Sampson Nkemji Uwaekweghinya V. The State (2005)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

In the High Court of Justice of the former Imo State in the Umuahia Judicial Division (now in Abia State), the appellant herein was arraigned for the offence of murder contrary to and punishable under section 319(1) of the Criminal Code, Cap. 30, Laws of the former Eastern Nigeria applicable to lmo State. It was alleged that the appellant did murder one Gabriel Ejioforon the 4th day of June, 1986 at Ndi Eheugo, Bende, in the said Umuahia Judicial Division. At the trial, the prosecution called six witnesses in proof of the charge, while the appellant was the only witness for the defence. After the address of counsel and in his judgment, delivered on 17th of December, 1987, Maranzu, J. convicted the appellant for the offence of murder and sentenced him to death. The appellant appealed to the Court of Appeal where the following issues were submitted for the determination of the appeal:-

(1) Whether the admission by the learned trial Judge of the appellant’s alleged confessional statement written in a language which the appellant does not understand; and without interpretation led to a denial of fair trial and occasioned a miscarriage of justice in the case.

(2) Whether there was evidence before the trial court to afford the appellant of the defences of provocation and self-defence.

(3) Whether the prosecution proved the charge of murder against the appellant beyond reasonable doubt as required by section 138(1) of the Evidence Act.

In its judgment delivered on the 4th day of December, 2003, the Court of Appeal dismissed the appellant’s appeal and affirmed the conviction and sentence of the trial court. This is a further appeal to this court.

The notice of appeal contains 3 grounds of appeal and they read:-

1. The learned Justices of the Court of Appeal erred in law in affirming the decision of the trial court to admit and rely on the confessional statement of the appellant recorded in a language which the appellant did not understand and without interpretation did not lead to a denial of fair hearing and occasion a miscarriage of justice in the case.

(i) The investigating police officer who recorded the alleged confessional statement in the English language did not translate the same in Ibo language understood by the appellant.

(ii) The said statement was similarly tendered and received in evidence in court without translation in the Ibo language understood by the appellant.

(iii) The appellant is a stark illiterate who can neither write nor speak the English language.

(iv) This obvious failure had denied the appellant a fair hearing and had led to a miscarriage of justice.

2. The learned Justices of the Court of Appeal erred in law in holding with the trial court that the alternative defences of provocation and self defence were not available to the appellant.

Particulars of Error

i. There was sufficient evidence from the circumstances and facts of the case to support either or both.

ii. There was no adequate evaluation of the appellant’s evidence with regard to these two defences.

iii. The cultural background and station in life and the susceptibilities of the appellant were not adequately considered.

3. The decision of the Court of Appeal is unreasonable having regard to the evidence before the trial court.

In compliance with the rules of this court the parties herein caused to be filed briefs of argument. At the hearing of the appeal, learned counsel proffered oral submissions in addition to the argument contained in their written briefs. In his brief for the appellant, the learned counsel has submitted to this court for the determination of the appeal, the following issues:

1. Whether the Court of Appeal was right in affirming that the trial court’s admission of and reliance on an alleged confessional statement of the appellant in a language which the appellant does not understand, and without interpretation did not lead to a denial of fair hearing and occasion a miscarriage of justice in the case.
2. Whether the Court of Appeal was right in affirming that there was no evidence before the trial court to avail the appellant of the alternative defences of provocation and self defence.
3. Whether the Court of Appeal was right in confirming and affirming the conviction and sentence of the appellant by the trial court.

The learned counsel for the respondent identified and submitted to this court almost identical issues for the determination of the appeal. Before discussing the issues, it is convenient to set out the facts in this matter. The facts are:

On the morning of the 4/6/1986, Gabriel Ejiofor as usual went to his farm. He did not return in the evening as he usually used to do. His son, his senior brother and other members of the community organised a search party for him but could not find him up to the early hours of the following morning. They contacted neighbouring villages to form a posse to help them track down Gabriel Ejiofor. Gabriel Ejiofor’s dead body was eventually discovered in a bush with several machete cuts all over his body. The appellant, was the nephew of the deceased and it was common ground that the appellant had a negative attitude towards members of their family including his uncle the deceased. It was also alleged that the body of the deceased was found in a farm land belonging to the appellant and that the appellant refused to take part in the search of his uncle when all neighbours and relations learnt of his failure to return home from the farm. After due investigation by the police, the appellant was arrested and made an alleged confessional statement to the police. In his evidence at the trial, the appellant stated, that he inflicted machete cuts on the deceased when the deceased attacked him and hit him with a stick. In his cautioned statement to the police aforesaid, the appellant made statement to the same effect, i.e, that he feared that the deceased would kill him if he did not stop him by using his machete on the deceased. He also claimed to have lost his self control when the deceased hit him. At the trial and as confirmed by the Court of Appeal, the defences of self-defence and alternatively provocation did not avail the appellant, hence his conviction by the trial court and affirmation of the conviction by the Court of Appeal. I shall now deal with the issues submitted to this court for the determination of the appeal.

Issue No. 1

This issue is concerned with the question of the non-interpretation of the alleged confessional statement of the appellant, when it was admitted at the trial and when it was relied upon to find the appellant guilty. It is submitted that the non-interpretation of the statement amounted to a denial of fair hearing and had occasioned a miscarriage of justice. Learned counsel referred to and relied on sections 33(1) and 33(6) of the 1979 Constitution. It is submitted that since the investigating police officer (PW6) recorded the said statement in English, which the appellant did not understand, the admission of the statement in evidence without interpretation was in breach of the provisions of the 1979 Constitution aforesaid. It is again submitted, that it was necessary and in the interest of justice, not only to read out in open court and interpreted from Ibo to English and vice verse but also the evidence of P.W 2, P.W4 and P.W.5 who gave evidence in Ibo language were similarly not interpreted. Learned counsel referred to and relied on the cases of Ogba v. State (1992) 2 NWLR (Pt.222) 164 at 205-207; Samuel Erekanure v. The State (1993) 5 NWLR (Pt.294) 385, 393 B-C; Gozie Okeke v. The State (2003) 15 NWLR (Pt.842) 25. It is further argued, that the statement remained inadmissible in law, notwithstanding the fact that the appellant signed it and did not object to it when tendered in evidence and even though he was represented by counsel.

The learned counsel for the respondent on the other hand submitted that, the proper time for an accused to object to the admissibility of a statement was when the statement was tendered in evidence and not after when it was admitted in evidence without objective Abdu Mohammed v. The State (1991) 5 NWLR (Pt.192) 438; Kenneth Ogoala v. The State (1991) 2 NWLR (Pt.175) 509 at 523 -524. It is also submitted that in law, a voluntary confession of guilt, if fully consistent and probable and coupled with proof that a crime has been committed is usually accepted as satisfactory evidence in which the court can convict. It is again submitted that at no occasion did the appellant complain that he did not understand English language. It is submitted that when the investigating Police officer took the appellant to the superior police officer who read the statement to the appellant, in English language, the appellant should have at that occasion told the superior officer that he did not understand English language rather the appellant agreed that it was his statement, he voluntarily made, that was read to him. It is also argued that there was no breach of fair hearing nor any occasion of miscarriage of justice.

Now, by the provisions of section 33(6)(e) of the 1979 Constitution, now section 36(6)(c) of the 1999 Constitution every person who is charged with a criminal offence shall be entitled to have, without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence. The law requires that there shall be adequate interpretation to the accused person of anything said in a language which he does not understand. See Ajayi v. Zaria N.A. (1963) 1 All NLR 169; State v. Gwonto (1983) 1 SCNLR 142.

The former Federal Supreme Court in the case of Queen v. Imadebhor Equabor (1962) 1 All NLR 287, (1962) 2 SCNLR 289, stated that if the accused does not ask for an interpreter, the failure to supply one would be treated as a matter of procedure and a conviction may only be set aside if the failure to supply an interpreter had led to a miscarriage of justice and that if the accused is represented by counsel, the objection must be taken at the trial in the first instance, and not on appeal. There is a distinction between a matter of procedure that affects substantial justice in the trial of a case and a matter of procedure which in no way affects the justice of a trial of a case. See Egbedi v. The State (1981) 11 – 12 SC 98. It is settled law, that an accused person who acquiesced to an irregular procedure that did not lead to a miscarriage of justice cannot complain on the procedure on an appeal. In the case of Zaria N.A v. Ajayi (1964) (No.2) NNLR 61; (1963) 1 All NLR 169, this court allowing the appeal, held that an appellant discharged the burden of showing that a failure of justice has taken place for want of interpretation or adequate interpretation by showing that a reasonable person who was present at the trial might have supposed that the interpretation was defective to such an extent as to deny the appellant a fair trial.

Although it is constitutional requirement that there shall be adequate and free interpretation to the accused of anything said in a language which he does not understand, the procedure may however be dispensed with where the accused so wishes and the trial judge is of the opinion that the accused does not require any interpretation of the proceedings. The right of the accused to an interpreter cannot however be raised on appeal, unless he claimed the right during his trial and was denied it. See Queen v. Eguabor (supra).

Now in the instant case the appellant who was represented by counsel, when he first appeared in court on the 15/7/1987, the charge was read to the appellant in “English language” and interpreted in Ibo to the hearing and understanding of the accused and he pleaded as follows:-

Accused: “I am guilty with reason”. Where upon, the prosecution opened it’s case by calling on PW1, Ngozi Wosu Ezi who testified in English and his evidence was not interpreted into Ibo and there was no complaint by the appellant or his counsel. Similarly PW2, PW3 and PW6 testified in English and no interpretation was demanded by the appellant and none appeared on the record. PW4 and PW5 testified in Ibo because they could not speak English and their evidence was interpreted into English. But the complaint of the appellant is only concerned with the “admission of and reliance on” the alleged confessional statement of the appellant in English, the language the appellant did not understand and without interpretation. It alleged that it had led to a denial of fair hearing and had occasioned a miscarriage of justice. Now, PW 6, the investigating. Police officer, in his evidence stated:

“I invited the accused to the police station where I arrested the accused and charged him with the offence of murder, cautioned him in English language and he volunteered a statement in English language which I recorded same in English language and read it over to him and he stated that it was his voluntary statement and he then signed his statement. I countersigned the statement of the accused as the recorder.”

When the prosecution tendered the statement in evidence, the following appeared in the record of proceeding:-

“Ejeleonu now seeks to tender ID-A, B & C (The three sheets forming the statement of the appellant put in for identification earlier in the proceedings by the superior police officer – who attested to the confessional statement.) “Uchendu, Esq. For the accused then took the documents to the accused and after showing the same to the accused and conferring with him stated that he had no objection to the statement being received in evidence.”

Whereupon the statement was admitted and marked as exhibit E and was read in court. Similarly, the attestation form signed by the superior police officer was also admitted without objection as exhibit F.

As mentioned above, the appellant should have complained on the question of non-interpretation at the time the statement was tendered in evidence, he did not do so, he cannot now complain at the appeal stage. See Queen v.Eguabor supra. Although the appellant gave evidence in Ibo at the trial, there was no indication that he did not speak or understand English. In any event, it has not been shown that the non-interpretation of the statement has occasioned any failure of justice. What the appellant said in exhibit “E” the confessional statement is not different from his evidence in open court. In any event, the investigating police officer PW 6 stated that the appellant spoke to him in English and the appellant never stated he did not understand English language. In a situation, such as this, it is not necessary to interprete the proceedings when the appellant understood the language of the court. See also Erekanure v. The State (supra); Kajubo v. The State (1988) 1 NWLR (Pt.73) 721; Idemudia v. The State (1999) 7 NWLR (Pt.61O) 202, (1999) 5 SCNJ 47. I accordingly, find no merit in the complaint under issue one. It is rejected by me and resolved against the appellant.

Issue Two

This is concerned with the question whether the alternative defences of provocation and self-defence did not avail the appellant. It is submitted on behalf of the appellant, that the learned trial judge did not sufficiently evaluate the evidence in the case and the Court of Appeal acted in error when it affirmed the trial judge’s findings in respect of the defences raised by the appellant. It is argued that the appellant being the only eye-witness stated that there was a fight between himself and the deceased and that each of them was armed with machete. It was also evident that it was the deceased who first attacked the appellant by repeatedly hitting him hard with a long stick. It is claimed the attack was sufficient to provoke the appellant to retaliate with the only weapon he was holding. It is argued that the use of a machete under the circumstances when the deceased was also armed with a machete was not disproportionate. This is more so, when the deceased was attacking the appellant, which stunned the appellant. On the issue of provocation learned counsel referred to and relied on the case of Ekpenyong v. The State (1993) 5 NWLR (Pt.295) 513 at 522. Learned counsel also referred to section 284 of the Criminal Code.

It is also submitted that on a proper evaluation of the evidence, it is also possible that the appellant can avail himself with the defence of self defence under Section 286 of the Criminal Code. It is submitted that the unprovoked assault by the deceased caused the appellant to have a reasonable apprehension of death or grievous bodily harm, and that the appellant’s reaction as is expected of a person of such lowly and uneducated background was to protect himself from being killed by the deceased. It is argued that the appellant really believed that the deceased wanted to kill him. The use of the machete was only to prevent the deceased from killing him.

The learned counsel for the respondent on the other hand, submitted that there was no available evidence adduced to avail the appellant of the defence of provocation or self-defence. It is argued that the weapon used to retaliate was dangerous and not of proportion to the stick used by the deceased. It is further argued that the appellant failed to show that he sustained any serious injury. Learned counsel referred to sections 286 and 287 of the Criminal Code and the case of R v. Nwanjoku (1937) 3 WACA 208. It is further submitted that the appellant did not use the opportunity, which he had to retreat or draw back and there was nothing to show that he was in imminent danger of his life See Ahara v. State (1951) 2 NLR 110.

Now, it is settled law that in a trial of murder it is the duty of the court to consider all the defences raised by the evidence whether the person charged specifically put up such defences or not. See Apishe v. The State (1971) 1 All NLR 50. And no matter how weak or stupid a defence raised by an accused may appear, it must be properly and adequately considered. See Takida v. The State (1969) 1 All NLR 270 where it was held that it is the duty of the court to consider the defence of provocation once there is evidence even if not raised specifically. See also Williams v. IGP (1965) NMLR 470. Now, in the instant case both in his statement to the police and particularly his evidence in court, the appellant stated that when he met the deceased who was his uncle, he greeted him and was ignored by his uncle. I then started to collect bush mango fruit for myself and as I was doing so the deceased hit me with a stick a second time. He hit me with a stick the second time by the side of my ear and again on my shoulder. He also stated that the deceased had with him a cutlass (exhibit A) and an iron rod (exhibit C). When the deceased used exhibit B the stick on me I was dazed and I felt that he wanted to kill me – since the deceased hit me twice with that big stick, exhibit B, I felt that he wanted to kill me so I picked up my cutlass exhibit D and dealt machete blows on the deceased – I do not even know when I hit him with the machete I cannot remember how many times – because I was in agony as a result of the blows he gave me with the big stick exhibit B. He also stated that the land upon which the bush mango tree was standing belonged to his late father. There was no other witness to what had transpired between the deceased and the appellant at the scene on that fatal day. Although the learned trial Judge accepted these pieces of evidence, he went on to consider previous acts or words of enemity towards the deceased to negative the defences of provocation and self- defence. The learned trial Judge found that the appellant had formed the intention to kill the deceased long time ago and had indeed killed the deceased in furtherance of that malicious intent.

Now, the question is whether the learned trial Judge was right in holding that the defences of provocation and self-defence did not avail the appellant.

Premeditated intent is incompatible with the defence of provocation, so that an accused who kills another intentionally cannot be said to have been provoked. See Inyama v. The State (1972) 3 SC 94. In considering the defence of provocation on a charge of murder, the trial court should consider sections 283 and 318 together. In Obaji v. The State (1965) 1 All NLR 269 at 275 Ademola, CJN stated:-

“As we have pointed out earlier, section 318 of the Criminal Code must be read together with section 283 of the Criminal Code which defines provocation and for the purposes of section 318 provocation includes (1) any wrongful act or insult (2) 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.

To avail himself of the defence 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 is time for his passion to cool.

There can be no doubt that the attitude of the Nigerian courts has been to interpret sections 283 and 318 of the Criminal Code as impliedly including the mode of resentment or, in other words, that the retaliation must be proportionate to the provocation offered. In this connection, and in consonance with this interpretation by the Nigerian courts the doctrine has developed to the “behaviour of the average man in the community to which the accused belongs” See R. v. James Adekanmi (1943) 17 NLR 99 at pp. 101 and 102.”

It is also settled law that an act of revenge, not done in the heat of passion cannot successfully form the basis of a defence of provocation See Chukwu v. The State (1966) NMLR 81; or where the accused had sufficient time to cool down before doing the act complained of, see Ashimiyu v.The State (1982) 10 SC 1. Provocation which could reduce what otherwise amounted to murder to manslaughter is a legal concept made up of a number of a co-existing elements. It is of paramount importance in the consideration of this concept that the act is held out as a natural and justifiable reaction of the provoked person and was not done in self revenge but in ventilation of a natural, sudden and contemporaneous feeling of anger caused by the circumstances of the occasion See Akang v. State (1971) 1 All NLR 46.

Now applying these principles to the undoubted facts of this case, I am of the view that the defence of provocation can avail the appellant. I think that in the circumstances and bearing in mind the station of the appellant, the appellant certainly received grave and sudden provocation and did what he did in the heat of passion before that passion had time to cool. In my view, the issue of the weapon used being disproportionate to the attack on the appellant is of no moment, what the law states is that retaliation should be proportionate to the provocation. That is why in cases of insult, still, provocation may avail an accused person to reduce the offence of murder to manslaughter. Calling a Muslim a pagan may amount to provocation See Adamu Komo v. The State (1967) 1 All NLR 289. In Queen. v. Edache (1962) NMLR 56, it was held that there are circumstances in which words alone could amount to such provocation as to justify a verdict on a reduced offence. Thus, the issue of weapon used is not always relevant.

The issue of the contradiction in the statement to the police and the appellant’s evidence in open court is in my view of no momentum. It is the law, that contradictions of minor details which do not affect the substance of the issue to be decided are irrelevant. The relevant contradictions must be shown to amount to a substantial disparagement of what was said, making it unsafe to rely on either. See Enahoro v. The State (1965) NSCC (Vol. 4) 98 at 113, (1965) 1 All NLR 25.

But the defence of self-defence in my view is different. Before the defence is available, it must be shown by the person relying upon it that he reasonably believed that there was no other way of saving himself from death or grievous bodily harm other than by using such force as he did and that he tried to disengage from the event which led to the application of such force or in the instant case the use of cutlass. See Umana v. The State (1972) 4 SC 164; Bassey v. The State (1963) 1 All NLR 280. For an accused to avail himself of the defence of self-defence, he must show by evidence that he took reasonable steps to disengage from the fight or make some physical withdrawal. But the issue of disengagement depends on the peculiar circumstances of each case. Sometimes it may be possible to run away from an unwarranted attack at times it may be impossible to physically withdraw. In the instant case, the appellant had no opportunity to withdraw and had to do something quickly in order to repel the grave assault which could cost him his life. It was evident from the statement and the evidence of the appellant, that the deceased who attacked him was armed with a cutlass, an iron rod and a stick which he used to strongly strike the appellant twice and which rendered the appellant dazed, confused and unable to think clearly because of the shock caused by the unwarranted grave and sudden attack. The statement of the appellant and his evidence in court as to what actually happened are substantially the same and uncontradicted by the prosecution. Indeed there was no eye-witness to the tragedy except the appellant. It is manifest that the appellant defended himself against the attack on him by the deceased and it was in the cause of the defence against the attack that the deceased sustained the fatal injuries. It is also clear, as mentioned above that the appellant had no opportunity to withdraw. See Oka v. The State (1975) (Reprint) 9-11 SC 17; considering all the circumstances of this case, I am of the view the defence of self-defence also avails the appellant. That faced with the situation where instant and decisive action was required, the appellant did the only thing which a normal, reasonable person defending his life would do. There was no proof beyond reasonable doubt that the killing of the deceased was unlawful. See also Iteshi Onwe v. The State (1975) (Reprint) 9-11 SC 14. I accordingly resolve the second issue in favour of the appellant.

Issue No.3

This issue appears to me a repetitive of the second issue. The appellant both in his statement to the police and his evidence in open court consistently stated how he macheted the deceased his uncle. There is no dispute whatever that the appellant killed the deceased. This is a finding of fact concurrently made by the lower courts. There is nothing to show the finding is perverse. The finding is based on the voluntary admission of the appellant. It is well settled that where the circumstances of the commission of an offence are positive, direct and unequivocal and irresistibly lead to the inference that it is the accused that committed the crime, such inference ought to be drawn. See Shazali v. The State 12 SC (Pt. 11) 58. I accordingly find no merit in the complaint under the issue No.3.

But that notwithstanding where a plea of self-defence is upheld, it will completely absolve the accused person from criminal liability see Ajunwa v. The State (1988) 4 NWLR (Pt.89) 380, (1988) 9 SC 110. This appeal therefore, succeeds. The conviction of the appellant for murder and the sentence of death are set aside. The appellant is discharged and acquitted and should be set free forthwith.

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SC.55/2004