Emmanuel Ogar Akong Edoko V. The State (2015)
LAWGLOBAL HUB Lead Judgment Report
JOHN INYANG OKORO, J.S.C.
This is an appeal against the judgment of the Court of Appeal sitting at Calabar which was delivered on 13th July, 2009 wherein the court below upheld the conviction and sentence to death of the appellant by the High Court of Cross River State.
The facts of this case, as can be gathered from the record of appeal shows that on the 26th day of November, 2004, the appellant left Edor, his village in Ikom Local Government Area to attend the burial of one late Gregory Awam at Nkonfab, a neighbouring village. Between 10.00pm and 11.00pm, the appellant went close to the vicinity where PW1, an eye witness to the crime and some of his friends were sitting and started smoking Indian hemp.
The deceased, Ajing Bisong who was serving food and drinks to PW1 and his friends, approached the appellant and told him to leave the area. A scuffle ensued and from the account of the prosecution, the appellant brought out a jack knife and stabbed the deceased who shouted and collapsed. The appellant on the other hand presented two versions of the incident. In his confessional statement to the police -Exhibit B, he claimed that the jack knife fell from the deceased in the course of the struggle, he then used it to stab the deceased on the left side of his ribs. In his oral testimony in court he stated that he was attacked by the deceased and five of his friends. According to him, the deceased sat on top of him, removed a jack knife and they continued to struggle. That as they were struggling, the knife pierced the deceased who shouted that the appellant had stabbed him. At that stage, the appellant ran away. PW1 rushed the deceased to the hospital but he died on their way to the hospital. The appellant was later arrested and arraigned in court after investigation. The prosecution called three witnesses to prove its case against the appellant. The appellant gave evidence in his defence and called no other witness.
The learned trial judge accepted the evidence of the prosecution especially that of the eye witness Ekom Francis Abaji (PW1). He considered but rejected the defences of provocation and self defence canvassed for the appellant.
In the circumstance, the learned trial judge convicted the appellant of the murder of the deceased and sentenced him to death.
Dissatisfied with the verdict, the appellant appealed to the Court of Appeal which found no merit in the appeal. The Lower Court accordingly affirmed the conviction and sentence of the appellant by the trial High Court. Again, not being satisfied with the stance of the Lower Court, the appellant has appealed to this court via a notice of appeal dated and filed on 11th August, 2009. Three grounds of appeal are contained therein out of which the learned counsel for the appellant has distilled one issue for the determination of this appeal. The lone issue states:
“Whether the court below was right to have upheld the decision of the trial court to wit: that the defence of self-defence and provocation did not avail the appellant.”
In the respondent’s brief, the learned counsel for the respondent M. N. O. Olopade Esq., adopts the lone issue as formulated by the appellant. I shall, in the circumstance determine this appeal based on the said issue.
Learned counsel for the appellant, A. U. Mustapha Esq., in the brief settled by him argued that when an accused person, as in this case, raises defence of self-defence, the onus remains throughout upon the prosecution to establish the guilt of the accused. He cited the cases of Adeyinka Albert Laoye V. The State (1985) 10 SC 177 at 204 – 205 and Sunday Baridan V. The State (1994) 1 NWLR (Pt.320) 250 at 262. It is his view that although there is a slight difference between the statement of the appellant in Exhibit B and his oral testimony in court it did not detract from the fact that it was the deceased that attacked the appellant first and that the jack knife in question, that is, the killer weapon, originated from the person of the deceased and that the deceased actually aimed at using the weapon on him.
In his further argument, he contended that from the evidence led by the appellant, it is glaring that the deceased was, apparently about to attack the appellant in a manner that grievous hurt and/or death was possible and the appellant had to defend himself. In support, he cited the cases of David Aganmwonyi V. Attorney-General of Bendel State (1987) 1. SC 77 at 94 and Sunday Baridan V. The State (supra). Relying further on the case of Sampson Uwaekweghinya V. The State (supra), the learned counsel submitted that the appellant was entitled to defend himself against unprovoked attack by the deceased.
Learned counsel submitted further that the facts disclose that the self-defence was instantaneous or contemporaneous with the threatened attack. That it happened in the course of the altercation and that there was no time break for frayed nerves to calm, relying on the cases of Njoku V. The State (1993) 6 NWLR (Pt.299) 272 at 279 and Uwaekweghinya V. The State (supra).
It was further argued by the appellant that the self-defence was not greater or disproportionate with the threatened attack. Furthermore, that no reasonable man could have done contrary to what the appellant did in the circumstance, referring to the case of David Aganmwonyi V. Attorney-General of Bendel State (1987) 1 SC 77 at 94. According to him, it was wrong for the Lower Court to affirm the decision of the trial court on this issue.
On provocation, he submitted that there was a wrongful act against the appellant by the deceased and that it was of the nature such as would deprive an ordinary person of the power of self control. That even merely requesting the appellant to cede his seat for an acolyte of the deceased’s was sufficiently insulting, not to talk of following the insult up with a blow to the eye. He submitted that the act of provocation was sufficient to induce the appellant to assault the deceased and that the fatal stabbing occurred in the heat of passion. The appellant relied on the following cases: Isaac Stephen V. The State (1998) 12 SC. 450 at 498 499, Abaji V. State (1965) 4 NSCC 210 at 215.
In all, the learned counsel for the appellant urged this court to resolve this lone issue in favour of the appellant.
In his response, the learned counsel for the respondent submitted that the court below rightly affirmed the decision of the trial court that the defence of self-defence and provocation did not avail the appellant. That a confessional statement that is at variance with the accused’s testimony at the trial cannot be rejected by the court and does not affect its admissibility; relying on the case of Ikemson V. The State (1989) 3 NWLR (Pt.110) 455 at 473.
Learned counsel further submitted that the court below was right to accept the trial court’s very clear understanding of the law on provocation that a fist blow on the eye cannot be said to have been proportionately responded to by a stab with a jack knife and that the retaliation by the appellant to the deceased was in excess of what the law allows for him to succeed under the law of provocation.
It was further submitted that it is unreasonable for a man of the ilk of the accused under the circumstances of this case to have lost his self-control just because he was asked to stop smoking Indian hemp at a party. Also, that the defence of self-defence will not avail the appellant as it has been shown by the evidence that the alleged attack on the appellant was not in a manner that grievous hurt and for death was possible. He relies on the case of Uwaekweghinya V. The State (2005) 1 NCC 369 at 384.
Learned counsel also submitted that the court below was right when it held that the trial court was right to have disbelieved the testimony of the appellant at the trial because of its contradiction with exhibit B. He opined that the appellant failed to convince the court as to why the appellant’s testimony in court that is a contradiction to exhibit B should be believed.
In conclusion, learned counsel submitted that the appellant failed to convince this court that there were insufficient evidence to support the findings of the trial court that the appellant killed the deceased deliberately and not under provocation and/or self-defence. He then urged this court to resolve this issue against the appellant.
My Lords, it seems to me most convenient to start resolving the sole issue in this appeal by considering the evidence adduced by the appellant upon which his defence of provocation and self-defence are predicated vis-a-vis the evidence provided by the prosecution. In his statement to the police, being first in time, the appellant said, inter alia in exhibit B.
“Then the deceased gave me a blow on my left eye. Then I rushed and held him on his waist from behind. The deceased tried to remove a jack knife from his waist. I held the handle of the jack knife and as we were struggling the jack knife fell. Ajing used his leg to match the jack knife, but I was faster and pick the jack knife and stabbed Ajing on the left side of his ribs and removed the jack knife.”
However, in his evidence in court, he deviated from his earlier admission that he stabbed the deceased. This is what he said amongst others:
“Ajing sat on top of me and removed a jack knife, I began to struggle with him because he wanted to injure me. As I was struggling the knife pierced Ajing. Ajing began to shout that I have stabbed him with a knife.”
From the two sets of evidence adduced by the appellant to defend himself, in one i.e. exhibit B, he admits to stabbing the deceased in the course of the struggle when he overpowered him and took the knife to stab him. In the other piece of evidence he said that the knife pierced the deceased in the heat of the struggle, thus exculpating himself from blame. The law is quite clear that where an accused person makes two statements voluntarily, with full knowledge of what he is doing and without any form of inducement, a trial judge will be right to take the one which is less favourable to the accused, particularly when that one is first in time. The second one will, in my opinion be an afterthought. See Sule V. State (2009) 17 NWLR (Pt.1169) 33 at 66 paras F – G and Ikemson V. The State (1989) 3 NWLR (Pt.110) 455 at 473. Learned counsel for the appellant agrees with this position when he states on page 7, paragraph 3.3 of his brief as follows:
“The law is not recondite on which to believe. It is the one that is less favourable to the Appellant, more so, when it is earlier in time.”
This is commendable practice by the appellant’s counsel. This means that the evidence of the appellant upon which his defence of provocation and self-defence is anchored is that contained in exhibit B i.e. that he “stabbed Ajing on the left side of his ribs and removed the jack knife.”
Appellant’s evidence in exhibit B is close to that adduced by the prosecution to the effect that the appellant actually stabbed and killed the deceased. The only difference is that the appellant did not state that he smoked Indian hemp around the vicinity which the deceased was serving food and he was admonished by the deceased to go and smoke the weed elsewhere. I am at one with the court below which upheld the decision of the trial court that it was the refusal of the appellant to take his Indian hemp elsewhere that resulted in the altercation between them. Ordinarily, one would have dismissed the defence put up by the appellant without much ado. The reason being that it is unreasonable to think or accept that the appellant, under the circumstances of this case would have lost his self control just because he was asked to stop smoking Indian hemp at the venue of a burial ceremony. But the law is settled that any defence to which an accused person is, on the evidence entitled to, should be considered however stupid or unreasonable for what it is worth. See Uche Williams V. The State (1992) 10 SCNJ. 74, R V. Fadina (1958) SCNLR 250, Udofia V. The State (1984) 12 SC 139, Ojo V. The State (1972) 12 SC 147. In Bozin V. The State (1985) 2 NWLR (Pt.8) 465, this court held that it is an essential principle of a criminal trial that a defence however fanciful, stupid or doubtful is deserving of consideration. See also Abdullahi Ada V. The State (2008) 13 NWLR (Pt.103) 149.
The appellant put up the defences of self-defence and provocation. This defence is provided for in sections 286 and 287 of the Criminal Code Act Cap. C. 38 Laws of the Federation of Nigeria, 2004. I shall reproduce the two sections for ease of reference. Section 286 of the Criminal Code provides:
“286 Self-defence against unprovoked assault: When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault.
Provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm. If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable ground, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.”
Also, Section 287 of the Criminal Code provides:
“287 Self-defence against provoked assault: If when e person has unlawfully assaulted another or has provoked an assault from another, and that other assaults him with such violence as to cause reasonable apprehension of death or grievous harm and to induce him to believe on reasonable grounds, that it is necessary for his presentation from death or grievous harm to use force in self-defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous harm.
This protection does not extend to a case in which the person using force, which causes death or grievous harm, first began the assault with intent to kill or to do grievous harm to some person, nor to a case in which the person using force which causes death or grievous harm endeavoured to kill or to do grievous harm to some person before the necessity of so preserving himself arose, nor in either case, unless, before such necessity arose, the person using such force declined further conflict and quitted it or retreated from it as far as was practicable.”
The law is quite clear that by virtue of section 286 of the Criminal Code, when a person is unlawfully assaulted or attacked, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effective defence against the assault, provided that the force used is not intended and is not such as is likely to cause death or grievous harm. In other words, for the defence of self-defence to avail an accused person, there must be an unlawful assault which the unlawful assault was not provoked by the accused. See Apugo V. The State (2006) 16 NWLR (Pt.1002) 227, Uwaekweghinya V. The State (2005) 9 NWLR (Pt.930) 227 at 285.
This court held in Nwanga Nwuzoke v. The State (1988) NWLR (Pt.72) 529 that the defence of self-defence in cases of murder such as the instant case, is a child of necessity. That it is available to a defendant only when he proves that he was at the time of the killing in reasonable apprehension of death or grievous harm and that it was necessary at the time to use the force which resulted in the death of the deceased in order to preserve himself from the danger. It must be emphasized that the force used by the defendant must also be shown to be proportionate to the force used or imminently threatened against him and reasonable in the circumstances in which it was used. There must be reasonable grounds for the accused person to believe that the only way by which he could escape death or grievous bodily harm to himself was to kill the assailant. See also The State V. Fatai Baiyewunmi (1980) 1 N.C.R.183.
The evidence which the learned trial judge relied to convict the appellant shows that the deceased admonished the appellant to take his Indian hemp and smoke same away from the vicinity of the burial party. The appellant refused. Rather, he engaged the deceased in a scuffle. In the process, he brought out a knife and stabbed the deceased on the left side of his ribs and removed it. One may ask, was the admonition enough provocation to cause the appellant to lose self control and engage the deceased in a scuffle which resulted in the stabbing and killing of Ajing I do not think so. Even if one is to believe the version of the appellant’s evidence in the circumstance, it is clear, according to him that he held the knife by the handle and he used it to stab the deceased in a very delicate position of his body. At that stage, the deceased is not shown to have been in possession of any weapon or even a stick. Even assuming also that the deceased slapped the appellant on his left eye, was stabbing him to death proportionate to the slap he received With due respect, I posit that the answer is in the negative.
In this case, I agree with the two courts below that the appellant failed woefully to show that his life was threatened or in danger at the time he stabbed and killed the deceased. Secondly, the force the appellant used in retaliation to the supposed slap on him by the deceased was disproportionate and falls short of the allowance given under Section 286 of the Criminal Code. Also, the appellant knows and/or ought to know that the smoking of Indian hemp is unlawful and that if the deceased actually requested him to go and smoke it elsewhere, that was not enough to provoke him to kill the deceased.
Section 284 of the Criminal Code provides for the defence of provocation and provides:
“284 Defence of provocation
A person is not criminally responsible for an assault committed upon a person who gives him provocation for, the assault, if he is in fact deprived by the provocation of the power of self-control and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely, to cause death or grievous harm.
Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered, and whether in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.”
For an accused to successfully invoke the defence of provocation, he must state clearly the fact or act of provocation to enable the court to determine how much he was provoked. Secondly, he has to show that the said provocation was enough to deprive him of self-control and thirdly, he must show a retaliation which is proportionate to the provocation offered him by the deceased to the accused. See Stephen V. The State (1998) 12 SC 450 at 498; Alao Chukwu V. The State (1992) NWLR (Pt.217) 255 at 270; Obaji V. The State (1965) 4 NSCC 210 at 215. The appellant herein failed to show how a simple request for him to stop smoking Indian hemp at a party provoked him to the extent of losing his self-control.
It may be necessary to state here that the distinction between the defence of self-defence and that of provocation is that while a plea of self-defence if successfully raised will completely absolve the offender from criminal responsibility, a plea of provocation on the other hand, if successful, reduces the offence of murder to manslaughter. See Ajunwa V. State (1988) SC 110, Albert Laoye V. The State (1985) 2 NWLR (Pt.10) 832. In the instant case, the appellant has failed to successfully plead any. He is not entitled to any of the two defences raised. I accept, agree and uphold the judgment of the court below which also affirmed the judgment of the trial court. The lone issue submitted by the appellant, as it stands is hereby resolved against him.
Having resolved the only issue in this appeal against the appellant, it only remains for me to state categorically, that this appeal is devoid of any scintilla of merit and is hereby dismissed. I affirm the judgment of the Lower Court which uphold the conviction and sentence of the appellant to death by the trial High Court.