IN THE COURT OF APPEAL OF NIGERIA
On Friday, the 2nd Day of May, 2014
ANTHONY OMORUYI ................. Appellant
THE STATE .............. Respondent
Adaze J.O. for Appellant
Mrs. P.E. Aziegbemin D.C.R.C. Ministry of Justice, Benin City with I. Okungbowa (Miss)/P.S.C., I. Ogidon (Mrs) S.C. for Respondent
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment):
The present appeal is against the Judgment of the High Court of Edo State, holden at Benin Judicial Division, delivered on July 15, 2009 in charge No. B/31/C/2007. By the said judgment, the lower court, Coram E.F. Ikponmwen, J; convicted and sentenced the Appellant to death by hanging for the offence of murder of one Helen Aganmwonyi. The offence is punishable under Section 319(1) of the Criminal Code, CAP. 48 volume II Laws of the defunct Bendel State, 1976 applicable to Edo State. Dissatisfied with the said conviction and sentence passed thereupon, the Appellant filed a notice of appeal on 04/8/09 in the registry of the court below.
On 28/06/07, the Appellant was arraigned before the court below upon a one count charge to the following effect:
STATEMENT OF OFFENCE
Murder punishable under Section 319(1) of the Criminal Cap. 48 vol. II, Laws of Bendel State of Nigeria, 1976 as applicable to Edo State.
PARTICULARS OF OFFENCE
ANTHONY OMORUYI (M) on or about the 6th day of September, 2006 at No.1 Enobokhare Street, Off St. Saviour, Benin City, in the Benin Judicial Division murdered one Helen Aganmwonyi (f) by stabbing her with a knife.
Not unexpectedly, upon his arraignment before the court below on the said 28/6/07, the Appellant pleaded not guilty to the one count charge in question. Eventually, the case proceeded to trial. In proof of the case thereof, the prosecution called a total of five witnesses and tendered various document which were admitted - Exhibits A, A1, A2, B, C & C1, respectively. On the other hand, the Appellant testified as the sole witness in his own defence. At the end of the trial, the respective learned counsel orally addressed the court below, thereby resulting in adjourning the case for delivery of judgment. Indeed, on 15/7/09, the vexed Judgment was delivered to the conclusive effect thus:
I find from the evidence led by the prosecution that the case against the accused person is proved beyond doubt. The circumstantial evidence coupled with the confessional evidence of accused person which is proved true have conclusively, positively proved the charge of murder as laid against the accused person I have no doubt in my mind, as to guilt of the accused person in view of the available evidence.
Consequently, I find the accused person guilty as charged and I convict him accordingly.
Allocutus:- I plead for leniency. He is a first offender.
Asks court to temper justice with mercy.
RECORD: - Nil.
Sentence: Anthony Omoruyi, the sentence of this court on you is death by hanging by the neck until you be dead. May the Lord have mercy on your soul.
The original notice of appeal dated 04/8/09, is contained at pages 97 to 99 of the Record of Appeal. It is predicated upon four grounds of appeal. However, with the leave of court, the Appellant filed a total of six (6) additional grounds on 02/4/13. The Appellant's brief was filed by J.O. Udaze Esq; on 23/5/13. On the other hand, the Respondent's brief was filed by P.E. Aziegbemwin (Mrs) on 12/6/13, but deemed properly filed on 23/5/13.
At page 3 of the said brief thereof, the Appellant's learned counsel raised a sole issue for the determination of the appeal, viz: -
"Whether from the totality of the evidence, the prosecution proved its case beyond reasonable doubt as required by law."
The sole issue was argued at pages 3 to 17 of the said brief. In a nutshell, it was submitted that the prosecution must prove beyond reasonable doubt the essential ingredients of the murder charge, viz: (a) The death of the deceased; (b) That the Appellant killed the deceased; (c) That the killing was unlawful; (d) That the Appellant had knowledge that the act or omission would result in death or grievous bodily harm; and that (e) The Appellant had intention or motive for the killing. See ONAH VS. THE STATE (1985) 3 NWLR (Pt. 12) 236 @ 237; 241 paragraphs B, C & E.
Regarding the identity or part played by the Appellant, it was posited that there's no positive or direct evidence linking the Appellant to the crime or as to who inflicted the injuries that killed the deceased, and how they were inflicted. That neither was the deceased seen with the Appellant, nor was the body thereof recovered from the Appellant's room. That the evidence of PW1 & PW2 is conflicting in regard to the part played by the Appellant. Thus, the court is urged to disregard their evidence. See OREPOKAN VS. STATE (1994) 14 LRN 99 @ 103.
Further submitted, that the evidence simulated by PW2 that they knocked at (and the Appellant opened and stood by) the door, contradicts his statement to the police. That, the statement of PW2 (made to the police at the earliest opportunity) that they met the Appellant standing by the door of his parlour, was suggestive that they did not knock at (and the Appellant did not open) the door. See NWOSU VS. STATE (1986) 4 NWLR (Pt. 35) 348, 349 - 350.
Thus, it was contended, that the lower court was wrong to have relied on the conflicting evidence of PW1 & PW2 regarding the part played by Appellant in the (commission of) the offence. And that their evidence being circumstantial, ought to have the accuracy of mathematics. See MOHAMMED VS. STATE (2007) 153 LRCN 110 @ 112.
Again, the evidence of PW1 that the Appellant was shaking on being interrogated, had his clothes stained with blood, and one earring was found on him, while the deceased was found wearing one, was not contained in the statement which the PW1 made to the police at the earliest opportunity. Therefore, both the evidence and statement to the police (of PW1) are unreliable. See ONOBOGU VS. STATE ACLR 1 page 67 @ 68.
Allegedly, there is no nexus between the Appellant and the offence. See AZUMAH VS KING (1950) XIII WACA 88; KONO VS STATE (1987) 10 LRN 1 @ 12; UDO VS. STATE (1992) 2 NWLR (Pt.224) 471 @ 473.
It was equally submitted, that the charge indicated that the deceased was stabbed with a knife. But the medical evidence of PW5, accepted by the trial court, shows that the deceased died of stab wounds and a blunt object that fractured the skull. Thus, the evidence is violently at variance with the charge. The Appellant cannot be convicted as charged. See COP VS. ODUSANYA (1982) 2 NLR 28; AKINLEMI BOLA VS. COP (1976) 6 SC 205 @ 222; OYEBODE VS. TIV NA POLICE NMLR 165.
It was posited that the investigation of the case by the police or S.S.S. was improper, lopsided, slipshod, shaky and shoddy. See OFFOR VS. POLICE (1968) NMLR 73 @ 74.
Allegedly, the fact that the PW3 visited the scene of crime and recovered the body of the deceased without the accused person amounts to a failure of justice, and therefore fatal to the prosecution's case. See IKONO VS. STATE (1973) 5 SC 23 @ 245 LINES 26 - 31.
Equally posited, that the police or S.S.S. neither called nor obtained statements from the [alleged] vital witnesses - the landlord, neighbours and passers-by that rushed to the scene where the Appellant allegedly confessed he had killed the deceased. That, the failure to call and/or obtain statements from the said vital witnesses, is fatal to the prosecution's case.
The investigation into the case conducted by the police was allegedly inept. The prosecution's case is deficient of material particulars. Thus, it's incumbent on the court to discharge and acquit the Appellant. See KADA VS. STATE (1991) 6 LRCN 1879.
Regarding the confessions - Exhibits A, A1 & A2, the learned counsel submitted that they were either involuntarily made or not made by the Appellant as he stated in his defence. That, the said confessions were not properly proved, recorded or attested, thereby raising serious doubt as to whether the confessions were true. Thus, it would be unfair and injudicious to convict the Appellant on the basis of the alleged confessions, as the lower court did.
The said police officer, A.I. Amadin, who attested the Exhibits was not called as a witness. As such, the questions and answers in attestation form must be strictly proved and cannot be presumed. See OBUE VS. STATE (1976) 2 SC 151 @ 152 - 153; ALARAPE VS. STATE (2001) 84 LRCN 600 @ 605.
According to the learned counsel, for a conviction to be able to sustain a conviction, it must be voluntary, positive, direct, categorical, unequivocal and properly proved. Those ingredients are allegedly absent in this case. See GINA VS. STATE (1996) 37 LRCN 688; NWOCHUKWU VS. STATE (2002) 102 LRCN 2110.
Further submitted, that the mysterious gaps and loopholes in the alleged confessions of the Appellant are sufficient to cast serious doubts on the voluntary nature of the confessional statements. See ALARAPE VS. STATE (supra).
Conclusively, the court has been urged upon to allow the appeal, set aside the Judgment of the court below, discharge and acquit the Appellant.
On the other hand, at page 2 of the brief thereof, the Respondent's learned counsel has set out two issues for determination, viz:
(1) Whether having regard to the circumstances of this case and the evidence adduced by the prosecution, the Trial Judge was right in convicting the Appellant.
(2) Whether the confessional statement is admissible in evidence against the Appellant.
The issue No.1 is argued at pages 2-7 of the Respondent's brief.
From the outset, the cases of FRIDAY AIGUO REGHIAN VS. STATE (2004) 3 NWLR (Pt.860) 367 and IGEBELE VS. STATE (2006) 5 LRCN 30, were referred to regarding the ingredients of the offence of murder. It was submitted, that all the ingredients of murder were proved beyond reasonable doubt.
Regarding the 1st ingredient of the offence, it was submitted that the evidence on record before the court below shows that one Helen Aganmwonyi, a 20 week pregnant woman, died on or about 06/9/06.
On the second ingredient, it was submitted that the deceased died as a result of the act of the Appellant. That there is a strong, positive and circumstantial link between the deceased and the act of the Appellant. That the circumstantial evidence before the court revealed that the death of the deceased resulted from the singular act of the Appellant. Both PW1 & PW2 testified that the Appellant told them, point black, that he had killed the deceased. He tried to escape but was however caught. That the PW3 also told the court that the Appellant, on being questioned by him, informally admitted killing the deceased. See the evidence of PW1 at page 38, lines 14 - 24; PW2, page 40 lines 29 - 33.
According to the learned counsel, the Appellant's admissions made spontaneously and voluntarily, is relevant and an oral confession which is admissible and an exception to the hearsay rule. See AKINMIJU VS. STATE (2000) 4 SCNJ 179 @ 184 J.
Therefore, the Appellant having resiled from exhibits A, A1 & A2, the lower court rightly admitted them, but considered the weight to be attached thereto. See pages 92, lines 3 - 25; 93 lines 1 - 12. The court is urged to uphold the said findings of the court below.
Further submitted, that the evidence of PW5 (a medical practitioner and Police Force's Pathologist) is that the injuries found on the deceased were consistent with a stab wound, and they were deliberately inflicted. Thus, it corroborates the oral confession and exhibits A, A1 & A2 on record.
It's contended that the circumstantial evidence before the court is unequivocal, positive and point irresistibly to the Appellant. The court is urged to so hold, and accordingly uphold the conviction.
On issue No.2, it was submitted that exhibits A, A1 & A2 were rightly admitted as exhibits by the lower court. See Section 28(2) of the Evidence Act. In view of the objection to the confessional statements, the lower court ordered a trial-within-trial. See IGAGO VS. THE STATE (2001) 2 ACLR 104. The Appellant entered his defence asserting that he did not make any statement. That, what he said was not what the police wrote. But under Section 28 of the Evidence Act, an accused person can be convicted on his confession once it's properly proved and admitted in evidence. See EGBOGHONOME VS. THE STATE (supra), SILAS IKP VS. STATE (supra).
Conclusively, the court is urged to dismiss this appeal and affirm the Judgment of the lower court.
I have critically, albeit dispassionately, considered the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel contained in the respective briefs of argument thereof vis-a-vis the record of appeal, as a whole. I have deemed it expedient to adopt the sole issue raised in the Appellant's brief for the determination of the appeal.
RESOLUTION OF THE SOLE ISSUE:
As alluded to above, the sole issue formulated in the Appellant's brief, raises the fundamental question of whether or not from the totality of the evidence at the trial, the prosecution has proved its case beyond reasonable doubt against the Appellant, as required by law.
Instructively, it is a trite fundamental principle, that for a charge of murder, as in the instant case, under Section 319(1) of the Criminal Code CAP. 48 Volume 11, Laws of the defunct Bendel State of Nigeria, 1976 (applicable to Edo State) to be established against the Appellant, the prosecution must prove, beyond reasonable doubt, the following vital ingredients:
(a) That the deceased died.
(b) That the death of the deceased resulted from the act of the Appellant.
(c) That the Appellant caused the death of the deceased intentionally, with the knowledge that death or grievous bodily harm was its probable consequence. See FRIDAY AIGUOREGHIAN VS. STATE (2004) 3 NWLR (Pt. 860) 367; IGEBELE VS. STATE (2006) 5 LRCN 30; ONAH VS. STATE (1985) 3 NWLR (Pt.12) 230 @ 241 paragraphs B - E.
With particular regard to the first ingredient of the offence, the fact that one Helen Aganmwonyi died on or about 06/09/2006, is not in doubt, at all. At pages 89 - 90 of the Record, the lower court was recorded to have rightly found thus:
From the evidence of the five prosecution witnesses, there is sufficient evidence that the deceased died on or about 6/9/2006. The cause of death as given in evidence by the doctor PW5 is from stab wounds and fractured skull by a blunt object...
In this case the deceased body was not recovered on the 6/9/2006 when she was last seen but the following day. The medical evidence cannot determine who caused the injuries that led to the death of the deceased.
Not surprisingly, even the Appellant's learned counsel has conceded to that fact, thus:
"In this case the prosecution called five witnesses.
The prosecution has been able to proved (sic) that the deceased Helen Aganmwonyi is dead." See page 73, lines 19 - 21 of the Record.
Having due regard to the evidence on the records, I think the above finding of the court below is cogent and most unassailable. Thus, it's rather obvious, the fact that the deceased person in question died has been proved beyond reasonable doubt by the prosecution.
The second ingredient of the charge is regarding whether or not the death of the deceased in the person of Helen Aganmwonyi, was as a result of the act of the Appellant.
It is a trite fundamental principle, that the prosecution has the onerous duty (burden) to prove beyond reasonable doubt that the accused person (Appellant) had caused the death of the deceased person. That's to say, the cause of death of the deceased must somehow be linked to the accused person (Appellant). See UDOSEN VS. THE STATE (2007) 4 NWLR (Pt. 1023) 125 @ 142; AZUMAH VS. KING (1950) XIII WACA 88 per Smith Ag. CJ; IKONO VS. STATE (1987) 1 QLRN 1 @ 12 per Nnamani; JSC (of blessed memory) thus:
"An accused person should not be put on his trial if there is no link between him and that offence."
THE VALIDITY OF ALLEGED CONFESSIONAL STATEMENTS OF THE APPELLANT (EXHIBITS A, A1 & A2):
On 25/10/07, in the course of the testimony of the 3rd prosecution witness (PW3), in the person of police inspector Godday Iyamu, the prosecution's attempt to tender in evidence the statement of the Appellant at the trial was vehemently objected to by the defence counsel, Bello-Osagie Esq., on the ground that
"the statement was obtained under duress. He was forced to signed (sic) the statement." See page 43 of the Record.
Not unexpectedly, the lower court ordered a mini trial, notoriously known as 'Trial Within Trial', in accordance with the law. All in all, four witnesses testified for the prosecution in the Trial Within Trial (TWT). The Appellant and two other witnesses, Friday Eguavoen and Dr. Chubuzor Uzvegbe testified for the defence in the TWT. However, in the course of the testimony thereof, the Appellant denied ever making any statement to the police. His evidence is to the effect, inter alia, thus:
[The] police arrested me along with Monday and Dickson Inomwan ... They were asking me to say I killed Helen but I denied killing her that I had not seen her for over six months now ...I was carried from the cell. In that station, they have where they beat and hang people behind the station in a room. I was taken there and asked to say the truth but I still maintained I did not know what happened. They used the leg of chair to beat both of us and latter brought us to the cell. After the torture they said I should say I killed the deceased but I maintained that I did not. I did not make any statement. What I said to the police is not what he wrote.
Not surprisingly, the lower court decided to abort (terminate) the Trial Within Trial at that material stage of the trial for the following reason -
COURT: - In view of the assertion of the accused that he did not make any statement to the police and that the statement written by the police is not his statement, the entire exercise of a trial within trial is unnecessary and it is terminated.... Case is adjourned to 7/2/08 for hearing of the main case. See pages 53-54 of the Record.
Inarguably, the procedure notoriously known as Trial-Within-Trial is not novel to the Nigerian Criminal Justice system. Indeed, the requirement of a trial-within-trial, with a view to determining the voluntariness or otherwise of a confession of an accused person, has been a critically controversial feature of the Nigerian criminal justice system. See OKAROH VS. STATE (1990) ANLR 130 @ 137.
I think, it was in OKAROH VS. STATE (supra), that the Court of Appeal was recorded to have castigated the procedure of trial-within-trial on the ground that there was no enabling statute either in the Evidence Act or the Criminal Procedure Act (Law) to support it. And that with the ultimate abolition of the jury system in criminal trials in Nigeria, the trial-within-trial procedure had allegedly become rather spent or superfluous. However, the Supreme Court did not take kindly to that notion. In a plethora of authorities, the Apex Court, steadfastly stood its ground and reiterated that the trial within-trial procedure still remains to be a very formidable feature of the Nigerian Criminal Procedure System. In one of such authorities, the Supreme Court authoritatively held, thus:
Suffice it for me to say firstly, that I share the views of the learned Justices of the Court of Appeal as to the problems surrounding this procedure but secondly, that procedure is now very much part of our law that it cannot be overlooked or decreed into illegality by the Court of Appeal. The learned Justices of the Court of Appeal were, with respect, very wrong to have done so in the fail of decisions of this Court which have made this procedure mandatory, and part of the law. See GBADAMOSI VS. STATE (1992) NWLR (Pt. 256) 465 per Uche Omo, JSC @ 480.
Most instructively, it is trite, that in any given criminal trial, where a confessional statement of an accused person is sought to be tendered by the prosecution, the accused person has the inalienable right to object to the admissibility of the confession in either of two ways. First, the accused person may retract (resile from) or deny ever making such a confession. Second, the accused person may opt to admit having made or signed the statement but claim, however, that he did not make and/or sign it (the confessional statement) voluntarily.
Invariably, the appropriate procedure to be adopted by the trial court to determine the admissibility or otherwise of the confessional statement of the accused person entirely depends upon the nature of the objection raised by the defence. Where the accused person denies ever making and or signing the confessional statement (as in the instant case), the confession is still admissible in evidence against the accused person. However, in the circumstance, the trial court must at the conclusion of the trial determine the veracity and probative value of the said confession. This principle of law was authoritatively reiterated by the Supreme Court in a plethora of authorities, including the case of IKPASA VS. THE STATE, to the effect thus:
It is a well established practice in this Country that where on the production of a confession it is challenged on the ground that an accused did not make it at all the question of whether he made it or not is a matter to be decided at the conclusion of the trial by the learned trial judge himself. Whatever objection may be made by counsel in such circumstances does not affect the admissibility of the statement and therefore it should be admitted in evidence as the issue of voluntariness or otherwise of the statement does not arise for consideration and decision. See (1981) NSCC 300 per UDO UDOMA JSC (of blessed memory) @ 309. See also OGUNYE VS. STATE (1999) NWLR (Pt.604) 548 @ 570.
I appreciate the fact that the above principle, aptly enunciated in IKPASA VS. THE STATE (supra), squarely applies to the instant case. Thus, in view of the Appellant's outright denial that he "did not make any statement", and that what he actually "said to the police is not what he wrote." I hereby hold that the court below was right in coming to the abrupt conclusion at that material time in question, to the effect that
In view of the assertion of the accused that he did not make any statement to the police and that the statement written by the police is not his statement, the entire exercise of a trial within trial is unnecessary and it is hereby terminated.
...Case is adjourned to 7/2/08 for hearing of the main case.
And I so hold.
At pages 92 to 94 of the Record, the lower court was recorded to have found, inter alia, as follows-
A careful perusal of the statements of the accused person made to the police on 6/9/2006 and 8/9/2006 and comparing his signatures on Exhibits A3 and D1, I am satisfied that he signed this (sic) statements exhibits A, and A2, I find that the accused person had the accused person had the opportunity to commit the offence. The accused in his evidence stated that his deceased cousin/lover (though he tried to stop the amorous relationship) had been visiting his house...
When all facts are put together, it is not difficult to find that the confession is true notwithstanding the accused resiling from it. The statements are free flowing and I hold that they are made by the accused person.
I think, I cannot agree more with the above cogent, and rather unassailable, findings of the court below. There is every cogent reason for me to believe that the above findings of the lower court, to the effect that the said confessional statements (Exhibits A, A1 & A2) were made by the Appellant, are duly supported by the totality of the evidence on the records. And I so hold.
By virtue of the provisions of Section 28 of the Evidence Act (supra), an accused person can be convicted solely upon the confession thereof, provided it's properly admitted and proved in evidence. Thus, a free and voluntary confession of guilt, if direct, positive and properly established, can undoubtedly sustain a conviction, in as long as the trial court is duly satisfied that the confession is indeed truthful. See SILAS IKPO VS. STATE (1995) 9 NWLR (Pt.421) 540, wherein the Supreme Court aptly held thus:
The law is clear that a free and voluntary confession of guilt, whether judicial or extra-judicial, if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the court is satisfied with the truth of such a confession. In the instant case, it cannot be disputed from the tenor of Exhibits F, F2 and G, G1 that they are confessional statements in which both appellants confessed to having killed the deceased, Stephen Biogbo and dumping his dead body into the river at Osochi Village. Per Iguh, JSC @ 554, paragraphs D - E.
In the instant case, the lower court duly put the truth of the confessional statements (Exhibits A, A1 & A2) in question to test, at pages 91 - 93 of the Record. Most particularly, at page 92 of the Record, the lower court alluded to the various requirements for establishing a confessional statement as enunciated in the case of R. VS. KANU (1952) 14 WACA 30.
As rightly found by the lower court at page 92, lines 18 - 23, of the Record, a careful perusal of the said confessional statements of the Appellant (Exhibits A1, A1 & A2) vis-a-vis Exhibits A3 & D1 would make the court to believe that the Appellant did indeed sign the exhibits, and that he had the opportunity to commit the offence.
What's more, the Appellant had told the court below in his defence that the deceased (who was his cousin and lover) had been visiting his house. According to the Appellant (page 67 of Record):
I know Helen Inomwan now Aganmwonyi as my cousin, as her mother and my later mother were sister of full blood. Along the line, Helen and I became lovers to the knowledge of her mother when I grew up I then told Helen that our love affairs was not good as it is a sin. I told her mother the same thing. The mother asked me to continue the relationship, but I told her no.
The Appellant had to leave the village for Benin City. But the deceased traced him to his house in Benin and said her mother sent her to him. He then told her to leave his house. He reiterated under cross-examination, at page 70 of the Record, thus:
It is a settled principle, that although a confessional statement, once properly proved and admitted in evidence can be sufficient to warrant the conviction of the accused person, yet it's desirable to have extraneous to the confession some corroborative evidence, no matter how slight, of circumstances, that makes it possible that it is true and correct. See IKPO VS. STATE (supra) @ 554 paragraphs E - F, where in the Supreme Court, per Iguh, JSC, held thus:
It is desirable to have outside the accused person's confession, some corroborative evidence, no matter how slight of circumstances which make it probable that the confession is true and correct as the courts are not generally disposed to act on a confession without testing the truth thereof.
See also ONOCHIE VS. REPUBLIC (1966) NMLR 307.
I am not unmindful of the submission of the Appellant's learned counsel, at paragraphs 6.4 - 6.4.4 pages 14 - 15 of the brief thereof, regarding the attestation or otherwise of the Exhibits A, A1 & A2 by attesting (senior) police officer. I think, there is a need to, at this point in time, reiterate the well settled principle, to the effect thus:
It is not the law that a true and voluntary confessional statement not read over or confirmed before a superior police officer ceases ipso facto to be true or voluntary confessional statement or that it is thereby rendered weightless or inadmissible.
See IKPO VS. STATE (supra) @ 554 paragraphs B - C.
In the instant case, its rather obvious that Exhibit A was duly attested to by a superior police officer, a chief superintendent of police, vide Exhibit B1c, on 07/9/06. Under cross-examination, the PW3 testified to the effect, inter alia, thus:
The Superior officer who attested to the statement (Exhibit A) is Mr. V.I. Amadin C.S.P; the D.P.O. Ugbekun police station. I arrested the accused person at about 9pm. He finished making his statement ground 11pm and he was put in the cell.
Thus, in view of the above credible evidence of the PW3 under cross examination by the Appellant's defence counsel, the fact that the attestation senior police officer Mr. V.I. Amadin C.S.P (DPO) did not sign the attestation form contemporaneously with the Appellant is rather immaterial. And I so hold.
In Exhibit A, dated 06/09/06, the Appellant stated, inter alia, thus:
...I know Helen I cannot remember her father's name, her mother is born next to my mother they are born of the same father and mother. Helen mother frustrated my life through witchcraft, she was forcing me to marry Helen. I told her I cannot do that, Helen do come to my house to cause trouble. I told her I am married, since I married my wife if I want to have sex with her my organ will not rise as a result my wife have no child for me till now, I married her since the year 2005, when I complained to my mother and some of my brothers they called Helen to asked her the relationship between two of us, she told them that it was ordinary play she was playing with me that was before I married my wife, each time my wife asked me what was wrong I found it difficult to explain to her three days ago on 4/9/2006 I and my wife also quarrel over not performance I then told my wife that I and Helen will go and tell God what happen and she did not talk, today 6/9/2006 around 7.00am Helen called me on phone that her husband was sick, I asked her what happens she said the husband had an accident and injured his leg I then told her to come and see me later, around something after 12pm Helen came to my house, I then told her that my penis is not working and that it was caused by her mother this time my wife was not at home from there I told her that both of us is going to heaven now before she talk I took up a knife and stabbed her in her neck and she fell down, these happened in my parlour as she was about to shout I rushed her and closed her mouth before she died, from there I locked up the door and went to called my friend Okakpor driving 504 I and Okakpo carried the dead body inside his vehicle and he drove away I told Okakpo what happens that I killed her, Okakpo then drove away with the dead body together with one Doctor working with Igbama Clinic off Saint Saviour road as both of them drove away the brothers and some of Helen Sisters came and met blood in my parlour they asked me what about Helen I explained to them what happens from there they call police as at now I don't know where my friend Okakpo and Doctor took her body to before I was arrested by the police, I throw away the knife I use to kill to the next compound to our own that is all. (underlining added).
In addition to Exhibit A, the Appellant made second statement to the police on 08/9/06, which was recorded by the PW4 Napoleon Awotomuwe police Sgt. No.149446. In the said second statement, admitted as Exhibit A1, the Appellant stated, inter alia, thus:
I know Helen Agonmwonyi who is the deceased in this case. Helen is my sister. I don't know her husband as they were recently married. I am aware that her husband is the complainant in this case. On 6/9/2006 I murdered Helen in my house. The reason why both of us were making love even though we are related. (Then on 6/9/2006 when she came to my house). As we were making love continuously her mother became aware. One day I went to meet her mother Omosede and told her that I and Helen have been making love secretly. This happened in year 2003. Then her mother told me that I should marry Helen but I refused because we are related. This led to my separation from Helen and we were no longer making love since 2003. Later I called Helen and told her that we should separate and look for other companions. That was why she married her husband who is the complainant of this case and I married my wife Patience. On 6/9/2005 at about 7.30am she called me to wait for her at home and that she would come to see me when she would return from the place where they were treating her husband but I told her that I was still at work. Then I gave her 6pm in the evening to come. At about that time she came and we greeted. So I asked after her husband's condition and she told me that he was getting better. She still brought that discussion that we should continue to make love and that her husband's house is just to manage otherwise she was not satisfied with her marriage partner but shunned her off
not to ever repeat that word again. Then I told her that I am not particularly happy with her because since last year when I got married I haven't been able to impregnate my wife. Then she told me that if we don't continue to make love, I will not be able to have a child from my wife. Then I grew annoyed and took a knife and stabbed her on her neck then she fell down and started bleeding. I stabbed her in my parlour. As she was bleeding, I took my phone and called one of my friend named Friday Eguavon who is a Doctor to come and help me to rescue me. It was already getting dark as the time was around 7pm. When Eguavon came he discovered that the problem was so serious. Then he asked me to go and get a vehicle for the conveyance of the girl to a certain Hospital at Omomoh Street. So I ran to meet one Okakpo whose surname I don't know but he deals on palm wine along Isogban Street very close to my house and explained the whole thing to him. Then he brought his 505 Saloon car to my house where the girl was lying. As soon as we got there I, the Doctor and the owner of the 505 carried the girl into the car. Immediately we put her in the vehicle I went inside my house, took money and was about to enter the car when Helen's relation and her husband came into my compound. The driver and the Doctor left the scene immediately on sighting Helen's relatives and husband. The driver drove the vehicle and the girl away.
Then her husband and brothers came to meet me and on seeing the bucket of blood in which (her blood was being) I was squeezing the blood of Helen from her clothes, they hold me and demanded for the whereabouts of Helen. Then I told them that I stabbed her and she had been taken to the Hospital. Thereafter, they brought policemen from Ugbekun and I was arrested. I made a statement to the police at Ugbekun but I was forced to say some of those things I did not intend to say. This statement I am making at the State CID is the whole truth about the murder of Helen. The policemen searched my house but they could not recover the knife which I used to stab her, I threw the knife inside the bush of one private School near my house. I don't know the name of the private School. Policemen from Ugbekun went with me and searched the bush where I threw the knife but they could not find it. ...I threw the knife away because I had committed crime with it. ... It was at Ugbekun Police Station that the policemen told me that Helen eventually died from the injuries she sustained as a result of the stab which I gave to her. As Helen was still troubling me to continue to make love with her I did not tell any member of my family but I constantly refused her advances. In our Bini tradition if relations commit incest, sacrifice would be made for the girl to appease the ancestors. Even my wife was suspicious of my movement with Helen as she was telling me that Helen was not the only sister whom I have and that our movement is suspicious. I can take the police to the house and the store of Okakpor at Isogbon street. I know that to kill somebody is a very serious criminal offence in Nigeria before I did it. (Underlining added).
On 09/09/06, consequent upon Exhibit A1 (made on 08/9/06), the Appellant again made a third statement, admitted as Exhibit A2, in the said Exhibit A2, the Appellant stated, inter alia, thus:
Further to my statement of 8/9/2006, I wish to add that Helen came to my house about 3pm and not 6pm as I stated earlier. When she came to my house she came inside my parlour and sat down then I closed the door but I did not lock it with key. She always come to my house when she knew that my wife had gone to the market. As we were inside the house we were now discussion the issue of the love making between us which I said should be stopped. Although Helen i.e. the deceased was still coming to trouble me that we should continue making love, I did not report her to any member of our family... It was the deceased mother who was supposed to report to the family which she refused to do instead she suggested that I should marry the deceased. I did not know whether she was pregnant or not but I observed that she was putting on weight a little bit. We were not arguing over the issues of pregnancy inside my house it was the issue of love-making between us that should be stopped that we were discussing. I cannot remember how many times I stabbed her before she died but I know that I stabled her several times. I also used an iron to hit her head. The iron rod may be found in my parlour. I am not responsible for the pregnancy. The 505 Saloon car which Okakpor used in the conveyance of the corpse belongs to Okakpor but I don't know where the driver of the vehicle took the deceased. Which I was beating the deceased, nobody was present and nobody intervened. I did the killing of the deceased alone nobody assisted me in killing her. After stabbing the deceased it did not take long before I called the Doctor i.e. Friday Eguavon to come and rescue her. (Underlining added).
The lower court in its own wisdom compared the signatures of the Appellant on Exhibits A3 and D1 with those in Exhibits A1 & A2, and thereby satisfied itself that the Appellant signed Exhibits A1 & A2. Having critically, albeit dispassionately, perused the said exhibits, I am unable to disagree with the unassailable findings of the lower court, to the effect that the confessional statements in question were undoubtedly made by the Appellant voluntarily. The fact that he's denied ever making any statement to the police, notwithstanding. I have no doubt in my mind, that even on the basis of Exhibits A, A1 & A2 alone, there's every cogent reason for the lower court to arrive at the conclusion, as it did, to hold that the Appellant was responsible for the death of the deceased person, in the person of Helen Aganmwonyi. As rightly found by the court below
When all facts are put together, it is not difficult to find that the confession is true notwithstanding the accused resiling from it. The statements are free flowing and I hold that they are made by the accused person. Now it is true that it was the accused person who inflicted on the injuries on the deceased...
The PW1 was one Monday Inomwan, a junior brother to the deceased person - Helen Aganmwonyi. He told the court that on 06/9/2006 at about 6 pm he closed from work and went to his mother's house. Later his sister's husband and Stella (one of his sisters) came from the market. The said Stella told him that Helen was not back from the Accused's (Appellant's) house. Then PW1 used a phone to call Helen's phone number. According to PW1:
Another person answered telling me Helen was inside the Church that I should call back in 45 minutes time. Afterwards, i.e. after 45 minutes I called again and same voice asked me to again call later. When I tried later her phone was switched off.
The PW1 called the Appellant's number to which the Appellant answered that he was not at home. Then at 7pm, the PW1, Stella and the deceased's husband went to Appellant's house, and knocked at the door. The Appellant opened and stood by the door entrance - "door mouth".
PWI- narrated further that
I asked the accused for Helen that left for his house. He could not give me any reasonable answer. He started shaking and saying "Helen" "Helen" and then he took to his heels. I ran after him and held him. I kept asking him "where is Helen?" He told me he has killed her. We dragged the accused person into his room. In the room we saw blood everywhere. In a bucket in the room we found blood. We sent for the police. Police came and took accused person to the station with the bucket of blood.
On 07/9/06, the next day of the incident, the PW1 went to the police station. He followed the Investigation Police Officer to a place along St. Saviour Road where they found the corpse of Helen laying along the road. The police took the corpse to the station and then to the mortuary. Helen's corpse had only one earring. The other earring was found in the pocket of the Appellant and kept with the police.
Under cross-examination by Bello-Osagie Esq, the PW1 said he made and signed a statement recorded by the police. He did not see Helen alive or dead in the Appellant's room. Helen's corpse was found close to "the Church Winners chapel". He told the court that the 1st Accused (Appellant) was his first cousin. There was no misunderstanding involving Helen and Appellant before 06/9/06. He was not aware that the Appellant was having a love affair with Helen. He did not find the earring in Appellant's pocket; it was the police that did. When PW1 called the Appellant he told him he was not at home. He did not hit the Appellant. It was not the beating that led to the blood found in Appellant's room.
The PW2 was Manson Aganmwonyi, an Aluminium technician. He told the court that the deceased was his wife. He knew the PW1, Helen's younger brother. He said he was in court when PW1 testified, because he did not hear the Registrar's announcement for other witnesses to go out of court.
He stated that on 06/9/06, he took his wife to the Hospital for medical checkup - to submit an X-ray required by the doctor. As Helen alighted from his motorcycle, her phone rang. Then PW1 asked her of the caller and she told him it was the Appellant. That when they were about leaving the hospital the Appellant called Helen again, and she told him. PW2 left the hospital and dropped Helen at the market where she traded. According to PW2, the deceased
"told me she was going to accused place and she did on foot."
At about 6.p.m on the said 06/9/06, the PW1 went to his mother in-law's house where he was told by PW1 and Stella that Helen did not return from Appellant's house. Then PW1 called the Appellant on the phone who replied that he was not at home. PW1 then phoned Helen's number and a voice replied that his wife had left with Appellant to see a pastor. Then PW1, PW2 and Stella went to the Appellant's house, and knocked on the door. The Appellant opened the door, stood by the entrance to his room. When asked about Helen, Appellant started shivering, and could not give a tangible answer. He took flight but was pursued and caught by PW1. They raised an alarm. The landlord and passersby all came. According to the PW2, "the accused confessed that he had killed my wife." The Appellant was dragged into his room where the PW2 said they saw blood stains all over, and that - "There was a plastic bucket with blood. The police was alerted. I made statement to the police."
Under cross-examination by Bello Osagie Esq. the PW2 stated that he had done the introduction and paid Helen's dowry in early 2006. He had never known the Appellant. While at the clinic, the Appellant called Helen twice and she told him that the caller was the Appellant, her Cousin. He did not take her to the Appellant's house. He dropped her at the market. He did not then know Appellant's house. As a normal routine, on 06/9/06 in the evening, PW2 went to his mother in-law's house to pick his wife, where Stella her junior sister told him Helen went to Appellant's house. On getting to Appellant's house, he did not find his wife there. He denied that they fought and injured the Appellant. The blood in the Appellant's room was not from injuries the Appellant sustained.
The PW3 was Police Inspector Godday Iyamu. He was attached to Police Station Ugbekun, Benin City. On 06/9/06, PW3 was on duty at the said Ugbekun Police Station when a distress call was received from State Police Headquarters, control room asking them to go to No.1, Enobakhare Road, Off St. Saviour Road, Benin city to find out what happened there. PW3 immediately left with a patrol team, and on getting to Enobakhare Street junction, he saw a crowd at about 8.45 p.m. He proceeded to house No.1, entered the room and saw the Appellant sitting down on a chair while PW1 & PW2 were standing. In front of the Appellant, were a rubber bucket with blood inside and a cloth soaked with blood. He was told by PW2 that they met the Appellant cleaning blood. The narration of the PW3 continues thus:
I then asked the accused person for the where about of the PW2's wife, he said he has killed her. I asked him for the corpse and he said his friend one doctor and one man using 504 Car help to carry the corpse away, that he did not know where they took the corpse to.
The PW3 then immediately arrested the Appellant, removed the bucket of blood and the cloth soaked with blood and left to the police station along with PW1 & PW2. At the police station, entry of murder charge was made and referred to him for investigation. He obtained the statements of PW1 & PW2, and cautioned the Appellant in English, who volunteered a statement which the PW3 recorded, read over to the Appellant who signed same. The PW3 equally signed that statement as the recorder thereof. It was this statement that was tendered by the prosecution without any objection by the defence on 28/02/08, and accordingly admitted by the court below as Exhibit A. (Page 55 Record).
Continuing his testimony, the PW3 stated that he searched the Appellant in the charge room and recovered a female earring from him. That the Appellant told him that the earring belongs to the deceased. Later, in the early hours of 07/9/06, the Appellant led the PW3 and others to the house of the 'friend' the Appellant said he took the corpse of the deceased away. At the house they were told that the man had not come home since the previous day. The Appellant then led them to the house of his friend's 2nd wife at Akpakpava Road where one Friday Eguaveon (aka doctor) was arrested. However, they could not trace the 'Kwale' man that threw away the corpse. The Appellant took them to the place where he threw away the knife he used in killing the deceased. They searched but could not find the knife.
Later the PW3 charged Friday Eguaveon for the "offence of misconduct with regards to the corpse." He equally took the Appellant before DPO Mr. V.I. Amadin CSP who attested the Appellant's confessional statement. That attestation form was admitted as Exhibit B. PW3 said he later got an information that a female corpse was found by the fence of Winner's Church Off St. Saviour Road Benin. He immediately proceeded to the scene with PW1 who identified the corpse as that of his sister. The corpse was photographed at the scene and removed to Akugbe mortuary, prepared and served by the coroners on the police doctor. Thereafter, the accused, the exhibits and case file were transferred to the State CID that same day.
Under cross-examination, by Bello - Osagie Esq., the PW3 reiterated that on getting to the house of the Appellant, they met him sitting down and a rubber bucket containing blood was in front of him. He did not meet the Appellant cleaning the floor. There were many people in the area and in Appellant's room then. PW3 did not take the statement of the landlord or any person in the area. That it was the day he reached and arrested the Appellant that he found the earring (Exhibit B). He did not conduct search in the Appellant's house.
The PW4 was one Napoleon Awotonivwe, a police sergeant No.149446 attached to Criminal Investigation Department State Police Headquarters, Benin City. He told the court that on 07/9/06 while on duty, the case of murder of one Helen Aganmwonyi (deceased) was transferred from Ugbekun Police Division to State CID, and he was detailed to investigate further. He then took over the case file, one earring, one orange shirt, one rug and the Appellant and Friday Eguaveon. However, Friday Eguavoen was not charged by the DPP. He cautioned and charged the Appellant with the offence of conspiracy and murder, read it over thereto. He signed the said statement.
However, after the PW4 identified the said statement, Bello-Osagie objected to it being tendered and admitted thus:
"Bello-Osagie: I object as the accused said he did not make any statement to the police"
Consequent upon the said objection, the court below, without much ado, ruled, thus:
"COURT: The statement of accused of 8/9/06 is admitted in evidence as exhibit and marked as exhibit A1."
In continuation of the testimony thereof, the PW4 identified the earring, the shirt and rug recovered at the scene, which were admitted as exhibits C, C1 & C2, respectively. According to the PW4, exhibit C belongs to the deceased, while Exhibit C2 belongs to the accused. That a medical autopsy was performed on the deceased, and a report issued by the medical doctor. That the doctor drew PW4's attention to a blunt head injury on the deceased, which made PW4 to ask for a statement from the Appellant. Exhibit A2 was that statement, dated 09/9/06.
Under cross-examination by Bello-Osagie Esq., the PW4 told the court that he did not recover anything incriminating from the scene. He did not take statements from the landlord and neighbours. There was nobody to talk to. And the doors were locked. He did not know where the corpse of the deceased was found. That it was the PW3 who infact recovered the corpse, which he saw in the mortuary of Akugbe Medical Centre. Exhibit C was not the earring found on the deceased. According to the PW4
"Accused had no mark of injury when he was brought to State CID. We took photographs of the deceased."
The last prosecution witness was PW5 - Dr. Wilson Akhiwu, an Asst. Commissioner of police. He was the Police Forces pathologist in charge of medical services, Edo state Police Command. He told the court that on 08/9/06, he did an autopsy on the body of Helen Aganmwonyi, at Akugbe Hospital, Upper Sakponba Area, Benin City. The deceased was identified by PW1. In summary, the PW5's finding were that (i) the body of the deceased was found to be apparently well nourished; (ii) of middle aged, African (iii) with external features suggesting severe blood loss from the body; (iv) Two injuries on the lower jaw, one to the left and right; (v) there were features suggesting that the deceased was pregnant, and had swelling on both feet; (vi) there was a stab wound on the mid anterior neck measuring 1cm in length; (vii) A laceration on the vault of the scalp, et al. The PW5 conclusively added, thus:
I attributed the death to the stab wounds and blunt injury which fractured the skull and led to the intracranial bleeding. The probable date of death of the deceased was, 6/9/06. The injuries found on the deceased could not have been self inflicted."
Under cross-examination by Bello-Osagie Esq., the PW5 stated that
"This was not the first autopsy I have performed. Within the head and neck region there were four injuries. There were deliberate injuries I saw not by accident."
The PW5, however, told the court that he could not do the matching of the sample of blood from the deceased, as it could require forensic laboratory tests in Lagos and D.N.A. outside the country, for which no funds were available.
With the prosecution's case closed, the Appellant testified in his own defence on 26/3/09. His testimony is contained at pages 67 -71 of the Record. In a nutshell, the Appellant stated that he lives at No.1 Nosakhare Street, off St. Saviour Road, Benin City. He's a commercial bike rider (okadaman). He denied murdering the deceased, Helen Aganmwonyi. The deceased was his cousin; as his mother and Helen's mother were sisters of full blood. At the age of 10, he lost his mother. He started living with Helen's mother since then. He and Helen became lovers to the knowledge of the latter's mother. On 06/9/06, when he returned from work, at 6 pm, the PW1 & PW2 came to his house, entered his inner room, and met him in the parlour. When he asked them what was amiss, they said Helen told them she was coming to his house. He told them he did not see her. They started beating him. Later the police came and found him sitting down with his body wounded and full of his blood. The police searched his room but found nothing. Then the police arrested him with Monday Inowman and took them to the police station. He was tied and locked up in the cell. He denied that Helen came to him. He was asked to agree that he killed Helen, but he refused. He also stated thus:
"I did not agree to killing Helen. Where the police took to answer questions, they have weapons like cutlass, leg of chair, candle there. They lit the candle and used the flame to burn my right hand."
He was later taken to the State CID where he was again interrogated by the IPO. He was taken to where "suspects are tied like goats, and a rod is passed through them and they hung up" and that
"The IPO tried to force me to agree that I killed my sister Helen but I denied."
He denied ever signing Exhibits A, A1, A2 & B. He also denied that the PW1 & PW2 met him mopping blood in his parlour. No trouser or bucket with blood stains was recovered from his room. He did not go to Winners Street (with the IPO) where Helen's body was recovered. He denied telling the police that the knife he used in killing the deceased was thrown into the bush. He did not see the corpse of the deceased. He was not treated for the injuries he sustained as a result of the beating by the police. He said he did not know anything about Exhibit 3 i.e. the Observer Newspaper. He neither killed nor knew the person that killed the deceased. He denied making statement to the police at the State CID, Benin City.
Under cross examination by the prosecution counsel, the Appellant stated, inter alia, thus:
I saw Helen Aganmwonyi last in 2006 in February in my former house...Helen did not know my new place before she died. On 6/9/06 I did not receive a phone call from Monday Inomwan. I did not phone Helen on 6/9/06. She did not also phone me ... Helen and I were lovers and I had my wife. Dick ... I had quarrel with Dickson and Monody Inomwan before the 6/9/06. This was because I stopped my love affair with Helen. I was running from them before the 6/9/06.
The Appellant said that he was never beaten by Dickson Monday and Stella Inomwan before the said 06/9/06. Apart from denying signing Exhibits A1 & A2, the Appellant equally stated that
On 6/9/06, PW1 and PW2 did not meet me moping blood from my parlour ... There was no trouser stained with blood recovered from room. No bucket with blood stain was recovered from my room ...I do not know who kill her... I am not here to tell lies.
Having amply considered the totality of the evidence adduced at the trial, it's my firm view that there is a positive, strong and circumstantial evidence to the effect that the death of Helen Aganmwonyi, the deceased person in question, had resulted from the act of the Appellant. As extensively alluded to above, both the PW1 and PW2 have testified at the trial, to the effect that the Appellant told them when they visited his house on 06/9/06, that he had killed the deceased. As narrated by both PW1 & PW2 in their respective testimonies, the Appellant "took a flight" trying to escape. But the PW2 pursued and caught him.
According to the PW1 at page 38 lines 14-24
...I asked the accused for Helen that left for his house. He could not give any reasonable answer. He started shaking and saying "Helen", "Helen" and then took to his heels. I ran after him and held him - I kept asking him "where is Helen". He told me he has killed her. We started shouting and a crowd gathered. We dragged the accused person into his room. In the room we saw, blood everywhere. In a bucket in the room, we found blood. We sent for police. Police came and took the accused person to the station with the bucket of blood.
Equally corroborating the evidence of the PW1, the PW2 stated at page 40 lines 29 - 30 of the Record thus:
I specifically accused him for my wife that he called on phone at about 12 noon and asked him to meet him. Accused started shivering. He could not give a tangible answer. He took a flight and PW1 pursued him and caught hold of him. We dragged him to the corridor outside. We raised an alarm and accused confessed that he had killed my wife. We dragged to his room where we saw blood stains all over. There was a plastic bucket with blood. The police was alerted.
Equally corroborating the evidence of PW1 & PW2, the PW3 inspector Goddy Iyamu, the I.P.O. testified at page 42 lines 33 - 34 of the Record thus:
I then asked the accused person for the where about of the PW2's wife, he said he has killed her. I asked him for the corpse and he said his friend one doctor and one man using 504 Car helped to carry the corpse away, that he not know where they took the corpse to.
I agree with the Respondent's learned counsel, that the admission by the Appellant, as corroboratively narrated by the PW1, PW2 and PW3, there above, which were made by him spontaneously and voluntarily is relevant, thus amounts to an admissible oral confession within the purview of the exceptions to the hearsay rule. See AKINMIJU VS. STATE (2000) 4 SCNJ 179, wherein the Supreme Court aptly held, inter alia, thus:
It will be recalled that the Appellant himself in his statement to the police admitted taking out one air conditioner for repairs. It turned out however, that 4 air conditioners could not be accounted for. That admission he made to PW1 and PW2 is a relevant piece of evidence which can be taken into consideration. The learned Judge did so and the lower court rightly found that to be proper. It has been held that an admission made at any time by a person charged with an offence (even before it was decided to formally charge him with committing a crime although with no caution having administered) suggesting that he committed the offence is a relevant fact against him the maker and if made voluntarily is admissible in evidence. Per Uwaifor, JSC @ 184. See also ONUNGWA VS. STATE (1976) NSCC (Vol.10) 27 @ 39.
I have no doubt in my mind that the evidence of the PW1, PW2 and PW3 regarding the admission made thereto by the Appellant to the murdering of the deceased at latter's house on the 06/9/06 in question, are most corroborative of the confessional statements of the Appellant duly and rightly admitted as Exhibits A, A1 & A2 by the lower court. Thus, I cannot but agree with the finding of the lower court, at page 93 of the Record, to the effect, inter alia, that-
When all the facts are put together, it is not difficult to find that the confession is true notwithstanding the accused resiling from it. The statements are free flowing and I hold that they are (sic) made by the accused person.
What's more, the evidence of the PW5, Dr. Wilson Akhiwu, the Medical Doctor who performed the autopsy examination upon the corpse of the deceased, is equally instructive. The PW5 presented himself as the 'Forces' pathologist', Benin Police Command. His evidence is to the effect, inter alia, that the injuries found on the deceased were consistent with a stab wound, and that the injuries were deliberately inflicted upon the deceased.
According to the PW5
There was a stab wound on the mid anterior neck measuring 1cm in length. There was another laceration on the vault of the scalp about 10cm in length and this injury has features of an injury inflicted by a blunt object ... There was massive bleeding in the neck area and the thyroid gland was lacerated as were some blood vessels in the neck. There was also massive bleeding in the scalp especially in the area of the head injury. There was a fracture of the skull bone, specially the left occipital and the left parietal skull bones. There was bleeding surrounding and compressing the brain which was the immediate cause of death known as either intra cranial hemorrhage or subdural hemorrhage. All the other organs of her body were in good health.
In the opinion thereof, the PW5 attributed the cause of death of the deceased
To the stab wounds and blunt injury which fractured the skull and led to intracranial bleeding. The probable date of death of the deceased was 6/9/06. The injuries found on the deceased could not have been self inflicted.
It is a well settled principle, that in a criminal trial, such as the instant one, the guilt of the accused person can be proved in a number of at least three ways, viz: (i) by the evidence of an eye witness to the commission of the crime; (ii) by circumstantial evidence; and (iii) by the confessional statement of the accused. In essence, a trial court does not necessarily always need the evidence of an eye witness to convict an accused person of murder, if the charge can be proved otherwise by either by circumstantial evidence or confessional statement of the accused person himself. See IGBABELE VS. STATE (2006) 139 LRCN 1831 @ 1883.
At page 90, line 17 - 19 of the Record, the lower court found thus:
The fact of blood found in a bucket and clothes is not conclusive, as the blood is not scientifically proved to be that of the deceased of even blood though the accused person stated that his shirt was blood stained because of injuries inflicted on him.
At page 93 of the Record, the lower court equally found, rightly in my view, that the fact that the accused invited two persons to assist him take the deceased to the hospital as claimed in Exhibits A, A1 & A2, and duly believed by the lower court, cannot relieve the Appellant of the consequences of his deliberate brutal act.
It was postulated by the learned counsel at page 10 paragraph 5.22 of the Appellant's brief, to the effect thus:
The evidence of PW1 and PW2 are not credible being evidence of close relationship as in laws, which the court ought to regard with caution especially when they are not corroborated with the evidence of another eye witness. See Areha Vs. State (1983) 1 NCR 146 at 147 ratio 2. Their evidence will be insufficient to secure a conviction being circumstantial evidence. See Adepetu Vs. State (1998) 61 LRCN 41 5a at 4527 ratio 16.
By the above submission thereof, the learned counsel undoubtedly raises the issue of the PW1 & PW2 being tainted witnesses whose evidence must be considered with utmost circumspection or a pinch of salt. It is trite, that a tainted witness is one who has a purpose or interest to serve in a given case or litigation. See MOSES VS. STATE (2003) FWLR (Pt. 141) 1969; MBAENU VS. STATE (1988) 7 SC (Pt. 1) 253 @ 271; OLALEKAN VS. STATE (2002) FWLR (Pt.91) 1605 @ 1628; IFEJIRIKA VS. STATE (1999) 3 NWLR (Pt. 593) 69; OGUNLAWA VS. STATE (1995) 5 NWLR (Pt.395) 266; R. VS. ENAHORO (1964) NMLR 65; TORTINI VS. STATE (1997) 2 NWLR (Pt. 490) 711.
Indeed, it's a settled principle, that the mere evidence of a blood or close relationship (or friendship) alone is not a sufficient indication or proof that a witness is tainted. See AGWULGWUL VS. STATE (2001) FWLR (Pt. 57) 829; ADEKUNLE VS. STATE (1989) 12 SCNJ 184 and OKAFOR VS. STATE (1990) 1 NWLR (Pt.128) 614); METAL CONSTRUCTION W/A LTD VS. MTC. LTD (1990) 5 NWLR (Pt. 149) 144 SC.
In the instant case, it's rather obvious that both the PW1 and PW2 were eye-witnesses of what they said they saw and did at the scene of crime - the house of Appellant on 06/9/06 in question. In my considered view, there is no reasonable ground whatsoever for the trial court, or indeed this court, to believe that the PW1 and PW2 had any interest to serve other than to merely state what they actually witnessed and did at the scene of crime on the date in question. I have no doubt, in my mind, that the PW1 & PW2 are witnesses whose evidence is most deservingly credible and probative. And I so hold. See OLALEKAN VS. STATE (Supra) per Karibi-Whyte, JSC @ 628.
Regarding the 3rd ingredient of the offence, in view of the fact that the Appellant has resiled from the confessional statements (Exhibits A, A1 & A2) in question, the lower court at page 94 of Record, found to the following effect
"I do not agree that there was provocation to warrant the injuries dealt on the deceased body. The accused person's denial of his statement gives no room for such a consideration." See OLADIPUPO VS. STATE (1993) 6 SCNJ 233.
The facts of the case of OLADIPUPO VS. STATE (1993) 6 SCNJ 293; (1993) LPELR - 2549 (SC) (Supra) referred to by the lower court above, could be briefly stated as follows. On or about the 29/12/84, the Appellant was a driver of a commercial vehicle in which the deceased, Okoro Okoro, was a passenger. On getting near the Moroko bridge, the deceased gave a N5.00 note to the Appellant and asked for his change. On getting down from the vehicle, the deceased ran to some people selling things nearby and asked for a change but to no avail. He went back to the Appellant and demanded for his change. A fight broke out between the deceased and the Appellant. They chased one another around the vehicle. Then the Appellant threw a plier at the deceased. The plier hit the deceased on the head and he fell down and fainted. The deceased died on the way to the hospital before receiving any medical attention. Of the prosecution witnesses, the PW1, Dr. Adebayo Doherty, testified to the conclusive effect that the cause of death of the deceased was due to "fracture of the skull". The plier was also admitted as Exhibit E. The statements of the Appellant were admitted as Exhibit C & D. The Appellant in his defence, claimed inter alia, that the deceased pushed him inside the lagoon and removed ignition key of his vehicle and tried to run away with it. Allegedly, the Appellant then took a plier, chased and threw it (Exhibit E) at the deceased in order to prevent him from running away. He did not intend to harm or kill the deceased, so to say.
Upon reviewing the evidence, and defence, the trial court found the Appellant guilty and sentenced him to death. On appeal against the said conviction and sentence, the main issue for determination by the Court of Appeal was "whether the defence of provocation put up by the accused was available to him in the light of the evidence before the court." The Court of Appeal, in a unanimous decision, came to the conclusion that neither the defence of provocation nor any other defence at all was on the facts open to the Appellant. The appeal was accordingly dismissed by the Court of Appeal.
However, on a further appeal to the Supreme Court, two issues called for determination, viz:
(1) Whether having regard to the evidence before the court, the Justices of the Court of Appeal were right in holding that the defence of provocation was not available to the Appellant.
(2) Whether the Appellant is entitled to the defence of accident under Section 24 of the Criminal Code having regard to the circumstances of this case.
The Supreme Court held, inter alia thus:
The act of the Appellant and the surrounding circumstances can in no way be interpreted to mean that he intended to kill the deceased or to cause him a grievous harm. It is certainly good law that a person should be taken to intend the natural and probable consequences of his action (See Philip Dim V. The Queen 14 WACA 154), but on the facts as a whole, it cannot be inferred that the Appellant either intended to kill or to cause grievous harm...
It is therefore doubtless that the Appellant could not have been properly convicted for murder in the circumstances when as found by the lower courts the Appellant neither intended the cause death not to cause the deceased grievous harm.
It must be grievous harm and not just harm, that must have been intended. (See Section 1 of the Criminal Code). The charge of murder was therefore not proved...
In the circumstances, therefore this appeal must succeed. The verdict of guilty of murder and the sentence of death passed on the Appellant by the High Court and confirmed by the Court of Appeal are set aside and a verdict of manslaughter and a sentence of imprisonment for seven (7) years substituted therefore. The sentence shall run from 10th October, 1986, the date of conviction in the High Court. Per Kutigi, JSC, (as he then was).
Instructively, it's a settled fundamental principle of criminal justice, that the defence of an accused person ought to be adequately, carefully, and dispassionately considered no matter how weak, insignificant, foolish or baseless such a defence may seem. Thus, it's immaterial whether such defence is contradictory or inconsistent, provided that the totality of the evidence adduced at the trial court is available on record, and not merely a product of a counsel's address or briefs. See OLADIPUPO VS. STATE (Supra) @ 11 paragraphs E-G.
(i) The fact or act of provocation;
(ii) The loss of self-control; and
It is settled, that under the Nigerian criminal legal system, provocation is defined to include not only wrongful act but also insult. It was aptly held by the Supreme Court that
In our law, Section 283 of the Criminal Code defined provocation to include not only wrongful act but also insult. Sections 283 and 284 indicate that there is both an objective element in provocation. The provocative act or insult proved in evidence should be one capable of depriving a reasonable man and which did in fact deprive the accused of the power of self-control to make him for the moment not master of his mind... It is only when the court is considering effect the provocation would have on a reasonable man that the issue what in any circumstance constitutes "a reasonable man need arise. In such an instance, there are authorities galore that a reasonable man must be taken to mean a reasonable man of the accused persons standing in life and his cultural background. One standard will apply if the accused is educated and civilized. A lower standard will apply if the accused is an illiterate and primitive peasant. See ISAAC STEPHEN VS. THE STATE (1986) LPELR - 3117 (SC) @ 44 per Oputa, JSC (of blessed memory).
In STEPHEN VS. STATE case, from Exhibit A, the extra judicial statement of the Appellant, the alleged provocation was that the deceased, called the Appellant a "slave" and also threatened to
"give me a medicine and I will turn to tortoise."
However, in the course of the Judgment thereof, the lower court rejected that Appellant's defence of provocation in its entirety, and thereby convicted and sentenced the Appellant to death for murder. Both the Court of Appeal and Supreme Court affirmed the decision of the trial court, and upheld the conviction and sentence passed upon the Appellant.
As copiously alluded to above, the Appellant stated in Exhibit A1 that he complained to the deceased person that he was not particularly happy with her because since the previous year when he got married, he had not been able to impregnate his wife. Whereupon the deceased person told him that
If we don't continue to make love I will not be able to have a child from my wife. Then I grew annoyed and took a knife and stabbed her on the neck then she fell down and started bleeding...
The evidence on record establishes that the Appellant is a commercial bike-rider colloquially known as 'okadaman'. He was born and bred in Uson Village via Orhionmwon Local Government Area. Thus, from his cultural background and standing in life, the Appellant is by all standard a [semi-] illiterate and peasant. He cannot by any standard be considered to be "an educated and civilized" person within the purview of the law. See STEPHEN VS. STATE (Supra).
It is equally a well established doctrine, that the defence of provocation is predicated upon the admission of the facts as established in the charge and merely raises justification for the commission of the offence. A person who is provoked actually intended the act and was reckless as regards the consequences of the act thereof due to this mental disposition at the time of the commission of the act. As was aptly held by the Supreme Court -
It is settled law that to avail himself of the defence of provocation, the Appellant must have done the act for which he is charged -
(i) in the heat of passion;
(ii) the act must have been caused by sudden provocation
(iii) the act must have been caused by sudden provocation; and
(iv) the mode of resentment must be proportionate to the provocation offered.
These four requirements must co-exist before the defence can succeed.
See OLADIPUPO VS. STATE (Supra) @ 10 Paragraphs C - E per Kutigi, JSC (as he then was). See also OBAJI VS. THE STATE (1965) All NLR 282; STEPHEN VS. STATE (1986) 5 NWLR (Pt. 46) 978; OWIE VS. STATE (1985) 1 NWLR (Pt. 3) 470; R. VS NWANJOKU (1937) 3 WACA 208; R. Vs. DUFFY (1949) 1 All ER 392; UKWUNNENYI VS. STATE (1989) 4 NWLR (Pt.114) 131.
Thus, it is only when the aforementioned conditions or ingredients co-exist that the defence of provocation could be said to be so established within the purview of the provision of Section 318 of the Criminal Code (Supra), thus:
318. When a person who unlawfully kills another in circumstances which but for the provisions of this Section, would constitute murder does the act which causes death in the heat of passion caused by grave and sudden provocation, and there is time for his passion to cool, he is guilty of manslaughter.
In the instant case, being mindful of the duty of the court to consider the defence of the Appellant no matter how incongruous, inconsistent, foolish or baseless it may appear to be, I have deemed it expedient to consider the confessional statements of the Appellant admitted as Exhibits A, A1 & A2. Most especially, in Exhibit A1, the Appellant has stated, inter alia, thus:
On 6/9/2006 I murdered Helen in my house. The reason because both of us were making love even though we are related. (Then on 6/9/2006, when she came to my house). As we were making love continuously her mother became aware. One day I went to meet her mother Omosede and told her that I and Helen have been making love secretly. This happened in year 2003. Then her mother told me that I should marry Helen but I refused because we are related. This led to my separation from Helen and we were no longer making love since 2003. Later I called Helen and told her that we should separate and look for other companions. That was why she married her husband who is the complainant of this case and I married my wife Patience...
... on 6/9/2006 at about 7.30am she called me to wait for her at home and that she would come to see me when she would return from the place where they were treating her husband but I told her that I was still at work. Then I gave her 6pm in the evening to come. At about that time she came and we greeted. So I asked after her husband's condition and she told me that he was getting better. She still brought that discussion that we should continue to make love and that her husband's house is just to manage otherwise she was not satisfied with her marriage partner but shunned her not to ever repeat that word again. Then I told her that I am not particularly happy with her because since last year, when I got married I have not been able to impregnate my wife. Then she told me that if we don't continue to make love, I will not be able to have a child from my wife. Then I grew annoyed and took a knife and stabbed her on her neck then she fell down and started bleeding. I took my phone and called one of my friend named Friday Eguavon who is a doctor to come to rescue me. It was already getting dark as the time was around 7pm... (underlining added).
Thus, the most crucial aspect of the above Exhibit A1 is the following passage -
Then I told her that I am not particularly happy with her because since last year when I got married. I haven't been able to impregnate my wife. Then she told me that if we don't continue to make love I will not be able to have a child from my wife. Then I grew annoyed and took a knife and stabbed her on the neck then she fell down and started bleeding.... (underling added)
I have no doubt in my mind, that in the light of the above scenario narrated by the Appellant in Exhibit A1, the lower court was not right when it held at page 94 of the Record to the following effect:
Moreover the attack is not shown to have been in the heat of passion. I do not agree that there was provocation to warrant the injuries dealt on the deceaseds body. The accused person's denial of his statement gives no room for such a consideration.
Hence considering the evidence on record vis-a-vis the circumstances surrounding the case as a whole, I am unable to uphold the findings of the lower court in question, to the effect that the Appellant is not entitled to the defence of provocation. And I so hold.
Thus, in the light of the above far-reaching reasoning, I cannot but hold that the appeal partially succeeds, and it's accordingly hereby allowed in part.
It ought to be reiterated that consequent upon upholding the defence of provocation in favour of the Appellant, the severity of the sentence under Section 319(1) of Criminal Code (Supra) has become rather ameliorated by virtue of the express and unequivocal provision of Section 318 of the Criminal Code, to the effect that an unlawful killing resulting from provocation will be punishable as manslaughter only. Thus, in the circumstances of the case, this court is graciously cloaked with an unfettered power under Section 20 of the Court of Appeal Act, 2004 to the following effect:
(20) - (1) If it appears to the Court of Appeal that an appellant, though not properly convicted on some count or part of the information or charge, has been properly convicted on some other count or part of the information or charge, the Court of Appeal may either affirm the sentence passed on the appellant at the trial, or pass such sentence in substitution therefore as it thinks proper, and as may be warranted in law by the verdict on the count or part of the information or charge on which the Court of Appeal considers that the appellant has been properly convicted.
(2) Where an appellant has been convicted of an offence and the court which tried him could on the information or charge have found him guilty of some other offence, and, on the finding of the trial court, it appears to the Court of Appeal that that court must have been satisfied of facts which proved him guilty of that other offence, the Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by such court, a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.
(3) If on any appeal it appears to the Court of Appeal that, although the appellant was guilty of the act or omission charged against him, he was insane at the time the act was done or omission made so as not to be responsible according to law for his action, the Court of Appeal may quash the sentence passed at the trial and order the appellant to be kept in custody as a person of unsound mind in such place and in such manner as the Court of Appeal may direct until the pleasure of the President of the Federal Republic of Nigeria be known, and the President of the Federal Republic of Nigeria may thereupon and from time to time, give such order for the safe custody of the appellant during pleasure in such place and in such manner as the President of the Federal Republic of Nigeria may see fit.
See OLADIPUPO VS. STATE (Supra) @ 15 paragraphs F - G per Kutigi, JSC (as he then was); 22-23 paragraphs G, A - C per Karibi-Whyte, JSC.
Hence, in the circumstances, therefore, having allowed the appeal in part, the verdict of guilty for murder and the sentence of death by hanging passed upon the Appellant by the court below are hereby set aide and a verdict of manslaughter and a sentence of twenty (20) years imprisonment are hereby substituted therefor. The sentence shall run from the July 15, 2009, the date the Appellant was convicted and sentenced by the lower court in question.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.:
I have read the judgment just delivered by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA and agree in toto with the thorough reasoning contained therein. I will add a few words.
It is beyond contention that the appellant murdered the deceased. This was successfully proved by the prosecution before the trial court as evident in the testimonies of PW1, PW2, PW3, PW4 and PW5 as well as the confessional statements of the appellant marked Exhibits A, A1 and A2. As rightly held by the learned trial judge at page 90 of the record, there was no direct evidence linking the appellant with the crime, only circumstantial evidence was adduced which was strengthened by the appellant's confessional statements. The trial court at pages 90 and 93 of the record held as follows:
"There is no direct evidence of anyone seeing the accused with the deceased or inflicting any of the injuries described by PW5 on the deceased"
"When all facts are put together, it is not difficult to find that the confession is true notwithstanding the accused resiling from it. The statements are free flowing and I hold that they were made by the accused person"
There is no doubt that apart from the confessional statement of the appellant, the eye witnesses who came in to testify as to what they saw was contemporaneous to the commission of the crime. Let us be mindful of the fact that the appellant resiled from the said confessional statement. His resiling is immaterial. What is material in the instant case is that the trial court believed and relied heavily on the appellant's confessional statement. This, the court had the power to do. However, the position of the law is that where a court relies on a confessional statement to convict an accused person, the court must take the confessional statement as a whole. It must accept both the parts of the confession that incriminates the accused person with that part which shows certain defences that should be available to the accused. The court is not at liberty to pick and choose what part of a confessional statement to believe and what part to disbelieve. It must either be believed as a whole, or rejected as a whole.
In the instant case, the trial court believed the confessional statement as to the appellant's murder of the deceased and even pointed out at page 94 of the record that the defence of provocation may be available to the appellant thus:
"The next issue is whether there are defences opened to the accused person in his statements which I find free flowing and voluntary the accused person related the love affair between himself and the deceased and that despite his asking that the affair ceases the deceased kept coming to him and he told her he was not happy with her because since he married he has been unable to impregnate his wife to which she responded that if he does not continue to make love to her he will not be able to have a child from his wife. He grew annoyed and took a knife and stabbed her in the neck. If this narration is true which is doubtful, I do not find that they can justify the vicious attack on the deceased because there are more than one stab wound from the description given by the medical doctor. Moreover the attack is not shown to have been in the heat of passion. I do not agree that there was provocation to warrant the injuries dealt on the deceased body. The accused person's denial of his statement gives no room for such a consideration. See the case of Oladipupo v. The State (1993) 6 SCNJ 223 at 29. The defence of provocation cannot therefore avail the accused person"
The apex court per Adekeye JSC in Edoho v. State (2010) 4 SCNJ Pg.100 at 117-118 on the issue above, held that:
"It is trite that in all cases attracting capital punishment, it is incumbent upon the trial court to consider all the defences put up by the accused person express or implied in the evidence before the court. No matter the level of the defences whether they are full of figments of imagination, fanciful, bereft with porous lies or even doubtful, the court must not be wary to give them due consideration.
Ani v. The State (2003) 11 NWLR Pt.830 Pg.142, Green v. Queen (1955) 15 WACA 73, R v. Braimah (1945) 11 WACA 49, Nwuzoke v. The State (1988) 1 NWLR Pt.72 Pg. 529, R v. Bio (1945) 11 WACA 46 at 48, Asanya v. State (1991) 3 NWLR Pt.180 Pg.442
The trial court is only under an obligation or duty to consider such defences open to an accused person only as disclosed or supported by evidence on printed record."
See also John v. State (2012) 7 NWLR Pt.1299 Pg.336, Galadima v. State (2012) 18 NWLR Pt.1333 Pg.610.
I am of the humble opinion that the learned trial judge erred by not painstakingly considering the defence of provocation which it pointed out may be available to the appellant.
Now to the main issue, can the defence of provocation avail the appellant? Before looking at the ingredients of the offence of provocation let us reproduce the material confession of the appellant which grounded his conviction in Exhibit A transmitted at pages 17-22 of the record. The relevant portion is set out below:
"I know Helen Agamwonyi who is the deceased in this case. Helen is my sister. I don't know her husband as they were recently married. I am aware that her husband is the complainant in this case. On 06/09/2006 I murdered Helen in my house. The reason why I murdered her was that both of us were making love even though we are related. (Then on 6/9/2006 when she came to my house) As we were making love continuously her mother became aware. One day I went to meet her mother Omosede and told her that I and Helen have been making love so her mother told me that I should marry Helen but I refused because we are related. This led to my separation from Helen and we were no longer making love since 2003. Later I called Helen and told her that we should separate and look for other companions. That was why she married her husband who is the complainant of this case and I married my wife patience. Before Helen could get her husband to marry, she was still coming to worry me that we should continue to make love but I refused to continue. Sometimes last year, she came and told me that she had a problem and that the problem was that no man has been talking to her in respect of love or marriage. Then I started assisting her by accompanying her to places such as native doctors and pastors to see if we could solve the problem for her. It was as a result of the efforts that she was able to get the complainant who later married her-last year being 2005. Even as she was in this man's house, she was always coming to trouble me to continue making love but I kept refusing then on 6/9/2006 at about 7.30am she called me to wait for her at home and that she would come from the place where they were treating her husband but I told her that I was still at work. Then I gave her 6pm in the evening to come. At about that time she came and we greeted. So I asked after her husband's condition and she told me that he was getting better. She still brought that discussion that we should continue to make love and that her husband's house is just to manage otherwise she was not satisfied with her marriage partner but I shunned her off not to ever repeat that word again. Then I told her that I am not particularly happy with her because since last year when I got married I haven't been able to impregnate my wife. Then she told me that if we don't continue to make love. I will not be able to have a child from my wife. Then I grew annoyed and took a knife and stabbed her on her neck then she fell down and started bleeding. I stabbed her in my parlour..."
The ingredients of the defence of provocation has been outlined by the courts in a plethora of cases like Galadima v. State (Supra), Ahungur v. State (2012) 12 NWLR Pt.1313 Pg.187, Edoho v State (2010) 14 NWLR Pt.1214 Pg 651, Annabi v State (2008) 13 NWLR Pt. 1103 Pg.179 and Bolaji Oreno v. State (2014) LPELR 22806, CA/B/311c/2013 delivered on 29th April 2014 and are as follows:
(a) The act relied upon by the accused must be obviously provocative.
(b) The provocative act must be one that can and did deprive the accused of self control.
(c) The provocative act must have emanated from the deceased.
(d) The accused must have reacted to the deceased's act without allowing his passion to cool.
(e) The force used by the accused in retaliating must not be disproportionate to the act reacted against.
As regards (a) and (c), it is evident from the uncontroverted evidence of the appellant which was the only eye witness account before the court that the statement of the deceased was provocative and indeed provoked the appellant. Indeed if an ordinary African man is told that he would not father a child by the hex or curse put on him by anyone, he would immediately regard the person as his mortal enemy. The test of provocation is subjective and it would depend on the persons station in life.
Let us take a look at the appellant's station in life, what kind of man is the appellant? What values, beliefs and principles does he hold dear? A careful perusal of Exhibit A shows the appellant to be a man who believes so much in African cultural ideals and superstitions. This can be deduced from his assumption that the incest between himself and the deceased was what prevented the deceased from finding suitors. To him, it was as if the incest automatically resulted in a curse being automatically placed on himself and the deceased. These beliefs were exhibited in his frantic efforts to get the deceased a husband by taking her to different Pastors and native doctors as contained in Exhibit A. A man who would believe that incest would result in parties not getting spouses would obviously have no difficulty in believing the deceased's statement that he would never be able to father a child if he refuses to continue the unholy sexual relationship that they had in the past. No African man who thinks he has been deprived of his right to father children when he wants to will not be enraged by the utterance of the deceased.
The provocative words of the deceased did cause the appellant to lose his self control and he took a knife and stabbed the deceased.
"Then I grew annoyed and took a knife and stabbed her on her neck then she fell down and started bleeding. I stabbed her in my parlour"
He retaliated immediately the provocative speech was uttered by the deceased without allowing his passion to cool thus dispensing with ingredients (b), (d) and (e) of the defence of provocation. Let us also have it in mind that the deceased herself sought out the appellant. According to Exhibit A, the deceased called him on phone before eventually visiting him in his house. The appellant did not lure the deceased to his house and as such there is no issue of premeditation to kill on the part of the appellant. I am of the humble opinion that the defence should avail the appellant as all the ingredients of provocation are in his favour. This is so much so as the prosecution did not lead evidence to disprove the availability of the defence to the appellant and also the failure of the trail court to evaluate the said defence in line with the facts in evidence.
A trial Judge is under the duty to impartially evaluate any defence raised by an accused person either directly, impliedly or evident on the face of the evidence adduced by the accused no matter how ridiculous, incredulous, false or improbable it seems. See Edoho v. State (Supra); Egbeyom v. State (2000) 1 NWLR Pt.654 Pg.559; Maiyaki v. State (2008) 15 NWLR Pt.1109 Pg.173; Kaza v. State (2008) 7 NWLR Pt.1085 Pg.125. The assumption of the trial judge that the action of the appellant in attacking the deceased was not in the heat of passion was not borne out by the evidence on record. It was the duty of the prosecution to show that the appellant reacted after he had time for his passion to cool. There is no evidence of that but there exists the evidence of the appellant that immediately the deceased provoked him by saying he would not be able to have children, he lost his temper and attacked her.
We must also remember that the appellant called a "Doctor" to attend to the deceased immediately he inflicted the wounds on her but rather made efforts to save her life.
In the circumstances, I hold that the defence of provocation is available to the appellant. Therefore, the appellant should not have been convicted of the offence of murder but of manslaughter. Therefore, the sentence of death by hanging passed on the appellant by the learned trial judge on July 15th 2009 in Charge No: B/31/C/2007 is hereby set aside. A sentence of 20 twenty years imprisonment is hereby imposed. Sentence to run from the date the appellant was convicted. Appeal Allowed.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
I have read in draft the lead Judgment prepared by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA; and I agree that the appeal is meritorious as it partially succeeds. Therefore, I too allow the appeal in part and abide by all the consequential orders made by my learned brother in the lead Judgment.