Mr. Henry Chukwu V. The State (2012)
LAWGLOBAL HUB Lead Judgment Report
S. MUNTAKA-COOMASSIE, J.S.C.
This is an appeal against the judgment of the Court of Appeal Port-Harcourt Division delivered on 20th June, 2007. The appeal actually arose from the decision of the High Court of Justice of Imo state, hereinafter called trial court.
The accused person Henry Chukwu was arraigned to the High Court of Imo State holden at Okigwe Judicial Division for the offence of murder contrary to Section 319 (1) of the Criminal Code Cap. 30 Vol. 11 Laws of Eastern Nigeria 1963 applicable to the Imo State of Nigeria. The charge reads thus:
“You Henry Chukwu (m) on the 6th day of May, 2001 at Low Cost Housing Estate Ubaha in the Okigwe Judicial Division did murder one Onibuike Uhio after stabbing him with dagger and thereby committed an offence punishable under Section 319 (1) of the Criminal Code Cap. 30 Vol. 11 Laws of Eastern Nigeria 1963 as applicable to Imo State”.Six prosecution witnesses testified for the prosecution. The prosecution’s case in a nutshell was that there was a scuffle between the accused person and the deceased. In the course of the said scuffle, the accused stabbed the deceased with a dagger whereupon the deceased was injured and, subsequently died. Although the police searched the Appellant’s room no weapon was found. i.e no dagger of any sort was discovered. In this case, there was no eye witness who gave direct evidence as to what had happened.
The appellant in his evidence stated that what happened was not intentional act, and that he did not murder the
deceased. The trial court in its judgment however found the accused person guilty and convicted him for murder and sentenced him to death. The trial court on page 99 found thus:-
“The defence counsel submitted that the intention of the accused was to (sic) dispose the deceased of the dagger and not to kill him. He relied on Thomas v. The State (supra) at page 158. The accused was alone in the room with the deceased. The evidential burden on him was to explain how the deceased got stabbed with a dagger. The accused said he did not know how the deceased got the injury. He did not stab the deceased. The submission of counsel, with due deference, is not based on the evidence before the court.
For all I have said above, I hold that the prosecution has proved, by circumstantial evidence, the charge against the accused as required by law, I find him guilty as charge” (sic) per Egole J.
The appellant was dissatisfied with this judgment and has thus appealed to the Court of Appeal Port-Harcourt Division, hereinafter called the lower court. The lower court in the lead judgment delivered by Garba JCA unanimously found as follows:-
“It may be recalled that the appellant has stated in the course of his evidence that it was the deceased who pulled out a dagger from his trouser. By these pieces of evidence the appellant mean (sic) to say that since it was the appellant who pulled out a dagger from his trousers, it was he who initiated or started “what happened” that led to the injury he sustained. I would like to point out that these pieces of evidence couldn’t be considered in isolation of the other part of the appellant’s evidence as well as the evidence of the other witnesses as highlighted in this judgment. The relevant part of the Appellant’s evidence on the point is where he said inter alia. “Immediately I saw the dagger I rushed his hands and we started struggling over it until both of us landed on the bed. The next thing I saw was Chibuike Uhio (deceased) started moving outside. I followed him and he fell down. It was then I noticed that he was injured. I stopped a Cyclist and told him to drop me at Okigwe Police Station”.
The salient points to be noted in the above evidence include:
i) That the evidence did not show that even if the deceased had pulled a dagger out of his trouser he did not attack or even attempt to attack the Appellant with it.
ii) That it was the Appellant who upon sight of the dagger “rushed” the hands of the deceased (whatever that may mean).
iii) That even though both them “landed on the bed” it was the deceased that rushed out of the bed and room injured.
iv) That though the Appellant noticed that the deceased was injured, he stopped a Cyclist and rode away without even a look at the deceased to find out the nature and extent of the injury. If truly the Appellant did not initiate what happened, he did not show he was in any danger whatsoever from the deceased when he “rushed” the former’s hand. For the defence of self-defence to be available to an accused person it has to be established by him that reasonable grounds existed for believing that his own life was in danger and to do what he did to preserve it. The belief of the accused person would be tested objectively and some factors for example the force used by accused person was same as that used by deceased. Part of the body hit in self preservation by accused, behaviour of the accused person immediately after incident, etc. The factors are not closed as such case would depend on its peculiarities. See Laoye v. State (1985) 2 NWLR (Pt.10) 832; Ajunwa v. State (1988) 4 NWLR (89) 380. Since the evidence of the Appellant did not show that he was attacked by the deceased and that this life was in real and not imagined danger at the material time, he cannot succeed on the defence of self-defence. The Appellant’s evidence did not satisfy any of the cardinal conditions for the plea of self-defence as set out in the case of Kwaghshir v. The State (1995) 3 NWLR (651) 669 cited by the learned trial judge in his judgment. The four (4) conditions set out by the Supreme Court in that case are:
“(i) The accused might be free from fault in bringing about the encounters;
(ii) There must be present an impending peril to life or great bodily harm; either real or so apparent to create honest belief of an existing necessity.
(iii) There must be no safe or reasonable mode of escape by retreat; and
(iv) There must be the necessity for taking life or causing grievous bodily harm. He continues-
For the above reasons, the, learned trial Judge was on firm ground when he found that the defence of self-defence did not avail the Appellant in the circumstance of the case”.
The lower court thereafter dismissed the appeal and affirmed the judgment of the trial court. The appellant was again dissatisfied with this judgment and has appealed to this court. Both parties filed and exchanged their respective briefs of argument.
The appellant in his brief of argument formulated two issues for determination as follows:
“(1) whether the learned Justices of the court of Appeal were correct when they held that the circumstantial evidence proved the prosecution’s case beyond reasonable doubt.
(2) Whether the learned Justices of the Court of Appeal were correct where they held that the defence of accident did not avail the appellant.
The respondent also formulated two (2) issues for determination in its brief of argument thus:-
“(i) Whether the learned Justices of the Court of Appeal were right when they held at the prosecution proved beyond reasonable doubt the charge of murder by circumstantial evidence under Section 316 of the criminal Code Against the appellant.
(ii) Whether the learned Justices of the Court of Appeal were right in holding that the defence of accident did not avail the appellant”.
At the hearing of this appeal, the learned counsel to the appellant adopted his brief of argument and urged this court to allow the appeal.
On his issue No.1, learned counsel submitted that the standard of circumstantial evidence required by law to prove the appellant’s guilt was insufficient to sustain a conviction for murder. He further submitted that the appellant was the only eye witness as to what happened that the prosecution admitted that there was a scuffle and a fight in the course of which the deceased got stabbed from which the deceased was injured and subsequently died. Learned counsel referred to the appellant’s evidence to the effect that the deceased came to his house, pulled off his shirt, wrist watch and shoes, and when he saw him pulling out a knife from his trousers he rushed his hands, both of them fell on the bed only to discover that the deceased was groaning in pains, he followed him outside where he fell down, and then further submitted that the appellant rushed the deceased’s hand as he was allowed to do by law to defend himself, he cited in support the case of Apugo v. State (2006) 16 NWLR (pt.1002) 227 at 252.
The evidence of the appellant was uncontroverted. Learned counsel then submitted that it was clear that the appellant was believed when he said there was a fight but the learned Justices and the trial judge did not believe him when he said that he did not stab the deceased but that while struggling for the dagger they both fell on the bed. It was his contention that the evidence is capable of two interpretations both in favour of the appellant and against him and where evidence is capable of two interpretations the one favourable to the appellant should be chosen, he cited the case of Queen v. Abayomi (1963), All NLR 50 and Daniels v. State (1991) 8 NWLR (Pt.212) 732.
Learned counsel further submitted that it was mere speculation for the Court of Appeal and the trial court to infer intention to kill or cause grievous bodily harm on the deceased. It was further contended that the lower court having accepted the evidence that he did not intend what happened, he ought not to have been convicted of murder. The learned counsel to the appellant then submitted that the prosecution did not discharge the burden placed on its shoulders under Section 138 (1) of the Evidence Act and the circumstances do not point unequivocally to the acts of the appellant, mere suspicion is insufficient. He relied on the following cases:
a. Ehibogwu v. State (2001) 4 NWLR (Pt.703) 267 at 275.
b. Uguru v. State (2002) 9 NWLR (Pt.771) 90 at 111.
On the issue No. 2, learned senior counsel submitted that from the record it was shown that the deceased was the aggressor. He referred to the evidence of the appellant and section 26 of the Criminal Code and contended that the death of the deceased occurred independently of the exercise of the appellant’s will. The mens rea to sustain a murder conviction was therefore lacking, the case of Thomas V. State (1994) 4 NWLR (pt.337) 129 at 141 and Oghor v. State (1990) 3 NWLR (pt.139) 484 were cited.
The respondent also adopted his brief of argument at hearing of this appeal and urged this court to dismiss the appeal.
On issue No. 1, learned counsel submitted that given the totality of circumstantial evidence before the court, the lower court was right in holding that the prosecution proved beyond reasonable doubt the charge of murder against the appellant, he relies on Section 138 (1) of the Evidence Act and the case of Akinyemi V. State (1999) 6 NWLR (pt.607) 449 at 468. He then contended that proof beyond reasonable doubt does not mean proof beyond all shadows of doubt. See Akale Z. v. State (1993) 2 NWLR (pt.273) 130. That the evidence of PW1, shows strong probability that the appellant stabbed the deceased on the chest with a dagger. The evidence of PW2, the medical Doctor, strengthened the prosecution’s case. The evidence of PW1, PW2 and PW5 on the issue of stabbing remained uncontroverted and in fact consistent with the holding of the trial court. The evidence of PW1, PW2 and PW5 relate to what happened after the fight in the appellant’s room since neither of them saw what transpired immediately before and in the course of the fight between the deceased and the appellant.
On the issue of mens rea, learned counsel contended that intention can properly be inferred from the facts, evidence and circumstances of a given case, since it was very rarely disclosed or made manifest by the accused person; he cited the case of Folarin v. State (1995) 1 NWLR (Pt.571) 313; Gira v. State (1995) 4 NWLR (Pt.443) 375.
On issue No. 2, learned counsel to the respondent submitted that the degree of accident is provided for in Section 24 of the Criminal Code. An event can be described as accidental if it is either unintended or unforeseeable.
The law imputes to a person who willfully commits a criminal act an intention to do the very thing which is punishable consequence of the act which constitutes the Corpus delict which acutely ensures. See R. v. Faulkner (1877) 13 COX CC 550 at 561. In the case at hand, the defence raised by the appellant in his evidence was to the effect that what happened was not an intentional act and not initiated by him. In other words the appellant in his evidence is that causing the injury on the deceased by the stab with a dagger was not intended or started by him. However the appellant did not offer explanations on how the deceased sustained the injury on the chest from which the reasonable inference that he did not intend the injury on the deceased can be inferred. Therefore the absence of these explanations from the appellant on how the deceased sustained the injury makes his defence weak, an after-thought and legally untenable.
My lords, I have considered carefully and thoroughly too the submissions of the learned counsel to the parties, and I would hasten to state that in case of culpable homicide or murder, as popularly called, the following conditions, must be met for the prosecution to prove its case beyond reasonable doubt that is-
i) that the deceased had died;
ii) that the death of the deceased was caused by the accused; and
iii) that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. See Ochiba v. The State (2011) 12 SCNJ 5 26 at 537; Olaiya v. State (2010) MJSC (Pt.1) 73 at 88; and Mbang v. The State (2012) 6 SCNJ 395.
In the instant appeal there was no doubt that the deceased had died, and that the death of the deceased was caused by the appellant. This ingredients Nos.1 and 2 have been proved. However from the evidence on the record can the act that led to the death of the deceased be said to be intentional PW7 in its evidence did not actually know what transpired between the appellant and the deceased. He only saw the deceased with wounds. PW2, a medical Doctor carried out autopsy on the deceased after his death, hence he did not witness how the deceased was injured. PW3 did not also witness the scuffle between the appellant and the deceased and what actually led to the scuffle. PW4 and PW5’s account of what they saw was the events that happened after the scuffle. The DW1 account of what actually transpired between him and deceased is as follows:-
“It was not up to ten minutes, that I entered my room the deceased came and I offered him a handshake he rejected it and asked me of his money. The next thing I saw was that he started pulling out his shirt, watch and shoes. Immediately a fight ensued between two of us. The deceased pulled out a dagger from his trousers. Immediately I saw the dagger I rushed his hands and we started struggling over it until both of us landed on the bed. The next thing I saw was Chibuike (deceased) started moving outside. I followed him and he fell down. It was then I noticed that he was injured. I stopped a cyclist and told him to drop me at Okigwe Police Station”.
The appellant was not cross-examined on this evidence that gave the details of what happened. Thus the evidence remained unchallenged and uncontroverted and the court ought to have acted on it. See Dennis Iviemagbor v. Henry Bazuaye (1999) 6 SCNJ 235.
From the evidence of the DW1 on record the following facts are not in dispute:
“i.) the appellant was in his house when the deceased came to meet him.
ii) On entry, the appellant offered him handshake which the deceased rejected.
iii) Instead, the deceased pulled off his shirt, watch and shoes and started fighting the appellant.
iv) In the process the deceased pulled out a dagger from his pocket which the appellant rushed his hands and both of them fell on the bed.
v.) It was in the process that the deceased was injured in the chest”.
What remains unclear to me is – did the appellant collect the dagger from the deceased and stabbed him or did the deceased fall on the dagger when the two of them fell of the bed There was no evidence on the record to explain these points.
It is my position that the appellant took the correct action by trying to snatch the dagger from the deceased before the unfortunate event happened. The lower court on this point held thus:-
“From the evidence of the Appellant, he was at the material time twenty-three (23) years of age. He had said in his evidence that what happened was not an intentional act and not initiated by him. I am prepared to accept this evidence to mean and as proof that the appellant did not intend to cause the death or murder the deceased by what happened. However the nature of the injury, the part of the body it was inflicted on and the instrument or object used to inflict leave no doubt that grievous bodily harm was the only probable consequence and result of that act”.
If the act of intention to murder the deceased is lacking or the men’s rea, is death the correct sentence to be passed on the appellant In my view the answer is in the negative. Having held that the appellant’s action was not intentional, the lower court ought to have made a finding whether the appellant ought to have been convicted of murder or manslaughter. See Garba v. The State (1997) 3 SCNJ 68 at 78. In my view, and by reason of the evidence before the court, I hold that the appellant is guilty of manslaughter and not murder as held by the lower court under section 317 of the Criminal Code.
Finally, I hold that this appeal has merit. Same is allowed. The sentence of death by hanging passed on the appellant is hereby set aside and substituted with a conviction for the offence of manslaughter for which the appellant shall serve a term of imprisonment of fifteen (15) years. Imprisonment to commence from the 6th day of May, 2001, the date he was taken into custody.
SC.242/2007
