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Nsikak Bassey Ukpong V. The State (2019) LLJR-SC

Nsikak Bassey Ukpong V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

At the High Court of Akwa Ibom State, Ikot Ekpene Judicial Division, Nsikak Bassey Ukpong [the appellant herein] and one other, were arraigned on a one-count charge of murder contrary to Section 326 (1) of the Criminal Code, Cap 38, Vol 2, Laws of Akwa Ibom State of Nigeria.

Upon their plea of not guilty, the matter went to trial before the Court (hereinafter, simply referred to as “the trial Court). The Prosecution’s case was presented by five witnesses. It made the case that sometime in December, 2006, there was a proposed electrification project in a village close to Ikot Obong Otoro village, in Ikot Ekpene Local Government Area.

The deceased person, namely, John Tom Umoh, who was the Sanitation Chairman in Ikot Obong Otoro Village, indicated the trees that needed to be felled in the impending exercise. In the process, he tagged a coconut tree by the road side as due to be felled.

The appellant, who was not happy with this development, scolded the deceased person for so doing. That notwithstanding, the coconut and other economic trees,

which obstructed the proposed power line, were felled. The aim was to facilitate the electrification project which the community was embarking on.

The appellant who, as shown earlier, was displeased, confronted the deceased person. A fight ensued. The appellant beat the deceased person to the extent that he [the deceased person] could not walk home. He [the deceased person] was in consequence, taken to the Ikot Ekpene General Hospital on the said day, December 13, 2006, when the incident occurred. Two days later, on December 15, 2006, he died.

Although he testified in his defence, he [the appellant] did not call any other witness. He admitted fighting with the deceased person on that day, December 13, 2006. He however, claimed that it was the deceased person who pursued him with a machete to a Road Junction in their village. At the end, the trial Court, persuaded by the Prosecution’s case, convicted the appellant, as charged. The Court, however, dismissed the charge against the second accused person. His appeal to the Court of Appeal, Calabar Division, having been dismissed, he has further appealed to this Court. He entreated the Court to determine the five

issues he concreted from the Grounds of Appeal.

ISSUES FOR DETERMINATION

Whether the learned Justices of the Court of Appeal were right in holding that it is not necessary that there should be intent to kill to sustain a murder charge based on the provision of Section 323 (2) and (3) of the Akwa Ibom State Criminal Code, Cap 38, Vol 2 of 2000 and that the appellant intended to kill the deceased [person] because he fought the deceased [person] and death resulted therefrom
Whether in view of the contradictory evidence of the prosecution witnesses as to the nature of injury and date of death, the learned Justices of Appeal were right to have upheld the conviction of the appellant for murder
Whether the learned Justices of the Court of Appeal were right in affirming the judgement of the learned trial Judge which held that the defences of provocation and self-defence did not avail the appellant to mitigate the conviction for murder to that of manslaughter
Whether the learned Justices of Appeal were right when they affirmed the judgement of the trial Judge that the death of John Tom Umoh was a pre-meditated murder when there was no such evidence before the Court

Whether considering the evidence led and the circumstances of the case, the judgement of the Court of Appeal is unreasonable, unwarranted and unsupportable by the evidenceThe Hon Attorney General for Akwa-Ibom State, for the respondent, Uwemedimo Nwoko, adopted Issues One and Five. He adopted issues two and four with modification. He canvassed the view that issue did not arise from the decision of the lower Court.On my part, I take the view that only one issue is determinative of this appeal. After all, this Court is entitled to reformulate issues framed by the parties in order to give them precision and clarity, Okoro v. The State [1988] 12 SC 191; [1988] 12 SCNJ 191; Latunde and Anor. v. Lajinfin [1989] 5 SC 59; [1989] 5 SCNJ 59; Awojugbagbe Light Industries Ltd. v. RN. Chinukwe and Anor. [1995] 4 NWLR (pt. 390) 379; [1995] 4 SCNJ 162; Ogunbiyi v. Ishola [1996] 6 NWLR (pt.452) 12, 24; [1996] 5 SCNJ 143; Lebile v. The Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria Ugbobla and Ors. [2003] 1 SCNJ 463. Simply put, therefore, the purpose of reformulating issues is to accentuate the real

question in controversy in the interest of accuracy, clarity and brevity, Musa Sha (Jnr.) and Anor v. Da Rap Kwan and Ors [2000] 5 SCNJ 01.

For the avoidance of any doubt, therefore, the sole issue for the determination of this appeal is:

Whether the lower Court, rightly, affirmed the conviction of, and sentence on the appellant

ARGUMENTS ON THE SOLE ISSUE

Whether the lower Court rightly, affirmed the conviction of, and sentence on the appellant

APPELLANT’S SUBMISSIONS

At the hearing of this appeal on October 18, 2018, Paul Obi, for the appellant, adopted the appellant’s brief of arguments which, though filed on February 23, 2017, was deemed to be duly filed and served on November 29, 2017. With respect to issue one, he cited pages 310 311 of the record. He contended that the lower Court was wrong.

In his submission, a community reading of Section 323 of the Code (supra) would show that intention to kill becomes immaterial and, therefore, irrelevant in proof of murder, if the offender intends to do to the person killed or to some other person, grievous bodily harm or if death results from the

prosecution of an unlawful purpose of such a nature as is likely to endanger human life. It is therefore, not an absolute exclusion of intention to kill or cause grievous harm.

Praying in aid Section 27 of the Akwa Ibom State Criminal Procedure Law, 2000, he contended that, from the unchallenged and uncontradicted evidence of the appellant at the trial Court, it cannot be rightly inferred that he intended to kill or cause grievous bodily harm to the deceased [person], Ehot v State [1993] 4 NWLR (pt 290) 644, 663; Gira v State [1996] 4 NWLR (pt 443) 375.

He noted that the trial Court based its finding that the appellant had the intention to cause grievous bodily harm to the deceased [person] on exhibits A and B the reports of the post-mortem examination carried out by PW4, a General Medical Practitioner and the cause of death was stated to be as a result of head injuries.

He pointed out that there was no eyewitness account of the fight between the appellant and the deceased [person]. In his submission, the Prosecution did not prove that the appellant had or harboured the intention to do grievous harm to the deceased person during the fight,

Amayo v State [2001] 18 NWLR (pt 745) 251; Maiyaki v State [2008] 15 NWLR (pt 1109) 173; Edoho v State [2010] 14 NWLR (pt 1214) 651; Adava v State [2006] 9 NWLR (pt 984) 152.

He devoted pages 9 14 of the briefs to arguments on what he termed “contradictory evidence” of the Prosecution witnesses. Thereafter, he wondered, at paragraphs 6.1 6.28, pages 14 20 of the brief, “whether the learned Justices of the Court of Appeal were right in affirming the judgement of the learned trial Judge which held that the defences of provocation and self – defence did not avail the appellant to mitigate the conviction for murder to that of manslaughter”

Learned counsel returned to the ingredients of the offence of murder on paragraphs 7.2 7.14, pages 20 23 of the brief and rounded of on pages 23 -26 of the brief.

RESPONDENT’S CONTENTION

On his part, Uwemedimo Nwoko, the Hon Attorney General and Commissioner for Justice, Akwa Ibom State, for the respondent, adopted the brief which, though filed on September 20, 2017, was deemed filed on November 29, 2017.

On his first issue, he re-iterated the long-established duty on the Prosecution in a case of murder,Ogbu v State (2007) 145 LRCN 585, 600; Afosi v State [2013] 13 NWLR (pt 1371) 329, 332; Jimmy v. State (2014) All FWLR 103, 120; Obade v The State [1991] 6 NWLR (pt 198) 435.

He contended that the Prosecution had a duty to prove, inter alia that the accused person, unlawfully, intended to kill the deceased [person], Chukwu v State [2012] 3 LRCN 96. He explained that the deceased person was admitted in the hospital for treatment arising from the fight between him and the appellant on December 13, 2006, being the very day of the fight. He died two days later, that is, December 15, 2006. He cited Section 323 (1) (a) (c) of the Criminal Code, Cap 38 Vol 2, Laws of Akwa Ibom State of Nigeria, 2000.

Placing reliance on Section 323 (2) (b) and (3) (c) of the Code (supra), he contended that the lower Court rightly arrived at the conclusion that it was not necessary that there should be intent to kill before a charge of murder can be sustained. In his submission, by the combined effect of Section 323 (1) (a) (c) and (2) and (3) of the said Code, it

is not necessary that there should be intent to kill. He submitted that murder is the taking of human life by a person who either:

(a) Has a malicious and willful intent to kill or do grievous bodily harm or

(b) Is wickedly reckless as to the consequences of his act upon his victim. For murder, in his submission, there must be an evil intent, that is, a criminal intent; although it is not necessary that there should be an intent to kill,Nwokearu v The State [2013] 16 NWLR (pt 1380) 207, 243; Afosi v State (supra) 332.

He maintained that a person is presumed to intend the natural consequences of his act, such as death resulting in grievous bodily harm,Nwokearu v State (supra) 241; Ibikunle v State [2007] 2 NWLR 546, 555. He drew attention to pages 77 78 of the record for the evidence of PW3. He pointed out that the PW3 was neither challenged nor cross examined on his testimony that he saw when the two men were fighting and that it was the first accused person whom he saw fighting with John Tom Umoh.

He further contended that the lower Court was right when it affirmed the judgement of the trial Court that the act of the

appellant was intentional, Nwokearu v State (supra) 1042, 1070. He urged the Court not to interfere with the concurrent findings of the lower Courts,Akpan v State [2002] 12 NWLR (pt 780) 189.

He pointed out that PW1 and PW2, who were present at the scene of the crime, gave a vivid eye witness account of what took place on December 13, 2006. Above all, there is no dispute that John Tom Umoh is dead and that it was the appellant who caused his death. What was therefore, under contest was whether the appellant had an intention to kill the deceased person. He referred to page 76 of the record for the testimony of PW2; page 77 of the record for the testimony of the PW2 that it was the first accused person who fought with the deceased person. He finally, referred to page 77 for PW3’s corroboration of the evidence of PW2 corroborative evidence that was neither challenged nor controverted, Ebeinwe v State [2011] 204 LRCN 220, 231.

He maintained that cause of death can be proved by direct or circumstantial evidence. It can also be inferred where the person injured or attacked died immediately after the attack. In the instance case, he noted that the deceased

person died two days after the attack, Oguntolu v The State [1996] 2 NWLR (pt 432) 503; Ononuju v State [1976] 5 SC 1; Adekunle v State [1989] 12 SC 203.

He submitted that the direct evidence required to prove the cause of death must be such as would connect the death of the deceased person with the act of the accused person. This may include the evidence of a medical officer who examined or performed the post mortem examination on the corpse of the deceased person and the certificate that the injuries inflicted on the deceased person by the accused person are those that caused the death of the deceased person, particularly, if the deceased died immediately or so soon thereafter. Medical evidence is not necessary, in that case, since the cause of death is the injury inflicted on the deceased person by the appellant.

He drew attention to page 116 of the record for the trial Court’s acceptance of the evidence of PW2 and PW3, the two eye witnesses to the incident who said they saw the appellant beat up the deceased person. He opined that their evidence corroborated the medical evidence of proof of what caused the death of the deceased person since his death took place two days thereafter.

He contended that, though in murder cases, Courts are enjoined to establish with absolute certainty that the act of the accused person caused the death of the deceased person, Uguru v State [2002] FWLR (pt 103) 330, 344; Ahmed v State [2002] FWLR (pt 90) 1358, 1381; 1372, there was a causal link between the death of the deceased person and the act of the appellant and which had been established beyond reasonable doubt, Olalekan v State [2002] 1 MJSC 59, 164. He referred to page 87 of the record for the post-mortem examination on the corpse of the deceased person and argued that the cause of death of the deceased person was established with certainty.

He pointed out that there was overwhelming evidence that the appellant beat the deceased person on December 13, 2006 and inflicted injuries on him to such an extent that the deceased person could not walk back home. He died two days later, pages 76 78 of the record. Thus, the prosecution, sufficiently, proved the death of the deceased person beyond any dispute. Here, it is beyond dispute that the victim or deceased person died as a result of head injuries through impact from a blunt instrument.

He thus, argued that the lower Court, rightly affirmed the findings of the trial Court that the death of the deceased person had resulted from the act of the appellant. The evaluation of evidence also included the findings on exhibits A and B that the act of the appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence.

He therefore, invited the Court to hold that, since the Prosecution was able to establish beyond reasonable doubt all the ingredients necessary to prove the guilt of the appellant; the trial Court, meticulously, considered all the evidence, the lower Court was right in affirming the findings and conclusion of the trial Court.

The learned Attorney General, methodically, debunked all the arguments anchored on the alleged contradiction on pages 12 17 of the brief. Paragraphs 6.1- 6.17, pages 17 19 were devoted to the ingredients of the offence.

Paragraphs 1.1 6.0 of the Reply brief attempted responses to the issues which the respondent canvassed.

RESOLUTION OF THE ISSUE

As indicated at the outset of this judgement, Nsikak Bassey Ukpong [the appellant herein] and one other, were arraigned on a one-count charge of murder contrary to Section 326 (1) of the Criminal Code, Cap 38, Vol 2, Laws of Akwa Ibom State of Nigeria. The trial Court convicted the appellant. The lower Court affirmed his conviction. He has further, appealed to this Court.

It has long been established that to prove the said offence, the Prosecution had the obligation to demonstrate that (a) the deceased person had died; (b) the act of the accused person caused the death of the deceased person and (c) the act was done with the intention of causing death or grievous bodily harm,Ndike v The State (1994) LPELR 1971 (SC); Abogede v The State (1996) LPELR -45 (SC); Ogba v The State [1992] 2 NWLR (pt 222) 164; Udosen v State [2007] 4 NWLR (pt 1023) 125, 145; Ibikunle v State [2007] 2 NWLR (pt 1019) 540, 570 571.

In Akinlolu v State (2015) LPELR 25986 (SC), this Court [per Nweze, JSC] affirmed that:

In the realm of our accusatorial jurisprudence, these tripartite requirements for the proof of the offence of murder have become so well-entrenched and

have been so frequently upheld in a succession of binding authorities that, by now, they must have matured into a prosecutorial sing-song, Adekunle v State [2006] 14 NWLR (pt 1000) 717, 726; Haruna v AG, Federation (supra); Nwachukwu v State [2002] 12 NWLR (pt 782) 543, 548; Madu v State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v State [2000] 15 NWLR (pt 691) 467.

Other cases include: Idemudia v State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607; Maigari v State [2013] 6-7 MJSC (pt 11) 109, 125, citing Ochemaje v The State [2008] SCNJ 143; Daniel v The State [1991] 8 NWLR (Pt 443) 715; Obade v State [1991] 6 NWLR (pt 198) 435; Gira v State[1996] 4 NWLR (pt 428) 1, 125.

These ingredients have witnessed consistent espousal in many jurisdictions, for example, by English Courts,R v. Hopwood (1913) 8 Cr. App. R. 143; Hyam v. DPP [1974] 2 All ER 41; Woolmington v. DPP (1935) AC 462; by Nigerian Courts, Madu v. State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v. State [2000] 15 NWLR (pt 691) 467;

Idemudia v. State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v. State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607 and by Courts in other Commonwealth jurisdictions, see, for example, R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R. v. Tralka (1965) Qd, R. 225, (Queensland, Australia).

Scholars have seldom disagreed with judicial authorities on this question, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd, 2009) 209 et seq; A. G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan: Spectrum Books Ltd, 1988) passim; Archbold’s Pleadings: Evidence and Practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passim; K. S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); P, Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) 194 et seq.; see, per Nweze, JSC inAgu v State (2017) LPELR 41664 (SC) 12 -14; A -B.

PROOF OF THE OFFENCE OF MURDER OF JOHN

In their attempt to prove the case against the

appellant, the Prosecution called five witnesses. The appellant testified and called one other witness. The trial Court, believing the Prosecution’s case, convicted and sentenced the appellant. At page 115 of the record, after setting out the ingredients of the offence, the trial Court found that “[I]n this case, there is no doubt that the Prosecution has proved that John Tom Umoh had died.”

In answer to its question whether the Prosecution did prove that the act of the accused person caused his death, the Court, after discharging the second accused person for having no hand in the victim’s death, proceeded thus:

There is no doubt that the remaining accused [person] was the cause of this pre-meditated murder… It was not only the coconut tree of the accused [person] that was cut down. He lurched around for the deceased [person] to get out into the street. The deceased [person] was unfortunately out on the street on December 13, 2006. I don’t believe the story bandied by the accused [person] that when he placed a curse on the person who cut down the coconut tree, the deceased [person] emerged with a matchete and pursued him with it. I believe

that the deceased [person] was unarmed with any weapon and was going about his legitimate business when the accused [person] pounced on him and beat him mercilessly to the extent that he was unable to walk to his house after the PW2 and PW3 had stopped the fight, if indeed, it was a fight.

There is no doubt that the injuries inflicted on the deceased [person] were occasioned by the act of the accused [person]. The deceased [person] was so battered by the accused [person] that in a couple of days after the attack, the deceased [person] died, in spite of prompt medical attention. In such circumstance, I have no doubt that the death of the deceased [person] had resulted from the act of the accused [person].

I am also of the firm view that having regard to the findings in exhibits A and B, the act of the accused [person] was intentional with knowledge that death or grievous bodily harm was its probable consequence.

[pages 115 116; italics supplied for emphasis].

The lower Court affirmed the above findings. At page 309 of the record, the lower Court found that:

In the instant case, the evidence on record shows that

the deceased [person], John Tom Umoh, was admitted in the hospital for treatment arising from a fight between him and the appellant on December 13, 2006 when the fight took place. On December 15, 2006, he died. PW4 (the doctor who certified the deceased [person] dead said in his finding that the cause of death to be due to severe trauma as a result of head injuries through impact from a blunt instrument).

The Court cited Section 323 (1) (a) (c) of the Code (supra) and Section 323 (2) (b) and (3) (c) of the Code (supra) and held:

From the above provision of the law, it can be seen that it is not necessary that there should be intent to kill before the charge can be sustained. Therefore, the accused/appellant is presumed to intend the natural consequence of his act such as death resulting in a grievous bodily harm, Nwokearu v The State [2013] 16 NWLR (pt 1380) 207.

On the basis of the above, I hereby hold that the trial Court was right in holding that the appellant intended to kill the deceased [person] whom he fought because death resulted therefrom and by the provisions of

Section 323 (2) and (4) of the Code (supra). It is not necessary that there should be an intention to kill.

Now, it must always be borne in mind that in criminal trials, the standard required is proof beyond reasonable doubt. It is not proof beyond any shadow of doubt. The two requirements are completely dissimilar. That is why the expression “proof beyond reasonable doubt” cannot be employed coterminously with the expression “proof beyond any shadow of doubt.” The law has opted for the expression “proof beyond reasonable doubt,”Dibie v State (2007) LPELR -941 (SC); Dimlong v Dimlong [1998] 2 NWLR (pt 538) 381, 178; State v Gwangwan (2015) LPELR -24837 (SC).

I have examined most notable authorities, ancient and modern. They are all unanimous that this expression “proof beyond reasonable doubt” must remain the ubiquitous touchstone for estimating when the prosecution has discharged the burden imposed on it by law. In the realm of criminal justice, the said expression “proof beyond reasonable doubt” connotes such proof as precludes every reasonable proposition except that which it tends to support, Oladele v. Nigerian Army [2004] 6 NWLR (pt 868) 166, 179.

Hence, it connotes sufficiency of evidence, Nsofor v. State (2004) 18 NWLR (pt. 905) 292, 305. It depends on the quality of the evidence tendered by the prosecution. Consequently, if the evidence is strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt.

The cases on this point are many. Only a handful will be cited here, Okere v. State (supra) 415 416; Sabi v State [2011] 14 NWLR (pt.1268) 421; Iwunze v Federal Republic of Nigeria [2013] 1 NWLR (pt.1324) 119; Njoku v State [2013] 2 NWLR (pt.1339) 548; Osuagwu v State [2013] 5 NWLR (pt.1347) 360; Ajayi v State [2013] 9 NWLR (pt. 1360) 589.

In this case, the lower Court, affirmed the following findings of the trial Court findings which could be found at pages 115 116 of the record:

There is no doubt that the remaining accused [person], that is, the appellant, was the cause of this pre-meditated murder. Evidence abound that economic trees belonging to other people in Ikot Obong Otoro

were felled on the 12th of December, 2006, in order for the community to execute electrification project. It was not only the coconut tree of the accused [person] that was cut down. He lurched around for the deceased [person] to get out into the street. The deceased [person] was unfortunately out on the street on 13th December, 2016. I don’t believe the story bandied by the accused [person] that when he placed a curse on the person who cut down the coconut tree, the deceased [person] emerged with a machete and pursued him with it.

I believe that the deceased [person] was unarmed with any weapon and was going about his legitimate business when the accused [person] pounced on him and beat him mercilessly to the extent that he was unable to walk to his house after the PW2 and PW3 had stopped the fight, if indeed it was a fight. There is no doubt that the injuries inflicted on the deceased [person] were occasioned by the act of the accused [person]. The deceased [person] was so battered by the accused [person] that in a couple of days after the attack, the deceased [person] died, in spite of prompt medical attention. In such circumstance, I have no

doubt that the death of the deceased [person] had resulted from the act of the accused [person] [Italics supplied]

My Lords, I find it difficult to fathom the arguments of the appellant’s counsel against the background of these findings. Now, listen to the un-challenged testimony of PW3. At pages 77 -78 of the record, he testified in chief that:

It was on the 13th December, 2006, I was building a house when a woman shouted and ran toward where I was working. She told me to come and separate John Tom Umoh and the first accused [person] who were fighting. I went with Paul Etim Ubom to separate them. The first accused person [that is, the appellant] beat John Tom Umoh to the extent that John Tom Umoh was unable to walk. We took John Tom Umoh to his house. We later took him to the Police station to lodge a report. The Police seeing his condition advised us to take him to the hospital. We took him to the hospital we then left. On the 14th December, 2006, I went to visit John Tom Umoh in the hospital where he told me he was unable to hear anything. Thereafter, I heard that he had died…

[Italics supplied for emphasis]

Pray, what else was the Prosecution supposed to prove

In the con of the grievous bodily harm which the appellant inflicted on the deceased person grievous bodily harm which was such that the deceased person, according to the PW3, was first “unable to walk…” on the first day [that is, December 13, 2006] and, on the following day, December 14, 2006, was “unable to hear anything” In the apt findings of the trial Court, findings duly affirmed by the lower Court:

[page 116 of the record; italics supplied]

Against this background, I entirely, endorse the submission of the Honourable Attorney General for the respondent that the appellant must be presumed to intend the natural consequences of his dastardly act his act of inflicting

grievous bodily harm which resulted in the death of John Tom Umoh. True, indeed, this Court has long settled the point that the law presumes that a man intends the natural, probable consequences of his acts, Njoku v State [2013] All FWLR (pt 689) 1083; Ibikunle v State (supra); Nwokearu v State (supra).

With respect, the appellant’s argument advanced on pages 9 14, on the contradictory depositions of the Prosecution’s witnesses are surely misleading. Surely, learned counsel for the appellant cannot wish away the eye witness accounts of the PW2, pages 76 78 of the record accounts which found firm corroboration in the eloquent unchallenged testimony of the PW3.

Above all, testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That is, such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to

the reliability of such witnesses, Enahoro v Queen (1965) NMLR 265, endorsed in Ogun v Akinyelu [2004] 18 NWLR (pt 905) 362, 392; Emiator v. State [1975] 9-10 SC 112; Ikemson v State [1989] 3 NWLR (pt 110) 455, 479; Afolalu v State [2009] 3 NWLR (pt 1127) 160.

This is so because it would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth, Okoziebu v State [2003] NWLR (pt 831) 327, 341; Nasaru v State [1999] 6- 9 SC 153; Ikemson v State (supra). In any event, Courts have even taken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy, Ogun v Akinyelu [2004] 18 NWLR (pt 905) 362, 392.

In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly, in a capital offence, they must raise doubts as to the guilt of the accused person, Nwosisi v State [1976] 6 SC 109;

Ejigbadero v State [1978] 9- 10 SC 81; Kalu v State [1988] 4 NWLR (pt 90) 503; Igbi v State [2000] FWLR (pt 3) 358; [2000] 3 NWLR (pt 648) 169. No such situation arose in this case.

What is more: a clearly evident cause of death, as in the instant case, obviates the need for any medical evidence to establish the first ingredient of the offence of murder, that is, that the deceased person died, Maigari v State [2013] 6-7 MJSC (pt 11) 109, 125; Ochemaje v The State [2008] SCNJ 143; Daniel v The State [1991] 8 NWLR (Pt 443) 715; Obade State [1991] 6 NWLR (pt 198) 435; Gira v State [1996] 4 NWLR (pt 428) 1, 125; R v Hopwood (1913) 8 Cr. App. R. 143; Hyam v DPP [1974] 2 All ER 41; Woolmington v DPP [1935] AC 462.

Other cases include,Madu v State [2012] 15 NWLR (pt 1324) 405, 443; Durwode v State [2000] 15 NWLR (pt 691) 467; Idemudia v State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607; R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R. v Tralka [1965] Qd. R. 225.

Thus, in situations, as exemplified in the instant case,

where, from the testimonies of the witnesses, the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where death was instantaneous or nearly so, Ben v The State (2006) LPELR -770 (SC) 12- 13; Bakuri v. The State (1965) NMLR 163, 164; Uyo v, Attorney-General of Bendel State [1986] 1 NWLR (pt. 17) 418; Onwumere v. The State [1991] 4 NWLR (pt. 186) 428; Nwachukwu v, The State [2002] 12 NWLR (pt. 782) 543; Oforlete v The State (2000) LPELR -2270 (SC); Ogbu v The State (1992) LPELR -2292 (SC) 18; B-C.

As shown above, it was the submission of the appellant’s counsel that the lower Court erred in law in affirming the judgement of the learned trial Judge which held that the defences of provocation and self – defence did not avail the appellant to mitigate the conviction for murder to that of manslaughter. This submission does not need to delay us in this judgement. As this Court held in Edoko v The State (2015) LPELR -24402 (SC) 62 63; D-C, per Nweze, JSC:

I actually, find it curious that the appellant [as accused person at the trial Court] set up the defences of self defence and provocation at the same trial. Whereas the Criminal Code provides for self defence in Sections 286 and 287, the same Code provides for the defence of provocation in Section 284. Whilst the former [the defence of self defence] is an exculpatory defence because, where it is established, it exonerates the accused person, Uwaekweghinya v The State [2005] 9 NWLR (pt 930) 227, the latter is merely, an attenuating or a mitigating defence. Where available, it merely, attenuates; dis-rates or demotes the offence from murder to manslaughter.

In effect, the defence of provocation does not exonerate the accused person. It only, earns him a mitigation of the punishment due for the offence of murder to a sentence for manslaughter, Uraku v State (1976) LPELR-SC. 300/1975; [1976] 6 SC 128; Akang v State [1971] 1 All NLR 47, 49; Musa v State (2009) LPELR-SC.323/2006; [2009] 15 NWLR (pt 1165) 465; Ada v State (2008) LPELR-SC.242/2004; [2008] 13 NWLR (pt1103) 149; [2008] 34 NSCQR 508; Ajunwa v The State [1988] 1 SC 110; Laoye v The State [1985] 2 NWLR (pt

10) 832; C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books, 2000) 240; C. O. Okonkwo, “The Unlawful Act Doctrine and the Defence of Accident” in The Nigerian Bar Journal Vol 11 (1973) 93-97.

It is, thus, the dissimilarity in the consequences of the availability of these defences that make them, mutually exclusive, that is, that make them inconsistent defences defences that cannot avail an accused person at the same time, Ibrahim v State (1991) LPELR-SC.167/1990; [1991] 4 NWLR (pt 186) 399; [1991] 5 SCNJ 129; see, also, the very incisive, and the most stimulating, article by the cerebral Professor of Law, F. I. Asogwah, The Applicability of Some ‘Inconsistent’ Defences in the Nigerian Criminal Code,” in I. A. Umezulike (ed), Law and Administration of Justice in the Twenty First Century (Enugu: Fourth Dimension Publishing Co. Ltd, 1997) 75-98.

In all, I do not find any justification for interfering with the concurrent findings of the lower Courts in the instant case. As a result, I further affirm them. I therefore, enter an order dismissing this appeal. Appeal dismissed.

SC.646/2016

Nsikak Bassey Ukpong V. The State (2019) LLJR-SC

Nsikak Bassey Ukpong V. The State (2019)

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