Frank Uwagboe V The State (2008)

LAWGLOBAL HUB Lead Judgment Report

S.A. AKINTAN, JSC

This is an appeal from the judgment of Benin Division of the Court of Appeal delivered on 25 May, 2006. The appellant was the accused person at the trial Court. He was arraigned at Benin High Court on one count charge of murder punishable under section 319(1) of the Criminal Code, Law of Bendel State 1976 applicable to Edo State. The particulars of the offence are that the said accused, on or about the 4th day of April, 1994 at Erua Village, Ehor in the Benin Judicial Division, unlawfully killed one Asia Uwagboe.

The appellant pleaded not guilty to the charge and the prosecution led evidence in support of its case against the appellant. At the end of the trial, the learned trial Judge, Itua, J., held, in his reserved judgment delivered on 5th August, 2004 that the prosecution had proved its case against the appellant. He accordingly found him guilty as charged and sentenced him to death by hanging. His appeal to the Court of Appeal was dismissed, hence the present appeal.

The parties filed their respective brief of argument in this court. The appellant formulated the following two issues as arising for determination in the appellant’s brief:

“1. Whether the lower court was right in affirming that the prosecution proved its case beyond reasonable doubt.

Whether the learned Justice of the Court of Appeal adequately considered the defences available to and or raised by the appellant.”

Two similar issues are formulated in the respondent’s brief. I therefore need not reproduce them.

The facts of the case are that the appellant unlawfully murdered one Asia Uwagboe at Erua village, Ehor on 4th April, 1994 by using a cutlass to cut the right hand of the deceased. The appellant fled after the incident and was only arrested about three years after at the Auchi Motor Park. The appellant denied that he intentionally used the cutlass to cut the hand of the deceased which eventually caused the man’s death. His case was that the deceased appeared with a matchet and in an attempt to dispossess him of same, the matchet, cut the man’s hand. Medical attention was not

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immediately available until the next day due to lack of transportation and medical facilities at Erua village, Ehor. It was then too late to be able to save the man from dying.

The appellant made a written statement to the police under caution after his arrest. It was admitted at the trial as Exhibit 1. He denied therein that he intentionally cut the deceased with the cutlass. He said, inter alia, in the statement that the deceased was his uncle and that they were living in the same house. His account of the incident was given, inter alia, as follows in the said statement:

“…On 4/4/94 at about 9p.m in the night, I heard that Asia now late said I am the person who stole my father’s money. Then my father was looking for =N=60. I now sent to meet Asia whether he saw the money with me. Asia did not say anything. I then swear that if I am the person that took the money let the night be bad with me and if I am not the person let the night be a bad one to you Asia who is telling lies. From there my real father came out and told everybody that he had never seen me in this house since morning. From there Asia’s son called Monday came out and we started fighting. The fighting did not last long then Asia came out with a cutlass, he wanted to use it, from there I drew the cutlass from his hand. I cannot remember which hand the cutlass cut his hand at the palm. It was then I saw him injured. I then decided to go and carry my goods because I had already planned to travel that day.”

Monday Asha is the son’ of the deceased. He was an eyewitness of the incident and he testified at the trial as P.W. 1. He told the trial court, inter alia, as recorded on pages 20 to 21 of the record, that the deceased was his father and that the appellant was his uncle. He then said as follows:

“On 4/4/94, I was living at Erua village. At about 11.30p.m my grandfather, Uwagboe, was crying saying that the accused has stolen his =N=60. So my grandfather went to my father’s door, we were all living in a family house at the time. My father told my grandfather, Pa Uwagboe, to go and wait till tomorrow. When the accused heard that my father mentioned his name, he said he was going to kill my father this night. My father locked his door. The accused took a cutlass and broke the door. Myself, my wife Stella, Patient, my father’s wife and my father the deceased, were in the same room and parlour. He broke the door and came inside the room and parlour. My father was begging the

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accused. The accused cut the deceased with a cutlass. The knife my father held fell. I ran away. All the others in the room ran away. The right hand of my father was cut by the accused. Only the skin held the hand. The neighbours gathered. They took my father to another house and tied the hand.

I took my father to Ehor Maternity Hospital on a motor-cycle. The inmates of the maternity said they were not going to be able to treat the injury. In the following morning they took my father, the deceased, to Suyi Hospital, 3rd East Circular Road, Benin City. The doctor said there was shortage of blood. I got the blood but before he could take the blood he died on 6/4/94 at about 4.30a.m. I then reported the matter to Ehor Police Station. I was given 2 police men who took the corpse to the Central Hospital Benin City.”

Two other eye-witnesses who testified at the trial are Stella Asha, the wife of PW 1. She testified as PW 2. The other witness is Patience Asha, the wife of the deceased who testified as PW 3. The two witnesses’ evidence was in line with the evidence at PW 1.

The appellant gave evidence in line with the account of the incident as narrated in his statement to the police. But he called no other witness.

It is submitted in the appellant’s brief in Issue 1 that both the trial court and the Court of Appeal failed to take into consideration the possibility of the three key prosecution witnesses (PW. 1, PW 2 and PW 3) conspiring against the appellant particularly for reason rooted in Bini Customary system of inheritance by which male children are by inheritance the beneficiary of the deceased father’s estate. It is said that by eliminating the appellant, PW 1 would be the only male child left to inherit the family land and properties.

It is also argued that the evidence given at the trial by each of the three witnesses was in conflict with the account of the incident in their respective statements to the police. It is then submitted that where a witness makes a statement which is inconsistent with his testimony, such testimony should be treated as unreliable while the statement is not regarded as evidence upon which the court can act. The decisions in Oladejo v. The State (1987) 3 NWLR (Pt. 61) 419; Onubogu v. The

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State (1974) 9 SC 1 and Queen v. Joshua (1964) 1 All NLR 1 at 3 are cited in support of this submission. It is therefore submitted that the evidence of the 3 witnesses should be discountenanced.

It is submitted in Issue 2 that the defences of provocation, accident and self defence opened to the appellant were not properly considered by the two lower courts in arriving at their decisions in the case. The allegation by the deceased that the appellant stole his =N=60 without justification, an allegation which was announced to the hearing of all is said to be provocation in itself. It is argued that the onus of proving absence of provocation lies on the prosecution. The prosecution is said to have failed to satisfy that requirement in this case.

Similarly, the defence of self defence is said to be clearly made out from the facts available in the case. The same is said in respect of the defence of accident. It is submitted that where on the state of the evidence on record it is found that only one cutlass was introduced or other wise, the doubt ought to have been resolved in favour of the appellant.

It is submitted in reply in the respondent’s brief in Issue 1 that the court below was right when it held that the charge against the appellant was proved beyond reasonable doubt. It is submitted that the weapon used, a sharp cutlass, clearly showed that the appellant intended to inflict grievous wound on the deceased which eventually resulted in the death of the deceased.

It is also submitted that the fact that the witnesses are related and live in the same house hold do not make them incompetent to testify for the prosecution or that their evidence could not be credible.

On the contention of possible conspiracy between PW 1, PW 2 and PW 3 aimed at eliminating the appellant to prevent him from inheriting his father’s property, it is said that the submission is totally extraneous to the appeal because the point was not canvassed at the trial court and in the Court of Appeal. The submission on behalf of the appellant of that point is therefore said to be based on speculation and not on any evidence on record.

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Similarly, on the contention that there were material contradictions in the evidence of PW 1, PW2 and PW3 and their extra-judicial statements made to the police, it is said that the minor discrepancies are not fundamental as they do not affect the substance of the case.

In reply to the submissions made in Issue 2 that the court below failed to consider the defences of self-defence, provocation and accident, it is submitted that such allegation is not correct. This is because the defence of accident under section 24 of the Criminal Code is said not to be available to the appellant. The learned trial Judge and the Justices of the court below found as a fact that the accused did not injure the deceased accidentally. The deceased was said to have struck intentionally. The same is said of the defence of provocation and self-defence. They are said to have been duly considered by the court below.

The facts of the case have been fully set out earlier above. Although each of the three prosecution witnesses made a statement to the police shortly after the incident, none of them was cross-examined as to the contents of the statement they made to the police. None of them was confronted with any presumed conflict between what was contained in their statement to the police and their evidence in court. None of their said statements was tendered at the trial and in fact no allusion or reference to such statements was made at the trial. It is therefore totally erroneous to raise the question of alleged conflicts or conspiracy between the three prosecution witnesses as a result of any perceived conspiracy.

The point was well dealt with by the court below in its lead judgment written by Alagoa, JCA. The learned Justice said thus at page 132 of the record:

“The evidence given by the 1st, 2nd and 3rd prosecution witnesses, Monday Asha, Stella Asha and Patience Asha, are undoubtedly similar, unequivocal and direct and were not punctured by cross examination and are to the effect that the Appellant had been accused of the theft of a missing =N=60 (sixty naira) and having heard the deceased mention his name as the culprit said he was

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going to kill the deceased that night. He then left and came back with a cutlass and broke open the door of the deceased who on seeing that the Appellant was probably bent on carrying out his threat began to beg the Appellant who nevertheless cut his (the deceased) right hand so severely that only a little flesh still held the cut hand in place. None of these eye witnesses testified that there was a fight between the Appellant and the deceased or that both had earlier had a quarrel before the incident. The learned trial Judge in my view was right in the assessment of the evidence of these witnesses that it was the Appellant who attacked the deceased with a cutlass and that it was the injury sustained that caused the death of the deceased.

Heavy weather has been made of the fact that the three witnesses are related to the deceased. Interestingly the same witnesses are also related to the Appellant which cancels out the possibility that the witnesses may have been tainted. With respect to the actual intention of the Appellant at the time he inflicted cuts on the deceased there can be no doubt as found by the learned trial Judge that the nature of the weapon used – a cutlass which is a sharp object and the severity of the injury caused by the use of the cutlass meant that the Appellant either intended to kill the deceased or cause him grievous bodily harm. This is further buttressed by the fact that the witnesses had independently testified that the Appellant had said he would kill the deceased on the night of the incident. There is the legal aphorism that the devil himself does not know the intention of man. Intention is inferred from overt acts.”

It is clear from the above passage that it is not correct that the lower court failed to consider the conspiracy issue. Furthermore, the defence failed to lay the necessary foundation or raise the issue of conflict between the statements made to the police by the three witnesses and the evidence they gave at the trial. There is therefore no merit in the appeal as it relates to that issue.

Again the question whether any of the defence of provocation, accident or self-defence was available to the appellant and whether the court below failed to consider them is also not true.

The law is settled that defence of provocation is only available to an accused person who did the killing in the heat of passion before there is time to cool down. In law, for the defence of

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provocation to succeed, it must be shown by the accused person: (1) that the act relied on by the accused is obviously provocative; (2) that the provocative act deprived the accused of self-control; (3) the provocative act came from the deceased; (4) the sudden fight between the accused and the deceased was instantaneous and continuous with no time for passion to cool down; and (5) the force used by the accused in repelling the provocation is not disproportionate in the circumstance: See Nwede v State (1985) 3 NWLR (Pt. 13) 444; Akalezi v. State (1993) 3 NWLR (Pt. 273 1; Okonji v. State (1987) 1 NWLR (Pt. 52) 659; and Ekpenyong v. State (1993) 5 NWLR (Pt. 295) 513.

It follows therefore that the defence was not available to an accused person who although there was a provocative incident which angered the accused person at first, but the evidence was that by the time he stabbed his victim later he was acting with calculation and no longer in the heat of passion. See Nwango v. The Queen (1963) All NLR 330. The term ‘provocation’ is said to include any wrongful act or insult. See Alonge v. Attorney-General of Western Nigeria (1964) 1 All NLR 115. But the established facts in this case were that the appellant heard that he was accused of stealing his father’s =N=60. He threatened to kill the deceased, his brother. He went to look for a cutlass. The deceased and other members of the household locked themselves up in a room in the house and started to appeal to the appellant not to carry out his threat of killing the deceased. The appellant ignored their plea, broke the door and went in to inflict the deadly wound on the deceased. Although the accusation of stealing =N=60 could amount to provocation, the stabbing of the deceased did not follow instantaneously. The appellant was not said to be carrying the cutlass used at the time he heard the allegation. He went for the cutlass after hearing the insulting word. This was followed by forcibly breaking the door leading to where the deceased and other members of the family had locked themselves and then inflicted the deadly wound on the deceased. The evidence definitely showed that the appellant was acting with calculation as at the time he stabbed the deceased and not an act done in the heat of passion. The defence of provocation was therefore not available to him.

The defence of self-defence is open only to an accused person who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or

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grievous harm. But he is even entitled to use such force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from the danger, and this he is entitled to do even though such force may cause death or grievous harm. If the act of self-defence is committed after all danger from the assailant is past and by way of revenge, the defence will not be available to such an accused person. See R. v. Dummemi (1955) 15 WACA 75.

Also the position of the law is that where an accused person has not expressly raised issue of self-defence, this issue could only be considered if from the available evidence the defence avails him so that the court will advert to it: See Ehot v. State (1993) 4 NWLR (Pt. 290) 644. In the instant case, although the defence of self-defence was raised by the appellant, but the evidence before the court did not suggest that the defence was available to him. The appellant was clearly the aggressor. The knife said to be found on the deceased was probably picked up in the room when the appellant had appeared with the cutlass. It was probably meant to be used for self defence by the deceased.

Finally, it is necessary to consider if the defence of accident was available to the appellant.

An accident is the result of an unwilled act, an event which occurs without the fault of the person alleged to have caused it: See Oghor v State (1990) 3 NWLR (Pt. 139) 484; and Thomas v. State (1994) 4 NWLR (Pt. 337) 129. A willed deliberate act, therefore, negatives the defence of accident. For the defence of accident to avail the appellant in the instant case, it must be shown that the blow to the deceased by the appellant occurred independently of the exercise of his will. That was not the situation in the instant case. Consequently the defence of accident is definitely unavailable to the appellant.

In conclusion and for the reasons I have given above, there is no merit in the entire appeal. I accordingly dismiss the appeal and affirm the sentence of death passed on the appellant.

SC. 221/2006