Emmanuel Ogar Edoko V. The State (2009)
LawGlobal-Hub Lead Judgment Report
MOJEED ADEKUNLE OWOADE, J.C.A.
This is an appeal against the judgment of M.D. Eneji, J. delivered on 20th September, 2006 at the Ikom Judicial Division of the High Court of Cross River State whereby the appellant was convicted and sentenced on a one count charge of the offence of murder.
The facts of the case are that on 26th day of November 2004, the appellant left Edor his village in Ikom Local Government Area to attend the burial of Late Gregory Awam at Nkonfab, a neighboring village. Between 10.00pm and 11pm, the appellant went close to the vicinity where PW1 an eye witness to the crime and some of his friends were sitting, and started smoking Indian hemp.
The deceased, Ajing Bisong who was serving food and drinks to PW1 and his friends, approached the appellant and told him to leave the area. A scuffle ensued and from the prosecution’s account, the appellant brought out a jackknife and stabbed the deceased who shouted and collapsed. The appellant, on the other hand presented two versions of the story. In his confessional statement Exhibit B, he claimed that the jackknife fell from the deceased in the course of the struggle, he then used, it to stab the deceased on the left side of his ribs. In his oral evidence, he retracted and said that he was attacked by the deceased in company of five of the deceased’s friends who he said ran away after the event. PW1 rushed the deceased to the hospital but he died on their way to the hospital. The appellant fled the scene of crime and was arrested later.
The learned trial Judge accepted the evidence of the prosecution especially through the eye witness. Ekom Francis Abaji PW1 and considered but rejected the defences of provocation and self defence canvassed for the appellant.
Dissatisfied with this judgment, the appellant filed a Notice of Appeal containing two grounds of appeal on 26th September 2006.
The appellant’s amended brief of argument dated 25/5/09 was deemed filed on 8/6/04. The Respondent’s amended brief was also deemed filed on 8/6/09.
The appellant formulated two issues for determination, which were adopted by the respondent as follows:
- Whether the trial court properly evaluated the evidence before arriving on a decision to convict the appellant for murder.
- Whether from the totality of evidence before the court the trial Judge considered or adequately considered the defence of self defence proffered by the appellant.
On issue NO.1, learned counsel for the appellant submitted that in the instant case, the learned trial Judge closed his eyes to the evidence of the appellant both in his confessional statement Exhibit B and his testimony in court that he was attacked by the deceased in company of his three friends. That, the content of Exhibit B even though confessional in nature, is not direct and positive to warrant a conviction for murder. This, according to appellant’s counsel is because the content of Exhibit B clearly shows the circumstance that led to the death of the deceased, according to counsel, an involuntary act of the appellant to steer off the attack on him by the deceased and his friends.
Appellant’s counsel relied on the case of Emeka v. State (2001) FWLR (pt. 66) 682, for the proposition that it is desirable to have outside the confession to the police some evidence, however slight, the circumstances of which made it probable that the confession was true.
Learned counsel for the appellant said, the question which the prosecution failed to answer and to which the trial Judge also failed to consider is whether on the evidence of PW1 who testified that he saw the appellant brought out a jackknife in the presence of Chief Boniface Ndome and the failure of the prosecution to call the said Chief Boniface Ndome did not amount to the withholding of evidence.
Appellant’s counsel furthered that the trial court also failed to take into consideration the absence of mens rea in the action of the appellant. As, it is in evidence of all the prosecution witnesses that the appellant reported himself to the Police and handed over the Jackknife to the police.
In reaction to appellant’s Issue No.1, learned counsel to the respondent submitted that the learned trial Judge painstakingly appraised the evidence of the prosecution as well as the defence and found that the act of the appellant in stabbing the deceased was intentional and not accidental. Also, that the evaluation of the evidence before the trial court subsumed all defences available to the appellant, not only the defence of self defence but other possible defences including the defences of provocation and accident.
Three perhaps two concretizations could be deduced from the allegation of non-evaluation of evidence by the Appellant. The first is that the appellant’s confessional statement raised the defence of self-defence which was not considered or adequately considered and if considered would have negatived mens rea. The second is the failure of the prosecution to call yet another eye witness Chief Boniface Ndome, as it were to corroborate the testimony of PW1 that the appellant brought out a Jackknife in the presence of Chief Boniface Ndome.
The relevant portions of the appellant’s confessional statement to the police Exhibit B are as follows:
“…The man who is now dead came with three other men. The deceased told one to stand up and allow one of the men he came with to sit down. I refused to stand up for the man to sit. The deceased Ajing Bisong pushed me down from the chair i was sitting. I stood up and asked Ajing what have I done to you that you should push me down. I told him he was not the person who invited me to the burial. Then the deceased gave me a blow on my left eye. Then I rush (sic) and held him on his waist from behind. The deceased tried to remove a jackknife from his waist, I held the handle of the jackknife and as we were struggling, the Jackknife fell. Ajing used his leg to match the jackknife, but I was faster and pick the jackknife, and stabbed Ajing on the left side of his ribs and removed the jackknife…”
In the instant case, the learned trial Judge believed and accepted the evidence of the eye witness PW1 not only because according to him at page 30 of the record “From the evidence of the prosecution witness and that of the accused the evidence of the prosecution witness is more believable. This is so because the evidence of PW1 is clear, direct and consistent…” but also because, there was a marked difference and fundamental inconsistencies between the appellant’s statement to the police and his statement on oath before the court which make the statements outside of the confession to be unreliable. Thus at page 33 of the record, the learned trial Judge quoted with approval the dictum of the Court of Appeal in Amusa v. The State 2005 1 NCC 87 at 91 that:
“Where a witness is shown to have made a previous statement inconsistent with the evidence given by that witness at the trial, the jury should not be merely directed that the evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statement sworn or unsworn cannot constitute evidence upon which they can act.”
In spite of the above, the learned trial Judge assumed reliability of the story and possible excuses contained in the confessional statement of the appellant Exhibit B and in its light considered the defences of provocation and self defence that were, raised therein and rightly rejected both defences.
It must be noted that in law once a previous statement to the police is confessional, the court will not reject it on grounds that it is inconsistent with the evidence of the accused on oath. Ikemson v. The State. (1989) 3 NWLR (pt. 110) 455 at 473. In other words, the principle that where the statement of an accused made before the trial is inconsistent with his testimony at the trial, the court should reject both as unreliable does not apply to evidence obtained through confession.
In the instant case the retraction of the confessional statement by the appellant in evidence at the trial on oath, does not adversely affect the admissibility and/or reliability of the confessional statement, once the court is satisfied as to its truth and can rely solely on a confessional statement to ground a conviction. Shande v. The State (2005) 1 NWLR (pt.907) 218 at 248. Nwachukwu v. State (2002) 12 NWLR (pt. 782) 543.
At pages 31-32 of the record, the learned trial Judge rejected the defence of provocation for the appellant on the ground that a fist blow on the eye cannot be said to have been proportionately responded to by a stab with a jackknife (Exhibit E). That the retaliation by the accused to the deceased is in excess of what the law allows for him to succeed under the law of provocation.
Still at page 32 of the record, the learned trial Judge considered the plea of self defence thus:
“The next defence raised by the accused is that of self defence. He said he overpowered the deceased, picked the jackknife from the ground and stabbed the deceased. The law requires that for this defence to succeed, the accused must prove that his life was clearly in danger, and he had no alternative.
I agree that the accused life may have been in danger. But I do not think and agree that in the circumstances, he had no alternative. For after he picked up the jackknife, he could (sic) be thrown it away, or ran away from the deceased. But he preferred to stab the deceased on the ribs! That was certainly very dangerous. See Odu v. The State; 2000 FWLR (pt 37) page 1078 at 1081, Held 7…”
The findings of the learned trial Judge in rejecting both the defences of provocation and self defence for the appellant are unassailable.
In terms of the defence of provocation, truly, in order to set up provocation as a defence it is not enough to show that the accused was provoked into losing self control, it must be shown that the provocation was such as would in the circumstances have caused a reasonable man to lose his self control. See, Kwaku Mensah v. R. (1946) AC 83 (PC); R. v. Duffy (1949) 1 ALL ER 93 (CCA); & v. Ibrams (1981) 74 Cr APP Rep. 154 (CA).
For these purposes, ‘the reasonable man’ means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self control as everyone is entitled to expect that his fellow citizens will exercise in society. See, DPP v. Camplin (1978) AC 705, 67 Cr. APP Rep. 14, (HL). In addition to the fact that provocation must be sudden, done in the heat of passion and before there is time for passion to cool under the provisions of sections 283 and 318 of the Criminal Code, the nature of retaliation by the accused must also be proportionate to the nature of the provocation offered.
This is because, under the Criminal Code, the defence of provocation contains three main elements.
(a) the act of provocation
(b) the loss of self control, actual and reasonable
(c) the retaliation being proportionate to the provocation.
See Oladiran v. The State (1986) 1 NWLR (pt 14) 75. Nnamah v. The State (2005) 9 NWLR (pt 929) 141 at 163.
Clearly, in the instant case, the defence of provocation could not have availed the appellant because ‘a stab with a knife is poles apart from a punch in the eye.’ See also, Gamba Musa v. The State (2001) 11 NWLR (pt 1045) page 202. So it is, that the defence of self was rightly rejected by the learned trial Judge. Because, to avail himself of self-defence, an accused must show that his life was so much endangered by the act of the deceased that the only option that was open to him to safe his life was to kill the deceased. He must show that he did not want to fight, and that he was at all material times, at least under the Criminal Code, prepared to withdraw. He must show that his life was so much endangered by the act of the deceased, and that the only option open to him to save his life was to kill the deceased.
See Baridam v. The State (1994) 1 NWLR (pt 320) 250 per Iguh JSC at page 262.
See also, Apugo v. The State (2006) 16 NWLR (pt 1002) 221 at 256.
Again, in the instant case and as pointed out by the learned trial Judge, the appellant having over powered the deceased and rescued the jackknife from him had at that stage better options than stabbing the deceased to death.
Further more, the learned trial Judge found as facts (a) that the deceased has died (b) that the death of the deceased resulted from the act of the accused, and (c) that the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
Having found as above and having rejected all the possible defences including the defence of provocation and self defence for the appellant, the appellant could no longer be heard in terms of the 1st leg of the appellant’s complaint on issue No. 1 that the prosecution has not proved the necessary mens rea.
The other leg of appellant issue No. 1 is the complaint that the failure of the prosecution to call Chief Boniface Ndome another eye witness to the crime amounted to withholding of evidence. The Supreme Court provided an answer to this question, once again, in the case of Pius Edem Udo v. The State (2006) 15 NWLR (pt 1001) 179 at 193 where Mukhtar JSC delivering the leading judgment in similar circumstances held that:
“The fact that the prosecution did not call Dr. Akpabio to give evidence did not leave any vacuum or gap in the prosecution’s case and so it proved its case beyond reasonable doubt. At any rate the prosecution is not bound to call every witness to testify. See Oduneye v. State (2001) 2 NWLR (pt. 697) page 311. All that it requires are the testimonies of witnesses who are necessary to prove his case, beyond reasonable doubt. See Okpulor v. State (1990) 7 NWLR (pt. 164) page 581…”
A logical corollary of the above is that the evidence of a sole witness, even the confessional statement of the accused without more can sustain the most serious cases that could be presented by the prosecution.
Issue NO.1 is resolved against the appellant.
On Issue NO.2, learned counsel for the appellant submitted that the appellant maintained in Exhibit B that he was attacked by the deceased in company of three others. That there was clearly a fight between the deceased and the appellant resulting to the use of the jackknife by the appellant in self defence as he was already down and apparently surrounded by three of the deceased’s friends and one of those three hitting the appellant with stick.
Appellant’s Counsel furthered that the learned trial Judge in his judgment at pages 15 to 16 accepted that the appellant’s life might be in danger but reasoned that the appellant had an alternative.
The question, said counsel is how could the appellant have escaped from four able bodied men armed with weapons such as sticks and in the night time? For even after the fight and injury of the deceased the appellant was still in fear of being killed, the appellant therefore had no alternative other than using the jackknife as a defence for his life. He relied on the cases of Uwaek Wechinya v. The State (2005) 1 NWLR page 369, Queen v. Lobell (1957) 1 Q.B.D. 547 and Apugo v. State (2007) 5 WRN 89 as providing justification in self defence for the appellant.
The respondent’s reaction to Issue No. 2 was that if the appellant claims he was down and that there were three others with the deceased against him, he had the bounden duty to have called even one of them in his defence. Counsel said, he did not call any. That he chose not to but testified singly in his defence. And that the court disbelieved the appellant as the story by the appellant was improbable and unbelievable.
In the instant case, what the learned trial Judge did and rightly too was to consider the defences available to the appellant as contained in his confessional statement Exhibit B, which the learned trial Judge preferred to his story on oath which was totally inconsistent with the appellant’s confessional statement. See Ikemson v. State (supra). The idea that three or perhaps other 5 boys joined the deceased to attack the appellant only arose in the appellant’s statement on oath which the learned trial Judge considered as an after thought. In this appeal, the suggestion by the learned counsel for the appellant that the story of the appellant that other boys joined the deceased to attack the appellant arose from the appellant’s confessional statement Exhibit B is misleading if not out rightly mischievous on the part of the counsel for the appellant.
There is nothing in the appellant’s confessional statement Exhibit B which was accepted by the trial court as the basis of the appellant’s defence to suggest that others joined the deceased to fight the appellant.
Indeed, I am in agreement with the learned counsel for the respondent that the facts of this case are similar to that in Odu v. The State (2001) FWLR (pt.37) 1078 at 1081 where the court held:
“In a hand to hand fight where the accused used a knife to stab the other who later died, self defence is negatived. I do not see any apprehension of death or grievous harm in this incident for the 2nd appellant to use a dagger and stab the deceased on the ribs. The 2nd appellant received no injuries and was unable to show the trial court any on his person. In these circumstances the assault (if any) from the deceased on the appellant was not such as to cause reasonable apprehension of death”.
In the instant case, the learned trial Judge adequately considered the defence of self proffered by the appellant.
Issue NO.2 is resolved against the appellant.
Having resolved the two issues in this appeal against the appellant, the appeal lacks merit and it is accordingly dismissed.
The conviction and sentence of the appellant is affirmed.
Other Citations: (2009)LCN/3403(CA)
