Etim Edem Asuquo V. The State (2016) LLJR-CA
LawGlobal-Hub Lead Judgment Report
ONYEKACHI AJA OTISI, J.C.A.
This is an appeal against the decision of S. M. Anjor, J. of the Cross River State High Court, Akpabuyo Judicial Division delivered on April 16, 2014 in Charge No HCA/6c/2009, in which the Appellant was convicted of the offence of attempted murder and sentenced to 15 years imprisonment with hard labour.
?The facts leading to this appeal are as follows: On July 6, 2009, the complainant, PW1, in company of three other persons, went to Authority Fishing Port to buy certain items, but, they could not purchase the items because the items were unavailable. When they were about leaving, the Appellant called PW1’s attention. As PW1 drew nearby, the Appellant drew out a machete with intent to cut PW1’s head. PW1 used his hand to block the blow and in the process Appellant cut off PW1’s right wrist. In his defence, the Appellant alleged that on the night in question, persons who came to drink at a bar directly opposite his house became unruly and threw bottles around. The Appellant, who was drinking in the bar, was hit by someone with a beer bottle on the head and he started bleeding. The Appellant
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rushed to his house and grabbed a machete, returned to the bar and threw the machete at one Nsat, the person who was supposed to have struck him with the bottle. In the process, the right wrist of PW1 was cut off. The Appellant was charged on information containing one count of attempted murder contrary to Section 320 of the Criminal Code Law, Cap. C16 Vol. 3 Laws of Cross River State of Nigeria. (“Criminal Code”).
At the trial, the prosecution called two witnesses, tendering four exhibits; while the Appellant testified for himself and called no witness. In his judgment, at conclusion of the trial, the learned trial Judge convicted the Appellant of the offence of attempted murder and sentenced him to 15 years imprisonment with hard labour. Dissatisfied with the said judgment, the Appellant lodged this appeal by Notice of Appeal filed on May 15, 2014, upon three grounds of appeal, found at pages 55 – 57 of the Record of Appeal.
The parties exchanged Briefs of Argument. The Appellant’s Brief was settled by Godwin Omoaka, Esq. on 9/10/2014, and adopted on 11/5/2016. The Respondent’s Brief was settled by Eneji Amajama, Esq., Senior State Counsel 1,
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Ministry of Justice, Cross River State, on 10/4/2015 but deemed properly filed and served on 11/5/2016. Mr. Amajama adopted the Respondent’s Brief on 11/5/2016. The Appellant’s Reply Brief filed on 14/3/2016 but deemed on 11/5/2016 was also adopted by Mr. Omoaka.
The Appellant, out of the three grounds of appeal, formulated a sole Issue for determination as follows:
”In light of the evidence adduced at the trial, was the learned trial Judge right to convict the Appellant of the offence of attempted murder by holding that the prosecution proved its case beyond reasonable doubt?”
The sole issue as formulated by the Appellant was adopted by the Respondent for determination.
The Appellant was charged with the offence of attempted murder contrary to Section 320 of the Criminal Code which provides:
320. Any person who-
(1) attempts unlawfully to kill another; or
(2) with intent unlawfully to kill another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony and is liable to imprisonment for life.
?It was contended
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for the Appellant that the charge was not proved beyond reasonable doubt. The statement of the Appellant, Exhibit 3, was not a confessional statement as was found by the learned trial Judge. Rather it was a statement admitting to the fact that the Appellant mistakenly and unintentionally injured PW1 in his unlawful attempt to strike PW1 with a machete. It ought not to have been treated as an admission to attempted murder, relying on Sunday Oshim v. State (2014) LPELR-23142(CA). The complainant had made a report of wounding to the police and not attempted murder. Any other complaint of attempted murder should be seen as an afterthought, which has introduced an element of doubt and that ought to be resolved in favour of the Appellant. Reliance was placed on Oka v. State (2014) LPELR-23137(CA); Alonge v. I.G.P. (1959) 4 FSC 203, inter alia. It was also submitted that the prosecution had withheld evidence favourable to the Appellant. PW1 had made a statement on July 8, 2009 to PW2, the IPO, which was not tendered in evidence. It was submitted that this statement showed that the Appellant did not attempt to kill the complainant.
?Learned counsel relied on Ogudo v.
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State (2011) 18 NWLR (Pt. 1278) 1; State v. Salawu (2011) 8 NWLR (PT 1279). It was also submitted that in order to determine whether an accused person had the requisite intent to kill, case law had laid down a number of guidelines which the Court will take into consideration; these are the nature of the weapon used, the part of the body that was struck, the degree or amount of force used and the proximity of the victim to the weapon use; relying on Folarin v. State (1994) 8 NWLR (Pt.371) 313 at 323 – 324; Iden v. State (1994) 8 NWLR (Pt. 365) 719 at 728. It was contended that the peculiar facts of the case did not reveal an intention to kill PW1 by the Appellant. That the fact that the Appellant used a machete to strike PW1 was not sufficient to infer that there was an intention to kill; relying on The Queen v. Eyo (1962) 2 ALL NLR 500. The machete was not tendered in evidence to show its type and size. No evidence of the force used by the Appellant was given. In the absence of this evidence, the charge of attempted murder could not be taken as proved. It was further submitted that from the Doctor’s Report, Exhibit 2, at no time was the life of PW1 in danger.
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The injuries sustained were not serious enough to cause an apprehension of loss of life. The Court was urged, in conclusion, to hold that the charge of attempted murder was not proved and to allow the appeal, discharging and acquitting the Appellant.
For the Respondent, it was contended that the unchallenged evidence of PW1 was that the Appellant directed the machete at his head but he used his hand to prevent it and in the process his right hand was cut off. That it did not lie with the Appellant to claim he acted mistakenly because what is material is his intention, which can be inferred. He submitted that Exhibit 3, the extra judicial statement cannot be read in isolation of the unchallenged evidence before the trial Court. On the effect of unchanged evidence being relied upon by a trial Court, reliance was placed on State v. Oladotun (2011) 6 Nigerian Criminal Cases 428 at 442.
?In reply to the argument that it was wrong to have charged the Appellant for attempted murder when the report was wounding, it was submitted that the report to the police was made by one Morgan Asuquo Etim and not by PW1, the victim. At that time the victim, PW1 was
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already in hospital. It cannot be concluded that the worst PW1 conceived of the incident was wounding.
It was submitted that no evidence had been withheld by the prosecution. The statement of PW1 was attached to the proof of evidence accompanying the information. The Appellant had opportunity to tender the said statement under cross examination through the maker, who had testified and was cross examined; but he failed to do so. The Appellant could also have tendered the document through PW2, the IPO, but he again failed to do so. The issue was never raised before the trial Court. It was submitted that this argument was an afterthought.
It was also submitted the fact that the machete was not tendered in evidence is not prejudicial to the prosecution; relying on Akinyemi v. State (1999) NWLR (pt. 607) 449 at 451. The degree of force used by the Appellant was evident by the fact that the hand of PW1 was almost severed clean despite the bone. The evidence of PW1 was that the parties were close to each other and the Appellant’s action was pre-meditated. He was armed with a lethal weapon and had the intention to strike a deadly blow. In conclusion, the
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learned Senior State Counsel submitted that proof beyond doubt was not proof beyond all shadow of doubt and on this basis that the Respondent had discharged the burden of proving its case.
By virtue of the sole issue formulated for determination, the duty thrust upon this Court is to consider whether the Respondent proved the charge of attempted murder against the Appellant beyond reasonable doubt as required by law; Ogundiyan vs. State [1991] 1 NSCC 448. See also Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 (formerly Section 138 of the Evidence Act, Laws of the Federation of Nigeria, 1990). While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. An accused person is presumed to be innocent until his guilt of the offence is established; Section 36(5) Constitution of the Federal Republic of Nigeria, 1999 as amended.
The established elements that must be proved in order to sustain a charge of attempted murder are: the nature of the weapon used; the part of the body assaulted by the lethal weapon; the proximity of the victim to the lethal
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weapon and the actual intent to kill. The extent of the injury and the nature of the instrument used, as well as the force used, may lead to the inference that there was an intention to kill; Omonuju vs. The State (1976) 5 S.C. (REPRINT); Queen v. Nwaugoagwu & Anor. (1962) 1 All N.L.R. 292; Iden v. State (supra); Ozuloke v. State. In all, the state of the evidence adduced must show that there was a real intention to kill by the accused person.
As was rightly submitted for the Respondent, the phrase proof beyond reasonable doubt does not mean proof to a scientific certainty – per Muhammad, JSC in The State v. Azeez (2008) 4 S. C. 188. ‘Proof beyond reasonable doubt’ simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. The law is quite settled that one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and, if he or she is believed; Adelumola v. State (1988) 1 NSCC 165; Shande vs. State (2005) 12 MJSC 152; John Agbo vs. State (2006) 1 S.C. (PT. II) 73; Idiok vs. State (2008) 6 MJSC 36; Afolalu v. State (2010) 6-7 MJSC 187;
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Ogedengbe v. State (2014) LPELR-23065 (SC).
It was not in issue that the weapon used to inflict the injury on PW1 was a machete. The fact that the weapon was not tendered in evidence, is not fatal to the case of prosecution; more so in the light of the statement of the Appellant admitting to the use of a machete. See: People of Lagos State v. Mohammed Umaru (2014) LPELR-22466 (SC). The proximity of PW1 to the Appellant, as well as the argument that the type or size of the machete were not given in evidence may not be very material in the light of the unchallenged evidence. At page 26 of the Record of Appeal, PW1 testified thus:
“When I got near to him, he brought out a matchet to cut my head but I used my right land to prevent him, but he cut off my hand and started running away…When Accused cut off my hand it fell off immediately. I reported to the police, I carried the half hand to hospital.”
In evidence, the Appellant testified, at page 46 of the Record of Appeal, as follows:
“I then threw the matchet at the Ansa. The complainant put his hand to retrieve the matchet then he is cut. The matchet cut off his hand completely.”
The half
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hand (wrist) was admitted in evidence as Exhibit 1. The evidence therefore shows that PW1 was in close proximity to the Appellant and the machete which accomplished this unfortunate deed was of sufficient lethal character.
In convicting the Appellant for attempted murder, the learned trial Judge relied on the extra judicial statement of the Appellant admitted in evidence as Exhibit 3. The learned trial Judge described the said statement as “confessional”; page 53 of the Record of Appeal. The contention of the Appellant’s Counsel is that this statement was anything but confessional or an admission of the crime.
A confession, properly so called, should confess to the offence for which the Appellant is charged. Section 28 of the Evidence Act, 2011 defines a ‘confession’ thus:
”A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
The emphasis is on the words “that crime.”
?What constitutes a confessional statement is always a matter of fact; and not a matter of law. A confessional statement must be clear, precise and unequivocal. It should be direct
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and positive; and, should relate to the accused person’s own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged; Solomon Thomas Akpan vs. State (1992) 7 SCNJ 22, per Karibi-Whyte, JSC. See also: Yaro v. State (2007) 12 MJSC 57; Fatilewa v State (2005) 4-5 S.C. (pt. 1) 191; Haruna v. Attorney General of Federation (2012) LPELR-7821(SC); Igiri v. State (2012) 6-7 MJSC (PT. 111) 107 at 128-129.
In considering whether a statement qualifies as a confessional statement, a trial Judge must examine the totality of the statement. Thus, where the explicit facts of the statement do not unequivocally satisfy the requirements of a confessional statement, a trial Judge will be in error in admitting such a statement as a confessional statement. It could however, if it has no other defects, be admitted as an ordinary statement and be relied upon as a basis for conviction; Gbadamosi v. State (1992) 11/12 SCNJ 268, per Omo, JSC. It follows that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence with which he is charged, the statement becomes
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confessional.
In his extra judicial statement at page 8 of the Record of Appeal, the Appellant stated thus:
”I and the victim whose name is not known are staying in Authority Fishing Port. On 5/7/09 I went to Adiaha Akpan shop to buy something, while there, I met people drinking and dancing of which I followed take part. As I was there, Nsat, the victim and two other person(sic) which I don’t know their names too came in, and Nsat demanded to smoke cigarate(sic) from me. I told him that, I don’t have money to buy cigarate(sic) for him, and that one certain day I did bought cigarate(sic) for him. The next thing I heard was the bottle Nsat use in hitting on my head where I sustained injury. Due to this, I was annoyed, rushed to my house and carry matchet to cut Nsat, but mistakenly I cut another person, because this happened in the night. Tha(sic) is to say, it wasn’t my intension to cut the victim rather Nsat, and this took place on 6/7/2009 at night. When this happened I ran away to where nobody will see me. Having stayed there for long, I decided to come out, where people see me and carried me with the victim to Ikang. After the report at the
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Station, the victim was taken to the hospital. That is my statement.”
With respect, I do not consider this statement to be confessional to the crime for which the Appellant was charged.
The Appellant was charged with the attempted murder of PW1. However, from the above statement, the Appellant admitted to the unlawful though accidental wounding of PW1. The explicit facts of the statement do not unambiguously satisfy the requirements of a statement confessing to the offence for which the Appellant faced trial. The learned trial Judge was in error to have referred to and relied on the said statement as a confessional statement by the Appellant, admitting the offence.
It is important to emphasize that for a charge of attempted murder to succeed, an actual intention to kill must be proved, unless the intent clearly appears or is inferable from the evidence; Ozuloke v. State (1965) N.M.L.R. 125 at 126, Omonuju v. State (1976) 10 N.S.C.C. 255 at 258.
The evidence adduced was that the Appellant and PW1 did not know each other. Under cross examination at page 32 of the Record of Appeal, PW1 said:
?Before the date of the incident, I did
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not know the Accused person…The incident took place at 9pm, it was dark…I don’t know whether Accused person wanted to attack me.”
In his extra judicial statement, Exhibit 3, reproduced above, the Appellant had stated:
“…I was annoyed, rushed to my house and carry matchet to cut Nsat, but mistakenly I cut another person, because this happened in the night.”
The Appellant as DW1 testified, at page 46 of the Record of Appeal:
“I have never had problems with those people… ”
Under cross examination, at page 47 of the Record of Appeal, he further stated:
“I said that I threw a matchet at Nsat. There was a quarrel between us. (now say). I said the matchet (threw at Nsa) fell on P.W.1. The incident happened around 9pm.”
In other words, the Appellant had no previous misunderstanding with PW1. He intended to attack a certain Nsat but the machete rather fell on PW1 and grievously wounded him. Thus, from the evidence adduced before the trial Court, the Appellant who did not previously know the victim, PW1, went to the venue to attack a certain Nsat but PW1 got in the way. The Appellant may have gone to the venue of the incident
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with the full intention to grievously injure, harm or even kill the said Nsat, but an intention to kill PW1 was not in contemplation. There was therefore no proof of an actual intention to attempt to kill PW1, as charged. The actual intent to kill is a vital ingredient in proving attempted murder, which is missing here.
PW2, the IPO, testified that it was a case of wounding that was reported by one Morgan Asuquo Etim. The Medical Report Form was Exhibit 2.
The said Report stated:
Hx – Matcheted on the Rt forearm by an assistant, bled profusely – 6/7/09 seen by me on 8/7/09 (seem earlier at UCTH).
Exam: Young man in pains and distressed, pale, anxious.
Amputated (R) forearm about middle third with radius and ulva bones sticking out evidence of bleeding – heavily soaked dressing and bandage. Cut part of the forearm was not submitted.
No other injuries seen Imp? Matchet cut (R) forearm. Patient treated – analgesics, antibiotics, anti-tetanus. Refashioning of the forearm stump has been done successfully.
This medical report reveals that PW1 was not in mortal danger after the incident. However, although the attempted murder of PW1
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may not have been proved, there was considerable grievous injury done to him, resulting in the loss of his right hand.
The action and consequence of the admitted deliberate and reckless act of the Appellant cannot be ignored. Our law is that a man is presumed to intend the natural consequences of his acts; Owhoruke v. COP (2015) LPELR-24820 (SC); Afolabi v. The State (2016) LPELR-40300 (SC). The test to be applied is the objective one -the test of what a reasonable man would contemplate as a probable consequence or result of his action; Adelumola vs. State (1988) 1 NWLR (Pt.73) 683 S.C; Eric Uyo vs. Attorney General, Bendel State (1986) 1 ALL NLR 106 at 112; Garba v. The State (2000) FWLR (pt. 24) 1448 at 1459 -1460; Ibikunle vs. State (2007) 1 S. C. (PT. II) 32.
Section 174 (1) and (2) of the Criminal Procedure Law, CAP C17 Vol. 3, Laws of Cross River State, 2004 provides that:
174.(1) In addition to the provisions hereinbefore specifically made, whenever a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the
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remaining particulars are not proved, he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.
By virtue of these said provisions, the conviction of an accused person for a lesser offence proved need not be based on any existing charge to that effect. It however presupposes that an accused person could have been validly convicted and sentenced by the Court for a lesser offence even though he was not charged with that offence. By virtue of the provisions of Section 15 of the Court of Appeal Act, 2004, this Court is empowered to exercise all the powers of the trial Court in that regard.
In the case of Henry Odeh v. Federal Republic of Nigeria (2008) 3-4 S. C. 147, one of the issues considered by the Supreme Court was:
”Whether the learned Justices of the Court of Appeal were right in law when they convicted and sentenced the appellant to 15 years imprisonment after setting aside his conviction by the trial Court
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(Tribunal) in Count One of the charge.”
The Supreme Court, per D. Musdapher, JSC (as he then was), said:
“It is the law that an appellate Court can convict and impose a sentence on an appellant for lesser offence than that for which he was convicted by the trial Court if from the circumstances of the case, the latter conviction should have been the proper one. See Akwule v. The Queen [1963] 1 ALL NLR 193; Bande v. The State (1972) 10 SC 79; Adebayo v. The Republic (1967) NMLR 391.
Where an accused person is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged, he may be convicted of the offence which he is shown to have committed by the evidence regardless of the fact that he was not charged with that particular offence. See Onogwu v. The State [1995] 6 NWLR (Pt 401) 276. In the case of Ogu v. The Queen [1963] NSCC 191 at 192 this Court substituted a conviction of the appellant for culpable homicide punishable with death contrary to Section 221 of the Penal Code Law with that of screening an offender punishable under Section 167 of the same Penal Code law. It is now settled
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law that an appellate Court such as the Supreme Court or the Court of Appeal may where an appellant has been charged and convicted for an offence and the Court that tried could on the information or charge have found him guilty of some other offence, and on the finding of the lower Court, it appears to the appellate Court that the lower Court must have been satisfied of the fact which proved him guilty of that other offence, the appellate Court may instead of allowing or dismissing the appeal, substitute for the verdict found by such Court, a verdict of guilty of such other offence and pass the sentence in substitution for the offence passed at the trial as may be warranted in law. It is also settled law that an appellate Court in determining an appeal before it possesses all the powers of the Court of trial. See Section 16 of the Court of Appeal Act. The mere fact that an appellate Court exercised its statutory power to substitute a conviction of one offence for the other under Section 179 of the Criminal Procedure Act does not ipso facto breach the appellant’s rights to fair hearing nor does it occasion any miscarriage of justice…A trial Court and an
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Appeal Court both have power under Section 179 (1) of the Criminal Procedure Act to substitute a conviction for a lesser offence on a charge for an offence containing several particulars where only such particulars as made up of the lesser offence were proved. See Queen v. Nwaugoagwu (1962) 1 ALL NLR 294, Shoshimo v. State 1974 10 SC 91, Onasile v. Sami (1962) 1 ALL NLR 272. Wilson v. Queen [1959] 4 FSC 175.”
See also: Oladipupo v. State (1993) 6 NWLR (pt 298) 14; Adebayo Rufus v. The State (2014) LPELR-22797(CA).
Section 335 of the Cross River State Criminal Code Law CAP. C16 Vol. 3, 2004 provides:
“Any person who unlawfully does grievous harm to another is guilty of a felony, and is liable to imprisonment for seven years.”
Chapter 1 Section 1 of the said Criminal Code Law defines grievous harm as:
“Any harm which amounts to a maim or dangerous harm as defined in this section, or which seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, member or sense.”
?Harm is defined thereat as:<br< p=””
</br<
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“Any bodily hurt, disease, or disorder, whether permanent or temporary.”
?An intention to cause death or grievous bodily harm is established if it is proved that the accused person, while acting deliberately and intentionally, did an act, knowing it was probable it will result in death or grievous bodily harm; Amaechi v. The State (2014) LPELR-22499 (CA); Chukwunyere v. The State (2014) LPELR-23779 (CA); Ojukokaiye v. The State (2015) LPELR-2594 2 (CA). The unchallenged evidence of PW1 was that the machete was aimed at his head but he diverted it with his right hand which was then neatly cut off. An intent to kill or to cause grievous bodily harm can be inferred from the nature of the wound; Eric Uyo v A.G. Bendel State (supra).
It is well settled that an accused person can be convicted on his confessional statement alone where that confession is consistent with other ascertained facts, which had been proved; Ikemson v. State (1998) 1 ACLR 80 at 85; Idowu vs. State (2000) 7 S.C. (PT. 11) 50. The extrajudicial statement and evidence of the Appellant was that he went to his house, collected a machete to strike Nsat but struck PW1. It was such a blow that
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it neatly removed PW1’s hand from the wrist. There was no mistake in his intention to do grievous bodily harm but only in the victim of his intention. The Appellant intended to do harm to Nsat but PW1 became the victim.
The law has always been that a man, who is without any mental impairment, is deemed to intend the consequences of his violent act; Owhoruke v. COP (2015) LPELR-24820 (SC); Afolabi v. The State (2016) LPELR – 40300 (SC). The intention of the Appellant to do grievous bodily harm to his victim, who turned out to be PW1, was established by the weapon used, the force with which it was employed, which resulted in permanent disfiguration of PW1. It is completely inexcusable for a man in his right mind to deliberately and recklessly cause grievous bodily harm to another person as the Appellant did in this case. In this circumstance, the Appellant is liable for his actions.
?I therefore make the following Orders: The appeal is allowed. The conviction and sentence of the Appellant in the Judgment of the High Court of Cross River State, Akpabuyo Judicial Division delivered on April 16, 2014 in Charge No HCA/6c/2009, in which the Appellant was
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convicted of the offence of attempted murder and sentenced to 15 years imprisonment with hard labour is hereby set aside.
It is further ordered that the Appellant is upon the evidence before the Court convicted for causing grievous harm to Sunday Asuquo Akpan on July 6, 2009 and hereby sentenced to seven years imprisonment, less the years already served in prison custody.
Other Citations: (2016)LCN/8861(CA)
