Ofoke Alo Ibo V. The State (1971)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C. 

On the 21st December, 1970, Ofoke Ala Ibo was convicted of murder by Anyah, J. sitting in the High Court, Abakaliki and sentenced to death and has now appealed to this court. The facts adduced by the prosecution were brief in the extreme as there was no eye witness to the killing and the conviction of the accused turned upon a confessional statement (Exhibit “A”) that he made, which the learned trial Judge accepted and believed, in which he said:

“Nwaokoro owed me the sum of five shillings being the price of a hoe that I sold to him. Since the period that I sold the hoe to him, whenever I go to him to demand the money he will tell me to get out. So on the 22nd day of March, 1969, I met the said Nwaokoro in a place that they sell wine, there I ask him about the money again he told me to get out. That what can I do, so after we finished drinking the said Nwaokoro went and waited me on the way when I go to the place, that he was waiting for me, I told him to allow me pass, but he refused after some argument between two of us, I gave him a matchet cut on the left side of his chest I understand that the man died as a result of the matchet cut that I inflicted on him.”

The 1st prosecution witness, who was a brother of the deceased, said in his evidence as to the injury which the deceased received:

“When the deceased was taken to the Enugu Hospital, he was called Nwanigor Ala. I was not present when the incident between the accused and deceased took place. I was sent for to come to Abakaliki Police Station. On my arrival at the Station I was told something following which I went to the mile 4 Hospital, Abakaliki where I saw the deceased alive with injury to the left side of his chest. Two days later the deceased was taken to the Enugu General Hospital where the deceased died three days later after he had received medical treatment. The deceased was buried at Enugu.

Cross-Examined by Eze: I was at home when I heard that the accused and the deceased fought. In the mile 4 Hospital, Abakaliki I saw the deceased and the wound he sustained.”

Mr. Akinrele who appeared for the appellant argued one ground of appeal only which read:

that the learned trial Judge erred in law in convicting the appellant of murder when there is no proof of the cause of death or that the deceased died as a result of the injury suffered.”

It was his submission that the learned trial Judge was in error to infer the death was the result of the accused’s attack on the deceased with his matchet when he said in his judgment:

“The prosecutions have not adduced any medical evidence as to the cause of death because the Red Cross doctor who attended to the deceased cannot be found. But the failure to procure this expert evidence does not appear to me to matter in view of the abundance of circumstantial evidence from which I can properly infer the cause of death. I have no doubts in my mind that accused gave the deceased a matchet cut on the chest and that the deceased who was rushed to the hospital died a few days later as a result of this injury inflicted upon him by the accused …. “He (the accused)”set upon him with his matchet, a lethal weapon and caused him an injury that resulted in his death.” (Our underlining).

Whilst it may be perfectly proper to infer from all the circumstances that the death of the deceased was caused by the act of the accused without hearing medical evidence (see Adamu v. Kano Native Authority (1956) 1 F.S.C. 25 there was here not only, as the learned trial Judge said, no medical evidence, but in our view no evidence at all as to the nature or severity of the injury of the deceased as neither in the passage which we have quoted from the evidence of the deceased’s brother (1st P.W.) nor in the confessional statement which we have quoted was it said more than that the deceased had an “injury to the left side of his chest” and “I gave him a matchet cut on the left side of his chest” respectively. Moreover, in so far as the accused in his confessional statement said:- “I understood that the man died as a result of the matchet cut that I inflicted on him”. this was clearly hearsay. As the 1st prosecution witness also said in the passage that we have quoted that he saw the deceased in Abakaliki hospital and that two days thereafter he was transferred to Enugu General Hospital where he died three days later, it is clear that at least five days elapsed after the injury the deceased received before he in fact died. We think therefore that the learned trial Judge was wrong to infer from the circumstantial evidence that it was proved that the act of the accused caused the death of the deceased.

Mr. Offia for the State himself conceded that the conviction for murder could not be sustained because of the lack of proof that the act of the accused caused the death of the deceased, but he invited us initially to substitute for the conviction of murder a conviction either for attempted murder or for wounding with intent, but subsequently he abandoned his submission in respect of wounding with intent as he conceded that the requirement of section 179(1) of the Criminal Procedure Act which reads:-

“(1) In addition to the provisions hereinafter specifically made whenever a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.”

could not be fulfilled here. This undoubtedly is the legal position as is shown by R. v. Noku (1940) 6 WACA 203 which was followed in R. v. Nta (1946) 12 WAC. 54.

Mr. Offia accordingly then confined his submission to one of a substitution of a conviction for attempted murder. Once again, however, he initially submitted that it was sufficient in law to convict of attempted murder if there was established an intent to kill or an intent to do grievous harm but later having referred to R. v. Whybrow (1951) 35 Cr. App. A. 141 he conceded that an intent to do grievous harm was not enough. This indeed has in fact been made clear in a number of cases in the Federal Supreme Court. See Albert v. The Queen (1960) W.R.N.L.R. 31 and Queen v. Evo & Ors. (1961) 1 All N.L.A. 515 where R. v. Whybrow (supra) and the case following it R. v. Grimwood (1962) 3 W.L.A. 747 were considered and applied, and Queen v. Nwaugoagwu (1962) 1 All N.L.A. 294 where Brett, F.J. succintly put the position as to the requirements to establish attempted murder when he said at page 297:

“….there was no dispute that an actual intention to kill is required, and that an intention to cause grievous harm, though sufficient to sustain a conviction for murder if death results, is not sufficient to sustain a conviction for attempted murder. In the Court below, Crown Counsel put the matter correctly in his closing address, when he said ‘mens rea in attempted murder is intention to kill. From the extent of the injury and the nature of the instrument used, intention to kill may be inferred’.”

Nonetheless, Mr. Offia submitted that here an intent to kill could be inferred from the words of the accused in his confessional statement –

“I gave him a matchet cut on the left side of his chest” –

though he was forced to concede that as there was no evidence of the extent or nature of the injuries it was not possible to infer an intent to kill therefrom as the Federal Supreme Court indicated could in appropriate circumstances be done in Queen v. Onoro (1961) All N.M.L.A. 33.

In our view there was certainly nothing in the confessional statement of the accused that could establish an intent to kill, and, as Mr. Offia rightly conceded that in the absence of evidence as to the nature of the injuries received by the deceased such injuries could not here be relied on to establish an intent to kill, we do not think that merely by using a matchet it could as such be inferred from that alone that the accused intended to kill as he might well have intended only to do grievous harm, and on the authorities to which we have referred that is not enough to ground a conviction for attempted murder. That being so, we see no grounds for substituting a conviction for attempted murder in place of that for murder, which we have already indicated was wrongly arrived at.

We accordingly allow the appeal, set aside the conviction and sentence of death and order that judgment be entered discharging and acquitting the accused.

SC.27/1971