a superior court has a binding authority on all subordinate courts. It is not in doubt therefore that the case of Opayemi v. The State supra creates a binding precedent on this court. It is equally not in doubt that if the facts of the present case are different from the facts of that case, this court would not be bound by the decision. In his paper – “The place of the Bar in the Third Republic” – delivered by Nnaemeka-Agu, J.S.C. at the Awka Bar Association Annual Dinner in December, 1988, the learned Justice of the Supreme Court, observed that lawyers should pass as social engineers and not as legal technicians. It is his view that-
“A legal technician relies on the authority of decided cases and is hamstrung by judicial precedent. A social engineer recognizes the fact that the facts of any two cases can never be the same, that they are often distinguishable one from another.”
One has therefore to read carefully the case of Opayemi v. The State supra, in order for one to appreciate the con in which the Supreme Court made that pronouncement. In that case –
“it was common ground that the victim of the assault, PW1 David Folarin Sofola was wounded in an encounter between the appellant and himself. There were sharp differences however between the prosecution and the defence;
1) as to circumstances of the encounter as regards the place and the mode of the encounter
together with the number of people involved and
2) as to the person who inflicted the wound or injury on PW1.
The prosecution’s case was that it was a solo encounter between the appellant and PW1. But the appellant’s case was that PW1 and his group numbering over 10 persons invaded his uncle’s house with a view to set it on fire,
When PW1 poured a gallon of petrol on the walls, he in order to prevent him from setting the house on fire engaged him in a fight and as the fight progressed, PW1 got the upper hand and knocked him down with PW1 on top.
One Ademola a member of the group aimed a matchet at him to cut off his head, the matchet met the left hand of PW1 and cut it off. This version of the appellant’s story to the Police was tendered as Exhibit D. At the trial there was total absence of evidence from the prosecution about investigation carried out by the police. In fact the investigating police officer and Ademola did not give evidence. The appellant admitted that he was present and saw the assault on PW1. He denied that he inflicted the wound on PW1. According to him it was inflicted by a person by name Ademola.”
Of course the above facts are very dissimilar with the facts in the present case. It was in the con of these dissimilar facts that the apex court made the pronouncement. From all I have said this court cannot be bound by that case.
Still on Exhibit P3, the statement was made exactly one month and six days after the first statement, Exhibit P6 was made. And it was in Exhibit P3 that the issue of the use of a cutlass was raised for the first time. It does seem to me that there is no rule of law that once an accused person raises a defence, no matter how belated, if the defence was not investigated by the police the accused person should go scot free.
We were also urged to hold that “the circumstances leading to the unfortunate use of the broken bottle by the appellant on the deceased constituted sufficient act of provocation.”
I do not think this submission is borne out by the evidence before the lower court. The following excerpt from the statement of the appellant, Exhibit P3, confirms my view. It reads-
“……………The next thing Friday came out with a cutlass. He used the cutlass to cut my left hand and shoulder. I then ran to a pit they use as dust bin and picked a bottle. I intended to stab Friday with the bottle on the hand, …………………………………………..”
Although the appellant did not add in his statement that he broke the bottle before stabbing the deceased, the autopsy report indicates that, the relevant part reads –
“The rugged sharp cut should be as a result of caused (sic) by an iron with multiple sharp edges, a bottle or glass with sharp edges.”
It is my view that the submission did not take into account the time it took the appellant to run to the dust bin and come back and stabbed the deceased. When all these are considered, it is evident that there was sufficient time for passion to cool. In that case the stabbing of the deceased was a deliberate act of revenge. And as death resulted there from, it is murder.
The next question is to consider whether the defence of self defence is available to the appellant. Longe ESQ., of counsel, urged the court to hold that when an accused person armed with a lethal weapon is confronted with one that is armed with a lethal weapon, and kills the other, the survivor has a right to the defence of self defence. He placed reliance on the case of Ahmed v. The State (1999) 5 S.C. (Part 2) 39 at 48. I am afraid, that is not my understanding of that decision. The Supreme Court did not by that case lay down the rule that in a trial for murder once there is evidence that both parties were armed with lethal weapons, the defence of self defence is available to the survivor. The Supreme Court has, time without number warned that a court in considering the defence of self defence must examine carefully the peculiar facts of the case and give its decision in the light of those facts.
This court was referred to the case of Queen v. Reuben Enyi Jinobu (1961) 1 All N.L.R. p.627. In that case the Supreme Court held that in order to establish the defence of self-defence the evidence must show or tend to show that the appellant believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm than by using such force as he did.
In the present case, there is no evidence what so ever that the appellant believed that he was in danger of death when he stabbed the deceased. According to the appellant he ran to the dust bin and picked a bottle with which he stabbed the deceased.
In the case of R. v. Walfer Innes 55 C.A.R. p.551, it was held that where an issue of self defence arises, the failure of the defendant to retreat when it was possible and safe for him to do so is simply a factor to be taken into account in deciding whether it was necessary for the defendant to use force and whether the force used by him was reasonable. In the present case, the evidence is that the appellant did not only not retreat, he launched an attack on the deceased. And, the deceased died.
The evidence of the 2nd accused (the mother of the appellant) confirms this view. Part of the evidence reads-
“….When Friday asked the 1st accused did you come to fight for your mother? I then started to drag 1st accused. As I was doing this, I heard people saying 1st accused should run that Friday was bringing a cutlass and had a cutlass in hand. So I released 1st accused and ran away, leaving 1st accused. I ran home.”
It is necessary to mention again that the lower court did not believe this story of the deceased attacking the appellant with a cutlass. It is my view that the disbelief is in consonance with the natural drift and probabilities, which on the totality of the evidence before that court is natural to expect Onuoha v. The State (1988) 3 N.W.L. R. (Part 83) 460 at 475.
In my view also, the legal right to kill in self defence cannot be made to depend upon the temperament or excitement of an individual killer.
For the reasons given above, this court can see no reason to differ from the decision of the lower. Accordingly, the appeal is dismissed as having no merit.
Appeal is dismissed.
Other Citations: (2004)LCN/1654(CA)
