Matthew Ahungur V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA J.C.A. (Delivering the Leading Judgment)

The appellant, Matthew Ahungur was arraigned before Shiyanbola J. of two Judicial Division of the Osun State High Court on the 28th day of January 2009 on a charge of murder. The facts of the case are not very much in dispute. The prosecution’s case was that in the evening of the 4th of June, 2005 at Kajola area Iwo, Osun State while the deceased Prince Sunday Adedoyin was in the beer shop of one Felicia Achiaga, the appellant met him there and demanded to know why he would not leave his ‘wife’ alone.

The deceased replied the appellant that the woman now belongs to him, the deceased. The statement infuriated the appellant and he pulled out a cutlass he was carrying and chopped off the two hands of the deceased. The deceased was taken to the police station and died on his way to the hospital. The appellant went to the Divisional Police Station at Iwo to report the incident. He surrendered the cutlass to PW3, the investigating police officer, Sgt Tiamiya Olatoye

and it was admitted in evidence as exhibit P1. The appellant also made a confessional statement which was admitted in evidence as Exhibit P10. The case was later transferred to State C.I.D. Osogbo where the appellant again made another confessional statement to PW2 Sgt Gbenga Ojo. The confessional statement was attested to by one SPO Belham. Both the confessional statement and the attestation were admitted in evidence as Exhibits P6 and P7.

In the two confessional statements, the appellant said he suspected his wife was going out with the deceased and that he had warned the deceased about four times including the day of the incident when he met the deceased at Oke-Ola and dared him not to go to his wife again and the deceased boasted that he was going there right now, and the appellant abandoned where he was going and traced the deceased to his wife’s shop. When he confronted the deceased, the deceased told him that Felicia is now his wife and anything he wants to do he should do. The statement provoked the appellant and he brought out his cutlass and chopped off the deceased’s two hands. The son of the deceased, Bamidele Adedoyin saw the corpse of his father in the hospital with his two hands almost cut off. He testified as PW1.

The appellant gave sworn evidence in his own defence and called no other witness. He admitted the main outline of the prosecution’s case as contained in his confessional statements. But apparently, in the attempt to find a plausible defence, he deviated and stated thus:

“On 4/6/2005 I came back from my farm around 4.00p.m and opened the door of my room from the outside. Immediately I opened the door, my wife rushed out. I then saw the deceased inside the room adjusting his trouser. I became afraid as the deceased was chanting incantations. I couldn’t do anything for about three to four minutes because I was confused and afraid. I then called the deceased and challenged him as to why he came to my matrimonial home to sleep with my wife. The deceased replied that my wife was now his wife and I lost my temper. I brought out my cutlass and matcheted him when the deceased attempted to attack me. The deceased shouted that he was dying and he ran out. I also came out and got an okada to the police station, where I reported that I met the deceased in my room having sex with my wife.”

The above constitutes the appellant’s defence. But the point is that the appellant had made confessional statements Exhibits P6 and P10, the voluntariness of which he did not challenge and which were not retracted. Indeed he ended his evidence in chief by stating:

“The Policemen wrote the statement for me to sign after reading it to me and after I understood same to be my statement”.

In respect of this conflict between the oral evidence of the appellant in court and his confessional statements, the learned trial judge had this to say:

“The accused appears not to be retracting his confessional statement, but wants this court to act on both his confessional statements and his evidence in court. It is however not possible for the court to act as such. A trial court is at liberty in certain circumstances to accept part of the testimony of a witness and reject the rest. See the case of Sule vs. The State (2009) 8 SCM 177 @ 181 ratio 6. This court shall accept part of the accused’s evidence which are not inconsistent with exhibits P6 and P10, and reject the rest which are inconsistent with exhibits P6 and P10 made when the matter was fresh. Consequently I reject the evidence by the accused person that he met his wife and the deceased in the room, while his wife rushed out, the deceased was adjusting his trouser. This part of the evidence is inconsistent with exhibits P6 and P10. I accept the contents of exhibit P6 and P10 to the effect that the accused person met the deceased in his wife’s shop; the latter having been made when the matter was still fresh. The accused person both in exhibits P6 and P10 and even in his evidence in court admitted macheting the deceased but that he was annoyed. The next question is…was the accused provoked?”

The learned trial judge then went on to consider whether the defence of provocation was available to the accused. He held that the alleged words of the deceased to the appellant was capable of constituting provocation but that the degree of retaliation by the accused, cutting off the two hands of the deceased was totally disproportionate to the provocation offered. The appellant was found guilty of the charge of murder and sentenced to death by hanging.

On 13/4/10, the appellant filed a notice of appeal to this court containing four grounds of appeal; out of which, his counsel Awoniyi Alabi Esq in his brief of argument formulated two issues for determination. The issues are:

1. Whether the defence of provocation succeeded and ought to have reduced the offence of murder to manslaughter. (Grounds 2 and 4).
2. Whether the learned trial judge improperly evaluated the evidence before him, which had occasioned a miscarriage of justice, thus rendering his decision perverse? (Grounds 1 and 3)

Akano K. M. (Mrs) Solicitor-General Ministry of Justice, Osun State with K. A. Tijani Principal State Counsel in their brief of argument for the respondent also identified the same issues for determination but in the reverse order: