Frank Uwagboe V The State (2008)

LAWGLOBAL HUB Lead Judgment Report

S.A. AKINTAN, JSC

This is an appeal from the judgment of Benin Division of the Court of Appeal delivered on 25 May, 2006. The appellant was the accused person at the trial Court. He was arraigned at Benin High Court on one count charge of murder punishable under section 319(1) of the Criminal Code, Law of Bendel State 1976 applicable to Edo State. The particulars of the offence are that the said accused, on or about the 4th day of April, 1994 at Erua Village, Ehor in the Benin Judicial Division, unlawfully killed one Asia Uwagboe.

The appellant pleaded not guilty to the charge and the prosecution led evidence in support of its case against the appellant. At the end of the trial, the learned trial Judge, Itua, J., held, in his reserved judgment delivered on 5th August, 2004 that the prosecution had proved its case against the appellant. He accordingly found him guilty as charged and sentenced him to death by hanging. His appeal to the Court of Appeal was dismissed, hence the present appeal.

The parties filed their respective brief of argument in this court. The appellant formulated the following two issues as arising for determination in the appellant’s brief:

“1. Whether the lower court was right in affirming that the prosecution proved its case beyond reasonable doubt.

Whether the learned Justice of the Court of Appeal adequately considered the defences available to and or raised by the appellant.”

Two similar issues are formulated in the respondent’s brief. I therefore need not reproduce them.

The facts of the case are that the appellant unlawfully murdered one Asia Uwagboe at Erua village, Ehor on 4th April, 1994 by using a cutlass to cut the right hand of the deceased. The appellant fled after the incident and was only arrested about three years after at the Auchi Motor Park. The appellant denied that he intentionally used the cutlass to cut the hand of the deceased which eventually caused the man’s death. His case was that the deceased appeared with a matchet and in an attempt to dispossess him of same, the matchet, cut the man’s hand. Medical attention was not

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immediately available until the next day due to lack of transportation and medical facilities at Erua village, Ehor. It was then too late to be able to save the man from dying.

The appellant made a written statement to the police under caution after his arrest. It was admitted at the trial as Exhibit 1. He denied therein that he intentionally cut the deceased with the cutlass. He said, inter alia, in the statement that the deceased was his uncle and that they were living in the same house. His account of the incident was given, inter alia, as follows in the said statement:

“…On 4/4/94 at about 9p.m in the night, I heard that Asia now late said I am the person who stole my father’s money. Then my father was looking for =N=60. I now sent to meet Asia whether he saw the money with me. Asia did not say anything. I then swear that if I am the person that took the money let the night be bad with me and if I am not the person let the night be a bad one to you Asia who is telling lies. From there my real father came out and told everybody that he had never seen me in this house since morning. From there Asia’s son called Monday came out and we started fighting. The fighting did not last long then Asia came out with a cutlass, he wanted to use it, from there I drew the cutlass from his hand. I cannot remember which hand the cutlass cut his hand at the palm. It was then I saw him injured. I then decided to go and carry my goods because I had already planned to travel that day.”

Monday Asha is the son’ of the deceased. He was an eyewitness of the incident and he testified at the trial as P.W. 1. He told the trial court, inter alia, as recorded on pages 20 to 21 of the record, that the deceased was his father and that the appellant was his uncle. He then said as follows:

“On 4/4/94, I was living at Erua village. At about 11.30p.m my grandfather, Uwagboe, was crying saying that the accused has stolen his =N=60. So my grandfather went to my father’s door, we were all living in a family house at the time. My father told my grandfather, Pa Uwagboe, to go and wait till tomorrow. When the accused heard that my father mentioned his name, he said he was going to kill my father this night. My father locked his door. The accused took a cutlass and broke the door. Myself, my wife Stella, Patient, my father’s wife and my father the deceased, were in the same room and parlour. He broke the door and came inside the room and parlour. My father was begging the