Emmanuel Audu V. The State (2002)

LawGlobal-Hub Lead Judgment Report

OGBUAGU, J.C.A. 

This is an appeal against the decision of the High Court of Benue State holden at Gboko presided over by I. Nwande, J. on 7th June, 1994 convicting the appellant of the murder of one Joseph Ogbada and sentencing him to a detention in prison custody pursuant to the provisions of section 270 and 272(1) of the Criminal Procedure Code (CPC).

Dissatisfied with the conviction and sentence, he has appealed to this court. The facts of the case on the prosecution’s side, as appear from the record of proceedings, are that on 9th September, 1991, the deceased – Joseph Ogbada, in company of one Mathias Enemeri – PW4 who also answers Sunday Enemeri and who was riding a bicycle, were going to Ukwo Market in Otukpa. On their way, they saw several masquerades displaying at the said market.

One of the masquerades beat or attacked PW4 with a cane and he came down from his bicycle and retaliated with his hand. A fight ensued between the PW4 and the said masquerade and in the process, PW4 unmasked the said masquerade in order to know his identity.

It turned out to be one Christopher Anthony. The other masquerades rushed to the scene and also began beating the PW4. It was at this point in time, that the appellant came to the scene and held the deceased. The appellant and the deceased fought and in the process, the deceased unmasked the appellant and threw him on the ground and was on top of him. The appellant drew an army jack Knife from its sheat that was tied to his waist and stabbed the deceased twice on his abdomen. The deceased shouted that he had been stabbed. The PW1 – an eye witness and PW4, testified that before the stabbing, the 2nd accused person (who is the father of the appellant and who was arraigned with the appellant who was the 1st accused person, on a separate count of aiding the appellant), had held the deceased before the appellant stabbed the deceased. The deceased was rushed first, to a private clinic and later, to the General Hospital, Ankpa where he died five (5) days after admission. The matter was reported to the Police the same day of the incident. It was after investigation, that the appellant and his said father, were charged to court.

The defence of the appellant is that on the date of the incident, he was also dancing in order to collect money. That it was when a passenger in a vehicle that had stopped on the road near the motor park, invited him to come and dance, that the deceased, PW1, PW4 and one Emmanuel Godwin, ran towards him. He did not know why. That the deceased and the PW1 collected the gong and stick from him on the ground that he was going to assist the said Christopher “Ono” who was fighting with the PW4. That he did nothing. That the deceased who had collected the cane from him, started beating or using the cane on him and that the PW4 and the said Emmanuel Godwin, helped the deceased in beating him.

It is his evidence that he held the deceased and both of them fought. That he threw the deceased on the ground as they fought.

That he and the deceased got up together and the fighting or struggling continued. It was at that juncture, that the deceased brought a knife from where he did not know and attempted to stab him, but he the appellant, dodged and so, the deceased did not succeed in stabbing him. That the knife the deceased used was the said army jack knife exhibit “A”.

It is his further evidence that he moved to one side and brought out his ordinary knife from his waist. That both he and the deceased, held their respective knife. That he then stabbed the deceased with his own knife. That he removed the knife from the body of the deceased and saw blood on it. He then ran away. That it was when he was running away, that the PW 1 threw stones at him and one of the stones hit his mask, which fell off as a result. He said he did not intend to kill the deceased when he stabbed him, but was only protecting himself.

At the close of the case for the prosecution that called a total of five witnesses and the defence that called three witnesses including the appellant, and after the written addresses/submissions of both learned counsel for the parties, the learned trial Judge, in a considered judgment, found the appellant guilty of murder of Joseph Ogbada, the deceased, and convicted and sentenced him as afore-stated in this judgment. The 2nd accused person was acquitted and discharged.

The appellant filed ten grounds of appeal. Without their particulars, they read as follows:

1. The conviction is unreasonable, unwarranted and cannot be sustained having regard to the evidence.
2. The learned trial Judge erred in law by convicting the appellant under section 221 of the Penal Code when the cause of death was not proved.
3. The learned trial Judge misdirected himself in law by relying on exhibit ‘D’ and finding the cause of death therein.
4. The learned trial Judge misdirected himself in law by holding:

“To my mind, where PW1 admitted that her earlier statement was in error no useful purpose will be served in referring to the earlier statement. This amounts to an explanation of the contradictory evidence. Where a satisfactory explanation has been offered regarding a contradictory piece of evidence then it is the evidence as explained by such a witness that need be taken into account.”

5. The learned trial Judge erred in law by relying on the evidence of PW1 and PW4 when the two witnesses materially contradicted each other.
6. The learned trial Judge erred in law when he stated:

“Exhibit ‘C’ was brought out by the 1st accused more than one week after the event. 1st accused best knows how exhibit ‘C’ had blood stains on it.

If the 1st accused used two knives on the deceased that he knows best.”