Ekpenyong Etim Eyo V. The State (2009)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

The appellant, Ekpenyong Etim Eyo, was arraigned before the High Court of Cross River State, sitting in Calabar, on a one count charge for the offence of murder of one Emmanuel Essien Umoh contrary to Section 319(1) of the Criminal Code, Cap 31, Vol. II, Laws of Cross River State of Nigeria, 1983. At the trial, 2 witnesses testified for the prosecution while for the defence only the convict testified on his own behalf. At the end of the trial, Hon. Justice F. E. Ita, rejected the defence of accident put up by the appellant and convicted him of the offence of murder and sentenced him to death by hanging.

Dissatisfied with the judgment, the appellant appealed to this court on 12 grounds from which he distilled three issues for determination in the appellant’s brief of argument dated 26/2/08 and filed the same day. The issues are as follows:

“1. Considering the state of evidence whether or not the learned trial Judge adequately considered the defence of accident raised by the appellant before reaching the decision convicting the appellant of murder Grounds 1, 4, 7, 9 and 10.

2. Considering the evidence of PW1 whether or not there exist material contradictions cogent enough to disturb the verdict of the learned trial Judge – Grounds 2 and 8.
3. Whether or not considering the evidence, particularly of PW1, PW2, DW1 Exhibit A, B and C the prosecution proved the offence or murder beyond reasonable doubt necessitating the verdict of guilt entered against the appellant by the trial court – Grounds 3, 5, 6, 11 and 12.”

The respondent in its brief dated 12/5/08 and filed on 13/5/08 but deemed properly filed by this court on 30/10/08, also distilled three issues for determination. The issues are set out herein below:

“1. Considering the state of evidence, whether or not the learned trial Judge adequately considered the defence of accident raised by the appellant before reaching the decision convicting the appellant of murder.

2. Considering the evidence of PW1, whether or not there exist material contradictions, cogent enough to disturb the verdict of the learned trial Judge.
3. Whether or not, considering the evidence particularly of PW1, PW2, DW1, Exhibit A, B & C, the prosecution proved the offence of murder beyond reasonable doubt, necessitating the verdict of guilt against the appellant by the trial court.”

Upon being served with the respondent’s brief of argument, the appellant filed a reply brief dated and filed on 30/10/08. At the hearing of this appeal the parties adopted and relied on their respective briefs of argument.

In arguing Issue NO.1, the appellant’s counsel, Mr. Nta submitted that the appellant, in his extra-judicial statement, Exhibit B, told PW2, the Investigating Police Officer (IPO) that he was fighting with one Akpan Eyen. While they were fighting, the said Akpan Eyen brought out a knife. He forcibly took the knife from Akpan Eyen and he told him that he would use the knife to wound him. As he was fighting with the said Akpan Eyen, the deceased, Emmanuel Essien Umoh rushed in between them and the knife got the deceased on the left side of his stomach. Learned counsel referred to the evidence of PW1, who testified that the appellant killed the deceased with a small knife and that the deceased had no problem with the appellant and this confirms the appellant’s evidence. He then concluded that the defence of accident under section 24 of the Criminal Code put forward by the appellant was never rebutted all through the trial. Mr. Nta referred to Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683 at 692-693; Turaki V. State (1995) 3 NWLR (Pt.381) 63 at 75; Adeyemi v. The State (1991) 6 NWLR (Pt. 195) 1 at 35; Chukwu v. State (1992) 1 NWLR (Pt. 217) 255 at 269 and Iromantu v. R. (1964) 1 All NLR 311 and submitted that an event which occurs by accident as used in Section 24 of the Criminal Code describes an event totally unexpected by the doer of the act and also not reasonably to be expected by any ordinary person, the reasonable man in law. He contended that the onus is on the prosecution to prove that the appellant fought the deceased and intentionally stabbed him to death. He submitted also on this issue that where an accused person led unchallenged and irrebuttable defence, the trial Judge is bound in law to consider such defence even when the accused never raised it, and failure to consider the defence, any finding or conclusion made thereunder is erroneous and perverse. He relied on Oghor v. State (1990) 3 NWLR pp. 501 – 502; Kim v. State (1992) 4 NWLR (Pt. 233) 17 at 28; Uwaekweghinya v. State (2005) 9 NWLR. (Pt.930) 277 at 248; Apishe v. State (1971)1 All NLR 50 and Dangari v. State (1968) 1 All NLR 242, and concluded that the trial Judge on the evidence laid before him ought to have acquitted the appellant.

On Issue No. 2, learned counsel submitted that the evidence of PW1 in court is inconsistent with his previous statement, Exhibit A, regarding the circumstances surrounding, the killing of the deceased, the, person who identified the corpse of the deceased to the Doctor who performed the past mortem. While PW1 said in his evidence in chief that he identified the corpse of the deceased, under cross-examination PW1 said it was his younger brother.

The past mortem report, Exhibit C, says it was Etim Pius Edem who identified the corpse and not PW1. Also that Exhibit C contains a report of the nature of the injury. While PW1 under cross-examination, said that the wound was on the shoulder groove, Exhibit C maintains that the deceased sustained many cuts an the right and left side of the head, right side of the neck and multiple defence injuries on both wrists and back of the hand. He concluded that these are many inconsistencies that the trial Judge ignored and the evidence of PW1 should have been treated as unreliable as was done in Okolo v. State (1974) 2 SC 73; Igabele v. State (2006) 6 NWLR (Pt. 975) 100 at 120; Onubogu v. State (1974) 9 SC 1 and Akogwu v. State (2000) 2 CLRN 27 at 37. Counsel also submitted that if a witness gives oral evidence which contradicts his previous statement in writing, his evidence should be treated as unreliable. He referred to Akogwu V. State (supra); R V. Joshua (1964) 1 All NLR 1 at 4 and Aderemi V. State (1975) 9/11 SC 115. Mr. Nta concluded that the inconsistencies and contradictions in the evidence of PW1 are material and fundamental enough to disturb or affect the verdict of the lower court as was done in Chukwu & Anor. v. State (2007) 13 NWLR (Pt. 1052) 420 at 465 – 467.

On Issue No. 3, Mr. Nta submitted that considering the evidence of PWs 1 and 2, DW1, Exhibits A, B and C, the prosecution failed to prove the charge against the appellant beyond reasonable doubt. He pointed out that Exhibit C, the past mortem report, was tendered through PW2 and Dr. Paul Jibrin who performed the post mortem was not called to testify therefore, the evidence as to Exhibit C, and its entire content amount to hearsay. He cited Ekpo V. State (2003) 7 NWLR (pt. 712) 292 and 304. Relying on Gabriel V. State (1989) 5 NWLR (Pt. 122) 457 at 459 and submitted that there being no eye witness as to the act of killing it was wrong for the learned trial Judge to have believed the story of PW1 and PW2 on the nature of the wound. He also pointed out that, the defence of accident raised by the appellant was unchallenged and uncontradicted throughout the trial. Therefore, the appellant ought to have been discharged and acquitted.

Learned Deputy Director of Public Prosecution, Ministry of Justice, Cross River State, Mr. Eyo U. Eyo, submitted on Issue NO.1 that what is in contention is not whether the appellant did not kill or cause the death of the deceased, but whether the killing was intentional or accidental. He submitted that the defence of accident raised by the appellant was challenged and rebutted by PW2 when he said that there was nobody existing called Akpan Eyen.

Learned counsel submitted, that though PW1 did not witness the stabbing, he heard when the deceased shouted, “Ekpenyong has killed me” and as he ran to the scene, he saw the deceased in a pool of his own blood and he saw the appellant running away from the scene with a knife. Counsel submitted that, that amounted to res gestae and it is sufficient to discharge the burden of proof on the prosecution. He relied on Vorgho V. State (1992) 2 All NLR 535 which facts are similar to the one in the instant appeal. Counsel referred to Chukwu V. State (supra); Adelumole V. State (supra) and submitted that the appellant who admitted under cross-examination that he could have walked away from the scene after disarming the deceased and after also admitting that he intended to wound Akpan Eyen with the knife, cannot claim accident. He concluded that the trial Judge was quite right when he rejected the defence of accident and convicted the appellant.

On Issue NO.2, counsel submitted that the issue in the instant appeal is not as to who identified the corpse of the deceased or whether PW1 was tying stick or bamboo; rather the issue is whether the death of the deceased was as a result of the act of the accused. He contended that the contradictions referred to by the appellant are so immaterial that it does not affect the justice of the case, whereas the evidence of the prosecution show categorically that Emmanuel Essien Umoh is dead and that his death was caused by the unlawful act of the appellant therefore, the conviction of the appellant was a natural consequence. It was contended for the respondent that though the medical officer who conducted the autopsy was not called, the fact that the appellant stabbed the deceased with a knife and he died not too long thereafter, there was a manifestation of an intention to kill. Moreover, medical evidence is not even a must to prove murder. He referred to Ehot v. State (1993) 4 NWLR (Pt. 290) 644 at 663 – 664.

On Issue NO.3, it is the respondent’s contention that the evidence of the prosecution showed that the deceased was, before the brutal attack by the appellant on the 31/7/03, alive, hale and hearty. The appellant brutally attacked the deceased with a knife at about 3.30 pm on 31/7/03 and he died at about 5 pm. the same day at the University of Calabar Teaching Hospital, Calabar. The appellant admitted that he stabbed the deceased and when the deceased fell down the appellant ran away with the knife and went into hiding. On the defence of accident, the prosecution led evidence to show that the appellant did not fight with Akpan Eyen as alleged and in fact the said Akpan Eyen does not exist. Learned counsel submitted that even if Akpan Eyen existed and the appellant fought with him, the appellant would still be guilty of the offence of murder when he stabbed the deceased instead of Akpan Eyen, whom the appellant admitted he had made up his mind to stab or cause grievous bodily harm. He referred to Sections 332 and 335 of the Criminal Code. He also relied on section 316(2) & (3) of the Criminal Code and submitted that it is immaterial that the appellant did not intend to hurt the deceased but Akpan Eyen. He relied on R. V. Manye Nungu 14 WACA 379; Ibikunle V. State (2007) 3 MJSC 184 at 200 – 201; Uyo V. State (1986) 1 All NLR 106 at 112 and Garba V. State (2000) FWLR (Pt. 24) 1448 at 1460.

On the authenticity of Exhibit C, the medical report, counsel submitted that the defence did not object when it was tendered and admitted in evidence. He pointed out that if the defence had insisted that Dr. Jibrin be called for the purpose of cross-examination the court would have called him pursuant to the proviso to section 42(1) (a) of the Evidence Act. Counsel then concluded that from the evidence in the record, the prosecution proved the case against the appellant beyond reasonable doubt.

I have carefully perused the reply brief filed by learned counsel for the appellant, Mr. Nta, and in my respectful view, no new issues of law or point was addressed in it, rather it is merely a repetition and an embellishment of the same issues and points raised in the main appellant’s brief. The respondent did not raise any new issues or new points of law in the respondent’s brief of argument. It only replied to the points or issues raised by the appellant in his brief of argument. In fact, the respondent formulated the same three issues for determination without any modification.

A reply brief, as the name implies, is a reply to the respondent’s brief. A reply brief is filed when an issue of law or an argument raised in the respondent’s brief calls for a reply. A reply brief should deal with only new points arising from the respondent’s brief. In the absence of a new point a reply brief is otiose, and the court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief. See Mozie V. Mbamalu (2006) 15 NWLR (Pt. 1003) 460 at 469 – 497. For emphasis, it may be necessary to refer to the provisions of Order 17, Rule 5 of the Court of Appeal, 2007. It provides:

“The appellant may also, if necessary, within fourteen days of the service on him of the respondent’s brief file and serve or cause to be served on the respondent a reply brief which shall deal with all new points arising from the respondent’s brief.”

The above provision is very clear, very simple, plain and unambiguous therefore, it should be given its ordinary and natural grammatical meaning. Going carefully through the respondent’s brief, I cannot see any new issue raised in it. In the circumstance I shall discountenance the appellant’s reply brief. See also Longe V. FBN Plc. (2006) 3 NWLR (Pt. 967) 228; Ogboru V. Ibori (2006) 17 NWLR (Pt. 1009) 542 and E.I.I.A. V. C.I.F. Ltd. (2006) 4 NWLR (Pt. 969) 114.

I have carefully considered and reflected on the issues for determination formulated or distilled by the parties in this appeal. Interestingly enough, both the appellant and the respondent distilled identical and similar issues without any modification. In the circumstance, I shall adopt and rely on the issue formulated by the appellant for the determination of the instant appeal. At this juncture I must say that the counsel for the parties in this appeal presented very lucid and articulate arguments or submissions in their respective briefs of argument. This is the way it should be done. Having said that much I shall proceed to consider the substance of the instant appeal.

For the prosecution to secure conviction in a charge of murder, it must prove the following:

(a) that the deceased died;

(b) that the death of the deceased was caused by the accused; and

(c) that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.

See Omomga V. State (2006) 14 NWLR (Pt. 1000) 532 at 554; Ogba V. State (1992) 2 NWLR (Pt. 222) 164; Ubani & Ors. V. State (2003) 18 NWLR (Pt. 851) 224 and Chiokwe V. State (2005)5 NWLR (Pt. 918) 424 at 440.

In the instant appeal, there is no dispute as to the fact that one Emmanuel Essien Umoh was stabbed with a knife at about 3.30 pm. at No. 78 Jebs Road in Calabar and he died at the University of Calabar Teaching Hospital, Calabar, at about 5 pm. on 31/7/03. This is clear from the testimony of PW1, the father of the deceased, Edet Essien Umoh, who conveyed the deceased to the said hospital. PW2, the Investigating Police Officer, Inspector Okon Isangedighi, testified that the deceased, Emmanuel Essien Umoh died on 31/7/03. He also testified that one Dr. Jibrin performed autopsy on the deceased and issued a report which was admitted at the trial court as Exhibit C.

It is significant that the appellant in his testimony, as DW1, before the trial court stated that, Emmanuel, PW1’s son died. See also Exhibit B, the confessional statement of the appellant. It is therefore clear that the prosecution proved beyond reasonable doubt that one Emmanuel Essien Umoh died on 31/7/03. The first ingredient is established and proved.

In respect of the 2nd ingredient, to wit; that the appellant caused the death of the deceased, there is no controversy. PW1 gave a detail narrative of the events that led to the death of the deceased. According to PW1 there was a quarrel between him and the appellant over a fence which he erected with sticks. The deceased told the appellant not to abuse his father. PW1 told the deceased to go into his house while he returned to continue with mending the fence. Shortly afterwards he heard the deceased shout: “Ekpenyong has killed me”. PW1 ran to the scene and saw the deceased lying in a pool of his blood. He saw the accused running away from the scene. He took the deceased to the University of Calabar Teaching Hospital where he died at about 5 pm on 31/7/03.

The appellant himself did not deny stabbing the deceased in his evidence in chief as DW1 before the trial court. He also admitted stabbing the deceased in his confessional statement, Exhibit B.

It is therefore clear that it was the act of the appellant that caused the death of the deceased on the 31/7/03. The second ingredient of the offence was proved beyond reasonable doubt before the trial court. See Uyo V. A-G. Bendel State (1986) 1 NWLR (Pt. 16) 418 at 426 and Alabi V. State (1993) 9 SCNJ 109.

Generally, in criminal cases, the burden of proving the guilt of an accused person is on the prosecution and except in a few isolated cases, it never shifts onto the person accused. The defence relied on by the appellant is that he stabbed the deceased accidentally while fighting with one Akpan Eyen. Where the defence of accident is raised by an accused the onus is on the prosecution to negative it. See Okeke V. State (1999) 22 NWLR (Pt. 390) 246 at 286.

At this juncture, it is clear to me that the main issue in contention is not whether the appellant caused the death of the deceased but whether the death of the deceased was caused intentionally or accidentally. This is the substance of Issue No. 1 formulated by the appellant.

It is significant to note that the trial Judge considered the defence of accident raised by the appellant extensively at pages 40, 41 and 42 of the printed record. The learned trial Judge duly considered the defence of the appellant in his evidence in chief as DW1 and his confessional statement, Exhibit B that he was fighting with one Akpan Eyen when the deceased suddenly rushed into the fight and was stabbed by the knife that the appellant was holding. The learned trial Judge found that based on the evidence before the court there was no Akpan Eyen and there was no fight. That notwithstanding, the learned trial Judge still considered the evidence of the possibility of there being a fight in case he was wrong in his first findings and came to the conclusion that the defence of accident was not available to the appellant.

From the evidence of PW2, the Investigating Police Officer, it became clear that there was no one existing called Akpan Eyen. PW2 under cross-examination testified as follows:

“I inquired and, discovered that there was nobody existing called Akpan Eyen. So many people lived in the compound. I asked neighbours and none of them knew Akpan Eyen…

I asked the complainant father of the deceased, and he said there was nobody like Akpan Eyen.”

See page 16, lines 1-5 of the printed record.

Also, PW1 at page 12, lines 15 – 18 under cross-examination that:

“… I don’t know Akpan Eyen. There were people in our compound apart from accused and deceased. I do not know that the accused was fighting with another person when my son intervened.”

Again, PW1 testified that his deceased son shouted when he was stabbed by the appellant that “Ekpenyong has killed me”. On hearing that, he rushed to the scene of crime where he met his son lying in a pool of his blood and he saw the appellant running away from the scene. PW1 saw only the appellant running away from the scene. I do not believe that the said Akpan Eyen disappeared into the thin air.

It is trite law that in criminal cases the burden of proof is always on the prosecution and, except in a few isolated cases, it never shifts to the person accused of committing a crime. However, the burden of establishing the defence of accident is on the appellant. The duty on the prosecution is to prove the case against the appellant beyond reasonable doubt and not to establish, his defence. It should be noted that the appellant was present in court, when PWs 1 and 2 testified to the effect that there was no one known as Akpan Eyen or that Akpan Eyen is non-existent. The appellant did not challenge or contradict the evidence of PWs 1 and 2. So there is no good reason for the trial court to reject their evidence on that point.

From the appellant’s confessional statement, Exhibit B and his evidence before the trial court at page 23, he knew Akpan Eyen and he knew where he lives but he did not call the said Akpan Eyen to testify in support of his defence or at least in support of his story or evidence that the said Akpan Eyen exist, particularly so when PWs 1 and 2 have testified unequivocally that Akpan Eyen does not exist. Where a piece of evidence is not challenged or contradicted, such evidence will be accepted as proof of a fact it seeks to establish. Nwede V. State (1985) 3 NWLR (Pt. 13) 444. In State V. Oka (1975) 9 – 11 SC 17, it was held that where evidence of a witness is uncontradicted or unchallenged that is the evidence that the court would relate the applicable law. See also Agbeghon V. State (2000) 7 NWLR (Pt. 666) 686. The unchallenged evidence of PWs 1 and 2 completely rebutted the defence of the appellant, because if Akpan Eyen does not exist, then there could hot have been any fight. If there was no fight with Akpan Eyen, then the appellant’s stabbing of the deceased cannot be an accident, therefore, the defence of accident raised by the appellant before trial court is not available. In my view, Akpan Eyen is a figment of the appellant’s imagination. I, therefore, agree with the learned trial Judge’s finding at page 41 of the record that there was no fight between the appellant and Akpan Eyen. The above notwithstanding, the learned trial Judge at pages 41 – 43 considered the possibility of a fight between the appellant and the said Akpan Eyen and examined the fight scenario stated by the appellant.

At this juncture, it is important that I refer to the relevant portions of the appellant’s statement in Exhibit B and his oral testimony before the trial court at page 24, lines 8 – 13. In Exhibit B at page 47 of the record, the appellant said:

“While we were fighting Akpan Eyen brought out a knife. I struggled the knife with him until I over power (ed) him and collected the knife. I told him I (will) use this knife to wound him. As I was about wounding Akpan Eyen with the knife, Emmanuel Essien Umoh “m” rushed in and the knife gothim on the left side of his stomach.”

In the appellant’s oral testimony before the trial court at page 24, lines 8 – 13, he said:

“We fought and people came to the scene. I hit him (Akpan Eyen) on the ground. When he got up he removed a knife from his trouser and tried to stab me with the knife. I held his hand and turned his hand to his back and collected his knife from him. I threatened to stab Akpan Eyen but deceased ran in and the knife stabbed him on his ribs. The boy’s name was Emmanuel, PW1’s son.”

Assuming the above story postulated by the appellant is accepted, a man is under our criminal law answerable for all the natural and probable consequences of his action. See Adelumola V. State (supra). Section 316 of the Criminal Code Laws of the Cross River State, 2004, defines murder to include circumstances where:

“(a) If the offender intends to cause the death of the person killed, or that of some other person;

(b) If the offender intends to do to the person killed or to some other person some grievous harm;

(c) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life.”

Now, according to the appellant he disarmed Akpan Eyen and took possession of the knife, a dangerous and lethal weapon. Under cross-examination, the appellant admitted and stated clearly that he could have left the scene of crime if he wanted but he did not. Instead he stated that he wanted to wound Akpan Eyen and as he was about wounding Akpan Eyen with the knife, the deceased rushed in and the knife got him on the left side of his stomach. It is important to note that to stab someone with a knife will cause grievous harm or even death. See Tonara Bakuri V. State (1965) NMLR 163 at 164.

As it was the intention of the appellant to wound the said Akpan Eyen, he cannot be heard to say that the end result of his action is an accident. His intention was to use the knife to wound Akpan Eyen, so his act was intentional. By virtue of the provisions of section 316 of the Criminal Code, it does not matter that the appellant intended to stab another person. He must be held to intend the natural consequences of his action.

It is significant to note that taking the view most favourable to the appellant, his evidence did not establish the defence of accident. An accident is something which happens outside the ordinary course of events. An effect is accidental when the act by which it is caused is not done with the intention of causing it and when its occurrence is so unexpected that a person of ordinary prudence would not be expected to take reasonable precautions against such occurrence. Moreover, the act leading to the accident must be a lawful act done in a lawful manner.

Section 24 of the Criminal Code provides:

“Subject to the express provisions of this code relating to negligent acts and omissions, a person is not primarily responsible for an act or omission, which occurs independently of the exercise of his will or for an act which occur by accident.”

In Oghor V. State (supra), this Court held at page 501 that:

“An accident is the result of an unwilled act, and means an event without the fault of the person alleged to have caused it. (Bello V. A-G, Oyo State (1986) 5 NWLR (Pt. 45) 828 referred to.”

and at page 502, the Court held as follows:

“The expression, “an event which occurs by accident” used in section 24 of the Criminal Code connotes an event totally unexpected by the doer of the act and also not reasonably to be expected by any reasonable person…”

The stabbing of the deceased was not an act which occurred independently of the exercise of the will of the appellant. The appellant had made up his mind to stab the said Akpan Eyen, which act is it unlawful. The fact that in the process he stabbed the deceased does not make the stabbing which resulted in the death of the deceased, an accident. Our law is that a man is presumed to intend the natural consequences of his acts.

Curiously enough, the appellant’s counsel, Mr. Nta, relied on the case of Adelumola V. The State (supra). It is necessary to point out that the Supreme Court, in the case, rejected the defence of accident relied on by the appellant.

Similarly, in Chukwu V. State (supra), the Supreme Court rejected the defences of accident, self-defence and provocation, when a police officer at close range shot and killed the deceased. In Dangari V. The State (supra), the defence of accident availed the appellant because it was the tree he was cutting that fell and killed his wife. The facts of the case are clearly distinguishable from the case in the instant appeal.

Though it is settled law that where an accused person puts up the defence of accident or a charge of murder, the onus is on the prosecution to disprove it, in the instant case the prosecution, through the evidence of PWs 1 and 2 successfully disproved the defence of accident raised by the appellant. It is equally settled that in a trial for murder, it is the duty of the court to consider:

(a) all the defences raised by the evidence whether the accused person specifically put up such defences or not; and

(b) any defence raised by an accused person no matter how weak or stupid it may appear. See Akpise V. State (1971) 1 All NLR 50 and Uwaekweghinya V. State (supra).

In the instant case on appeal the trial Judge carefully and sufficiently considered the defence of accident raised by the appellant. There is no merit in Issue NO.1 and I, therefore, resolve it in favour of the respondent.

Issue No. 2 deals with whether or not there exists material contradiction cogent enough to disturb the verdict of the learned counsel. I have given this issue a very anxious consideration in this judgment but I am constrained to say I cannot find any material contradictions in the evidence of the prosecution that will warrant disturbing the well considered judgment of the trial Judge. The evidence of PW1 as to the events which led to the death of the deceased contains no material contradiction. What is material is that the deceased died and his death was caused by the act of the appellant. The appellant, in Exhibit 8 and his evidence in chief, stated clearly that the deceased, Emmanuel Essien Umoh died and that he died from the stab wound he inflicted on the deceased. The only issue in contention was whether the stabbing was intentional or accidental. The alleged contradictions or inconsistencies in the evidence of PW1 and in Exhibit A are mere minor variations and discrepancies which are not material. A piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts, and not necessarily when there are some minor discrepancies in the details between them. Two pieces of evidence contradict one another when they are by themselves inconsistent, while a discrepancy may occur when a piece of evidence stops short of or contains a little more than what the other piece of evidence says or contains some minor differences in their details. See Idiok V. State (2006) 12 NWLR (Pt. 993) 1 at 21 – 22; Ogoala V. State (1991) 2 NWLR (Pt. 175) 509 and Gabriel V. State (supra) at page 468 and 469.

In Omonga V. State (supra), this court held that contradictions between two pieces of evidence goes to the essentiality of something being or not being of the same thing, whereas minor discrepancies depend on the persons astuteness and capacity for observing meticulous details. It was also held at page 554 of the report (Omonga cse) that contradictions in the evidence of the prosecution witnesses are fatal if they are material and they are material if they are likely to create doubt in the mind of the court. See Ejigbadero V. State (1978) 9 -10 SC 81 and Nwosisi V. State (1976) 6 SC 109 and Onubogu V. State (supra).

Mr. Nta for the appellant specifically referred to PW1’s evidence relating to the identification of the corpse of the deceased. In the first place, where an accused person relies on the defence of accident, it presupposes that he has admitted that the deceased died and that he caused the death of the deceased. The only issue in contention is whether the act of the accused is intentional or accidental. So the identity of the deceased is no longer an issue, particularly having regard to the fact that the appellant stated that he knew deceased both in Exhibit B and in his evidence in chief before the trial court.

Moreover, PW1 under cross-examination testified at page 13, lines 13 – 14 of the record, that his brother’s name is Etim Pius Edem and that is the name of the person who identified the corpse to the doctor who performed the autopsy on the deceased in Exhibit C.

At page 12, lines 1 to 2, PW1 stated as follows:

“It was my younger brother who identified the corpse of my son to the Doctor who performed a post mortem exam…”

PW1 took the deceased on 31/7/03 to the hospital but the autopsy was conducted on 7/8/03 and on that day it was the PW1’s brother, Etim Pius Edem, who identified the corpse to the doctor. Therefore, the alleged contradictions pointed out by the counsel, in the circumstances, are a mere straw in the wind that must go with the wind.

The other issue about whether PW1 was planting bamboo or sticks is not material to the case of the prosecution. What is important is that PW1 heard his deceased son shout: “Ekpenyong has killed me”. He rushed to the scene and saw the deceased in a pool of his own blood while at the same time; the appellant was running away from the scene. This piece of evidence remained unchallenged and uncontradicted throughout the trial. That piece of evidence is admissible as Res Gestae. See Vorgho. V. State (supra), where the Supreme Court held that the words “Bassa has killed me” being contemporaneous with the gun shot and the accused walking away from the scene, were well received as Res Gestae.

Also in Peter V. State (1994) 5 NWLR (Pt. 342) 45 at 74, Edozie, JCA, (as he then was) held thus:

“A statement made by a person in imminent fear of death and who believed at the time it was made that he was going to die is admissible as a dying declaration; Akpan V. State (1992) 6 NWLR (Pt. 248) 439 at 469. The declaration by the deceased that “Igiri has killed me, Igiri has killed me” which was heard and testified to by PW2, was in my view rightly admitted by the learned trial Judge as a dying declaration.”

In my respectful view, it is not necessary for the deceased to say that he believed that he was going to die or in the danger of approaching death, like in a recital. It is for the learned trial Judge to make specific finding in his judgment that the particular deceased did in fact believed that he was in danger of approaching death when making the declaration. This could be inferred from the circumstance of each and every case. In the instant case on appeal, the deceased was lying down in a pool of his own blood, screaming that “Ekpenyong has killed me” and contemporaneously the appellant was seen by PW1 running away from the scene. There is no doubt that the declaration qualify as a dying declaration. See Peter V. State (supra); Okokor V. State (1967) 189; R. V. Bang Weyeku (1943) 9 WACA 195; Kuse V. State (1969) 1 NMLR 153; Ikono V. State (1975) 3 SC 231 and Akpan V. State (supra).

The appellant contended that Exhibit C, the medical report contains a report of the nature of the injury entirely inconsistent with the evidence of PW1 on the nature of the injury. In the instant appeal, the cause of death of the deceased is not in dispute. From the evidence of PW1, there is no doubt that the appellant stabbed the deceased at about 3.30 pm on the fateful day. PW1 rushed the deceased to the University of Calabar Teaching Hospital where he died at about 5 pm. From the time of the stabbing to the time of the deceased’s death was just one hour, thirty minutes. Where a man was attacked with a knife and he dies within one hour, thirty minutes, it is hardly necessary to prove the cause of his death. It can properly be inferred that the wound inflicted caused the death. See Tonara Bakuri V. State (supra); Ozo V. State (1971) 1 All NLR 111; Adamu v. Kano N. A. (1956) SCNLR 65; Bwashi V. State (1972) 6 SC 93; Lori V. State (1980) SC 81 and Uyo V. A-G, Bendel (1986) 1 NWLR (Pt. 17) 418.

In A-G, Federation V. Ogunro & Anor (2001) 10 NWLR (Pt. 720) 175 at 186 -187, it was held that:

“It is not always necessary to prove the cause of death by autopsy report. Although medical evidence as to the cause of death is desirable it is not essential in all cases. In the absence of medical evidence, the court can infer the cause of death from the circumstances of the evidence adduced before it… ”

Notwithstanding the above, I am compelled to say that there are no material contradictions in the evidence of PW1 and the autopsy report, Exhibit C. PW1 at page 13, lines 5 – 7 & 10 in respect of the wounds sustained by the deceased testified as follows:

“Since my son was covered with blood I only saw the wound at the hospital. The wound was on the shoulder groove. The skin was open from the ear to the shoulder groove… There were wounds on his two hands…”

In Exhibit C, the Doctor recorded that:

“Patient died as a result of matchet cut sustained from the attack. He sustained many cuts on the right and left side of the head, right side of the neck; the right neck cut severed a major vein (External singular vein). There were also multiple defence injuries on both wrist and back of the hand. The effect of the knife cuts and the resultant severe bleeding caused his death. There was no natural disease in the patient responsible for his death.”

Apart from the fact that the doctor who performed the autopsy being a professional, was more detailed and meticulous in Exhibit C, there are no contradictions or inconsistencies between it and the evidence of PW1 relating to the wounds sustained by the deceased. PW1 testified that the deceased was covered with blood and it was only at the hospital that he noticed the injuries. Naturally, a confused PW1, whose son was at the material time was covered with blood and was dying cannot observe all the injuries sustained by the deceased in detail. In any case a wound stretching from the ear to the shoulder groove must pass through the neck.

Moreover, there are no contradictions or inconsistencies. It would have been a different situation if PW1 had said it was knife cuts that the deceased sustained and it turns out that the deceased was shot with a gun or was strangulated. But that is not the case here. Both PW1 and the doctor stated that the deceased sustained injuries consistent with an attack with a knife. I see no substance in Issue NO.2 and I hereby resolve it against the appellant.

I now come to Issue No: 3, which in essence questions whether the prosecution proved the case of murder against the appellant beyond reasonable doubt. Three main issues were raised by the appellant under Issue NO.3, namely:

(1) That Exhibit C was tendered without calling Dr. Paul Jibrin who performed the autopsy.

(2) That there were inconsistencies in the previous statement of PW1 and his evidence before the trial court.

(3) That the appellant’s defence of accident was not accepted despite the fact that it was unchallenged.

To begin with, the evidence required to establish a charge of murder may be direct or circumstantial, pointing to the guilt of the accused. Though medical evidence is desirable, it is not a sine qua non. As I pointed out earlier on in this judgment, the cause of death may be established if there is sufficient and conclusive evidence, other than medical evidence showing beyond reasonable doubt that the death of the deceased in question resulted from the particular act of the accused person. See Akpuenya V. State (1976) 11 SC 269 at 278; Lori V. State (supra) and Essien V. State (1984) 3 SC 14.

Now, Mr. Nta, relying on Ekpo V. State (supra), submitted that the failure to call the maker of Exhibit C, Dr. Paul Jibrin rendered the evidence on Exhibit C and its contents given by PW2, hearsay and therefore inadmissible to establish the nature of injury and cause of death of the deceased. Counsel contended that Dr. Jibrin who conducted the post mortem examination ought to have been called to testify as to the content of Exhibit C and failure on the part of the prosecution to do so deprived the appellant the opportunity of cross-examination.

I have carefully gone through the case of Ekpo V. State (supra) and it is irrelevant to the point contended by the appellant and the case is quite distinguishable from the facts of the instant case on appeal. It is significant to note that Dr. Jibrin, the author of Exhibit C is a pathologist. A medical officer in the service of a State for the purposes of undertaking a post mortem examination is a pathologist, and his report is the certificate, envisaged by section 42(1) (a) of Evidence Act. The certificate has the effect of being sufficient evidence of the facts stated therein. See Ehot V. State (1993) 4 NWLR (Pt. 290) 644 at 657 -658. Section 42(1) (a) of the Evidence Act, 1990, provides that the production of a pathologist report or certificate may be taken as sufficient evidence of the facts stated therein. By the proviso to section 42(1) (a) of the Evidence Act, 1990, the court shall have the power on the application of either party or of its own motion, direct that any such officer, in this case Dr. Jibrin, be summoned to give evidence before the court either for the purpose of cross-examination or for any other reason as the interest of justice requires.

The appellant did not object when Exhibit C was being tendered in evidence and he did not apply to the court for Doctor Jibrin to be summoned for cross-examination. It is therefore too late in the day for the appellant to complain. That being the case the trial Judge was perfectly right to rely on Exhibit C in convicting the appellant.

The submission of the learned counsel for the appellant that Dr. Paul Jibrin ought to have been called to testify as to the content of Exhibit C does not represent the law and it is misconceived. Where a pathologist, in the position of Dr. Jibrin testifies, the written report of his findings is hardly relevant. See A-G of the Federation V. Ogunro & Anor (supra) at 185. See also Owanso Agbeyin V. State (1967) NMLR 127, where it was held that if a medical officer appears as a witness, his report is inadmissible in examination in chief though he may refresh his memory from it.

The second issue raised by the appellant is the alleged inconsistencies in the extra-judicial statement of PW1 and his evidence in chief. I have dealt with this issue earlier in this judgment and I came to the conclusion that the alleged inconsistencies are immaterial and devoid of substance. I stand by my earlier findings and I need not repeat them presently. Suffice it to say that the evidence on the material issues in the instant case on appeal is quite reliable and the learned trial Judge was right to rely on it.

On the third issue dealing with the alleged unchallenged defence of accident, it is the contention of Mr. Nta that” the killing of the deceased was unintentional. There is no doubt that the onus is on the prosecution always to prove the case against the accused and it must prove it beyond reasonable doubt. It is also clear that the onus is on the prosecution to disprove the defence of accident once it is set up by an accused person. See Sholuade V. Republic (1966) 1 All NLR 134 and Dangari V. State (supra). In the instant case on appeal, the evidence of PWs 1 and 2 dismantled the defence of accident raised by the appellant. Furthermore, Exhibit C, showed clearly that the deceased had multiple stab wounds or knife cuts which is inconsistent with the appellant’s allegation that the deceased rushed into the alleged fight between him and one Akpan Eyen and he received a stab wound. The fact that deceased received multiple wounds negatived the defence of accident. The fact that the deceased sustained defence wounds on his two hands meant that the deceased struggled for his dear life but the appellant continued to stab him. PW1 also confirmed that the deceased had injuries on his two hands. If the story of the appellant was true then there would have been a single cut or stab wound. The injuries recorded in Exhibit C clearly and unequivocally negatived the defence of accident put forward by the appellant. It will be preposterous to hold that the appellant accidentally inflicted multiple severe knife cuts on the deceased.

Just before I conclude this judgment let me quickly in retrospect reflect on the chronicle of events in this case:

(1) Appellant quarreled with the deceased’s father at about 8.00 am.

(2) The deceased had quarrel with the appellant where he told him not to abuse his father.

(3) Appellant asked the deceased if he wants to die in place of his father.

(4) Later at about 3.30 pm, the appellant stabbed the deceased.

(5) The deceased screamed, “Ekpenyong has killed me”.

(6) PW1 rushed to the scene only to see the deceased in a pool of his own blood while at the same time the appellant ran away from the scene.

(7) PW1 rushed the deceased to the University of Calabar Teaching Hospital where the deceased died around 5 pm.

(8) From Exhibit C, it turned out that the appellant inflicted multiple severe injuries on the deceased, one of which severed a major vein (external jugular vein).

In my respectful view, this is no case of accident and neither can the death of the deceased by any stretch of the imagination be described as an accident. The learned trial Judge rightly held that the appellant was guilty of the murder of Emmanuel Essien Umoh on the 31/7/03. I resolve Issue No.3 against the appellant. There is no merit in this appeal and it deserves to be dismissed.

Accordingly, this appeal be and is hereby dismissed. The judgment of the trial court in Suit No. HC/4C/2005 sentencing the appellant to death is affirmed.

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Other Citations: (2009)LCN/3477(CA)