Manawa Ogbodu V. The State (1987)

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KAWU, J.S.C. 

This appeal was heard on Thursday, the 15th day of January, 1987. After carefully reading the records of proceedings, the briefs of argument filed on both sides, and hearing counsel for the appellant and the respondent, I dismissed the appeal and affirmed the judgment of the Court of Appeal. I then indicated that I would, today, give reasons for my judgment. I now proceed to give those reasons.

On the 21st day of February, 1984, the appellant was arraigned before the High Court of Bendel State, Oleh Judicial Division, presided over by Akpiroroh, J., and was charged with the offence of murder. The charge alleged that on or about the 17th day of January, 1983, at Oleh, he unlawfully killed one John Okporokpo. He pleaded not guilty to the charge.

The prosecution’s case was that on the 17th day of January, 1983, the deceased. John Okporokpo, and his co-worker, one Sylvanus Egbede resumed work in the Bakery of P.W.1 – Mrs. Regina Asasa at about 10 p.m. At the request of P.W.1, the deceased and Sylvanus went to the compound of P.W.3 to call him to work. P.W.3 testified that he, the deceased and Sylvanus were on their way to their working place when the appellant came out of his compound and challenged them. The appellant called them thieves and when they said that they were not thieves, the appellant slapped Sylvanus Egbede. When Sylvanus wanted to engage the appellant in a fight, he was held by P.W.3 so as to prevent him from doing so. At that stage, said 3 P.W., the appellant ran into his house, came out with a knife and stabbed John Okporokpo on his left shoulder. He then took to his heels and disappeared. John Okporokpo fell down and died on the spot.

In his defence the appellant denied the charge. He testified that on the day of the incident, the deceased and two others came to his house and attacked him. He said that they hit his head with a cement block and stabbed him on his thigh. He said further that during the attack on him in his room, one of his assailants attempted to stab him with a knife, and as he (the appellant) dodged him, he (the assailant) stabbed a member of his gang, who was behind him, and that it was that person that died.

At the trial, six witnesses gave evidence for the prosecution, and as stated earlier on, the appellant also gave evidence in his defence but did not call any witness. His extra-judicial statement to the Police was tendered and admitted as Exhibit ‘A’. At the conclusion of hearing, the learned trial Judge gave very careful consideration to the whole evidence adduced, He also considered the appellant’s defence and held as follows:

“I am therefore satisfied beyond all reasonable doubt that on the 17th day of January, 1983, the accused stabbed John Okporokpo to death. I am satisfied beyond any shadow of doubt that he unlawfully killed the deceased, John Okporokpo and I accordingly convict him and find him guilty of the murder of John Okporokpo.”

Being dissatisfied with the decision of the High Court, the appellant appealed to the Court of Appeal, Benin Division Coram Ikwechegh, Musdapher and Ajose-Adeogun. J.J.C.A., and on the 3rd day of July, 1986, by a unanimous decision that Court dismissed his appeal and confirmed his conviction and the death sentence passed on him. Still aggrieved, he has further appealed to this Court.

There were two original grounds of appeal filed with the notice of appeal, and with the leave of the Court five additional grounds were filed and argued. As the two original grounds were not argued, they are deemed to have been abandoned and are hereby struck out.

Both counsels in this appeal, in compliance with the rules of court, have filed their briefs of argument. In his own brief the appellant’s counsel formulated five issues for determination as follows:-

“1. Whether the learned Justices of the Court of Appeal directed themselves properly in law and on the evidence on the failure of the prosecution to call Sylvanus Egbede – a vital eye witness to the incident.

2. Whether there was miscarriage of justice to the Appellant when the lower Court refused Appellants’ application to call the only witness he has to support his case i.e. his son.
3. Whether the Court below was right in up-holding the conviction and sentence of the Appellant on the basis of an amended proof of evidence which did not comply with S.164 and S.165 of the Criminal Procedure Law Vol. II Laws of Bendel State of Nigeria.
4. Whether the Court below in upholding the conviction and sentence of the Appellant was right when it held that the defence of provocation under S.286 of the Criminal Code cannot avail the Appellant. .
5. Whether the conviction of the Appellant of the offence of murder was proper when in fact the particulars of the offence disclose a case of manslaughter.”

I am satisfied that the issues formulated for determination by the appellant’s counsel cover all the grounds of appeal filed.

Now the first additional ground of appeal (without the particulars) reads as follows:

“The learned Justices of the Court of Appeal erred in law and misdirected themselves when they held that the failure of the prosecution to call Sylvanus Egbede an eye witness to the incident and a vital Prosecution witness was not fatal to the prosecution’s case and thereby occasioning a miscarriage of justice.”