Mrs Patience Ayo V. The State (2007)
LawGlobal-Hub Lead Judgment Report
UWANI MUSA ABBA AJI, J.C.A.
This is an appeal against the judgment of Edo State High Court sitting at Abudu presided over by Hon. Justice M.l. Edokpayi in charge No. HAB/7C/2000.
The Appellant was arraigned before the court on one count information of murder punishable under Section 319(1) of the Criminal Code Cap 48 Vol. II Laws of Bendel State of Nigeria 1976 as applicable to Edo State.
In the particulars of the offence, it was stated that the Appellant on or about 3rd day of March, 1998 at Urhonigbe in Abudu judicial Division, murdered Osamudiamen Ayo.
The Appellant pleaded not guilty to the charge. The prosecution called four (4) witnesses. The Appellant testified in her own defence but did not call any witness. At the close of trial, in a well considered judgment delivered on the 27th September, 2001, the learned trial Judge found the Appellant guilty as charged and sentenced her to death by hanging. This is what the learned trial Judge said while sentencing the Appellant at page 67 lines 22 – 35 and page 68 lines 1 – 10 of the Records of Appeal.
“I hold that the death of the deceased resulted from the injuries sustained from the matchet cuts inflicted on him on the left parietal region of his head by the voluntary act of the accused person. See the following cases:-
- Tona Buhari vs. the State (1965) NMLR/83
- Inyere Akpuenya vs. The State (1976) 11 SC 269 at 278
- Aneji Irek vs. The State (1976) 4 SC 67.
I hold that the accused person intended to kill the deceased and that she killed him. I am satisfied that the deceased died from no other cause or causes but from the injuries caused to him by the accused person. Again, as stated by the Supreme Court in Paul Onye vs. The State at page 81 (supra).
“Now every man is presumed to intend the natural consequences of his deliberate act. A knife is an instrument which when used as Appellant did in this case, can cause death or grievous bodily harm. There is no excuse, or justification borne out of the facts and circumstances of this case.”
Finally, in the result and in view of the foregoing, I hold that the prosecution has proved the guilt of the accused person beyond reasonable doubt. I am satisfied that from the evidence before me, the accused person deliberately murdered the deceased.
The sentence of the Court upon you is that you shall be hanged by the neck until you are dead. May the Lord have mercy on your soul.”
The Appellant being dissatisfied with her conviction and sentence, filed an appeal to this court on a lone ground of appeal vide a notice and grounds of appeal dated 19th October, 2001. Pursuant to the leave of this court granted on the 23/3/2004, the Appellant filed an amended notice of appeal containing three additional grounds of appeal and renumbering the original ground of appeal as ground NO.4.
The grounds of appeal are hereby reproduced without their particulars:-
“GROUNDS OF APPEAL
- The learned trial Judge erred in law by not properly and exhaustively considering the defences open to the accused/Appellant under the Law.
- The learned trial Judge erred in law by relying on the part of the confessional statement favourable to the prosecution’s case and rejecting the part favourable to the Appellant.
- The learned trial Judge erred in law when he held that murder charge was proved beyond reasonable doubt.
- The decision/judgment of the learned trial Judge is unwarranted, unreasonable having regard to the evidence.” In compliance with the Rules and Practice of this court, parties filed and exchanged briefs of argument. In the Appellant’s brief settled by M.K. Agienoji, Esq, Learned counsel distilled two issues for determination, viz:-
“1. Whether the alleged confession extracted from the Appellant was sufficient to ground conviction for murder having regard to the defences available to the Appellant which ought to have exculpated her.
- Whether before arriving at his verdict the trial Judge critically evaluated the evidence furnished by the prosecution which evidence is fraught with forensic lapses, inconsistence and deficiencies which ought to have entitled the Appellant to be discharged and acquitted.” In the Respondent’s brief settled by A. E. Edoziem, Esq, the learned counsel formulated two issues namely:-
“1. Whether the Defence of accident, mistake or provocation avails the Appellant, having regard to the totality of the evidence before the court.
- Whether the prosecution proved the case of murder beyond reasonable doubt to justify condition.”
When the appeal came before us for hearing on the 16th May, 2007, Learned counsel for the Appellant M.K. Agienoji, Esq adopted and relied on the Appellant’s brief of argument dated 28/11/2003 but deemed properly filed on the 16/6/2005 and the Appellant’s reply brief dated and filed on the 21/9/2006 and urged us to allow the appeal and set aside the conviction and sentence of the Appellant.
Learned counsel for the Respondent A.E. Edoziem (Mrs.), Principal Legal Officer, Ministry of Justice, Edo State adopted and relied on the Respondent’s brief of argument dated 16/7/2004 but deemed properly filed on the 18/9/2006. We were urged to dismiss the appeal.
I have looked at the issues for determination formulated by the respective counsel and I am of the view that the issues formulated are one and the same thing. They are only differently worded. I will therefore adopt the issues as formulated by the Appellant’s counsel in the determination of this appeal.
Before I go into the issues for determination, let me briefly state the facts given rise to the present appeal as can be deduced from the evidence adduced before the trial court. The Appellant was at all time material to this case, married to PW 1, Trader Ayo while the deceased Osamudiamen Ayo was their first son.
At about 05:30 hours on the fateful day being 3rd March, 1998, PW1 woke up with an eye pain and requested the Appellant to give him water to wash his face. The Appellant refused probably because PW1 had refused to give her money to buy water.
Consequently, PW1 went to get the water himself and the Appellant followed PW1 from behind with a matchet with which she cut him several times on the shoulder. When on the fifth attempt on him, PW 1 dodged and the matchet met the deceased, their first son who unknown to her was standing behind PW 1 and he sustained deep cut on the head and neck leading to profuse bleeding. The deceased was rushed to the hospital at Obiaruku Delta State but by the time they got to the hospital, he was confirmed dead.
Issue 1 for determination is, whether the alleged confession extracted from the Appellant was sufficient to ground conviction for murder having regard to the defences available to the Appellant which ought to have exculpated her.
Arguing this issue, M.K. Agienoji, Esq, submitted that the prosecution has failed to prove one of the essential ingredients for murder under Section 319 (1) of the Criminal Code that the deceased died as a result of the voluntary act of the accused and that the accused intended to cause death or grievous bodily harm to the deceased citing in support the cases of Igago VS. The State (2001) 3 WRN 153 at 159 and Igbi VS. The State (2000) 3 NWLR (Pt. 648) 169 at 172. It is his view that Exhibit B, the alleged confessional statement of the Appellant upon which the trial Judge predicated his findings and decision is not a direct and positive admission of guilt. It is submitted that the whole event that led to the death of the deceased was an accident which is a complete defence and referred to Section 24 of the Criminal Code and the cases of Aliu Bello & Ors vs. A.G. Oyo State (1986) 5 NWLR (Pt. 45) 828; Audu Umoru vs. The State (1980) 3 NWLR (Pt. 138) 363 and a paper presented by Professor C.O. Okonkwo, SAN, NIGERIAN COURTS AND S. 24 OF THE CRIMINAL CODE. He also referred to Stephens Digest of the Criminal Law (9th
Edn P. 260) all of which defined accident. It is submitted that the prosecution could not prove beyond reasonable doubt that the Appellant intended to kill the deceased, the applicable maxim being Actus non facit reum nisi mens rea – the act does not make a person guilty without the guilty intent. It is further submitted that the learned trial Judge misconceived the ingredients constituting the offence charged by failing to apportion probative value to the defence cited by the Appellant in Exhibit B. That once a confessional statement has been admitted by the court it must rely on its content into to.
That it is not for the court to rely on one part and reject the other part, citing in support the case of The State vs. Itule (1961) 1 ANLR 462. It is the view of learned counsel that the learned trial Judge placed substantial reliance on PW l’s evidence, which is devoid of credibility. It is therefore submitted that the act of the Appellant by which the deceased was killed was accidental within the purport and contemplation of Section 24 of Criminal Code relying on the following cases: – Timbu Kolian vs. The Queen (1968) 119 C.L.R 47 at 53 and Igago vs. The State (supra) at 161.It is further submitted that even if the defence of accident does not avail the Appellant that the defence of provocation under Sections 283 and 318 of the Criminal Code is open to the Appellant as an accused shall not be placed in a fatal dilemma citing the case of Awopejo vs. The State (2000) 4 WRN 57. He also referred to the case of R vs. Okoro (1942) 16 NLR 63.
Learned counsel considered the Appellant’s standing in life and the testimony of PW 2 to the effect that there was a fight between PW 1 and the Appellant on the day in question and to hold that the Appellant was provoked at the time of the incident and that provocation mitigates murder to manslaughters. We were urged to resolve this issue in favour of the Appellant.
Replying, A.E Edoziem (Mrs.) Principal Legal Officer in the Ministry of Justice, Benin City submitted that the defence of accident, mistake or provocation do not avail the Appellant having regard to the evidence before the court. The learned counsel referred the statement of the Appellant to the police Exhibit ‘B’ and her testimony in chief before the lower court and that f PWI and submitted that even though the deceased was not the target of he Appellant, there was evidence that the Appellant intended to kill or cause grievous harm to PW1, but instead killed her own son with the matchet.
It is also submitted that if the cutlass accidentally met the deceased as alleged by the Appellant, the nature of the wound on the deceased would have been quite different completely from the one in issue. She referred to the evidence of PW4, the Senior Medical Officer on the injuries sustained by the deceased and submitted that it is trite law that a man is presumed to intend all the natural and probable consequences of his acts and referred to section 316 (1) and (2) of the Criminal Code and the case of Jacob Olorumeyitokun vs. The State (1976) 6 Sc 127 at 132. On the definition of accident learned counsel referred to the cases of State vs. Appoh (1969) ANLR 218 at 221; Umoru vs. The State (1990) 3 NWLR (Pt. 138) 363 at 376 and submitted that going by the authorities cited, the acts of the Appellant could not be accidental. Rather it is submitted that it was a case of transferred malice as stated in the case of Ashiniu VS. The State (1980) Digest of Appeal Court by Orojo at page 58.
On the defence of provocation, it is submitted that it is trite law that provocation by one person is no excuse for killing another person citing in support the following cases; R VS. Ebok (1950) 19 NLR 84; and Paul Onye VS. The State (1984) 10 SC 81. It is submitted that the learned trial Judge rightly came to the conclusion that the statutory defences of accident, mistake, provocation, insanity and self defence, do not avail the accused person. It is further submitted that the learned trial Judge did not only say he believed or did not believe the evidence of witnesses but gave the factual basis of his belief and finding of facts and relied on credible and legally admissible evidence and that it is trite that the issue of credibility of witnesses is solely within the province of the trial court and it is not the duty of an Appellate Court to reverse the findings of fact by a trial court. The case of Mufutau Bakare VS. State (1981) 1 WLR 58 was referred to.We were urged to discountenance the submission of learned counsel and to resolve this issue in favour of the Respondent.
In the Appellant’s reply brief, it is submitted on the question of defence of accident which was opposed by the Respondent that the law does not place any burden on the accused to establish an issue affording him justification or excuse such as accident as an answer to the charge citing the case of Ozaki VS. The State (1990) NWLR (Pt. 92) at 98. It is submitted that the learned trial Judge relied substantially on Exhibit ‘B’ and that having placed unequivocal reliance on Exhibit B the findings were rather perversed. It is submitted that even if the Appellant’s testimony in court amounts to a retraction, that does not effect the admissibility, credibility or preparative value of Exhibit B which exculpates absolutely the Appellant from murder on account of the defence of accident under S. 24 of the Criminal Code. It is also submitted that the attempt by the Respondent to impute or infer intention to kill on the act of the Appellant from the medical evidence of PW4 is misplaced and should be discountenanced. It is the view of learned counsel that what the Respondent regards as expert opinion which ruled out the possibility of an accident is a personal opinion and should be disregarded. It is also submitted that the nature of the injury sustained by the deceased cannot be used to infer that the Appellant intended to kill or cause grievous hurt on PWI since PWI himself did not sustain any form of injury even when the cutlass was used on him four times.
The main contention of the Appellant on this issue was that the prosecution has failed to prove beyond reasonable doubt that the deceased died as a result of the voluntary act of the accused and that the accused intended to cause death or grievous bodily harm to the deceased.
In criminal proceedings, the prosecution has the duty to prove the guilt of the accused person, which it accuses of committing a crime and the burden does not shift. Even in a situation where the accused person in his statement to the police admits committing the offence, the prosecution is not relieved of the burden of proof placed on it by our Constitution and Section 138 (1) of the Evidence Act. See Njorens vs. State (1973) NMLR 331; Ameh vs. State (1973 6-7 SC 27; Umeh vs. State (1978) 6-7 Sc 27; Umeh vs. State (1973) 2 SC 9; State vs. Ogbubunjo (2001) 2 NWLR (Pt. 698) 576; State vs. Danjuma (1997) 5 NWLR (Pt. 506) 512 and Nwankwoala VS. State (2005) 12 NWLR (PT. 940) 637.
The standard of proof the prosecution is required to discharge has for time immemorial been fixed as proof beyond reasonable doubt see Oteki vs. A.G. Bendel State (1986) 2 NWLR (Pt. 24) 648.
In a charge of murder, the prosecution in order to discharge the burden of proof must prove the under mentioned essential ingredients namely:-
“(a) That the deceased died as a result of the voluntary act of the accused person.
(b) That the deceased person died from injuries the accused person inflicted on him and not from any other causes
(c) That the act or omission of the accused which caused death of the deceased was intentional with knowledge that death or grievous harm was its probable consequence.”
See Nwaze vs. State (1996) 2 NWLR (Pt. 428) 1; Ogba vs. State (1992) 2 NWLR (Pt. 222) 164; Haruna vs. State (1972) 89 SC 174; Archibong Vs. State (2004) 1 NWLR (Pt. 855) 488.
In the instant case, the prosecution called four witnesses. The PW1 Trader Ayo, husband of the Appellant and eye witness to the incident. He testified that he was matcheted about four times with the matchet by the Appellant before he dodged at the fifth attempt and matchet got the deceased by the side of his right head. Both PW2 and PW3 are police officers being the Police Investigating Officer who recorded confessional statement from the Appellant and the superior police officer before whom the Appellant was taken to and her confessional statement attested to while PW4 was the Medical Doctor who performed the post-mortem examination on the corpse of the deceased. After considering the totality of the evidence adduced by the prosecution, the learned trial Judge accepted the said evidence and disbelieved the evidence of the Appellant.
One of the issue contended by the Appellant was that the confessional statement of the Appellant Exhibit ‘B’ upon which the learned trial Judge predicated his findings and decision is not a direct and positive admission of guilt. That it was to the effect that the alleged event, i.e. the death of the deceased was an accident. In Exhibit ‘B’ the Appellant stated inter alia as follows:-
That on 3/3/98 at the early hours of the day, I engaged in a fight with my husband. I asked my husband to give me money to buy some drinking water and he refused. He started beating me and after beating me, I got prepared for farming with my cutlass. As I was holding the cutlass, fight ensued again between me and my husband.
I threw away the (matchet and) cutlass and the cutlass cut my child Osamudiamen Ayo on the head. He was rushed to Obiaruku Hospital and he died few hours later. I did not intend to cut my husband with the cutlass and the cutlass accidentally cut the deceased.
……………….”The underlining is for emphasis.
Learned counsel for the Appellant contended that the whole event was an accident as it was not intended and not foreseen which afforded the Appellant a complete defence. The contention of the Respondent was that the defences of accident, mistake or provocation do not avail the Appellant having regard to the circumstances of this case. The question that rear its head is whether, from the evidence led before the trial court and Exhibit B the confessional statement of the Appellant, the defences of accident, mistake or provocation could avail the Appellant.
In her testimony before the lower court, the Appellant resiled from her confessional statement. She stated at page 27 lines 18 – 30 inter alia:
I then observed that he held a cutlass in his hand and he warned (sic) to leave his house on that very day. He threatened that if 1 did not leave his house on that very day he would cut me with the cutlass and as he said so, I went to meet him.As I met him he held his cutlass in his hand and threatened to butcher me with it. I took the cutlass from his hand. 1 then told him that he should not cut me with the cutlass and 1 too would not cut him with it. The PW1 slapped me on left side of my face the third time the cutlass fell from my hand and met the deceased on left side of his head by the left ear. 1 then took the deceased to the Hospital in Obiaruku in Delta State. After I had returned from the hospital, the PW1 came with the police to arrest me.”
Retraction or resiling from confessional statement or denial by an accused person of his having made such a statement does not ipso facto render it inadmissible in evidence and in this respect a confession contained in a statement made to the police is not to be treated differently from any other confession. See Shittu vs. The State (1990) 1 All NLR 228; Egboghonome vs. The State (1993) 7 NWLR (Pt. 306) 383 and Bature vs. The State (1994) 1 NWLR (Pt 320) 267.
It is well settled that a confession by an accused person is admissible if it is direct and positive and relates to his own acts, knowledge or intention stating or suggesting the inference that he committed the crime charged. See Ntaha vs. The State (1972) 4 SC 1; Akpan vs. State (1990) 4 NWLR (Pt. 160) 101; and Akpan vs. The State (1992) 6 NWLR (Pt. 248) 439.
The test for determining the truth or otherwise of a confessional statement is to seek any other evidence be it slight of circumstances which make it probable that the confession is true. Thus, to determine the truth or otherwise of a confession of an accused person, the court would have to consider the following:
(a) Whether there is anything outside the confession to show that it is true;
(b) Whether the confession is true;
(c) Whether the statement made in the confessional statement of fact, so far can be tested as true.
(d) Whether the accused person had the opportunity of committing the offence charged.
(e) Whether the confession of the accused person was possible; and
(f) Whether the confession is consistent with other facts which have been ascertained and which have been proved
In the instant case, the learned trial Judge tested Exhibit B the confessional Statement of the Appellant against the evidence of PWI and PW4 and came to the conclusion that the truth of the confession was fully established.
PW1, father of the deceased and husband of the Appellant and who was the only eye witness to the incident testified inter alia at page 10 lines 24-31 of the records as follows:-
“I requested for some water from the accused person. With which to wash my eye but she refused. I then went to collect the water myself. I did not know that the accused person was following me from behind. The accused person held a matchet with her right hand that she used to cut me on my shoulder 4 times. She wanted to cut me on my shoulder on the 5th occasion when I dodged and the matchet then met our son, Osamudiamen Ayo who was standing behind me.She cut Osamudiamen at the back of his neck. I then rushed the child to a private hospital Obiaruku. By the time we got to the hospital, Osamudiamen had died. He was 8 years old at the time of his death.”
The learned trial Judge believed the evidence of PWI as the truth of what happened. Now, if the evidence of PWI were to be believed that the Appellant cut him with a cutlass four (4) times and the cutlass could not cut him and when she attempted the fifth time to cut him, PWI again with the cutlass, he dodged and the cutlass met the deceased who was behind him on the side of his head.
Now, if the Appellant could cut the PWI 4 times with a cutlass on his shoulder without a wound or anything to show for it, then the injury inflicted on the deceased with the cutlass thrown without any knowledge of his presence at the vicinity could not have been intended to cause the death of the deceased person. PWI stated under cross examination that the incident happened around 5.30 am and its not yet dawn. He also stated that, he merely went out to wash his eye and that he did not know that the deceased was behind him that early morning. The Appellant stated that when she threw the cutlass, she did not know that the deceased was behind PWI and the cutlass accidentally cut the deceased.
A trial court is under obligation or duty to consider all the defences possible or available to an accused person on the facts even though they appear stupid, improbable or unfounded and whether or not they were specifically raised by the accused person. However, the trial court cannot give an accused person the benefit of defence which were not supported or reflected by the evidence on record. Thus, the trial court is only under obligation or duty to consider such defence or defences open to an accused person only as disclosed or supported by the pieces of evidence on the printed record. See Ekpenyong vs. State (1993) 5 NWLR (Pt. 295) 513; Asanya vs.State (1991) NWLR (Pt. 180) 422; Salla vs. State (2004) 8 NWLR (Pt. 875) 396.
Section 24 of the Criminal Code provides that subject to the express provisions of the code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. Once the defence is successfully taken, the accused should be entitled to an acquittal. The rational is understandable. This is because, to make a man liable for an offence which he does not know that he is committing and is unable to prevent it is totally repugnant to the ordinary man’s concept of justice and would bring the law to contempt. See Ajose vs. State (2000) 7 NWLR (PT. 766) 302; and Agbo vs. State (2004) 7 NWLR (Pt. 873) 546.
Black’s Law Dictionary 8th Edition at page 15 defines accident as:-
“an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated . An unforeseen and injurious occurrence not attributable to mistake, negligence, neglect or misconduct.”
Thus an accident simply means an event which takes place without one’s foresight or expectation. This definition has also received judicial approval. See Aliu Bello vs. A.G Oyo State (supra) and Audu Umaru Vs. The State (supra) and Agbo vs. State (supra). An effect is said to be accidental when the act by which it is caused is not done with intention of causing it.
The defence of accident raised in the instant case was to the effect that as she got prepared for farm with a cutlass she was holding, a fight ensued between her and her husband and she threw away the cutlass which cut the deceased on the head and that she did not intend to cut her husband with the cutlass and the cutlass accidentally cut the deceased. The Appellant did not deny the fact of death of the deceased person and she did not deny the fact that the deceased died as a result of the injuries he sustained from the matchet cut. She said the cutlass accidentally met the deceased. If the evidence of PWI is anything to go by, then the Appellant ought to be believed. The scenario created by both the confessional statement and the evidence of PWI was that the death of the deceased was accidental. The Appellant had no intention of killing her own son. The necessary mens rea to kill her son was not there.
The finding by the learned trial Judge at page 61 of the record of appeal to the effect that, “I have carefully considered the defences opened to the accused person and 1 hold that he statutory defences of accident, mistake, provocation, insanity and self defence do not avail the accused person.” cannot therefore stand.
The facts and circumstances of this case are similar with the case of Timbu kolian vs. The Queen (supra) cited by the learned counsel for the Appellant. In Kolian’s case, the accused who in the dark aimed a moderate blow at his nagging wife and the blow landed on the head of his three months old son who, unknown to the accused, was being carried by his mother and it was held that the death may be an event which occurred by accident or by chance. In the instant case, the appellant got prepared for farm holding a cutlass and a fight ensued between her and her husband PWI and she threw away the cutlass and the cutlass got her son the deceased who was standing behind his father PW 1 and unknown to the Appellant. The incident happened before dawn.
There is no doubt that the injury sustained by the deceased was grievous. However, the presumption that an offender intended the natural and probable consequences of his act may be rebutted or negative by the absence of intention where the event or the act happened accidentally. The intention which is the requisite condition for criminal liability is not there.
In the words of Lord Reid in Sweet vs. Parsley (1970) AC 132; “To make a man liable for imprisonment for an act which he does not know that he is committing and is unable to present is repugnant to the ordinary man’s concept of justice and brings the Law to contempt.”
Therefore, once the defence is successfully taken, the accused should be entitled to an acquittal. See Agbo vs. The State (2004) 7 NWLR (Pt. 873) 546; Ajose vs. The State (2002) 7 NWLR (Pt. 766) 302 and Igago vs. The State (2001) 3 WRN 153. It is therefore my view in the circumstances of this case that, the defence of accident was open to the Appellant.See Agbu vs. State (1992) 8 NWLR (Pt. 259) 255 Onah vs. State (1985) 3 NWLR (Pt. 12) 236 and Onyenankeya Vs. State (2000) 2 CLRN 81.
This finding notwithstanding, I will still consider whether in the circumstances of this case the defence of provocation also avails the Appellant.On this defence, the learned trial Judge found at page 63 of the record as follows:-
“In my view, the failure of PW1 to give the accused person money to buy water for household use is not sufficient to amount to provocation.
I hold that the complaint did not amount to an act of provocation on the part of the accused person I further hold that the evidence of killing disclosed that it was a cold blooded murder and not a killing done in the heat of passion ignited by any of the acts of failure to give her money to buy water.’
Provocations consist of three elements, namely:-
(a) The act of provocation leading to loss of self control
(b) Acting in the heat of passion and
(c) Before there is time for passion to cool.
Therefore provocation is some act or series of act done by the deceased to the accused, which could cause in any reasonable person and actually did cause in the accused a sudden and temporary loss of control rendering the accused subject to passion as to make him for that moment not master of his mind. See R. Vs. Afunja (1955) 15 WACA 26; Amala vs. State (2004) 12 NWLR (Pt. 888) 520. Thus, for the defence of provocation to avail the accused person, the defence must produce credible narrative events suggesting the presence of these three elements, which must co-exist. Thus, the defence of provocation, like all other defences, cannot hang in the air without supporting evidence. In order to establish it, it is the duty of the accused person to adduce credible and positive evidence to support the alleged provocation. Where the accused person fails to adduce such evidence in support of his provocation, the trial court has to rely on the evidence before it, adduced by the prosecution. In the instant case, the Appellant did not lead any evidence suggesting the presence of these elements. The elements of fight was the previous day when she asked PWI for money to buy water for household use and which PWI could not provide. PWI woke the Appellant in the early hours of the morning to bring him water to wash his face. The fight did not continue up to the moment the PWI asked Appellant to bring water to him. The Appellant slept over the incident and therefore sufficient time had passed for passion to cool. Although the degree of provocation varies from circumstances and the degree would depend on what amount to provocation in the case of an ordinary reasonable man of the same standing in life and degree of civilization as the accused person. Even by the Appellant’s own standing in life, a peasant farmer- housewife living in a remote village, the refusal to give money by a husband to buy household needs will not amount to provocation sufficient enough to take a person’s life. See Idemudia vs. The State (1999) 7 NWLR (Pt. 610) 202; Omeninu VS. The State (1966) NMLR 356. However, it is said that the death caused in the instant appeal was accidental. The defence of accident was clearly available to the Appellant. The defence, like all other defences presupposes that the accused physically committed the offence but should be acquitted because it was an accident.
This issue is therefore resolved in favour of the Appellant and against the Respondent.
On issue 2, it is submitted for the Appellant that from the totality of the evidence adduced, the prosecution has failed to discharge the burden of proof cast upon it by Section 138 (1) of the Evidence Act beyond reasonable doubt. It is the view of learned counsel that the finding by the learned trial Judge that, ” I am satisfied that from the evidence before me, the accused person deliberately murdered the deceased” is perverse. It is further submitted that the learned trial Judge misconceived the elements required by law to sustain a charge against the Appellant thereby placing the Appellant in a fatal dilemma. It is submitted that the finding by the learned trial Judge that, “from the evidence of PW1, the accused had intended to kill PW1 but instead killed her own son with a matchet”, and in another breath stated that” the accused person intended to kill the deceased and she killed him”, are not only contrary to each other but placed the Appellant in a fatal dilemma, a situation where the law forbids, the applicable maxim being, allegins contraria non est austiendus – he is not to be heard who alleges things contrary to each other.
It is further submitted that the findings are perverse having loudly berated the police for not forwarding Exhibit D (the cutlass) for analysis at the Forensic Science Laboratory, Oshodi.
It is submitted that a court cannot reach a conclusion by speculation, relying on the case of Ivienhabor vs. Bazuaye (199) 70 LRCN 2256 and submitted that the prosecution has not proved beyond reasonable doubt that the deceased died from injuries sustained from exhibit D and the evidence of PW4 that the deceased died from the injuries sustained from a sharp object like cutlass or sickle, relying on the case of R. vs. Nwokocha (1949) 12 WACA 453. It is further submitted that this court should reject the evidence 0 f PW4 as lacking in probative value as he failed to state his qualification and experience before giving evidence contrary to S. 57 of the Evidence Act relying on the case of Azu vs. The State (1993) 6 NWLR (Pt. 229) 303.
Learned counsel also urged us to reject the evidence of PW1, as he is a tainted witness. That he is an accomplice to the charge whose evidence ought to be taken with caution relying 0 n the case 0 f 0koro v s. The State (1998) 14 NWLR (Pt. 584) 181 at 197.
It is also submitted that PWI is never a competent nor a compellable witness against the Appellant by the provision of Section 161 (2) of the Evidence Act in the absence of any application by the Appellant or her consent. He referred to the cases of Akpolokpolo vs. Police (1960) WNLR 89 and Idiong vs. R (1950) WACA, 64. It is submitted that PWI need not produce any marriage certificate if he wanted to avoid testifying against the Appellant. It is his view that the rejection of the marriage certificate did not extinguish or rebut the presumption of monogamous marriage citing in support the cases of Ihuoma Nwangua vs. Nzoma Ubani (1997) 10 NWLR (Pt. 526) 529 and Useni Lami vs. The State (1967) NMLR 107. He therefore urged the court to expunged the evidence of PWI from the record and quash the conviction of the Appellant on the authority of Okoro VS. The State (supra).
We were urged to answer this issue in the negative and to quash the conviction and sentence of the Appellant.
Replying, the learned counsel for the Respondent submitted that the prosecution proved the requisite intention of the Appellant to kill PWI by cutting him with a cutlass who but for divine act of God, the cutlass could not penetrate the P WI but met the deceased instead. She referred to the evidence of the Medical Doctor who performed the post mortem examination that when put side by side with the evidence of the Appellant, would clearly see intention on the part of the Appellant to kill or cause grievous bodily harm. Learned counsel referred to the ingredients of the offence of murder under Section 316 of the Criminal Code and submitted that the prosecution has proved beyond reasonable doubt that Osamudiamen Ayo died on 3/3/98. That he died as a result of matchet cut given to him by the Appellant and that the prosecution has also proved that the Appellant intended to kill or cause grievous harm to PW1, who dodged and the cutlass met the deceased, and that the learned trial Judge accepted the credible evidence of PWI and PW4 to show that there was intention on the part of the Appellant to kill. She referred to the case of Ogba VS. The State (1992) BLRCN 362. It is submitted that PW4 being a Medical Doctor was competent enough to give an expert opinion on the impact of the weapon that caused such deadly wound on the deceased. It is also submitted that the Appellant has not established that the findings of the learned trial Judge was perverse to warrant interference of this Honourable Court. The following cases were referred to; Mufutau Bakare vs. State (1987) 1 NWLR (Pt. 52) 571; Military Governor of Western Region vs. Afolabe Laniba (1974) 10 SC 227 at 233 and Abdul vs. State (1985) 4 SC 183 at 192. It is also submitted that the failure to forward the cutlass Exhibit B for forensic analysis is not fatal to the case of the prosecution citing the cases of Akinyemi vs. State (2001) 2 ACLR 32, State vs. Omaremade Ojikwo (1975) NWSJ 1. We were urged to resolve this issue also in favour of the Respondent and to dismiss this appeal.
In his reply brief, it is stated that the application of Section 161 (i) (c) of the Evidence Act to the facts of this case as argued by the prosecution is misconceived and we were urged to discountenance same.
I have in this judgment considered the standard of proof the prosecution is required to discharge as proof beyond reasonable doubt. See also Section 138 (1) of the Evidence Act. It is being argued for the Appellant that the prosecution has not proved beyond reasonable doubt that the
Appellant intends to cause death of the person killed or that of some other person. That the prosecution could not prove the requisite intention by credible evidence either directly or indirectly. The Appellant in Exhibit ‘B’ stated inter alia, as follows:-
“He started beating me and after beating me,I got prepared for farming with my cutlass as I was holding the cutlass; a fight ensued again between me and my husband. I threw away the matchet and cutlass cut my child Osamudiamen Ayo on the head.I am convinced that the deceased died as a result of the matchet.”
In her testimony in court, the Appellant resiled from Exhibit ‘B’, she stated inter alia in her evidence in chief; “He threatened that if i Did not leave his house on that day, he would cut me with a cutlass and as he said so, I went to meet him. As I met him, he held his cutlass in his hand and threatened to butcher me with it. I took the cutlass from his hand. I told him not to cut me with the cutlass and that I too will not cut him with it. The PWI slapped me ‘on the left side of my face the third time. The cutlass fell from my hand and met the deceased on the left side of the head by the left ear. I then took the deceased to the hospital at Obiaruku in Delta State.”The underlining is for emphasis only.
The learned trial Judge considered the evidence of PW I and PW4 as the pieces of evidence outside Exhibit B and found the confession fully established by credible evidence led before the court by the prosecution. It is well settled that a confessional statement by an accused is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. It is the best evidence in criminal jurisprudence. It is a statement of admission of guilt by the accused and the court must admit it in evidence unless it is contested at the trial. A conviction can therefore be sustained on a free and voluntary confession of an accused notwithstanding that the accused retracted the confessional statement. See Nwaeze VS. State (1996) 2 NWLR (Pt. 428) 1 and Obasi VS. State (1965) NMLR 119.
From both Exhibit B, the confessional statement and the evidence in chief of the Appellant one thing stands clear. The Appellant denied cutting PW1 with a cutlass 4 times and missed. She denied that it was while she was attempting to cut PW I with the cutlass, that the cutlass instead cut the deceased. She however, admitted that when she threw the cutlass away, the cutlass accidentally cut the deceased and he sustained injuries. The injuries sustained resulted in the death of the deceased.
With regard to the confessional statement of the Appellant, Exhibit ‘B’, the learned trial Judge found that the said Exhibit B, was freely and voluntarily made and tested same with other evidence adduced before the court by the prosecution and found the confessional statement sufficiently established. Having accepted the confessional statement Exhibit’ B’ as sufficiently established, it is clear from the denials contained in Exhibit B that the admission of guilt was not direct and positive. The intention to kill the deceased or cause him grievous bodily harm is not there. There was no proof of the requisite intention, the necessary condition precedent to a charge of murder beyond reasonable doubt. Appellant said in Exhibit B that she threw away the cutlass and the cutlass cut her child. In the circumstances therefore, I agree with the submission of Mr. M.K. Agienoji, Esq, lean1ed counsel for the Appellant that the findings of the learned trial Judge on this point are perversed.
It is also argued for the Appellant that the finding by the learned trial Judge at page 68 lines 9-10 of the records as follows:-
“am satisfied that from the evidence before me, the accused person deliberately murdered the deceased.”
Also at page 62 of the record as follows:-
“It is clear from the evidence of PW1 that the accused person had intended to kill him (PWI) but instead killed her son with a matchet.”And at page 67 lines 30-31 of the record as follows:-
“hold that the accused person intended to kill the deceased and that she killed him.” placed the Appellant in a fatal dilemma, a situation which the Law forbids. I cannot but agree more with Mr. Agienoji, Esq learned counsel for the Appellant.From Exhibit B, the Appellant did not deliberately murdered the deceased. There was no evidence from Exhibit B that the Appellant wanted to kill her husband. The Appellant denied any attempt on the PW I with the cutlass, an attempt if any which PWI has nothing to show for it. The Appellant killed her son not because she intended to kill her son but because the event happened accidentally without any knowledge and the necessary foresight for it to happen at that material time. That requisite intention to kill has not been established by any direct and positive evidence from the prosecution.
The findings of the learned trial Judge as reproduced above are contrary to each other and have therefore placed the Appellant in a fatal dilemma. On Exhibit ‘D’ the cutlass, the learned trial Judge found thus:-
“In my view, the accused person murdered the deceased with either the matchet, Exhibit ‘0’ or any other matchet since she disowned Exhibit ‘0’ in her testimony.”
It is settled law that, a court cannot reach a conclusion by speculation.See Ivienhabor vs. Bazuaye (1999) 70 LRCN 2256.
Learned counsel for the Appellant further argued on the evidence of PWI that same be expunged from the record on the ground that PW 1 is an accomplice to the charge and therefore a tainted witness. It is also submitted that he is neither a competent nor a compellable witness against the Appellant by virtue of the provisions of Section 161 (2) of the Evidence Act, in the absence of an application by the Appellant or her consent.
It is observed that there was no appeal by the Appellant against the Ruling of the lower court refusing to admit the marriage certificate in evidence. By Section 2 (1) of the Evidence Act the words “wife” and “husband” means respectively the wife and husband of a monogamous marriage. The basic principle is that a spouse of an accused person is not a competent and afortiori not a compellable witness for the prosecution unless upon application by the other spouse who is on trial. It is not the requirement of the Section that the accused must consent to the other spouse giving evidence for the prosecution but that he/she can only do so upon the application of the accused:
This provision is applicable only in the cases of a husband and wife of a monogamous marriage. It is only the spouse of a monogamous marriage and not of a polygamous marriage who cannot generally speaking be called upon as a witness for the prosecution against his or her spouse unless upon his/her application before his/her evidence can be admitted. Even though every marriage is presumed monogamous, in the circumstances, where an accused person who wants to take the benefit of Section 161 (2) of the Evidence Act to the effect that his wife or husband can only be a competent and compellable witness in a charge against him or her on his or her own application, must first of all prove that his/her marriage to the wife/husband was monogamous. In the instant case there was no such proof, the marriage certificate having been rejected. In Okoro vs. The State (1998) 14 NWLR (Pt.584) 181; Ogundare, JSC held that, to avail himself of Section 161 (2) of the Evidence Act, he has to prove that his marriage to his wife was monogamous in nature. Even if the marriage certificate was not rejected, it has been held that celebration of a church marriage does not afortiori confer statutory flavour. In Ihuoma Nwangua vs. Nzoma Ubani (supra) The Court of Appeal held that celebration of a church marriage is not one in accordance with the Marriage Act and therefore has no statutory flavour. The marriage of PW1 to the Appellant not being a monogamous marriage, the P WI is therefore a competent and compellable witness against the Appellant Section 161 (2) of the Evidence Act does not apply to the case of the Appellant, they, not being married under the Marriage Act.
Learned counsel also urged the court not to attach any probative value to the evidence of PW 4 because the Medical Doctor did not state his qualification and experience before giving evidence which is a mandatory requirement of law citing Section 57 of the Evidence Act and the case of Azu VS. The State (supra). Suffice it to say that where the nature and duties of an expert witness technical or scientific tests allegedly conducted by him are not challenged during trial, stick evidence will bed deemed by t he Appeal court to have constituted a prima facie evidence of the qualification of such a witness to be admitted as an expert witness. In the instant case, the Doctor
(PW4) was not cross-examined at the trial court of his claim of being a Medical Practitioner. The Appellant cannot now be heard to complain. See Azu VS. The State (supra); Aouad VS. Inspector General of Police 14 WACA 449.
Let me say also on the stand of Exhibit ‘D’ the cutlass, that in murder cases, the failure to take Exhibit for forensic analysis is not fatal to the case of the prosecution as an accused person could be convicted for murder even if the instrument used in the murder is not tendered in evidence or where the instrument used for the murder was taken to the forensic laboratory for analysis but the result proved negative. This fact is not by itself sufficient to dislodge the case of prosecution on the ground that there was no proof beyond reasonable doubt.
In the circumstances, the issue of the evidence of PW I, being a tainted witness, the expert opinion of PW4 on the injuries sustained by the deceased and also the issue of Exhibit ‘D’ not been sent for forensic analysis are of insignificant consequence tot he case 0 f t he A ppel1ant, as they have no any bearing to the defence of accident put forward by her. This issue is also resolved in favour of the Appellant and against the Respondent.
On the whole, it is therefore my view that this appeal has merit and same shall be and it is hereby allowed. The judgment of Hon. Justice M.1. Edokpayi, delivered on the 27th September, 2001 sentencing the Appellant to death by hanging is hereby set aside.
The Appellant is accordingly discharged and acquitted.
Other Citations: (2007)LCN/2468(CA)
