Emmanuel David Ekanem V. The State (2009)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
The Appellant was arraigned on an information on 14/1/97, on a one count dated 1/9/94, before the High Court of Rivers State, Port Harcourt presided over by Hon. Justice ACHO OGBONNA for the offence of murder of one TOMBOA AKOKO aged 17 on 2/8/93 contrary to section 319 of the Criminal Code, Laws of, Eastern Nigeria 1963 applicable to Rivers State of Nigeria.
SEVEN witnesses testified for the prosecution. Several exhibits were admitted in evidence. On his own part, the Appellant testified in defence of the charge against him.
After taking and considering the addresses of the learned counsel for the Appellant and the Respondent, the learned trial Judge in his judgment delivered on the 28th July 2003, found the Appellant guilty of the offence of murder as charged and sentenced him to death by hanging.
Aggrieved by his conviction and sentence the Appellant appealed. The original Notice of Appeal contains 4 grounds of appeal, but 6 additional grounds were later filed with leave of this court, now making a total of 10 grounds. In compliance with the practice and procedure of this court, appellant’s brief dated and filed on 25/8/2006 upon an application for enlargement of time was deemed validly filed on 11/7/2007. The Respondent’s brief filed on 25/9/2007 was deemed filed on 17/6/2008 pursuant to an application for extension of time.
On 28/1/2009 the appeal came up for hearing.
DIKE UDENNA, Esq. learned counsel for the appellant adopted and relied on the Appellant’s brief of argument as his submissions in support of the appeal and urged us to allow the appeal, set aside the conviction by the High Court and discharge and acquit the appellant.
On the part of the Respondent MRS. C.U. EKE, Principal State Counsel, Ministry of Justice, Rivers State leading MRS. E. AGBOKHAN, State Counsel in the Ministry, adopted and relied on the Respondent’s brief as her submissions in support of the Respondent’s opposition of the appeal and urged us to dismiss the appeal and affirm the decision of the High Court.
From the 10 grounds of appeal Contained in the Notice of Appeal, TWO Issues were distilled in the Appellant’s brief of argument as follows:
“(i) Whether upon a proper evaluation of the evidence before the court the learned trial Judge was right in coming to the conclusion that the prosecution proved the charge of murder against the Appellant in accordance with the standard of proof imposed by law? (Grounds 1, 2, 4, 5, 6, 7 and 8) and
(ii) Whether the Appellant was not entitled to the Defence of self defence or any other defence in the circumstance of this case (Grounds 3, 9 and 10).
On their part, the Respondent formulated TWO Issues for determination of the Appeal as follows:
“(i) Whether upon a proper evaluation of the evidence before the court, the learned trial Judge was right in coming to the conclusion that the prosecution proved the charge of murder against the Appellant in accordance with the standard of proof imposed by law (Grounds 1, 2, 4, 5, 6, 7 and 8) and
(ii) Whether the Appellant was not entitled to the Defence of self Defence or any other defence in the circumstances of this case. (Grounds 3, 9 and 10).
It is noted that the Respondent in the brief has adopted, in its entirety the two issues raised by the Appellant. I intend to consider the two issues canvassed in the respective briefs of the parties seriatim.
ISSUE (i)
The crux of the submissions of the Appellant on this issue is that the onus or the burden of proof of the guilt of the Appellant as required by the law, has not been discharged, and the trial High Court could not have convicted the Appellant if he had properly evaluated the evidence before it. That the prosecution relied on the evidence of pw1, pw2, pw3, pw4, pw5, pw6 and pw7 in proof of the charge against the Appellant but that of these witnesses only pw1, pw2, pw3, and pw4 claim to have made observations one way of the other in respect of the actual events which the prosecution relied upon as constituting circumstances of the crime of the circumstances leading to the commission of crime.
Learned counsel for the Appellant in the brief went on a long voyage of discovery of any evidence from all the seven prosecution witnesses that could link the Appellant with the commission of the crime for which he was charged. On evidence of pw1 it is contended been struck on his leg by Gift Sokari, which complaint led pw1 to message the leg of the accused who was screaming in pains. Leaned counsel found further contradictions in the statement of pw3 in Exhibit ‘C’ where he had told the police that when he returned home at about 7.00pm he saw pw4 and Emmanuel (accused) running up and down, that he later saw him and the deceased in front of the house exchanging words and later heard the sound of a bottle before the deceased fell “down and ran inside the yard.” It is submitted that these circumstances which evinced a fight between the pw4, the accused and the deceased which were later denied by the pw3 in his evidence in court, were crucial to the defence of the accused, which is that he struck the deceased with a beer bottle which he wrested from pw4 in the course of fight wherein the deceased was using an iron rod to hit the accused. As for the testimony of pw4, learned counsel for the Appellant identified some areas of contradictions as to the timing of the disagreement between the Appellant the pw4, in the first place which he said was about 7pm and another sound of event, that is his encounter with the deceased which he (appellant) said occurred 4pm in his statement in Exhibit ‘D’ to the police. That pw4 further contradicted himself, when in admitting that the deceased who was his brother whose death he must avenge, was hit with a bottle that he picked from outside his room, having testified earlier under cross-examination that the appellant came out from his room with a bottle and hit the deceased with it. It is contended that the different versions of pw4’s testimony has great significance. The effect is that if the accused emerged from his room already armed with a bottle he will be imputed with the intention to engage in dangerous fight, while if he had picked up the bottle in the course of a fight the likelihood is that he may have been reacting to contemporaneous events in the fight. It is finally submitted that from the evidence of pw4, his statements in Exhibits D and D1 it is obvious that there are reasonable doubts as to his consistency in telling the truth. It is submitted that the proper conclusion the evidence of pw4 as well as other witnesses is not reliable and could not form the basis for a conviction of the offence of murder.
As for the evidence of pw5 a police officer, who was a member of the investigation team, learned counsel for the Appellant contended that from the different versions of the statements he made about the recovery of a piece of bottle Exhibit ‘F’, he has not testified as witness of truth. His evidence ought not to have been relied upon as his testimony leaves obvious doubt which ought to have been resolved in favour of the accused person.
As for the testimony of pw6, who performed post mortem examination on the deceased, it is contended that he did not give evidence with regard to the injuries he found on the body of the deceased in line with the evidence of all other witnesses on record. That there was no evidence that any sharp objects were used on the deceased which could have caused the stab wounds. It is contended that although the investigating police officer (IPO) Inspector Emmanuel Okwuazu did not testify, it was pw7 the father of the deceased who identified the body of the deceased to pw6 for autopsy. That pw7 did not mention the name of the Doctor to whom he identified the body for autopsy nor did he identify pw6 as the doctor. It is submitted that if the learned trial Judge had evaluated the evidence of pw6 properly, he would have come to the conclusion that the body on which he formed post mortem examination was not that of the deceased. Reliance was placed on the case of ENEWOH V. THE STATE (1990) 4 NWLR (Pt.145) 469 at 477.
Responding on this issue learned counsel for the Respondent was terse and direct touching on such topical sub-issues as burden of proof; in a criminal trial; mode of proof of guilt of an accused; and the fact of death of deceased and its cause.
On burden of proof it is submitted that the requirement of the law of proof beyond reasonable doubt does not mean that the prosecution must prove its case in a criminal trial, with “mathematical exactitude” That it is rather sufficient that the prosecution prove the essential ingredients of the offence. He referred to and rely on the cases of DIBIE V. STATE (2005) 1 FWLR (Pt. 256) 783 at 789 and OGUNBAYO V. STATE (2002) 15 NWLR (Pt. 789) 76 at 98.
On the mode of proof of guilt of an accused, relying on the Supreme Court decision in IGABELE V. THE STATE (2006) 2 FWLR (Pt.315) 3039 at 3042 learned counsel submitted that the guilt of an accused person may be proved in the following manner:
(i) Confessional statement.
(ii) Circumstantial evidence; or
(iii) Evidence of an eye witness.
On the proof of essential ingredients of the offence of murder, relying on the case of EMOGA V. THE STATE (1997) 1 NWLR (Pt.438) 615 at 616, learned counsel for the Respondent enumerated the ingredients as follows:
(i) that the deceased died.
(ii) that the death resulted from; the act of the accused person;
(iii) that the act of the accused person was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
Learned counsel placed further reliance on the Supreme Court case of IDOWU V. THE STATE (2000) 7 K.L.R (Pt.108) 2449 at 2452.
It is submitted that all these essential ingredients of the charge of murder have been proved by the prosecution and that the trial Judge’s findings were borne out of the evidence before the Court and were therefore not perverse.
On the question of inconsistencies alleged in the evidence of prosecution witnesses, learned counsel submitted that it is not every minor contradictions or inconsistencies or conflicts in the evidence of the witnesses that would consider fatal to the case of the prosecution. They must be material contradictions relating to material fact and leading to a miscarriage of justice. Reliance was placed on the case of DIBIE V. THE STATE (supra); ISIBOR V. THE STATE 9 NSCQ p. 248; IFEANYI CHUKU EJEKA V. STATE (2003) 6 MJSC p.83 at 285 and UDENGWU V. STATE (2003 13 NWLR (Pt.836) p.137 at 143.
On ISSUE No.2, the question is whether the Appellant was not entitled to the Defence of self – Defence or any other defence in the circumstance of this case. In arguing this issue learned counsel for the Appellant has adopted and relied on his arguments and submissions in respect of Issue NO.1 and urges this court to hold that the trial judge was wrong when he concluded that the Appellant was not entitled to the defence of self – defence or any other defence having not properly evaluated the evidence before him. On his part learned counsel for the Respondent submitted that the learned trial Judge rightly held that self defence canvassed by the Appellant’s counsel did not avail him as he never said in his evidence that he acted in self-defence, neither was it correct for him to plead provocation as he in fact admitted provoking the deceased by first slapping him.
Learned counsel in the alternative, in his brief made an assumption, though not conceding, that even if such a defence was raised by the appellant it would not even avail him because the four basic requirements or ingredients of the law were lacking, namely that:
(i) the accused must be free from fault in bringing about encounter,
(ii) there must be present on impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity,
(iii) there must be no safe or reasonable mode of escape by retreat; and
(iv) there must have been a necessity for taking life.
Reliance was placed on the case of EGBEYOM V. STATE (2002) 4 NWLR (Pt. 654) 565 at 580 A-C.
The time honoured principle of criminal justice is that the attitude of the court even an appellate court is to consider carefully liberal grounds, all available legal and equitable defences open for consideration.
IGABELE V. STATE (1994) 5 NWLR (Pt.342) p.45 at 64. This I shall do exactly in considering the two issues posed by the two learned counsel on behalf of the parties for determination. The two issues are similar, I shall take them together.
In consideration of the issue of the burden of proof in this appeal attention is focused on the provision of section 138(1) of the Evidence Act Cap. 112, LFN 1990 and section 36(5) of the constitution of the Federal Republic of Nigeria, 1999. Section 138(1) Evidence Act (supra) provides:
“138(1) if in the commission of a Crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of section 141 of this Act on the person who assets it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime, beyond reasonable doubt the burden of proving reasonable doubt is shifted on the accused.”
Section 36(5), the fundamental right of presumption of innocence entrenched in the 1999 constitution stipulates that:
“36(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
In this appeal the appellant was charged with the offence of murder contrary to section 319 of the Criminal Code (supra). The burden of proof has been judicially interpreted and succinctly put in SOLOMON AKPAN V. THE STATE (1992) 6 NWLR (Pt.248) 439 at 462 by the Supreme Court as follows:
“In homicide cases onus of proof is on the prosecution to prove cause of death and the prosecution can discharge the burden either by:
(a) Direct evidence or
(b) Circumstantial evidence that creates no room for doubt or speculation.
The guilt of an accused person may be approved as well by his confessional statement: See IGABELE V. THE STATE (supra) and EMEKA V. STATE (2001) 14 NWLR (Pt.735) 3057.
The catch-phrase “proof beyond reasonable doubt” used often in our criminal and evidence law is not a magical terminology compelling the prosecution in a criminal trial to do an impossible task. See DIBIE V. STATE (supra) and OGUNBAYO V. STATE (supra). All that the law requires is that the prosecution should sufficiently prove the essential ingredients of the offence, namely that:
(i) the deceased died;
(ii) that the death resulted from the act of the accused person;
(iii) that the act of the accused person was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See EMOGA V. STATE (supra) and IDOWU V. STATE (supra).
The evidence led before the court upon which the trial Judge based the conviction of the appellant is from the prosecution witnesses and the various exhibits admitted at the trial. Firstly the fact of death of the deceased. This was established by pw3 in his evidence on page 47 lines 1-19, particularly lines 11-19 where he stated:
“On getting to UPTH the doctor told me they were on strike that we should go to Braithwaite Memorial Hospital (BMH). On getting to B.M.H I met a doctor who said the deceased stopped breathing after he carried out tests. We then took the deceased back to the yard. The parents were there when we arrived. On bringing the deceased out of the car he shook his hands and legs in the presence of the parents, and then everybody shouted we should take him back to the clinic. We went back to B.M.H. and he was confirmed dead. On our way back the father dropped with the deceased at the police station and I left them. I made a statement to the police.”
The pw3’s evidence was corroborated by the evidence of pw2 and pw6 who performed the post mortem examination on the deceased and pw7 the father of the deceased who identified the deceased to pw6 for autopsy. Even the Appellant under cross-examination at page 83 lines 3 – 4 admitted he hit the deceased with a bottle, and he died as a result of the injury he sustained from the bottle.
It is therefore clear in the light of the foregoing that the fact of death of deceased was duly proved by evidence of prosecution witnesses and this was never challenged by the Appellant.
That the death was as a result of the act of the accused was also proved by the evidence of the prosecution witnesses and by the admission of the Appellant himself. Pw4 in his testimony on page 51 lines 4-11 of the record stated thus:
“The deceased went to throw the dirty water used in washing the fish into the gutter outside. As deceased was coming back after throwing the water away, he hit a stool along the passage and asked who kept the stool there, there the accused came out and slapped the deceased. Then deceased started shouting “I no go gree, I no go gree” and then pick up a stick to hit accused, then the accused came out from their room and I saw him holding a bottle which he hit the deceased’s head. I was following the two of them behind. After deceased had been hit with the bottle he shouted that he was dying and I joined to shout.”
The evidence of pw4 was not shaken under cross-examination. Furthermore, in strengthening the prosecution case, the Appellant both in his confessional statement to the police; (Exhibit G) and his evidence in court corroborated his confession. At page 80 lines 8 he admitted: “I hit Tomboa with the bottle and he fell examination at p, 83 lines 3-4 of the record:
“We fought and I hit him with a bottle he sustained in juries before he died.”
Although the Appellant did not specify what part of the body of the deceased the injuries were, I agree with learned counsel for the Respondent, that it is not improbable that there were the injuries observed by the Appellant and confirmed by the pw6, the pathologist who under took the post mortem examination.
In this case there is ample evidence of the nature of wound inflicted on the deceased by the Appellant which resulted in his collapse and death. Learned senior counsel for the Appellant has contended that given the nature of the stab wounds found on the body on which pw6 performed the post mortem examination, the fact that the body of the deceased, subject matter of the murder charge in this case was never deposited at the University of Port Harcourt Teaching Hospital (UPTH) but at Braithwaite Memorial Hospital (B.M.H.) wherein the pw7 identified the body to the Doctor who performed the autopsy the only conclusion which the learned trial Judge ought to have arrived at, if he had properly evaluated the evidence, is the conclusion that the body on which the pw6 performed the post mortem examination at UPTH was not that of the deceased. To accede to this contention is to undermine the evidence of pw3 and corroborated by the evidence of pw2 and pw7 as earlier observed. Their evidence having been duly evaluated and findings made thereupon by the trial Judge who had the advantage of watching them testify and assessing their credibility, this court would not reverse those findings. See ANTHONY ISIBOR V. STATE (2000) 9 NSQR 248 at 249. Besides, medical evidence or report is not a prerequisite for establishing the cause of death where there is evidence of the death of the deceased and there is evidence that the death is as a result of the unlawful and intentional act of the accused person. See OKA V. THE STATE (1977) 9/11 SC.17.
Where the prosecution has established the cause of accused person that caused that death. There must be clear evidence that the death of the accused was the direct result of the act of the accused to the exclusion of all other reasonable probable cause. See R. V. NWAOKOCHA (1949) 12 WACA 453; OYE V. THE QUEEN (1961) 2 SCNLR 354. The cause of death may however be inferred from the circumstances of the case: DAKURI V. THE STATE (1965) NMLR 163.
In AMEN V. STATE (1978) 67 Sc. 27 the Supreme Court per Fatuyi Williams JSC (as he then was) observed as follows:
“It is settled law that, in a criminal case, the onus throughout the trial is on the prosecution to prove the case beyond reasonable doubt. Even if an accused had admitted in a written statement to the police that he committed the crime, the court would still have to consider the statement along with the other testimony in order to determine whether the confession was voluntary or not” see further UKUT V. STATE (1995) 9 NWLR (Pt. 420) p. 392.
In MILLER V. MINISTER OF PENSIONS (1947) 2 All ER 372 at 373, Denning J (as he then was) observed on proof beyond reasonable doubt as follows:
“(It) does not mean proof beyond shadow of doubt.
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt but nothing shod of that will suffice”
This case was adopted and followed by NNAMANI J.S.C. (of Blessed memory) in ILORI V. STATE (1980) 8/11 SC 81.
It is not now doubtful that the act of the Appellant of striking the deceased on the head with a bottle was the direct cause of his death. This has been established by the clear and unequivocal testimony of pw6 which was accepted by the trial court as it was he who performed the post mortem examination on the deceased at the University of Port Harcourt Teaching Hospital (U.P.T.H.). I do not agree with the learned Senior Counsel for the Appellant that the evidence of pw6 as it relates to the cause of death of the deceased on whom he performed a post mortem examination was irrelevant. The evidence is relevant and has evidential value to the case of the Respondent (prosecution). The learned trial Judge was right when he relied on it. I agree with the learned counsel for the Respondent that the observation of the pw6 as to the stab wounds, and abrasions found on the body of the deceased did not in any way create a doubt as to the cause of his death. These observations as an expert in the course of his duties may not have been visible to other witnesses. Pw6 stated clearly that “the cause of death (of the deceased) was due to brain damage caused by a blow by a blunt object to the head.” Under cross-examination, pw6 rebutted any insinuation that the death of the accused was due to brain damage caused by a blow by a “blunt object to the head.”
The question of whether the corpse of the deceased was identified to the pw6 by pw7 or by one Inspector Emmanuel Okwuazu, is not a material fact in the light of other evidence before the court, including the admission of the Appellant. To my mind, it is sufficient that both pw7 and the IPO, the said Inspector Okwuazu, were present during the post mortem examination by pw6.
It has long been established that medical evidence as to the cause of death is not an invariable essential requirement in cases of homicide. In the absence of medical evidence the court can infer-cause of death from circumstances of the evidence adduced before it. See AMUSA V. STATE (2003) 13 NSCQR. 173 at 183.
In the instant case the proof of cause of death was not left to inference but death has been caused following the fatal injuries dealt on the deceased by the Appellant. In any case the competence of pw6 as a pathologist is not in doubt and the trial judge has rightly observed that his qualification was not made an issue by the Court has decided in AMUSA V. STATE (supra) at page 183-184 that a “Medical Officer” in the service of a State Government for the purpose of undertaking a post mortem examination is a “pathologist” and his report is the certificate envisaged by section 41(1) (a) now sec.42 (I) (a) of Evidence Act, Act (Cap. 112) Laws of the Federation; 1990. See further EHOT V. THE STATE (1293) 4 NWLR (pt. 290) 644 at 657-58 and ENEYOH V. THE STATE (1989) 5 NWLR (Pt.149) 98 at 99. See further THE STATE V. AJILE (2000) 11 NWLR (Pt.678) 434 at 446.
Learned counsel for the Respondent in the brief has drawn the court’s attention to an insinuation of the Appellant in his brief that the post mortem was not performed at the B.M.H. Neither was this point raised at the trial nor was there evidence led to show that the post mortem examination was not performed at Braithwaite Memorial Hospital (B.M.H.). The evidence on record and at the trial was that at the time of the accident there was a strike action at UPTH which implies that the Hospital’s services were partly paralyzed. I have already extracted pw3’s evidence on page 47 of the record to that effect in the course of this judgment.
Learned senior counsel submitted in the Appellants brief that the evidence of most prosecution witnesses were fraught with quite a number of contradictious and inconsistencies. I have endeavored to highlight some of these alleged inconsistencies by the Appellant. The law is that where there are contradictions in the evidence of the prosecution’s witnesses on a material fact, such contradictions ought to be explained by evidence from prosecution. In the absence of such an explanation by the prosecution, the court should not speculate on an imagined explanation for such contradictions and proceed to choose which of the prosecution witnesses to believe. See AHMED V. STATE (1999) 7 NWLR (Pt. 612) 641 and OGUNBAYO V. STATE (supra). But there is requirement in law that it is not every contradiction that would be sufficient to damnify a witness. The contradiction on the evidence of prosecution must be fatal to the prosecution’s case.
This court in OGUNBAYO V. STATE (supra) at p.95 states thus:
“A contradiction in the evidence of the prosecution that will be fatal to the prosecution’s case is not a miniature contradiction which merely scratches the surface of an inconsequential (sic) or innocuous point. A clear example is a contradiction in the evidence of two medical experts as to the cause of death. Ibeh v. The State (1997) 1NWLR (Pt.484) 632; BOSAH V. THE STATE (1980) 1 NCR 204; ISHOLA V. THE STATE (1978) 9 -10 SC 32 referred to and applied in Sunday Akinyemi v. The State (1999) 6 NWLR (Pt.607) 454; ONUBOGU V. THE STATE (1974) 9 NSCC 358; (1974) 9 SC 1. (1974) 1 All NLR, (1977) NCR 223; Jonathan Igbi & Anor. V. The State (2000) 3 NWLR (Pt.648) 169 at 187- 188.”
Can the instances of the above cases be applicable to the instant appeal which complained about the testimonies of pw1, pw2, pw3 and pw4 revolving round the time when fight ensued between the appellant and pw4 on one hand and later with the deceased? And their general observations in one way or another in respect of actual events which the prosecution relied upon as constituting circumstances leading to the commission of the crime or the circumstances of the commission of the crime or the circumstances leading to the commission of the event that led to the commission of the crime? In the instant case the witnesses are consistent. In AKPOSI V. THE STATE (1972) 12 SC, 211 at 215, the Apex Court relied on the case of the, The Queen v. Adelabu 1955 – 56 W.R.N.C.R 111 at 112, and held that absence of any discrepancy in the testimonies of witnesses is the usual accompaniment of a concocted story and that imperfections in human recollection is quite normal. In ESANGBEDO V. THE STATE (1989) 4 NWLR (Pt. 113) 57 at 83 the same Apex Court said in actual life there is bound to be minor variations in the account of truthful witnesses. This is because as a matter of fact, when witnesses to one incident reproduce the same or uniform account of that incident the danger is that “their evidence has been tailored tutored and complaints of contradictions and inconsistencies by the appellant are not substantial as they were not only minor but also they were not contradictory to the material issue of murder as the offence for which the appellant was charged. The findings of the trial court were borne out of the evidence before the court and were therefore not perverse. See ESANGBEDO V. THE STATE (supra) at pp 67 and 83.
On the question of self defence canvassed by the Appellant the trial Judge held that the defence did not avail the Appellant as he never said in his evidence that he acted in self defence. It is also not correct to say that the Appellant acted based on provocation as he in fact admitted provoking the deceased by first slapping him. In any case even if such defence was ever raised, which is not the case here, the law requires that the following ingredients must be established viz:
(i) The accused must be free from fault in bringing about the encounter.
(ii) There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity.
(iii) There must be no safe or reasonable mode of escape by retreat; and.
(iv) There must have been a necessity for taking life.
To sustain the defence all the four ingredients must coexist. See EGBEYOM V. STATE (supra); KWAGHIR V. STATE (1995) 3 NWLR (Pt.386) 651 at 669 and LIYA V. STATE (1998) 2 NWLR (pt.538) 397. These requirements are lacking in the instant case and in the incident resulting in the attack of the deceased by the appellant. I am of the firm view that the appellant has not shown that he ever acted in self-defence in the light of the circumstances of the case.
In the final result, all in all, for all the reasons I have set out in the judgment I come to irresistible conclusion that this appeal is lacking in merit and it is accordingly dismissed.
I hereby affirm the conviction and sentence of the Appellant to death by hanging by the High Court of Rivers State Port Harcourt on 28th February 2003.
Other Citations: (2009)LCN/3488(CA)
