Clement Oguonzee V. The State (1997)
LawGlobal-Hub Lead Judgment Report
IGE, J.C.A.
This is an appeal against the judgment of Edokpayi J. delivered on 1st March, 1996 on a murder charge No. B/16c/95. The appellant Clement Oguonzee an Asst. Superintendent of Police was arraigned before the Benin High Court on the offence of murder of Remigious Mekoba contrary to Sec. 319(1) of the Criminal Code Cap. 48 Vol.II Laws of Bendel State of Nigeria 1976 applicable to Edo State.
In the particulars of the offence stated in the information, the appellant was alleged to have shot and murdered one Remigious Mekoba at Oluku Junction along Benin/Lagos Express Way within Benin Judicial Division on 18/8/94. On 28th September 1995 the accused/appellant pleaded not guilty to the charge of murder.
The prosecution called 4 witnesses while the appellant gave sworn evidence for his own defence but called no witness.
After hearing addresses by the defence counsel and the prosecuting legal officer, the learned trial Judge delivered a reserved judgment on 1/3/96 wherein he found the appellant guilty of the offence of murder and sentenced him to death accordingly.
The appellant has appealed against this conviction. In the notice of appeal filed on 7th March, 1996, the appellant raised the following 2 grounds of appeal.
“(1) The decision is altogether unwarranted unreasonable and cannot be supported having regard to the evidence.
(2) The learned trial Judge erred in law when he held:
“I accept the evidence adduced by the prosecution in support of this case as true and reject the evidence of accidental discharge put up by the accused person as untrue”.
Particulars
(a) The evidence adduced by PW4 was not supported by Exhibit “B” the statement he made to the police;
(b) There was no previous quarrel between the accused and the deceased.
(3) Further grounds of appeal to be filed on the receipt of the records of appeal.”
In this court on 22/10/96 the appellant sought leave to file and argue 2 additional grounds of appeal.
He was granted leave and the following additional grounds were deemed properly filed and served.
(3) The learned trial Judge erred in law for not properly evaluating the evidence of P.W.2 and therefore came to a wrong conclusion to the effect that the evidence of P.W.4 corroborated the evidence of P.W.2.
Particulars:
(i) P.W.2 was not a ballistician as to bring him within the precincts of an expert regarding the distance from which the pistol which killed the victim exploded.
(ii) P.W.4 did not give the distance from which the pistol exploded in his statement to the police. His evidence in this regard should have been taken as an afterthought.
(iii) The absence of any evidence from the police in the appellant’s team should have weighed in favour of the ‘accused .
(iv) P.W4 had related his story to many persons at UBTH which said story was not consistent with his statement to the police especially, the invention of the distance of 7 feet to 10 feet which became very crucial in the consideration of corroborative evidence accepted by the trial court.
(v) The trial Judge did not consider the casual way in which the police investigated the case having regard to the circumstances. The investigating police officer who visited the scene of crime did not measure any distance at all.
- The learned trial Judge misdirected himself and or did not direct himself at all as to whether a case of negligence could be made out in favour of the accused.
Particulars:
(i) The accused did give an uncontradicted evidence that a pistol could on its own explode.
(ii) The trial court did not say what conduct of the accused after the incident could lead anybody to say that the accused wanted to kill for killing sake.
(iii) The policeman who was alleged to have said “No No”, was not called to give evidence bearing in mind that the accused was the leader of the team and that the evidence of P.W. 4 to the effect that one other policeman said ‘no, no’ was not in P.W.4’s statement to the police.
(iv) The trial court could have considered a case of negligence and not having done so led to a miscarriage of justice”.
The appellant in his brief of argument formulated 5 issues thus:
(i) Whether, in the evaluation of evidence the trial Judge was right to have held that the evidence of P.W.2, not an eye witness, corroborated the evidence of P.W4, the deceased’s brother having regard to the circumstance of the case.
(ii) Whether the evidence of the doctor P.W.2, who was not a ballistician could be regarded as the evidence of an expert in respect of the distance i.e between 7 feet to 10 feet as the point of discharge of the pistol as to rule out the possibility of a struggle between the accused and the deceased to lead to the discharge of the pistol in respect of which the trial Judge held as follows:- “I do not believe that the deceased gripped the pistol of the accused person or that the pistol accidentally exploded during any struggle for possession or repossession of the pistol.” Could the trial Judge hide under the cloak of I believe or do not believe? See Akinfe v. The State (1988) 3 NWLR (Pt.85) 729 at 747; Bozin v. The State (1985) 2 NWLR (Pt.8) 465 at 473 respectively. (iii) Whether in the evaluation of evidence the learned trial Judge properly considered the particular aspect of P.W.4’s evidence at page 13 lines 19-3 where he said, “when we got to the hospital one of the doctors came and asked what happened and when I told him what happened he shouted ‘Jesus’. Another student also came and asked me what happened and I told him”. In the circumstance the story of 7 feet to 10 feet and distance of shot must have become common knowledge in the hospital whereas the question of distance was not part of P.W.4’s statement to the police nor did the police investigate it.
(iv) Whether the ‘trial Judge could not have considered a case of negligence on the part of the accused person as to reduce the charge from murder to manslaughter and sentence him accordingly.
(v) Whether the police carried out proper investigation of this matter”.
For the respondent the following 3 issues were formulated for determination:
(i) Whether the learned Judge rightly accepted the evidence of the prosecution and rejected the evidence of accidental discharge put up by the appellant;
(ii) Whether the evidence of the medical doctor (P.W.2) corroborated the evidence of P.W.4
(iii) Whether a case of negligence could be made out in favour of the appellant to reduce the offence from murder to manslaughter.
The counsel for the appellant in formulating his issues for determination has breached the rules pertaining to formulating of issues. Issues must not exceed the grounds of appeal. This court and the Supreme Court have always frowned at proliferation of issues for determination. In this case the appellant has multiplied the issues pertaining to Ground 3. From this ground alone the appellant has formulated Issues 1, 2 and 3. Even his Issue 5 does not relate to any of the grounds but was built up from the particulars of Ground 3.
The principle governing the formulation of issues for determination is that a number of grounds could where appropriate, be formulated into a single congruous issue. It is perfectly undesirable to split the issues in a ground of appeal. See the case of Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139.
In this case the appellant’s Issues 2 and 5 are not covered by any ground of appeal and could therefore not form issues for determination in this appeal. In such a situation the court should discountenance them and all the arguments advanced in their support. This is exactly what I will do in this case following the principles laid in the following cases of Labiyi v. Anretiola (supra); British American Insurance Co. Nig. Ltd. v. Omolayo (1991) 2 NWLR (Pt. 176) 721; Modupe v. State (1988) 4 NWLR (Pt. 87) 130 at 157; Ofondu v. Niweigha (1993) 2 NWLR (Pt. 275) 253. Issues 2 & 5 are hereby struck out as non sequitur.
Before going into the appeal proper, I shall briefly summarize the facts of this case. On 18/8/94 one Remigious Mekoba and his brother Vincent Mekoba were travelling from Lagos to Imo State in a Volvo car driven by Remigious. At a certain point between Ugbowo and Oluku Junction along Benin/Lagos Express Road, some policemen including the appellant stopped them at a check point.
Remigious and his brother Vincent didn’t see the policemen in time hence they drove past the checking point. They had to reverse the car to the police checking point. One of the policemen asked them why they failed to stop when stopped but Remigious Mekoba replied that they have eventually stopped. At that stage the appellant, an Asst. Superintendent of Police who was in charge of that checking point opened the front door of the car, drew out Remigious out of the car and slapped him. As he Remigious laid his head on the bonnet of his car in pains, the appellant moved backwards to a distance, pointed his gun at Remigious and shot him on the left part of his chest. Remigious then shouted to his brother saying “Vincent, I am dying, I am dying, I am dying”.
As Vincent rushed to the aid of his brother, they both fell down. When P.W.4 Vincent got up the appellant pointed his gun to him but he was stopped by the shouting of another policeman who said “No. no, no”. After the shooting. Vincent and some policemen carried Remigious in his Volvo car and drove to the University of Benin Teaching Hospital where a doctor confirmed him dead. That is the story as told by the prosecution. The accused denied the charge and pleaded accidental discharge during a scuffle with him by the deceased.
I shall consider this appeal on Issues 1, 3 & 4 as formulated by the appellant. I must commend the respondent’s counsel for formulating relevant issues relating to this appeal based on the 4 grounds of appeal filed by the appellant. The 3 issues formulated by the respondent are very germane to this appeal and are in line with appellant’s Issues 1, 3 & 4. Now to issue 1 which reads thus: “Whether in the evaluation of evidence, the trial Judge was right to have held that the evidence of P.W.2, not an eye witness corroborated the evidence of P.W.4 the deceased’s brother having regard to the circumstances of the case”.
This issue is almost identical with Issue 2 formulated by the respondent. The counsel for the appellant in this case has lumped up together the argument in respect of all the issues formulated by him leaving the court to sort out which is which. With due respect to the learned counsel for the appellant I must say that his brief falls short of the standard expected in this court. I had the mind of putting aside his arguments and consider only that of the respondent who has set out his issues and arguments on them methodically and according to the rules of brief filing – See Order 6 r. 3 (1-5).
But this case being a murder appeal, where the life of the appellant is at stake the sins of his counsel should not be visited on him.
It has been argued on behalf of the appellant that the learned trial Judge relied heavily on the evidence of P.W. 4 and the alleged corroborative evidence of P.W.2 the medical doctor. Counsel conceded the evidence given by the doctor to the extent of the injury resulting from the discharge of the gun but his contention is as to the distance from which the pistol exploded. Counsel said P.W.4 didn’t mention the distance of 7ft – 10ft in his statement to the police and that the investigating police officer P.W.1 who visited the scene of crime did not measure any distance from which the shot was fired.
For the respondent it was submitted that the trial court was right in accepting the evidence adduced by the prosecution while rejecting the spurious evidence of accidental discharge introduced by the appellants. The learned trial Judge was said to have been perfectly in order on the issue of credibility of witnesses and his findings of fact should not be reversed because they are not perverse. In support he cited the cases of Mufutau Bakare v. State (1987) 1 NWLR (Pt. 52) 579 at 580. Abdullahi v. State (1985) 4 SC 183 at 192; (1985) 1 NWLR (Pt.3) 523.
The learned trial Judge in his judgment said both the accused person and the 4th P.W. are ad idem in their evidence that the missile which killed the deceased emanated from the pistol held by the accused/appellant on that day. Even the learned counsel for the appellant in his brief of argument conceded that much that the evidence of the doctor P.W.2 to the extent of the injury found on the deceased resulted from the discharge of the gun.
These concessions have narrowed down the issues involved in this appeal to whether or not the discharge was accidental or intentional.
The 4th P.W.’s evidence is that of an eye-witness and the learned trial Judge had the opportunity of watching his demeanor in the box and he believed him. The appellant made a heavy weather of the fact that P.W. 4 didn’t include in his statement Exhibit ‘B’ to the police the question of the accused stepping backwards for 7 – 10ft before firing the pistol at the deceased. The appellant referred to it as a contradiction in the evidence of the prosecution. I seem to agree with the view of the learned trial Judge that the issue of 7ft distance before shooting is only an enlargement of P.W.’s previous statement to the police and not a contradiction. What is important in this case is who fired the gun that caused the wounds found on the deceased by 2nd P.W. and the wounds that resulted into the death of the deceased?
Under cross examination by counsel for the appellant the doctor gave the following evidence.
Cross examination by S.I. Osifo Esq.
“No other missile other than gun could have caused the wounds I found on the corpse. A pistol is a gun, double barrel is a gun. Any of these can inflict the injury I am talking about. The gun would have been fired within the range of 7 and 10feet from the deceased. If two persons were struggling for possession of the gun and it exploded, it cannot inflict the type of injuries I found on the corpse of the deceased and which I have just described to this court. If the gunman fired the gun about 2 feet from the deceased, it cannot cause the type of wounds I have described and which I found on the corpse in this case. If the gun is fired one foot from the victim, the injuries will no longer be the same as I have described”.
In his evidence in chief before the court, P.W.4 gave the following account of how the incident happened:
“On 18/8/94, I was coming from Lagos with my senior brother called Remigious in a car. We were going to Awomoma in Imo State of Nigeria. We were coming from Lagos. As we were on speed, we passed the police and he reversed the car back. One of the policemen came to us and asked him why we did not stop and my brother replied that he has now stopped. Another policeman then came up to us and opened the front door and drew my brother out of the car and slapped my brother. As he slapped my brother my brother used his hands in holding his jaw and bent down and laid his head on’ the bonnet of his car. That policeman who drew my brother out of the car and slapped him then drew backwards to a distance of about 7 feet and pointed a gun in his hand and shot my brother through his left chest and my brother shouted my name saying, “Vincent, I am dying, I am dying, I am dying’ He was now holding his left breast with both hands. I then rushed out from the car and held my wounded brother. Myself and my brother fell down and as I got up the policeman who shot my brother faced me and pointed his gun at me. Then one of the policemen around shouted “No, No, No”, and the policeman who shot my brother then lowered his arm and kept the gun. Then myself and about four of the policemen conveyed my brother to the waiting pick-up van of the police………………………………………..I can identify the policeman who slapped and shot my brother with gun. The accused person is that policeman who drew my brother out of the car, slapped him and drew back from my brother for a distance of about 7ft before pointing the gun at my brother and shooting at my brother. I later made statement to the police in this case. The accused person shot my brother along the express way at about 9a.m. in the morning”.
This witness in continuation of answers to his cross examination by the counsel to the accused/appellant stated thus:
“When the policeman slapped my brother, my brother did no other thing apart from shouting, holding his jaw with both hands and putting his head on the bonnet of his car. I refute the suggestion that my brother engaged the policemen in a scuffle and I deny that it was during the scuffle that the gun exploded and hit my brother”.
These 2 witnesses gave evidence before the trial Judge. He believed their evidence. The evidence of the P.W.2 was found to have supplied a corroboration of the evidence of P.W.4 – the brother of the deceased. The 4th P.W. was consistent, categorical and forthright in his evidence and in my view the learned trial Judge was right in accepting his testimony as true. In Exhibit ‘B’ he did not mince words about the action of the appellant. He said and I quote the relevant portion of his statement:
“……As my brother was about to answer the question, one of them fired him on the chest and my brother called me two times before he fell down ……….. I can identify the policeman that fired my brother. My brother did not struggle with any policeman.”
When giving his evidence in court this witness identified the appellant as the person who slapped and shot his brother with a gun in the chest.
From the day he made a statement to the police, this witness knew the person who fired the shot that killed the deceased and the circumstances of the firing. In Exhibit ‘B’ he was sure and very certain that the deceased did not struggle with any policeman. In court he refuted the suggestion by the defence counsel that the deceased engaged the policeman in a scuffle. He denied that it was during the scuffle that the gun exploded and hit his brother.
This credible evidence coupled with the nature of injuries found on the deceased during a post mortem examination in my view has reinforced the case of the prosecution and rendered the story of the accused/appellant that his gun accidentally exploded on that day as incredible and untenable. The learned trial Judge was right in rejecting this evidence of the accused/appellant that the pistol exploded while the deceased and himself were struggling for the possession of the pistol.
Looking at the learned trial Judge’s evaluation of the entire evidence before him and the reasons given before making his findings, I am satisfied that he has put the totality of the testimony adduced by both parties on each side of the scale and seen which preponderates not by the number of witnesses called on each side but the quality or the probative value of the testimony by the witnesses. See the case of Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C. 91 at 93. The learned trial Judge did not simply say I believe this witness and I believe that witness. He made a good appraisal of the evidence and ascribed probative value to each aspect before making his findings of fact.
It is my candid view that the learned trial Judge’s findings in this case can just not be faulted, and I do not intend to interfere with them.
The attitude of the Court of Appeal is well settled that findings of fact made by a trial Judge are matters peculiarly within his domain and he is presumed to be correct. He saw the witnesses and heard them and unless his findings are perverse and unsupportable by credible evidence, the Court of Appeal will not interfere with them.
See the cases of Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683;
Balogun & Ors. v. Agboola (1974) 1 ANLR (Pt. 2) at 66;
Bakare Folorunso v. Adeyemi (1975) 1 NMLR P. 128.
The appellant’s counsel has tried to discredit the evidence of P.W.4 because he is a brother to the victim. He cited in support the case of Hausa v. The State. It is true the court should exercise caution in accepting the evidence of a relation of the victim. The learned trial Judge in this case adverted his mind to this fact before he believed the evidence of the only eye witness and his evidence was corroborated by the evidence of the doctor. This witness is not a tainted witness neither was his credit shaken in the witness box. He is also not shown to be biased – See the case of Jimoh Ishola v. The State (1978), 9 & 10 S.C. 81 at 100. Moreover there is no law which prohibits blood relations from testifying for the prosecution where such a relation is an eye witness of the crime committed.
See the cases of Adelumola v. The State (supra); Onafowokan v. The State (1986), 2 NWLR (Pt. 23) 496 at 503; Hauso v. The State (1994), 6 NWLR (Pt. 350) p. 281 at 308.
The counsel for the appellant has also contended that failure of the prosecution to call any of the other policemen in the team led by the appellant on the day of the incident was fatal to the prosecution’s case. He refers the court to Sec. 138(1) and Sec. 148(d) of the Evidence Act. Sections 138(1) of the Evidence Act and Sec. 148(d) of the Evidence Act not withstanding, the prosecution has no duty to call a host of witnesses to prove its case. There is no rule of law which imposes an obligation on the prosecution to call a great number of witnesses. All they need to do is to call enough material witnesses to prove their case and in doing so they have a direction in the matter:- See the cases of:
Okonofua & Anor. v. State (1981) 6 – 7 SC 1 at 18. Samuel Adaje v. State (1979) 6 – 9 SC 18 at 28. Ali v. The State (1988) 1 NWLR (Pt. 68) 1.
Sec. 179(1) of Evidence Act provides thus:
“(1) Except as provided in this section no particular number of witnesses shall in any case be required for the proof of any fact.”
As a matter of fact the Supreme Court has held in the case of Igbo v. The State (1975), 9 – 11 SC. 129 that it is not necessary for the prosecution in order to discharge the onus of proof laid upon it to call a large host of witnesses.
It is enough if evidence is called sufficient to discharge the onus. Also there is no rule of law or practice which prevents a court from convicting an accused for murder upon the evidence of one eye witness in the case where there is no suggestion that the witness is an accomplice once the court is satisfied with the evidence given.
In the instant case the accused/appellant was charged for murder.
It is well settled that a charge of murder is established when the prosecution proves the following ingredients beyond reasonable doubt.
a. That the deceased has died.
b. That the death of the deceased has resulted from the act of the accused.
c. That the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
See the cases of:
Akinfe v. The State (1988) 3 NWLR (Pt. 85) 729.
Onah v. The State (1985) 3 NWLR (Pt. 12) 236.
In this case the prosecution has led credible evidence that the deceased Remigious Mekoba has died. They have also satisfied the court that the death of the deceased Remigious Mekoba has resulted from the gun shot by the accused/appellant.
The learned trial Judge had considered all the defences that may avail the accused/appellant including the defences of provocation, self defence, insanity and negligence through accident. He has rightly come to the conclusion that the prosecution has proved its case of murder against the accused beyond all reasonable doubt. From the above holdings, Issues 3 & 4 have been resolved against the appellant. The statement of P.W.4 to the police vis-a-vis his evidence in court was well considered by the learned trial Judge before accepting his evidence as against that of the accused/appellant.
It is my candid view that the learned trial Judge considered meticulously a case of possible negligence in favour of the appellant in order to reduce the charge of murder to manslaughter. He could not but reject the accused’s defence of accidental discharge amidst glaring evidence of intentional shooting of the deceased by the appellant. A person is taken to intend the natural and probable consequences of his acts. In this case the accused shot the deceased on 18th day of August along Benin/Lagos Express Road and from the facts of the case the only possible inference which the court can draw and has drawn is that he intended to kill the deceased. This he did and the learned trial Judge has rightly convicted the appellant on a charge of murder and sentenced him to death accordingly.
On a final analysis this appeal fails as lacking in merit. The conviction for murder and sentence of death imposed by Edokpayi J. on the appellant on 1/3/96 is hereby confirmed. Appeal dismissed.
Other Citations: (1997)LCN/0276(CA)
