Obiora Obianwu V. The State (2016)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the judgment of the Anambra State High Court delivered on 26/7/2000 by Hon. Justice C. E. Iyizoba wherein Her Ladyship convicted the appellant for murder and sentenced him to death by hanging. The facts that led to this appeal are as follows:
The undisputed facts as found by the learned trial judge are that P.W.1 and the appellant were friends. The appellant owed P.W.1 a pair of jeans while the appellant owed the deceased N200.00. The deceased went with P.W.1 to the house of the appellant to retrieve the jeans. An altercation ensued between the three of them. The appellant stabbed the deceased with a broken bottle and the latter died. The learned trial judge accepted the version of P.W.1 as against that of the appellant to hold that the assault by the appellant which caused the death of the deceased could not be excused by self defence, provocation or accident and convicted the appellant of murder.
Dissatisfied with the judgment of the trial Court, the appellant initiated this appeal by a Notice
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of appeal filed on 3/8/2000 containing three grounds of appeal and transmitted records on 17/1/2008. The appellant’s brief was filed on 13/11/2015. Respondent’s brief was filed on 19/2/2016 and deemed filed on 23 /2/2016.
In the appellant’s brief settled by J. O. N. Ikeyi, three issues were identified for determination to wit:
a) Whether there were material discrepancies in the oral evidence of the appellant and his extra Judicial statement made to the police which could tilt the case against the appellant.
b) Whether there was proper evaluation and assessment of the evidence of the prosecution by the trial Judge, to enable the Court do Justice to the case.
c) Whether the prosecution proved the offence of murder by the appellant beyond reasonable doubt.
In the Respondent’s brief settled by E. I. Okafor the issues raised by the Appellant for determination were adopted by the Respondent. After careful perusal of both briefs, I shall crystallise the issues for determination into one issue as follows:
Whether the Learned trial Judge properly evaluated the evidence of the prosecution and defence to make the finding that the appellant
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is guilty of the charge of murder.
Learned appellant’s counsel submitted that there were no material discrepancies in the oral evidence and confessional statements made by the appellant to the police and argued that discrepancies would only exist where there is a difference in two accounts of events rendered by one or more persons. Counsel argued that the attitude of the Courts to discrepancies is such that the Courts treat them as inconsequential. Counsel argued further that where the appellant had denied signing Exhibit A which was the appellant’s statement on 15/4/93 as it did not include the ‘B’ which was part of his signature, it is the duty of the prosecution to prove that the signature belongs to the appellant. He cited Section 101 of the Evidence Act 2011; Zein v Geidam (2004) FWLR (237) 457 at 461; Adenle v. Olude (2003) FWLR (Pt.157) 1074; Okereke v The State (1998) 3 NWLR (Pt.540) 75 at 91; Gabriel v The State (1989) 12 SCNJ 33 at 42.
Counsel argued that an in-depth study of the oral evidence of the appellant shows that the appellant was very consistent in his evidence as to how the injury which led to the death of the deceased was
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inflicted on him. He referred the Court to pages 44-52 of the record. Counsel argued that where there is conflict in the testimony of P.W.1 and a doubt was raised in his testimony, that doubt should have been resolved in favour of the appellant. Counsel argued that P.W.1 made contrary statements about the course of the incident. Counsel argued that P.W.1 confirmed that there was a fight between the appellant and the deceased. Counsel argued that in one breath, P.W.1 claimed Ejima was present while in another breath, he claimed that Ejima was not actually present during the incident. Also appellant’s counsel argued that the statement of p.W.1 on pg 13 of the record to the effect that the appellant had earlier threatened to kill him was an afterthought and contradicts later statements. He submitted that due to this conflict, the evidence of P.W.1 is unreliable and cannot be acted upon. Counsel referred the Court to page 10 of the records and cited Chibuike v State (2011) All FWLR [Pt.559] 1172 at 1174; A.M.C (Nig) Ltd v. Volkswagen of (Nig.) Ltd (2011) All FWLR (Pt.588) 928 at 935; Ohanaka v. Achugwo (1998) 9 NWLR [Pt.564] 37 at 55-56; Queen v. Ukpong (1961) 1
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SCNLR 53; Okolo v State (1974) 2 SC 73 at 82; Onubogu v State (1974) 9 SC 1.
Counsel argued further that the Court created the impression that the appellant was dealing with a minor when the learned judge held that the “appellant” collected the bottle from the deceased and that the issue of the age of the deceased in comparison with that of the appellant should have been resolved by the Court.
Counsel submitted that although an expert may be called upon to give evidence, their evidence should not be the basis for the decision of the Court on the issues before it. The duty of decision making is left to the learned trial judge. Counsel cited Idahosa v ldahosa (2011) All FWLR (Pt.568) 983 at 987;Part II, Section 7 of Births, Deaths, etc (Compulsory Registration) Act, Laws of the Federation 2004; Sections 68, 102 and 104 of the Evidence Act 2011; Ngige v Obi (2006) All FWLR (Pt.330) 1041.
Counsel argued that the defence of provocation should be available to the appellant and that the applicable test is that which an ordinary person in a particular community would do in the circumstances.
?Counsel argued that the deceased and P.W.1. visited the
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house of the appellant several times, stole his N100.00 and refused to give him back the N200.00 loan. Counsel insisted that the gravity of the provocation cannot be correctly assessed in isolation from the status in life of the appellant and his community influences on his life. Counsel cited R v James Adekanmi (1943) 17 NWLR 99 at 101 and 102; Uraku v State (1976) 6 SC 195; R v John Okoro (1942) 16 NLR 63 at 65 and 66; Vincent Chukwu v The State (1966) NNLR 274; Obaji v State (1965) l All NLR 269 at 275; Nunyiewa v. State (1972) 12 SC 67 at 72 and 74.
Counsel argued further that the defence of self defence should also avail the appellant seeing that it is lawful for a person using force by way of defence on reasonable grounds to use any such force against his assailant as is necessary for his defence even though death or grievous bodily harm may be caused. Counsel cited Onwe v. State (1975) 9-11 SC 23; Mgboko v State (1972) 2 SC 123; Abegunrin v. The State (2010) 10 WRN 168; Queen v Oshunbiyi (1961) 1 All NLR 453; (1961) 2 NSCC 210 at 212.
?Counsel submitted that the appellant should be availed of the defence of accident and that the onus is on the
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prosecution to disprove this once the appellant has set it up, where this cannot be done, the appellant is entitled to an acquittal. Counsel cited Iromantu v State (1964) l All NLR 311; Sholuade v Republic (1966) 1 All NLR 134; Dangari v State (1968) l All NLR 249.
Learned Respondent’s counsel submitted that in each statement of the appellant, the appellant raised the defence of self defence, provocation and accident at the same time as a result of which the appellant cannot be classified as a witness of truth and that although it is the duty of the Courts to consider all defences possible or available to the appellant no matter how stupid, improbable or unfounded they are, the trial Court cannot give him the benefit of the defences which are not supported or reflected by the evidence on the records. Counsel cited Adepelu v State (1996) 6 NWLR (Pt.452) 90, Gabriel v State (1989) 5 NWLR (Pt.122) 457; Araba v State (1981) NLR 110 at 25; Udofia v. DPP (1955) 15 WACA 73.
Counsel argued that if the statements of P.w.1 on 9th April, 1993 and 19th April, 1993 are read together, it could only lead to one glaring conclusion and that is the fact that the
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appellant occasioned the death of the deceased by stabbing him with a broken bottle on the right side of his neck. Counsel submitted that this being the case, there are no contradictions in the statements of P.w.1 and the fact that P.w.1 is a blood relation of the deceased does not exclude him from the class of people who can testify against the appellant as he was an eye wireless at the scene of the incident; Counsel cited Sections 231 and 232 of the Evidence Act 2011; Arehia v State (1994) SC 78 at 90; Ogunzo v State (1999) 2 LRCN 232; Effiong v State (1998) 8 NWLR (Pt.512) 362; Onafowokan v State (1987) 3 NWLR (Pt.61) 538.
Counsel submitted that prosecution has proved all the elements of murder in the instant case and that there is no shadow of doubt as to that fact that the appellant killed the deceased. Counsel submitted further that the Court is right to act on the evidence of only one witness where the witness is one of truth and the Court believes him, there will be no need for corroboration. In the instant case, P.W.1. was an eye witness. Consequently his account of the fight that occasioned the killing of the deceased may be solely relied upon by
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the Court. It is not essential to prove the case of the prosecution with absolute certainty but the ingredients of the offence charged must be proved to the satisfaction of the Court. Counsel cited Gambo Musa v State (2009) 7 SCNJ 329; Obiakor v State (2002) 10 SCM 117, Grace Akpabio & Ors v. The State (1994) 7-8 SCNJ (Pt.111) 429; Gira v State (1996) 4 SCNJ 95 at 101; Effiong v State (1998) 5 NWLR [Pt.296] 660 at 674; Nwaeze v State (1996) 2 NWLR (Pt.428) 1 at pg.19.
Counsel argued that the Courts are allowed to form an opinion about a writing or signature where it is clear that the handwriting or signature of the appellant on ‘Exhibit A’ belonged to him since it was evident that this was the case. Counsel cited Section 101 of the Evidence Act 2011,UTB v. Awanzigana Ltd (1994) 6 NWLR (Pt.348); Aina v Jinadu (1992) 4 NWLR (Pt.233) 91; Nwazoke v State (1998) 1 NWLR (1967) NWLR 391.
Counsel submitted that the trial Court was right to have considered the defences available to the appellant and rejected them because none can avail him in the instant case. The defence of provocation can only avail the appellant where there has been credible
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evidence to show that the deceased did an act or series of acts against the appellant which caused him to lose control temporarily rendering the appellant subject to passion and making him for that moment not master of his mind. Counsel argued however that the appellant if provoked like he claimed should have directed his infuriation towards P.W.1 with whom he was having an altercation and not his brother (the deceased). Counsel cited Amala v State (2004) 12 NWLR (Pt.888) 520; Omenibu v State (1966) NWLR 356; Idemudia v State (1999) 7 NWLR (Pt.610) 202 at 219; Ayo v. State (2003) 6 ACLR.
Counsel submitted that the defence of self defence would only avail a person who reasonably believed that his life was endangered and that there was no other way of saving himself from death or grievous bodily harm other than by applying such force as he did and that he tried to disengage from the event.
Counsel urged this Court to dismiss the appeal as lacking in merit and affirm the judgment of the Lower Court.
RESOLUTION
In every case of murder, there are five essential ingredients to be proved by prosecution as follows:
1) That the death of a human
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being has occurred.
2) That the act or omission that led to the death of the deceased was that of the appellant.
3) That the act or omission of the appellant was intentional knowing that death or grievous bodily harm would result.
4) That there was no lawful excuse for the act or omission of the appellant.
5) That the death occurred within a year and a day of the act or omission of the appellant.
In the light of the foregoing, (1), (2) and (5) are not in dispute. The circumstances of the case will be considered in relation to (3) and (4).
The appellant’s counsel raised several issues in the brief. Counsel?s argument is that any contradiction in the evidence of the appellant is inconsequential and is not enough to discredit his evidence generally.
The learned trial judge held as follows in pg.79 of the record on this issue:
?Having read all the authorities cited by both counsel, I am satisfied that I cannot reject outright the oral evidence of the accused and his extra judicial statements. His oral evidence in Court along with the evidence produced by the prosecution in arriving at a conclusion as regards the
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events to the infliction of the fatal injury on the deceased. I must however state that I do not believe this oral testimony of the accused as regards how the injury was inflicted on the deceased because of the discrepancies in his earlier statements Exhibits C, A and B. Contrary to the contention of learned counsel for the accused I find the discrepancies not at all trivial. They are very material in considering the liability of the accused for the offence charged and his credibility.?
I must say that in criminal jurisprudence, it is settled that material inconsistencies in the evidence of a prosecution witness goes to the credibility of that witness. The significance does not end there. The Court is not allowed to pick and choose between two versions of the evidence of a witness. The several version must be rejected and none can be taken as the truth after any form of rationalisation by the prosecution or the judge.Doubt as to the veracity of a statement of a material witness must be resolved in favour of the accused. Also where two witnesses for the prosecution give contradictory evidence on material issues, the Court cannot choose who is
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telling the truth and must reject the evidence of both witnesses.
On the other hand, an accused in a criminal trial may throw up several versions of the incident and several defences. That is not to say that the Court would reject any plausible story on which a defence is based just because he had told an inconsistent one in the course of the proceedings. The attitude of the Courts to the different or contradictory evidence of the accused is quite different from the attitude of the Court to the contradictory evidence or discrepancies in the evidence of prosecution witnesses. Of course the different contradictions or discrepancies in the evidence of the accused goes to his credibility but the Court can take and accept a version or the more truthful version of the story in order to arrive at a finding on the innocence or guilt of an accused. Since a lie by the accused cannot relieve the prosecution of its duty to prove the offence. See Ogidi v The State (2005) 1 SCNJ 67.
The inconsistency rule is restricted to witnesses as said earlier. It is not applicable in respect of the evidence of an accused vis-a-vis his extra judicial statement. See Chukwuba
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Ogudo v The State (2011) 1 SCNJ 1.
In the case at hand, I find no particular serious contradictions in the different versions of the incident as told by the appellant. There is a consistent trend in the versions of the appellant. This trend is that the deceased came to his shop with his brother and they had an altercation, a fight ensued and he stabbed the deceased with a broken curry bottle. That point is resolved in favour of the appellant.
The second complaint of the appellant is that there are material contradictions in the evidence of P.W.1 to warrant a finding by the Court that the witness was unreliable and the evidence should have been distributed. To argue this point, learned appellant’s counsel referred to the earlier statements of P.W.1, to the police on pg. 10 and 13 of the record. I have to point out that the statement of p.w.1 on pg. 10 of the record was the extra judicial statement of the witness made to the police on the day of the incident which was 9/4/1993. Another extra judicial statement of P.W1 was made to the police on 19/4/1993. Be that as it may, where counsel is trying to rely on the inconsistency between the extra
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judicial statement made by a witness and his evidence on oath, counsel must have tendered the extra judicial statement in Court. The procedure is that where the proof of evidence shows that the earlier extra judicial statement of a witness is inconsistent with his evidence on oath, the defence counsel will request for the original statement from the prosecution. That portion which is inconsistent with his evidence on oath will be read to the witness. He will be cross examined on it and allowed to reconcile both statements if possible. The statement will then be tendered in Court and admitted as exhibit. Thereafter Learned counsel of accussed can address the Court on the inconsistencies in the tendered statement and the evidence of the witness on oath.
I have read the record particularly the evidence of P.W.1. Throughout the lengthy cross examination, the witness was not confronted with any other inconsistent statement. Any argument by learned appellant’s counsel on it goes to no issue since the allegedly inconsistent statement was not tendered before the trial judge. That point in issue is resolved against the appellant.
?Let us now go to the defences
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raised by the appellant’s counsel at trial and in this Court. The defence of accident was raised for the first time by the appellant in his evidence on oath before the trial Court on 19/10/1999. At pg. 46 of the record the appellant stated as follows:
“I pushed him back out of the office and then faced Innocent. As I was fighting with Innocent, Innocent’s brother rushed back with a bottle-something like white curry bottle, it was broken. He gave me a mark on the face with the bottle. I held him on the two hands and pushed him hard. He fell and the bottle cut him. At this time I left. My senior brother came back and took them away. I went to my father’s house at Enu Onitsha. Onyekwelu was facing me holding the bottle. When I held his hands and pushed him, as he was falling back, the bottle hit him on the chest. When this happened I saw blood on him but I didn’t know where the blood was coming from.”
The Learned trial judge held on this point at pg. 83-84 of the record as follows:
“I agree with the learned state counsel that the defence was an afterthought and a design by the accused to escape the consequences of his voluntary act. The use of a
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broken bottle in inflicting a severe deep cut in the neck of the deceased cannot be said to be an accident neither can it be said that the result was unintended or unforeseen. It is certainly not an unexpected event or a surprise that a person whose neck was deeply cut with a broken bottle will bleed to death. It would have been different if the accused had inflicted a minor cut say on the hand of the deceased who then died as a result of some other pathological defect unknown to the accused. See R v. Ntah (1961) 7 AII NLR 590. The defence of accident is clearly inapplicable here.”
Where an appellant raises the plea of accident, it amounts to an admission that he did the act for which he was charged, convicted and sentenced but that it was by accident. He infact did not intend it to happen. For an act to qualify as an accident, it must be a surprise to the ordinary man of prudence. That is the act must be a surprise to all sober and reasonable people.
“An accident is the result of an unwilled act, and must be a lawful act done in a lawful manner and the test is objective.” See Aliu Bello & 13 Ors v Attorney General of Oyo State (1986) 5 NWLR
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Pt.45 Pg. 828; Umoru v The State (1990) 3 NWLR Pt.138 Pg.363; Adelumola v The State (1998) 1 NWLR Pt.23 pg. 683.
The defence of accident when invoked is such that the accused person did not mean to kill anyone and that the death of the deceased which occurred was a great error on his part.
This is not the case from the facts before this Court. The appellant cannot say that his act of stabbing the deceased on the neck after a struggle with the deceased was an unwilled act and error on his part. If the appellant was fondling, playing with or drinking from his bottle and his bottle broke and littered the floor. If thereafter a fight broke out between himself, P.W.1 and the deceased and appellant pushed the deceased who accidentally fell on the bottle, then that could amount to an accident. However from the evidence on record, the bottle was introduced into the fight. It is now settled that an accused person cannot take refuge in the defence of accident for a deliberate act even if he did not intend the eventual result. See Adekunle v The State (2006) 14 NWLR pt.1000 pg. 717.
?The defence of accident will avail an accused charged with murder where the
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act even though unlawful is such that would from the view of a reasonable man, not cause death or grievous bodily harm though death resulted therefrom. See Maiyaki v The State (2008) 15 NWLR Pt. 1109 Pg. 173. It seems to me that the authorities are united on the point that where an accident occurred as a result of an unwilled act or the act was a lawful act done in a unlawful manner and an accident occurred that led to the death of another, the plea of accident becomes a total or absolute defence to the charge of murder. However, where the act was unlawful but would not ordinarily from the view of a reasonable man cause death or grievous bodily harm, the accused can only at most be convicted of manslaughter. See Thomas v The State (1994) 4 NWLR Pt. 337 Pg.129.
In Adekunle v The State supra, the Supreme Court held emphatically that the onus of proof where the defence of accident is raised lies on the prosecution to prove that the facts do not support that defence. Where the prosecution cannot discharge the onus of proof, the charge has not been proved.
?In this case, the prosecution has been able to prove that the stabbing of the deceased was not an
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unwilled act of the appellant. I agree with the learned trial judge that his evidence on oath indicating that there was an accident is an afterthought. I do not believe him. I find that the defence of accident does not avail the appellant.
?The fact that the defence is pleading the defences of provocation, self defence, accident and alibi at once goes to show that the defence counsel has an abysmally low knowledge of criminal law. It is the duty of the learned trial judge to consider every defence available to the accused person no matter how stupid or unfounded that they are whether raised by the accused or not.
It is however the duty of the defence to raise and prove that the defence of insanity or alibi where he intends to rely on any of them. By raising the plea of self defence, the appellant is admitting to committing the offence of murder for which he was charged, convicted and sentenced but that it was in self defence and that it was thus justified by law. Defence of accident means there was no mens rea to do any harm to the deceased. Both defences are contradictory. For an act to qualify as an accident, it must be a surprise to the ordinary man of
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prudence while self defence means that the appellant did the act while defending himself but had no original intention of killing or causing grievous bodily harm to his attacker. See Sule v The State (2009) 6 SCNI 84, Stephen v The State (1986) 5 NWLR Pt.46 Pg.726 SC. I shall consider both defences in detail in the course of my judgment.
The burden of putting up the defence of alibi is on the accused and he must supply alongside details of his whereabouts.The defence of alibi is a plea raised by an accused stating that as at the time the offence was allegedly being committed, he was ‘elsewhere’.
It is trite law that for the defence of alibi to be properly raised, it must be raised at the earliest opportunity when the appellant was confronted by the police with the commission of an offence so that the police will be in a position to verify or cross check the alibi. See Sampson Ebenehi & Anor v The State (2009) 3 SCNJ 20, Iheonunekwu Ndukwe v The State (supra). The appellant in this case attempted to invoke the plea of alibi stating that on one occasion, P.W.1 and the deceased visited his house to retrieve the pair of jeans trousers in dispute, he was
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not at home. I find that this defence was wrongly invoked by the appellant. The plea of alibi is such that the appellant should be alleging that at the time the crime of murder for which he has been convicted was being committed, he was somewhere else. Defence counsel cannot be found blaming the police for not investigating the plea of alibi raised by the appellant because there was none in existence. In the appellant’s oral testimony in Court, he admitted to being at home on the 9th of April, 1993 when p.W.1 and the deceased visited in order to retrieve the pair of jeans belonging to P.W.1 and it was in the process a struggle for the said jeans trousers ensued between the appellant P.W.1 and the deceased. Where then, does the plea of alibi come in? If the plea was raised by the appellant at the earliest opportunity ? (he made three statements to the police) and strengthened by his evidence, we would then have blamed the police for not investigating. In light of this, I find therefore that the plea of alibi cannot avail the appellant as it was wrongly invoked and he was at the scene of the incident on the said day.
The appellant also raised the
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defence of self defence which is an absolute defence to the charge of murder. Exh A made on 15/4/1993 and B made on 20/4/1993 tendered by the prosecution raised the defence of self defence wherein the appellant claimed that the deceased attacked him with the bottle and he held the hands of the deceased and the broken bottle then struck the deceased’s neck. The learned trial judge held as follows on this issue at pg. 87 of the record:
“As regards self defence, there is no acceptable evidence before me that the accused person’s life was in danger and that he had to kill to avert being killed. I am satisfied that P.W.7 and the deceased were not armed when the struggle over the jeans ensued. I am satisfied that the accused attacked the deceased with a broken bottle with the intention of causing him grievous bodily harm and without any fear that his own life was in danger.”
For the defence of self defence to avail the appellant, he must not be the aggressor in the first instance. He must have acted in good faith without premeditation and intention of causing more harm than necessary and the act of the deceased must be sufficient to excite in the
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appellant a reasonable apprehension of imminent danger of death or grievous bodily harm to justify appropriate defence. The appellant must have done the act of killing or causing grievous bodily harm to the deceased while defending himself from the deceased but with no intention to kill or cause grievous bodily harm. See Musa v State (supra), Akpan v. The State (1994) 9 NWLR Pt.368 Pg.347, Sule v The State (2009) 6 SCNJ 65.
The defence of self defence is an absolute defence to the charge of murder. Its effect is such that once the defence of self defence avails the appellant, he is acquitted of the charge of murder against him. For this defence to avail him in this case, the onus is on him to show as follows:
a) He was assaulted by another.
b) He has not provoked the person assaulting him.
c) The nature of the assault is one that causes reasonable apprehension of death or grievous bodily harm.
d) That he used reasonable force to defend himself.
e) He never intended to kill the aggressor or cause him grievous bodily harm.
?The appellant while defending himself against his aggressor must bear in mind, necessity and proportion.
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He must be able to say that his act of causing death or grievous bodily harm to his aggressor was borne out of necessity to save his own life and that the act was proportional to that of his aggressor. See Adeyeye v The State (2013) 11 NWLR Pt.1364 Pg.47.
In the instant case, there is nothing on the records to show that P.W.1 who owned the pair of jeans trousers in dispute was aggressive in a manner which could cause reasonable apprehension of imminent danger towards the appellant. Let us consider the statement of the appellant Exh C made on 9/4/93, the day of the incident. The appellant wrote:
“so I told my brother that Obilom was owing me money and I said that they should give me my money before I could release the jeans. While saying this, his brother started to shout at me and said he would deal with me but I did not do him anything at that time. When he blew me on my face, I pushed him to leave my office. When I pushed him outside, he ran and took a bottle which he broke and came inside our office and started shouting that he would deal with me, so I wanted to push him out of the office and I collected the bottle from him and the bottle which was
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already in my hand as I was pushing got to him on his neck and blood started to gush out.”
He did not say that the deceased wanted to kill him. I doubt very much from the facts on record that the appellant can say that if he had not killed the deceased, the deceased would have killed him instead. In the light of the foregoing, I find that the defence of self defence cannot avail the appellant.
The next defence canvassed for the appellant was one of provocation. This defence can be considered in the light of the statement of the appellant which he made on 9/4/1993, the date of the incident and the learned trial judge rightly said, would be the nearest to the truth since it was made when his conscience was most pricked. He stated as follows to the police on the date of the incident. The statement was admitted as Exh ‘C’ by the trial Court:
“This morning 9/4/93, he came again with two other boys and the senior brother. They did not see me when they came but someone told me that they came. On my behalf, they searched my room when they were in my room because the door was open. When I came back, I checked my room and discovered that someone has
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removed the sum of one hundred naira, which I kept inside my pocket. When I asked my brothers I was told Obilom came with his brother and two other boys who searched my room and I was told that they were about removing my clothes by my brother disallowed them. So I went to the laundry and started to work and at about some minutes after four pm, Obilom and his brother came and I just asked Obilom who entered my room and collected my money. Obilom did not answer my question, so I just started to work. Then my brother Nikson came and asked them what was going on, Obilom said that I was with his jeans. So I told my brother that Obilom was owing me money and I said that they should give me my money before I could release his jeans. While saying this, his brother started to shout at me and said he would deal with me so he started to push me and slap me but I did not do him anything at that time, when he blew me on my face, I pushed him to leave my office. When I pushed him outside, he ran and took a bottle which he broke and came inside our office and started shouting that he would deal with me. So I wanted to push him out of the office and I collected the bottle
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from him and the bottle which was already in my hand as I was pushing got him on his neck and blood started to gush out.”
That version of the story is different from the version told by P.W.1 on oath to the Court. At pg. 29-30 of the record P.W.1 stated as follows:
“The next day 9/4/93 we went to the house of the accused in the morning. We did not meet the accused at home. We saw Ejima alias James Morah. We explained our mission to him, He told us to go and come back in the evening. When we came back in the evening, James Morah was painting the house he then went with us to their house where we met the accused person ironing clothes. Ejima told him to go and get my jeans trousers. He refused. He told him a second time, he refused, Ejima then went up himself and brought the jeans when he handed it over to me, the accused attempted to snatch it from me. A struggle ensued, People gathered and advised us to go home and let our parents know what was happening. At that point James Morah or Eiima who is a dry cleaner then left saying that since the accused refused to take his advice, he would leave him to his own sense. The accused person is an apprentice dry
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cleaner with James Morah, We left, the trouser (jeans) with the accused. As we were leaving for home, we heard noise from people shouting. When my brother turned back, the accused stabbed him on the neck with the bottle, withdrew the bottle and started giving him fist blows. My brother fell down and I raised alarm. Blood started rushing out.”
The learned trial judge believed the evidence of P.W.1 as against that of the appellant. The learned trial judge had this to say on the issue on pg. 85 of the record as follows:
“When they returned James told the accused twice to return the pair of trousers to P.W.1. The accused refused so James went into the room brought out the trousers and gave it to P.W.1. The accused pounced on the trousers and took it away from P.W.1 and a struggle for it ensued. In the course of the struggle, the accused inflicted the fatal injury on the deceased with a broken bottle. The accused at all material times was the aggressor.”
The Learned trial judge concluded as follows on pg. 86 of the record:
“I have already rejected as untrue the oral evidence of the accused that the deceased was the one that came with the broken
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bottle and gave him a mark on the face. Having rejected this evidence, the claim of the accused under cross examination that the deceased wanted to stab him with his bottle because he was fighting with his brother is bound to collapse. The answer in itself which contradicted his earlier statement in evidence-in-chief that the deceased gave him a mark on the face reveals that the accused is a pathological liar.”
There is no doubt that there was a fight. I do not believe we need to go into who was in the wrong or right of the fight at this point. We cannot believe the portion of Exh ‘C’ which is unfavourable to the appellant and disbelieve the portion favourable to him. Granted that there was an eye witness to the whole incident who was the agent provocateur of the incident- that is P.W.1. I have read Exh ‘C’ which the learned trial judge agreed is the nearest to the truth in the various statements made by the appellant. He stated that the deceased was the aggressor who broke the bottle and entered his work place to fight with him. From the general tenor of the various incidents that led to the macabre conclusion of the death of the deceased, both P.W.1
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and his elder brother (the deceased) had gone several times to the house of the appellant to demand the jeans, subject matter of the dispute. The appellant had always stated that the jeans was in lieu of money he loaned to p.W.1. Both sides were spoiling for a fight even though it may not be with intent to kill each other.
I believe that a spontaneous fight ensued between the boys and during the course of the fight, the deceased was mortally wounded. The provocation was in my view offered from both sides and the fight ensued before there was time for passion to cool.
According to Black’s Law Dictionary, 6th Edn Pg.1225,
“provocation is the act of inciting another person to do a deed which arouses, moves, calls forth, causes or occasions such conducts or actions on the part of one towards another as to tend to arouse rage, resentment or fury in the latter against the former thereby causing him to do some illegal act against the person offering the provocation… Provocation which will reduce killing to manslaughter must be of such character as will, in the mind of an average reasonable man, stir resentment likely to cause violence, obscure,
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reason and lead to action from passion rather than judgment.?
There must be a state of passion without time to cool placing the defendant beyond control of his reason. The elements of provocation are as follows:
a) That there was grave and sudden provocation.
b) That the act of the assault must have been done in the heat of passion before there was time for passion to cool.
c) There must be retaliation not disproportionate to the provocation.
When any of these ingredients are missing the defence of provocation will fail.
The position of the Supreme Court is that the appellant must adduce evidence of provocation otherwise the Court must then rely on the evidence of the prosecution. See Shallah v The State (2007) 18 NWLR Pt. 1066 Pg.40, Edoho v The State (2010) 14 NWLR Pt. L2L4 Pg. 651. The test to determine provocation is the effect that the alleged provocation would have had on a reasonable man of the appellant’s standing in life and education so as to incite the reasonable man to lose control not the test as postulated by the learned appellant’s counsel of what an ordinary person in a particular community would do in the
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particular circumstance. See Musa v The State (2009) 7 SCNJ 329.
In Edoho v The State (2010) 14 NWLR Pt.1214 Pg. 651 the Supreme Court held that the defence must adduce evidence of provocation in support of his defence.
I believe the incident as stated by the appellant in Exh ‘C’ when the incident was fresh in his mind.
The issue at this point is this:
Do I believe the story of the appellant as contained in Exh C which shows provocation in that the deceased who followed his younger brother to come and support him in order to retrieve the disputed jeans from the appellant who was the aggressor who broke the curry bottle to threaten the appellant? Or do I believe the evidence of P.W.1 who was an eyewitness to the incident but who was the younger brother of the deceased. I would not go so far as to say that P.W.1 was a tainted witness who had his own purpose to serve, however, I would hesitate to accept his evidence hook line and sinker. As the trial Court found, there was a fight between the three young men after heated arguments on whether the appellant should return the jeans to P.w.1. I do not believe the evidence of P.w.1 that he and his brother
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had completely disengaged from the fight before the fatal blow was struck. I find that the appellant struck the fatal blow in the heat of passion.
Provocation cannot excuse murder or render it justifiable. However, by virtue of Section 318 of the Criminal Code, it may reduce the offence from one of murder to manslaughter. See John v. Zaria N.A. (1959) NR NLR 43; Ajunwa v. The State (1988) 4 NWLR Pt.89 Pg.380; Stanley Ejionwu v The State (1995) 3 NWLR Pt. 386 Pg.640; Iheanyighichi Apugo v. The State (2007) 7 SCNJ 566.
I find the appellant not guilty of murder but manslaughter in the circumstances. The sentence to death by hanging is hereby set aside. The appellant is hereby sentenced to 10 years imprisonment. The appellant was 18 years old when the incident happened in April, 1993 over 23 years ago. The trial lasted 6 years while he filed Notice of Appeal in this Court since 2000. I believe he has paid his debt to society by his incarceration for the death of the deceased in the past twenty three years. The sentence of 10 years imprisonment must be taken as served in the circumstances. The appellant shall be released from prison custody forthwith.<br< p=””
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Appeal Allowed.
Other Citations: (2016)LCN/8595(CA)
