John Iwuaya Okonji V. The State (1987)

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NNAMANI, J.S.C.

The appellant herein was charged in the High Court, Kano with the following offence.

“That you, John Iwuaya Okonji, on or about the 4th day of May, 1982 at Sabon Gari Kano within Kano Judicial Division did commit culpable homicide punishable with death in that you caused the death of Lawal Mohammed by doing an act to wit: stabbing him in the stomach with a piece of broken bottle with the knowledge that his death would be the probable consequence of your act and thereby committed an offence punishable under Section 221(b) of the Penal Code”

To this charge the accused pleaded not guilty. On the 19th July, 1983, after 3 witnesses for the prosecution had given evidence, Miss Maryam Wali, now Acting Senior State Counsel applied, as she was entitled to do, under Sections 207 and 208 of the Criminal Procedure Code for an amendment of the charge by replacing the words in the charge “with a piece of broken bottle” with the words “with a knife.”

The amendment, not being opposed by counsel for the accused person, was granted. The prosecution called 4 witnesses while the appellant defended himself but called no witness. At the end of the trial the learned Chief Judge, Musdapher, C.J. (as he then was) convicted the appellant and sentenced him to death. The appellant appealed to the Court of Appeal (Maidama, Akpata and Babalakin J.J.C.A.) which on 9th July, 1985 dismissed his appeal. The appellant has now appealed to this Court.

Originally two grounds of appeal were filed. They were:

“1. The Court of Appeal erred in law and misdirected itself when it held that the defence of self-defence was not available to the appellant. Particulars:

There was evidence before the trial Court which showed clearly that it was the deceased who first picked a weapon to attack the appellant.

2. The decision of the Court of Appeal and the Trial Court cannot be supported having regard to the evidence.

Particulars:

There is evidence before the Trial Court that the deceased met his death in the course of a sudden fight and in accordance with Section 222(4) of the penal code, it is wrong to convict the appellant under Section 221 of the Penal Code.”

By leave of this Honourable Court, the appellant filed 2 additional grounds of appeal which I shall set down without the particulars.

They were:

“1. The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they held as follows:-

‘I do not agree with the learned counsel for the appellant that there is no evidence in which the learned trial Judge can infer that the appellant had knowledge that death would be a probable consequence of this act’ thus occasioning substantial miscarriage of justice