Richard Igago Vs The State (1999)

LAWGLOBAL HUB Lead Judgment Report

KARIBI-WHYTE, J.S.C.

On the 21st December, 1995, Idahosa, J. of the High Court of Edo State, sitting at Benin City, convicted Appellant for the murder of lsioma Okutu contrary to section 319(1) of the Criminal Code Law, Cap. 48, Vol. 11 Laws of Bendel State applicable in Edo State and sentenced him to death by hanging.

On the 20th April, 1999 a unanimous Court of Appeal, Benin Division sitting at Benin City dismissed the appeal of Appellant against his conviction, and affirmed the conviction and sentence.

The appeal before us is against the decision of the Court or Appeal above indicated.

The Facts

The facts of this case are that Appellant and the deceased who are both mechanics are friends. The deceased was working in a workshop managed by an Elf Petrol Station. Appellant worked in a neighbouring garage. They were on 4/7/94 engaged in a fight. They had been separated, before the Manager of the Elf Petrol Station (PW 1) arrived. On arrival, the Manager of the Elf Petrol Station where the deceased was working started the process of resolving the dispute and was talking to the deceased working under him to brief him on what was responsible for the fight. Whilst the deceased was narrating the story to the Manager, the PW 1, the accused standing nearby but separated by a concrete wall fence and holding a shovel in his hand, hit the deceased on the head with the shovel. The deceased fell down immediately and unconscious. He was rushed to the Police Station, and from there rushed to the Central Hospital, Benin City. The deceased did not regain consciousness. He died on the third day i.e. the 6th July, 1991. It is pertinent to observe that Appellant reached the Police Station where the deceased was taken to carrying with him the shovel with which he hit the deceased. And reported himself and narrated the incident to the Police before the deceased was taken there.

The arraignment and Trial.

Appellant was charged with the murder of deceased. He denied the charge and was tried. The Prosecution called seven witnesses. PW 1 and PW2 gave eye witness evidence of how the Appellant hit the deceased with a shovel on his head, and that the deceased collapsed and was unconscious from the moment he was hit on the head by the Appellant PW3, Joseph Iwegbu identified the corpse of the deceased. He was with the deceased from 5/7/91 till about 4 or 5 a.m. on 6/7/91 when the deceased died. PW4, Dr. Suleiman Abu, the Consultant Pathologist performed the autopsy on the body of the deceased and gave evidence of the cause of death. PW5 and PW6 are Police Officers who investigated the offences allegedly committed by the Appellant, and obtained statements from him. These statements were tendered and admitted without objection. PW7, the Superintendent of Police attested the statement of the Appellant who confirmed that it was voluntarily made.

The Appellant testified in his defence, but did not call any witness. There are discrepancies between the evidence in the testimony of Appellant in Court, and his earlier statements Exhibits A and B, to the investigating Police Officers.

At the trial, Learned Counsel representing appellant, Mr. E. Omo-Osagie raised the defence of provocation, self-defence and accident. It was also contended that it was not proved beyond reasonable doubt that the act of the Appellant caused the death of the deceased. Finally, it was submitted that Appellant did not intend to kill the deceased or cause him grievous bodily harm when he hit him with the shovel. Learned Counsel referred to the medical report, and criticized it as having a lacuna. It was contended that a medical examination as to the cause of death should leave no room for any doubt as to cause of death. It was submitted that the medical report should show that the act of the appellant led to the death of the deceased. He commented on the medical evidence and suggested that there were other intervening factors between the incident and the time of the death of the deceased. Learned Counsel argued that there were no contradictions between Appellant’s testimony in court and Exhibits A and B, the extrajudicial statements.

The testimony in court was mere amplification of Exhibits A and B.

Counsel for the Prosecution referred to the evidence of PW 1 and PW2 as eye witnesses and direct evidence, and the confessions of the Appellant in Exhibits A and B. Counsel also referred to the evidence of PW4, i.e the Medical evidence, and the nature of the injury found on the deceased. Exhibits A and B were voluntary and corroborated the evidence of PW 1 and PW2. The Prosecution rejected the defences of accident, which was not raised in Exhibits A and B. Self-defence did not avail Appellant who has not been able to show that there was a threat to his life or that he feared grievous bodily harm to him. The deceased was unarmed and the fighting had ceased. The evidence before the court did not support the defence of provocation. Finally, it was submitted that the intention of the Appellant could be inferred from the nature of the instrument used and the extent of the injury inflicted resulting in the death of the deceased.

In his judgment the learned trial Judge carefully considered the evidence before him and made findings of facts. He found that PW 1 and PW2 did not witness the fight between the deceased and appellant, but were both eye witnesses of the important act of the Appellant which led to the death of the deceased. Their evidence he found to be reliable, unchallenged and were not shaken under cross-examination. Similarly, the evidence of PW5 and PW6 Police Officers who investigated the case, and who took the statements of Appellant Exhibits A and B. The learned trial Judge found that Appellant made the statements voluntarily. The statements were not challenged on the ground that they were not voluntarily obtained. He found that the testimony of Appellant before the Court and Exhibits A and B are substantially the same. The learned trial Judge found the discrepancy between the testimony in court and Exhibits A and B and held that the testimony in court are not explanations of Exhibits A and B. Exhibits A and B were made within a few hours and a few days of the incident; when the events were still very fresh in his mind. He therefore preferred Exhibits A and B to the testimony in Court. The trial Judge accordingly found as follows –

“(a) That the Accused hit the deceased on the head with Exhibit C on the 4th day of July, 1991, at the Elf Petrol Station at the junction of Costain Road and Lawani Street, Benin City.