Home » Nigerian Cases » Supreme Court » John Idagu V .the State (2018) LLJR-SC

John Idagu V .the State (2018) LLJR-SC

John Idagu V .the State (2018)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Appellant was tried and convicted by the High Court of Ondo State, for the murder of two persons – Stephen Ogbeche [first deceased] and his son, John Ogbeche, [second deceased]. He was sentenced to death.

The Prosecution called five Witnesses and tendered four Exhibits, including the Appellants Statement to the Police, which he had objected to on the ground of involuntariness. The trial Court conducted a trial-within-trial and found that the Statement was indeed made voluntarily, and the Statement was thereafter admitted in evidence as Exhibit P2.

In his defence, the Appellant denied the Charge and gave his own version of what transpired on that day, which amounted to self defence. He testified that he accompanied “Julius Ogbeche” to obtain a loan of N4, 000.00 from Stephen Ogbeche (first deceased), which he gave him, on condition that Julius pays back N8, 000.00 at the end of November.

When the loan became due, the first deceased asked the Appellant for the whereabouts of Julius Ogbeche on two different occasions and when Appellant insisted that

he did not know where Julius Ogbeche was, the first deceased then reported the matter to the Police on 18/12/2005.

The Appellant was arrested and taken to Oda Police Station where he was detained until 7pm that day. He was only released after he signed an agreement promising to pay the debt at the end of December 2005. On 21/12/2005, the first deceased sent his wife to ask him for the money. He gave her N1,000.00 but she insulted him, tore his shirt and started to fight him in the presence of the family, and as the fight was going on, the wife of first deceased ran inside the room and came out with a cutlass. Afraid for his life, he threw a stick at her and then collected the cutlass, but her whole family gathered around him, and it was during the struggle to take the cutlass from him that he started “to use the cutlass on them”.

PW1, Godwin Oga, and PW2, Janet Ogbeche, the daughter of the first deceased, were eye-witnesses for the Prosecution, and the point of divergence between their evidence and Appellant’s testimony is that they testified that he brought out the cutlass, which he hid within himself, and started to cut the first deceased; his wife and the second deceased.

The learned trial Judge, Adeyanju, J., believed the two Witnesses, and in his Judgment delivered on 22/11/2012, he concluded as follows:

I find that the acts of the Accused coming from his house with a cutlass and inflicting same on the deceased was intentionally done with the knowledge that death or grievous bodily was its probable consequence. The act of the Accused was an unprovoked assault on the two deceased. – – I hold that the prosecution has proved its case against the Accused beyond reasonable doubt. I find the Accused guilty of the offence of murder – – – The sentence of this Court – – is that you be hanged by the neck until you be dead.

Dissatisfied, the Appellant appealed to the Court of Appeal, however, the Court of Appeal dismissed his Appeal and affirmed the decision of the trial Court. Further aggrieved, the Appellant appealed to this Court with a Notice of Appeal containing three Grounds of Appeal and he has formulated two Issues for Determination in his Brief of Argument, thus:

WHETHER OR NOT, in view of the evidence on the record, the Court below erred in upholding the decision of the trial Court

that the Prosecution successfully proved the offence of murder beyond reasonable doubt against the Appellant.

Whether the learned Justices of the Court of Appeal are right in upholding the decision of the trial Court that the Appellant is not entitled to the defence of self-defence.

In its brief, the Respondent adopted the two Issues formulated by the Appellant, and I will do same in dealing with the Appeal.

Under Issue 1, Appellant made submissions on the following -That Exhibit P2, being inadmissible, is not proof beyond reasonable doubt that he committed the offence of murder.

-That the mens rea of the offence of murder was not proved against him beyond reasonable doubt.

-That the two lower Courts should have looked for corroboration to the evidence of PW1, PW2, and PW3, who are interested relations of the deceased persons.

-That the Prosecution’s failure to call the wife of the late Stephen Ogbechi, who started the fight, is fatal to its case; and

-That there was scarcity of acceptable evidence to support his conviction for the offence of murder.

Exhibit P2, is the Appellant’s statement to the Police that was

admitted in evidence by the trial Court after a trial-within-trial.

To put it in his own words, the Appellant submitted as follows:

Exhibit P2 does not qualify as a confessional statement that is admissible in law and, therefore, does not deserve the borrowed status it enjoyed in the Courts below. It is a spineless statement put up at the request, influence and inducement of the Prosecution, hence no amount of corroboration can transform it to evidence upon which [his] conviction can be validly based.

The Respondent argued that the Appellant is expending efforts through the back door at re-opening the trial-within-trial done at the trial Court; that he did not make the decision in the trial-within-trial one of his Grounds of Appeal, only to bring it through the back door in this Court; and he cannot be heard to complain against the admission of Exhibit P2 in the trial-within-trial and the finding by the trial Court that was upheld by the Court below, citing Atanda V. Iliasu (2012) LPELR -9662 (SC) 32.

Citing Balogun V. Labiran (1988) 3 NWLR (Pt 80) 66 at 84 SC, the Respondent submitted that it is settled that once a side of the story is

believed at the expense of the other, submissions before an appellate Court should not be directed at showing why the story is disbelieved or vice versa but should be based on the evidence that was in fact believed.

The Appellant countered in his Reply Brief that the admission of Extribit P2 was challenged in Ground 1 of his Grounds of Appeal and “particularized at numbers ‘g’ to J’ of the Particulars of Error”; that his argument was solely on the said Particulars, which was founded on the decision of the Court below; that Exhibit P2 was admitted as part of the decision of the trial Court that was appealed against at the Court below; and that the same Exhibit P2 was the basis for upholding his conviction by the Court below, which is the decision that is now being appealed.

As far as this Appeal is concerned, it is my view that the question of whether Ground 1 of the Grounds of Appeal covers this complaint, as argued in the Appellants Brief of Argument is neither here nor there. The point made by the Respondent, which is well taken, is that he cannot ask this Court to evaluate/assess evidence adduced at the trial-within trial.

At the trial Court, the Appellant objected to the admissibility of the said confessional Statement to the Police on the ground that it had not been made voluntarily because it was “made after torture, under duress and severe torture”, which is contrary to Section 28 of the Evidence Act, and in its Ruling after a trial-within-trial, the trial Court held as follows-

I do not believe the evidence of the Accused Person that PW1 did not ask him any question, that one Godwin dictated the content of the statement to PW1, that he was beaten, hanged, given a mark on his forehead with an iron ruler and that a broom was inserted into his penis before he signed the statement. I find as a fact that the statement was voluntarily made by the Accused Person without any threat or torture or inducement. I therefore, hold that the statement is admissible. Accordingly, the statement of the Accused Person dated 23/1/2006 is hereby admitted –as Exhibit “P2”.

In affirming the trial Court’s finding, the Court of Appeal observed that-

This Court will not as a mater of practice interfere with the findings of fact of the trial Court unless it can be shown by the Appellant

that the findings are perverse and unreasonable and do not show that the trial Judge availed himself of the advantage of having seen and heard the witnesses.

The Appellant urged this Court to interfere with the concurrent findings of the trial Court and Court of Appeal on Exhibit P2, because they are perverse. However, he also argued as follows:

The conclusions of the Courts below did not represent the true position of the law as no effort was made to adequately evaluate, assess the pieces of evidence on involuntariness submitted before the Court- – It is the duty of the Prosecution to prove voluntariness or disprove all material allegations of torture or police brutality, whether in favour of the State or not especially where, as in this case, the State had notice of Accused’s most material allegation against the Police. The record shows that [he] was threatened, mercilessly beaten and had a stick of broom gruesomely inserted into his penis and torturously twisted to cause him excruciating pain until he yielded and signed the confessional statement. On 30/6/2009, [he] testified in the trial-within-trial of what Mr Olatunbosun (PW4), Mr Godwin (PW1)

and one Nnana did to break him – – It was the impregnable duty of the Respondent to call those three named people if [his] allegation of involuntariness was to be effectively rebutted.

Is the Appellant counting on this Court to assess the evidence, including to ascertain if he was threatened, mercilessly beaten and had a stick of broom gruesomely inserted into his penis and torturously twisted to cause him excruciating pain until he yielded and signed the confessional statement I think not as this Court only entertains appeals against decisions of the Court below; and not directly against that of a trial Court – Akibu & Ors V. Oduntan (2000) LPELR-336(SC). The 1999 Constitution did not make provision for appeals to go directly from the High Court to the Supreme Court – A-G., Oyo State & Anor V. Fairlakes Hotel (1988) LPELR–24926(SC).

What is more, when evaluation of evidence involves credibility of witnesses, an appellate Court is hamstrung because it is the trial Court that saw them, heard them and watched their demeanour that is in the position to believe or disbelieve witnesses, and this can never be captured by an appellate Court

that only has “cold printed record to contend with” – Sogunro & Ors V. Yeku & Ors (2017) LPELR-41905(SC). It is only when a question of evaluation of evidence does not involve the credibility of witnesses but is against non-evaluation or improper evaluation of the evidence that an appellate Court is in as good a position as the trial Court to do its own evaluation – Fatai V. State (2013) 10 NWLR (Pt. 1361) 1.

Most importantly, it is also settled that trial-within-trial is only used to test the voluntariness of a confessional statement; not what value or weight to attach to evidence. In essence, the issue of voluntariness is kept distinct from the issue of guilt, and this is done by insulating the enquiry into voluntariness in a compartment that is separate from the main trial.

In other words, the Accused has the right to have the question of the admissibility of his confession tried as a separate and distinct issue. “At such a trial, the Accused can go into the witness-box on the issue of voluntariness without being exposed to general cross-examination on the issue of his guilt”- Ifaramoye V. The State (2017) LPELR-42031(SC)

In this case, PW4, Sgt Olatunbosun, who tendered the Statement at the main trial, testified as PW1 at the trial-within-trial, and in its Ruling, the trial Court categorically stated that it believed the said Police Officer, and did not believe the Appellant. In the circumstances, it is difficult for an appellate Court to set aside its finding that is predicated on credibility.

However, the question of its value and what weight to attach to the confessional statement admitted in evidence after a trial-within-trial is a different matter altogether, as admissibility and weight are not the same. In other words, the fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial Court As Tobi, JSC, pointed out in Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 386 at 403, it is not automatic”.

Thus, the admissibility of a document is one thing and the weight a Court will attach to it is another; and it is settled that the weight a Court will attach to the document will depend on the circumstances of the case as

contained or portrayed in the evidence Abubakar V. Chuks (supra).

In this case, the question is whether the two lower Courts were right to rely on the Appellant’s confession in Exhibit P2 in convicting him for murder: and not whether the said Exhibit P2 was admissible in evidence.

Be that as it may, the Appellant’s contention in this Appeal is that the evidence did not support the conclusion of the lower Courts that he “intentionally occasioned death to the deceased persons. He argued that the Prosecution failed to prove that he intended the natural consequence of his actions, citing Selvanayagan v. R. (1951) AC 83, Chukwu V. State (2007) All FWLR (Pt. 389) 1224, and Apugo V. State (2006) AFWLR Pt 341 1253; that “intention” to kill or cause grievous bodily harm must be proved, and this must be done objectively; that the fact that a Defendant raises the plea of self-defence, does not mean that the ingredients of an offence is proved, rather it shows that mens rea is absent; that testimonies of PW1 and PW2 differ on the circumstances of how he got to the scene and on what led to the scuffle, which “exposes reliability of Exhibit P2 as a confessional statement.”

He agreed that there was a “hot scuffle” between him and first deceased’s wife, which “led to the regrettable death of the two victims”; but argued that he had no premeditation to kill, thus, the Prosecution did not establish the mental requirement of the offence against him – citing Apugo V. The State (supra), and Chukwu V. The State (1992) 23 NSCC (Pt. 1) 44.

Furthermore, that PW1 and PW2 are tainted witnesses as they are related to the deceased persons, and they deliberately hid away the truth of the scuffle between him and the family, which is why the lower Courts should have been more cautious, in accepting their testimonies in Court without corroboration.

Citing Apugo V. State (supra), Adekunle V. State (1989) 5 NWLR (Pt. 123) 505, Rex V. Essien 4 WACA 112, Aliyu Wakala V. State (1991) 8 NWLR (Pt.211) 552, State v. Azeez (2008) 14 NWLR (PT. 1108) 439, The Queen V. Ukut & Ors [1960] 5 F.S.C. 183, (1960) SCNLR 441, he further argued that failure to exercise restraint in accepting the tainted testimony of PW1 and PW2 cast a fundamental dent in the Judgments of the lower Courts: that it is inferable that

non-existence of an unbiased and untainted evidence of the Prosecution witnesses crumbled what was left of its case: and that failure of the trial Court to look for corroboration and the subsequent ratification by the Court below, has occasioned a miscarriage of Justice.

He submitted that the Prosecution’s failure to call the wife of the first deceased, and his “unknown and unnamed friend who PW9 said was present during the “settlement of dispute”, is fatal to its case, citing Usufu V. State (2008) All FWLR (Pt. 405) 1731, Alake V. State (1992) NWLR (Pt. 265) 260, Rex v. Essien (supra), Ogudo V. State (2012) All FWLR (Pt 629) 1131.

He also contends that other vital evidence was left out that made the lower Courts conclude wrongly that the Prosecution proved its case; that his evidence that the cutlass was not his, and that it was the first deceased’s wife that brought the cutlass, which cast doubt on the case of the Prosecution, were ignored, therefore, his conviction and the subsequent sentence of death, cannot be justified with evidence proffered by the Prosecution.

The Respondent submitted that Appellant’s take on the issue on “mens rea” is not only misplaced, misconceived, unreasonable, unfounded and unsound in law but also based on the sandy foundation, and the shaky presumption that the lower Courts erred in holding that the Prosecution proved the offence of murder beyond reasonable doubt.

It argued that Appellant’s confession in Exhibit P2 takes the proof of his guilty mind ” when he was maiming, cutting and killing his victims, beyond questioning”; that he had a final solution in mind as he stated-

I even brought out some cocoa chemical like Gamaline 20 mixed with black chemical inside bottle that if I killed them finished I would drink it and died myself (sic).

That the above statement of his in Exhibit P2, is an unquestionable proof of the Appellant’s premeditated scheme (mens rea) to kill and destroy, so, his argument to the contrary is illogical, baseless, unsound in law and unthinkable; that where an Accused knows there is a serious risk that death or grievous bodily harm will ensue from his act and commits the acts deliberately without lawful excuse, the intention to expose a potential victim to that risk as the result of those acts is presumed, and that it

does not matter that the act/intention were aimed at another victim other than one who succumbed, citing Afosi V. State (2013) LPELR 20751 (SC).

As to vital witnesses, it submitted that his contention is baffling as proof beyond reasonable doubt is not scaled by the number of witnesses called but potency of the evidence adduced by the Prosecution that has discretion to call only those required to unfold its case, citing Ishaya V. State (2013) All FWLR (Pt. 696) 588 @ 603, Nkebisi V. The State (2010) 5 NWLR (Pt. 1188) 471 SC, Inusa Saidu v. The State (1982) 4 SC 49 @ 68 – 69, and Buba V. The State (1992) 1 NWLR (Pt. 215) 1 @ 6.

Furthermore, that not calling the wife of first deceased as a witness did not leave any lacuna in its case since its case, without her evidence, was proved beyond reasonable doubt – Udo V. State (2006) 15 NWLR (Pt. 1001) 193, Musa v. State (2016) 2 SC (Pt. iv) 1; that it was established via PW1 and PW2 that Appellant took the cutlass from home concealed on his body in order to catch his victims of guard; and that the evaluation of evidence is essentially that of a trial Judge; if he satisfactorily performs this, an appellate

Court will not interfere, citing Nkebisi V. State (supra).

On the issue of PW1 and PW2 being the relatives of the deceased, it argued that this is mere self-misdirection on the part of the Appellant since a case is not lost on the ground that the witnesses are members of the same family or community; that what is paramount is their credibility and that they are not tainted witnesses, citing Omotayo v. State (2009) LPELR-2663 (SC), Nkebisi V. State (Supra), Adelumola V. State (1988) 5 SCNJ (Pt 1) 68, Oguonzee V. The State (1998) 5 NWLR (Pt. 551) 521, Amuneke V. State (1992) 1 NWLR (Pt. 217) 338, Olalekan V. State NSCQLR Vol, 8 (2001) 2007, Ben v. State NSCQLR Vol. 27 (2006) 233, and Emmanuel Egwumi v. The State (2013) LPELR – 2009 1 (SC).

It further submitted that PW1 and PW2 did not have any purpose to serve other than to state what they saw happened to the two deceased; that they are victims of the very offence the Appellant has been tried and convicted for with no purpose other than to inform the Court the truth of what they saw; and that the two lower Courts adequately considered Exhibit P2, Appellant’s confessional statement, and juxtaposed it

with other evidence adduced at the trial before admitting same in evidence.

It is a fundament principle of criminal law that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness that his or her conduct is criminal, is the mental element, and actus reus, the act itself is the physical element. The concept of mens rea, which is Law Latin for “guilty mind”, developed in England around the year 1600, when Judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common law crime varied then’

In other words, mens rea is a criminal intention or knowledge that an act is wrong, and today most of the crimes are defined by statutes that generally contains a word or phrase indicating the mens rea requirement. Thus, a typical statute may require that a person act knowingly, purposely or recklessly – see legal-dictionary.thefreedictionary.com. In this case, the Appellant was charged with the offence of murder contrary to Section 316 of the Criminal Code applicable in Ondo State, and the Prosecution

was expected to prove beyond reasonable doubt that the alleged act was intentional with the knowledge that death or grievous bodily harm was a probable consequence – Akinfe V. State (1988) 3 NWLR (Pt. 85) 729.

As it is, the issue of whether Appellant had the requisite mens rea is inextricably linked to the question of whether he acted in self defence, which is the subject of Issue 2 – whether the Court of Appeal was right to uphold the trial Court’s decision that he is not entitled to the defence. He canvassed more or less the same arguments as under Issue 1 that the lower Courts ought not to have relied on testimonies of PW1 and PW2, who did not agree as to why, how and when he used the said cutlass.

The Appellant referred this Court to the relevant provisions of the Criminal Code on the defence of self defence. Section 32 (3) provides that a person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following:

When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence – – but this protection does not extend to an

act – which would constitute an offence punishable with death, or an offence of which grievous harm to the person or another or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him – –

And Section 286 of the same Code further provides as follows:

When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault: Provided that the force used is not intended, and is not such as is likely to cause death or grievous harm. If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.

He also referred to Apugo V. State (supra), and

submitted that the following questions are apt to determine whether the plea of self-defence availed him of the offence being challenged

(a) Did he provoke the deceased persons

(b) Was he unlawfully assaulted, when he had not provoked it

c) What was the nature of the unlawful assault against him

d) Did he use such force on the assailants as is reasonably necessary to make effectual defence against the unprovoked assault

(e) Did he believe, on reasonable grounds, that he could not otherwise preserve the person defended from death or grievous harm

On the first question, he argued that the testimony of PWI was a direct opposite of the testimony of PW2 on when the cutlass appeared and circumstances that led to the incident, which are material facts; and that being contradictory material evidence, their testimonies should be rejected, citing WAPC V. Adeyeri (2003) 12 NWLR (Pt. 835) .517, Akpa V. State (2007) NWLR (pt.1019) 500, Ikemson v. State (1989) NWLR (Pt.110) 455. He urged this Court to believe him on who provoked the fight.

On the second question, he also pointed to contradictions in PW1 and PW2’s testimonies and argued

that his evidence on how the crisis began was never challenged; that this Court acts on unchallenged and uncontroverted evidence that is relevant, admissible and credible, citing Magaji V. Nigerian Army (2008) 8 NWLR (Pt.1089) 338; that his testimony has more probative value that the tainted testimonies of PW1 and PW2, therefore, it is perverse for the lower Courts to have ascribed probative value to the aforesaid tainted testimonies of PW1 and PW2.

As to the nature of the unlawful assault – third question, he referred to his testimony on the attack on him with cutlass and sticks and how he fought back to defend himself, and the condemnation of his attitude by the Court of Appeal as follows:

The only reasonable thing to do in such circumstance is to flee from the place instead of trying to be a Goliath (in the bible). Rather, the evidence shows he waited to dispossess the wife of the deceased of the weapon before using it on them. One begins to wonder how the Accused was able to overpower the family even before the wife of the deceased went for the cutlass as alleged by him.

He argued that the ” Retreat concept” to under Section 286 of the Criminal Code

was overstretched by the Court below and asked:

What kind of action would have sufficed as an act of retreat especially in the face of a life threatening assault How can a person who is repelling an attack under an enormous stress retreat What would [he] have done when he was at a contact range with the assailants, who are almost seven in number, with cutlass and stick

He submitted that the duty on a victim of mob action to retreat, is not absolute but would depend on the circumstances; that he could not have successfully escaped from the mob, or he dies; and that nothing can be expected of a man surrounded by a mob than to “stand his ground” and defend himself, citing an American case – Brown v. USA (1921) US335, Zambian case Nwale v. .R (1958) R&N 527, English case – R v. Dudley (1884)14 QBD 273 and Nigerian cases – Amala V. State (2004) 18 NSCQR 834 and Njoku v State (1993) NWLR (Pt.299) 272.

He further submitted as follows at pages 27 – 28 of his Brief:

Contrary to the reference to the Biblical Goliath by the Court below, the legal right to kill in self- defence is not dependent upon the temperament or phlegmatic nature

naature of the individual assailed but on the standard of a reasonable man. The right is predicated on the natural principle of kill or be killed. Here once [he] has reasonable grounds to believe that his own life was at stake in utmost danger, with no other viable option of saving it than to kill his rampaging assailants he had to fight back. Even from his testimony, he did not know if Stephen and John were the persons affected, all he wanted was to escape being killed.

As to the last questions, he submitted that from his testimony, he was “faced between death and life”, therefore, he had to use the weapon of the assailants to secure his escape from death.

He also argued that he did not solicit the unlawful assault that fueled him to defend himself with the commensurate force with which he was attacked; that where a defendant overpowers a victim with a deadly weapon, this Court has consistently held that killing such assailant after overpowering him is defensible, citing Iteshi Onwe v State (1975)9-11 SC 15 (Reprint); and that:

It is apparent from the evidence on record that he was unlawfully assaulted, when he had not provoked it; that the

unlawful assault against him was of a deadly nature, which entitled him to use such force on his assailants as was reasonably necessary to make effectual defence against the unprovoked assault; and that at the time he sought to defend himself, he believed, on reasonable grounds that he could not otherwise preserve the deceased from death or grievous harm otherwise he would die.

On its part, the Respondent submitted that as much as any defence to which an Accused is entitled to, should be considered however stupid or unreasonable for whatever it is worth, the defence counsel cannot, and should not try to arm twist the Court to make a defence where none exist; and it is not the role of any Court to formulate or invent a defence for an Accused, where on the consideration of the evidence, none is open or available to him, citing Oguntolu V. State (1996) 2 NWLR (Pt. 432) 503.

It conceded that self defence, in an appropriate case, is a complete answer to a charge of murder or manslaughter, but submitted that for an Appellant to avail himself of this defence, he must show that his life was much endangered by acts of the deceased that the only option open

to him to save his life was to kill the deceased; that he must show that he did not want to fight and was at all material times prepare to withdraw, citing Omoregie V. State (2008) LPELR-2658 (SC); and for self-defence to have an impact, the action taken by the Accused must be unavoidable.

It submitted that the defence is determined essentially on the facts and circumstances of each case, citing Omoregie V. State (supra); that even if the picture painted by the Appellant from his evidence were true, it would not have sustained the defence of self-defence since he decided to stay back and fight the wife of first deceased to “finish” rather than run as a reasonable man in danger, who has opportunity to run would do; and that it is trite that the defence is weakest where the victim’s position (in this case a woman) is weaker than that of the Accused and hence the issue of self-defence does not arise; the defence will also not be available, citing Adeyeye V. State (2013) LPELR-(19913 (SC). Furthermore, that:

The Appellant misconstrued the law when he argued to the effect and gave an impression that [he] is qualified to enjoy the protection of the defence of self defence because he stated under cross-examination that “before the wife of Stephen

came out with the cutlass, they had inflicted injuries on my legs and my jaw with my forehead they used stick to injure me”. Outside the fact that this is a clear case of afterthought, even, the fact that the claimed injuries were inflicted on him using stick and not cutlass punctured and deflated the shield of protection that would otherwise have been afforded if the sticks were indeed cutlasses in that this Court held in Apugo V. The State (supra) that the plea of self defence may afford a defence where the party raising it uses force, to merely counter an actual attack, but mainly to ward off or prevent an attack, which he has honestly and reasonable anticipated. In that case, the anticipated attack must be imminent. In this case, it is clear from all the available facts and evidence that the intention of the Appellant was not to ward off any attack, but essentially to kill.

Furthermore, that the Appellant’s contention is baseless in law because a contradiction can only help an Accused if it is material and affects the live issue or issue in the matter; that a contradiction in the evidence of the Prosecution Witnesses to affect a conviction, it

must raise a doubt as to the guilt of the Accused; and that a contradiction, which is peripheral to the live issue or issues in the matter, will not avail an Accused Person.

It further submitted that the guiding principles of self defence are necessity and proportion, and the two question, which ought to be posed, and therefore answered before the trial Court were – (1) On the evidence, was a defence of self-defence necessary And (2) was the injury inflicted proportionate to the threat offered, or was it excessive That if the threat offered is disproportionate with the force used in repelling it, and the necessity of the occasion did not demand self defence, then the defence cannot avail the Accused; that the questions were considered by the two lower Courts, and they both concluded that the story of the Appellant, on which the defence was based, was an afterthought and tissues of lies.

It further argued that Exhibit P2, being a confessional statement, is enough to sustain conviction without any corroborative evidence, citing State V. Eboh (2005) 4 ACLR 602; that the findings of the lower Courts on voluntariness of Exhibit P2, Appellant’s act being

unprovoked assault, thereby, making the defence of self defence not available to him, are concurrent findings “which are neither perverse nor is there a material violation of some principle of law or procedure and of course there is no miscarriage of justice, citing Pius V. State (2016) 2-3 SC (Pt II) 119, that this Court is always wary of interfering with the concurrent findings of the lower Courts, citing John V. State (2012) All FWLR (Pt. 607) 643; however, when such findings are perverse, or not predicated on credible evidence and have occasioned miscarriage of justice, this Court would readily interfere, as it did in Adebiyi V. State (2016) 1 – 2 SC (Pt IV) 95, and that there is no such perversity in the findings of the two lower Courts that the defence of self defence cannot avail the Appellant in this case.

The Appellant, however, argued in his Reply Brief that contrary to the Respondent’s argument, the case of Adeyeye V. State (supra), is not applicable herein because the victim is not weaker than the Defendant; that the law does not support is proposition that a man under vicious attack should hand over a cutlass he collected from one of

the attackers, who surrounded him with a view to struggle and collect the cutlass; that this looks like suicide, and the principle of the plea of self-defence does not state that a Defendant must surrender the weapon with which he was attacked to the assailant and that the question is why was he surrounded And”if he had surrendered that cutlass what would have happened”

He submitted that the law allows the Court to consider each case based on the facts and circumstances, so the disparity in weapons may pale into insignificance if facts are considered; that the law does not deny a right of self defence to a man, who uses a cutlass he got from assailants to wave through seven men, who surrounded him to wrestle him down, citing the Indian Case ofKela Singh v. Emperor (1933) A.I.R Lah 167, and R v. Comey (1882) Q.B.D 534 and R v. Julien (1969) A.E.R 856.

Thereafter, the Appellant reiterated the same arguments and cited the same cases, as in his main brief, which is not the role of a reply brief. A reply brief is limited to finding answers to the questions raised in the Respondent’s brief, which the Appellant has not addressed or dealt with in the main brief.

It is not the forum for the Appellant to strengthen his main Brief by repeating or expanding the arguments contained therein FRN V. Iweka (2011) LPELR-9350(SC). In this case, all the arguments in violation of this principle in the Reply Brief, will be discountenanced.

As both Parties rightly submitted, self defence is a defence based essentially on the facts of each case, and authorities abound on when the defence can avail an Accused Person – see Omoregie V. State (Supra) and Kwaghshir V. State (1995) 3 NWLR (Pt.386) 651, wherein this Court enumerated the ingredients of the said defence, and these are:

– The Accused must be free from fault in bringing about the encounter;

– There must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity;

– There must be no safe or reasonable mode of escape by retreat; and

– There must have been a necessity for taking life.

In this case, P’W1, who was an eye-witness, testified as follows:

On 21/12/2005. Accused came to my house but did not see me. In the evening I was in the house of Stephen Ogbeche

when the Accused came to meet me there. The Accused called me and I answered him. He said he liked the food my wife gave him in the afternoon. Thereafter I invited him to sit down with me. He sat for a while and got up. I said John come, what happened. At the material time, my brother Stephen Ogbeche and John Ogbeche were lying down in the place. We were with the wife of Stephen sitting down with them. The Accused ran and came back. On coming back, he brought out a cutlass he hid within himself and started to cut Stephen Ogbeche and John Ogbeche and the wife of Stephen Ogbeche. Thereafter the Accused took to his heels.

PW2, the daughter of first deceased, another eye-witness, said:

I know the Accused Person. On 21/12/2005, the Accused Person came to our house; we never knew he was with a sharp cutlass. My father, mother and younger brother were relaxing outside. The Accused Person sat beside them and said he came with his friend for settlement. This was because they borrowed money from my father. My father asked for the money. The Accused Person said that he had no money and he asked my father to do his worst. My father ran to a nearby Police

Station and brought Police on 18/12/2005 The Police arrested the Accused Person. My father went to bail him on 20/12/2005. On 21/12/2005, after the Accused Person had told my father to do his worst, he got up as if he wanted to go. On getting up he took the cutlass which he hid in himself and cut my father and brother with it. The two of them died instantly. Accused also gave my mother matchet cuts.

In Exhibit P2, Appellant stated as follows in his Statement to the Police:

On 21/12/2005 at about 7.00pm I brought out sharp cutlass in my room and went to Stephen Ogbeche house with annoyance. I hang the cutlass at my trouser band kept it very well nobody saw the cutlass with me. When I got there I was explaining how the wife used to caused me (sic), the wife came out and started abusing me. I now brought the cutlass out I started macheting them. I cannot say the person I killed first. It was dark but I know I cut people very well, I dropped the cutlass and pick race. I even brought out some cocoa chemicals like Gamaline 20 mixed with black chemical inside bottle that if I had killed them finished (sic) I would drink it and died myself (sic) – – I actually drank it but I vomited it.

However, as DW1, the Appellant told a different story that-

She (the wife of the first deceased) started to fight with me in the presence of her husband. She tore my shirt. I slapped her back. When she cried and all her children and brothers-in-law including John Ogbeche and the husband Stephen Ogbeche and Francis Ogbeche, Richard Ogbeche, Godwin came out. As the fight was going on, the wife of Stephen Ogbeche ran inside the house and came out with a cutlass. When I saw her with the cutlass and realizing that if I allow her to get near to me she would kill me. I looked around and saw a stick. I picked the stick and threw it to Stephen’s wife. She fell with the cutlass in her hand. I met her and collected the cutlass. All of them gathered round me and struggled to collect the cutlass from me. I start to use the cutlass on them after which I ran away – – Before the wife – – came out with the cutlass, they had inflicted injuries on my legs and my jaw with my forehead. They used sticks to injure me.

After evaluating the evidence, the trial Court concluded as follows-

The evidence of the Accused in this Court as to

what led to him using cutlass on them is a story completely different from that in Exhibit P2. I hold that the evidence of the Accused before this Court is an after-thought. His evidence as to what led to him using the cutlass on the deceased cannot be relied upon by this Court in this case as they are lies. I do not believe the evidence of the Accused that the wife of the 1st deceased came out with a cutlass, that he used a stick to take possession of the cutlass, that the wife of the 1st deceased and others beat him and that in the process he (Accused) used the cutlass to cut those beating him. I believe this evidence of the prosecution that the Accused came to the house of the deceased with a cutlass hidden in himself and used same (Exhibit P1) to cut the two deceased and the injuries they sustained led to their death. I hold that the defence cannot avail the Accused Person.

The Court of Appeal reproduced statements in the Proof of Evidence which had PW2 as “1” Prosecution witness [P.W]”, PW1 as “2nd P.W.” and Richard Ogbeche, who did not testify at the trial, as the “3rd P.W.”; and referring to excerpts of the summaries, it concluded as follows- <br< p=””

</br<

I still refer to the testimonies of PW1, PW2 and PW3 who were present during the encounter. Their testimonies corroborate each other. That when the Accused went to the house of the deceased — he was offered a seat. It is on record that when he sat down, he started complaining abut what the wife of the deceased did to him in the afternoon (the quarrel). At the time he was complaining to PW1 about the incident that occurred between him and 1st deceased’s wife in the afternoon the two deceased persons were lying down relaxing. Hereunder is an excerpt of PW2’s testimony:

I went to my brother’s house (Stephen Ogbeche) now deceased where I met him sleeping outside with his son John Ogbeche also deceased. I was sitting on bench in company of my brother’s wife, when the accused (John Idaga) came and sat with me – – –

PW1, PW2 and PW3 all said in their statement and evidence that the incident took place around 8.00pm. The question that comes to my mind is why the two deceased persons, who were possibly napping, were most affected. Was it a coincidence Given the scenario, the evidence on record, to my mind shows the Accused premeditated on it and

took the two deceased persons by surprise while they were lying down. PW1 and PW2 gave evidence before the Court and same were neither objected to nor controverted during the cross-examination. – – The autopsy report shows that the deceased persons painfully bled to death as a result of the deep matchet cuts inflicted on them by the Accused. The Accused was not in any danger to have warranted the matcheting of the two deceased persons who were peacefully relaxing in their abode.

The Appellant took exception to the Court of Appeal’s narrative that the deceased persons were sleeping at the scene, and submitted as follows-

It is perverse for the Courts below to have held that the deceased persons were sleeping. In the circumstances of this case, that finding cannot be correct. It is incomprehensible that someone who came to greet PW1 just got up, while he, PW1, was asking him, ‘what happened’ fetch a cutlass and cut persons that were sleeping. In the same way, for PW2, he, the Appellant, came with a friend to settle with her father, suddenly, he told her father, who was supposed to be sleeping, to do his worst and then started using cutlass on them.

These testimonies are unbelievable – The deceased persons were not sleeping.

Apparently, the hue and cry over whether the deceased persons were sleeping or lying down relaxing arose from the statement of PW1 summarized in the Proof of Evidence that on that day, he met first deceased “sleeping outside” with second deceased.

Proofs of Evidence are mere summaries of statements of witnesses to be called by the Prosecution, and it is settled that they are not pieces of legal evidence on which the Court acts – see FRN V. Wabara (2013) 5 NWLR (1347) 331 at 350 SC, and Amadi v. A. G., Imo State (2017) LPELR-42013(SC). Thus, the statements of witnesses in Proofs of Evidence cannot be equated with the testimonies of witnesses called at the trial.

In this case, PW1 did not use the word, “sleeping at trial; rather he testified that the deceased persons “were lying down” at the material time. PW2 also said – “my father, mother and younger brother were relaxing outside”. The Court below may have referred to PW1’s statement in the Proof of Evidence that they were sleeping but it is clear from its Judgment that it used the word interchangeably

with relaxing because it concluded:

The Accused was not in any danger to have warranted the matcheting of the deceased persons who were peacefully relaxing in their abode.

Thus, the issue of whether the deceased persons were sleeping or not is of no consequence in this Appeal. Even so, based on the same evidence, the Appellant argued strenuously that the Court of Appeal affirmed the “wrong reliance of the trial Court on the testimonies of PW1 and PW2′, who are related to the deceased persons, thus, they are tainted witnesses, and the trial Court ought to have received their testimonies with caution.

He also pointed out other “contradictions” in their evidence –

– PW1 said he was the one who invited [him] whereas PW2 said he came with an unknown person to beg.

– PW1 said [he] ran inside and was coming back with a cutlass whereas PW2 said [he] sat beside them and after telling her father to do his worst he took cutlass and started cutting them.

– PW2 said [he] just started cutting the deceased persons whereas PW2 said they had altercation.

The word “contradiction” comes from two Latin words contra meaning opposite, and

dicere, which means to say. To contradict is, therefore, to speak or affirm the contrary, and a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts.

It is settled law that it is not every minor contradiction that matters; for a trial Judge to disbelieve a witness, the contradiction in his evidence must be on a material point. In effect, the law allows room for minor discrepancies in the evidence of witnesses, which may not be fatal to the Prosecution’s case Akpan V. State (1991) 3 NWLR (Pt 182) 646 SC.

See also Ochemaje v. Stare (2008) 15 NWLR (Pt 1109) 57 SC, wherein this Court per Tobi, JSC, explained what this means as follows:

Contradiction definitely arise in evidence of witnesses in Court. That explains the human nature and the humanity in witnesses. Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective or slant. This does not necessarily mean that the event that they are narrating did not take place. It only means most of the time that the event took place, but what led to the event

was given different interpretations, arising from the senses of sight and mind dictated by their impressions and idiosyncrasies. That is why the law says that contradictions, which are not material or substantial will go to no issue.

Thus, the contradiction in the testimony of a witness, which will be fatal, must be substantial; minor discrepancies that do not affect the credibility of a witness may not be fatal – Uche V. State (2015) LPELR-249693 (SC).

In this case, the thread that runs through Appellant’s entire Brief, replete with alleged contradictions in the testimonies of PW1 and PW2, is that he had no intention of causing the death of the deceased persons, when he used the cutlass on them because he was acting in self defence .

The interesting thing is that the Appellant is not running away from the fact that he caused the death of the deceased persons with the cutlass. In the face of that substantial fact, which stands like a huge tree, I do not see how the alleged inconsistencies in the testimonies of PW1 and PW2, as to where he sat and whether he got up to go or ran before he used the cutlass to cut the deceased persons, which are

like weeds around the tree, can have any impact on the weighty fact that he went on to use the cutlass.

The point being made is that PW1 said that the Appellant sat down for a while and “got up”, and when PW1 asked him what had happened, the Appellant ran” and came back with a cutlass he hid within himself , which he used to cut the deceased persons, who were lying down there, and the wife of the first deceased, who was sitting down there with them.

PW2 said her parents and younger brother were relaxing outside. Appellant sat beside them, and after he told her father to do his worst, the Appellant “got up as if he wanted to go, then he took out the cutlass, which he hid in himself, and cut the deceased persons and her mother.

In his statement to the Police, Exhibit P2, which is part of the case for the Prosecution, Appellant confessed that he went to first deceased’s house with the cutlass with annoyance, and when the first deceased’s wife cursed him, he brought out the cutlass and started “matcheting them”. He could not say, who he killed first, but he knew he “cut people well.

Pieced together, what does that say It says that the issue of who invited the Appellant; whether he ran and came back with the cutlass or took the cutlass out; and whether there was an altercation or not before he started “macheting the deceased persons, pales into insignificance, when it is considered that beyond that point, Appellant used the cutlass to cut three people in that place, and caused the death of two of them.

As I said earlier, it is only material discrepancies, which constitute substantial disparagement of the witnesses concerned, in the sense that reliance on their testimony will likely result in miscarriage of justice that impacts negatively on the case of the Party, who relies on such evidence – see Ibrahim V. State (1991) 4 NWLR (Pt. 186) 399, where this Court per Belgore, JSC (as he then was), made the point very clear as follows-

If contradiction in the evidence of the Prosecution goes to the root of the case, that is to say, the substance of the case, as to raise doubt in the mind of the Court, the Court should not convict. It is clear that if there is contradiction in evidence as to material fact, that then goes to the root of the prosecution’s case as to

raise doubt, the benefit of which must be given to the Accused Person — In the case where the contradictions are not as to material facts to the Charge against the Accused Person such contradictions should not disturb the finding of guilt, if sufficient evidence has been led on the material facts to the Charge.

In this case, the alleged contradictions in the evidence of PW1 and PW2, which Appellant harped on, are barely noticeable when viewed against the fundamental issue for determination in this Appeal, which is whether he intentionally caused the death of the deceased persons or knew that death or grievous bodily harm was a probable consequence of his action. The reference point is when he actually used the cutlass and the question is whether the force used is excusable in the circumstances of this case.

But before I get to that, there are other issues that must cleared up. The Appellant insists that the testimonies of PW1 and PW2 should been treated with caution or rejected because they are related to the deceased.

The Respondent, however, submitted, and I agree that this argument is “much ado about nothing”. The accepted definition of

a tainted witness is a person, who is either an accomplice or who, by the evidence he gives, may and could be regarded as having some personal purpose to serve. Evidence of such a witness should be treated with considerable caution “and examined with a tooth comb – Adetola V. State (1992) 4 NWLR (Pt. 235) 267, Egwumi V. State (supra) (2013) 13 NWLR (Pt. 1372) 525.

Even so, the fact that there is a blood relationship between a victim and the Prosecution witness is not sufficient in itself to make the witness a tainted witness, whose evidence is unreliable, unless corroborated – see Egwumi V. State (supra), Omotayo & Ors V. State (supra) and Omotola V. State (supra), cited by the Appellant wherein Oguntade, JSC, stated:

Every citizen has the duty to come forward and offer assistance in the diligent detection and prosecution of crime. Their blood relationship with the victim of crime may constitute an additional incentive to come forward to testify in Court case. But that in my view cannot be regarded as a basis to describe their evidence as untrue, biased or tainted. I am unable to accept the submission that evidence of PWs 7, 10 and

11 was lacking in the requisite quality and objectivity just for the reason that they were the children of the deceased. It would have served the interest of the Appellants better if counsel concentrated in showing that they did not observe what they claimed to have witnessed or that their evidence in some way was incredible. Asking that their evidence be rejected as tainted witnesses just because they were children of the deceased is in my view unhelpful.

The question of who a tainted witness is remains a question of fact, and the trial Court is the most suited to decide whether or not their testimony is reliable; this Court is not equipped to do so – Egwumi V. State (supra).

It is trite that the issue of credibility of witnesses is the pre-eminent duty of a trial Court, and there is a presumption that its findings are right and correct until the contrary is shown. Thus, this Court is usually very slow in interfering with such primary findings. In this case, the trial Court believed PW1 and PW2 and accepted their accounts of what happened on that eventful day, when the Appellant used the cutlass to cut people.

In my view, Appellant’s contention that they are tainted witnesses goes to nothing because, as the Respondent rightly submitted, there is no law that prohibits blood relations of the deceased from testifying for the Prosecution at the trial of the person accused of murdering the deceased – see Adelumola V. State (supra) and Oguonzee V. State (supra) it cited. There is also nothing in the said testimony from which it can be deduced that PW1 and PW2, who were related to the deceased persons, had their own personal purpose to serve as Prosecution Witnesses against him.

The Appellant also contends that the wife of the first deceased is a vital witness, and the failure to call her as a Prosecution Witness, is fatal. A vital witness is a witness, whose evidence may determine the case one way or the other, and failure to call him is fatal to the Prosecution’s case Onah V. State (1985) 3 NWLR (Pt. 12) 236 SC. But the Prosecution is entitled to call witnesses it considers relevant to its case. It is not bound to call all the eye-witnesses or every person present at the scene of crime to testify in order to discharge the burden placed on it to prove its case beyond reasonable doubt.

In fact, a single witness, who gives cogent eye witness account of the incident, will suffice, even in a murder Charge – see Ochiba V. State (2011) 17 NWLR (1277) 663 at 695 SC.

In this case, it is not for the Appellant to dictate to the Prosecution or demand that the wife of the first deceased must be called as a witness. The Prosecution has discretion in the matter; it determines the direction of its case and which witness to call to prove its case against the Accused. Once it discharges the burden to prove its case beyond reasonable doubt, it does not matter that a particular witness was not called to give evidence.

At any rate, where an Accused feels strongly that the evidence of a particular witness is vital or essential to his defence, he is at liberty to call the witness in his defence. He should not sit and wait for the Prosecution to call the witness since the Prosecution is not expected to also conduct the case for the defence as well as its own. If the Appellant needed the evidence of the first deceased’s wife, whom he blamed for the incident, there is nothing in the statute books that hinders him from calling her as his defence witness. But he

cannot be heard to complain or quarrel with the Prosecution for not calling her as its witness in the case against him.

The Appellant also argued that the lower Courts ignored evidence that he was not the owner of the cutlass, and that it was the first deceased’s wife that brought the cutlass, which made them conclude wrongly that the Prosecution proved its case against him. The Respondent, however, submitted that the lower Courts accepted the evidence of PW1 and PW2 that was corroborated by Exhibit P2, Appellant’s statement to the Police, which is proof beyond reasonable doubt as envisaged by law; and I agree.

In my view, the lower Courts were right to ascribe probative value to Exhibit P2, which is consistent with the evidence of PW1 and PW2, and the Prosecution definitely proved its case beyond reasonable doubt.

The Appellant expended