Frank Uwagboe V. The State (2006)
LawGlobal-Hub Lead Judgment Report
ALAGOA, J.C.A.
This is an appeal against the judgment of Itua J. of the Edo State High Court sitting in Benin City which was delivered on the 5th August, 2004 in Suit No. B/9C/99 – THE STATE V. FRANK UWAGBOE wherein the accused person was charged with, tried, convicted and sentenced to death on a one count charge of murder contrary to Section 319 (1) of the Criminal Code Law Cap 48 Vol. II Laws of Bendel State of Nigeria 1976 applicable to Edo State: The prosecution’s case was that on the 4th April 1994 the accused unlawfully murdered one Asia Uwagboe at Erua village Ehor in the Benin Judicial Division over an allegation that the accused had stolen a missing sum of N60.00. The prosecution had alleged that the accused with the aid of a cutlass inflicted severe injury on the deceased, nearly completely cutting off the right hand of the deceased which act caused the death of the deceased. The accused denied this allegation and relied on the defence of accident under Section 24 of the Criminal Code. The prosecution called four witnesses in proof of its case while the accused gave evidence in his defence and called no witnesses.
The learned trial Judge after considering the case for the prosecution in proof of the charge of murder and the defence of accident put forward by the accused person, found the accused person guilty as charged and passed a sentence of death by hanging on him.
Dissatisfied with this judgment, the accused appealed to the Court of Appeal by filing a Notice of Appeal dated the 10th August, 2004 and filed on the 12th August, 2004. The appellant by an application on Notice dated the 3rd May, 2005 and filed same day sought for and obtained leave of court to amend the grounds of appeal contained in the appellant’s notice of appeal dated 10th August, 2004 and to deem the amended notice of appeal already filed as properly filed and served. The amended Notice of Appeal comprises, four grounds reproduced hereunder as follows:-
“GROUND ONE
The learned trial Judge erred in law in convicting the appellant of the offence of murder when the prosecution failed to prove all the material ingredients of the charge beyond reasonable doubt owing to the failure of the prosecution to adduce the requisite material evidence to discharge the burden of proof placed on it by law thereby occasioning miscarriage of justice.
PARATICULARS OF ERROR
(a) Section 138 of the Evidence Act Cap. 112 provides that all the ingredients of a crime must be proved beyond reasonable doubt by the prosecution.
(b) The intent of the appellant to commit the offence of murder was not proved beyond reasonable doubt by the prosecution.
(c) The evidence of P.W.1, P.W.2, P.W.3, and P.W.4 are contradictory, untruthful and the unreliable.
(d) The confession or Exhibit 1 relied upon by trial Judge is not admissible as evidence or confession against the appellant because it was not direct or positive on the guilt of the appellant.
(e) The police officer who conducted the first investigation was not invited to give evidence as to location of the parties, whether doors were destroyed and the corridor from where the appellant picked a cutlass and why none of the two cutlasses was not recovered.
(f) The issue of two cutlass was not explained as to which one cut the palm of the deceased and who owned the very one that cut the palm of the deceased.
GROUND TWO
The learned trial Judge committed a grave error of law when he found the appellant guilty as charged without properly evaluating the evidence on record.
PARTICULARS OF ERROR
(a) The learned trial Judge did not examine critically or properly the various crucial conflicts and contradictions in the evidence of the prosecution witnesses before relying on a version of same to convict the appellant.
(b) Several pieces of evidence on record which go to show or confirm the credibility of the case of the appellant or which at least cast a reasonable doubt on the case of the prosecution were neither critical examined nor properly evaluated by the learned trial Judge.
(c) On the information at page 4 of the Record of Appeal the prosecution did not disclose that PW1 would be called as a witness at the trial.
GROUND THREE
The learned trial Judge erred in law when he held as follows at page 49 lines 6-8 of the record of appeal that:-
“I believe the 1st, 2nd and 3rd Prosecution witnesses that the accused intentionally cut the deceased with the cutlass.”
PARTICUALRS OF ERROR
(a) PW2 is not eye-witnesses to the commission of the offence.
(b) The oral evidence of PW2 sharply conflicts with her statement to the police.
(c) The oral evidence of 1st, 2nd and 3rd prosecution witnesses sharply conflict with their respective previous written statements to the police.
(d) The material contradictions in the evidence of PW1, 2 and 3 as explained above, were neither examined nor explained away.
(e) The evidence the investigating police officer and the only independent witness was dismissed as hearsay without proper evaluation.
GROUND FOUR
Whether the learned trial Judge properly considered the defences available to the appellant before him for murder?
PARTICULARS OF ERROR
(a) PW4 at page 7 lines 12 of the record said the appellant “picked up cutlass at the corridor” – where were the parties? Is it a case of provocation?
(b) PW1 said at page 21 lines 2-4 that the cutlass the deceased held fell when the appellant cut him with cutlass? Is it a case of self-defence?
(c) The prosecution did not discharge the burden of disproving the presence of the defence of accident, provocation, self defence, etc. that appear apparent on the face of evidence before the court.
(d) The burden to proof these defences is not on the accused but the prosecution and does not shift to prove its case beyond reasonable doubt.
(e) The evidence of the appellant is consistent with the fact that the deceased had a cutlass with him. In trying to dispossess him the cutlass held by the deceased cut his hand – accident.
(f) The deceased died due to lack of medical facilities in the village at the material time.
RELIEF SOUGHT FROM THE COURT OF APPEAL
To set aside the conviction and sentence imposed on the appellant and in its stead to enter a verdict of discharge and acquittal.”
On the 28th February, 2006 when this appeal came up for hearing, appellant’s counsel Oladipo Okpeseyi Esq adopted and relied on the appellant’s brief of argument filed on the 3rd May, 2005. He urged this court to allow the appeal and to discharge and acquit the appellant. From the four grounds of appeal contained in the amended notice of appeal, counsel distilled three issues for the determination of the Court of Appeal. These issues which are contained on page 4 of the appellant’s brief of argument are as follows:-
“ISSUE NO.1 – Whether there was a proper evaluation of exhibit 1 and all of the evidence in this case by the learned trial Judge to justify its findings and conviction of appellant.
ISSUE NO.2 – Whether the prosecution proved its case beyond reasonable doubt.
ISUE NO.3 – Whether the learned trial Judge was right in his consideration of the defence available to the accused person under the law before conviction.
Respondent’s counsel Mrs O. S Uwuigbe, Director of Public Prosecutions Ministry of Justice, Benin City moved an application on notice filed on the 24th October, 2005 for an order of this court extending time within which to file respondent’s brief of argument and to deem as properly filed and served, the respondent’s brief of argument annexed and marked Ex. “A.” The application was brought pursuant to Order 3 Rule 4 (1) of the Court of Appeal Rules 2002 and not being opposed by counsel for the appellant Oladipo Okpeseyi, Esq the application was granted by this court. The said Respondent’s Brief of Argument was then adopted and reliled upon by Mrs. Uwuigbe who urged this court to affirm the Judgment of the lower court. She identified two issues for the determination of this court which are reproduced hereunder as contained on page 1 of the respondent’s brief and which are as follows:-
ISSUE NO.1 – Whether the case against the appellant was proved beyond reasonable doubt having regard to the totality of evidence.
ISSUE NO.2 – Whether the learned trial Judge adequately considered the defence of the appellant.
Even from a cursory glance at the issues formulated by the appellant it will be seen that reference to proper evaluation of exhibit 1 as contained in issue 1 of the appellant’s brief is covered by issue No.3 which deals with the consideration of the defence available to the appellant. This is because exhibit 1 is the statement of the appellant in his own defence in the lower court. The other two issues formulated by the appellant i.e issues 2 and 3 are the same with issues 2 and 3 formulated by the respondents and these are the issues I have considered in this write-up. For the avoidance of doubt the issues for consideration are-
ISSUE NO. 1 – Whether the prosecution has proved its case beyond reasonable doubt.
ISSUE NO.2 – Whether the learned trial Judge adequately considered the defence raised by the appellant. I propose to now deal with these issues seriatim.
ISSUE NO. 1 – Whether the prosecution has proved its case beyond reasonable doubt –
Appellant has submitted that in a criminal case such as this, the onus is on the prosecution to establish its case beyond reasonable doubt. The following authorities were relied upon – IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) PAGE 202 AT 215, PARA F-Q; ESANABEDO V. THE STATE (1989) 4 NWLR (Pt. 113) 57; Section 36(5) of the 1999 Nigeria Constitution as well as 138 (1) of the Evident Act Cap 112 Laws of the Federation of Nigeria were also relied upon. It was contended for the appellant that the learned trial Judge’s reproduction of the evidence without evaluation was wrong in law. The case of OKEREKE V. EJIOFOR (1996) 3 NWLR (Pt. 434) PAGE 90 AT PAGE 110 was relied upon. Thus the assertion by the learned trial Judge that there was no fight between the appellant and the deceased; that P.W.4 was not an eye witness of the incident; that it was the appellant who brought the cutlass with which the deceased was attacked; that it was the appellant who struck the deceased with the cutlass blow that led to the deceased’s death; that he believed the 1st, 2nd and 3rd prosecution witnesses that the accused intentionally cut the deceased with the cutlass, not being borne out of any or proper evaluation is baseless and should be discountenanced. It was also contended for the appellant that there were contradictions and inadmissible evidence on the part of P.W1, P.W.2, P.W.3 and P.W.4 which made it unsafe for the trial court to convict. Counsel for the Appellant further submitted that by virtue of Section 16 of the Court of Appeal Act, this court can now review, evaluate and properly consider the evidence on record to determine whether the prosecution has proved its case beyond reasonable doubt. Counsel further submitted that the benefit of the unresolved contradictions must be in favour of the appellant moreso when the fact that the deceased held a cutlass in his right hand which fell down is properly considered. The prosecution, he said cannot be said to have proved its case beyond reasonable doubt until these contradictory and damaging pieces of evidence had been explained by the prosecution.
It was on the other hand submitted for the respondent that the prosecution had proved the case against the appellant for murder beyond reasonable doubt, and that the evidence of P.W.1, P.W.2 and P.W.3 who were eye witnesses and testified for the prosecution was overwhelming. The respondent in its brief gave a rundown of the evidence of P.W.1, P.W.2 and P.W.3 which is to the effect that the father of the appellant complained that his money (N60) had been stolen. Appellant claimed that his name had been mentioned by the deceased and left.
Appellant later came back with a cutlass and broke the door of the deceased and cut the deceased’s hand with the cutlass such that only the skin held the hand. The evidence of the three prosecution witnesses it was submitted show that the appellant was the assailant right from the word go and there was no fight between the appellant and the deceased or any other person for that matter and that it was the act of cutting the deceased with the cutlass that caused the death of the deceased. The intention to cause death or grievous bodily harm to the deceased could be inferred from the nature of the weapon used by the appellant – a cutlass which is a lethal weapon. The cases of EGUABOR V. THE QUEEN (NO.1) (1962) 1 SCNLR 409, (1962) 1 ALL NLR page 287 and ESSIEN V. THE STATE (1984) 3 S.C. 14 AT 16 were relied upon by the respondents. It was submitted for the respondent that the learned trial Judge properly evaluated the evidence adduced before he found the appellant guilty of murder and that for a contradiction to be fatal to the prosecution’s case it must touch on a material point or substance of the case and should not merely be trivial. It was further submitted that the mere fact that the witnesses are related to the deceased in one way or the other does not mean that they cannot testify for the prosecution.
The evidence given by the, 1st, 2nd and 3rd prosecution witnesses Monday Asha, Stella Asha and Patience Asha are undoubtedly similar, unequivocal and direct and were not punctured by cross examination and are to the effect that the appellant had been accused of the theft of a missing N60 (sixty naira) and having heard the deceased mention his name as the culprit said he was going to kill the deceased that night. He then left and came back with a cutlass and broke open the door of the deceased who on seeing that the appellant was probably bent on carrying out his threat began to beg the appellant who nevertheless cut his (the deceased) right hand so severely that only a little flesh still held the cut hand in place. None of these eye witnesses testified that there was a fight between the appellant and the deceased or that both had earlier had a quarrel before the incident. The learned trial judge in my view was right in the assessment of the evidence of these witnesses that it was the appellant who attacked the deceased with a cutlass and that it was the injury sustained that caused the death of the deceased.
Heavy weather has been made of the fact that the three witnesses are related to the deceased. Interestingly the same witnesses are also related to the appellant which cancels out the possibility that the witnesses may have been tainted. With respect to the actual intention of the appellant at the time he inflicted cuts on the deceased there can be no doubt as found by the learned trial Judge that the nature of the weapon used – a cutlass which is a sharp object and the severity of the injury caused by the use of the cutlass meant that the appellant either intended to kill the deceased or cause him grievous bodily harm. This is further buttressed by the fact that the witnesses had independently testified that the appellant had said he would kill the deceased on the night of the incident. There is the legal aphorism that the devil himself does not know the intention of man. Intention is inferred from overt acts.
I think that in this case quite apart from whatever deductions one can or should make from what transpired, the appellant must be taken to mean what he said – that he was going to kill the deceased that night. The use of the cutlass on the deceased which almost completely severed the hand of the deceased was only an outward manifestation of an inner desire to kill the deceased. The appellant must be taken to intend the natural and probable consequences of his action.
It is now settled on the authorities and I dare say that there is a plethora of cases on the point that the ascription of probative value on the evidence adduced by witnesses to a trial rests with the trail court and it is not the function of an appellate court to do so or to interfere in the findings of facts of the trial court below except such findings are undoubtedly seen to be perverse. I do not think the finding of fact by the learned trial Judge were perverse or bias. On the other hand I think they were based upon a rational and balanced analysis of the witnesses. Accordingly I resolve. issue No. 1 in favour of the respondent.
Issue 2 is as to whether the trial Judge was right in his consideration of the defence available to the appellant. It was contended for the appellant that exhibit 1 – the statement of the appellant is not an admission of guilt as a confession must be direct, positive and an equivocal admission of guilt. DANIELS V. STATE (1991) 8 NWLR (pt. 212) part 715 at 730 was relied upon. The appellant was said only to have narrated certain facts of the incident which did not amount to an admission of guilt. In the same measure the appellant has contended that it is a serious misdirection of law for the Judge to have said that, “In the case now in hand I believe and so hold that the accused did not injure the deceased accidentally. He struck the deceased intentionally.” It was further contended for the appellant that the prosecution had not adequately explained the presence of cutlass. Part of the appellant’s defence also was that the deceased appeared with a cutlass and in the process of dispossessing him of the cutlass, it cut his hand. This defence of self defence according to the appellant was not properly appreciated and correctly evaluated by the learned trial Judge, so also was the defence of provocation.
The respondent has submitted that the learned trial Judge considered the defence of the appellant and found none to be available to him. It was contended by the respondent that there was overwhelming evidence that the appellant attacked the deceased intentionally. It was also contended by the respondent that time elapsed between the accusation of theft and the striking of the cutlass and that the defence of provocation could not avail the appellant.
Perhaps I should comment briefly on the evidence of P.W.4 to the effect that there was some struggle or fight between the appellant and the deceased. P.W.4 was never an eye witness to the incident culminating in the death of the deceased. P.W.4 only investigated the case and would only have relied on facts supplied to him by persons who were witnesses to the incident. If indeed there were such persons who saw a fight or a scuffle between the two, they would have been brought as witnesses. Such evidence can only directly be introduced through such witnesses and not smuggled in through any other means. Baring little discrepancies of language what is clear is that all three eye witnesses who gave evidence for the prosecution said there was no scuffle or fight between the appellant and the deceased and that the appellant, annoyed at having his name mentioned by the deceased over the theft of N60 left, came back to the scene, broke the door to the deceased’s room and inflicted cuts on deceased with a cutlass, the gravity of which was such that but for a little flesh which hung on to the deceased’s right hand, it was almost completely severed from the rest of the deceased’s body. Despite intensive cross examination, this evidence was never discredited by the defence for the defence of provocation to avail an accused person, the act complained of must occur on the spur of the moment and before there is time for passion to cool. This cannot be said to have been the case here as the appellant who was not immediately armed at the time the accusation of the theft of N60 was made against him, went somewhere and got himself armed with a cutlass with which he struck at the deceased’s right hand.
The learned trial Judge to my mind was absolutely right in his evaluation of the defences put forward by the appellant and came to a proper finding of fact which I must not interfere with. Issue No.2 must therefore be resolved in favour of the respondent. In all the appeal fails and is dismissed.
The Judgment of the High Court of Justice Benin City delivered on the 5th August, 2004 by Itua J. is hereby accordingly affirmed.
Other Citations: (2006)LCN/1987(CA)
