Inyang Etim Akpan Vs The State (1994)

LawGlobal-Hub Lead Judgment Report

ADIO, J.S.C

The appellant, Nyang Etim Akpan, alias Mbom Etim Akpan, was charged with the murder of one Enefiok Mbom Edet under section 319(1) of the Criminal Code Law, Cap. 31 of the Laws of the Cross River State of Nigeria, applicable in Akwa Ibom State of Nigeria. The evidence led by the prosecution was that on the 19th day of July, 1986, the deceased was one of those to be initiated as new members of Ekpo Masquerade Society in Mbiaya Uman, Uyo.

The appellant (who was the assistant head of Ekpo Society) had a matchet in his armpit and held a cow horn and wooden gong in one hand. He walked to the house of P.W. 2. While there, the deceased too came to the house of P.W.2 and asked the appellant why he hit him (deceased) with the cow horn. The appellant said that it was Patrick Okon that he wanted to hit with the cow horn and not the deceased. The next thing that happened was that the deceased took the Matchet and the cow horn from the appellant and ran towards the direction of his (deceased’s) house which was on the way to the village square where the ceremony was to take place. In response to the plea of the P.W.2, the appellant did not run after the deceased to take the Matchet and the cow horn from him.

Subsequently, the appellant arrived at the village square where the initiation ceremony was to take place and where he met many people, including the P.W.1 and the deceased, who had assembled there for the ceremony. According to the evidence given by the P.W.1, the appellant wore a big gown and without any incident, at that place, between him (appellant) and the deceased or any other person the appellant brought a gun out from his pocket and shot the deceased who died on the spot. Thereafter, the appellant took his Matchet and the cow horn, which were with the deceased, and left the place.

At the trial of the appellant before the learned trial Judge the defences of provocation and self defence were canvassed by the appellant’s counsel. The learned trial Judge gave consideration to the evidence before him and the submissions of the learned counsel for the parties. He found the appellant guilty of the charge. He was convicted and sentenced to death by the learned trial Judge.

The learned trial Judge expressed the view that it was common ground that the appellant shot and killed the deceased at the village square on the day in question. He held that the evidence of the appellant that the deceased and the P.W.1 chased him and that the deceased flung a matchet twice over his (appellant’s) face was an after-thought and he rejected it. In his view, the evidence of the medical doctor who performed the post-mortem examination on the corpse of the deceased was absolutely unnecessary. Dissatisfied with the judgment, the appellant lodged an appeal against it to the Court of Appeal.

The Court of Appeal dismissed the appellant’s appeal. The appellant made two statements to the Police, one was made on 19-7-86 and the second one was made on 21-7-86. The statement made on 19-7-86 was according to the court below, not tendered throughout the proceedings. The learned trial Judge fell that it was tendered and admitted and therefore considered its contents along with other evidence. In the case of the one which was made on 21-7-86, the court cautioned on the applicability of the principle enunciated in Oladejo v. The State, (1987) 3 NWLR (Pt.61) 419 at page 427 on the ground that the appellant’s evidence in the court contradicted his statement to the police as the Court of Appeal found that, in any case, the oral evidence of the appellant in court did not contradict his written statement to the police and that the principle in Oladejo’s case did not apply. The court expressed the view that the learned trial Judge was right in rejecting the defences of provocation and self-defence. Dissatisfied with the judgment of the Court of Appeal, the appellant lodged an appeal against it to this court.

In accordance with the rules of this court, the parties duly filed and exchanged briefs. The appellant filed an appellant’s brief and the respondent filed a respondent’s brief. Three issues for determination were identified in the appellant’s brief while two were identified for determination in the respondent’s brief. The three issues for determination identified in the appellant’s brief are sufficient for the determination of this appeal. They are as follows:-

“1. Whether there has been a want of fair trial.

2. Whether the Court of Appeal was justified in upholding the decision of the trial court that the defence of self-defence did not avail the appellant.
3. Whether the Court of Appeal, was justified in upholding the decision of the trial court that the defence of provocation had also failed”.

No doubt, two of the main issues in this case are whether the defence of self-defence was available to the appellant and whether, in the circumstances of this case, the defence of provocation was available as a defence to the appellant. However, in a charge of murder it is necessary to find out what is the nature of the onus on the prosecution. In other words, what are the ingredients of the offence which the prosecution has to prove beyond reasonable doubt It is after the burden of proving the ingredients of the offence beyond reasonable doubt has been discharged that the question whether the accused has a defence and, if so, the nature and proof of such defence can arise and be considered. In a charge of murder, the burden is on the prosecution to prove the following ingredients beyond reasonable doubt:-

i. that the deceased had died;

ii. that the death of the deceased has resulted from the act of the accused; and

iii. that the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.

See Akinfe v. The State, (1988) 3 NWLR (Part 85) 729; and Ogha v. The State. (1992) 2 NWLR (Part 222) 164.

Bearing in mind the ingredients of the offence of murder which the prosecution had to prove beyond reasonable doubt in this case, I now consider the question raised under the first issue which is whether there had been a want of fair trial of the appellant. The complaints, in this connection, were many and they will be dealt with one by one. After the appellant had been arrested, he made two statements to the police. One was made on the 19/7/86 (hereinafter called “the first statement”) which, throughout the proceedings, was according to the court below, not tendered and admitted as an exhibit. The other statement was made on the 21/7/86 (hereinafter called “the second statement”) which was tendered during the proceedings and was admitted and marked as Exhibit “1”. The matters which the learned trial Judge took into consideration in coming to the conclusion that the appellant committed the offence and that the defences of self-defence and provocation were not available to him, included some of the contents of the first statement. The position in relation to the first statement of the appellant, as far as the Court of Appeal was concerned, was clearly that the first statement was not part of the record of proceedings and should be ignored completely. The submission made for the appellant was that is was improper for the learned trial Judge, for the purpose of the determination of the question whether the appellant committed the offence and, if so, whether the defences of self-defence and provocation were available to the appellant, to take into consideration part of the contents of the first statement. It was also submitted that the Court of Appeal made no comment about the improper use made by the learned trial Judge of the first statement and that the court finally considered the second statement without considering how far the learned trial Judge had been influence in coming to the decision on the relevant matters.

I should state straightaway that the learned counsel for the appellant conceded that the foregoing complaint about the use made of the first statement by the learned trial Judge, was not one of the grounds of appeal to the Court of Appeal and that the issue was not raised in the Court of Appeal. The view of the learned counsel for the appellant in the last paragraph of section 3. 1 A, 10 of the appellant’s brief was as follows:-

“It is immaterial whether the appellant had not made this a ground of appeal in the Court of Appeal. Being a fundamental point of law it could be taken on appeal to the Supreme Court.”

I can’t see in what way the court below could properly be said to be wrong in dealing with this aspect of the matter. The court below could not reasonably have dealt with a matter which was not covered by any ground of appeal. In any case, the complaint of the appellant was that the learned trial Judge should, in the circumstances, not have made use of the whole or parts of the contents of the first statement for the determination by him of certain relevant issues, what the court below, per Oguntade, J.C.A., stated on the matter was, inter alia, as follows:-

“With regards (sic) to the submission by appellant’s counsel, I must say that the only statement by the appellant before us is the one tendered as exhibit I and made on 21/7/86. I do not have before me any statement by the appellant on 19/7/86. Counsel was in error to have addressed us on a statement not forming part of the records of appeal. See Sommer & Ors v. Federal Housing Authority. (1992) 1 NWLR (Pt.219) 548 at 557 – 558″.

What was stated by the court below which was quoted above was consistent with its position that the first statement was not tendered and admitted throughout the proceedings. An appellate court has a duty to exclude inadmissible evidence wrongly admitted and to deal with the case on the basis of the remaining legally admitted evidence. See Ayanwale v. Atanda (1988) 1 NWLR (Pt.68) 22. Further, it is not enough, for the purpose of seeking a reversal of a judgment, merely to show that evidence was wrongfully admitted. An appellant making the complaint has a duty to show that without such evidence the decision would have been otherwise. See Idundun v. Okumagba. (1976) 9 – 10 S.C. 227. Finally, on this point, the provision in section 226(1) of the Evidence Act, Cap. 62 of the laws of the Federation of Nigeria, is that the wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.

The learned trial Judge made a finding of fact, based on the evidence before him, that the appellant shot the deceased and that the deceased died as a result. In dealing with this aspect of the matter, the court below said, inter alia as follows:”

There was evidence from P.W.1, that the appellant shot and killed the deceased. The lower court accepted the evidence. The question that follows is did the trial Judge consider the defences available to the appellant on the ascertained facts”

P.W.1 was an eye-witness of the shooting of the deceased by the appellant.

His evidence on the point was inter alia as follows:-

“At the square, after a time we saw the accused, Mbom Etim Akpan coming to the square. He wore a large gown. He pulled out a gun from his pocket and shot dead Enefiek Mbom Edet… The person he shot died on the spot.”

In view of the foregoing evidence of the P.W.1., the finding of the learned trial Judge was correct and the court below was justified in affirming the finding. The onus is on the prosecution to prove that it was the act of the accused that caused the death of the deceased. See Onyenankeya v. The State. (1964) I All NLR 151; and Lori v. The State. (1980) F.N.R 475. The finding made by the learned trial Judge stated above, which was affirmed by the court below, showed that the prosecution discharged the aforesiad burden. Also, the burden of proving that there was an intention to inflict grievous bodily harm on the deceased had been discharged by the prosecution. If, as in this case, a person shot another person with a gun and the person shot with the gun, died on the spot, the person who fired the shot with a gun cannot properly contend that he did not know that the person he shot would die. This is because, in law, a man intends the natural consequences of his conduct. See Irek v. The State (1976) 4 S.C. 65 at page 67. The act of the appellant was intentional with knowledge that death or grievous bodily harm was its probable consequence.

It is necessary before consideration is given to the question raised under the second and the third issues to deal with the complaint of the appellant on the question whether it was necessary for the prosecution to call more eye-witnesses in order to prove the case of the prosecution against the appellant beyond reasonable doubt. The contention was that there were about fifty people at the square who were eye-witnesses of the incident and the prosecution should have called two or more of them to testify. It is sufficient to state, in this connection, that it is not the number of witnesses that is conclusive on the weight to be attached to the evidence led on a particular point. Except where it is otherwise provided by statute, there is no rule of law or practice stipulating that any particular number of witnesses should be called in proof of any case and the evidence of one credible witness accepted and believed by the trial court is enough. See Adelumola v. The State (1988) I NWLR (Part.73) 683. In any case, it is not necessary for the prosecution, in order to discharge the burden of proving its case beyond reasonable doubt, to call every available piece of evidence or number of witnesses. It is sufficient if enough evidence is adduced to discharge the burden. See Alonge v. Inspector General of Police, (1959) 4 F.S.C. 203.

There was also complaint by the appellant about alleged irregularities in the conduct of the post-mortem examination carried out on the corpse of the deceased. The correct legal position is that where a person attacked another person with a lethal weapon and the other person died on the spot, it is not necessary to prove the cause of death. It can properly be inferred that the wound inflicted on the deceased caused the death. In Bakuri v. The State, (1968) NMLR 163 what happened was that a son killed his father by stabbing him in his stomach. It was held that it was the wound inflicted that caused the death of his father who died almost instantaneously. A post mortem examination or a medical report was not absolutely necessary for the purpose of establishing the cause of death of the deceased. It was, in this case, proved beyond reasonable doubt that it was the act of the appellant that caused the death of the deceased.

With reference to the defence of the appellant, the court below pointed out that it was not necessary to dwell at length on the alleged errors committed by the learned trial Judge and expressed the view that the important thing was whether he came to the right conclusion inspite of such alleged errors. After setting out the portion of the judgment of the learned trial Judge dealing with the consideration and rejection of the defence of self-defence relied upon by the appellant, the court below stated, inter alia, as follows:-

“When evidence called by an accused in support (of) a defence of self-defence is rejected or disbelieved by a trial Judge, such evidence must be incapable of sustaining that defence and the consequence is that the plea fails. The evidence of P.W.1 which the lower court accepted is that the deceased was at the village square waiting to be initiated into the Ekpo masquerade when the appellant walked in and shot him dead. The defence of self-defence was clearly not available to the appellant on the accepted facts.”

In the view of the learned counsel for the appellant, the approach of the learned trial Judge and the court below on the question whether the defence of self-defence was available to the appellant was wrong. Reference was made to the use which the learned trial Judge made of the first statement, made by the appellant to the police, in the determination of the question. It was contended that the learned trial Judge came to a wrong conclusion, on this point, because of his erroneous view of the legal effect of a conflict between the written statements of the appellant and his oral evidence in court. What is important, for the present purpose, is that it was stated in the appellant’s brief at page 16, that the court below did not agree with the learned trial Judge on the use allegedly made of the first statement and on the question whether there was conflict warranting the application of the principle in Oladejo’s case, supra. It was, however, contended for the appellant that the court below fell into the same error as the learned trial Judge because the finding, on the point, made by the learned trial Judge, which the court below affirmed, was based on a wrong premise. Further, it was contended that the court below was in error in coming to the conclusion that the defence of self-defence was not available to the appellant simply because the trial court had accepted the evidence of the only eye-witness of the incident (P.W.1) who testified because, in any case, whether the evidence of P.W.1 was preferable was besides the point.

The respondent, on this aspect of the matter, pointed out that there was no incident or confrontation between the appellant and the deceased or any other person at the square immediately before the appellant brought out his gun and shot dead the deceased. It was also pointed out that the appellant was not in any imminent danger. For those reasons, it was contended for the respondent that the conclusion of the learned trial Judge that the defence of self-defence was not available to the appellant, which the court below affirmed, was justifiable.

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. The force which may be used, in such circumstances, must not be intended, and should not be 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 grounds, 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. Section 286 of the Criminal Code. In the present case, I have pointed out that the court below, for the purpose of determining whether the defences of self-defence and provocation were available to the appellant, disregarded the first statement made by him to the police. That was consistent with it’s view stated above. The argument in the appellant’s brief on the alleged wrong use made of it by the learned trial Judge could, therefore, not be of any use to the appellant’s case. There were before the learned trial Judge, apart from the first statement, the second statement made by the appellant, the oral evidence of the appellant in court; the evidence of the P.W.1 and the evidence of the P.W.2. The forgoing materials were among the materials considered by the learned Judge before he found that the defence of self-defence was not available to the appellant. The finding of a lower court will not be reversed by an appellate court unless it is shown that the finding was perverse. See Ajuwon v. Adeoti, (1980) 2 NWLR (Part 132) 271. That has not been shown in this case. So, the court below was, therefore, justified in affirming it particularly in view of the evidence of the P.W.2 that upon his plea to the appellant, the appellant did not pursue the deceased when the deceased took the matchet and the cow horn from the appellant and fled. If the deceased had wanted to kill the appellant or to inflict grievous bodily harm on him, that was the time that he would have done so. The deceased had the Matchet which he took from the appellant, and the appellant at that time had nothing with which he could defend himself. There was also the evidence of the P.W.1 that subsequently when the appellant came to the village square, where the initiation ceremony was to take place, there was no incident or confrontation between the deceased and the appellant or between the appellant and any other person before the appellant brought out a gun and shot the deceased dead. In order to rely on the defence of self-defence, an accused has to show by evidence that his life was so much endangered by the act of the deceased that the only means of escape from imminent death was to kill the deceased. See Uwede v. The State. (1985) 12 S.C. 32 at page 36. Even if the allegation of the appellant that the deceased waved the matchet twice at the village square at the appellant had been accepted, the defence of self-defence could still not be sustained as it was also the allegation of the appellant that the deceased was far away from the appellant when he did so. The appellant could not, in the circumstances. be said to be in imminent danger of being killed or of the deceased inflicting matchet cuts on him. Also, if, for the purpose of argument, the allegation of the appellant that the deceased slapped him was true, that could not reasonably warrant the shooting of the deceased by the appellant with a gun which obviously was out of proportion and totally unreasonable, because in order to rely on self-defence as a defence to a charge of murder, the force used must be proportionate to the force used or threatened by the deceased against the accused and reasonable in the circumstances in which it was used. See Nwuzoke v. The State, (1988) I NWLR (Pt.72) 529. The answer to the question raised under the second issue is in the affirmative. The court below was justified in upholding the decision of the trial court that the defence of self-defence did not avail the appellant. In law, the defence of self-defence is not available to an accused if his defensive measures to protect himself are out of all proportion to the danger which he faced. See Akpan v. The State. (1992) 6 NWLR (Pt.248) 439.

The second defence relied upon by the appellant is the defence of provocation.

The provision of section 318 of the Criminal Code, on the point, is as follows:-

“When a person who unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by grave and sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”

Section 318 of the Code quoted above does not contain a definition of the word, “provocation” but the view of this court in the matter is that sections 283 and 318 of the Code should be read together. Provocation is an act or series of acts done by the deceased to the accused to make the latter for the moment not master of his mind. See Kada v. The State, (1991) 8 NWLR (Pt.208) 134. The ingredients of the defence of provocation are:-

(i) the act of provocation which must be grave and sudden;

(ii) the loss of self control, both actual and reasonable; and

(iii) the retaliation proportionate to the provocation.

All the three elements of the defence of provocation mentioned above must be present before the defence can be upheld or sustained. See Biruwa v. The State, (1992) 1 NWLR (Pt.220) 663. In the present case, the learned trial Judge considered the defence of provocation and rejected it. In his opinion, the allegation of the appellant that the deceased had earlier slapped the appellant before the appellant killed him was not true and he rejected it. The learned trial Judge did not also believe the allegation of the appellant that the deceased flung a matchet twice at the appellant and it was as a result of that the appellant killed the deceased. The learned trial Judge went on to consider the appellant’s allegation that the deceased took the matchet and the cow horn from him and the appellant’s allegation that the Society to which he belonged and which was to conduct the initiation ceremony on the day in question, would fine him (appellant) a goat, a cow and wine if he was unable to produce the matchet and the cow horn at the ceremony, and the learned trial Judge came to the conclusion that none of them constituted sufficient provocation that could reduce the offence of murder to manslaughter. He also expressed the view that the force and weapon used by the appellant were disproportionate to the alleged act of the deceased. Oguntade. J.C.A., in affirming the finding of the learned trial Judge, stated as follows:-

‘I am in agreement with the reasoning of the trial Judge. Even if it is conceded that the snatching of the appellant’s cow horn and Matchet could amount to provocation, I do not see that the appellant was justified in employing a gun to shoot dead the deceased. The act of the appellant in shooting dead the deceased just to recover the matchet and cow horn was senseless and extremely disproportionate to the provocation offered by the deceased.”

The contention for the appellant was that the learned trial Judge was wrong in not accepting the evidence that the deceased slapped the appellant. He was also wrong in holding that the slapping of the appellant by the deceased, the snatching of the Matchet and the cow horn by the deceased from the appellant, the fine which should have been imposed on the appellant by the Society if he was unable to produce the matchet and the cow horn at the initiation ceremony or the flinging of the matchet by the deceased at the appellant, did not constitute sufficient reason for the appellant to warrant his shooting the deceased with a gun, and the court below was equally wrong in upholding the finding. The learned counsel for the appellant contended that the matter should be considered in the light of what would be the reaction of an average member of Ekpo society in the same circumstances as the appellant at the material time. The appellant, the learned counsel contended, was above all an illiterate night watchman.

The submission made for the respondent was that the shooting of the deceased with a gun by the appellant was disproportionate to the alleged act of the deceased. For that reason, it was further contended that the defence of provocation was not available to the appellant.

Assuming, for the purpose of argument, that the allegations of the appellant that the deceased slapped him that the deceased snatched the matchet and the cow horn in possession of the appellant, that the Ekpo Society would have fined the appellant if he was unable to produce the matchet and the cow horn at the initiation ceremony, and that the deceased flung the matchet at the appellant, were true, none of them was, in the circumstances of this case, sufficient to be an excuse for or warrant the shooting of the deceased by the appellant. The shooting of the deceased by the appellant with a gun was out of proportion and outrageous as a reaction to any of the alleged acts. The evidence before the court, which was rightly accepted, was that, as a result of the pica of the P.W.2. the appellant did not pursue the deceased for the recovery of the matchet and the cow horn. It was later that the appellant came to the square where the initiation ceremony was to take place and at where the deceased and other persons had assembled. It was there that the appellant shot the deceased. In effect, there was time for the appellant to cool even if he was annoyed by what the deceased had done earlier on the day.

With reference to the alleged flinging of the matchet by the deceased at the appellant, the evidence of the appellant himself was that the deceased was far away from him (appellant) when he shot the deceased. In any case, none of the allegations made by the appellant against the deceased could reasonably or justifiably warrant the use of a lethal weapon such as a gun to shoot dead the deceased. Whenever there is sufficient interval for reflection during which a normal man can realise and understand the gravity of what he intends to do, the defence of provocation cannot be sustained. See Nwede’s case, supra. In Green v. R., (1955) 15 W.A.C.A. 73, the appellant came home one day and found that his wife had left the matrimonial home for her mother’s home in the same village. One evening the appellant went to the mother-in-law’s home and found his wife and another man having sexual intercourse. He went back to his house and brooded over his misfortune. After about four hours he returned to his mother-in-law’s home with a matchet. When he pushed open the door of the room where his wife and her lover were asleep, the room was dark. The appellant inflicted injury on his wife with the matchet and his wife died as a result. It was held that there was grave provocation when the appellant found his wife and her lover having sexual intercourse and if he had there and then killed his wife the circumstances would almost certainly have called for a reduction from murder to manslaughter.

The period of waiting (about four hours) destroyed the excuse of “sudden provocation” because the appellant had time for reflection. In the present case, if the alleged slapping of the appellant by the deceased or the taking of the matchet and the cow horn was sufficient provocation, the fact that it was later in the day when the appellant came to the square, where the initiation ceremony was to take place, that he shot the deceased with a gun destroyed the excuse of sudden provocation. The appellant had time for reflection. Further if as in this case, the injury inflicted for a slight transgression is outrageous and out of proportion, the plea of provocation will not be available to the accused. See Akpakpan v. R.. (1956) F.S.C.I.

With reference to the contention that the matter should be considered in the light of what would be the reaction of an average member of Ekpo Society or a night-watchman in the same circumstance as the appellant at the material time, the submission for the respondent was that the shooting of the deceased with a gun by the appellant was disproportionate even if the deceased did any of the things alleged against him. The act of the appellant in shooting the deceased with a gun was a revenge which the law did not recognise as a defence.

In R. V. Adekonmi, 17 N.L.R. 99, the wife of the accused jeered at him and taunted him with being impotent and told him that she was having sexual intercourse with other men. The accused, who was described as an illiterate and primitive peasant, was so infuriated that in the heat of passion he picked up the first weapon to hand, which was a cutlass, and killed his wife. He was committed to trial on a charge of murder. In considering the degree of provocation required to reduce to manslaughter what would otherwise be murder and the relevant principle that the provocation suffered must be judged by the effect it would be expected to have on a “reasonable man” and not by the effect it did actually have, on the particular person charged, the trial Judge directed himself the words “reasonable man” must be taken to mean “a reasonable man of the accused’s standing in life.” It was held that the accused was not guilty of murder but guilty of manslaughter. In coming to the decision in the case, Francis, J., after setting out the relevant principles of English Law, stated, at page 101, inter alia as follows:-

“In applying these principles to this case it is my considered opinion that the words ‘the effect it would be expected to have on a reasonable man’ must be taken to mean ‘the effect it would be expected to have on a reasonable man of accused’s standing in life’, for it would, I think, be improper to examine the question in the light of what would be sufficient provocation in the case of an educated and civilized person. The accused, be it noted, is an illiterate and primitive peasant of this country, and it must be beyond doubt that the passions of such a type are far more readily aroused than those of a civilized and enlightened class.”

Even if the consideration which should be given to a case when the accused is an illiterate and a primitive peasant, as stated in Adekanmi’s case, (supra), is given, in this case, to the appellant, the offence, which is otherwise murder cannot be reduced to manslaughter. This is because the weapon used by the appellant was not in reasonable proportion to the alleged provocation. Further, there was time for passion to cool even if he was annoyed by what the deceased had done. The learned trial Judge was, therefore; right in holding that the defence of provocation had failed and the court below was justified in affirming the decision.

The prosecution proved beyond reasonable doubt that the appellant was guilty of the charge preferred against him, that is, murder. The defences of provocation and self-defence were not, in the circumstances, available to him and there was no irregularity in the proceedings. Consequently, it could not be said that there had been a want of fair trial.

I return to the questions relating to the first statement, that is, the statement made to the police by the appellant on the 19/7/86. The position taken by the court below was that it was not tendered and admitted throughout the proceedings and, for that reason, it did not form part of the record and ought to be ignored completely in determination of any issue in this case. The learned trial Judge felt that it was tendered and admitted during the proceedings and was, therefore, considered by him with other evidence for the determination of the relevant questions in this case. The relevant questions were (a) whether the appellant killed the deceased, (b) whether the defence of self-defence was available to the appellant, and (c) whether the defence of provocation was available to the appellant.

The confusion about the aforesaid first statement of the appellant made to the police on the 19/7/86 arose because of certain unusual circumstances pertaining to it. P.WA was one sergeant George Ekpong. He testified that he was the one who recorded the second statement of the appellant that was dated 21/7/86. When the prosecutor applied to tender the second statement on 5/4/89 there was an objection to it its admissibility by the defence counsel. The objection was subsequently withdrawn on 2/5/89 and it appeared, from the record of proceedings, that the P.W.4 tendered the said second statement of the appellant along with other documents, including the first statement of the appellant dated 19/7/86, which were all admitted and marked Exhibit “1”. The tendering and admission of the second statement along with other documents, including the first statement dated 19/7/86, and the marking of all of them as Exhibit “1” were not only unusual they were irregular. Apart from other things, the tendering, admission, and marking of each of them separately would have been better and neater as it would have been possible for the defence to object to the admissibility of any of them, if it so desired. There is also the fundamental question raised by the evidence of P.W.A that he (P.W.4) recorded the second statement of the appellant but that the first statement of the appellant dated 19/7/86 was recorded by one Michael Ozigbo. The evidence of P.W.4 on the point, was as follows:-

I recorded the statement of 21/7/86. I signed the statement below the cancellation. One Michael Ozigbo recorded the statement of 19/7/86.”

Michael Ozigbo did not give evidence or tender the said first statement of the appellant dated 19/7/86. So, it was the P.W.4 who was not the person that recorded the aforesaid statement that tendered it.

I have read the first statement of the appellant dated 19/7/86 and it is clear from it that the appellant agreed that he shot dead the deceased. The appellant said, infer alia, as follows:-

“When I reached Ekpenyon Ekpe’s compound nearer to my house, this man Enefiock Mbom gave me a slap on my face blocking my both eyes. From there he took my cutlass and the traditional cultural cow horn. I was annoyed. I ran after him, and fired a shot at him he fell down died.”

On the question whether the defences of provocation and self-defence were available to the appellant, the learned trial Judge found, and the court below affirmed the finding, that the aforesaid defences were not available to him. Both courts relied on, infer alia substantially on the evidence of P.W.2 who, as the appellant admitted, was present when the deceased asked the appellant why he hit him with the cow horn and the deceased took the cutlass and the cow horn from the appellant, and the evidence of P.W.1 who was present when the appellant arrived at the market square where the initiation ceremony was to take place and where the deceased and other persons had assembled for the ceremony. The evidence of the P.W.1 was that the appellant, on arrival at the market square, saw the deceased and, without any incident between the appellant and the deceased or between the appellant and any other person, the appellant brought out a gun under his big gown and shot dead the deceased. In the case of the taking of the cutlass and the cow horn from the appellant by the deceased, the evidence of the P.W.2 was that the deceased asked the appellant why he hit him (deceased with the cow horn and when the answer of the appellant appeared not to satisfy the deceased, the deceased took the cutlass and the cow horn from the appellant and fled. The appellant, according to P.W.2, did not pursue the deceased to recover the aforesaid things as a result of plea of the P.W.2. The P.W.2 never testified that the deceased slapped the appellant. The learned trial Judge held and the court below affirmed the finding, that the snatching of the cutlass and the cow horn by the deceased from the appellant could not be a justifiable excuse for the appellant to shoot the deceased dead with gun because there was enough time for the passion of the appellant to cool and, in any case, the weapon used by the appellant was not in reasonable proportion to the alleged provocation. In the case of the defence of self-defence, the finding of the learned trial Judge, which the court below affirmed, was that the appellant was not in any imminent danger of being killed by the deceased when he shot the deceased dead. In the circumstances in this case, the use, made by the learned trial Judge, of parts of the contents of the first statement dated 19/7/86, made by the appellant to the police, did not cause any miscarriage of justice because on the totality of the evidence before him he would have, without making use of parts of the aforesaid first statement, come to the same conclusion that the appellant killed the deceased and that the defences of self-defence and provocation were not available to the appellant. That was the reason why the court below, rightly in my view, affirmed the finding of the learned trial Judge on the points.

On the whole, the appeal lacks merit. It does not succeed. The conviction and sentence of death passed on the appellant affirmed by the court below are hereby further affirmed by me. The appeal is accordingly, hereby dismissed.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Adio, J.S.C. I agree with the judgment and I too dismiss the appeal and affirm the decision of the court below.

WALI, J.S.C.: I have had a preview of the lead judgment of my learned brother, Adio J.S.C., and I entirely agree with it.

There was overwhelming evidence which the learned trial Judge accepted after painstaking consideration to support the appellant’s conviction for murder.

Having read the concurring judgment of my learned brother, Ogundare J.S.C. I agree with him that the appellant’s statement made on 19th July 1986 was properly admitted in evidence along with his other statement made on 21st July 1986. The two statements were marked as Exhibit 1. The learned trial Judge was therefore right to have considered and relied on the appellant’s statement made on 19th July 1986.

For future guidance, where in the course of a trial two or more documents are tendered and admitted in evidence, each should be given a separate identification mark to facilitate easy reference to any of them. Like in the present case, the statements made on 19th July 1986 and 21st July 1986 which were simultaneously admitted in evidence should have been given identification marks as Exhibit 1 and 1A respectively.

The appeal lacks merit and the Court of Appeal was right in dismissing it. I also hereby dismiss it and affirm the conviction and sentence passed on the appellant.

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Other Citation: (1994) LCN/2592(SC)