Stephen Emoga Vs The State (1997)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The appellant was convicted at the High Court of Bendel State, sitting at Oleh by Akpiroroh J. for the offence of murder and sentenced to death by hanging. He was found to have caused the death of one Godwin Ikor, at Ozoro, in Oleh Judicial Division in what is now Delta State.

The prosecution’s case was given mainly through the testimony of the only eye witness to the incident, one Richard Ashakobe, who gave evidence as P.W.3. He told the trial court that on the fateful day when the incident happened, he went out together with the deceased to prostitutes’ houses at Iyosa Street, Ozoro. When they reached there they met the appellant in front of the houses of the prostitutes.

The witness testified further and said:

“As soon as he saw the deceased, he threw away a glass of drink that he was holding and held the deceased by his hand and fight ensued between them. I separated the fight with some people. I took the deceased and started to walk away while other people took the accused and started to walk away too. When I got to the petrol station at Ala Square with the deceased, I saw the accused person rushing towards us with a big stick. When I saw him, I held him and he hit me on my forehead with the stick and I bent down because of the pain. He rushed on the deceased and hit him at the back of his neck with the stick and he fell down. I raised an alarm that the accused had killed the deceased, but nobody came. I then ran to inform the 2 P.W. The 2 P.W. followed me to the scene where he saw the deceased lying dead on the ground”.

The doctor who conducted post-mortem examination on the body of the deceased gave evidence as PW 1. He told the court that the cause of death, in his opinion was the transaction of the spinal cord in the cervical region. The doctor explained that what he meant by transaction of the spinal cord was that the spinal-cord had been broken into two parts. He further explained that the breaking of the spinal cord might have been caused by a hit from behind with a heavy object or to have one’s neck hitting a heavy object through a fall. The doctor also observed some bruises and lacerations on the body of the deceased which could have been caused in his opinion by a sharp object.

Two more witnesses, PW 2, who identified the body of the deceased to the doctor and PW4, the police corporal who investigated the case, also testified for the prosecution. PW4 recorded a statement which the appellant admitted to have made voluntarily after his arrest.

The learned trial judge, in a well considered judgment, found the appellant guilty as charged. He convicted and sentenced him to death by hanging. Dissatisfied with the judgment the appellant went on appeal to the Court of Appeal. In a unanimous decision the-lower court dismissed the appeal. He has now come before us on 4 grounds of appeal. Learned counsel for the appellant, in the appellant’s brief, formulated three issues from those grounds for the determination of this appeal. The issues are:

“(i) Whether the Court of Appeal was right in applying the inconsistency rule to the extra-judicial statement of the appellant and his evidence in court.

(ii) whether the conviction of the appellant was sustained by the Court of Appeal upon properly evaluated evidence, ALTERNATIVELY, whether the Court of Appeal was right in coming to the conclusion’ B ‘ that the guilt of the appellant was proved beyond reasonable doubt as required by law.

(iii) in the event of the failure of issue (11) above, whether from the evidence the appellant was not entitled, to the defence of self defence or provocation”.

Learned counsel for the respondent adopted the issues raised by the appellant and submitted that this appeal could be determined on all the issues raised together. Mr. Ukala for the appellant opened up with the argument raised in issue 1. He picked on the erroneous decision of the lower court in this appeal, where it relied on decisions which had been overruled by this court on the “inconsistency rule”. This Court sitting in a full court dealt with the issue in the case of Egboghonome v. The State (1993) 7 NWLR (Part 306) 383. The inconsistency rule was first applied in this country in the case of R. v. Ukpong (1961) All NLR, 25 (1961) 1 SCNLR 53 where the Federal Supreme Court adopted the opinion of Lord Parker, C.J., in the case of R .v. Golder (1960) 1 W.L.R.1169. In that case the learned Chief Justice of England held:

“In the judgment of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statements whether sworn or unsworn, do not constitute evidence upon which they can act.”

In a later decision of this court, in the case of Oladejo v. The State (1987) 3 NWLR (Pt. 61) 419 at 427 the inconsistency rule was extended to include statements made by an accused person. This is clear in the opinion of Nnamani J.S.C., in that judgment wherein he held: