IN THE COURT OF APPEAL OF NIGERIA
ON WEDNESDAY, THE 17TH DAY OF FEBRUARY, 2016
CHINEDU OSUJI - Appellant(s)
THE STATE - Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Imo State High Court in charge No.HME/2C/2008, Delivered on 16/12/2011 BY Hon. Justice T.E. Chukwuemeka Chikeka, wherein the learned trial judge convicted the Appellant for murder and sentenced him to death by hanging.
Appellant (as accused at the Court below) was arraigned on information filed on 13/8/08, charged for murdering one Angus Iwueze (M) on 22nd November, 2007, at Umuelemai Junction in Isiala Mbano Judicial Division, by stabbing him with broken bottle in the neck, thereby committing offence, contrary to Section 319 (1) of the Criminal Code, Cap. 77 Laws of the Federation of Nigeria 1990, as applicable to Imo State of Nigeria. On being arraigned on 13/10/2008, he pleaded NOT GUILTY to the charge, after the charge had been read and explained to him ý See page 36 of the Records of Appeal.
The Prosecution had called 8 witnesses to prove the charge while Appellant called 2 witnesses in his defence. At the end of the trial, the lower Court held:
"The accused after he was thrown to the ground by the deceased, did not do anything, he went back into his shop but like the lion waiting to bounce at his prey unsuspectingly, broke a stout bottle and pursued the deceased. The Accused, in his evidence said he was confused. I do not believe he was, this is because the act of breaking a stout bottle is not the act of a confused person. He knew what he did when he broke the bottle and pursued the unsuspecting deceased. The point of impact does not show the act of somebody who has no intention to kill. I hold therefore that the accused had the intention to kill the deceased by his said act. The act of stabbing did not take place during the fighting but afterwards. There is evidence that the deceased died on his way to the hospital due to the injury sustained. See testimonies of PW2, PW3, PW4, PW6, PW7 PW8. Has the accused any legal defence? From the facts of this case, the accused had none, he was not in any heat of passion, his action was uncalled forý the prosecution has proved its case beyond reasonable doubt. The accused is guilty as chargedý" See pages 128 ý 129 of the Records.
Dissatisfied, Appellant filed this appeal, as per the Notice of Appeal on pages 130 to 132 of the Record of Appeal, disclosing four (4) grounds of Appeal. Appellant filed his brief of arguments on 18/12/14 and distilled three (3) issues for the determination of the appeal, as follows:
1. Whether the Court below was fair in the trial and evaluation of evidence before it having failed to resolve the material inconsistencies and doubt in the prosecution's case in reaching the decision convicting the Appellant. (Grounds 1 and 3)
2. Whether the defences of self-defence and provocation availed the Appellant. (Ground 2)
3. Whether the confessional statements upon which the Appellant was convicted were proved to have been made voluntarily. (Ground 4)
Appellant also filed a Reply Brief on 1/2/16.
The Respondent filed its brief on 22/5/15 and the same was deemed duly filed on 29/9/15. In the Brief, the Respondent raised a notice of preliminary objection against ground 3 and the issue formulated on it, saying that the ground 3 was incompetent, "as it is not precise, inconclusive and does not relate nor have bearing to the particulars of the said ground."
The Respondent, on the main appeal, distilled 4 (four) issues for determination of the appeal, namely:
1. Whether or not there was material inconsistencies and doubt evident in the prosecution's case which the lower Court failed to resolve properly. (Ground).
2. Whether the trial lower Court was right when he held that there was no legal defences of provocation and self defence available to the Appellant. (Ground 2).
3. Whether or not placing heavy reliance on a post mortem report vitiates rules of fair hearing and invalidates the decision of the lower Court. (Ground 3).
4. Whether the judgment of the lower Court was justifiable, in view of the admission of the confessional statement of the Appellant (Ground 4).
When the appeal was heard on 2/2/16, the parties, through their Counsel, adopted their brief and urged us accordingly.
Arguing what the Respondents called, preliminary objection (which is only on objection to a ground of appeal), the Respondents' Counsel said the ground 3 on the face of it is argumentative, nebulous, not precise, inconclusive and does not relate to the particulars thereof. He relied on the case of Ogbonnya Vs Adapalm Nigeria Ltd (1993)5 NWLR (Pt.292) 147. He argued that while the ground 3 said:
"The learned trial judge erred in law when he convicted the accused/Appellant by placing heavy reliance on the post mortem report", the particulars of the said ground ran counter to it when it dealt completely with fair hearing and not on the placement of heavy reliance on the autopsy report. He said the ground and the issues are not related; that being incompetent it should be struck out together with the issues distilled there from and the arguments thereof.
The Appellant's reaction to that was his reply brief, wherein he asserted that the ground of the appeal and the particulars thereof are competent and in order; that the ground is clearly borne out of the decision of the trial Court. He referred us to pages 110 to 129 of the Records of Appeal and the case of Saude Vs Abudullahi (1989)4 NWLR (Pt.116) 1989 7 SCNJ 216; Saraki Vs Kotoye (1992)9 NWLR (pt.264) 156. He said that the particulars of the appeal are in tandem with the Records of Appeal, and to the Exhibit G, the autopsy report. He urged to dismiss the objection.
RESOLUTION OF THE OBJECTION
The grounds 3 of the appeal says:
"The learned trial judge erred in law when he convicted the Accused/Appellant by placing heavy reliance on the post mortem report.
i. By Section 36 of the Constitution of the Federal Republic of Nigeria, every accused person is entitled to fair hearing
ii. Fair hearing presupposes an accused having an opportunity, at the earliest possible time, of knowing the case against him.
iii. The post mortem report vitiated the rule of fair hearing as Accused/Appellant was not present at the time of the post mortem report.
iv. The post-mortem report clearly stated the cause of the deceased's death.
I find it difficult to appreciate the complaints raised by the Respondent against the ground 3 of the appeal, as being not precise, inconclusive, nebulous, and not relating to the particulars thereof. Appellant's complaint as to the particulars (i) and (ii), touching on Appellants right of fair hearing, can only be read in the context of paragraph (iii) thereof, which complained that the Accused/Appellant was not present when the autopsy report, which the trial Court heavily relied upon, was made; that, having not been there, when the examination and report were made, to that extent, his right of fair hearing was compromised. I do not see any disconnect between the ground 3 and its particular, nor the alleged imprecision or nebulousness. I dismiss the objection for lacking in merit.
I should also remind Counsel that preliminary objection can only be raised against competence of an appeal, as a whole, and that where the objection is against the competence of a ground(s) of appeal, the objector cannot resort to "preliminary objection" but should rather file a motion challenging the competence of the particular ground(s) of appeal, to strike it down. See the Supreme Court decision in the case of Nwaolisah Vs Nwabufoh (2011)14 NWLR (Pt.1268) 600, which we relied upon in the case of Obosi Vs NIPOST (2013) LPELR? 21397 CA:
"A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal"
See also Alaribe Vs Okwuonu (2015) LPELR 24297 (CA):
"I think it is necessary to state again, that there is a difference between raising a preliminary objection against an appeal, under Order 10 Rule 1 of Court of Appeals Rules, 2011, and raising objection against a ground(s) of appeal for being defective. Whereas, in the former the notice of preliminary objection ought to be filed, separately, at least 3 clear days to the hearing, before arguing it... in the latter situation, the Respondent only needs to file a motion to highlight the defects in the ground(s) and the same can be properly raised in the Respondent's brief and argued therein. See Okereke Vs Adiele (2014) LPELR 24103 CA."
On the main appeal, learned Counsel for the Appellant, I.U.K. Nlem Esq, who settled the brief, on issue one, submitted that there were material contradictions in the evidence of the prosecution at the lower Court and that where there are contradictions or inconsistencies in the evidence of the prosecution, witnesses, the judge must advert his mind to same and is not placed to pick and choose; that where the contradictions are as to the cause of death on a medical issue in the trial, it is sufficient to cast doubt in the mind of the trial judge. He referred us to Ogbu Vs State (2003) FWLR (Pt.147) 1102 Aliyu Vs State (2005) Vol. 4 LRCN 235.
Counsel further submitted that, when a witness is shown to have made previous statements, inconsistent with the evidence given by the witness at the trial, the trial Court should not merely regard the evidence given at the trial as unreliable, the Court should also be conscious that the previous statements, sworn or unsworn, do not constitute evidence upon which it can act. He referred us to Akalonu Vs State (2005) Vol. 4 LRCNCC 126.
Counsel referred us to the evidence of PW2, PW3, PW4, PW5 and PW7 on pages 41, 42, 45, 49, 50, 61, 63, 71 and 72, respectively, which he said labored on the issue of fight, time lapse between the actual fight and injuries and death of the deceased. He said that the contradictions, inconsistencies and material discrepancies in the testimony of the prosecution witnesses were glaring, so much so that the trial judge ought to have commented on them and at best discharge the accused on the strength of the contradictions and inconsistencies. He urged us to so hold and discharge and acquit the Appellant.
Counsel also referred us to the evidence of the medical doctor (PW7) who conducted the autopsy examination, that the doctor stated that he found lacerations at the right angle and at the posterior angle of the neck; that the cause of death, in his opinion, was hemorrhage consequent upon sharp object injuries on the right side of the chest and the lung; that he listed the type of sharp objects capable of causing the injury- like kitchen knife, sharp edge of a broken bottle, a sharp big screw driver. Counsel then asked whetherýin a reasonable man's view, the sharp edge of a kitchen knife and of a screw driver can be of the same length with a sharp edge of a broken bottle, considering the nature of the various objects. He said that if the answer were in the negative, it settled the fact that a broken bottle, if actually used by the Appellant, as stated in the case, cannot be long enough to have caused injuries from the posterior angle of the neck down to the chest and the lung, as speculated by the prosecution witnesses. He said there were devious inconsistencies in the testimony of the prosecution; that it is no possible to hold that the evidence of the prosecution was over whelming as doubt should have been cast in the mind of the judge when the medical cause of death was considered in the circumstances, and that should have been resolved for the accused person. He relied on Aliyu Vs State (supra); Obue Vs State (1976) 2 SC 141; State Vs Azeez (2008) ALL FWLR (Pt.424) 1423.
He further submitted that the fact that the Court relied on autopsy report, where of the PW7 conducted the Post mortem examination in the absence of the Appellant, showed a breach of his fair hearing; that being a party to the case and in custody of the Police (PW6) DSP John Okong (who also witnessed the Post mortem examination), Appellant should have been present at the conduct of the autopsy examination. He relied on the case of Bakoshi Vs. Chief of Naval Staff (2005) ALL FWLR (Pt.248) 1719 at 1720-1727; Dawodu Vs Ologundudu (1986) FWLR (Pt.33) 104; Ogundoyin Vs. Adeyemi (2001) FWLR (Pt.74) 1741 on the issue of fair hearing.
On Issue 2, about defences of self-defence and provocation, Appellant's Counsel submitted that the DW1's evidence as per the Records, Appeal, was that the fight between him and the deceased took place in his (Appellant) shop, under the canopy and that he was thrown down by the deceased on the hard floor, which affected his self control; that the trial Court was under a duty to consider dispassionately any defence raised by the accused person, however stupid, bogus, incongruous or unpalatable it appeared. He relied on Adisa Vs State (1991)1 NWLR (Pt.490) 509; Opeyemi Vs. State (1985) 2 NWLR (Pt.5) 101. He said that the evidence of DW1 at the trial established strong ground of provocation and loss of self control, which evidence the trial Court gave no consideration in its decision.
He referred us to pages 125 - 129 of the Records. He argued that there were some acts done by the deceased to the Appellant which could cause any reasonable person to lose self control and which actually made the Appellant to lose self control, rendering him subject to passion as to make him, for that moment, not to be master of his mind and that was provocation. He urged us to so hold and relied on the case of Amala Vs State (2004) ALL FFWLR (Pt.219) 1102.
He submitted that where there is evidence, as in this case, to show that the accused person was being throttled by the deceased, who indeed was trying to choke or asphyxiate the Appellant and he could not breathe, and believed, at the moment, that the deceased was intent in killing him, it was expected and reasonable of the Appellant to defend himself, even with a knife, if that was the only instrument he could lay his hand on, to ward off the danger to his life, posed by the deceased. Thus,
Counsel said, the defence of acting in self-defence would avail the Appellant. He urged us to so hold relying again on the case of Amala Vs State (supra).
On Issue 3, whether the confessional statement upon which Appellant was convicted, was proved to have been made voluntarily. Appellant's Counsel submitted that the confessional statement was not proved to have been made voluntarily, that it was extracted after Appellant had been tortured by the IPO (PW6), and objection to its admission was overruled by the trial judge; that the statement (Exhibit F) ought not to have been admitted in evidence. He submitted that when admissibility of a Accused Statement is challenged on ground that it was not made voluntarily, it is incumbent on the trial judge to call on the prosecutor to establish that it was made voluntarily by conducting a trial within-trial; that the trial Court should have conducted a trial within-trial in this case to test the voluntariness of the said confessional statement (Exhibit F); that rather than do this, the trial enormously accepted that the challenge made to Exhibit F by Appellant Counsel did not necessitate the conduct of trial-within-??trial; that that was wrong. He relied on the case of Nsofor Vs State (2005) ALL FWLR (Pt.242) 397 AT 402.
He urged us to resolve the issues for the Appellant and to allow the appeal, discharge and acquit the Appellant, or in the alternative, reduce the sentence from murder to manslaughter, (given the facts of defence of provocation and/or self defence raised by the Appellant), or to order for retrial. He added that this Court can interfere with the sentence by the trial Court, drawing from the grounds of appeal and issues raised, since it is obvious that the trial and the decision of the lower Court was wrong on principle and the sentence manifestly excessive, in the circumstances of the case. He relied on the case of Eno Vs Nigeria Copy Right Commission (2010) ALL FWLR (Pt 547) 684 at 608.
The Respondent's Counsel, E. E. Ibe Esq, Deputy Director of Public prosecution, Ministry of justice, Imo State,) on his issue, listed the essential ingredients of offence of murder, which the Prosecution had a duty to establish, namely:
a) That the death of a human being has actually taken place
b) That such death was caused by the Appellant
c) That the act was done with intention to cause death or death may probably be the result
d) That the Appellant pre- meditated the act, and
e) That no legal defence is available to the Appellant. He relied on Section 318, 284 and 286 of the Criminal Code and the case of Festus Amayo vs The State (2001) 8 NSCQR 431 at 477.
He submitted that the evidence of PW2, PW3, PW4, PW6 and PW7 disclosed the above ingredients of the offence and also fixed the Appellant to the commission of same. He referred us to pages 49 and 50 of the Records of Appeal for the evidence of PW3, pages 40 to 43 for evidence of Pw2 and pages 53 ý?? 56 for the evidence of PW4. He said that evidence showed that Appellant and the deceased fought at the first spot and were separated and about 15 minutes later he (Appellant) broke a bottle, pursued the deceased and got him, about 2 poles distance from the first spot of fight, and stabbed him to death; that there was neither struggle nor fight between them at the last spot or scene of stabbing.
Counsel submitted that there was no material inconsistency in the evidence of the prosecution; he admitted that in law, whenever there is material inconsistency and doubt the Court usually resolves for the accused person. But in this case, the evidence was consistent, unequivocal and devoid of any material doubts; that the evidence of PW3 fixed the Appellant to the commission of the offence, without any loopholes; who stated that Appellant held the deceased on the neck and was dragging him up and down on the ground, "and he used the broken bottle he was having and stabbed the deceased 3 times..., at the neck region twice and the 3rd one at the upper region of the jaw, which left the neck through the jaw to mouth wide open."
Counsel said the evidence of PW3 was corroborated by PW2 and PW4, there was no contradiction or inconsistency; that from the eye witnesses accounts (PW2, PW3 and PW4) who saw the attack on the deceased by the Appellant, the injuries inflicted on the deceased by the stabbing and the death of the deceased soon thereafter, and the autopsy report by PW7, it was obvious that the act of the Appellant was the cause of death of the deceased, and it was safe to convict him. He relied on Michael Ebeinwe Vs. The State (2011) 45 BSCQR (Pt.112) 1206 at 1218; Onuchukwu Vs. The State (1998) 4 NWLR (Pt.57) 576.
On the allegation that absence of the Appellant at the conduct of the post mortem examination violated the Appellant's right of fair hearing, Counsel for the Respondent said that cannot be; that the exercise was carried out in the presence of witnesses, including the mother of the Appellant (DW2) who represented the Appellant. Counsel also argued that medical evidence can even be dispensed with in the circumstances of death, as in this case, where the death of the deceased occurred on the spot or on the way to the hospital. He said that the cause of the death was clear, as the deceased died shortly after the attack by the Appellant. He relied on Diguoreghian Vs. The State (2004)3 NWLR (Pt.860) 367 at 396 -397; (2004) 17 NSCQR; Uguru Vs. The State (2002) 9 NWLR (Pt. 771) 90.
On Issue 2, Counsel said the trial Court was right, when it held that there was no legal defences of provocation and selfýdefence available to Appellant. He referred us to the case of James Biniwa Vs The State (1994) 7 NWLR (Pt. 359) 635 at 671 to say that, provocation arises where there is some act or series of acts done by the deceased to the accused, which would cause any reasonable person
(and actually caused accused person) sudden and temporary loss of self control, rendering him subject to act and not to be master of his own self at the moment; that elements of provocation consists of provocative act, loss of self control and both actual and reasonable and proportional retaliation. He also relied on Edoho Vs The State (2010) 42 NSCQR (Pt.1) 451 at 486. Counsel said the evidence in this case negatesýthese ingredients of provocation. He referred us to evidence of PW's2, 3, 4 and 5, earlier relied upon on issue 1. He also relied on the evidence of the appellant and said that, the entire evidence failed to show cogent and compelling circumstances to justify any defence of provocation.
In the same way, Counsel said the defence of acting in self defence was not available to the Appellant; that under that defence the Appellant must show that the deceased assaulted him and he (Appellant) used appropriate and reasonable force to ward off the danger posed by the attacker; that Appellant was not the aggressor but was acting to defend himself. He relied on the case of Gambo Musa Vs. The State (2009) 39 NSCQR 358 at 382-383; Akpan Vs The State (1994) NWLR (Pt. 368) 347.
Counsel said that the evidence of the prosecution witnesses and the statements of the Appellant (Exhibits E and F) in this case incriminated him and never raised any defence of self defence; that the trial Court found that Appellant never raised any defence of self defence and that the Court also adjudged that such defences were not available to the Appellant; that the trial Court had, by so doing, considered the said defences of provocation and self defence.
On Issue 3, Counselýagain, said the conduct of the post mortem examination by the PW7 did not violate the right of Appellant to fair hearing, as there were witnesses present, including the mother of the Appellant, and that Appellant's absence had no negative effect on the post mortem report; that there is no rule that accused person must be personally present when the body of a deceased (allegedly killed by the accused) is examined by a doctor. Counsel added again that medical evidence ceases to be of practical necessity, where the deceased died almost immediately from the injuries inflicted by Appellant, as in the instant case. Diguoreghian Vs The State (supra); Uguru Vs The State (supra).
OnýIssue 4, whether the judgment was unjustifiable, Counsel urged us to resolve this for the Respondent. Counsel relied on the case of Emmanuel Eke Vs. The State (2011) 45 NSCSQR (Pt.11) 652 at 664 on how to determine the voluntariness or otherwise of confessional statement; that the Supreme Court held that trial-within-trial to determine the voluntariness or otherwise of statement claimed not to have been voluntarily made is very essential, but where evidence led and accepted in the trial is so over whelming and conviction was easily sustained without the confessional statement, failure to conduct trial-within-trial will not affect the judgment of the trial Court.
Counsel said in this case, apart from the confessional statement (Exhibit F) the evidence of PW2, PW3, PW4 and PW5, who were eye witnesses of the attack, were direct and enough to establish the conviction; that they pointed at the Appellant, conclusively, as the person who caused the death of the deceased, and the Court also found so, holding that Appellant intended to kill and actually killed the deceased. Thus, Counsel said, apart from the confessional statement (Exhibit F), there were other sufficient evidence to safely convict the Appellant for the murder of the deceased. He relied on the case of Emmanuel Eke Vs. The State (2011) 45 NSCQR (Pt.11)652 at 664; Ofoke Nwambe Vs. The State (1995) 3 NWLR (Pt.384) 385 at 407.
He urged us to resolve the issues against the Appellant and to dismiss the appeal.
RESOLUTION OF ISSUES
I think Appellant's 3 issues are more apt for the determination of this appeal, but the issues 1 and 3 can conveniently be taken together, because in considering whether the trial Court was fair in the trial and evaluation of the evidence before it, before reaching its conclusion to convict the Appellant, it was bound to consider not only, the alleged material inconsistencies and doubt in the prosecution's case, but also the quality of statements made by the Appellant to the Police, whether the same were voluntary or not, or whether, despite the retraction, there was sufficient evidence to establish the commission of the offence.
I shall therefore take the Issues 1 and 3 together, before considering the Issue 2, whether the defences self-defence and of provocation availed the Appellant.
A brief facts of this case shows that the deceased Angus Iwueze, and the Appellant Chinedu Osuji, had a fight on 22/11/07 in front of Appellant's shop and people separated them. The cause of the fight appeared to centre around Appellant's complaint that the deceased insulted his (Appellant's) mother. After the separation and advice (by those attracted by the fight) that the two should go home, and the atmosphere calming down, the Appellant, surprisingly, collected a bottle from his mother's shop, which he broke and advanced towards the deceased, who on noticing the Appellant ran, but was caught by the assailant (Appellant) who stabbed him on the neck region and in between his lower and upper jaw. On doing this, Appellant ran away! The deceased was rushed to the hospital but he died before reaching the hospital. The medical Report, Exhibit G, confirmed his death.
Was the trial judge right to convict and sentence the Appellant for the murder of the deceased (Angus Iwueze), given the quality of evidence adduced by the witnesses in the case, or were there material contradictions or material discrepancies, as alleged by the Appellant, to fault the decision of the trial Court?
To prove a charge of murder, under Section 319 of the Criminal Code, the burden is always on the prosecution, to establish the guilt of Accused Person, beyond reasonable doubt. That calls for a lot of caution on the part of the Court, and imposes a duty of thoroughness on the part of the Prosecution, to ensure that evidence is brought to show, unmistakably, that the Accused Person's act or omission caused the death of the deceased, and that that act or omission of the accused person was with the requisite intention to cause the death of the deceased, or to cause him grievous bodily harm. And, as submitted by Counsel on both sides, the following ingredients of the offence of murder must be established:
(1) Death of the Deceased
(2) The death resulted from the act/omission of the Accused
(3) The Accused person caused the death intentionally, or with requisite knowledge that death or grievous bodily harm was the probable consequence of his act/omission.
See the case of Sule Vs State (2009) 19 NWLR (pt.1169) 33; Nkebisi Vs State (2010) 5 NWLR (pt.1184) 471; Mbang Vs State (2010) 7 NWLR (pt.1194) 431; Usman Vs State (2011) 4 NWLR (pt.1233) 1; Akpa Vs State (2008) 14 NWLR (pt.1106) 72; Musa Vs The State (2014) LPELR?? 22912 (CA); Okon Vs The State (2014) LPELR?? 24018 (CA).
Of course, the above ingredients can be established by:
(a) Production of positive and direct eye witness account of the killing, when it occurred. See Blessing Vs FRN (2013) 12 WRN 36; Okon Vs The State (2014) LPELR?? 24018 (CA); OBASI Vs The State (2014) LPELR?? 24013 (CA).
(b) By cogent circumstantial evidence which points directly, unmistakably and conclusively at the accused person as the one from whom the guilt for the murder can be inferred. See Nasiru Vs The State (1999) 2 NWLR (pt.589); Chiokwe Vs The State (2005) NWLR (pt.918) 424; Obasi Vs The State (2014) LPELR?? 24013;
(c) By confessional statement of accused person, adjudged voluntary, even when it is retracted, where the Court is satisfied that it accords with the other pieces of evidence before it. See Haruna Vs A.G. Fed. (2012) 2009 LRCN 70; (2012) 32 WRN 1; Oseni Vs The State (2012) LPELR 7833 (SC); Blessing Vs FRN (2015) LPELR 24689 (SC).
From the circumstances of this case and the evidence adduced before the trial Court, was the trial Court correct in holding that the prosecution had proved beyond reasonable doubt that Appellant caused the death of the deceased?
The trial Court had relied on the evidence of eye witnesses to the commission of the offence, particularly that PW2, PW3, and PW4, on how the deceased was attacked and stabbed by the Appellant, using a broken bottle, which attack resulted in the death of the deceased. The Court also relied on the confessional statement (Exhibit F) by the Appellant to found his conviction. See pages 127 and 128 of the Records of Appeal, where the trial Court said:
"The testimonies of PW2, PW3, PW4 and PW5, all eye witnesses to the event, apart from PW5, who did not witness the stabbing, testified as to how the fight broke out on the road, between the accused and the deceased. They were separated but the accused later entered his shop, broke a bottle, rushed to the deceased, stabbed him three times in dangerous places... In Exhibit F, the accused narrated what happened, he broke a beer bottle and stabbed the deceased. The accused person is lettered, he spoke in English language, so the question of not understanding what was recorded does not avail him. Moreover both Exhibits were read over to him, he understood same and signed. The accused, during his testimony and cross examination denied the obvious. The Accused confessional statement (sic) is enough to sustain his guilt in the absence of any defence..."
Appellant had urged us (just as he urged the trial Court (page 127 of the Records), to hold that the prosecution witnesses were inconsistent, and that the trial Court failed to resolve the material inconsistencies and doubts in the prosecution's case in reaching the decision convicting the Appellant, but Appellant, throughout the argument, failed to point out and identify the alleged "material inconsistencies" in the testimonies of the prosecution witnesses. Appellant's Counsel appeared to have taken for granted that the alleged "material inconsistencies" or contradictions were already established, or could be taken judicial notice of, when he submitted:
"It is our contention therefore, that, the contradictions, inconsistencies and material discrepancies in the testimony, of the prosecution witnesses were so glaring, so much so that the trial judge ought to have commented on them and, at best, discharge the accused on the strength of the material inconsistencies, contradictions and discrepancies. See the evidence of PW2, PW3, PW4, PW5 and PW7 at page 41 lines 4 -?? 5 and 17 -?? 19; page 42 lines 15, 16, 17 -18; page 45 lines 3, 11 -?? 12, 14 and 23; page 49 lines 6 -?? 8; page 50 lines 1-2; page 57 lines 14; page 61 line 9,12 -15; Page 63 lines 5 -21; Page 71 lines 25- 26 and page 72 lines 1- 4 and 9 -?? 12 which laboured on the issue of place of fight, time lapse between the actual fight and injuries and the death of the accuse. See also Ogbu Vs State and Aliyu Vs State (supra)".
(Paragraph 4.05 of the Appellant's Brief)
"On the strength of the foregoing and at the event of proper evaluation of the obvious contradictions, inconsistencies and discrepancies associated with the evidence of the Prosecution witnesses, the only option left in the circumstances of the case is to discharge the Accused/Appellant and we urge the Court to so hold, allowing the appeal, set aside the judgment of the lower Court and to discharge and acquit the Accused/Appellant and/or reduced the sentence of the Appellant to the sentence meant for manslaughter." (Paragraph 4.06 of the Appellant's Brief)
With due respect to the learned Counsel for the Appellant, the above submissions were mere speculations and conclusions on the speculations, that the Prosecution evidence were inconsistent, contradictory or full of material discrepancy. He did not identify or illustrate any of the alleged material contradictions or inconsistencies but merely referred this Court to some pages of the Records of Appeal housing the evidence of the Prosecution witnesses, in a manner that seemed to say "read it up, search and confirm the complaints."
I do not think this Court can afford the time to undertake such assignment by the Appellant, or descend into the arena of conflict, to help the Appellant argue his appeal. That in my opinion, is a lazy way of arguing an appeal. A party who raises a complaint in a case, should lead evidence or arguments to demonstrate his point. See Alaribe Vs Okwuonu (2015) LPELR -?? 24297 (CA), where this Court held:
"But the objection (complaint) raised by the Respondent in this appeal does not appear to be worth any further consideration, as the Respondent did not appear serious and diligent in his complaint, having only made a general submission on the alleged incompetence of the grounds of appeal, without relating the same to any of the grounds of appeal he intended to complain against. He had a duty to demonstrate how each of the 6 grounds of appeal fell short of the requirements of Order 6 Rule 2 (3)... He merely said all the grounds of appeal are not only argumentative but also contain legal findings, conclusions and narrative... I think that was a lazy way of arguing an objection, and amounted to generalization and speculation... this Court is not expected to undertake the assignment posed by the speculation of the Respondent, to call up all the grounds of appeal and study to determine which one conforms with the Respondent's allegation and which one does not, if the Respondent failed to do his home work."
Although the above decided case touched on issue of arguing objection to ground(s) of appeal and how the same offended the Rules on formulation of grounds of appeal, I believe it applies, mutatis mutandis, to argument of complaints raised in ground(s) of appeal and issue(s) therefrom; that Appellant does not have to merely speculate and assign the appellate
Court to scout the Records of Appeal to find answers to support party's speculation.
Notwithstanding the fact that Appellant failed to point out and demonstrate the alleged material inconsistencies, contradictions and/or discrepancies, I still undertook the assignment by the Appellant's Counsel by reading the evidence of the eye witnesses of the attack on Angus Iwueze (the deceased). I have not been able to spot any material inconsistency or contradiction in the accounts of the prosecution witnesses.
PW2, Ahamefule Godwin Oleka had told the Court:
"On Thursday, 22/11/07 at about 5 -?? 6pm, as (I was passing, I saw Chinedu (Accused) and Angus (deceased) along the road situate at Umuelemai Junction, the accused was holding the deceased neck tied (sic) and was pulling and pulling him. The accused at the same time said that the deceased is in the habits of insulting his mother... the deceased was trying to free himself from the grip of the accused and he kept saying "have you seen Chinedu!" (in Igbo). In a bid by myself and others to separate them, they started fighting. Angus (deceased) lifted the accused person and both of them fell on the floor. Myself and others I know collectively succeeded in separating them. Yes, I know Emmanuel Ndukauba and Jude Ukachu, they also helped in separating the fight, also were Mr. Thomas Iwuji, Linus Ibe and others also helped. We now advised them to stop fighting. I advised the accused to return to his mother's shop, the accused complied and the deceased left. Myself also proceeded home, gradually. By that time Chinedu the Accused had entered into their shop. Chinedu, as we were going, hoping that the accused had entered his shop to rest, took a broken bottle and started chasing the deceased. Because that place was a junction, as the accused was pursuing the deceased, the people that saw him shouted to the deceased to run for his dear life. The shouting drew our attention and we all started running towards that direction. As the deceased Angus was running, he stepped on something and fell down; this made the accused to catch up with him and the accused person stabbed the broken bottle on the deceased. The Accused stabbed the deceased at his neck and in between the upper and lower jaw. The accused stabbed the deceased about 3 times. Chinedu, the accused then ran away; the deceased stood up by force and said to me in Ibo "de Goddy Chinedu has stabbed me to death." Blood was rushing and because of the bleeding myself and Mr. Thomas Iwuji helped him on top of a motor cycle and with the help of Thomas Iwuji he was rushed to Little Rock Hospital Umuelemai. I rushed home to collect moneyý when I returned to the Little Rock Hospital, I saw the deceased on the floor in the pool of his own blood. I was shocked and rushed into Dr. Kalios office and the Dr. Kalios informed me that the Deceased Angus had died, that the point he sustained injuries were bad places and that was why he bled to death; that those that brought him did not know that he had already died before they got to the hospitalý (See pages 40 to 42 of the Records of Appeal).
He was cross examined, and he kept his stand and said he was a close kinsman of both the Accused person and the deceased.
PW3 (Thomas Iwuji) gave evidence in the same direction as the PW2, that he saw when the Accused held the deceased by the neck dragging him and asked why the deceased was insulting his (accused) mother; the deceased kicked the accused and he fell; they fought and were separated and were advised to go. He said:
" then myself and Angus the deceased went our way through the other road... when myself and Angus were going, the accused ran pass me to the deceased who was in front. The deceased tried to run but something kicked Him and he fell down, the accused Chinedu then used the broken bottle he was having and stabbed the decease three times, the neck region, twice and the third one at the upper region of the jaw, which left the neck through the jaw to the mouth wide open. The accused, after stabbing the deceased ran away ý When Chinedu (the accused) attacked the deceased (Augus) there was no fighting between them. We were going home without having anything in mind; from the place where we separated them and the place where the stabbing took place is about 2 poles plus; (See page 48 to 49 of the Records).
PW3 corroborated the PW2's statement (evidence), that the two of them helped Angus Iwueze (deceased) on a motor cycle to the hospital; he added that he rushed to call the doctor, but when the doctor came out to examine him (the deceased) the doctor said the deceased was dead. Cross examined, he said he, PW2, Emmanuel Ndukanba and Jude Okeachu, witnessed the stabbing and he was the closest. He said the Accused ran away with the broken bottle, after stabbing the deceased.
PW4 was Emmanuel Ndukauba. His evidence was not different from those of PW2 and PW3, except that he explained what took the deceased, Angus Iwueze, to where Chinedu, the accused was. According to him, Angus Iwueze was brought to the Umuelemai junction by a motor cyclist, Uyom, and Angus gave the cyclist N200 Naira (note), to pay for the service, which was N100.00. The cyclist did not have "change" and so approached Chinedu's shed (selling at the junction) for 'change' to settle the deceased. He added:
"The accused said he had no change and started threatening Angus, the deceased, as killing why he the deceased, Angus was insulting his motherý The accused held the deceased, Chinedu held the deceased Angus by the neck, the accused collected by force the small carton Angus was having and threw same across the road. When Chinedu the accused threw away the carton of Angus the deceased rabbit fell from the carton, which Angus killed where he went to work. Angus the deceased looked up and saw Ahamefule and complained to him to see what the accused person was doing to himý The accused, Chinedu slapped and kicked him. Angus the deceased again complained to Ahamefule to see what the accused Chinedu was doingý Both Abgus and the accused Chinedu then started fighting. It was myself and Jude Ukachu who were the first that got to the scene, we then separated themý After separating the fight, Angus the deceased started going. I scolded Chinedu the accused for fighting Angus because I know Angus is his senior. Chinedu then ran into his shop and ran out and started running towards the direction Angus was going. Angus and Thomas (PW3) were going together, myself, Jude Ukachu and others were discussing, when the deceased proceeded to our direction crying with Thomas who was holding him by the jaw region where the accused Chinedu stabbed him " See pages 54 and 55 of the Records.
The various accounts and evidence of the three eye witnesses of the fight and subsequent stabbing of the deceased by the Appellant, as reproduced above, appear consistent, credible and honest, and I cannot see any disagreement or what the Appellant called material inconsistencies or contradiction. All the account, showed the Appellant as the aggressor, and revealed that, even after the fight was separated, and the Deceased (Angus Iwueze), left the scene of the fight and was going home, Appellant went into his mother's shop, armed himself with a broken bottle (which he broke) and ran after the deceased (Angus) who, by this time, never suspected any further threat to his life, as he was going home. And when he (Angus Iwueze) was alerted by on-lookers about the pursuit by the Appellant, he ran but fate appeared to still work against him as he stepped on something and fell down, to give the Appellant unrestrained opportunity to satisfy his wicked desire to spill his blood by stabbing his armless victim at sensitive, fragile parts, to kill him.
Appellant had admitted stabbing the deceased in his extra-judicial statements to the Police, even though he tried to retract the statement. Of course, by Law, retraction does not stop the Court from relying on a confessional statement to convict an accused person, once the Court is satisfied:
(1) That there is something outside the confessional statement which shows that it may be true.
(2) It is corroborated in any way,
(3) The relevant statements of fact made in it are mostly true as far as they can be tested
(4) The Accused person had opportunity of committing the offence.
(5) The confession was possible and
(6) is consistent with other facts which have been of ascertained and established.
See the case of Osuagwu Vs State (2009)1 NWLR (Pt.1123)523 Kabiru Vs A.G. Ogun State (2009) 5 NWLR (Pt.1134)209; Nwokearu Vs State (2010)15 NWLR (Pt.1215)1.
In the case of Musa Vs State (2014) LPELR -? 22912 (CA) (2014)24 WRN 101, it was held that:
"Even where an appellant retracted his confessional statement at the trial, the Court can still rely on the retracted confessional statement to convict him, where the statement is a direct, positive disclosure of facts that pin down the accused person to the offence. See also Blessing Vs FRN (2013)12 WRN 36, State Vs Salawu (2011) 18 NWLR (Pt.1279) 883.
Appellants two statements to the Police are on pages 32 to 34 of the Records of Appeal (Exhibits E and F). In Exhibit E, he admitted fighting with the deceased, but said that the deceased was the person who broke the bottle and came to stab him (Appellant) but that he struggled with deceased and in the course of the struggle and dragging, the bottle stabbed the Deceased "accidentally, the broken bottle stab him on his neck and he fell down unconscious..." But in Exhibit F, Appellant said:
'In addition to my earlier statements made to the Police on the SCID, Owerri on 24/11/07, I hereby (sic) all the following, points, that on the 22/11/07 while we were fighting with each other, I broke a small stout beer bottle which I used in stabbing the deceased on the upper part of his mouth, and twice in his neck which caused him serious injuries and; later died."
See page 34 of the Records of Appeal.
The two statements by the Appellant tend to align with the trend of the evidence by the prosecution witnesses, that Appellant fought with the deceased and later used broken bottle to stab him in the neck and in between lower and upper jaw.
The purported denial of the statements by the Appellant, can therefore not wish away the facts therein, which agree with the evidence of the prosecution witnesses. And the claim that Exhibit F was extracted, by torture of Appellant and so was involuntarily is laughable, as it was Appellant's Counsel, Chief Jamike Esq. who gave the evidence. He told the Court:
"the statement was extracted from the accused after being tortured by the IPO the IPO used baton to injure the accused on the head and thereafter caused him to sign a purported second statement wherein the witness stated that he broke a beer bottle and used same to stab the deceased..."
I cannot fathom what Appellant's Counsel tried to do by such unprofessional outburst, as he was not competent to turn himself into Appellant's witness giving such evidence from the BAR, as if he was there when the IPO tortured the Appellant to confess! If he thought that was an objection to the admissibility of the statement he was in grave error, as it did not lie in him to reject or deny the statement, on behalf of the Appellant. I think it was for Counsel to confront the Appellant with the statement, on being produced by the IPO, for Appellant's reaction and then tell the Court the reaction of the Appellant to it. If Appellant told him (Counsel) that he did not make the statement, or made it after being tortured, he (Counsel) would then call on the Court to hold a trial- within trial, to test the voluntariness of the statement. And it was for the Appellant to lead the evidence which the Counsel tried to give! As it were, there was no formal or valid objection to the admissibility of the statement, and no call for the Court to conduct trial-within trial. See the case of Blessing Vs FRN (2013)12 WRN 36; (20150 LPELR - 24689 (SC) and Okon Vs The State (2014) LPELR - 24018 (CA), where we held:
"The position of the law is that accused person who alleges that his confessional statement was obtained fraudulently or involuntarily, has a duty to raise objection to the tendering of the same and to call for a trial-within-trial, to determine the voluntaries of the same. See Oseni Vs State (2012) LPELR 7833 (SC) Alarape Vs The State (2001) FWLR (Pt.41) 1872 Oji Vs FRN (2013) All FWLR (Pt.668)920.
Of course, despite the flaws of Appellant's Counsel in raising the objection to the Exhibit F, the learned trial Court still considered the objection and rule in favour of admitting the document. It is noteworthy that Appellant did not appeal against that Ruling admitting the Exhibit F, as can be seen in the four grounds of appeal, listed below (without their particulars):
1) The learned trial Judge erred in law when he failed to resolve the material inconsistencies and doubts in the prosecution's case in favour of the Accused/Appellant
2) The learned trial Judge erred in law when he held there was no legal defence available to the Accused/Appellant.
3) The learned trial Judge erred in law when he convicted the Accused/Appellant by placing heavy reliance on the post mortem report.
4) The judgment of the Court is unjustifiable, having regard to the evidence before him (sic);
What this also shows is that Appellant's issue 3 "whether the confessional statements upon which the Appellant was convicted were proved to have been made voluntarily" was not founded on any ground of appeal, and so, liable to be struck out. See Ossai Vs FRN (2012) LPELR ý?? 19669 (CA); Agodi Vs Anyanwu (2014) LPELR ý?? 23746 (CA); Shettima Vs Goni (2011)18 NWLR (Pt.1297) 413; Afribank Plc Vs Yelwa (2011) NWLR (Pt.1261) 286.
The law is also trite that where a party fails to appeal against any relevant issue in a judgment, that issue is deemed settled, conclusive and binding. Nnaji & Anor Vs Alozie (2014) LPELR - 24014 (CA); Ojeabuo Vs FRN (2014) LPELR - 22555; Uwazuruike Vs Nwachukwu (2013)3 NWLR (pt.1342) 503.
Appellant had also made heavy weather about the autopsy report by the PW7, (medical doctor), that it was made in the absence of the Appellant and so the right of fair hearing of Appellant was violated. That, to me, is a strange submission, because I am not aware of any law that makes it mandatory for an accused person to be present when post mortem examination is conducted by a medical doctor (an expert and independent witness) on the body of the person the accused is alleged to have killed. If the accused insists to be present before the report is accorded acceptance by the Court, what about the person he is alleged to have murdered? How would the deceased be sure of fairness in the process? I think it is only a matter of convention that a relation or representative of the family of the deceased is always allowed to be present, to identify the body to the doctor, and where the Accused or his representative is available, he can witness the exercise. In this case, DW2 (Appellant's mother) was present and witnessed the conduct of the post mortem examination. Appellant's complaint therefore has no merit.
It should also be noted that medical evidence (report) is not a Sine qua non for the purpose of establishing cause of death in murder trial, where the death of the deceased occurred on the spot, or soon after the attack by the assailant (Accused person). See the case of Galadima Vs State (2013) LPELR -?? 20402 CA:
"It is settled law that in a murder charge, much as medical evidence is desirable to establish the cause of death, it is clearly not a sin qua non, as cause of death may be established by sufficient satisfactory and conclusive evidence, showing beyond reasonable doubt that the death of the deceased resulted from the particular act of defendant. Thus, where death is instantaneous or nearly so, medical evidence ceases to be of any practical or legal necessity- Essien Vs State (1984)3 SC 14; Agu Vs State (1993)6 NWLR (Pt.229) 303; Akpan Vs State (2008)14 NWLR (Pt.1106) 72; Adekunle Vs State (2006)14 NWLR (Pt.1104)361; Onyia Vs State (2006)11 NWLR (Pt.991)267.
In this case, where evidence showed that Appellant stabbed the deceased three times at soft, dangerous parts (the neck and jaw) and the deceased died soon thereafter on the way to the hospital, lying in the pool of his own blood, medical report, in my opinion, was not necessary to confirm that the death resulted from the callous attack by the Appellant. In the case of Adekunle Vs State (Supra), the deceased was shot by the defendant and was rushed to the hospital for treatment and he died the next day. The Supreme Court held that medical evidence was unnecessary; that the gun shot was the cause of death.
In the case of Kingsley C. Nwosu Vs The State: CA/OW/277c/2010 (a recent decision of this Court, delivered on 24/11/15), evidence showed, clearly, that Appellant dealt matchet cuts on the two hands of his victim, the skin peeled, exposing bones and blood gushed out and the victim was lying in a pool of his own blood; he was rushed to the hospital for treatment, where he died the next day. It was held;
"I do not think it required any medical report to link the death to the brutal matchet injuries inflicted on the deceased by Appellant the previous day, draining blood from his body. It is obvious from the circumstances of the death of the deceased that it was the attack (matchet cuts inflicted) on the deceased by the Appellant that caused his death. Medical evidence could therefore be dispensed with in such circumstances..."
It is obvious, too, that Appellant's brutal stabbing of the deceased was the direct cause of his death, soon after the attack. Appellant cannot say he did not mean to kill his victim, as the evidence shows he intended the probable consequences of such brutal stabbing of the deceased, three times on his delicate, sensitive parts. I resolve the 1st Issue against the Appellant.
The second Issue is whether the defences of self defence and provocation availed the Appellant. I think the evidence of the Appellant, as per Exhibit E, which says that the deceased was the actual person that attacked him (Appellant) with the broken bottle, but he (Appellant) struggled with the deceased and dragged and, accidentally, the broken bottle stabbed the deceased on the neck, was severely demolished by both the eye witness accounts (by PW2, PW3 and PW4) and by the Appellant, himself, in his second statement to the Police (Exhibit F). The basis of the claim of acting in self defence by Appellant, as alleged in the Exhibit E and his oral evidence in Court, was therefore defeated.
Appellant's lies on oath was also obvious, when he told the Court: "I did not stab the deceased with any broken bottle. I fought with the deceased only once. I had no intention of killing the deceased." (Page 80 of the Records). That, directly, contradicted his statement in Exhibit E (which he did not deny) wherein he admitted he stabbed the deceased, accidentally, on the neck!
The defence of self-defence or of provocation cannot be available to an accused person who was the aggressor. Evidence showed that the fight they had was separated, allowing a moment of calm and reflection, but he premeditatedly and callously picked up arm, pursued his armless victim, who had left the arena of fight, and inflicted fatal injuries on him (deceased). See the case of Mgboiko Vs The State (1972) LPELR 1872 (SC) and Nwuzoke Vs State (1988) NWLR (pt.72) 529, where the Supreme Court held:
"One point that must be emphasized with respect to the defence of self defence in cases of murder in our law is that it is a child of necessary. It is available to a defendant only when he proves that he was, at the time of the killing, in reasonable apprehension of the death or grievous harm and that it was necessary at the time to use the force which resulted in the death of the deceased, in order to preserve himself from the danger. The force used by the defendant must also be shown to be proportionate to the force used or imminently threatened against him, and reasonable in the circumstances in which it was used. There must be reasonable grounds for the accused person to believe that the only way by which he could escape death or grievous bodily harm to himself was to kill the assailant."
Certainly, the above principle cannot apply to Appellant in this appeal to justify the brutal murder of the deceased by the Appellant and to avail Appellant the defence of self defence any or of provocation. I agree with the learned trial Court that the defences of provocation and/or of self defence were not available to the Appellant.
It is also ridiculous for Appellant to reach out to the defence of provocation and of self defence, when in his evidence on oath, he denied committing the offence, and rejected his confessional statement, saying it was not voluntarily obtained. The defences of provocation and of self defence can only apply to one who admits the act and then pleads the defence. In the case of Kingsley C. Nwosu Vs The State (Supra) this Court held:
"It is therefore, unimaginable that Appellant could resort to the defence of self defence or of provocation, when he never admitted the offence, that he did the act... which led to the death of the deceased. By stoutly denying giving the matchet cuts to the deceased and alleging that another person did (by mistake), Appellant was closing every door of defence of provocation or of acting in self defence against himself, by so doing, and could not have raised such defence."
I cannot see any merit in this appeal and so resolve all the issues against the Appellant and dismiss the appeal.
PETER OLABISI IGE, J.C.A.:
I have been afforded the opportunity to read in advance the judgment just delivered by my Brother Mbaba, JCA.
I agree with the said judgment.
FREDERICK O. OHO, J.C.A.:
I have been privileged to have a preview of the draft of the judgment prepared by my learned brother, Ita G. Mbaba, JCA. I agree that the Appeal has no merit.
It is settled that a confession alone is sufficient to support a conviction even without corroboration, so long as the Court is satisfied of the truth of the confession. See JAMES OBI ACHABUA VS. THE STATE (1976) 12 SC.63 and a host of other decisions of Court on the issue. The truth of the matters admitted in the statement should as a rule, be established by some other evidence no matter how slight. See the Locus Classicus R. W. SYKES 8 C.A.R. 233 on the subject. In the instant case, the evidence of eyewitness were overwhelming. The PW2, PW3, PW4 and PW5 witnessed the fight and subsequent attack which resulted in the death of the deceased.
I am also unable to see any contradiction in the evidence of this eyewitnesses, if at all material sufficient enough to attract any comments from this Court. On the issues raised concerning the validity of the medical report when learned Appellant's counsel said that the autopsy report made in the absence of Appellant resulted in some irregularity which affected the right of fair hearing of the Appellant, I completely agree with my learned Brother who referred to that submission as "strange". For I have come across no such procedure which requires the physical attendance of an Accused person at the time of performance of an autopsy. And also in agreement with my learned Brother, the non-production of medical evidence to prove cause of death is usually not held fatal to the prosecution's case where the cause of death is obvious and clearly attributable to the actions of the accused person as witnessed by person at the scene of crime. There are very many old decision on this issue. See KATO DAN ADAMU vs. KANO N. A. (1956) 1 FSC 25; THE QUEEN vs. AKAMBI LAYIWOLA (196)) WRNLR 77; HOMMON vs. THE STATE (1967) 1 NWLR 23.
In the final analysis, I too will dismiss this Appeal as lacking in merit.
I.U.K. Nlem, Esq, with him, W.O. Cheta, Esq. - For Appellant
A.N. Ehuwa [Mrs] SA/PS Imo State with E.E Ibe, Esq. - Deputy DPP, MOJ Imo State, J.C. Alu, Esq. - SC, and V.U. Agi [Miss] SC - For Respondent