Manawa Ogbodu V. The State (1987)
LawGlobal-Hub Lead Judgment Report
KAWU, J.S.C.
This appeal was heard on Thursday, the 15th day of January, 1987. After carefully reading the records of proceedings, the briefs of argument filed on both sides, and hearing counsel for the appellant and the respondent, I dismissed the appeal and affirmed the judgment of the Court of Appeal. I then indicated that I would, today, give reasons for my judgment. I now proceed to give those reasons.
On the 21st day of February, 1984, the appellant was arraigned before the High Court of Bendel State, Oleh Judicial Division, presided over by Akpiroroh, J., and was charged with the offence of murder. The charge alleged that on or about the 17th day of January, 1983, at Oleh, he unlawfully killed one John Okporokpo. He pleaded not guilty to the charge.
The prosecution’s case was that on the 17th day of January, 1983, the deceased. John Okporokpo, and his co-worker, one Sylvanus Egbede resumed work in the Bakery of P.W.1 – Mrs. Regina Asasa at about 10 p.m. At the request of P.W.1, the deceased and Sylvanus went to the compound of P.W.3 to call him to work. P.W.3 testified that he, the deceased and Sylvanus were on their way to their working place when the appellant came out of his compound and challenged them. The appellant called them thieves and when they said that they were not thieves, the appellant slapped Sylvanus Egbede. When Sylvanus wanted to engage the appellant in a fight, he was held by P.W.3 so as to prevent him from doing so. At that stage, said 3 P.W., the appellant ran into his house, came out with a knife and stabbed John Okporokpo on his left shoulder. He then took to his heels and disappeared. John Okporokpo fell down and died on the spot.
In his defence the appellant denied the charge. He testified that on the day of the incident, the deceased and two others came to his house and attacked him. He said that they hit his head with a cement block and stabbed him on his thigh. He said further that during the attack on him in his room, one of his assailants attempted to stab him with a knife, and as he (the appellant) dodged him, he (the assailant) stabbed a member of his gang, who was behind him, and that it was that person that died.
At the trial, six witnesses gave evidence for the prosecution, and as stated earlier on, the appellant also gave evidence in his defence but did not call any witness. His extra-judicial statement to the Police was tendered and admitted as Exhibit ‘A’. At the conclusion of hearing, the learned trial Judge gave very careful consideration to the whole evidence adduced, He also considered the appellant’s defence and held as follows:
“I am therefore satisfied beyond all reasonable doubt that on the 17th day of January, 1983, the accused stabbed John Okporokpo to death. I am satisfied beyond any shadow of doubt that he unlawfully killed the deceased, John Okporokpo and I accordingly convict him and find him guilty of the murder of John Okporokpo.”
Being dissatisfied with the decision of the High Court, the appellant appealed to the Court of Appeal, Benin Division Coram Ikwechegh, Musdapher and Ajose-Adeogun. J.J.C.A., and on the 3rd day of July, 1986, by a unanimous decision that Court dismissed his appeal and confirmed his conviction and the death sentence passed on him. Still aggrieved, he has further appealed to this Court.
There were two original grounds of appeal filed with the notice of appeal, and with the leave of the Court five additional grounds were filed and argued. As the two original grounds were not argued, they are deemed to have been abandoned and are hereby struck out.
Both counsels in this appeal, in compliance with the rules of court, have filed their briefs of argument. In his own brief the appellant’s counsel formulated five issues for determination as follows:-
“1. Whether the learned Justices of the Court of Appeal directed themselves properly in law and on the evidence on the failure of the prosecution to call Sylvanus Egbede – a vital eye witness to the incident.
- Whether there was miscarriage of justice to the Appellant when the lower Court refused Appellants’ application to call the only witness he has to support his case i.e. his son.
- Whether the Court below was right in up-holding the conviction and sentence of the Appellant on the basis of an amended proof of evidence which did not comply with S.164 and S.165 of the Criminal Procedure Law Vol. II Laws of Bendel State of Nigeria.
- Whether the Court below in upholding the conviction and sentence of the Appellant was right when it held that the defence of provocation under S.286 of the Criminal Code cannot avail the Appellant. .
- Whether the conviction of the Appellant of the offence of murder was proper when in fact the particulars of the offence disclose a case of manslaughter.”
I am satisfied that the issues formulated for determination by the appellant’s counsel cover all the grounds of appeal filed.
Now the first additional ground of appeal (without the particulars) reads as follows:
“The learned Justices of the Court of Appeal erred in law and misdirected themselves when they held that the failure of the prosecution to call Sylvanus Egbede an eye witness to the incident and a vital Prosecution witness was not fatal to the prosecution’s case and thereby occasioning a miscarriage of justice.”
The main submission of Chief Ohwororide in this ground of appeal was that there were certain conflicts in the evidence of 3 P. W. and the appellant, which conflicts could only be resolved by the evidence of Sylvanus Egbede.
At page 6 of his brief, he enumerated some specific points in respect of which he said Sylvanus Egbede ought to have testified. He further submitted that in view of the role played by Sylvanus, (which role he did not specify), “it was obligatory on the prosecution to call Sylvanus Egbede not as a witness to come and establish’ facts which were conclusively proved at the trial but as a witness to resolve the conflicts evident on the facts of the case.” In support of his submission he quoted a passage in Rex v. Kuree (1941) 7 W.A.C.A. at 177, where it is slated that it is the duty of the prosecution, to place before a trial court, all available relevant evidence, and that if there is a vital point in issue, and there is one witness whose evidence would settle the point one way or the other that witness ought to be called.
In this case, however, it is my view that on the evidence adduced, all the vital points in issue were completely resolved by the learned trial Judge without any difficulty. The trial Judge based his decision principally on the eye witness evidence of the 3 P.W., which was believed. In the circumstances, it was no longer necessary to call Sylvanus Egbede to testify for the prosecution. Although the burden is on the prosecution to prove its case against the accused beyond any reasonable doubt, it has a discretion to call only those witnesses required to prove its case. The law does not impose on the prosecution the duty or function of both the prosecution and the defence. See Saidu v. The State (1982) 4 S.C. 41 at p.69; Also see Okonofua v. The State (1981) 6-9 SC. 1 at p.18. In my view the Court of Appeal was right in holding that the evidence of 3 P.W. was sufficient to ground the conviction of the appellant.
With regard to the contradictions mentioned at page 6 of the appellant’s brief, I am satisfied that the learned trial Judge adequately dealt with them in his judgment at page 38 of the record. He came to the conclusion, rightly in my view, that they were not material. In my view there is no substance in any of the complaints in this ground of appeal.
Ground 2 complained:-
“2. The learned Justices of the Court of Appeal erred in law and misdirected themselves when they held that-
“……….the trial Judge had exercised his discretion judiciously when he refused to reopen the case because the lateness of the application is not shown to be due to any mistake on the part of the Counsel conducting the defence and cannot be justified on any ground other than a desire on the part of the defence to prolong the trial.
Particulars of Misdirections
(a) The Appellant’s son – the witness whom the Appellant attempted to call was an eye witness to the incident.
(b) The learned trial Judge exercised his discretion on wrong premises when he speculated the likely evidence of the witness to be called and based his refusal on it.
(c) The lateness of the Application to re-open the Appellant’s case was an oversight on the part of the Counsel conducting the defence which ought not to be visited on the Appellant.”
The appellant’s Counsel raised this same complaint in the Court of Appeal where the matter was fully considered by that Court. The Court was of the view that in the circumstances the trial Judge’s refusal to grant an adjournment to enable the appellant’s son to be called as a witness, was not a wrong exercise of his discretion. I entirely agree with them. There is nothing on the record to show that the appellant’s son was present at the scene of the incident. The appellant did not say so in his evidence at the trial. In his statement to the Police (exhibit ‘A’, he made it clear that himself and his three alleged assailants were the only persons present at the place of the incident. The last sentence of that statement reads:-
“During the time that I ‘chucked’ him, there wasn’t any other person apart from three of them,”
Again in my view this ground of appeal lacks substance and it is accordingly dismissed.
The third ground of appeal (without the particulars) reads:-
“The learned Justices of the Court of Appeal erred in Law in upholding the conviction and sentence of the Appellant to death on the basis of the amended information which did not comply with the provisions of Sections 164 and 165 of the Criminal Procedure Law Vol II of Bendel State of Nigeria.”
There is no substance whatsoever in this ground of appeal as the amendments in question were made to the proofs of evidence and not to the charge. The provisions of Sections 164 and 165 are only applicable when there is an amendment to a charge or when a new charge is framed after the commencement of a trial.
The fourth ground of appeal reads:-
“(4) The learned Justices of the Court of Appeal erred in Law and misdirected themselves when they held that the defence of provocation under S.286 of the Criminal Code cannot avail the appellant having held that:-
“if the deceased and his two Companions indeed did enter the premises of the Appellant there may be available to the Appellant, the defences of provocation and or self defence.
Particulars of Misdirections
(1) The evidence of PW3 was that the deceased died on the spot after he was stabbed.
(2) The evidence of PW5 John Holt Ebedi was that the body of the deceased was found dead in front of the accused person’s compound.”
The submissions of counsel for the appellant at pages 10, 11 and 12 of his brief show clearly that his complaint is really against the finding of the trial Court on the issue of provocation, which finding was upheld by the Court of Appeal. The defence of provocation must be based on some credible evidence, and in this case, the evidence adduced by the appellant at the trial in support of the plea was that he was in his compound when he was attacked by the deceased and two other armed persons. The trial Judge considered the matter, and in his judgment, concluded as follows:-
“After a careful review of the entire evidence as to how the incident happened that night, I am not satisfied that there was any conduct of the deceased which could provoke the accused to stab him to death, I also hold from the evidence that the 3 P, W, and Sylvanus Egbede did not provoke the accused that night.
The defence of provocation under Section 286 of the Criminal Code in my view is not available to him on the facts of this case as the killing could not be said to have been in the heat of passion caused by sudden provocation before there was passion to cool down. The defence of self defence is not also available to him on the facts of this case.”
The same issue was raised in ground six of the appellant’s grounds of appeal in the Court below and in its judgment that Court held as follows:
“In my view this ground of appeal cannot serve as a model for precision and clarity. If the deceased and his two companions indeed did enter the premises of the appellant on the fateful night, there may be available to the appellant, the defences of provocation and or self defence, But the learned trial Judge evaluated the evidence and disbelieved the evidence of the appellant and accepted as the truth the evidence of 3 P.W. whom he saw testifying and held that he was a witness of truth Having regards to the evidence believed by the trial Judge, the defence of provocation under Section 286 of the Criminal Code cannot avail the appellant.”
On the issue of the defence of provocation therefore, there are two concurrent findings of fact-that of the trial court and that of the Court below, and it has not been shown or contended that the findings cannot be supported by the evidence adduced or that they are in any way perverse.
Where there is a finding of fact based on the credibility of a witness, as in this case, a Court of Appeal will be very reluctant to interfere – see Kponuglo v. Kodaja (1933) 2 W.A.C.A. 24. This Court has held in several cases that in the absence of special circumstances, it will not allow a question of fact to be re-opened where there have been concurrent findings by two lower Courts see Mogo Chikwendu v. Mbamali (1980) 3 S.C.31; Ubodo & On. v. Enarofie & Ors. (1980) 5’977 S.C. 42 at p. 55; and Overseas Construction Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Part 13) 407.
In this case, as no exceptional reasons have been shown to justify our interfering with the findings of fact of the two lower courts on the issue of the defence of provocation, those findings must remain undisturbed. Accordingly this ground of appeal fails also.
The fifth ground of appeal is a complaint of a defect in the charge as framed and read over to the appellants. It reads:-
“(5) The learned Justices of the Court of Appeal erred in law in upholding the conviction and sentence of the Appellant for the offence of murder whereas the particulars of offence disclose a case of manslaughter in that the charge was stated thus –
Statement of Offence
Murder punishable under section 319(1) of the Criminal Code Law Vol. II CapA8 Laws of Bendel State of Nigeria, 1976”
WHEREAS the particulars of offence stipulated thus
Particulars of Offence
Manawa Ogbodu “M” on or about the 17th day of January, 1983 at Oleh in the Oleh Judicial Division unlawfully killed one John Okporokpo (m).”
Particulars of Error
Whereas in a murder case the particulars or description of the offence should read “did murder” in the instant case the offence was described as “unlawfully killed.”
The basis of this complaint, as stated at page 13 of the appellant’s brief, is that the appellant “is made to believe that he is facing a manslaughter charge and it was a grave error on the part of the learned trial Judge to have convicted the appellant of murder which is a greater offence to (sic) manslaughter.” There is no substance in this complaint. Section 315 of the Criminal Code, Cap 48 Vol. II Laws of Bendel State states that any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter, murder is defined as follows:-
“316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:
(1) If the offender intends to cause the death of the person killed, or that of some other person;
(2) if the offender intends to do the person killed or to some other person some grievous harm;
(3) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
(4) if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
(5) if death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
(6) if death is caused by wilfully stopping the breath of any person for either of such purposes; is guilty of murder.”
Thus it is clear that murder is committed when a person unlawfully kills another in anyone of the six circumstances specified under S.316, and it is the offence which carries death penalty under S.319(1). In this case the Statement of Offence read over to the appellant states:-
“Statement of Offence
Murder punishable under S.319(1) of the Criminal Code, Vol. II Cap 48 Laws of Bendel State of Nigeria, 1976.”
It is in the circumstances difficult to believe that the appellant could have been misled into thinking that the charge against him was that of manslaughter and not murder, and especially when he was represented by counsel throughout the case. This ground of appeal also fails and it is dismissed.
In the final result all the grounds of appeal have failed and the appeal should be dismissed, as it was in fact dismissed on the 15th day of January, 1987.
SC.137/1986
