Franklin Braide V. The State (1997)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, J.S.C.

In the High Court of Justice Warri the appellant and one other person were charged with the offences of conspiracy to murder and murder contrary to sections 516 & 319( 1) of the Criminal Code respectively. They pleaded not guilty.

During the trial the prosecution called seven witnesses while each of the accused persons gave evidence in his own defence but called no witnesses.

The case for the prosecution is simply that the accused persons conspired together and murdered one Ezekiel Olugbo, the deceased, by stabbing him to death with a knife during a fight or struggle between them. The accused persons did not deny that they fought with the deceased but stated that the deceased ran into the knife then held by the appellant when he, the deceased, tried to use the broken bottles, he had held all along on the appellant.

At the conclusion of the trial, the learned trial Judge reviewed the evidence for the prosecution and considered the defences raised by each of the accused persons. The appellant was found not guilty of conspiracy but guilty of murder and sentenced to death. The other accused person was discharged and acquitted of both counts of conspiracy and murder.

Aggrieved by the decision of the High Court, the appellant appealed to the Court of Appeal holden at Benin City. The appellant formulated two issues for resolution in that court thus:-

“(a) Did the lower court properly evaluate the evidence before it before arriving at the guilt of the appellant

(b) Was the lower court right in rejecting the defence of self-defence put up by the appellant”

The Court of Appeal considered these issues and came to the conclusion that the trial court properly evaluated the evidence led before it and that its findings of facts were supported by evidence. It also resolved that the defence of self-defence put up by the appellant was rightly rejected by the trial court too. The appeal was accordingly dismissed.

Further aggrieved by the decision of the Court of Appeal, the appellant has now appealed to this court. The parties filed and exchanged briefs of argument which were adopted and relied upon at the hearing of the appeal.

Mr. Akhidenor, learned counsel for the appellant has in his brief submitted three issues for determnation in the appeal. These are really two issues because while issue (1) complains about the evaluation of evidence, both issues (2) & (3) deal with the statutory defence of self-defence. The issues before this court now are these:-

1. Whether the learned Justices of the Court of Appeal were right to have affirmed that the lower court properly evaluated the evidence before it and before arriving at the guilt of the appellant.
2. Whether the learned Justices of the Court of Appeal were right when they affirmed the judgment of the learned trial Judge to the effect that the appellant is not entitled to the benefit of the defence of self defence as provided in section 287 of the Criminal Code, Laws of Bendel State, 1976.

The issues were argued together. The portion of the judgment of the High Court which was confirmed by the Court of Appeal and subject of attack now appears on pages 97-98 of the record. It reads:-

“However, I hold that the stabbing of the deceased by the first accused (meaning appellant) was deliberate act having regard to the injury inflicted. See the evidence of P.W.1 the doctor who performed the post mortem examination. The stabbing was not accidental, it was also not a defensive act but an act of aggressor. With respect to the issue of broken bottles, I hold that the story of the accused persons is made up and I do not believe the accused persons on the point. The only witness who said he saw a bottle is P.W.5 who said he did not see any bottle with the deceased when the deceased was fighting with first accused; but when he got to the scene and after the deceased had fallen, he saw a bottle on the ground. He did not say he saw a broken bottle either. It is not unlikely in my view that the bottle may have been lying there and not brought there by the deceased.

I am aware of the relationship that existed between the deceased P.W.2, P.W.3 and P.W.4. I watched the demean our of these witnesses when they testified on oath and I accepted with caution the parts of their evidence which I believe after I have duly warned myself.”