Bassey Akpan Iden V. The State (1994)

LawGlobal-Hub Lead Judgment Report

NIKI TOBI, J.C.A. 

 In the High Court of Abak in the Abak Judicial Division, the appellant was charged with attempted murder of Friday Ezekiel Udo Idiong by giving him multiple gun-shot wounds on 7th May, 1981 at Nkum village. Five witnesses gave evidence for the prosecution. The victim of the gun shot gave evidence as P.W.2.

The case of the prosecution is as follows: P.W.1 had a farm. The farm was in close proximity with the Church. It is the Christ Faith Church. P.W.2 was in the Church fasting with other members of the Church. He also conducted the prayers. That was on 7th May, 1981. In the course of the prayers, P.W.2 went out to ease himself. He saw the appellant and eight others who moved to the farm of P.W.1, P.W.1 had left for the bicycle repair’s shop to repair his bicycle. He returned not long after. P.W.2 told him that some people were in his farm. P.W.2 mentioned the names of those he knew. Both P.W.1 and P.W.2 went to the farm. P.W.2 was requested by P.W.I to accompany him.
On reaching the farm, they saw the appellant holding a bottle of ‘Mbiam’ (a juju) and poured it on the farm. He also uttered some incantations urging the ‘Mbiam’ to harm any person who would harvest any crop or crops in the farm. When confronted by P.W.1, the appellant replied that Noah Ntia summoned P.W.1 to his ‘Mbiam’ but he failed to appear. P.W.1 held the appellant to take the bottle of the’ Mbiam’ from him. There was a scuffle. Those who accompanied the appellant came to his aid. They threw P.W.1 on the ground. He was also beaten.
Appellant held P.W.1 by the neck. P.W.2 came to the rescue of P.W.1. He tried to separate the two – P.W.1 and the appellant. As P.W.2 held the hand of the appellant from the neck of P.W.1, the appellant used his right hand to remove a pistol from his pocket and shot P.W.2 on his left thigh. P.W.2 fell down and became unconscious. He became conscious at the General Hospital, Ikot Ekpene. P.W.2 was transferred from the General Hospital Ikot Ekpene to another Hospital in Calabar for treatment.

The defence told a different story. It is usually so. The prosecution and the defence usually do not see eye to eye. They are in opposing camps. The appellant did not behave differently. The following is his evidence. On 7th May, 1981 Noah Antia and D.W.2 called on the appellant in his house at Ito, Ika, in Abak Local Government Area. They asked the appellant to sell his juju (Mbiam) to them for oath taking in their village. Noah Antia and D.W.2 took the ‘Mbiam’ to their village. Appellant said he followed them. On reaching the farm, they were confronted by P.W.1. He challenged them for bringing the juju to the farm. This resulted in a struggle between P.W.1 and his supporters on the one hand, and Noah Antia and his supporters on the other. There was a fight. In the course of the fight, D.W.2 took the juju from his father, Noah Antia, and ran away. Appellant said he also ran away, leaving his bicycle which he kept in the house of Noah Antia. He said that he did not take the bicycle to the farm. Appellant denied carrying a gun to the farm. He also denied shooting P.W.2. Under cross-examination, appellant said:

“I did not shoot 2 P.W. and 1 P.W. is my in law because the elder brother of 1 P.W. married the first daughter of my mother. I did not run away because I fired 2.P.W. with a gun. I did not fire him with a gun”.

The learned trial Judge did not believe the evidence of the defence. He therefore convicted the appellant. Usoro, J., in concluding his judgment, said:

“On the whole, from the evidence before the court, I am fully satisfied that the prosecution had proved its case beyond all reasonable doubt against the accused. I therefore find the accused guilty as charged on the information and I convict him accordingly… The accused is hereby sentenced to seven (7) years I.H.L.”

Dissatisfied, the appellant filed an appeal. Briefs were also filed and exchanged.
Counsel for the appellant formulated the following three issues for determination:

“(1) Whether the prosecution proved all the ingredients essential for the conviction of the appellant for the charge of attempted murder.

(2) Whether the learned trial Judge in convicting the appellant of attempted murder had directed his mind to the question, whether or not there was intent to kill, and not merely to do grievous bodily harm.

(3) Whether the sentence was excessive”.

Counsel for the respondent also formulated three issues for determination. They read:

“(1) Whether the prosecution proved all the ingredients essential for tile conviction of the appellant for the charge of attempted murder.

(2) Whether the learned trial Judge in convicting the appellant of attempted murder had directed his mind to the question, whether or not there was an intent to kill and not merely to do grievous bodily harm.

(3) Whether the sentence was excessive”.

Learned counsel for the appellant, Mr. Chiobi Ekpechi, dealing with Issue No. 1, contended that by section 320 (1) of the Criminal Code. Cap. 31. Laws of  Cross River State 1983, an offence of attempted murder is committed when there is an intent to kill and not merely to do grievous harm. He referred to R. v. Albert (1960) WRNLR 31 and The Queen v. Nwaugoagwu (1962) 1 All NLR 294. Where a gun shot is fired at a person the range may be material in determining the intent, counsel contended: and made reference to The Queen v. Eyo (1962) 1 All NLR 515.
Counsel submitted that although an intention to do grievous bodily harm is sufficient to sustain a conviction for murder if death should result, it is not sufficient to sustain a conviction for attempted murder. He referred once again to The Queen v. Nwaugoagwu (supra). Based on the above principles of law, learned counsel submitted that the learned trial Judge arrived at the wrong conclusion having misapplied the principles of law. He contended further that the totality of the evidence in the lower court did not show an intention on the part of the appellant to kill P.W.2. Referring to a finding of the learned trial Judge on the issue of “intention to do the victim grievous bodily harm”, learned counsel re-echoed his earlier submission that an intention to do grievous bodily harm is not sufficient to sustain a conviction for attempted murder. He cited The Queen v. Nwaugoagwu (supra) again, on the same principle, thus making it three times. Learned counsel also submitted that in the absence of evidence as to whether a weapon used by an accused could kill at the range within which it was used, a court is not justified in drawing an inference that the nature of the weapon used by the accused showed, of itself, an intent to kill. He relied once again on The Queen v. Eyo and others (supra). Relating the above principle to the facts of the case, learned counsel contended that there ought to have been evidence on the nature or type of the pistol used and that the prosecution ought to have called a ballistic expert to give such evidence. Recalling the evidence that 22 pellets were discharged from the pistol into the body of P.W.2, counsel submitted that such a pistol shot at a close range and failing to kill was not a lethal weapon.

On Issue No.2, learned counsel submitted that on a charge of attempted murder, failure on the part of the trial judge, before convicting the accused, to direct his mind to the question whether or not an intent to kill had been proved, amounts to a misdirection. Although it is not necessary, in every case for a Judge sitting alone to refer separately to each single element of the offence charged, where the evidence raises an issue as to the intent with which certain acts were done, it is essential for the judgment to show that the Judge correctly apprehended the question which he had to decide, and to state, in the case of a conviction, that after considering all the elements of the offence charged, he found them proved, learned counsel argued. It was the contention of learned counsel that the Supreme Court will set aside a conviction, and will not exercise its discretion under section 26(1) of the Supreme Court Act to dismiss a criminal appeal, where the trial Judge in convicting of attempted murder, had failed to direct his mind to the question whether or not there was an intent to kill. Again, counsel cited The Queen v. Nwaugoagwu (supra). Reacting to the judgment, learned counsel submitted that the trial Judge failed to direct his mind to the question whether or not an intent to kill had been proved by the prosecution. Counsel relied once again on R. v. Albert(supra) and his pet case. The Queen v. Nwaugoagwu (supra). Counsel urged the court on the authority of The Queen v. Nwaugoagwu (supra) to discharge and acquit the appellant.

On Issue No.3 counsel said that an appellate court has jurisdiction to set aside, or reduce a sentence if it finds in the record substantial evidence of mitigating circumstances in favour of the accused. Moreover, where a trial court imposes a sentence in excess of the maximum sentence provided by law for the offence charged, an appellate court will set aside the sentence and impose in its place a sentence within the powers of the trial court to impose, Counsel argued.
Relying on The Queen v. Eyo (supra) learned counsel submitted that judging from the circumstances of the case, the sentence of 7 years I.H.L. is excessive. Counsel informed the court that the appellant was a first offender, an illiterate, who did not know P.W.2 and therefore had nothing against him or had any interest in the subject matter of the problem. Although counsel conceded that the maximum punishment was life imprisonment, he submitted that the appellant deserved optimum leniency, more so when the victim had recovered fully.

As the respondent was not represented, this court deemed the respondent’s brief already filed as argued. Mrs. Mary A. Ewa. State counsel Grade I who wrote the brief, took Issues 1 and 2 together. She conceded to the appellant that the prosecution did not prove the main ingredient of the charge, which is intent to kill and not merely to do grievous harm. She however said that intent could be inferred from the nature of the wound and the range from where the gun shot was made. She referred to R. v. Onoro (1961) 1 All NLR 33 and R. v. Eyo (1962) 1 All NLR 515. Although Learned counsel said that the gun fired by the appellant was from a close range, she submitted that an intent to kill was not proved by the prosecution, but that of grievous harm, as was properly summarised by the learned trial Judge.

On Issue No.3, learned counsel argued that while the offence of attempted murder was not proved by the prosecution, there was evidence that a lesser offence of grievous harm was committed by the appellant. Referring to the evidence of P.W.2 and P.W.5, learned counsel submitted that the appellant could be convicted of the lesser offence of grievous harm by virtue of section 335 of the Criminal Code and section 179(2) of the Criminal Procedure Law of Cross River State. Counsel also referred to the The State v. Nwaugoagwu (supra).
On the sentence passed by the learned trial Judge, learned counsel submitted that for an offence which carries life imprisonment, the sentence of seven years was quite reasonable and not excessive. Counsel urged the court to retain the seven years sentence even for the offence of grievous harm, as according to her, that is the maximum sentence for the offence of grievous harm.

To constitute an attempt, the act must be immediately connected with the possible commission of the substantive offence. In other words, there must be a clear and unequivocal nexus between the overt act of attempt and the substantive offence.

The appellant was charged under section 320(1) of the Criminal Code, Cap. 31, Laws of Cross River State. One major ingredient of the offence of attempted murder under section 320(1) is intention to kill unlawfully. In other words, the mens rea in a charge of attempted murder is intention to kill. See Ibo v. State (1971) 1 NMLR 245; The Queen v. Nwaugoagwu (1962) 1 All NLR 294; Omonuju v. The State (1981) 5 S.C.1.

And for the purpose of conviction a mere intention on the part of the accused person to cause grievous harm is not sufficient. See Albert v. the Queen (1960) WNLR 31, Ozuloke v. The State (1965) NMLR 125.

An intention is a design or fixation of the mind on a particular line of act or conduct. And until intention is overtly applied or executed in a particular way or direction, it is lost to any human being other than the Almighty God. Therefore the intention which the law punishes in respect of attempted murder is that which the accused overtly expresses by any action or inaction.

In order to determine whether an accused person really had an intention to kill, the law has set down some rough criteria. Some of them are (1) the nature of the weapon used. And here the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing. (2) The part of the body which was brutalized by the lethal weapon. (3) The extent of proximity of the victim with the lethal weapon used by the accused. I have intentionally used the adjective ‘rough’ to underscore the legal position that the proof of the above does not invariably sustain the conviction for attempted murder because they can also find conviction for grievous harm. And so, in determining guilt for a charge of attempted murder, the trial Judge will have to consider the peculiar facts of the case before him. To that, I now turn.

The eye witnesses to the shooting were P.W.1 and P.W.2, the victim. P.W.1 said in his evidence in-chief:

“While they were beating me Friday Ezekiel Udo Idiong came to my rescue and held the accused to leave me. Then other people who were with the accused fought with Friday Ezekiel Udo Idiong. Then accused put his hand into his pocket and pulled a small pistol out and fired on Friday Ezekiel Udo Idiong on the thigh and Friday fell down”.

Friday Ezekiel Udo Idiong, the victim, gave evidence as P.W.2. He said in his evidence in-chief:

“The 1.P.W. took the bottle from the accused and accused held him by the neck and they fell down and one Ita Akpan Udom took the bottle from 1.P.W. Then 1.P.W. raised an alarm and asked me to come into the land and that they were trying to kill him. I entered the farm to separate 1.P.W. and the accused and held the accused’s hand to leave the neck of 1.P.W. Then accused used his right hand and removed a pistol from his pocket while I was holding his left hand … He shot me at the thigh. When I was shot, I fell down and became unconscious. It was at the General Hospital. I woke up to see myself there”.

The following basic facts emerge from the above evidence of P.W.1 and P.W.2: (1) The appellant used a pistol to shoot P.W.2 (2) And this was when P.W.2 removed the left hand of the appellant from the neck of P.W.1. (3) Appellant shot P.W.2 with his right hand. (4) The gun shot was on the thigh of P.W.2.
A pistol is defined in the Chambers 20th Century Dictionary (1983 Edition) as “a small hand-gun held in one hand when fired”. It operates by a trigger mechanism. I would like to think that our evidential rules allow me to take judicial notice of the fact that pistol is a lethal weapon, and therefore capable of killing a human being. It is not my understanding of the law that a court of law can take judicial notice of only the facts enumerated under section 74(1) of the Evidence Act. Cap. 112. Laws of the Federation of Nigeria, 1990. A court of law can, in addition to the provisions of section 74(1), also take judicial notice of such facts which are so notorious or of regular occurrence in the ordinary course of nature or business that they have become familiar to the Judges. That, in my humble view, is the essence of section 74(2) of the Evidence Act.

I should pause here to recall the submission of learned counsel for the appellant that the prosecution ought to have called a ballistic expert to give evidence on the nature or type of the weapon used. I do not think that failure to call expert evidence is prejudicial to the case of the prosecution. While expert evidence is relevant in certain cases and instances, it is not a desideratum in all cases where technical matters are involved. The main function of an expert witness is to assist the court to arrive at the truth in the judicial process, and the court is not bound to accept expert evidence, particularly when it is not consistent with the ordinary course of events as led in evidence by other witnesses. See generally Ajala v. The State (1979) 10 CA. 115; Seismograph Service (Nig.) Limited v. Ogbeni (1976) NMLR 290; Commissioner of Police v. Ogechukwu (1974) 4 ECSLR 147; The Queen v. Wilcox (1961) 1 All NLR 631.

The pistol was shot on the thigh of P.W.2. The thigh is the thick fleshy part of the leg from the knee to the trunk. Although I am not a Doctor, I know as a matter of fact and common knowledge that the thigh has a bone, which is the bone of the leg, between the hip-joint and the knee. While I am prepared to concede as a layman that a shot at the head and the chest, which touches the heart, may result in quicker death, I am not prepared to hold that a shot at the thigh cannot cause any death. Or better still, that an accused person who shoots the thigh of a person has no intention to kill the person, I will return to this aspect later when I deal anon with the evidence of P.W.5.
For now let me take the aspect of proximity. There is clear evidence that there was physical contact between the appellant and P.W.2 when the former shot the latter. In other words their bodies touched each other when the appellant shot P.W.2. Precisely, while P.W.2 held the left hand of the appellant, the appellant shot P,W.2 with his right hand. There cannot be a nearer range than that. I now come to the evidence of P.W.5, the Consultant Surgeon, Orthopaedic Hannah Foundation Clinic, Calabar. He was formerly Head of the Orthopaedic Department, University Teaching Hospital, Calabar. He is Dr. Oscar Jeremiah Akpan Umoh. He said under examination in-chief:

“I found an irregular wound oblique cause severally contaminated and the wound reached into his hip joints. I took an x-ray film of the ribs and pelvic and discovered multiple pellets in the left hip region. I carried out an exploration of the wound focusing my attention on the left femoral arteries of the hip and it was intact. I also removed twenty-two pellets from the hip region, and I also multiple cork – like material from the wound. The wound was drained and closed. The patient was given intensive medical treatment and he finally recovered from the shock of the injuries. The wound healed well and the patient was discharged … The injuries found on the patient would have led to his death”.

Under cross-examination, the witness said:

”The patient was transferred from another Hospital to my Hospital.
and it was a special case and that was why my attention was invited as a specialist. The major arteries were not destroyed. Death would have resulted if the major arteries were destroyed. Generally such injuries could cause instant death. If a gun explodes from the pocket of a person it would not cause such injuries”.

And that was the evidence of the Consultant Surgeon who performed an operation on P.W.2 and treated him. The witness made two important and similar statements both in his evidence in-chief and under cross-examination. I should recite them once again, for emphasis. Under examination in-chief the witness said:

”The injuries found on the patient would have led to his death“.

Under cross-examination, the witness said:

“Generally such injuries could cause instant death“.

In spite of the above evidence, Exhibits 7, 8 and 9, the totality of the conduct of the appellant in the shooting spree (which looked to me like a blood thirsty person), and coupled with the evidence of loss of consciousness by P.W.2. both counsel submitted that the prosecution did not prove the intention on the part of the appellant to kill P.W.2. While there was unity of purpose on the issue of lack of intention, they parted ways as to what this court should do. Learned counsel for the appellant submitted that the appellant should be discharged and acquitted. But learned State Counsel for the respondent submitted that the appellant should be convicted for the lesser offence of grievous harm under section 335 of the Criminal Code of Cross River State.
A few questions agitate my mind. I might as well ask them. Why did the appellant shoot P.W.2? Why was a pistol used in the shooting? Why did he shoot the appellant at that closest range? Why did he pour twenty-two pellets from the pistol into the thigh of P.W.2? All with the only purpose of causing grievous harm and not to kill? I can ask and ask questions galore but let me stop here, and state the main result by way of answer to the question. And the result is that there was a clear intention on the part of the appellant to kill P.W.2. While I agree that the shooting at a person may merely result in intention to cause grievous harm. I am satisfied from the totality of the evidence before the learned trial Judge that appellant, the pistoleer clearly intended to kill P.W.2. I am at one with P.W.5 that the injuries sustained by P.W.2 were capable of causing death. I would go further to add that the timely medical treatment saved the situation.
Learned counsel for the appellant quarreled with the following conclusion of the learned trial Judge:

“The learned counsel for the accused has also submitted that the evidence of 5 P.W., the doctor who treated 2 P.W. said that the wound received by the victim, could not have caused death and because of that the prosecution did not lead evidence to show that there was specific intention to kill. I would say that the evidence of the doctor is clear on this and Exhibit 7 he issued. Again, I may add here that he who takes a gun and fires at a close range at somebody could not turn round to say that he had no intention to do the victim grievous bodily harm, and this contention is therefore rejected”.

There are two limbs in the above conclusion but learned counsel for the appellant capitalised on only one limb. The first limb stops at the word “issued”, while the second limb starts with the word “again”. In the first limb the learned trial Judge came to the conclusion that there was evidence that appellant had the intention to kill P.W.2. This is clear when the sentence: “I would say that the evidence of the doctor is clear on this and Exhibit 7 he issued” is read together with the preceding sentence. In the light of that conclusion on the part of the learned trial Judge, the second limb, at best, could be regarded as a surplusage or a superfluity. Learned counsel cited The Queen v. Nwaugoagwu (supra) five times, three on the same principle and two on different principles. He loves the case and very much for that matter. While I agree that the case is very instructive as it deals with attempted murder, the facts are quite different from those of the instant case. In Nwaugoagwu the learned trial Judge did not make any finding on the question of intent but found expressly that the force used in striking the blow was, at most, likely to cause grievous bodily harm, It was in these circumstances that the Supreme Court held that an intention to do grievous bodily harm, though sufficient to sustain a conviction for murder if death should result, is not sufficient to sustain a conviction for attempted murder; and that an intention to kill is an essential element of the offence of attempted murder. Learned counsel for the appellant relied heavily on the ratio decidendi of the Supreme Court that on a charge of attempted murder, failure on the part of the trial Judge, before convicting the accused, to direct his mind to the question whether or not an intent to kill had been proved, amounts to misdirection. As I have said above, the learned trial Judge directed his mind to the question of intention to kill and so Nwaugoagwu is not apposite.
Even assuming (without conceding) that the learned trial Judge did not direct his mind to the question of intention to kill, it does not appear to me that the prosecution is without a remedy in this court. I have the feeling that if there is evidence of intention to kill before the lower court (as it is in this case), this court can invoke the provision of section 16 of the Court of Appeal, 1976 as amended and make such a finding. Of course, this court cannot exercise its section 16 jurisdiction if there was no such evidence in the lower court.

While dealing with Nwaugoagwu, learned counsel pushed to us section 26(1) of the Supreme Court Act, to probably make a case that this court cannot dismiss the appeal in like manner that the Supreme Court did not dismiss the appeal in that case. My answer to that submission is simple. The wordings of our section 16 are quite different from those of section 26(1) of the Supreme Court Act, 1960. Section 26(1) deals with saving the decision of the lower court if there was no substantial miscarriage of justice. Our section 16 performs a different function. It vests in this court, in appropriate cases, the jurisdiction and power of the court of first instance. See generally Jadesimi v. Okotie Eboh (1986) 1 NWLR (Pt. 16) 264; Government of Gongola State v. Tukur (No.2) (1987) 2 NWLR (Pt.56) 308; Hart v. Ezekiel- Hart (1987) 4 NWLR (Pt. 63) 105.

I now take the final issue and it is in respect of the sentence. Although learned counsel for the appellant has rightly said that the maximum sentence for attempted murder is life imprisonment, he urged this court to reduce the sentence of 7 years given by the learned trial Judge. In another breath counsel gave the impression that the sentence was beyond maximum. He said at page 10 of the brief:

“Moreover, where a Trial Court imposed a sentence in excess of the maximum sentence provided by law for the offence charged, an Appellate Court will, set aside the sentence and impose in its place a sentence within the powers of the Trial Court to impose”.

He cited The Queen v. Eyo (supra) in support.
Whatever is the stand of learned counsel on the issue of sentence, I am clearly of the opinion that the 7 years sentence was not excessive. Seven years could either be a ‘far cry’ or a ‘near cry’ from life imprisonment, depending upon the life available to the prisoner while in prison. But in whatever way one looks at the matter, I cannot see my way clear in disturbing the sentence. And what is more fundamental is that from the date of the conviction, this issue may be merely academic. The appellant was convicted on 7th November, 1986. This is 1994. It is more than seven years since the appellant was convicted. I have the impression that he has fully served his prison sentence.
Both counsel for the appellant and counsel for the respondent could not support the decision of the learned trial judge on the ground that the prosecution failed to prove that the appellant had intention to kill P.W.2. To them, there was no evidence in the lower court. To me there was evidence. P.W.1, P.W.2 and P.W.5 provided evidence of intention to kill. Learned counsel invited this court to convict the appellant on the lesser offence of grievous harm. I am not prepared to accept that invitation because it is neither here nor there.

The learned trial Judge convicted and sentenced the appellant for attempted murder. I cannot improve on the conviction and sentence. The appeal therefore fails and it is hereby dismissed.

Other Citations: (1994)LCN/0174(CA)