Ogbonna Nwede V. The State (1985)

LawGlobal-Hub Lead Judgment Report

O. KAZEEM, J.S.C. 

The appellant was charged under section 319(1) of the Criminal Code Law, Cap 30 of the Laws of Eastern Nigeria 1963 with an offence of murdering one Obodo Nwojiji on or about 30th day of September, 1979. He was tried at the High Court Abakaliki and found guilty of the offence by Adimora J. He was then convicted and sentenced to death.

The facts proved at the trial were as follows:- The appellant, the deceased and four other persons, went to the house of one Akuma Nwangbo (P.W.5) where they drank about six bottles of illicit gin. While drinking, both the appellant and the deceased quarrelled; but the quarrel was settled by those present, and the appellant thereafter left for his home.

Later that night, both the deceased and one Obom Nwede, a relation of the appellant, went to the hut of one Nwagbonyi Igwe (P.W.1) who was aroused from her sleep when the door of her hut was broken down. On getting outside, she saw them and the deceased was then holding a pen-knife. She questioned them as to what had happened; but they said nothing and merely walked away. She then followed them until they got back to the house of P.W.5 where she was told that both the appellant and the deceased had quarreled and that the appellant had left. P.W.1. thereafter returned to her hut to sleep.

The following morning, the village crier was heard raising an alarm and summoning people to the village square where many people in the village gathered, but the appellant was conspicuously absent. The murder of the deceased was then announced, and his corpse was later found lying on the road-side with matchet cuts on his neck, head and forearm. Due to the information received, the appellant was subsequently searched for by his uncle, (P.W4) and when found, he went to his grandfather’s house. Upon being informed of the deceased’s murder, the appellant at first denied being involved in the incident. However, he later confessed to his uncle that he killed the deceased. He was thereafter taken to the police at Ibodo on 1st of October, 1979.

On the 2nd of October, 1979 the appellant first made a statement to the police (Exh.B1) wherein he said that he quarrelled with the deceased who slapped him in the house of P.W.5 when they were drinking; and that the deceased thereafter pursued him to the hut of P. W.1 where the quarrel continued until he had to kill the deceased with a matchet (Exh. C) which he handed over to the police. The appellant was later taken to the road junction where the deceased’s corpse was found; but he said that he did not know how it got there. On the 3rd October, 1979, the appellant made another statement to the police (Exh.E1), wherein he again confessed that he killed the deceased but in different circumstances. Therein, he again described how he, the deceased and others had drunk and how the deceased had pursued him to the hut of P.W.1 where they fought. He said further:

“I then took that matchet I kept there after work and left for my home. I started to run home to report to my father. As I was running, Obodo Nwojiji continued pursuing me, met me with a penknife and wanted to stab me to death. I then killed him there. It was the matchet I collected from the house of Nwabonyi Igwe and was going home with it that I used in killing him after having begged him to leave me but he refused. He said that he must kill me, he must kill me. I was begging him and we were running round and round hence I used my matchet and killed him by giving him two matchet cuts on his neck and befell down inside the gutter along the road there. By the time Obodo Nwojiji wanted to kill me, I was alarming and running but nobody ran to my aid. By the time we started to fight, people had all gone asleep.

…………………………………………… The time i killed him people had slept very well. After killing I hid my matchet in the fallow there where i showed the Police”. (italics mine).

The appellant handed to the Police another blood stained matchet (Exh.F) with which he said he killed the deceased. He also showed the Police Officer (P.W.7) where the deceased’s corpse was, and he demonstrated to him how he sprang from behind to attack and kill the deceased.

At the trial, the appellant did not testify in his own defence; but his counsel submitted that he was provoked by the deceased who attacked him with a pen-knife; hence, he had to kill the deceased in self-defence. The learned trial judge carefully considered the case for the prosecution and the submissions of learned counsel on the issues of provocation and self-defence; and he found that they were not available to the appellant as a defence. In the circumstances, he convicted and sentenced the appellant to death.

On a further appeal to the Court of Appeal in Enugu, appellant’s counsel also submitted to that Court that the deceased provoked the appellant who had to kill him in self-defence. But the Court found that the trial judge was justified in rejecting those submissions. The appeal was therefore dismissed.

The appellant has again appealed to this Court on three grounds and raised inter alia the same issues of provocation and self-defence. In making his submissions Mr. C.O. Akpamgbo S.A.N. learned counsel for the appellant, asked the Court to determine three questions namely:

(a) Whether it could be said that Exhs. B, B1 and E, E1, by themselves without any other circumstances confirming them, were enough in law to prove that the appellant killed the deceased with the requisite intent; and whether the circumstances disclosed in the records weakened the confessional statement

(b) Whether the facts disclosed in those exhibits did not raise the defence of self-defence and provocation such as to reduce the offence from murder to manslaughter and

(c) Whether the doubts expressed by the trial Judge at p.19 lines 6-19 of the Record of Proceedings did not raise sufficient doubts as to the guilt of the appellant

Learned counsel then made copious reference to the appellant’s statements Exh. B, B1 and E, E1 and submitted that the appellant confessed to the killing of the deceased in self-defence after the appellant was provoked by the deceased. However, counsel’s attention was drawn to the evidence adduced by the prosecution and the consideration given by the trial Judge to both defences. He then conceded that the two defences which he had urged, were not supported by the evidence; and he said that it was unfortunate that the appellant’s counsel at the trial did not deem it fit to allow him to testify in his own defence.

The two points of law on which the appellant relied in his extra-judicial statements – Exhs B1 and E1 are that he was provoked by the deceased who first attacked him with a pen-knife before he (the appellant) killed him (the deceased) in self defence. However, those points of law seem to have over-looked the evidence adduced by the prosecution which not only contradicted them, but also confirmed that they could not justify the killing of the deceased. In the first place, it is to be noted that the appellant did not testify at the trial on those defence raised in Exhs. B, B1 and E, E1. Secondly, the appellant could not have been provoked at the time he killed the deceased. According to Exh. B, B1, the appellant said that it was after the quarrel at the house of P.W.5, and the deceased had pursued him to the house of P.W.1, that he became provoked and killed the deceased. But that could not have been so, because P.W.1 in her evidence said that she did not see the appellant at all at her hut on that night. She only saw the deceased and one Obom Nwede. If the appellant was not seen at the house of P.W.1 on that night, how then could he have been provoked by the deceased at that point in time Moreover, the story of the appellant in Exh. E, E1 as to how the deceased was killed by him is different, in that he said that he attacked the deceased from behind with a matchet before he killed him. Even assuming that the appellant was provoked by the deceased who slapped him and they quarelled during their drinking session in the house of P.w.5, that provocation would have disappeared and his temper would have become cool by the time when he later attacked and killed the deceased at the road junction.

Thirdly, it seems incredible that the appellant was first attacked with a pen-knife by the deceased before the appellant killed him in self-defence. Even though P.W.1 said that she saw the deceased in her house with a penknife on the night of the incident, she did not say that the appellant was there, and that there was a fight in her house. Furthermore, the appellant told the police officer (P.W.7) that he sprang from behind to attack the deceased which contradicts the fact that he was first attacked by the deceased with a pen-knife. It therefore seems that the pen-knife later found in the hand of the deceased after his death, was planted on him by someone. Even assuming that the appellant was first attacked by the deceased with a pen-knife (which was not believed by the trial Court), the matchet used by the appellant in killing the deceased has a longer reach than the pen-knife purportedly used by the deceased; and the appellant could easily have disarmed the deceased during their quarrel. It is therefore not surprising that the learned counsel for the appellant conceded that the two issues of law on provocation and self-defence which he urged were not supported by the evidence adduced by the prosecution. Consequently, I am satisfied that the trial Judge was justified in observing that:

“In the event, there is no evidence from which I can find that at the time the accused struck the murderous blows, the accused was put in such fear of immediate danger to his own life that the defences of justification on ground of self-defence and provocation could be available to him as was observed by Lord Goddard in the case of R. v. Lobell (1957) 1 A.E.R. 734.”

It was for these reasons that I dismissed this appeal on 9th September, 1985 and affirmed the conviction and sentence of death passed on the appellant.

A. O. OBASEKI, J.S.C. (Presiding): On the 9th day of September, 1985 after hearing counsel’s submissions, I dismissed this appeal and reserved my reasons for the judgment till today. I now proceed to give them. The appellant was charged and arraigned before the High Court, Abakaliki (Adimora, J.) for the offence of murder contrary to Section 319(1) of the Criminal Code Cap 30 Laws of Eastern Nigeria 1963. He was tried and convicted and sentenced to death. He appealed to the Court of Appeal and lost before bringing his appeal to this Court. The appellant did not testify in his defence. He also did not call any witness. This was despite the two confessional statements Exhibit B1 and Exhibit E1 tendered by the prosecution and admitted in evidence. These statements ex-facie raised the pleas or defences of provocation and self-defence. These defences were considered and rightly, in my view, rejected by the learned trial Judge. The appeal of the accused/appellant to the Court of Appeal was unsuccessful and the conviction and sentence of death passed were affirmed.

The appeal to this court raised three questions for determination which are:

(1) Whether it could be said that Exhibit B, B1 and E, E1 by themselves without any other circumstances confirming them were enough in law to prove that the appellant killed the deceased with the requisite intent and whether the circumstances disclosed in the records weakened the confessional statement

(2) Whether the facts disclosed in those exhibits did raise the defence of self-defence and provocation such as to reduce the offence from murder to manslaughter; and

(3) Whether the doubts expressed by the trial Judge at p.19 lines 6-19 of the Record of Proceedings did not raise sufficient doubts as to the guilt of the appellant

These issues have received elaborate consideration in the Reasons for Judgment just delivered bymy learned brother, Kazeem, J.S.C., and I agree with him.

It is not the law that the possession of a pen-knife by the deceased victim without evidence of its use in an assault on the accused/appellant entitles the appellant who kills with a matchet to the defence of provocation and self-defense. It is its use that determines whether or not provocation was offered by the victim to the accused/appellant or whether the appellant’s life was in danger. Where the evidence from the prosecution witnesses tends to negative the offer of acts of provocation by the victim, the defence must adduce positive credible evidence to establish provocation and self-defence in the legal sense. There is a long line of judicial authorities establishing that to avail of the defence of provocation in a charge of murder under Section 318 of the Criminal Code, the accused must have done the act for which he is charged (i) in the heat of passion, (ii) this must have been caused by sudden provocation, and (iii) the act must have been committed before there was time for his passion to cool. Chukwu Obaji v. The Slale (1965) NMLR. 417 at 442. Provocation for the purpose of Section 318 of the Criminal Code includes (1) any wrongful act or insult of such a nature when done to an ordinary person as is likely (a) to deprive him of the power of self-control and (b) to induce him to assault the person by whom the act or insult is done or offered. Consequently, it has been held repeatedly by this Court that:

“the correct direction in law is that in relation to murder, “provocation” in section 318 of the Criminal Code requires consideration of the nature of the weapon or force used as a mode of resentment bearing some reasonable relation to the provocation received, the disproportion being a factor for the jury to consider in determining whether the accused has lost control of himself or was acting for a reason other than complete loss of self control caused by sudden provocation.”

The Queen v. Afonja 15 WACA 26 at 27;

Ewo Akang v. The State (1970) 1 NMLR 36 at 38

Chukwu Obaji v. The State (supra)

There is a total absence of evidence amounting to provocation for the murder of the deceased in the instant appeal. On the issue of self defence, to avail himself of that defence, the appellant had a duty to show by evidence that his life was so much endangered by the act of the deceased that the only means of escape from imminent death was to kill the deceased. He should have demonstrated by his actions that he did not want to fight and that he was prepared to withdraw. See R. v. Lobell (1957) 1 All E.R.14, R. v. Julien (1969) 1 WLR. 839; (1969) 2 All ER 856. The State v. John Umunu (1968) NMLR. 15 at 20.

The evidence before the High Court was that the deceased was armed with a pen-knife while the appellant was armed with a matchet for the combat. In the natural order of things, one would expect the person armed with a matchet to be a serious threat to the person armed with a pen-knife. There is no evidence of any injury inflicted on the appellant by the deceased. The learned trial Judge and the Court of Appeal, in my view, were justified in rejecting the statement of the appellant to the Police on this point that the deceased armed with a pen-knife pursued him.

It was for the above reasons and the reasons set out in the Reasons for Judgment just delivered by my learned brother, Kazeem, J.S.C. that I dismissed the appeal of the appellant on the 9th day of September, 1985 aforesaid.

A. N. ANIAGOLU, J.S.C.: I have had a preview of the Reasons for Judgment just delivered by my learned brother, Kazeem, J.S.C., in this appeal and I entirely agree. It was for those reasons, which I adopt, that I dismissed the appeal on 9th September, 1985.

M. L. UWAIS, J.S.C.: When this appeal came before us on 9th September, 1985, I dismissed it and affirmed the conviction and sentence of death on the appellant. I reserved my reasons for doing so. I now give the reasons.

I have had the opportunity of reading in draft the reasons for judgment read by my learned brother Kazeem J.S.C. As it is for the same reasons that I dismissed the appeal, I adopt his reasons as mine. I do not intend to add anything more.

C. A. OPUTA, J.S.C.: This appeal was heard on the 9th day of September 1985. After listening to the arguments of counsel in elaboration of the points taken up in their respective Briefs, the Court unanimously decided to dismiss the appeal and to uphold and affirm the conviction and sentence of death passed on the Appellant by the court of first instance as well as the judgment of the court below dismissing the appeal to it by the Appellant. The Court then indicated that Reasons for Judgment will be given on the 6th day of December 1985.

The facts of this sad case were stated in detail in both judgments of the courts below and in the leading Reasons for Judgment of my learned brother, Kazeem, J.S.C. with which I am in complete agreement. I will only wish to deal with one aspect of the case, namely the legal effect of the fact that the Appellant rested his case on the case of the prosecution. He failed to give evidence on oath in his own defence. The trial court was thus deprived of the advantage of hearing his own side of the story in amplication of some of the issues (such as self-defence and provocation) raised in his statements Ex. B1 and Ex. E1.

The learned counsel for the Appellant, Mr. Akpamgbo, SAN asked the Court to determine the following questions:-

1. “Can it be said that the confessional statements of the Appellant (Exs. B1 and E1) by themselves alone (and without any other circumstances confirming the said confessions) are enough in law to conclude that the Appellant killed the deceased with the requisite intent

OR

Are there circumstances disclosed on the record which weaken the force of these confessional statements

2. Did the facts disclosed in these statements not raise the defences of Self-Defence and Provocation such as to reduce the charge to that of manslaughter

Did the doubts raised by the trial Judge at p.19 Lines 6-19 not justify the verdict of Not Guilty”

I will start off by saying that if the defence of Self-Defence were available to the Appellant, the proper verdict would be, Not Guilty. Self Defence affords a complete answer to a murder charge. Whereas provocation may reduce murder to manslaughter, self-defence completely exonerates.

I shall now deal with the issue whether the courts below were wrong in convicting the Appellant of murder either on the ground that the case was not proved beyond reasonable doubt (for that is exactly what the 3rd question of learned counsel for the Appellant presupposes) or that the Appellant acted in self defence, or was provoked. There was no eye witness account (apart from the confessional statements of the Appellant, Exs. B1 and E1) of how the deceased met his death. But there was evidence that there was a quarrel between the deceased and the Appellant during an illicit gin drinking spree in the “bar” of Ekuma Nwangbo (5th P.W.). The parties were apparently pacified. On the self same night of 30/9/79, the deceased was killed and left at a road junction 5 kilometres away from the house of Nwabonyi Igwe (1st P.W.) where the Appellant alleged in his statement Ex. B1 that the deceased attacked him and he fought back in self-defence.

The court of first instance needed to have an explanation of what happened between the period the parties (Appellant and the deceased) first quarelled and the time the deceased was killed. Since the act of killing was admitted by the Appellant in his confessional statements, Ex. B1 and Ex. E1, the onus of introducing evidence to show that the said killing was provoked or else was in self-defence was on the Appellant, see Lord Goddard L.C.J. in Harry Lazarus Lobell (1957) 41 CR. App R. 100 at p. 104. Provocation or Self-Defence are really conclusions to be drawn from all the surrounding circumstances and the party who wants the jury to find or conclude “provocation” or “self defence” in his favour will introduce evidence of those surrounding circumstances leading to the conclusion that he was provoked and/or fought back in self-defence; otherwise the trial Judge in his capacity as the jury will be justified in drawing any other conclusion that can reasonably be drawn from the totality of the evidence led (both direct and circumstantial).

After a quarrel it is natural to expect one of two things- reconciliation or revenge. Either the parties will shake hands and become “friends” again or one party may like “to pay the other party” back. Which one it is, will depend on the totality of the evidence. The 7th P.W. Sergeant Paul Akpagu to whom the Appellant made his two confessional statements (Ex. B1 and Ex. E1) further testified:-

“As a result of Ex. E, I took the accused back to his village where he took me to the scene where the body of the deceased was recovered and demonstrated how he sprang from behind and killed the deceased. He stepped into the nearby bush and recovered another matchet which he handed over to me and said it was the actual matchet he used. The matchet had blood stains on both sides”.

The matchet was tendered as EX.F. The impact of the above evidence is quite devastating. Springing from behind suggests lying in wait. It also suggests a surprise attack. Hiding the “murder weapon” is not quite consistent with a genuine plea of provocation or self-defence.

It is however possible that 7th P.W. was lying; that the Appellant did not tell him anything about “springing from behind” or that he “stepped into the nearby bush to recover the matchet he used in killing the deceased”. In that case, it was the duty of the Appellant to go into the witness box and give that evidence in denial. This the Appellant did not do. The trial Court must have two versions of these most essential facts before it could be asked to prefer one version to another. Clark Ejurem v. Commissioner of Police (1961) All N.L.R. 478. The confessional statements of the Appellant EX.B1 and EX.E1 by themselves alone do suggest provocation and self-defence. But these were not by themselves alone. There were other circumstances which needed explanation:-

1. From Ex.B, the first confessional statement of the Appellant, the killing of the deceased (in self-defence) was in the house of Nwabonyi Igwe, 1st p.w. but the corpse of the deceased was found 5 kilometres (3 miles) away from the house of 1st P.W. How did it get there
2. Ex. F, the blood stained matchet of the Appellant, tendered by the 7th P.W., Sergeant Paul Akpagu, was found in a bush near where the body of the deceased was also found. How did Ex. F get there
3. From Ex. E1, his second confessional statement, the Appellant, running away from the deceased who pursued him with a penknife, fearing that the deceased wanted to kill him (the Appellant) broke the door of Nwabonyi Igwe, 1st P.W. in order to secure entrance. How was it that P. W. 1 on the fatal night did not as much as see the Appellant around the vicinity of her house

What was the Explanation of the Appellant

In The Queen v. Sharmpal Singh PC (1962) 2 W.L.R. 238, the accused was charged with the murder of his wife. He did not testify in his own defence. He called no witnesses. He rested his case on the prosecution. The medical evidence indicated that sexual intercourse had taken place just before death, which was due to asphyxia caused by pressure on the chest applied simultaneously with pressure on the neck and throat. The medical witnesses were unable to say how severe or how prolonged such pressure would have had to have been in either place to cause death. The accused was convicted of murder. The Court of Appeal for Eastern Africa substituted a conviction of manslaughter. The Privy Council (Lord Morris of Borthy-Gest, Lord Hodson and Lord Devlin) held at p. 242:-

“In their Lordships’ opinion the inability of the medical evidence to speak with precision about the degree of force used, together with other circumstances in the case…..opened up both manslaughter and accident as alternative possibilities requiring consideration….(at p.243). In the present case, the problem is to determine as a matter of inference what the accused actually did and what degree of force he used. Once these are determined, the Board is bound to presume, because there is nothing to suggest the contrary” that the accused intended the consequent that would naturally follow from the exercise of the degree of force proved. The accused did not himself give evidence and so there is no conflict between his intention as deposed to in evidence and that which would have been formed by a reasonable man in his position: the later is the only guide.

In this case on appeal, the Appellant too did not give evidence and the testimony of the 7th P.W., Sgt. Paul Akpagu of what the Appellant told him- the Appellant’s demonstration of “how he sprang from behind and killed the deceased” stood uncontradictedc. Also the P.W.7’s evidence that:

“The accused stepped into the nearby bush and recovered another matchet which he handed over to me and said it was the actual matchet he used”.

also stood uncontradicted. I have already observed that with the above evidence of 7th P.W., unexplained and uncontradicted provocation and self defence could not possibly have availed the Appellant in the courts below. They do not in this Court either.

This emphasises the vital importance of defence counsel knowing when it is imperative that an accused person should go in to the witness box and explain certain aspects of the case which he alone can explain. In such a situation resting the defence on the case for the prosecution will not present to the trial Judge this much needed explanation, or put in another way, present to the Judge an alternative story. In Sharmpal Singh’s case (supra), the Privy Council at pages 244-245 commented:-

“The natural inference from the medical evidence is that the accused pressed much too hard…….The evidence of the prosecution, unless explained away, proved that the accused had gone well beyond the limits. This is the sort of case in which a not incredible explanation given by the accused in the witness box might have no explanation ….. How did he come to squeeze his wife’s throat When the prisoner, who is given the right to answer this question chooses not to do so, the Court must not be detered by the incompleteness of the tale from drawing the inferences that properly flow from the evidence it has got nor dissuaded from reaching a firm conclusion by speculation upon what the accused might have said if he had testified”. (Italics mine)

Now I will very briefly answer the Questions posed by learned counsel for the Appellant. It is obvious that Question No.1 did not take into account the evidence of P. W.1 Nwabonyi Igwe and the devastating evidence of P.W.7, Sgt. Paul Akpagu. There were from the totality of the Evidence led, several incriminating circumstances confirming the confessions of the Appellant in Ex. B1 and EX.E1 and showing that he not only kill the deceased but also that he did so without provocation, after careful planning – attacking the deceased from behind on a lonely road junction several kilometres from the scene of their earlier quarrel or encounter – the house of P.W.5, Akuma Nwamgbo – or the house of P.W.1, Nwabonyi Igwe. A strike from behind, 5 kilometres from the scene of a previous encounter shows premeditation and planning. Also an attack of the deceased from behind in the surrounding circumstances of this case completely destroyed any basis on which the defence of Self-Defence can rest. They also negatived any sudden and temporary loss of self-control which is of the essence of legal provocation: R v. Duffy (1949) 1 All. E.R. 932: Holmes v. D.P.P. (1946) 2 All. E.R. 124.

Question No.2 can be answered in the affirmative. On their face value, the facts disclosed in the confessional statements of the Appellant, Ex. B1 and E1 do raise prima facie, but only prima facie, the defences of provocation and self-defence. But EX.B1 and EX.E1 did not stand by themselves alone. There was evidence from 1st P.W. Nwabonyi Igwe that when the door of her hut was broken and she was roused from her sleep in the night of the murder, she saw the deceased and others but the Appellant was not with them. She was believed. This knocks the bottom out of any defence of Self-Defence appearing on the face of Ex. B1. The unexplained finding of the corpse of the deceased 5 kilo metres away from the house of p.W.1 showed that the incident that led to the death of the deceased took place elsewhere. The demonstration by the Appellant to 7th P. W. of how he killed the deceased also destroyed the defences of provocation and self-defence – appearing on the face of EX.E1. The answer to Question No.2 is that on the totality of the facts and the surrounding circumstances of this case, no other verdict is available except that of guilty of murder.

Question No.3 talks of “the doubts raised by the learned trial Judge at p.19 Lines 6 to 25”. It is correct that the learned trial Judge deprecated, and rightly too, the “shady fashion in which investigation into this case was conducted”. This was merely obiter dictum. The important question is- from the facts and circumstances placed before him, was he in doubt as to the guilt of the Appellant The Judge himself answered that question at p.20 lines 5-10 thus:-

“The accused’s confessional statement was voluntary and sufficiently direct and positive, and coupled with other circumstantial evidence which I have accepted, I am satisfied that the death of the deceased Obodo Nwojiji was caused by the voluntary act of the accused”.

And at p.24, lines 8 to 10, the learned Judge concluded:-

“This is a brutal case of murder. I cannot find any justification in law for the deliberate killing. I find the accused guilty of murder as charged”.

On Question No.3, I can only observe that to be satisfied and at the same time to have a reasonable doubt is not only a contradiction in terms but also, it seems to me that, that is an impossible state of mind. The learned trial judge was satisfied and rightly too. He had no doubts at all.

In conclusion, I will say that I am also satisfied that the Courts below were both right in convicting the Appellant of murder. It was for the above reasons and for the fuller reasons in the leading Reasons for Judgment of my learned brother, Kazeem, J.S.C., which I now adopt as mine, that I dismissed this appeal on the 9th day of September, 1985.

Appeal dismissed

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SC.160/1984