Wowem V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

The Appellant was arraigned before the High Court of Rivers State, Port Harcourt Judicial Division on 5th April, 2011 for the offence of murder contrary to Section 319(1) of the Criminal Code of Rivers State. He pleaded “not guilty” and the Respondent called 5 witnesses to prove the charge while the Appellant testified for himself and closed his case. At the close of trial, the learned trial Judge convicted the Appellant and sentenced him to death by hanging.

Dissatisfied with the judgment of the trial Court, the Appellant lodged an appeal at the Court below vide an Amended Notice of Appeal filed on 30th April, 2015. In their unanimous decision delivered on 26th February, 2016, the learned Justices at the Court below affirmed the conviction and sentence passed on the Appellant by the learned trial Judge, hence, his further appeal to this Court.

The facts of the case which has led to this appeal in brief are that on 13/8/2010 at about 9.20pm the Appellant, who at the time was resident at No. 1 Gada Street, Ogbunabali, Port Harcourt went to No. 6 of the same street to invite out his friend, one Manuchim Owuru but the later declined on the ground that he was not feeling well. Incidentally, No 6 Gada Street was the deceased’s matrimonial home and the deceased was with his cousin, Mr. Manuchim, when the Appellant went to invite him. Having been informed that his friend could not go out with him the Appellant insisted to the annoyance of the deceased who told the Appellant to leave his cousin alone and come back the next day at which time he might have recovered his health. The Appellant was offended with the deceased and quarrel broke out between them upon which the Appellant issued threats against the deceased that he was going to “deal with him.” After they had dispersed, the deceased went to their house at No. 7 Gada Street and the Appellant to his father’s house at No. 1.

Both parties from this point gave different versions of what happened next. The prosecution’s witnesses testified that they (PW1 and PW2) both heard the Appellant issue threats that he was going to deal with the deceased as he was walking back home. Later, when the deceased was standing in front of No. 7 Gada Street, with his arms folded across the chest, the Appellant walk past and pretended to be buying yam from PW1’s step mother, one Mrs. Rose Chinwo, and suddenly ran towards the deceased, pulled a knife from his body and stabbed the deceased in the belly. The deceased was thereafter rushed to the hospital.

​On the other hand, the account of what transpired as rendered by the Appellant was that upon his visit to his friend Manuchim Owuru on the said 13/8/2010 the deceased, without any provocation slapped him. He queried the deceased as to the reason for such unprovoked attack and the deceased told him that his father, Mr. Vincent Wowem was instrumental to the shutting down of the games hall owned by the PW2 by elders of the community. That his father had told the elders of the community to shut down the game hall as it was used for gambling. That the deceased then started beating him mercilessly not minding that he was asthmatic. That a Kalahari woman, a Calabar man and Manuchim Owuru who all witnessed the incident were unable to hold back the deceased from beating him. That he struggled with the deceased until they both fell to the ground where he eventually picked up a sharp object and the deceased left him alone. That he cannot remember if the object he picked touched any part of the deceased body. That after the incident he returned to his father’s house and later heard that the deceased was dead. He made extra judicial statements which were admitted as Exhibits 8, 9 and 12.

Learned counsel for the Appellant filed an original brief of argument dated 23rd January, 2018 on 25th January, 2018. In response, counsel to Respondent filed the Respondent’s brief of argument dated 22/3/2018 on 11/4/2018. Counsel to the Appellant subsequently applied to amend his processes and he filed an Amended Notice of Appeal having 8 grounds of appeal dated 23/8/2018 and filed on 28/8/2018 and an amended Appellant’s brief of argument dated the same 23/8/2018 and also filed on 28/8/2018. The said processes were deemed properly filed by this Court on 5/11/2020. At the hearing of the appeal, counsel to the parties adopted and relied on their respective briefs of argument as well as Appellant’s reply brief of argument.

​In his amended brief of argument, learned counsel for the Appellant nominated three issues for determination as follows:-

Whether having regards to the facts and evidence led, the learned Justices of the Court of Appeal were right in upholding the decision of the learned trial Judge that the Appellant had intention to murder the deceased or cause him grievous bodily harm thus, rejecting the defence of self-defence, provocation and accident put forward by the Appellant.

Whether the Justices of the Court of Appeal were right when they affirmed the decision of the learned trial Judge notwithstanding the wrongful admission of Exhibit 6 in evidence by the Court, failure of the prosecution to properly identify the corpse of the deceased and tender the murder weapon.

This issue is distilled from grounds two, three and four of the Notice and grounds of appeal

3. Whether the Justices of the Court of Appeal were not wrong when they rejected the contention of the Appellant that from the facts and evidence led, there were no material, inconsistencies and contradictions witnesses as well as the lopsided consideration of the cases put forward by parties at the trial which made it unsafe for the learned trial Court to convict the Appellant of murder.

On his own part, learned counsel to the Respondent equally distilled three issues for determination as follows:-

1. Whether the Court of Appeal was right when it rejected the defences of self-defence, provocation and accident relied upon by the Appellant?
2. From the totality of evidence provided in this case was the Court of Appeal correct in affirming the judgment of the trial Court on the ground that the Respondent proved the charge of murder against the Appellant?
3. Were the contradictions and inconsistencies in the evidence of the prosecution witnesses sufficient to warrant upturning the concurrent judgment of the lower Courts?

Learned counsel also incorporated a preliminary objection into his brief of argument to strike out appellant’s grounds 2, 3 and 4 in the amended Notice of Appeal as those grounds contain fresh issues which were not previously raised at both lower Courts and consequently to discountenance and strike out appellant’s issue 2 distilled from those grounds. Relying on a number of authorities including Akunne Bosa Mbanefo v Mofunanya AGBU & Anor LER (2014) SC. 179/2007; Elema v Akenzua (2000) 6 SC (pt 3) 26; Ume v Mgbachi (2014) All FWLR (pt726) 615, learned counsel submitted that the Appellant failed to seek and obtain leave of Court before raising grounds 2, 3 and 4. That failure to so obtain leave before canvassing those grounds which contains fresh issues, render those grounds incompetent and liable to be struck out.

In his reaction to the respondent’s preliminary objection, learned counsel for the Appellant rightly observed that since the respondent’s preliminary objection was attacking some grounds of the amended notice of appeal and not the entire notice of appeal which would have invited the Court to determine the appeal in limine, that the respondent ought to have filed a motion on notice to strike out the alleged incompetent grounds instead of raising the preliminary objection in his brief of argument. He relied on the cases of NNPC v Famfa Oil Ltd (2012) 17 NWLR (pt1328) 148 at 185 – 186 paragraphs F – B; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113 at 139, paragraphs B – E, SPDCN Ltd v Amadi (2011) 14 NWLR (pt 1266) 157 at 183 paragraphs D – F, Odunukwe v. Ofomata (2010) 18 NWLR (pt 1225) 409 at 423 paragraphs E – G. Learned counsel for the Appellant further submitted that for the simple fact that the appellant is a murder convict and sentenced to death, the appellant has the liberty to raise any defence available to him and the Court has a duty to consider all defences raised by the appellant regardless of whether or not such defences were specifically put up by him. On this point he relied on the cases of Adelu v. State (2014) 13 NWLR (pt 1425) 465 at 482, paragraphs F-A and Fabiyi v. State (2015) 18 NWLR (pt 1490) 80 at 95 – 96 paragraphs H – A. He therefore urged the Court to discountenance and strike out the respondent’s preliminary objection.

I will reiterate my position when I considered a similar issue in the case of Ikuepenikan v State (2015) LPELR – 24611 (SC) that it is now settled that an appellate Court must first consider a preliminary objection raised during an appeal and express its opinion on whether it agrees or not before venturing into the merit of the appeal because a successful preliminary objection may have the effect of disposing of the appeal. The rationale behind this position is that it is a cardinal principle of justice to let a party know the fate of his application whether properly brought or not. See KLM Royal Dutch Airlines v Aloma (2017) LPELR – 42588 (SC); Efet v Independent National Electoral Commission (2011) 7 NWLR (pt 1247) page 423, First Bank of Nigeria Plc v T.S.A. Industries Ltd (2010) 15 NWLR (pt 1216) 247.

Learned counsel for the Appellant rightly submitted that where the purpose of the preliminary objection is to challenge the competence of some grounds of the notice of appeal, as in the instant case, the best procedure is to come by way of a motion on notice to strike out the incompetent grounds. This approach is different from where the respondent is satisfied that the appeal is fundamentally defective and he raised a preliminary objection for the sole purpose of terminating the hearing of the appeal in limine usually on the ground of incompetence. See Clement Odunukwe v Dennis Ofomata & Anor (2010) 18 NWLR (pt.1225) 404 at 423; Adejumo v Olawaiye (2014) 12 NWLR (pt 1421) 252, KLM Royal Dutch Airline v Aloma (supra), Daniel v INEC (2015) 9 NWLR (pi 1463) 113.

​The learned counsel for the Respondent incorporated his preliminary objection into the Respondent’s brief of argument. There is nothing wrong with this. I shall therefore consider it as the Appellant has responded to it in his reply brief.

The grounds in the amended notice of appeal complained about are as follows:-

GROUND 2

The learned justices of the Court of Appeal erred in law when they upheld the conviction and sentence passed on the Appellant by the trial Court for an offence of murder without the tendering of the murder weapon to wit; (knife and/or sharp object) more particularly as in the instant case where eye witnesses testified as to the use of knife in stabbing the deceased to death.

PARTICULARS OF ERROR

i. The tendering or production of a murder weapon alleged to be used in committing the murder is a material evidence in proof of a murder case.

ii. In fact, to prove a charge of murder, there must first be a proof by the prosecution of the cause and/or production of the murder weapon.

iii. The eye witness or direct evidence in murder cases can only be relied on by a trial Court when it is compelling and credible to convict an accused person.

iv. That knife or sharp object used to commit the offence is an essential ingredient of the crime which must be proved beyond reasonable doubt

v. The non-tendering means that these weapons exist only imaginarily in the prosecution’s view.

vi. There must be proof of murder weapon in murder trials.

GROUND 3

The learned Justices of the Court of Appeal erred in law in upholding the judgment of the trial Court which admitted the Medical Report (Exhibit 6) tendered by PW4 [Mr. Jimmy Umoh ASP] a Police Officer in evidence and relying upon it in ascertaining the case of death of the deceased.

PARTICULARS OF ERROR

i. The content of the Medical Report (Exhibit 6) represents opinion evidence of the supposed expert in medical science and by the combined effect of the provisions of Section 55 and 68 of the Evidence Act, 2011, it is imperative that the Medical Doctor who made (Exhibit 6) should be called to testify or tender it in evidence and be cross-examined by the defence.

ii. The Medical Doctor who made Exhibit 6 was not called either to testify or to tender it

iii. PW4 (i.e. Mr. Jummy Umoh ASP) who tendered exhibit 6 had no competence to tender it and in his hands the same was hearsay evidence of a highly prejudicial nature and inadmissible in evidence.

iv. Exhibit 6 could not be tendered under the provisions of Section 55(1) of the Evidence Act, 2011 because:-

(a) It is not a certificate signed by any of the persons specified in that section;

(b) It is not shown that the Director of Medical Laboratories of the Federation or of the State has in a gazette notice specified the maker of Exhibit 6 either by name or designation, a pathologist or entomologist whose certificate is receivable in evidence under the said section of the Evidence Act.

v. In the absence of Exhibit 6 and facts from which cause of death could in the circumstances be inferred in the instant case, a vital ingredient of the offence cannot be said to have been established.

vi. The lower Courts could not validly rely upon the opinion evidence contained in exhibit 6 for ascertaining the cause of death of the deceased when the Appellant was denied the opportunity of cross-examining the doctor on the grounds on which such opinion is based and what qualified him as an expert in medical sciences.

GROUND 4

​The learned Justices of the Court of Appeal erred in law in failing to hold that there was no satisfactory evidence establishing the identity of the corpse on which the medical doctor performed the post-mortem examination with the result that the cause of death of the deceased was not proved in the instant case.

PARTICULARS OF ERROR

i. The post mortem examination was said to have been performed in the presence of the PW4, members of his team and the deceased brother.

ii. The identity of the said deceased brother is faceless and totally unknown and even at that was not called to give evidence to connect the medical report with the person named as the deceased.

iii. The Medical Doctor who performed the alleged post mortem examination was not called to testify as to the person who identified the corpse in which he performed the post-mortem examination and to prove the cause of death.

iv. There was no fact proved in evidence from which it can be inferred that the corpse examined by the doctor was the corpse of the deceased.

v. The learned trial Judge as well as the Justices of the Court of Appeal overlooked the important fact that the plea of not guilty recorded by him on behalf of the Appellant means that every allegation of fact contained in the charge before the Court is denied by the Appellant including, for the purpose of this case, the identity of the name of the person allegedly killed by him.

vi. The facts of the death cannot be inferred from the circumstances as the deceased did not die on the spot but in a hospital where he was taken to after several hours.

vii. The post-mortem examination equally was done after weeks of the death of the deceased.

A careful look at grounds 2, 3 and 4 together with their particulars reproduced above would reveal that the issues canvassed therein as touching tendering of the murder weapon, reliance on medical report not tendered by the maker and evidence establishing the identity of the corpse on which post-mortem examination was performed to be that of the deceased are all raised in this Court for the first time. They are fresh issues and I cannot find anywhere on record where leave was granted to the Appellant to raise and argue fresh issues.

​By virtue of Section 233(1} of the 1999 Constitution, the appellate jurisdiction of this Court is limited to appeals from the Court of Appeal. In other words, this Court, as an appellate Court only has jurisdiction to correct the errors of the Court of Appeal. This Court can only do so when the points argued consist of allegation of errors made by the Court below. It means that the point must have been raised at the Court below and that Court expressed its opinion thereon. Since the appeal is against the finding of the Court of Appeal on a particular point, this Court would then be entitled to the opinion of the Court below on every allegation of error. See Moses v State (2006) 11 NWLR (pt 992) page 458; Shaibu v State (2017) LPELR – 42100 (SC); Akpabio v State (1994) 7 NWLR (pt 359) 635; Bankole & ors v Pelu & ors (1991) 8 NWLR (pt 211) page 523. Fresh issues can only be raised and argued upon leave having been sought and obtained. See Oforlete v State (2000) 7 SCNJ 162 at 169; Akpene v Barclays Bank of Nigeria (1977) 1 SC 47. The only exceptions where leave is not required to argue fresh issue on appeal are where the issue of jurisdiction is raised for the first time on appeal. See Tiza & amor v Begha (2005) 15 NWLR (pt 949) 616 and where the fresh issue is based on point of law only and does not require adducing any further evidence to determine the matter and such issue is necessary to prevent a miscarriage of justice. See Ogigie & 3 ors v Obiyan (1997) 10 NWLR (pt 524) 179; Shaibu v State (supra).

I observed earlier that the issues raised in grounds 2, 3 and 4 of the Appellant’s amended notice of appeal are raised in this Court for the first time without leave. The Court below was not given the opportunity to express its opinion on any of the issues contained in those grounds. I am also satisfied that the allegation of errors contained in those grounds do not involve substantial points of law only. In effect, the objection to grounds 2, 3 and 4 in the amended notice of appeal is well founded. Those grounds are incompetent and are hereby struck out. Having struck out the incompetent grounds in the Appellant’s amended notice of appeal, issue 2 distilled from those grounds is hereby discountenanced and consequently struck out.

In view of the above, I shall now resolve this appeal on the two surviving issues formulated by the Appellant.

ISSUE 1

Whether having regards to the facts and evidence led, the learned Justices of the Court of Appeal were right in upholding the decision of the learned trial Judge that the Appellant had intention to murder the deceased or cause him grievous bodily harm thus rejecting the defences of self-defence, provocation and accident put forward by the Appellant

Learned counsel for the Appellant submitted that to sustain a conviction in a murder trial, the prosecution must prove that the Appellant had intention to kill the deceased and that the act, commission or omission of the Appellant actually killed the deceased. Reliance was placed on the case of Mohammed vs State (1991) 5 NWLR (pt 192) page 438 at 454 paragraph D. Counsel rehearsed the Appellant’s version of what transpired on the day of the incident to emphasize the point that there was a struggle between the Appellant and the deceased until they both eventually fell to the ground whereupon the Appellant picked up an object and the deceased left him. That the Appellant had no intention to kill the deceased.

​Learned counsel submitted that the prosecution’s witnesses (PW1 and PW2} account of what transpired between the Appellant and the deceased showed that the witnesses did not witness what happened or that at best, their evidence constitute lies and falsehood which did not and could not have changed the fact that this Respondent failed to prove that the Appellant had intention to kill the deceased or that he killed him unlawfully.

Further to his argument above, counsel relied on the authority of Daniels v The State (1991) 8 NWLR (pt 212) page 715 at 733 C – D and Jimmy v State (2013) 18 NWLR (pt 1386) page 89 at 250 – G – H to submit that given the circumstance under which the Appellant found himself (i.e. the merciless beating and his asthmatic condition] the law entitled him to defend himself from being killed by his attacker, even if saving his own life resulted to the death of his attacker who in the circumstance was the deceased. He also relied on the provision of Section 286 of the Criminal Code Law, Volume 2 Chapter 2 Laws of Rivers State of Nigeria, 1999.

Counsel submitted finally that, the deceased conduct of slapping the Appellant was provocative in that it caused the Appellant to temporarily lose control of his temper and action which entitles the Appellant to the defence of provocation. On this point, counsel relied on the following authorities: Uwaekweghinya v The State (2005) 9 NWLR (pt 930) 227; Shande v The State (2005) 12 NWLR (pt 939) 301, Obaji v The State (1965) 1 All NLR 269 and Oghor v State (1990) 3 NWLR (pt 139) page 489 at 495 A – B.

In his reaction, learned counsel for the Respondent submitted that the defences of provocation and self-defence put up by the Appellant are mutually exclusive and cannot avail the Appellant. Counsel relied on the authorities of Maiyaki v State (2008) All FWLR (pt 419) 400; Oladipupo v The State (1993) LPELR – 2549 (SC) and Agu v State (2017) LPELR – 41664 (SC) to submit that whilst the defence of self-defence is exculpatory where successfully raised, the defence of provocation is “merely a mitigating defence. That they are inconsistent defences which cannot avail the Appellant at the same time.

​Counsel submitted that it is not in doubt that the deceased is dead. It is also not disputed that the Appellant caused his death by stabbing him in the stomach with a knife. That the Court of Appeal was therefore right to affirm the decision of the learned trial Judge.

Finally, counsel urged the Court to resolve issue 1 in favour of the Respondent.

As earlier indicated at the outset of this judgment, this appeal is against the conviction and sentence of the Appellant for the murder of Mr. Evans Chinwo which was affirmed by the Court of Appeal.

Section 319(1) of the Criminal Code under which the Appellant was charged provides as follows:-

“319(1) Subject to the provisions of this section any person who commits the offence of murder shall be sentenced to death.”

I agree with the submission of Mr. Somiari of counsel for the Respondent at page 4 paragraph 5.03 of his brief of argument that to successfully establish the offence of murder against an accused person, the prosecution must prove the following ingredients beyond reasonable doubt to wit:-

(a) That the deceased is dead.

(b) That the act of the accused person caused the death of the deceased and

(c) That the act was done with the intention of causing death or grievous bodily harm.

See Njoku v State (2013) 2 NWLR (pt 1339) 543, Uguru v State (2002) 9 NWLR (pt 771) 90 at 106, Gira v State (1996) 4 NWLR (pt443) 375, Ogba v State (1992) 2 NWLR (pt 222) 169, Okereke v State (No.2) (2016) 5 NWLR (pt 1504) 107 at 140, Akinlola v State (2016) 2 NWLR (pt 1497) 803 at 522, Akpan v State (2016) 9 NWLR (pt 1516) 110 at 117.

For the first ingredient, it is not in doubt that the deceased, Evans Chinwo is dead. Learned counsel to the Appellant dissipated so much energy in an attempt to convince this Court that the Court below and the trial Court both erred in their concurrent findings that the Respondent proved the second and third ingredients of the offence of murder against the Appellant beyond reasonable doubt as required by law. That is to say that the Respondent failed to prove that the appellant intentionally and unlawfully killed Mr. Evans Chinwo.

It is trite law that in proof of the above ingredients, the prosecution could rely on either a direct evidence also known as evidence of an eye witness or witnesses, confessional statement of the accused or circumstantial evidence.

​In the instant case, both the learned trial Judge and the learned Justices at the Court below found the evidence of the PW1 and PW2 to be credible and relied on them as direct evidence to convict the accused. At page 136 of the record, the trial Judge held as follows:-

“I also accept, without any shadow of doubt, the rest of the account of PW1 and PW2 as to the stabbing of the deceased. I find as a fact that the accused person issued threats to the deceased, told him that he was going to see what he (the accused) would do to him (deceased).”

In affirming the above finding, the Court below held at page 216 of the record as follows:-

“it is my finding that it is obvious that the natural intention to be inferred from the action of the Appellant and the resultant consequences shows clearly that the ingredients of mens rea and actus reus were met. That fact that he left the scene of the quarrel with the deceased and came back with a knife to attack the said deceased shows that he knew that death or grievous bodily harm was the end result of such an act and must be deemed to have intended it. It is trite law that a man is presumed to have intended the natural and probable consequences of his action. Death or grievous bodily harm is a natural and probable consequences of stabbing a man with a knife or any sharp object in the stomach. The learned trial Judge was therefore perfectly right in his holding which I quoted above.”

I agree with the Court below that the law presumes that a man intends the natural and probable consequences of his act. However, the test to be applied to the circumstances of each case is the objective test as opposed to the subjective test of what a reasonable man in the street would contemplate as the probable result of his acts.

I am also of the view that the evidence of the PW1 and PW2 to the effect that the Appellant stabbed the deceased in the stomach with a knife is more credible than the Appellant’s version that he while struggling with the Appellant picked up a sharp object and the deceased left him.

Again, when the Appellant was arrested, he made an extra judicial statement on 18th August, 2010, at the time when the incident was still very fresh on his mind. The said statement contained at page 8 of the record are reproduced hereunder as follows:-

“…On Friday night I went to visit a friend at No, 6 Gada Street, the name of that my friend is Mayoo Oworu. On reaching there, the late man called Evans Chinwo started beating me mercilessly which his own brother Mayoo told him that is okay. Before Calabar man in their yard told him that is okay, he refused and insisted and continue to beat me, because of my ill-health, as an asthmatic patience, I took a sharp object on the floor and used it to stabbed him to death but really know the actual place. When they were chasing me, I throw everything away, when I stabbed him, I didn’t even ran to my house but I ran to an unknown destination, and finally, find myself at Aba. My sister named Nkechiyere womem and other were searching for me and she came to Aba and finally get me at no name of place and both of us came down to Port Harcourt and she called the police van to come to rumuola at the filling station where the police people carry me down to the police station. I am the one in the picture. No, I am not a cultist. One Godfrey Wogufrom Chinwo compound posted the picture to me. I picked a kitchen knife in the compound of the deceased to stabbed him on the stomach or tommy. And I threw the knife away when they were chasing me.”

In an additional statement on the same 18/8/2010 the Appellant further stated as follows:-

“….. About two weeks ago, my dad reported a case about the game hall owned by one Chinwe Owo, that the Community should tell the boy to stop the operation of the game hall. My father also warned me not to go the game hall, that my going there is affecting my education. Based on the complaint made by my father, I stopped going to the game hall. Then on Friday night being 13/8/10 around 8pm, I went to visit a friend named Manychim Owuru, reaching there, the deceased started beating me and on the process, I picked up a sharp object on the ground and stabbed him. I don’t know the part of the body I stab him. After stabbing him I ran away. His brother come and started pursuing me. Finally I ran to Aba where I stayed for two days. At Aba my sister came and took me to Port Hacourt. I was told that my father has been arrested and I was taken to the station before my father was released. Kalabar people living there were also present when the boy (deceased) was beating me without any initial misunderstanding. The object I used in stabbing him does not belong to me. I only saw the sharp object on the ground and I left the object on the ground before I ran away. It was a knife I used in stabbing him.”

The above extra-judicial statement to my mind is an admission by the Appellant to having committed the offence with which he was charged. Although, he later reciled from having made the statement, the law is settled that once a confessional statement is admitted in evidence, it becomes part of the case for the prosecution and the Court is bound to consider its probative value, provided it admits the essential elements of the offence charged and such that when tested against proven facts will show that the accused committed the offence. See Egbongonome v The State (1993) 7 NWLR (pt 306) 383, Edet offiong Ekpe v The State (1994) 9 NWLR (pt 368) page 273, Nwangbomu v The State (1994) 2 NWLR (pt 327) 380, Akpan v The State (2001) 15 NWLR (pt 737) 745, Osung v State (2012) 18 NWLR (pt 1332) 256. The fact that the accused has reciled from the confessional statement does not mean that it cannot be acted upon and relied upon for the conviction of the accused once the Court is satisfied of the truth of the confession. See Edamine v The State (1996) 3 NWLR (pt 438) 530, Ikemson v State (1989) 3 NWLR (pt 110) 530, Federal Republic of Nigeria v Iweka (2013) 3 NWLR (pt 1341) 285. On this point, this Court per Mukhtar, JSC observed in the case of FRN v Iweka (supra) as follows:-

“once there is evidence of administration of words of caution on a suspect in the language he understands, and he voluntarily makes his statement, which is so recorded, and he signed the statement a Judge is at liberty to act on it and predicate a conviction thereon.”

Apart from the Appellant’s statement in Exhibit 8 above, the Court of Appeal, after a review of the Appellant’s evidence in Court observed at page 228 of the record as follows:-

“Upon considering the admission of the commission of the offence by the Appellant during cross-examination above I find the submission by learned counsel to the said appellant on this issue to be a futile attempt to exonerate his client who has admitted to the commission of the offence of murder by his testimony and extra-judicial statements which were tendered admitted, without objection, and marked by the lower Court as exhibits 8, 9 and 12. In the said exhibits 8, 9 and 12 the Appellant had admitted that he stabbed the deceased with a knife. Therefore, the defence put forward by learned counsel to the appellant of self-defence, provocation and/or accident are of no moment and are hereby discountenanced by me.”

I endorse the above finding of the Court of Appeal to the effect that there is no doubt that the admission in exhibit 8, earlier reproduced in this judgment, by the Appellant that he stabbed the deceased with a knife in the stomach, is an admission to the commission of the offence with which he was charged.

The Court of Appeal was right to have considered exhibits 8, 9 and 12 in determining the guilt of the Appellant since they formed part of the case of the prosecution and the record before it. The evidence of PW1 and PW2 make it probable that the Appellant’s statements in exhibits 8, 9 and 12 are true.

​On the defences of self-defence, provocation and accident put up by the Appellant, I agree with and endorse the finding of the Court below that “the Appellant cannot plead the defence of provocation, accident and self-defence at the same time as they are definitely incompatible.” The Appellant has adduced two sets of evidence in this case in an attempt to defend himself. In one i.e. Exhibits 8, 9 and 12, he admitted to stabbing the deceased in the stomach with a sharp object/knife which he picked on the ground. In the other piece of evidence, he said that he and the deceased struggled until they fell on the ground whereupon he picked up something and the deceased left him. That he cannot remember what he picked up and did nothing with it. That he cannot remember if the object he picked up touched any part of the deceased body before the deceased left him, thus, trying to exculpate himself from blame. The law is settled that where an accused makes two statements voluntarily, with full knowledge of what he is doing and without any form of inducement, a trial Judge will be right to take the one which is less favourable to the accused, particularly when that one is first in time, see Edoko v State (2015) LPELR – 24402 (SC), Sule v State (2009) 17 NWLR (pt 1169) 33 at 66, Ikemson v The State (1989) 3 NWLR (pt 110) 455 at 473.

​I have already stated earlier in this judgment that the version of the account of the incident as narrated by the prosecution witnesses, that the Appellant issued threatening words before deviously pulling a knife to stab the unsuspecting deceased in the stomach, seem believable to me more than the Appellant’s version. The Appellant’s statements in exhibit 8, 9 and 12 and other circumstantial evidences are close to the evidence of the prosecution’s witnesses. This means that the evidence of the Appellant upon which his defences of provocation, self-defence and accident is anchored is in my opinion an afterthought.

The defences of self-defence, provocation and accident put up by the Appellant are provided for in Section 24, 286 and 287 of the Criminal Code Act, Cap 38 Laws of the Federation of Nigeria, 2004. I shall reproduce the three sections for ease of reference:-

Section 24:- Intentions Motive

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or for an event which occurs by accident, unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial. Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention is immaterial so far as regards criminal responsibility. Section 286 self-defence against unprovoked assault provides:-

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:

Provided that the force used is not intended, and is not 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 to induce him to believe, on reasonable grounds, that is necessary for his preservation from death or grievous harm to use force in self-defence, he is not criminally responsible for using any such force as is reasonable, necessary for such preservation, although, such force may cause death or grievous harm. This protection does not extend to a case in which the person using force, which causes death or grievous harm, first begin the assault with intent to kill or to do grievous harm to some person; not for a case in which the person using force which causes death or grievous harm endeavoured to kill or to do grievous harm to some person before the necessity of so preserving himself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.

From the facts on record, it is clear that neither of the defences of accident, self-defence and provocation set up by the Appellant would avail the appellant vis-a-vis the above provisions of the law. In the case of Uwagboe v State (2008) 12 NWLR (pt 1102) 621 at 639 – 640, this Court held that:-

“An accident is an unpleasant event that happens unexpectedly and not planned in advance. Its negative intention to cause what happened. An accident is the result of an unwilled act, an event which occurs without the fault of the person alleged to have caused it. A wished deliberate act therefore negatives the defence of accident.”

In the instant case, the Appellant issued threats before he deviously stabbed the deceased. His action was therefore a deliberate act with a clear intention of either killing the deceased or causing him grievous bodily harm.

With respect to self-defence, the onus was on the Appellant to show that the force he used to preserve his life was proportionate to the force used by the deceased or threatened against him and reasonable in the circumstance which it was used. See The State v Fatal Baiye Wunmi (1980) 1 NCR 183; Edoko v State (2015) 9 NWLR (pt 1465) 454. Again, to successfully raise the defence of provocation, he must show clearly the fact of the provocation to enable the Court determine how much he was provoked. Secondly, he must show that he acted in the heat of passion and that the provocation was enough to deprive him of self-control and thirdly, he must show a relation which is proportionate to the provocation by the deceased. See Edoko v State (supra); Stephen v State (1998) 12 SC 450 at 498, Alo Chukwu v The State (1992) 1 NWLR (pt 217) 255 at 270. In this case, the Appellant has failed to show how being slapped with bare hand, if anything like that was proportionate to him stabbing the deceased with a knife.

​The Appellant has failed to successfully raise the defences of accident, self-defence and provocation. I agree with the finding of the Court below that the Appellant intended to and did kill the deceased when he stabbed him in the stomach; this issue is resolved against the Appellant.

ISSUE 2

“Whether the Justices of the Court of Appeal were wrong when they rejected the contention of the Appellant that; from the facts and evidence led, there were material inconsistencies and contradictions in the evidence of prosecution witnesses as well as the lopsided consideration of the cases put forward by parties at the trial which made it unsafe for the learned trial Court to convict the Appellant of murder.”

Learned counsel for the Appellant submitted that in a criminal trial, where one witness called by the prosecution contradicts another, the Court cannot pick and choose who to believe but reject both contradictory evidences and resolve the doubt so raised in favour of the accused person. Counsel relied on several authorities including Aruna v The State (1990) 6 NWLR (pt 155) 125; Anekwe v The State (1976) 9 – 10 SC 255; Ikem v the State (1985) 1 NWLR (P72) 378, Asanya v State (1991) 4 SC 46 and Jimmy v State (2013) 18 NWLR (pt 1386) 229.

It is learned counsel’s argument that the evidence of PW1 and PW2 were contradictory with regard to time of the incident, whether it was at 9:20pm or 9:40pm of 13/8/2010, the position of PW1 at the time of the incident, whether he was sitting in or outside the corridor of his house, whether the PW1 was alone at the time of the incident or in company of PW2, whether it was dark as stated by PW1 or there was light as stated by PW2 and the location of the deceased when he was stabbed.

Counsel argued that from the contradictory evidence of PW1 and PW2; they both did not witness the incident. He therefore urged this Court to resolve the said contradiction in the testimonies of PW1 and PW2 in favour of the Appellant.

Learned counsel went further to submit that it is not the duty of the trial Court and the Court of Appeal to explain inconsistencies and contradictions in the testimonies of prosecution witnesses but that of the prosecution and its witnesses. He relied on the cases of Onubogu v State (1974) 1 All NLR (pt 11) 5 at 571; Ubani v The State (2003) 18 NWLR (pt 851) 224 at 245, State v Emine (1992) 7 NWLR (pt256) 658 at 671.

Learned counsel further argued that the fact that PW1 and PW2 are close relatives of the decease, the Court ought to have approached their evidence with caution. On this point, counsel relied on the authorities of Onafowokan vs State (1986) 2 NWLR (pt 23) 496; Udo v State (1970) 4 SC 55, R. v Ezechi (1962) 1 SC NLR 192, Ubochi vs State (1993) 8 NWLR (pt319) 697 at 709.

Finally, counsel urged this Court of resolve the issue in favour of the Appellant. In his response, learned counsel for the Respondent, relying in the cases of Agbo v State (2007) 10 WRN page 95 at 101 and Basil Akpa v State (2008) LPELR – 368 (SC) submitted that for inconsistencies in the evidence of witnesses to be fatal, same must go to the core of the issue. The contradictions pointed out by the Appellant do not go to the substance of the case.

The position of the law is settled that it is an essential principle of criminal trial that the Court should consider any defence to which an accused person is, on the evidence entitled to however stupid or unreasonable. See Uche Williams v The State (1992) 10 SCNJ 74; Bozin v The State (1985) 2 NWLR (pt 8) 465, Abdullahi Ada v The State (2008) 13 NWLR (pt 1103) 149. That being said, I agree with the observation of learned Justices at the Court below at page 226 of the record that the submission of learned counsel for the appellant could be likened to the proverbial drowning man that can grasp even a straw in order to survive.

The position of the law is very clear and variously held by this Court that for contradictions in the evidence of witnesses for the prosecution to affect conviction, they must be sufficient to raise doubt as to the guilt of the accused. See Ogoala v The State (1991) 2 NWLR (pt 175) 509; Ibrahim v State (1991) 4 NWLR (pt 186) P. 399, Wankey v State (1993) LPELR – 3470 (SC) Iko v State (2001) LPELR -1480 (SC), Nwosisi v State (1976) 6 SC 109, Atano v AG. Bendel State (1988) 2 NWLR (pt 75) 201, John Agbo v State (2007) 10 WRN 95 at 101.

​The substance in the instant case is that Mr. Evans Chinwo (the deceased) is dead and that his death was caused by being stabbed in the stomach by the Appellant. The evidence of both PW1 and PW2 captured these facts and even the Appellant admitted to stabbing the deceased in exhibit 8, 9 and 12 and during his cross-examination at page 108 of the record. The precise time the incident took place and posture of the deceased at the time he was stabbed in my view are not material. In the case of Jimmy v State (2013) 18 NWLR (pt 1386) 229 relied on by the Appellant, Fabiyi, JSC observed at page 253 B – C as follows:-

“It must be pointed out that the contradiction in the evidence of the prosecution that will be fatal must be substantial. Minor or miniature contradiction which did not affect the credibility of witnesses or which did not touch on any of the ingredients of the offence charged will not be of any moment. Contradiction must relate to substance, in the man. Trivial contradiction should not vitiate a trial. See Ankwa v The State (1969) 1 All NLR 133 (1969) 1 SCNLR 197; Iyanda v Queen (1960) SCNLR 595; Omisade v Queen (1964) 1 All NLR 233, Sele v The State (1993) 1 SCNJ15 at 22 – 23, (1993) 1 NWLR (pt269) 276″

​Following from the above therefore, I agree with the findings of the two lower Courts that the contradictions in the prosecution’s case pointed out by the Appellant are not substantial and have no effect to the core of the case.

Again, there is no law which disqualifies blood relation or close relatives of a deceased person from testifying for the prosecution in a murder trial. What is important is their credibility and that they are not tainted witnesses. See Nkebisi & Anor v The State (2010) 5 NWLR (pt 1188) 471; Ali v State (2015) LPELR – 2971 (SC), Ude v State (2016) LPELR – 40441 (SC). As long as the Court finds the evidence of PW1 and PW2 to be credible as direct evidence, it is of no moment that they are blood relations with the deceased. There is no law which prohibits blood relations from testifying for the prosecution. This issue is also resolved against the Appellant.

Having resolved the two surviving issues in this appeal against the Appellant, I wish to state categorically that this Court would rarely interfere with concurrent findings of the two lower Courts except where such is found to be perverse or unsupported from the evidence before the Court, or where there is a miscarriage of justice or where there is a violation of some principle of law or procedure. In the instant case, I am unable to see what perversity or injustice these findings have occasioned, and therefore cannot be disturbed. This appeal is devoid of merit and is hereby dismissed. I affirm the judgment of the Court below which upheld the conviction and sentence of the Appellant to death by the High Court.

Appeal Dismissed.

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SC.317/2016