Asuquo Eyo Okon & Ors V. The State (1988) LLJR-SC

Asuquo Eyo Okon & Ors V. The State (1988)

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NNAEMEKA-AGU, J.S.C.

On the 5th day of November, 1987, this Court delivered its judgment in the appeal of the 1st, 2nd and 3rd Appellants herein against the confirmation of the Court of Appeal sitting in Enugu on the 17th of September, 1985, of the conviction and sentence of death passed on the three Appellants by an Uyo High Court on the 8th of February, 1986.

This Court dismissed the appeal of the 1st and 2nd Appellants and allowed the appeal of the 3rd Appellant (who was the 4th accused at the court of trial) and fixed today, the 5th of February, 1988, for giving reasons for the judgment. I now give the reasons for my judgment.

The facts from which the appeal arose could be summarised briefly. On the 28th of November, 1976, the deceased, Edem Ekpenyong Asang-Usung, alias Edem Udo Usoro, met the 6th and 7th accused persons on the road in his village, in Mbisong. He held the hand of the 6th accused, Nko Jonah Udoffia, a young lady.

The 6th accused got annoyed about this and then released herself from the grip of the deceased and poured abuses on him. When the incident was reported to the 5th accused Enyong Ekpenyong, she took two young boys who joined the 6th accused to beat up the deceased. A fight ensued. The 5th accused who was armed with a matchet slapped the deceased on the back with the flat side of the matchet. Thereafter, passers-by separated the fight.

Sometime after the fight, the deceased returned to the scene of the fight armed with a lantern to search for his shoes and some money which he allegedly lost during the fight. He was then attacked again by the eight accused persons all of whom were related by blood or in marriage. The 4th accused person (3rd Appellant) hit him on his forehead with a lantern and the deceased fell down. According to P.W.2, the 3rd accused struck him on the chest with an iron rod which came out at the back of the deceased. Then, according to P.W.1, an eye witness:

“I asked what the matter was, but none of them would tell me. The deceased struggled and got up from the ground, but the 1st and 2nd accused got hold of him, and pushed him into the main road towards an on-coming car. The deceased collided with the front tyre of the car and died. The accused then ran away, but I got hold of Jonah the 3rd accused, and questioned him where they were running to after killing somebody.”

Altogether, nine witnesses testified for the prosecution. According to P.W.9- Akpan Setshele Okponegete who performed the autopsy with another junior doctor, Dr. Ekidde:

“There were multiple injuries on the corpse as follows:

(1) Bruises on the back

(2) Bruises on the Right Arm

(3) Bruises on the Buttocks and

(4) The lower abdominal wall.

In addition there were fractures of both humerus (upper arms). The sternum (or breast bone) and the occipot (back of the skull). There was a deep wound on the anterior part of the breast wall and a laceration on the face – a deep one. The death was caused definitely by severe haemorrhage resulting in cardiac arrest. A fall or a push by a mobile instrument could cause the bruises or a mobile vehicle. An impact with an instrument – blunt instrument could have caused the wound on the chest (or breast wall). The impact could have caused the fracture of the sternum. The laceration on the face could have been caused by an impact with a blunt instrument or collision with a mobile force.”

Each of the accused persons testified on his own behalf. The 7th accused additionally called a witness as to his age. After trial and addresses of counsel, the learned trial judge found 1st, 2nd, 3rd and 4th accused persons guilty of murder as charged and sentenced them according to law.

On appeal to the Court of Appeal, Enugu Division, that Court allowed the appeal by the 3rd accused and discharged and acquitted him on the ground that the evidence of PW 2 which implicated him was in conflict with his previous written statements, the 1st, 2nd and 4th accused persons have appealed further to this Court. The 1st and 2nd accused persons shall be referred to as 1st and 2nd Appellants and the 4th accused person as the 3rd Appellant.

The learned counsel for the Appellants in his brief found nothing to urge in favour of the 1st and 2nd Appellants. The learned D.P.P for the Respondent both in her brief and in Court agreed with him. I am of the clear view that both counsels were right. There can be no doubt from the evidence before and findings by the learned judge that at the time the 1st and 2nd Appellants pushed the deceased across the path of a moving car in the night, they intended to kill him or at least do him grievous bodily harm.

Nor was there any doubt that on the evidence, the death of the deceased was as a direct result of the voluntary act and intent of the 1st and 2nd Appellants. He died as a result of his impact with the car. The medical evidence by P.W.9 was further confirmatory of the cause of death. As the deceased died as a direct result of the act of the 1st and 2nd Appellants and in furtherance of their intent to kill him or do him grievous bodily harm they were rightly convicted of murder. Their only possible defence was provocation; but this was considered and rejected by the learned trial Judge, rightly in my view.

I am, however, of the opinion that the conviction of the 4th accused (3rd Appellant) cannot stand, for a number of reasons. In the first place, taking the evidence of the 1st P.W, an eye witness to the crime, together with that of the 9th P.W, the medical doctor, it is clear that it was not established that it was the 3rd Appellant’s act of hitting the deceased with a lantern on the forehead that caused his death or even contributed to it.

Although evidence shows that when he was hit with the lantern he fell down, there is nothing to show that if the 1st and 2nd Appellants had not pushed him against the on car, he would have died. Nor that the injuries inflicted with the lantern contributed to or accelerated his death. Moreover, I have not been persuaded that a hitting on the forehead had any connection with injuries found by P.W.9 in an unspecified part of the face.

Above all, it was shown by the evidence of P.W.1 that after the hitting with the lantern the deceased got up before he was pushed by the 1st and 2nd Appellants in the night on to a moving motor vehicle. So, it cannot be said conclusively that the deceased could have died out of the hitting with the lantern if the 1st and 2nd Appellants had not pushed him across the path of the vehicle to be killed.

One aspect of the submissions of the learned D.P.P. for Akwa Ibom State deserves special comment. Relying on R. v. Reynolds 34 Cr. App. R. 60, at p. 63 and the (English) Children and Young Persons Act of 1933, she submitted that section 182 of the Evidence Act can only have relevance where the witness is obviously of such a tender age that the question naturally arises as to whether such a child understands the nature of an oath. I do not agree.

In my judgment this line of reasoning clearly exposes the danger of placing undue reliance upon foreign decisions, especially when, as in the instant case, they are based on a legislation differently worded from our own which is in point in a case in hand. It is well to remember not only that a foreign decision should at best be of persuasive authority in a Nigerian Court but also that before it can even qualify as such, the legislation, substantive or adjectival, upon which it was based must be in pari materia with our own.

It is dangerous to follow a foreign decision simply because its wording approximates to our own. Nigerian Courts are obliged to give a Nigerian legislation its natural and ordinary meaning, taking into account our own sociological circumstances as well as other factors which form the background of our local legislation in question: A “copy-cat” transposition of an English decision may in some circumstances turn out to be inimical to justice in our own Courts. See Izuora v. The Queen (1959) 13 W.A.C.A. 313, at p. 316; R. v. Green & Anor. (1914) 3 N.L.R. 1.

Now let me look at the provisions in the two legislations. In Section 38(1) of the (English) Children and Young Persons Act of 1933, it is provided as follows:

“Where, in any proceedings against any person for an offence, any child of tender years called as a witness does not in the opinion of the Court understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.”

It is clear that the above provision deals with “any child of tender years called as a witness”. The situation clearly contemplates not only that before the provision can apply the witness should not only be a child but must also be of tender years. On the other hand, Section 182 (1) of the Evidence Act, Cap 62, Laws of the Federation, 1958, provides as follows:

“In any proceeding for any offence the evidence of any child who is tendered as a witness and does not, in the opinion of the court, understand the nature of an oath, may be received, though not given upon oath, if, in the opinion of the Court, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth”.

Thus clearly our local legislation deals with “any child who is tendered as a witness” and does not – unlike the English Act of 1933 – deal with any child of tender years. And a “child” is defined in Section 2(1) of the Criminal Procedure Law (Cap.31) Laws of Eastern Nigeria, 1963, applicable in as Akwa Ibom State as

“any person who has not attained the age of fourteen years.”

I am aware that the Supreme Court, per Coker, J.S.C, in John Okoye v. The State (1972), All N.L.R. (part 2) 500, at p. 503, entertained some doubts as to whether the above definition of a “child” in section 2(1) of the Criminal Procedure Law is applicable to section 182 of the Evidence Act. The reason given for the doubt was that there was a large number of statutes concerning children and most of them carry definitions of the word “child” and so it might be imprudent to lay down any hard and fast rule. His Lordship did not elaborate on which other statutes he had in mind. But he found support for this in the dicta of Wills, J., in the Queen’s Bench Division of the High Court in England in the case of The Queen v. Cockerton (1901) 1 Q.B. 322, at p. 340-341. I should rather face the problem of interpretation by reference to our local enactments.

With respect, I think that the principles on which a previous legislation may be relevant to the interpretation of a later statute is fairly well settled. A previous legislation may be relevant to the interpretation of a later legislation in two ways:

First, the course which legislation on a particular point has followed often provides an indication as to how the present statute should be interpreted. It is in such cases presumed that the interpretation in the former must have been known to those who drafted the later, Hence in the case of Armah v. Government of Ghana (1968) A.C. 192 it was applied by the House of Lords, per Lord Reid at pp. 226 et seq. See also Minister of Housing & Local Government v. Hertnell (1965) A.C. 1134. I believe that common sense dictates that courts should as far as possible encourage uniformity of meanings of particular words or expressions unless it appears from the wording of a particular statute under construction that the legislator intended to vary the meaning.

Secondly: it is accepted that light may be thrown on the meaning of a phrase or word in a statute under construction by reference to a similar phrase or word in an earlier statute dealing with the same or cognate subject matter. See Registrar of Restrictive Trading Agreements v. W.H. Smith & Sons, Ltd. (1968) 1 W.L.R. 1541. Lord Mansfield, C.J., made an exposition of the principle in the case of R. v. Loxdale (1758) 1 Burr 445, at p. 447 where he said:

“Where there are different statutes in pari materia though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system, and as explanatory of each other”.

Hence in Re Orbit Trust, Ltd.’s Leases (1943) Ch. 144, at p. 152 it was assumed that the principle of sharing losses which Parliament proclaimed in the Fire of London disputes Act of 1666 was implicit in the Landlord and Tenant (War Damage) Act of 1939.

Now, in this country law dealing with criminal law, criminal procedure and evidence in criminal cases have always been regarded as cognate legislations in that they all deal with criminal law and its administration. So, the practice has grown over the years, in the administration of criminal justice, that the Criminal Procedure Act (Cap. 43 Laws of the Federation, 1958) and the Evidence Act (Cap. 62 Laws of the Federation 1962) as well as their versions in the different States are, as far as possible, read and construed together. Incidentally my Lord in the case of John Okoye (supra) at page 503 came to the conclusion that it must be generally accepted that a boy of 13 years is a child. In my judgment, in the absence of any general provisions in either The Law (Miscellaneous Provisions) Act. Cap. 89 of 1958 and the Interpretation Act of 1964 or any definition in the Evidence Act (Cap. 62) itself, I believe that on the principles I have discussed, I should adopt and apply the definition in section 2 (1) of the Criminal Procedure Act – An Act designed “to make provision for the procedure to be followed in criminal cases …”

Under the Act, “child” means any person who has not attained the age of fourteen years. Applying this definition, I see nothing in it to justify the submission of the learned D.P.P. for Akwa Ibom State that the word “child” in section 182 of the Evidence Act should be confined to a child of tender years. It appears to me to be the case that whereas the underlying principle in section 182 of the Evidence Act may be similar to that in the (English) Children and Young Persons Act of 1933, in the determination of who is a Child we should be guided by the definition in the applicable Criminal Procedure Act or Law.

The submission of the learned counsel for the 3rd Appellant on the point is that he was a child, but that the provision of section 182 (1) of the Evidence Act was not complied with. Citing William Omosivbe v. Commissioner of Police (1959) W.N.L.R. 209, he submitted in his brief that the mandatory provisions in sections 154 (1) and 182 (1) and (2) of the Evidence Act have not been complied with.

He, therefore, submitted that the evidence should be expunged, and that, if expunged, there is no other evidence on which the conviction of the 3rd Appellant could be sustained. The learned D.P.P. for Akwa Ibom State in her brief submitted that the provision of section 182 of the Evidence Act can only have relevance where the witness is so obviously young that the question naturally arises as to whether such a child understands the nature of an oath. In this case in which the witness was nearly 14 years old at the time he testified, it was not necessary to comply with the procedure.

In view of the opinion I have expressed about the proper test in our law as to who is a “child”, I must reject the submission of the learned D.P.P. to the effect that any child under 14 years of age does not need the preliminaries prescribed by section 182 (1) of the Evidence Act. It is my view that once a witness is a child, by the combined effect of sections 154 and 182 (1) and (2) for the Evidence Act, the first duty of the court is to determine first of all whether the child is sufficiently intelligent to understand the questions he may be asked in the course of his testimony and to be able to answer rationally. This is tested by the court putting to him preliminary questions which may have nothing to do with the matter before the court.

If, as a result of these preliminary questions, the court come to the conclusion that the child is unable to understand the questions or to answer them intelligently, then that child is not a competent witness within the meaning of section 154 (1). But if the child passes this preliminary test then the court must proceed to the next test as to whether, in the opinion of the court, the child is able to understand the nature and implications of an oath. If after passing the first test he fails this second test, then being a competent witness he will give evidence which is admissible under section 182 (2), though not on oath. If, on the other hand, he passes the second test so that, in the opinion of the court, he understands the nature of an oath, he will give evidence on oath. His Evidence thus given will be admissible and be admitted.

It is not disputed that the learned trial judge did not comply with these preliminaries, as the child was simply sworn and he gave evidence.

What then is the effect of his failure to do so I do not agree with the learned counsel for the Appellant that the correct thing to do is to expunge the evidence. Even the case of Omosivbe (supra) which he relied upon does not support his contention in this. For, after the learned judge found that the provisions of the section were not complied with in that the statutory condition precedent to the reception of the evidence was not satisfied; he addressed his mind to the following question:

“The next question to decide is whether the irregularities occasioned a miscarriage of justice as would invalidate the conviction of the Appellant. The evidence of a child of tender age on oath does not require corroboration, although if uncorroborated, it is customary to warn juries not to convict on such evidence of a child except after weighing it with extreme care”

In the case of Ernest Albert Reynolds (1950) 34 Cr. App R. 60, at pp. 63 the conviction of the Appellant was quashed more on the ground that the evidence of a school attendant officer as to the mental capacity of a child witness was given in the absence of the jury. See also the case of Dunne (1929) 21 Cr. App.r. 176, It is noteworthy that in this case we are dealing with a sworn evidence of a child, although the oath was administered without the necessary preliminaries referred to above. I must also refer to the decision of this Court in Simon Okoyomon v. The State (1973) 1 N.M.L.R. 292 in which, although the child was sworn and allowed to give evidence without the above preliminaries, the evidence was nevertheless relied upon to found a case of attempted rape on the ground that the child’s evidence was collaborated by the sworn evidence of another child and that of an adult. From all these decisions, it appears to me to be the law that where, as in this case, an irregularity has occurred in the taking of the evidence of a child, the correct approach to such evidence is not to expunge it but to see whether it has been corroborated by other evidence implicating the accused. It may be observed in passing that in England since the decision of the House of Lords in the case of D.P.P. v. Hester (1972) 3 W.L.R. 869 (1973) A.C. 296), the sworn evidence of a child could amount to collaboration of the evidence of another child, thus doubting Rex v. Manser (1934) 25 C.R A.P.P.R. 18. For all I have just said, I should take into account the evidence of P.W.2, a child, on oath inspite of the irregularity in the way it was taken.

It is true, however, that in the instant case the only evidence implicating the 3rd Appellant is that of P.W.2, the child, His evidence is not collaborated by any other. I believe it to be the summary of all the decided cases on the point that no person shall be convicted on the unsworn testimony of a child. If I am correct, then our law in this aspect of the problem is the same with that in England See again Rex v. Hester (supra) at p. 318, per Lord Reid. If it is so, then, a fortiori, the testimony of a child taken contrary to the above statutory requirements would require corroboration also. That was indeed the basis on which such evidence was admitted and acted upon in the case of Okoyoman v. The State (supra). For, I cannot see how such evidence could be promoted out of the realm of evidence requiring corroboration by the fact merely that the trial court decided to ignore or neglect the provision of the statute.

But, by far, the most fatal aspect of the case against the 3rd Appellant is that it has not been proved that whatever he did caused, contributed to, or accelerated, the death of the deceased. In the circumstances, he is entitled to acquittal.

In the result, the appeals of the 1st and 2nd Appellants are dismissed. The judgment of the Court of Appeal, Enugu Division, against them is confirmed and their convictions and the sentence of death passed on each of them by the High Court are affirmed. The appeal of the 3rd Appellant, Eyo Anwan David, who was the 4th accused at the trial, is allowed. She is acquitted and discharged.

SC.108/1987