Inyang Edet Vs The State (1988)
LawGlobal-Hub Lead Judgment Report
UWAIS, J.S.C.
This appeal was summarily dismissed on the 22nd day of September, 1988 and we intimated then that our reasons for the dismissal would be given today. I now state my reasons.
The appellant together with three others were arraigned in the High Court of Lagos State before Oguntade, J. (as he then was) on a charge of murder. The appellant was convicted and sentenced to death while the other accused persons were discharged and acquitted.
The facts of the case as found by the learned trial judge are as follows. On the 4th of June, 1983 one Elizabeth gave birth to a baby. P.W.3 – the daughter of Macaulay Isong, now deceased, was asked by her mother P.W.2, to go and assist Elizabeth with her chores. Whilst with Elizabeth, P.W.3 was asked by the former to gather her clothes from a drying line as it was about to rain. In collecting the clothes P.W.3 mistakenly collected also the pant of the 4th accused person who is a lady. Because the 4th accused person was annoyed by this she beat P.W.3.
When P.W.2 heard P.W.3 crying she asked what was wrong and P.W.3 told her that she (P.W.3) was beaten by the 4th accused person. A quarrel ensued between P.W.2 and the 4th accused person. At the time the quarrel was going on, the deceased came into the compound, where everyone so far mentioned lived, and asked what had happened. The 3rd accused person called the deceased a rogue. The deceased retorted by calling the 3rd accused person a thief.
There was a fight between deceased and the 3rd accused person. The deceased went out of the compound. He met the 2nd accused person (now appellant) and the 1st accused person waiting by the road side. As an argument ensued between the deceased and the 1st accused, an empty bottle was thrown at the deceased. The deceased bent down to pick the bottle but could not do so as he was prevented by the 1st accused who held him. The appellant picked the bottle and broke it before stabbing the deceased with it in the stomach.
The deceased struggled to free himself from the grip of the 1st accused and in so doing both the deceased and 1st accused fell into a ditch that was full of stagnant water. The deceased was bleeding from the stab wound. P. W.2 took the deceased to the Police Station at Maroko where she was given a note to take the deceased to the General Hospital, Lagos. At the general hospital, the deceased was given an injection before he was admitted.
The following morning an operation was performed on the deceased. His wounds were stitched and plaster was put on the stitches. The deceased was then discharged but he continued to complain of pain. Five days later that is on the 10th June, 1983 his condition became worse and he was in serious pain. He could not get out of bed. As the deceased was employed as a messenger by the Nigerian Ports Authority, P.W.2 took him to Ethiope Hospital, which is a private hospital retained by the Nigerian Ports Authority. The deceased was admitted in the hospital. Two days later when P.W.2 went to the hospital to see the deceased, she found that he had died. P.W.2 went to the Police Station at Maroko and made a report.
The body of the deceased was removed from the private hospital to the General Hospital, Lagos. A post mortem examination was conducted on the body by P. W.1 after it was identified to him by P.W.2. In his testimony, P.W.1, a medical officer, said that the deceased was about 30 years old and had two areas with stitches below his left ribs. The first area had 7 stitches covering a wound that was 9 centimeters long. The second wound was 3 centimeters long and had 2 stitches. The doctor further said –
“The stomach was normal with bile stained liquid. The liver was firm. The spleen was enlarged and firm. There was pus in both kidneys. From my findings on the examination conducted my opinion is that cause of death is consistent with stab wound. I certify the cause of death to be shock and internal haemorrhage due to these wounds.”
The defence gave evidence and called witnesses. In his evidence, the appellant denied that he stabbed the deceased with a bottle. He said,
“It is not true that the 3rd accused gave me a bottle or any sharp instrument to stab the deceased. I did not use any bottle or sharp instrument to stab the deceased.”
Earlier on the 1st accused person testified that he was charged of manslaughter together with the appellant before the Yaba Magistrate’s Court. He said that he pleaded not guilty to the charge and that the case was still pending in the Magistrate’s Court at the time of his testimony in the present case. The charge sheet in the Magistrate’s Court which was tendered at the trial and was admitted as exhibit G. reads-
“Charge No. N/203/83
COMMISSIONER OF POLICE
Vs.
- Edet Inyang (m) 25 Yrs.
- Inyang Edet (m) 20 Yrs.
That you Edet Inyang (m) and Inyang Edet (m) on the 4th day of June, 1983 at No. 25 Asani Tokotaya Street, Ilado Maroko in the Lagos Magisterial District unlawfully killed one Macaulay Isong (m) and thereby committed an offence punishable under section 325 of the Criminal Code Cap.31 Laws of Lagos State of Nigeria, 1983.
13th October. 1983.
(Sgd.)…
POLICE OFFICER
DATE OF ARRAIGNMENT:
15/7/83
PLEA:
N/G
FINDINGS:
SENTENCE:
MAGISTRATE: – Mrs. C. O. Denton,
Chief Magistrate’s Court, Grade 1.
Prosecution:
COURT:
ORDER:
BAIL:
EXHIBIT:
Date of Adjournment:- 13th October, 1983
Bail: – N10,000.00 with 2 Sureties.”
At the close of the case for the defence learned counsel for all the 4 accused persons, who incidentally is also the counsel for the appellant in this appeal, submitted inter alia that the trial before the High Court was a nullity since there was a charge of manslaughter in the Magistrate’s Court pending against the appellant and the 1st accused person.
The learned trial Judge, after carefully considering the totality of the evidence adduced by the prosecution and the defence came to the conclusion that although the practice of bringing two charges on the same facts before different courts was wrong and improper and ought to be “condemned and deprecated in the strongest terms”, the trial before him was not a nullity. After observing that the defences of self-defence and provocation were not available to the appellant, the learned trial judge found the case against the appellant proved by the prosecution and concluded his judgment thus-
“From the totality of the evidence before me, I find the 1st and 3rd accused persons not guilty of the offence of murder as laid. The 1st and 3rd accused persons are accordingly discharged and acquitted.
I find the 2nd accused guilty of the offence of murder in that on 4th June, 1983 the 2nd accused unlawfully caused the death of Macaulay Isong by stabbing Macaulay Isong with a broken bottle and that (sic) said Macaulay Isong died of such stab wounds on 12th June, 1983.”
Dissatisfied with this decision, the appellant appealed from it to the Court of Appeal, complaining inter alia that the learned trial judge erred in law when he failed to hold that the trial before him was a nullity since the appellant together with the 1st accused person were charged in the Magistrate’s Court with manslaughter and that that charge was not disposed off when the charge in the High Court was brought. In dismissing the appeal, the Court of Appeal (per Uthman Mohammed, J .C.A.) considered the point and observed as follows –
“The last point raised in the issues for determination of this appeal is whether or not the trial was a nullity, the appellant having been previously charged for the lesser offence of manslaughter at the Magistrate’s Court. This point had been adequately covered by the brief of the counsel for the respondent, Mr. Alatishe, the learned Assistant D.P.P. of Lagos State. It has been explained that the appellant was not tried in the magistrate’s court. He was only arraigned on a charge of manslaughter and then the case was taken before the High Court where a charge of murder was read against him. It is correct as the counsel for respondent had said (sic) in his brief, that it was only when trial of an accused person had begun and after the accused had been called upon to make his defence that withdrawal of the charge by prosecution would operate as an acquittal. See Inspector-General of Police v. Marke, (1957)2 F.S.C. 7 at p.8.”
The Appellant has appealed again to this Court against the dismissal of his appeal by the Court of Appeal. Seven lengthy grounds of appeal have been filed with the Notice of Appeal. The most important of these grounds is ground 4 which raises a constitutional issue for the first time. It reads –
“(4) The learned Justices of the Court of Appeal and the learned trial judge erred in law in failing to hold that the trial of the Appellant in the High Court before the learned trial judge was a nullity on the ground that the Appellant had earlier been charged with manslaughter at the Magistrate’s Court, Yaba, Lagos where he elected summary trial and pleaded not guilty to the charge.”
Particulars of Error
It is the constitutional right of the Appellant that he should be given a fair hearing within a reasonable time when he was charged with manslaughter of the deceased at the Magistrate’s Court, Yaba, Lagos where he pleaded not guilty on the 15th day of July, 1983. The Appellant who pleaded not guilty to a charge of Manslaughter in the Magistrate’s Court, Yaba, Lagos on 15th July, 1983, was after a period of over ten months arraigned on information before the learned trial judge on the 6th day of April, 1984 when the Appellant pleaded not guilty to a charge of murder. The appellant was convicted of murder and sentenced to death by hanging on the 30th day of May, 1984 when the charge of manslaughter dated 15th July, 1983, was still pending in the Magistrate’s Court, Yaba, Lagos.
Happily, all the grounds of appeal have been condensed in the appellant’s supplementary brief of argument to 2 issues for our determination; to wit:-
“1. Whether the appellant should have been discharged and acquitted of the charge of murder and the lesser offence of manslaughter on the ground that the proceedings in the court of first instance were a nullity because the prosecution were negligent in violating the constitutional rights of the Appellant by adopting a wrong procedure of charging him with murder in the High Court, Lagos when the earlier charge of manslaughter against him in the Magistrate’s Court, Yaba, was nut withdrawn and thereby failed to give him a fair hearing within a reasonable time.
- Whether, assuming that the appellant stabbed the deceased with a broken bottle, the appellant should have been discharged and acquitted of murder and convicted of manslaughter on the ground that the weapon used was a bottle and not a knife or pistol.”
In support of his submission that the trial of the appellant in the High Court was a nullity, learned counsel for the appellant referred, in the appellant’s brief of argument and in his address, to the provisions of sections 32 (1)(c) of the Constitution of the Federal Republic of Nigeria, 1979. He argued that by the provisions of section 33(4) of the Constitution whenever any person is charged with a criminal offence, unless the charge is withdrawn, he is entitled to a fair hearing within a reasonable time. Furthermore, he said, by virtue of section 32 subsection (1)(c) of the Constitution no person shall be deprived of his personal liberty except in accordance with a procedure which is permitted by law for the purpose of bringing him before a court upon reasonable suspicion of his having committed a criminal offence.
Finally, learned counsel stated that the provisions of section 191 subsections (1)(c) and (3) of the Constitution empowers the Attorney-General of a State to discontinue with any criminal proceedings whether instituted by the Attorney-General or any person. Learned counsel for the appellant concluded his argument on this point by submitting than he failure of the prosecution to withdraw the charge of manslaughter in the Magistrate’s Court before instituting the present case in the High Court on a charge of murder renders the latter proceedings a nullity.
He contended that the failure gave rise to the fact that the appellant was not given a fair hearing within a reasonable time in respect of the charge of manslaughter and, therefore, the procedure followed in charging the appellant with murder in the High Court was contrary to the procedure laid down by sections 32(1)(c); 33(4) and 191 (1)(c) and (3) of the 1979 Constitution.
In effect the appellant’s contention is that the constitutional provisions which he referred to have not been followed and as a result they have been violated. By reason of the violation the trial in the High Court is a nullity. Although at the conclusion of the argument of learned counsel for the appellant we did not deem it necessary to call on Mr. Arthur-Worrey, learned Senior State Counsel, to reply on behalf of the respondent, we were not oblivious of the lucid respondent’s brief of argument which the latter had filed. In the brief Mr. Arthur- Worrey contended that the first issue for determination formulated by the appellant raises three questions, namely-
“(a) Can the appellant’s claim that he was denied a fair trial within reasonable time within the meaning of section 33(4) of the 1979 Constitution in the Magistrate’s Court affect the validity of his trial and his conviction in the High Court
(b) Did the pendency of the charge before the Magistrate curtail the Attorney-General’s powers under section 191 (1) of the 1979 Constitution to institute the proceedings in the High Court
(c) Can the appellant seek to invoke the provisions of sections 33 (9) of the 1979 Constitution; 181 and 221 of the Criminal Procedure Law (of Lagos State) and ask this honourable Court to nullify the trial and conviction in the High, Court on the ground of double jeopardy”
In answer to the first question, learned Senior State Counsel conceded in the brief that the pending proceedings in the Magistrate’s Court offended the spirit of section 33(4) of the Constitution in that they had not been withdrawn nor determined within a reasonable time; but submitted that the provisions of section 33(4) could not be applied to the proceedings in the High Court because the proceedings in the Magistrate Court were separate and distinct from those in the High Court. Learned Senior State Counsel argued further that by all accounts the appellant had a fair hearing within a reasonable time at his trial in the High Court.
With regard to the second question, learned Senior State Counsel cited the recent decision of this Court in Amaefule v. The State, (1988) 2 N.W.L.R. 156 and contended that the pendency of the trial in the Magistrate’s Court could not in any way curtail the power of the Attorney-General under Section 191 of the 1979 Constitution to institute the subsequent trial for murder in the High Court.
Finally, in answer to the third question, learned Senior State Counsel submitted that only a plea of either autrefois acquit or autrefois convict as provided under section 33(9) of the 1979 Constitution and sections 181 and 221 of the Criminal Procedure Law of Lagos State could have aborted the proceedings in the High Court; but such plea would not apply here since the trial in the Magistrate’s Court had not been concluded.
It is pertinent now to refer in detail to the provisions of sections 32(1)(c); 33(4) and 191(1)(c) and (3) of the 1979 Constitution on which the appellant is resting his case to nullify the proceedings in the High Court. Section 32(1)(e) reads.-
“32-(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law-
(c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;”
The record of appeal shows that the proceedings in the High Court were initiated by the filing of an information on a charge of murder against the appellant and three others. The information was signed by one Mrs. A. T. Awojobi, State Counsel, on behalf of the Director of Public Prosecutions of Lagos State. This has not been shown by the appellant to be contrary to the procedure laid down in section 77 of the Criminal Procedure Law, Cap. 32 Laws of Lagos Sate, 1973 which inter alia lays down the procedure for instituting criminal proceedings in the High Court. It cannot also be disputed that from the evidence available to the prosecution at the time of filing the information in 1984, there was reasonable suspicion that the appellant together with his co-accused caused the death of the deceased.
Section 33(4) of the 1979 Constitution provides –
“33(4) Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn he entitled to a fair hearing within a reasonable time by a court or tribunal.”
The appellant’s complaint in this respect is not that the trial in the High Court was not heard within a reasonable time, but that the information brought in the Magistrate’s Court was left in abeyance whilst the trial in the High Court went on. I think this complaint is misconceived. First, this appeal is not concerned with the proceedings pending in the Magistrate’s Court.
It is an appeal against the decision of the High Court in a murder charge, which went to the Court of Appeal and thence here. Secondly, the provisions of section 33 subsection (4) of the 1979 Constitution do not and cannot apply to the present appeal because the appellant was arraigned in the High Court, according to the record of appeal, on the 6th day of April, 1984 and the judgment of the High Court was given on the 30th day of May, 1984.
Thirdly, the point that the trial pending in the Magistrate’s Court offends the provisions of section 33 subsection (4) can only be raised in an appeal against the decision of the Magistrate. So far there has been no such decision of the Magistrate’s Court from which there is an appeal to this Court. Any complaint that the appellant may have against the proceedings in the Magistrate’s Court will have to await the decision of the Court in the charge of manslaughter. In other words it is now premature for the appellant to complain in this Court against any delay in the Magistrate’s Court to continue with proceedings abated in favour of the trial in the High Court.
Finally, section 191 subsections (1)(c) and (3) of the 1979 Constitution provides as follows –
“191-(1) The Attorney-General of a State shall have power-
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(3) In exercising his powers under this section the Attorney-General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
The power of the Attorney-General to discontinue or terminate a criminal trial before the judgment of a court is delivered is clearly not in doubt – see The State v. S. O. Ilori & 4 Ors., (1983) 1 S.C.N.L.R. 94; (1984) 2 S.C. 155. The exercise of that power does not apply to the trial of the present case in the High Court. It is therefore idle to discuss the power in relation to the present case. The Attorney-General may decide to exercise his power in the proceedings before the Magistrate’s Court but that can not be the subject which this Court needs to consider since it has not arisen. However, what remains to be said is that it is improper for the prosecution to file two charges based on the same fact or incident in different courts as have been done here. Although such action may or may not be fatal to the subsequent trial, (depending on whether it leads to a conviction) it certainly amounts to an abuse of the process of the Court because the earlier information was not withdrawn in the first court to have been seised with the charge of manslaughter (see Amaefule v. State. (supra), at pp. 168,170 and 176),no citizen should be the subject of persecution by the State. The Courts frown at such action and will not hesitate to deprecate it even if no remedy has been provided by law.
I now turn to the second issue for determination, which states that the appellant ought to have been convicted of manslaughter and not murder, because the weapon used in killing the deceased was a bottle and not a knife or pistol. In support of this contention learned counsel for the appellant cited the following cases – Okonji v. The State, (1987) 3 SC. 175 at pp. 176, 2 208 and 211; Aremu v. The State, (1984) 6 SC. 85 at p.86 and Akpuenyi v. The State, (1976) 11 SC. 269. Counsel argued that in all cases where the accused had used a broken bottle to inflict injury on the deceased there have been either a conviction of manslaughter or a discharge and acquittal of the accused because the prosecution had failed to establish malice aforethought against the accused person.
With respect, this is a most ridiculous submission. To start with, none of the cases relied upon by the learned counsel for the appellant supports his argument. In Aremu v. The State (supra) and Akpuenyi v. The State (supra). The weapons employed in committing the offences thereunder were a gun and knife respectively. There was no mention of a bottle whatsoever in both cases. With regard to the case of Okonji v. The State (supra) there was no doubt as to what weapon was used by the accused person to stab the deceased in the stomach. The question then was: was it a bottle or a knife This question was answered as follows per Nnamani, J.S.C. at p.200 where said –
“If a knife was used in the circumstances accepted by the lower courts, it would seem to me that knowledge that deceased would be the probable not likely consequence of such an accused would be imputed to the appellant. If on the other hand a bottle was used in circumstances alleged by the appellant, I am so sure that one can come to the same conclusion. It seems therefore useful to examine this question of the weapon used.” (italics mine)
Learned justice continued thus on pp.206 to 209 thereof-
“P.W.3 he said saw the appellant stabbing the deceased on the right side of the neck and abdomen and the medical report talks of those injuries all on the right side of the body. It would appear to me that what the learned Chief Judge was saying was that he believed P.W.3 because the injuries in the medical report would seem to have been caused by a knife. The appellant had alleged that after the deceased hit him on the head with a broken bottle, he forced out a piece from the deceased’s hand and it was with it that he stabbed the deceased. Learned Deputy Director of Public Prosecutions has urged this Court to hold that the injuries could not have been caused by a bottle. Could such a decision be reached without the evidence of the Doctor The medical report in this case was tendered under Sections 249 and 250 of the Criminal Procedure Code. The Doctor did not give evidence. If he did, perhaps he would have explained what he meant by “a sharp cutting weapon.” Another matter which has caused lingering doubt over this issue of the weapon is the fact that the allegation that they fought in a place littered with bottles was not, and perhaps could not have been, investigated……It is trite law that where there is doubt in the mind of the court in a criminal matter it ought to be resolved in favour of the accused person.
The consideration in the High Court and the Court of Appeal had been based on the finding that a knife was the weapon. Any doubt on the finding must inevitably affect the result of this appeal. It will not affect it to the extent of an acquittal for the appellant himself has admitted being in a fight in the course of which he inflicted injuries on Lawal Mohammed from which he died. It would seem to me that in such circumstances, this case falls within the provisions of Section 222(4) of the Penal Code. That section provides that:-
“Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. “, (italics mine)
And concluded at p.211 as follows –
“Having previously held that there was a lingering doubt as to what weapon was used in this case, I am of the view that this case falls within the principles enunciated in the Oji case [(1961) N.R.N.L.R. 93 or (1961) All N.L.R. 262]. I am therefore of the view that a defence under Section 222(4) of the Penal Code is available to the appellant……I find the appellant guilty of culpable homicide not punishable with death and convict him accordingly.”
It is clear from the foregoing quotations that this Court did not decide in Okonji v. The State (supra), as submitted by learned counsel for the appellant, that where the weapon used in causing death is a bottle, and not a knife or pistol, then the verdict to be given by the court, on the case being proved, is that of manslaughter. The verdict to be returned cannot be the same always but will differ from case to case because the circumstances surrounding the cases are not always the same. It will therefore be preposterous and indeed impossible to lay down a principle of law that whenever a broken bottle is the weapon employed in causing death, a verdict of manslaughter or culpable homicide not punishable with death must be the verdict to be returned. That is not and cannot be the law under the Penal Code or indeed the Criminal Code with which this case is concerned.
It was, therefore, for all these reasons that I dismissed the appeal on the 22nd day of September, 1988 and affirmed the conviction and sentence of death which was passed by the High Court and was confirmed by the Court of Appeal.
K. ESO, J.S.C.: I have had a preview of the Reasons given in this appeal by my learned brother Uwais, J.S.C.
I will adopt those reasons for dismissing the appeal on 22nd September, 1988.
Other Citation: (1988) LCN/2373(SC)
