Ukaobasi Ajunwa Vs The State (1988)
LawGlobal-Hub Lead Judgment Report
OBASEKI, Ag. C.J.N.
On the 30th day of June, 1988, this appeal was heard by this court and after considering the submissions of counsel for the parties in their briefs of arguments filed in this Court and those made at the oral hearing before us together with the judgment of the Court of Appeal and the proceedings in that court and the High Court; I found no merit in the appeal. I then dismissed the appeal and adjourned the delivery of my reasons for the judgment till today. I now proceed to give them.
The appellant was tried on information for the offence of murder of one Samuel Aminako Agwu contrary to section 319 (1) of the Criminal Code Cap 30 Vol. 2 Laws of Eastern Nigeria 1963 before the High Court of Justice of Imo State holden at Umuahia and convicted by Ononuju, J. He was then sentenced to death.
Being dissatisfied with the conviction and sentence the appellant appealed grounds. As the particulars given are rather prolix, I shall set out hereunder the 7 grounds without the particulars. They read:
“(1) The learned trial Judge erred in convicting the appellant when he held that the defence of self-defence and provocation did not avail the appellant when there was abundant and over-whelming evidence to support those defences.
Particulars
(Omitted)
(2) The learned trial Judge erred in law when he held d.w. 5 to be a hired witness merely on the grounds that this witness made his statement to Police sixteen days after the incidence of the 19th of November, 1984 and also because the witness stated that he saw Caroline and her sister Queen on the date in question.
Particulars
(Omitted)
(3) The learned trial Judge erred in law when citing Obaji v. The State (1965) NMLR. 417, he held that the gun used by the appellant was disproportionate to the provocation caused by the deceased, when there was overwhelming evidence from the defence, that the deceased was armed with a short gun which used the same type of cartridge as the appellant’s gun.
Particulars
(Omitted)
(4) The learned trial Judge erred in law when he held that the contradictions in the evidence of p.w.s. 2, 3, 5 and 7 were not material when it was very clear that the contradictions were not only materials but they exposed these witnesses as most unreliable and biased.
Particulars
(Omitted)
(5) The learned trial Judge erred in law when he failed to consider the submission of the learned Counsel for the appellant that the 2nd, 3rd, 5th and 7th p.w.s. were biased and interested parties and had some purpose of their own to serve. He failed to warn himself especially where there was no independent evidence called throughout by the prosecution in respect of the incident.
Particulars
(Omitted)
(6) The learned trial Judge erred in law when he held that the appellant bore malice towards the deceased when there was no such evidence before him.
Particulars
(Omitted)
(7) The decision is altogether unwarranted, un-reasonable and cannot be supported having regard to the evidence adduced by the prosecution and the defence witnesses.”
Two additional grounds were also argued before the Court of Appeal. These are:
(1) That the learned trial Judge erred in law by holding that the defence of self help does not avail the appellant when there is on record a plethora of evidence to the contrary. A finding that occasioned a miscarriage of justice;
(2) The learned trial Judge erred in law by holding that the defence of provocation does not avail the appellant in view of the dispro-portionality of the weapon used to ward off the attack (if any) by the deceased.
The Court of Appeal (Coram Nnaemeka-Agu, Maidama and Babalakin, JJCA.) dismissed the appeal after hearing and considering the submissions of counsel contained in their written briefs and made orally at the oral hearing. This is brought out clearly in the concluding paragraph of the lead judgment delivered by Maidama, JCA. and concurred in by the other two learned Justices. It reads:
“I am satisfied that there is no merit in this appeal and it is accordingly dismissed. The judgment of the High Court convicting the appellant of murder is hereby affirmed.”
The appellant was still not satisfied and then appealed against the judgment of the Court of Appeal to this Court. Six grounds of appeal were filed but only 5 grounds were argued. These 6 grounds without their particulars read:
“1. Error in Law:
The learned Justices of the Court of Appeal erred in law and misdirected themselves when they held that the defence of self defence does not avail having held that the deceased was not armed with Exhibit ‘G’ and preferring the prosecution’s case to that of the defence, the court will not interfere with such finding of fact.
Particulars
(Omitted)
- Error in Law:
The learned Justices of the Court of Appeal erred in law and misdirected themselves in fact when they held – “even if I concentrate upon the events of the 19th, there was nothing in the incident of that day sufficient to provoke a man of appellant’s station in life.”
Particulars
(Omitted)
- The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts where they held:
“as to the Judge’s failure to warn himself of the dangers of acting on the evidence of prosecution witnesses, in law that a witness has other personal interest of his own to serve is not of itself sufficient to reject such evidence.”
Particulars
(Omitted)
- The learned Justices of the Court of Appeal erred in law by delivering a judgment dated 9/9/87 when one of them as at the said date had no jurisdiction. This ground was abandoned.
- The learned Justices of the Court of Appeal erred in law and misdirected themselves when they held:
“I have closely examined the submission of the learned Counsel in the light of the evidence and I do not find any material contradictions which are fatal to the respondent’s case.”
Particulars
(Omitted)
- The judgment of the Court of Appeal is unreasonable unwarranted and cannot be supported having regard to the evidence.”
Only two issues were raised before us and these were the issue of self-defence and the issue of provocation. A finding in favour of the appellant on the first issue will lead to an acquittal while a finding on the second issue in favour of the appellant will reduce the conviction of murder to one of man-slaughter. The facts found by the learned trial Court are as follows:
“In the early hours of the 19th of November, 1984, the deceased, Samuel Agwu left his home in Umukabia to collect school fees from his father who lived in Umuahia. On his way, he met the appellant who was standing under a mango tree in front of his compound. The appellant refused to allow him to pass. The appellant and his family attacked the deceased, tore his dress and wounded him. The deceased went back home and told his brothers what had happened to him. He changed his dress, armed himself with a matchet and left for Umuahia determined to follow the same road which passed by the appellant’s compound. On reaching the front of the compound of the appellant, the deceased was intercepted and again attacked by the children of the appellant. As soon as the fight started, p.w. 2, p.w. 3 and p.w.5, brothers of the deceased who were following the deceased behind arrived at the scene and started to stop the fight. The appellant who was present urged his family to fight the deceased before he went into his bedroom, took his gun and came outside the house and shot the deceased at close range. As the deceased staggered, the appellant shot him again, the deceased fell down and died on the spot.”
When the issue of self defence and provocation was raised before the Court of Appeal, it will be necessary to find out what opinions were expressed by that court.
It is common ground that the appellant shot the deceased and inflicted gun shot wounds on him from which he died.
The issues raised before the trial Court were (1) whether the appellant shot the deceased in self defence and (2) whether the appellant shot the deceased under provocation. It is common ground that the deceased was the son of the senior brother of the appellant. The evidence that the deceased was armed with a gun Exhibit G and shot at the appellant with it was rejected by the learned trial Judge as a fabrication. He said, inter alia, in his judgment:
“From the totality of the evidence before me, it is my finding of fact that the deceased had no gun on that day and that he was not in possession of the gun Exhibit G. He never fired at the accused. I believe the prosecution that the deceased after being attacked by the members of the accused’s family on his way to Umuahia to collect his school fees came back home to ….and carried a matchet to defend himself if they attacked him the second time. He carried no gun at all. The story of gun and firing at the accused first is an afterthought and made up by the accused in order to defend himself. The accused bore some malice against the deceased and this malice he had nursed for some time and its expression came through in that morning of 19/11/84 when he shot the deceased at such a close range.”
The learned trial Judge found as a fact that at no time did the deceased put the life of the appellant in danger to warrant his taking measures to defend himself. The learned trial Judge also held that on the evidence the defence of provocation could not avail the appellant. Citing the case of Obaji v. The State (1965) NMLR. 417, he held as follows:
“Considering the force used, the type or nature of weapon used, shooting the deceased twice and the nature of the injuries inflicted, I hold that the retaliation by the accused was disproportionate to the provocation offered (if any). The accused had sufficient time for his passion to cool from the time he ran into his house to the time he came out and shot the deceased. The deceased being the son of his senior brother, he could have hesitated before opening fire on him. The repeated shooting shows clear intention to kill or do grievous harm.”
On the difference between self-defence and provocation, the Court of Appeal (Maidama, Nnaemeka-Agu and Babalakin, JJCA.) correctly stated the law when it stated per Maidama, JCA. as follows:
“Now it is necessary to distinguish the defence of self- defence and that of provocation. While a plea of self-defence if successfully raised will completely absolve the offender from criminal responsibility, a plea of provocation on the other hand, if successful, reduces the offence of murder to manslaughter. Under our legal system, if a man is attacked in circumstances where he seriously believes his life was in danger of serious bodily harm, he may use such force as he believes is necessary to prevent and resist the attack. And if in using such force he kills his assailant, he is not guilty of any crime even if the killing was intentional. In deciding whether it was reasonably necessary to have used such force as was used regard must be had to all the circumstances of the ease including the possibility of retreating without danger or yielding anything that he is entitled to protect – see sections 286 and 287 of the Criminal Code and Albert Laoye v. The State (1985) 2 NWLR (Part 10) 832”.
He then observed:
“The next point is whether there was any threat or reasonable apprehension of death or grievous harm to the appellant to justify the use of the gun to kill the deceased. Here again the learned trial Judge preferred the story told by the prosecution as to how the appellant and the members of his family attacked the deceased and how the appellant shot the deceased. I agree with the finding of the learned trial Judge that there was no threat to his life. The appeal based on the defence of self-defence therefore is misconceived.”
On the defence of provocation, the Court of Appeal observed and concluded:
“In the present case, the evidence which was accepted by the learned trial Judge was that the appellant, after the fighting was in progress went into his bedroom, took his gun and after telling the members of his family to clear, shot the deceased at close range. He rejected the defence evidence that the deceased pursued and shot the appellant in the compound. I entirely agree with his findings and I do not find any misdirection in law to warrant interference with his finding. The appeal in this ground fails.”
I also agree with the Court of Appeal, the learned trial Judge having rejected the evidence adduced by the defence as to the cause and course of the fight before the appellant shot the deceased, the defences of self defence and provocation are not available to the appellant.
On the issue of credibility of p.w.2, p.w.3, p.w.5 and p.w.7, all members of the deceased’s family, on the ground of interest, the Court of Appeal observed:
“The next point raised by the learned Counsel for the appellant was that p.w.2, p.w.3, p.w.5 and p.w.7 are all members of the deceased’s family, they are all interested in the outcome of this case; therefore, the trial Judge should have been wary in accepting and acting on their evidence without adequate corroborative evidence…………..
Again, learned Counsel referred to their evidence and highlighted some contradictions and inconsistencies which he stated are fatal to the prosecution case.
I have closely examined the submission of the learned Counsel in the light of the evidence of the prosecution witnesses concerned and I do not find any material contradictions which are fatal to the respondent’s case.
All the witnesses agreed that both in the evidence on oath and their statements Exhibits “A”, “B” and “C” that the said Exhibit “G” belonged to the appellant’s son and that the appellant shot the deceased at close range with his double-barrelled gun which he took from his bedroom.
I am satisfied that the learned trial Judge was right in accepting the evidence of the prosecution witnesses and acting on it.”
Chief C. O. Akpamgbo, SAN., has presented the case of the appellant with the skill and fearlessness of a Senior Advocate. He has left no stone unturned in his effort to persuade this Court to upset the concurrent findings of fact made by the Court of Appeal and the High Court, the two courts below. It was a herculean task which he could not accomplish. He was unable to satisfy us that there was error in the findings and that there was a miscarriage of justice, the two basic requirements to be satisfied before the court can disturb concurrent findings. See Lokoyi v. Olojo (1983) 8 SC. 61. The four questions for determination set out in the appellant’s brief to wit:
(1) whether the trial Court considered at all or sufficiently the possible defences of self defence and provocation as required by law; what is the legal effect of the failure of the prosecution to cross-examine the appellant on his evidence
(2) whether the Court of Appeal was right in holding that all such defences were adequately considered before they were rejected by the trial Court;
(3) if such defences were legally considered would the trial Court have arrived at an alternative verdict of manslaughter or acquittal and whether the conviction would have been affirmed by the Court of Appeal and
(4) whether the case of the prosecution was proved on that burden explicit in section 137(1) of the Evidence Act more particularly as to the presence of Exhibit ‘G’ at the scene of incident
must therefore be answered in favour of the respondent.
The appeal failed and it was for the above reasons that I dismissed the appeal.
Other Citation: (1988) LCN/2378(SC)
