(2018) lpelr-46031(ca)lawpavilionpersonal.com/ipad/books/46031.pdfstate (2015) lpelr 25903, garba v...

OWOLABI v. STATE

CITATION: (2018) LPELR-46031(CA)

In the Court of AppealIn the Akure Judicial Division

Holden at Akure

ON WEDNESDAY, 28TH NOVEMBER, 2018Suit No: CA/AK/62C/2014

Before Their Lordships:

UZO IFEYINWA NDUKWE-ANYANWU Justice, Court of AppealMOHAMMED AMBI-USI DANJUMA Justice, Court of AppealRIDWAN MAIWADA ABDULLAHI Justice, Court of Appeal

BetweenVINCENT OWOLABI - Appellant(s)

AndSTATE - Respondent(s)

RATIO DECIDENDI

(201

8) LP

ELR-46

031(

CA)

1. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MURDER:Essential ingredients that must be proved by the prosecution to grounda conviction for murder"It has been held severally that in orderto secure a conviction in a charge of murder, the prosecution must provea. that the deceased had died b.that the death of the deceased wascaused by the accused c. that the act or omission of the accused wasintentional with knowledge that death or grievous bodily harm was itsprobable consequences. UBANI V STATE (2003) 18 NWLR (PT. 851) PG.224, UGURU V STATE (2002) 9 NWLR (PT. 771) PG. 90, IGABELE V STATE(2006) 6 NWLR (PT. 975) PG. 100, ADAVA V STATE (2006) 9 NWLR (PT.984) PG. 155. In every case where it is alleged that death has resultedfrom the act of a person, a causal link between the death and the actmust be established and proved beyond reasonable doubt. The first andlogical step in the process of such proof is to prove the cause of death.OFORLETE V STATE (2000) 12 NWLR (PT. 631) PG. 415. In proof of thecause of death, there was direct evidence of PW1 who was stabbed atthe scene. PW1 Corporal Adeniyi Abiodun, a police officer who was sentto arrest the Appellant on the complaint of his ex-wife that he hadreneged in the payment of maintenance for their two children in hercustody, PW1 went to arrest the Appellant in company of P. C.Osameyan. PW1 and his companion met the Appellant at Alapata. Theyasked the Appellant to follow them to the police station. He refused togo and there was a scuffle. The Appellant brought out a knife andstabbed the PW1 and the deceased. The PW1 was rushed to the hospitalbut the deceased fell down at the scene and probably died from loss ofblood before he could get help. PW4, Adeola Adekanye knew theAppellant and his brother before this incident. PW4 saw him bring out aknife from his pocket and stab the PW1 and the deceased. These aredirect evidence given by eye witnesses to the incident. The Appellantran away when he saw that the deceased had fallen as a result of hisinjuries. It was Samson, the Appellant's brother in-law and his friendSegun the deceased who identified the Appellant to the PW1 and hispartner for the initial attempt to arrest the Appellant. PW4 claimed thatthere were mainly witnesses to the stabbing but they were not willing tobe questioned. He stayed because his shop was near the scene. Now,the cause of death of the deceased, the next step is to link the cause ofdeath with the act of omission of the Appellant who caused it. Thedeceased died on the spot from the stab wound inflicted by theAppellant on him. Cause of the deceased death is inferred as thedeceased died immediately. UGURU V STATE (SUPRA)."PerNDUKWE-ANYANWU, J.C.A. (Pp. 16-18, Paras. D-F) - read in context

(201

8) LP

ELR-46

031(

CA)

2. CRIMINAL LAW AND PROCEDURE - DEFENCE OF SELF-DEFENCE/PROVOCATION: What an appellant must prove to availhimself of the defence of self-defence/provocation"The learned counsel for the Appellantargued that the learned trial Judge did not consider the defences ofprovocation and self-defence in favour of the Appellant. These defencesare usually considered to the benefit of the Appellant in certain caseswhere they actually plead those defences. In the present case, theAppellant said categorically that he did not stab anyone so thosedefences cannot be available to him. Even if the Appellant wasprovoked, the law permits him to use reasonable force. The Appellantwas carrying a knife in his pocket which he used when he was beendragged to be taken to the police station. It was not on record that thepolicemen were armed as the complaint at that time was a failure on thepart of the Appellant to pay maintenance of his children. It was purely acivil one. A person cannot defend himself to the extent of wielding aknife when there was no one with any weapon. The Appellant refused toaccompany the police with Okada. As they were negotiating to get avehicle, that was when the Appellant stabbed PW1 and the deceased.Therefore a defence of self-defence cannot even avail him. In murdercases, provocation is a defence. For provocation to constitute a defence,it must consist of three elements or ingredients which must co-existwithin a reasonable time, namely a. the act of provocation was done inthe heat of passion b. the loss of self-control both actual and reasonable,that is to say the act was done before there was time for cooling down,c. the retaliation is proportionate to the provocation. If the accusedraises the plea of provocation, it must be considered by the Judge but ifit is not raised like in this case, it will not be considered. ONYIA V STATE(2006) 11 NWLR (PT. 991) PG. 267, ULUEBEKA V THE STATE (2000) 4 SC(PT. 1) PG. 203. Self defence is only available to an accused if there is areasonable apprehension of death or grievous harm and if the personwho claims to have exercised that right had reasonable ground forbelieving that the only way to protect himself from death or grievousbodily harm was to kill his assailant. AUDU V STATE (2003) 7 NWLR (PT.820) PG. 516. In this case, no one was attacking the Appellant. Thepolice was trying to get a vehicle to convey him to the station when heattacked the PW1. He also attacked the deceased chasing him after thestab. He didn't stop chasing until the deceased fell, then he ran away.Can it be said that he was acting in self defence when he was theaggressor? I think not."Per NDUKWE-ANYANWU, J.C.A. (Pp.19-21, Paras. B-C) - read in context

(201

8) LP

ELR-46

031(

CA)

3. CRIMINAL LAW AND PROCEDURE - GRIEVOUS HARM: Ingredientsthat must be proved to establish the causing of grievous bodily harm"The Appellant argued that it wasimportant to determine the force with which the Appellant stabbed thedeceased and whether the Appellant intended to do the deceasedgrievous harm. An intention to cause death or grievous bodily harm isestablished if it is proved that the accused person, while actingdeliberately and intentionally, did an act, knowing it was probable it willresult in death or grievous bodily harm. AMAECHI V THE STATE (2014)LPELR 23779, OJUKOKAIYE V THE STATE (2015) LPELR 25942, EDEM VTHE STATE (2016) LPELR 41354 per Otisi JCA. See also BILLE V STATE(2016) LPELR 40832. The Appellant had a knife in his pocket which heused to stab the PW1 and the deceased. The PW1 was wounded but hesurvived. The deceased was not so lucky. The Appellant intended tocause grievous bodily harm to PW1 and the deceased. The force he usedwas great that the deceased died immediately on the spot. The intensityof the bodily harm can be inferred from the resultant effect of the stabwounds. PW1 survived but the deceased did not survive. As for causinggrievous harm, the following ingredients must be proved (a) That theaccused by his act caused bodily pain, disease or infirmity to thecomplainant. (b) That he did so intentionally with the knowledge that itwas likely to cause the harm or hurt. (c) That the act was unprovoked (d)That the accused caused the bodily harm by means of any weapon thatis likely to cause death or by means of any poison or any substancewhich itself is deleterious to the human body to inhale etc. NDUKA V THESTATE (2013) LPELR 21199, BILLE V STATE (SUPRA), ASUQUO V STATE(SUPRA)."Per NDUKWE-ANYANWU, J.C.A. (Pp. 21-23, Paras. D-A)- read in context

(201

8) LP

ELR-46

031(

CA)

4. EVIDENCE - MEDICAL EVIDENCE: Circumstance where medicalevidence would not be needed"The PW3 testified in Court that anautopsy was carried out on the body of the deceased by one Dr. Aribiyiand a medical report was issued. However, the medical doctor was notavailable to testify and tender the medical report. It is well settled thatmedical evidence or report is not a prerequisite for establishing thecause of death where there is evidence of the death of the deceasedand there is evidence that the death is as a result of the unlawful andintentional act of the accused person. See OKA V THE STATE (1977) 9/11SC PG. 17, EKANEM V STATE (2009) LPELR 4105, GALADIMA V STATE(2017) LPELR 41909 where Sanusi JSC held: "That I feel the tendering ofmedical report to confirm the death of a deceased victim is not materialin a situation where death was instantly caused by the act of or attackby the accused person as in this instant case." See also OMITILO VSTATE (2017) LPELR 42578. In this appeal, the deceased instantly diedon the spot. Therefore, cause of death can be inferred from thecircumstances of the stabbing by the Appellant."Per NDUKWE-ANYANWU, J.C.A. (P. 23, Paras. A-F) - read in context

5. EVIDENCE - TENDERING OF WEAPON OF CRIME: Whether weaponof offence must be tendered before the guilt of an accused can beestablished"There is no principle of law whichrequires the prosecution to tender the weapon used in an alleged crimein order to establish the guilt of the accused person. OLAYINKA V THESTATE (2007) 9 NWLR (PT. 1040) PG. 561. It is settled law that wherethere is cogent evidence of the use of a weapon or weapons in thecommission of a crime and cogent evidence linking the accused personwith the use of the said weapon or weapons in the commission of thesaid crime, the non-tendering of the weapon at the trial is of noconsequence and cannot vitiate a judgment per Abiru JCA in IDRIS VSTATE (2015) LPELR 25903, GARBA V STATE (2000) 4 SCNJ PG. 315,OCHIBA V STATE (2010) LPELR 9002, ADAMU V STATE (2017) LPELR41436. The Appellant took out a knife from his pocket, stabbed PW1 andthe deceased before running away. The identity of the Appellant in thiscase was not in doubt. Samson, Eunice and Segun the deceased actedas pointers to the police to apprehend the Appellant for non-payment ofmaintenance of his children's upkeep. The PW4 positively identified himas he knew him before the incident. PW4 identified him as the personwho stabbed the PW1 and the deceased. There is no doubt as to theidentity of the Appellant. See ARCHIBONG V STATE (2004) 1 NWLR (PT.855) PG. 488, ALADU V STATE (1998) 8 NWLR (PT. 563) PG. 618, IGBI VSTATE (2000) 2 SC PG. 67."Per NDUKWE-ANYANWU, J.C.A. (Pp.24-25, Paras. A-B) - read in context

(201

8) LP

ELR-46

031(

CA)

6. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burdenand standard of proof in criminal cases; whether the burden of proof onthe prosecution can shift to the accused person"In criminal trial, the burden of proving the guilt of the accused person ison the prosecution to establish his guilt beyond reasonable doubt and itnever shifts. ANI V STATE (2003) 11 NWLR (PT. 830) PG. 142, IFEJIRIKA VSTATE (1999) 3 NWLR (PT. 593) PG. 59, IGABELE V STATE (SUPRA)."PerNDUKWE-ANYANWU, J.C.A. (Pp. 25-26, Paras. F-A) - read in context

7. EVIDENCE - STANDARD OF PROOF: Standard of proof in criminalcases"The proof of guilt for capital offences ispegged at the standard of proof beyond reasonable doubt. It is for thisreason that evidence led is subjected to merciless scrutiny, for theavoidance of miscarriage of Justice a great human risk and possibility.See Shande Vs The State 2005 LRCN. However, the evidence of theprosecution witnesses herein show beyond reasonable doubt thecausing of death in the circumstances charged. No attenuating evidencewas led by the appellant herein as he called no witnesses nor tenderedany exhibits in rebuttal."Per DANJUMA, J.C.A. (P. 26, Paras. C-E)- read in context

8. EVIDENCE - MEDICAL EVIDENCE: Circumstance where medicalevidence would not be needed"Learned Counsel for the Appellantcontended that the failure of the Respondent to call the medical Doctorthat performed the autopsy is fatal to its case. The Law is trite that, inmurder cases medical evidence is said not to be always essential,especially where the death is instantaneous as in the instant case. Thisis because, even in the absence of medical evidence the cause of deathcan be established by oral evidence showing beyond reasonable doubtthat the death of the deceased arose from the act of the Appellant. Inthe instant case, PW1 gave an eye witness accounts on how thedeceased met his death from the hand of the Appellant. To establish thecause of death of a deceased, it is not necessary for the pathologist whoperformed autopsy on a deceased to testify. See Section 55 of theEvidence Act."Per ABDULLAHI, J.C.A. (Pp. 27-28, Paras. E-D) -read in context

(201

8) LP

ELR-46

031(

CA)

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

(Delivering the Leading Judgment): This is an appeal

against the judgment of the High Court of Ondo State

delivered by Hon. Justice O. O. Akeredolu on the 20th

December, 2013 wherein the Appellant was sentenced to

death and 14 years imprisonment for the respective

offences of murder and attempted murder.

On 15th November, 2012, the Appellant was arraigned

before the State High Court of Ondo State on a two count

charge of attempted murder and murder pursuant to

Section 319 (1) and 320 of the Criminal Code, Cap 30, Vol.

II, Laws of Ondo State of Nigeria, 1978 (now Cap 37, Vol.1,

Laws of Ondo State, 2006)

The Appellant pleaded not guilty to the offences contained

in the charge.

The facts relied upon by the prosecution were that the

Appellant was married to one Eunice Sunday and the

marriage was blessed with three children. The couple had a

serious misunderstanding and since they could not be

reconciled, the marriage was dissolved by a Court of law

with an order that two of the children remain in the wife’s

custody while the Appellant should have the custody of the

remaining one.

1

(201

8) LP

ELR-46

031(

CA)

The Court also ordered the Appellant to pay a sum of

N4,000.00 to his ex-wife for the maintenance of the two

children in her custody. On 20th September, 2010, the

Appellant went to his ex-wife’s house in company of his

brother, Philip to inform her that he was not ready to

comply with the order of the court regarding the payment

of N4,000.00 monthly. An altercation ensued and the

Appellant allegedly beat up his ex-wife. In the light of this,

the Appellant’s ex-wife, her brother Samson and his friend

Segun Oloruntoba (the deceased) all went to report to the

police and two policemen were detailed to go with the

complainants and effect the Appellant’s arrest. The

Appellant violently resisted arrest by stabbing one of the

police officers (PW1) with a knife in the neck region

(shoulder). He was immediately rushed to the hospital and

his life was saved, but the deceased who grabbed the

Appellant with a view to preventing his escape was not that

lucky as he was also stabbed by the Appellant with the

same knife and the wound led to the deceased’s death a

few minutes thereafter.

The Prosecution called four witnesses in proof of its case

and tendered

2

(201

8) LP

ELR-46

031(

CA)

Exhibits P1 – P9, while the Appellant in his defence testified

on his behalf and called no other witness neither did he

tender any exhibits.

At the close of the evidence from both sides and addresses

by counsel, the learned trial judge in its judgment found the

Appellant guilty of the offences charged and sentenced him

accordingly.

Dissatisfied with the judgment of the trial Court, the

Appellant appealed against the judgment by filling a Notice

of Appeal dated 2nd January, 2014. By an order of this

Court garnered on 22nd September, 2014 the Appellant

filed an Amended Notice of Appeal consisting of 6 grounds

of appeal.

In line with the Rules and Practice of this Court the parties

filed their respective brief of argument. The Appellant filed

his brief on 19th November, 2015 but deemed properly

filed on 6th June, 2016 – wherein he formulated the

following two issue for determination:

1. Whether the prosecution can be conveniently said

to have proved the offence of the murder beyond

reasonable doubt against the Appellant as to warrant

the decision of the trial Judge convicting and

sentencing the Appellant to death.

3

(201

8) LP

ELR-46

031(

CA)

2. Whether the trial Judge was correct in his decision

convicting and sentencing Appellant to 14 years

imprisonment for attempted murder.

While the Respondent on the other hand filed its brief on

29th July, 2016 which was deemed properly filed on 27th

March, 2017 – wherein it formulated three issues for

determination as follows:

1. Whether the direct evidence of PW1, PW4 and

other pieces of circumstantial evidence were

sufficient to establish the ingredients of attempted

murder and murder against the Appellant in this case

(Grounds 2 and 6 of the Grounds of Appeal)

2. Whether the refusal of the trial Court to rely on the

inconsistent statements of the Appellant amounted to

denial of fair hearing (Grounds 3, 4 and 5 of the

Grounds of Appeal).

3. Whether the Respondent could validly exercise its

discretion to charge a particular suspect or call a

particular witness (Ground 1 of the Grounds of

Appeal).

Looking at the issues formulated by the parties it is glaring

that issue 1 and 2 formulated by the Appellant is the same

with issue one formulated by

4

(201

8) LP

ELR-46

031(

CA)

the Respondent and thus shall be treated together as issue

1.

ISSUE 1

It was contended for the Appellant that the offence of

murder and attempted murder was not proved beyond

reasonable doubt to warrant the conviction and sentence

imposed by the trial Court.

On the offence of murder, Counsel submitted that for the

Respondent to secure a conviction of murder against the

Appellant, it must prove all the three essential elements of

the offence beyond reasonable doubt. He relied on the

cases of SUNDAY V STATE (2015) 17 WRN 52; AJAYI V

STATE (2011) 22 WRN 51; AJAKAIYE V THE STATE

(2015) 5 WRN 64; SULE V STATE (2009) 29 WRN 1;

NKEBISI V STATE (2000) 22 WRN 176; MBANG V

STATE (2010) 7 NWLR (Pt 1194) 431. He further

submitted that the prosecution may do so either through

direct evidence, circumstantial evidence or the confessional

statement of the accused. He relied on the case of

AJAKAIYE V STATE (SUPRA).

However, instead of the counsel for the Appellant to show

how and where the Respondent failed in proving the

offence of murder against the Appellant beyond reasonable

doubt, counsel faulted the trial Court for not considering

the

5

(201

8) LP

ELR-46

031(

CA)

defences of provocation and self defence in favour of the

Appellant despite having not raised same at the trial Court.

He submitted that having regard to the cumulative conduct

of the deceased towards the Appellant (i.e. from when the

deceased accompanied his friend and Appellant’s ex-wife to

demand in an unfriendly manner the sum due to the

Appellant’s ex-wife, to when they reported the Appellant to

the police and then the act of the deceased dragging the

Appellant in the full glare of the public) and the fact that

the deceased had no direct relationship to the Appellant’s

ex-wife the trial Court ought to have suo motu considered

the defence of provocation and self defence in favour of the

Appellant. He submitted that a successful plea of

provocation would have reduced the murder charge to that

of manslaughter. He contended that since the element of

manslaughter is similar to that of the offence of murder the

trial Court also ought not to sustained the offence of

manslaughter against the Appellant as the Appellant had

failed to established that the Appellant intended to either

kill or cause grievous bodily injury to the deceased.

6

(201

8) LP

ELR-46

031(

CA)

It is the contention of counsel that the PW4 having testified

that he only saw the Appellant stab the deceased once, it

was necessary to determine the force with which the

Appellant stabbed the deceased in order to establish that

the Appellant had the intention to kill or cause grievous

bodily harm. In the instant case, counsel submitted that

there was no evidence on the seriousness or otherwise of

the injury inflicted on the deceased as the Respondent

failed to call the medical doctor that performed the autopsy

while Exhibit P9 (the medical report) is documentary

hearsay having not been tendered by the maker. He

submitted that the failure of the Respondent to provide

medical evidence to prove intent of the Appellant was fatal

to its case.

He also contended that the failure of the Respondent to

tender alleged knife in evidence was fatal to its case.

In the alternative, counsel submitted that the defence of

self defence ought to avail the Appellant. He provided the

following facts to support his defence of self defence. They

are:

1. The deceased had no business dragging the Appellant.

7

(201

8) LP

ELR-46

031(

CA)

2. The deceased was not the person whom the Appellant

owed money.

3. The deceased had no direct relationship with the

Appellant’s ex-wife to whom money was owed.

4. The deceased was a friend to the Appellant’s brother.

5. The deceased ought not to be assisting the Police to

effect arrest, most especially when the police officers had

gone.

6. The failure of the Respondent to prove that the use of

force by the Appellant was not out of proportion.

It is the contention of counsel that based on the above facts

the trial Court ought to have discharged and acquitted the

Appellant based on the defence of self defence. He

submitted that the trial Court ought not to have inferred

based on the nature of the weapon used that the Appellant

had the intention to kill the deceased but on the amount of

force used. He relied on the cases of UDOFIA V THE

STATE (SUPRA); R V. OYEMAIZU (1958) NRNLR 93.

He thus urged this Court to discharge and acquit the

Appellant on count 1 (Murder charge).

On the offence of attempted murder, counsel submitted

that the charge was not proved beyond reasonable doubt.

8

(201

8) LP

ELR-46

031(

CA)

He submitted that there was no material evidence placed

before the trial Court showing that the Appellant intended

to either kill or inflict grievous bodily injury on Pw1. He

submitted that the mere stabbing of Pw1 on the neck was

not sufficient to infer that there was an intention to kill.

Counsel went further to point out some facts in the

evidence of the Prosecution which shows that the Appellant

had no intention to kill PW1. They include:

1. The fact that the Appellant stabbed Pw1 on the neck only

once.

2. The fact that Pw1 was able to call his DPO upon getting

to the hospital shows that the injuries sustained were not

serious enough to cause an apprehension of loss of life.

3. The absence of medical evidence.

In the light of the above, counsel submitted that the charge

of attempted murder could not be taken as proved. He

submitted at best what the evidence of the prosecution

disclosed was assault occasioning bodily harm. He thus

urged this Court to so hold.

In the alternative, counsel submitted that the defence of

mistake of fact/law, provocation and self defence will avail

the

9

(201

8) LP

ELR-46

031(

CA)

Appellant. He submitted that Pw1 and his colleague having

failed to properly identify themselves as police officer, the

Appellant was of the mistaken belief that they were

sympathizers of his ex-wife coming to harass him once

more. Thus, he was only defending himself against the act

of violence of Pw1. He relied on Section 25 of the Criminal

Code. Although counsel acknowledged that the said

defence was not raised by the Appellant or his counsel at

the trial Court, counsel contended that it is trite that the

trial Court had the duty to consider any defences open to

the accused suo motu.

He thus urged this Court to allow this appeal, discharge

and acquit the Appellant.

For the Respondent, it was contended that the Respondent

having proved through the unchallenged evidence of PW1,

PW4 and Exhibits P1, P2, P4, P5, P6 and P7 that the

Appellant stabbed Pw1 on his neck with a knife, the trial

Court was right in convicting and sentencing the Appellant

for the offence of attempted murder. He referred to the

case of EGHAREVBA V OSAGIE (2009) 12 (Pt. 2) SCM

38.

10

(201

8) LP

ELR-46

031(

CA)

He also submitted that the Appellant’s argument that a

medical report is mandatory to prove attempted murder is

misconceived. It is the contention of counsel that where

there is other evidence upon which the cause of death can

be inferred it is not vital to have resort to medical report.

He referred to the cases of BAKORI V STATE (1980) 8 –

11 SC 81; ONWUMERE V STATE (2009) 8 ACLR 411.

He submitted that contrary to the contention of the

Appellant the evidence of Pw1 and Pw4 did not leave any

reasonable man in doubt that the Pw1 and his colleague

were policemen. He also contended that even if Pw1 and

his colleague did not properly identify themselves, the

attack on Pw1 cannot be justified.

He also submitted that non-production of the knife is not

fatal to the Respondent’s case as there was sufficient

evidence from which same could be inferred. He referred to

the case of STATE V USMAN (2007) 5 ACLR 34; STATE

V IRONSI (1969) 1 NMLR 20.

He thus urged this Court to hold that the Respondent did

prove the ingredients of the offence of attempted murder

against the Appellant.

On the offence of murder, counsel enumerated the

ingredient of the offence and submitted that the

Respondent prove

(201

8) LP

ELR-46

031(

CA)

11

(201

8) LP

ELR-46

031(

CA)

beyond reasonable doubt all the elements/ingredients of

the offence through the direct evidence and circumstantial

evidence of PW1, PW2, PW3, PW4 and Exhibit P9.

On the Appellant’s contention that Exhibit P9 fall under

documentary hearsay, counsel submitted that PW3 having

laid the necessary foundation on the whereabouts of the

Pathologist Exhibit P9 is admissible under Section 39(d) of

the Evidence Act. He referred to the cases of AWOSIKA V

THE STATE (2010) 9 NWLR (Pt. 1198) 96; OLABODE

V THE STATE (2009) 7 SCM 96. He thus urged this

Court to discountenance the Appellant’s argument that the

pathologist who issued Exhibit P9 must be called upon to

give evidence in view of Section 55 (1) and (3) of the

Evidence Act. He referred to the cases of SOLOMON

EHOT V THE STATE (1993) 4 NWLR (Pt 290) 644;

ADEOTI & ORS V THE STATE (2009) 8 ACLR 231.

In the alternative, counsel submitted that the evidence of

Pw1 (the eye witness) alone without any medical evidence

was sufficient to prove that the death of the deceased was

caused by the act of the Appellant. He relied on the cases

ofALIYU V THE STATE (2014) 10 ACLR 208;

ONWUMERE V

12

(201

8) LP

ELR-46

031(

CA)

THE STATE (SUPRA). He contended that tendering of

Exhibit P9 was just a surplus.

On intention to kill, counsel submitted that intention to kill

can be deduced from the nature of the weapon used and

the wound inflicted. He referred to the cases of EHOT V

THE STATE (SUPRA); STATE V USMAN (SUPRA). He

submitted that the eye witness account of PW4 discloses

that the Appellant stabbed the deceased with a knife at the

back and hotly pursued him that he only left the deceased

at his dying and helpless moment. He also submitted that

the failure of the Appellant to rebut the presumption of

sound mind reinforces the contention that he intended to

kill the deceased. He referred to Section 27 of the Criminal

Code, Cap 37, Laws of Ondo State, 2006.

He also contended that it is not the duty of the trial Court

to speculate on possible defences for the Appellant. He

cited the cases of PAUL OBOH V THE STATE (1987)

NWLR (Pt 47) 26; OJO V THE STATE (1973) 12 SC

147. He urged this Court to discountenance the Appellant’s

argument to that regard.

He further submitted that the Appellant having denied in

his two statements of committing the crime the defence of

13

(201

8) LP

ELR-46

031(

CA)

provocation and self defence canvassed by the Appellant in

his brief would not avail him. He also contended that the

defences would not avail the Appellant as there was no

evidence on record to support same. He relied on the case

of PETER V THE STATE (2007) 5 ACLR 192.

On the failure to tender the knife, counsel contended that

the failure to tender the weapon is not fatal where there is

sufficient evidence in the testimonies of witnesses from

which inferences can be drawn.

He also submitted that the Appellant having failed to

properly couch the omnibus ground of appeal (ground 6 in

this appeal) in a criminal appeal, counsel urged this Court

to discountenance same.

He thus urged this Court to resolve this issue in favour of

the Respondent.

ISSUE 2

Counsel for the Respondent submitted that the statement of

the Appellant been inconsistent with his evidence at the

tr ia l Cour t the t r ia l judge was r ight to have

discountenanced the extra-judicial statement and the oral

evidence of the Appellant. He submitted that the act of the

trial Court to discountenance both the statement and

evidence of the Appellant does not amount to denial of fair

14

(201

8) LP

ELR-46

031(

CA)

hearing as the trial Court was acting within the ambit of

the law and no justification of the inconsistency was given

by the Appellant. He referred to the judgment of the trial

Court at page 63 line 45 of the record. He relied on the

case of EDOHO V THE STATE (2010) 6 SCM 52.

ISSUE 3

Counsel for the Respondent submitted that by virtue of

Section 211 (1) (a) of the 1999 Constitution (as amended)

the power to institute criminal proceeding against any

person is vested on the Attorney General and not the

Appellant. He therefore submitted that the Appellant had

no right to decide whom (and by whom he meant Samson)

the prosecution should charge for the offences committed

in this case in his statement (Exhibit 8). He contended that

the initial arrest of Samson and the Appellant ex-wife was a

normal procedure by the police to arrest people within the

vicinity of a murder incident in order to carry out

investigation. He submitted that after the investigation

were cleared and both the Appellant’s ex-wife and Samson

made statements as prosecution witness and not suspects.

He submitted that if the said statement was material to the

Appellant’s case

15

(201

8) LP

ELR-46

031(

CA)

he could have applied for them to be called to give

evidence. He submitted that the Respondent is not bound

to call a host of witnesses to prove its case but all the

prosecution needed to do was to call enough material

witnesses. He referred to Section 200 of the Evidence Act

and the cases of OLAYINKA V THE STATE (2008) 6

ACLR 209; ALABI V THE STATE (1993) 7 NWLR (Pt

307) 511.

He thus urged this Court to affirm the conviction and

sentence of the trial Court.

RESOLUTION

The prosecution in proving the case of murder against the

Appellant called four (4) witnesses and tendered Exhibit P1

– P9. It has been held severally that in order to secure a

conviction in a charge of murder, the prosecution must

prove

a. that the deceased had died

b.that the death of the deceased was caused by the accused

c. that the act or omission of the accused was intentional

with knowledge that death or grievous bodily harm was its

probable consequences.

UBANI V STATE (2003) 18 NWLR (PT. 851) PG. 224,

UGURU V STATE (2002) 9 NWLR (PT. 771) PG. 90,

16

(201

8) LP

ELR-46

031(

CA)

IGABELE V STATE (2006) 6 NWLR (PT. 975) PG. 100,

ADAVA V STATE (2006) 9 NWLR (PT. 984) PG. 155.

In every case where it is alleged that death has resulted

from the act of a person, a causal link between the death

and the act must be established and proved beyond

reasonable doubt. The first and logical step in the process

of such proof is to prove the cause of death. OFORLETE V

STATE (2000) 12 NWLR (PT. 631) PG. 415.

In proof of the cause of death, there was direct evidence of

PW1 who was stabbed at the scene. PW1 Corporal Adeniyi

Abiodun, a police officer who was sent to arrest the

Appellant on the complaint of his ex-wife that he had

reneged in the payment of maintenance for their two

children in her custody, PW1 went to arrest the Appellant

in company of P. C. Osameyan. PW1 and his companion met

the Appellant at Alapata. They asked the Appellant to follow

them to the police station. He refused to go and there was

a scuffle.

The Appellant brought out a knife and stabbed the PW1 and

the deceased. The PW1 was rushed to the hospital but the

deceased fell down at the scene and probably died from

loss of blood before he could get help.

17

(201

8) LP

ELR-46

031(

CA)

PW4, Adeola Adekanye knew the Appellant and his brother

before this incident. PW4 saw him bring out a knife from

his pocket and stab the PW1 and the deceased. These are

direct evidence given by eye witnesses to the incident. The

Appellant ran away when he saw that the deceased had

fallen as a result of his injuries. It was Samson, the

Appellant’s brother in-law and his friend Segun the

deceased who identified the Appellant to the PW1 and his

partner for the initial attempt to arrest the Appellant. PW4

claimed that there were mainly witnesses to the stabbing

but they were not willing to be questioned. He stayed

because his shop was near the scene.

Now, the cause of death of the deceased, the next step is

to link the cause of death with the act of omission of the

Appellant who caused it. The deceased died on the spot

from the stab wound inflicted by the Appellant on him.

Cause of the deceased death is inferred as the deceased

died immediately. UGURU V STATE (SUPRA).

The Appellant denied making the statements tendered as

Exhibit P8.

18

(201

8) LP

ELR-46

031(

CA)

His evidence viva voce is at variance with his extra-judicial

statement. He denied ever stabbing PW1 and the deceased.

He claimed they were stabbed by Samson his brother in-

law. The Appellant called no other witness to corroborate

this allegation.

The learned counsel for the Appellant argued that the

learned trial Judge did not consider the defences of

provocation and self-defence in favour of the Appellant.

These defences are usually considered to the benefit of the

Appellant in certain cases where they actually plead those

defences. In the present case, the Appellant said

categorically that he did not stab anyone so those defences

cannot be available to him.

Even if the Appellant was provoked, the law permits him to

use reasonable force. The Appellant was carrying a knife in

his pocket which he used when he was been dragged to be

taken to the police station. It was not on record that the

policemen were armed as the complaint at that time was a

failure on the part of the Appellant to pay maintenance of

his children. It was purely a civil one.

A person cannot defend himself to the extent of wielding a

knife when there

19

(201

8) LP

ELR-46

031(

CA)

was no one with any weapon. The Appellant refused to

accompany the police with Okada. As they were negotiating

to get a vehicle, that was when the Appellant stabbed PW1

and the deceased. Therefore a defence of self-defence

cannot even avail him.

In murder cases, provocation is a defence. For provocation

to constitute a defence, it must consist of three elements or

ingredients which must co-exist within a reasonable time,

namely

a. the act of provocation was done in the heat of passion

b. the loss of self-control both actual and reasonable, that is

to say the act was done before there was time for cooling

down,

c. the retaliation is proportionate to the provocation.

If the accused raises the plea of provocation, it must be

considered by the Judge but if it is not raised like in this

case, it will not be considered. ONYIA V STATE (2006)

11 NWLR (PT. 991) PG. 267, ULUEBEKA V THE

STATE (2000) 4 SC (PT. 1) PG. 203.

Self defence is only available to an accused if there is a

reasonable apprehension of death or grievous harm

20

(201

8) LP

ELR-46

031(

CA)

and if the person who claims to have exercised that right

had reasonable ground for believing that the only way to

protect himself from death or grievous bodily harm was to

kill his assailant. AUDU V STATE (2003) 7 NWLR (PT.

820) PG. 516.

In this case, no one was attacking the Appellant. The police

was trying to get a vehicle to convey him to the station

when he attacked the PW1. He also attacked the deceased

chasing him after the stab. He didn’t stop chasing until the

deceased fell, then he ran away. Can it be said that he was

acting in self defence when he was the aggressor? I think

not!

The Appellant argued that it was important to determine

the force with which the Appellant stabbed the deceased

and whether the Appellant intended to do the deceased

grievous harm.

An intention to cause death or grievous bodily harm is

established if it is proved that the accused person, while

acting deliberately and intentionally, did an act, knowing it

was probable it will result in death or grievous bodily

harm. AMAECHI V THE STATE (2014) LPELR 23779,

OJUKOKAIYE V THE STATE (2015) LPELR 25942,

EDEM V THE

21

(201

8) LP

ELR-46

031(

CA)

STATE (2016) LPELR 41354 per Otisi JCA. See also

BILLE V STATE (2016) LPELR 40832.

The Appellant had a knife in his pocket which he used to

stab the PW1 and the deceased. The PW1 was wounded but

he survived.

The deceased was not so lucky. The Appellant intended to

cause grievous bodily harm to PW1 and the deceased. The

force he used was great that the deceased died

immediately on the spot. The intensity of the bodily harm

can be inferred from the resultant effect of the stab

wounds. PW1 survived but the deceased did not survive. As

for causing grievous harm, the following ingredients must

be proved

(a) That the accused by his act caused bodily pain, disease

or infirmity to the complainant.

(b) That he did so intentionally with the knowledge that it

was likely to cause the harm or hurt.

(c) That the act was unprovoked

(d) That the accused caused the bodily harm by means of

any weapon that is likely to cause death or by means of any

poison or any substance which itself is deleterious to the

human body to inhale etc.

22

(201

8) LP

ELR-46

031(

CA)

NDUKA V THE STATE (2013) LPELR 21199, BILLE V

STATE (SUPRA), ASUQUO V STATE (SUPRA).

The PW3 testified in Court that an autopsy was carried out

on the body of the deceased by one Dr. Aribiyi and a

medical report was issued.

However, the medical doctor was not available to testify

and tender the medical report. It is well settled that

medical evidence or report is not a prerequisite for

establishing the cause of death where there is evidence of

the death of the deceased and there is evidence that the

death is as a result of the unlawful and intentional act of

the accused person. See OKA V THE STATE (1977) 9/11

SC PG. 17, EKANEM V STATE (2009) LPELR 4105,

GALADIMA V STATE (2017) LPELR 41909 where

Sanusi JSC held:

“That I feel the tendering of medical report to

confirm the death of a deceased victim is not material

in a situation where death was instantly caused by the

act of or attack by the accused person as in this

instant case.”

See also OMITILO V STATE (2017) LPELR 42578.

In this appeal, the deceased instantly died on the spot.

Therefore, cause of death can be inferred from the

circumstances of the stabbing by the Appellant.

23

(201

8) LP

ELR-46

031(

CA)

There is no principle of law which requires the prosecution

to tender the weapon used in an alleged crime in order to

establish the guilt of the accused person. OLAYINKA V

THE STATE (2007) 9 NWLR (PT. 1040) PG. 561.

It is settled law that where there is cogent evidence of the

use of a weapon or weapons in the commission of a crime

and cogent evidence linking the accused person with the

use of the said weapon or weapons in the commission of

the said crime, the non-tendering of the weapon at the trial

is of no consequence and cannot vitiate a judgment per

Abiru JCA in IDRIS V STATE (2015) LPELR 25903,

GARBA V STATE (2000) 4 SCNJ PG. 315, OCHIBA V

STATE (2010) LPELR 9002, ADAMU V STATE (2017)

LPELR 41436.

The Appellant took out a knife from his pocket, stabbed

PW1 and the deceased before running away.

The identity of the Appellant in this case was not in

doubt. Samson, Eunice and Segun the deceased acted as

pointers to the police to apprehend the Appellant for non-

payment of maintenance of his children’s upkeep. The PW4

positively identified him as he knew him before the

incident.

24

(201

8) LP

ELR-46

031(

CA)

PW4 identified him as the person who stabbed the PW1 and

the deceased. There is no doubt as to the identity of the

Appellant. SeeARCHIBONG V STATE (2004) 1 NWLR

(PT. 855) PG. 488, ALADU V STATE (1998) 8 NWLR

(PT. 563) PG. 618, IGBI V STATE (2000) 2 SC PG. 67.

The prosecution was able to prove the charge of murder

against the Appellant in that, it proved that

1. the deceased died

2. that it was the accused that caused the unlawful death of

the deceased

3. that the act/omission of the accused that caused the

death was an intentional one with the knowledge of the

accused that the Act/omission would result in the death or

grievous bodily harm.

The Appellant’s counsel had argued that Samson and

Eunice were not charged. They were investigated and

dropped and only needed them as prosecution witnesses. It

was obvious that the Appellant was the accused person.

In criminal trial, the burden of proving the guilt of the

accused person is on the prosecution to establish his guilt

beyond reasonable doubt and it never shifts. ANI V

STATE (2003) 11 NWLR (PT. 830) PG. 142,

25

(201

8) LP

ELR-46

031(

CA)

IFEJIRIKA V STATE (1999) 3 NWLR (PT. 593) PG. 59,

IGABELE V STATE (SUPRA).

I believe that the prosecution has proved its case beyond

reasonable doubt. Therefore, the judgment of the trial

Court is right. This appeal is unmeritorious. It is dismissed.

I therefore affirm the judgment conviction and sentencing

to death by hanging of the Appellant.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: The proof of

guilt for capital offences is pegged at the standard of proof

beyond reasonable doubt.

It is for this reason that evidence led is subjected to

merciless scrutiny, for the avoidance of miscarriage of

Justice a great human risk and possibility. See Shande Vs

The State 2005 LRCN

However, the evidence of the prosecution witnesses herein

show beyond reasonable doubt the causing of death in the

circumstances charged. No attenuating evidence was led

by the appellant herein as he called no witnesses nor

tendered any exhibits in rebuttal.

I subscribe to the views and Judgment of my brother, Uzo

.I. Ndukwe-Anyanwu, JCA that the appeal be dismissed.

26

(201

8) LP

ELR-46

031(

CA)

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had the

advantage of reading before now the judgment just

delivered by my learned brother, Uzo l. Ndukwe-Anyanwu,

JCA. I am in entire agreement with the reasons and

conclusion of my noble Lord that this appeal is lacking in

merit and deserves to be dismissed. However, I will like to

add a few words in support of the lead judgment.

The appellant was charged for the offence of attempted

murder and murder pursuant to Section 319 (1) and 320 of

the Criminal Code, cap 30, Vol. 11, Laws of Ondo State

(2006). In proof of the case, the prosecution called four (4)

witnesses, PW 1 - PW4. PW 1 and PW4 were eye witnesses

and gave a direct evidence of the incidence. Evidence are

abound on how the Appellant took out a knife from his

pocket and stab PW1 and the deceased. The deceased died

instantaneous while PW1 was rushed to hospital and luckily

survived.

Learned Counsel for the Appellant contended that the

failure of the Respondent to call the medical Doctor that

performed the autopsy is fatal to its case. The Law is trite

that, in murder cases medical evidence is said not to be

always essential, especially where the death is

instantaneous as

27

(201

8) LP

ELR-46

031(

CA)

in the instant case. This is because, even in the absence of

medical evidence the cause of death can be established by

oral evidence showing beyond reasonable doubt that the

death of the deceased arose from the act of the Appellant.

In the instant case, PW1 gave an eye witness accounts on

how the deceased met his death from the hand of the

Appellant. To establish the cause of death of a deceased, it

is not necessary for the pathologist who performed autopsy

on a deceased to testify. See Section 55 of the Evidence

Act. For these reasons/comments and the fuller and more

detai led one ably and adequately given in the

lead judgment. I too see no merit in this appeal and is

accordingly dismissed. I affirm the judgment conviction

and sentence of the appellant by the lower Court.

28

(201

8) LP

ELR-46

031(

CA)

Appearances:

E. I . Oboh, with him O. J . Oyetuga ForAppellant(s)

G. A. Olowoporoku (D.P.P. Ondo State), with himD.C. Olafimihan (ACLO), J.D. Joshua SLO, B. U.Falodun (ACLO Ministry of Justice, Ondo State)For Respondent(s)

(201

8) LP

ELR-46

031(

CA)

(2018) lpelr-46031(ca)lawpavilionpersonal.com/ipad/books/46031.pdfstate (2015) lpelr 25903, garba v...

Documents