ALISON v THE STATE

ALISON v THE STATE


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON FRIDAY, 7TH APRIL, 2017


Appeal No: CA/OW/152C/2015
CITATION:

Before Their Lordships:

RAPHAEL CHIKWE AGBO, JCA

MASSOUD ABDULRAHMAN OREDOLA, JCA

TUNDE OYEBANJI AWOTOYE, JCA


BETWEEN

ENDURANCE ALISON

(APPELLANT)

AND

THE STATE

(RESPONDENT)


PRONOUNCEMENTS


A. CRIMINAL LAW
1. Offence of murder – Elements to be proven in a charge of murder

What prosecution must prove in a charge of murder

“In SUNDAY OMINI V THE STATE (1999) 9 SC 12 NWLR (PT 630) 168, Karibi Whyte, JSC explained under what condition a person could be convicted thus:
“It is at least well settled that to convict a person charged with murder under Section 316 of the Criminal Code, the prosecution must prove beyond reasonable doubt.

a) The death of a human being

b) That it was caused by the act of the accused

c) That the act or acts were done with the intention of causing death or
d) The accused herein knew that the death would be the probable consequence of his act or acts”.

See also IGAGO V THE STATE (1999) 14 NWLR (PT. 637) 1; OGBA V THE STATE (1992) 2 NWLR (PT. 222) 164.”Per AWOTOYE, JCA read in context

2. Defence of Accident/Self-Defence – Meaning of the twin defence of accident and self defence

What the defence of accident/self-defence entails

“I have carefully considered the arguments canvassed on both sides on this issue. The twin defence of accident and self-defence were explained by the apex Court in ODUAK DANIEL JIMMY V STATE (2013) LPELR-SC 205/2009 ONNOGHEN J.S.C. (as he then was) explained the defence of self-defence thus:

“It is settled law that for an accused person to avail himself to the defence of self-defence, he has to establish the following

i. That the nature of the attack by the deceased was such as to cause a reasonable apprehension of death or grievous harm to the accused, and
ii. That the accused in fact apprehended death or grievous harm. See EKPEYONG V STATE (1991) 6 NWLR (Pt. 200) 683 at 707, UWAGBOE V STATE (2008) 12 NWLR (Pt. 1102) 621 at 648. The accused person must show that his life was so much endangered by the act of the deceased that the ONLY option open to him to save his life was to kill the deceased that he did not want to fight and that at all material time prepared to withdraw”.
His Lordship in the same report, also explained what the defence of accident entail thus:
“This Court has held in the case of UWAGBODE V State (2008) 12 NWLR (Pt. 1002) 621 at 639-640 that “An accident is an unpleasant event that happened unexpectedly and not planned in advance. It 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 willed deliberate act therefore negates the defence of accident.” Per AWOTOYE, JCA read in context

B. EVIDENCE
3. Duty of Prosecution – Duty of the prosecution to establish its case beyond reasonable doubt in a criminal trial

Duty of the prosecution in a criminal trial

“It should be noted that it is duty of the prosecution to prove its case beyond reasonable doubt. See OTEKI V A-G BENDEL STATE (1986) 2 NWLR (Pt.24) 648. According to Uwais J.S.C. (as he then was) in the case:

“There is no corresponding duty on the accused to prove his innocence unless the prosecution has made such a case against him.” Per AWOTOYE, JCA read in context

4. Expert Evidence – Necessity of expert evidence in capital offences

When is the evidence of an expert necessary

“Exhibit D itself further complicated the issue. In it, Dr. Nnoli stated the cause of death as “TONSILAR HERNIATION” consequent to or caused by CEREBRAL OEDEMA and HYPERTENSION HEART. The report did not state that it was a result of force applied to the neck of the deceased. This is why it is necessary in capital offence cases where the cause of death is unclear to always call the medical expert to give evidence in Court to explain the result of his examination of the corpse and clear all reasonable doubts. The fact that the deceased died does not mean that the accused must consequently die. It is incumbent on the prosecution to link the act of the accused to the death of the deceased. Not only that, the prosecution must show the act of the accused was done with the intention of probably causing death to the deceased. See R V OLEDINMA (1940) 6 WACA 202; UYO V A-G OF BENDEL STATE (1986) 1 NMLR (Pt. 17) 418; GABRIEL V THE STATE (1989) 5 NWLR (PT. 122) 457.”Per AWOTOYE, JCA read in context


LEAD JUDGMENT DELIVERED BY AWOTOYE, JCA


This judgment is in respect of the appeal lodged by the appellant against the decision of Abia State High Court sitting at Uzuakoli in respect of Suit HUZ/1C/2011. The State v Endurance Alison delivered on 18/12/2014

The appellant was the accused at the lower Court. The charge against the accused at the lower Court read thus:

BETWEEN

THE STATE – COMPLAINANT

Vs

ENDURANCE ALISON – ACCUSED

DATED THE —————- DAY OF ———— 2011

STATEMENT OF OFFENCE

MURDER, contrary to Section 319(1) of the Criminal Code Cap 30 Vol. 11, Laws of Eastern Nigeria 1963 applicable in Abia State of Nigeria.

PARTICULARS OF OFFENCE

ENDURANCE ALLISON, on the 22nd day of August, 2010 at Aro Quarters, Uzuakoli, Bende Local Government Area of Abia State in the Uzuakoli Judicial Division murdered UGOCHUKWU ANIHE.

The charge was read to the accused who pleaded not guilty. The prosecution called witnesses and the accused later gave evidence in his own defence. After hearing the parties the learned trial Judge gave judgment and found the accused guilty in the following terms:

“This being a criminal trial, the burden is on the prosecution to prove the charge against the accused person beyond reasonable doubt. Here the prosecution has proved the ingredients of the offence of murder. The evidence of the prosecution is quite credible, reliable and believable. It did not create any doubt in the mind of this Court rather has convincingly shown that the accused caused the death of the deceased.

Based on the above, I proceed to convict the accused person of the offence of murder contrary to Section 319(1) of the Criminal Code, Cap 30 Vol. 11, Laws of Eastern Nigeria as applicable in Abia State.”

Aggrieved by this decision the appellant filed Notice of Appeal on 3 / 2/2014.

His ground of appeal are:

GROUND ONE:

“The learned trial judge erred in law, which occasioned a miscarriage of justice by convicting the appellant of murder when the cause of death was not proved beyond reasonable doubt.
PARTICULARS

i. It is trite law that the onus of proving the cause of death rests squarely on the prosecution and not the defence.

ii. The deceased did not die on the spot.

iii. There was evidence that fuel was poured on both accused and deceased.
iv. The trial Court glossed over the effect the fuel poured on appellant and deceased coupled with the medical evidence that the deceased had hypertensive heart disease.

v. It was in evidence by P.W2 that the deceased was first taken to Tochi Hospital Uzuakoli where the Doctor gave him an injection before he was taken to the Federal Medical Center Umuahia where he was also treated before his death.

vi. There was no evidence on record as to the type of attention and treatment given to the deceased by those hospitals.

vii. PW1, PW2, PW3 are not medical experts and their evidence cannot be preferred to the evidence of the medical experts who treated the deceased.

viii. There was no evidence before the Court by the Forensic Pathologist to the effect that the cause of death is linked to the appellant.

ix. The Court relying on Section 55(1) of the Evidence Act reached a wrong conclusion without adverting its mind to Section 55(3) of the same Evidence Act.

x. The failure of the prosecution calling the forensic pathologist to give evidence on the cause of death is fatal to the prosecution’s case.

GROUND TWO

The learned trial Judge erred in law which occasioned a miscarriage of justice when he held that the death of the deceased is simply the natural consequences of the acts of the accused person.
PARTICULARS

i. There was no evidence throughout the trial of proof of intent to kill or cause grievous harm.

ii. There was sufficient evidence that the death of the deceased was purely accidental circumstances as the accused had no intent to kill or cause grievous bodily harm.

GROUND THREE

The learned trial Judge erred in law which occasioned a miscarriage of Justice when it rejected the evidence of the accused person and held that the intention of the accused person at introducing this co-existing act of pouring of fuel is for the Court to speculate as to the version of his story to believe.

PARTICULARS

i. It was in evidence by the accused that fuel was poured on him and the deceased.

ii. The trial Judge failed to appreciate and give proper consideration of the accused person’s evidence of pouring fuel on him and the deceased which evidence was never countered by the prosecution.

iii. The trial Judge admitted that the accused person made a statement to the police on 27/8/2010 where the accused said that fuel was poured on him and the deceased.

iv. After admitting this fact, the trial Judge reached a wrong conclusion by holding that if the accused had made it as an issue same would have been investigated.

v. The Court ought to have adverted his mind that the failure of the police to investigate this issue is fatal to the prosecution’s case.

vi. The accused person even confirmed in his evidence that he told the police at SCID, Umuahia that fuel was poured on him and he was given treatment before he made his statement.
GROUND FOUR

The learned trial Judge erred in law which occasioned a miscarriage of justice when he held that the prosecution has proved the ingredients of the offence of murder against the accused person to warrant a finding of guilt/conviction of the appellant.

PARTICULARS

i. It is trite that in criminal cases the burden of proof is always on the prosecution.

ii. The prosecution failed to prove the ingredients of the offence of murder against the accused person.

iii. One of the vital ingredients of the offence of murder is intent to kill or do grievous bodily harm.
iv. It was in evidence that what happened was an accident. v. PW2 in his evidence stated that as a result of disagreement between the accused and deceased, the deceased lifted up the accused while the accused held him on the neck and both of them fell on the ground.

vi. Even the trial Judge admitted in his judgment that the two were best of friends and that they fought, yet he went ahead to convict the accused of murder.

vii. Also there was no evidence that the two friends quarreled before the day of the incident as both have been best of friends, age mates and maintained a cordial relationship.

viii. It was in evidence by DW1 that both of them had no dangerous weapon in the process.

GROUND FIVE

The learned trial Judge erred in law which occasioned a miscarriage of justice when he held that the evidence of the prosecution is quite credible, reliable and believable and has consistently shown that the accused caused the death of the deceased.

PARTICULARS

i. There was no credibility in the evidence of prosecution to warrant the conviction of the accused person.

ii. In fact the evidence of the prosecution was unreliable and should have created doubt in the mind of the Court which ought to be resolved in favour of the accused person.

GROUND SIX

The learned trial Judge erred in law which occasioned a miscarriage of justice when he failed to resolve the doubts in the prosecution’s case in favour of the accused person.

PARTICULARS

i. There were material contradictions in the evidence of prosecution witnesses. While PW1 stated and insisted on what the deceased told her to the effect that the accused spat and kicked the deceased after he threw him down, PW3 stated that the deceased made a statement that the accused assaulted him by giving him first blows all over his body and the accused lifted him up and hit his head on the ground. PW2 also stated that it was the deceased that lifted up the accused person before both fell down while the same PW2 denied this evidence under cross examination. ii. There was no cogent evidence as to the cause of death.

GROUND SEVEN

The learned trial Judge erred in law which occasioned a miscarriage of justice when he convicted the accused person of murder without giving due consideration to the overwhelming evidence that there was no intention by the accused to kill the deceased.

PARTICULARS

i. It is trite that in criminal cases the burden of proof is always on the prosecution.

ii. The prosecution failed to prove the ingredients of the offence of murder against the accused person.
iii. It was in evidence that what happened was accident.

iv. PW2 in his evidence stated that as a result of disagreement between the accused and deceased, the deceased lifted up the accused while the accused held him on the neck and both of them fell on the ground.

v. Even the trial Judge admitted in his judgment that the two were best of friends and that they fought, yet he went ahead to convict the accused of murder.

vi. Also there was no evidence that the two friends quarreled before the day of the incident.
vii. It was in evidence by DW1 that both of them had no dangerous weapon in the process.
viii. He equally stated in evidence that he has no intention to kill the deceased. GROUND EIGHT

The learned trial Judge erred in law which occasioned a miscarriage of justice when he held that the appellant confessed to committing the offence charged.

PARTICULARS

i. The appellant never made any confessional statement to warrant his conviction of the offence of murder.

ii. The accused only stated that the deceased provoked a quarrel between them which led to a fight.
iii. The appellant did not confess that he killed the deceased or that he wanted to kill him or cause him grievous bodily harm.

iv. The trial Judge relied on his misapprehension of Appellant’s extra-judicial statement in drawing a conclusion that he committed the offence of murder.

GROUND NINE

The learned trial Judge erred in law which occasioned a miscarriage of justice when in drawing a wrong conclusion he held that there are instances where evidence of medical report could be dispensed with an example as in the instant case where the deceased died soon after the injury was inflicted by the accused, the accused is held to have caused the death.

PARTICULARS

i. The trial Court reached a wrong conclusion in finding the accused guilty of murder even when the evidence before him did not prove that.

ii. The Court ought to have adverted its mind on Section 55(3) of the Evidence Act in the interest of justice.
iii. It is in evidence that the deceased died in the hospital several days after the fight, thus the Court was wrong to hold that the accused caused the death of the deceased without a cogent proof of the cause of death by the prosecution.

GROUND TEN

The learned trial Judge erred in law which occasioned a miscarriage of justice when it did not evaluate properly the defence of accident available to the appellant.

PARTICULARS

i. It is in evidence that both appellant and deceased are friends of the same age.

ii. Evidence also showed that none of them held or used any weapon of any sort.
iii. It was also in evidence that it was the deceased that lifted the appellant up to throw him on the ground and both of them fell down.

iv. The appellant from the only eye witness PW.2 did not do any other thing to the deceased.

GROUND ELEVEN

The learned trial Judge erred in law which occasioned a miscarriage of justice when it failed to avail the appellant of the defence of self defence and held thus ‘the issue of self defence has to expressly come from the accused.
PARTICULARS

i. The burden of proof is permanently on the prosecution

ii. The appellant is entitled to all the defence available to him from evidence led.
iii. Evidence led showed that deceased lifted up the appellant to throw him on the ground and the appellant held his neck for a safe landing and both fell to the ground.

iv. There was no evidence of intent to kill or cause grievous bodily harm.
v. There was no evidence of negligence on the part of the appellant.

GROUND TWELVE

The conviction and sentencing of the accused person of murder is unwarranted, unreasonable and cannot be supported having regard to the evidence at the trial.”

The record of appeal in this appeal was transmitted to this Court on 14/5/2015 and deemed transmitted on 7/4/2016.

Subsequently, parties filed and exchanged briefs of argument. The appellants brief of argument was deemed filed on 7/4/2016. The brief was prepared by Chukwuemeka Nwokoro, his counsel. Learned counsel for the appellant formulated 8 issues for determination as follows:

“1. Whether the cause of death of the deceased was sufficiently established to ground the conviction of the Appellant of the offence of murder.

2. Whether the offence of murder was proved beyond reasonable doubt by the prosecution.
3. Whether the Appellant was exculpated from criminal responsibility for the death of the deceased by the defence of accident.

4. Whether the trial Court was right when it failed to resolve in favour of the appellant the doubts created in the prosecution’s case as a result of material contradictions in the evidence of prosecution witnesses.

5. Whether the trial Court was right when it held that the appellant confessed of committing the offence of murder.
6. Whether the trial Court was right to hold that the issue of self defence has to expressly come from the accused.
7. Whether the trial Court was right in the conviction of the appellant for murder when it failed to appreciate and give proper consideration to a vital evidence of pouring fuel on the appellant and the deceased.

8. Whether the conviction and sentencing of the Appellant of murder was reasonable and supported having regards to the evidence at the trial.”

The Solicitor General of Imo State Enyinnaya Okezie settled the Respondent’s brief which was deemed filed on 7/4/16. Learned Solicitor General postulated 4 issues for determination by the Court thus:

“1. Whether the offence of murder was proved beyond reasonable doubt.

2. Whether there were contradictions in the case of the prosecution.
3. Whether the twin defence of self defence and accident avail the appellant.
4. Whether the appellant confessed to the crime.”

I have deeply considered the issues as formulated by learned counsel on both sides. I am of the respectful view that the issue can be condensed into two namely:

(a) Whether the offence of murder was proved beyond reasonable doubt.
(b) Whether the twin defences of self defence and accident availed the appellant.

I shall determine this appeal in the light of the above two issues.

ISSUE (a)

WHETHER THE OFFENCE OF MURDER WAS PROVED BEYOND REASONABLE DOUBT

Learned Appellant’s counsel submitted that the prosecution did not prove that the act of the accused caused the death of the deceased to the exclusion of other possibilities he submitted that within the time of the fight and the death of the deceased. He added that the cause of death was not proved with certainty. He cited ADEKUNLE V THE STATE (1989) 12 SC 203 and other cases. He argued that the fact that there were no co-existing circumstances which were capable of weakening or destroying the inference that the accused was guilty of the murder of the deceased. He cited STATE V OSUAGWU (2013) 1-2 SC (Pt. 1) 37.

Learned counsel further submitted that the deceased was treated in three hospitals and yet the prosecution did not call any of the medical doctors who treated the deceased to give evidence. He argued that the learned trial Judge ought not to have preferred the evidence of PW2, PW3 and PW4 to that of the medical experts.

In further argument appellant’s counsel submitted that the failure of the prosecution to call the medical pathologist that conducted the autopsy to give evidence in the trial further weakened the case of the prosecution. He posited further that the Report of the medical practitioner Exhibit ‘D’ did not link the appellant to the cause of the death of the deceased. He referred further to Section 55(3) of the Evidence Act and submitted that the learned trial Judge erred when he held that this case was an instance of where medical evidence could be dispensed with.

Learned counsel for appellant further contended that the prosecution failed to prove that the act or omission of the accused which caused the death was intended with knowledge that death or grievous bodily harm was its probable consequence. He relied on AIGUOBWEGHIAN V STATE (2004) 25 SCM 67 and other cases.

He submitted that there was evidence that the accused and the deceased were best of friends. There was evidence according to learned counsel that the deceased provoked the fight. Learned counsel referred to the evidence of the only eye witness PW2 which he submitted was fundamentally inconsistent when compared with his statement to the police dated 22/8/2010. He urged the Court to hold that the evidence of PW2 was unreliable.

Learned appellant’s counsel further contended that the Appellant did not confess to have committed the offence of murder. He posited that for a statement to qualify as a confessional statement it must be direct, positive and without any equivocation. He cited GBADAMOSI V STATE (1992) 11/12 SCNJ 268, 276.

Learned appellants counsel submitted that the prosecution never raised the issue of the appellant making confessional statement during the trial.

The learned Solicitor General of Abia State Okezie Esq. in response referred to the evidence adduced by the prosecution witnesses and submitted that the evidence of the medical doctor who performed the autopsy was not necessary if his written report was tendered in Court. He relied on ODOHO V THE STATE (2011) (1992) LRCN 59 at 90. He urged the Court to hold that the cause of death was sufficiently proved.

Learned Respondent’s counsel argued that there was clear evidence that the accused intentionally squeezed the neck of the deceased and must have known that death or grievous bodily harm was its probable consequence. He referred to the statement of the appellant/accused in Exhibits A and B admitted before the trial Court. He urged the Court to hold that the appellant inflicted the injury on the deceased intentionally with the knowledge that death or grievous bodily harm was its probable consequence.

He submitted further that there were no contradictions in the prosecution’s case. He relied on DAGAYA V STATE (2006) 7 NWLR (PT. 8) 980 page 637.

He further posited that by virtue of Exhibits B & C at the trial Court, the appellant admitted the offence. He relied on SULE V THE STATE. He urged the Court to resolve the issue in favour of the Respondent.

I have deeply considered the submissions of learned counsel on both sides.

The prosecution at the lower Court called 4 witnesses to prove its case.

PW1 was Ngozi Aniche. The deceased was her first son. She was not an eye witness to the incident. PW2 Emmanuel Nwosu of Eluama Uzuakoli was an eye – witness. He gave evidence that on 22/08/2010, a Sunday, he went to the deceased’s house. He said the two of them went out together but that at the bar an argument occurred between the accused and the deceased over pool betting. He gave evidence further thus:

“In the course of the disagreement, the deceased pushed the accused person and asked him to go away. The accused turned and held the deceased who now carried him up and the accused held him by his neck and both of them fell on the ground. The accused person got up while the deceased could not get up. The deceased was lying face down and I had to go to him and turned him facing him up. After a while, he gained strength, called me by my name Emma, where is his hand, where is his leg. I thought it was a joke and I held him so that he could regain more strength but his strength never came back. At this point, people who were around started running away, I started beckoning on them to come around and help me take him to any nearby hospital for treatment. A few came and we took him to the Tochi Hospital in Uzuakoli. The condition I saw the deceased as at the time or after the fall was that he was able to talk but was not moving his hands and legs.”

And under cross – examination the witness said inter alia.

“Yes it was the deceased that provoked the fight. I did not say that the deceased first carried the accused up.”

PW3 was Oludeje Stephen a police officer and a Sergeant who took the statement of the deceased before he died. He later transferred the case to State C.I.D.

PW4 was Noah Achana an Inspector of Police. He took over the case at the State C.I.D. He visited the deceased in the hospital but could not obtain his statement as he was then in coma. He took voluntary statement from the accused. After the death of the deceased he caused post mortem to be performed on it by Dr. Nnoli, a Pathologist at the Federal Medical Centre. He tendered the coroner’s form filled by the doctor and it was admitted as Exhibit D. The accused later gave evidence denying the charge.

In resolving the issue of whether or not the prosecution proved the offence of murder beyond reasonable doubts there is need to closely look at some aspects of the evidence before the lower Court i.e.

(1) the evidence of the only eye – witness PW2 and his statement to police.

(2) The statements of the accused persons and

(3) The medical report tendered – Exhibit D.

On 24/8/2010 the accused volunteered a statement to the police. The statement read thus (inter alia)

“On Sunday 22 of August 2010 around 10.00 a.m I was in the pool office belonging to one Chidi Okorie (m) And when the deceased my friend Ugochukwu Aniche (m) came and meet me then he Ugochukwu Aniche (m) the deceased now called me a son of a mad woman (Onalyara). Then I told him that I am not mad. And he Ugochukwu Aniche (m) the deceased now asked one that did I win pool game? Then I replied yes. Then I also asked that deceased that did he also win pool game? Then he said no. Then I now told Ugochukwu Aniche the deceased that pool game is not marvilly for an illiterate like him then Ugochukwu Aniche the deceased growned annoyed and then used his hand and pool my shirt back. And fold the “deceased” Ugochukwu Anieche told me that why did I called him Ilitrate? Then I asked him that did he want to Right” Then I asked him that did he want to fight me? Then the “deceased” Ugochukwu Aniche (m) replied to me that he will beat me up. Then he started fighting me, and he the deceased Ugochukwu Aniche horsed me up and throwned me on the ground, and I and him the deceased Ugochukwu Aniche (m) beat his head on the ground and I heard the noise of the neck of the deceased” Ugochukwu Aniche sound crack”. That at that junction my friend Ugochukwu Aniche the “deceased” could not stand up.”

And on 27/8/2010, he made an additional statement where he stated among other things as follows:

“the deceased lifted me up and both me and him fell down and my friend could not get up. And he my friend Ugochukwu deceased was rushed to the Federal Medical Center and he died it is true that it was the fight that I and him fight that lead to his death. And I was arrested down to State C.I.D Umuahia. That is all.

The medical report issued by Dr Nnoli, a Consultant Anatomic and Forensic Pathologist was admitted as Exhibit D. The cause of death of the deceased person was stated to be TONSILAR HERNIATION CONSEQUENT TO CEREBRAL OEDEMA WITH HYPERTENSIVE HEART DISEASE”

Did the Summation of all the above prove beyond reasonable doubt the offence of murder? In SUNDAY OMINI V THE STATE (1999) 9 SC 12 NWLR (PT 630) 168, Karibi Whyte, JSC explained under what condition a person could be convicted thus:

“It is at least well settled that to convict a person charged with murder under Section 316 of the Criminal Code, the prosecution must prove beyond reasonable doubt.

a) The death of a human being

b) That it was caused by the act of the accused

c) That the act or acts were done with the intention of causing death or
d) The accused herein knew that the death would be the probable consequence of his act or acts”.

See also IGAGO V THE STATE (1999) 14 NWLR (PT. 637) 1; OGBA V THE STATE (1992) 2 NWLR (PT. 222) 164.

From the evidence on record, it is clear that the deceased, Ugochukwu Aniche died. It is clear that there was a fight between the accused and the deceased. It is clear that the two of them before the incident were friends. It is clear from the evidence of PW2 in the course of the fight the accused and the deceased both fell to the ground. The accused could rise up but the deceased as a result of the fall could not stand up. The deceased eventually died some days later.

The contention of the prosecution at the lower Court was that the death of the deceased was a result of the squeezing of his neck by the accused.

The accused however, in his statement to the Police stated that the deceased hit his head on the ground and injured his neck as a result.

The version of the accused was confirmed by the only eye witness PW2 in his evidence. I have gone through the statement of the accused and I am unable to see how they can be called confessional statements from the evidence of PW2 the deceased lifted the accused up, while the accused held his neck. The two of them consequently fell on the ground.

Exhibit D itself further complicated the issue. In it, Dr. Nnoli stated the cause of death as “TONSILAR HERNIATION” consequent to or caused by CEREBRAL OEDEMA and HYPERTENSION HEART. The report did not state that it was a result of force applied to the neck of the deceased. This is why it is necessary in capital offence cases where the cause of death is unclear to always call the medical expert to give evidence in Court to explain the result of his examination of the corpse and clear all reasonable doubts. The fact that the deceased died does not mean that the accused must consequently die. It is incumbent on the prosecution to link the act of the accused to the death of the deceased. Not only that, the prosecution must show the act of the accused was done with the intention of probably causing death to the deceased. See R V OLEDINMA (1940) 6 WACA 202; UYO V A-G OF BENDEL STATE (1986) 1 NMLR (Pt. 17) 418; GABRIEL V THE STATE (1989) 5 NWLR (PT. 122) 457.

The prosecution sang different tunes on the cause of death of the deceased.

1. The squeezing of the neck by the accused

2. The fall

3. Cerebral Oedema

4. Hypertension heart condition

If the squeezing of the neck by the accused was not shown to be the cause of death by the medical report and the report suggested other causes then there was reasonable doubt in the prosecution’s case. The question what killed the deceased was not answered pointedly with accuracy. For ease of reference the contents of Exhibit D, the medical report is captured hereunder:-

“REPORT OF MEDICAL PRACTITIONER

1. Date and hour of receipt of Corpse at Mortuary: 27:08:2010 (6:25am).

2. Condition of Corpse on arrival: WRAPPED IN CLOTHING.

3. Mode in which packed: WRAPPED IN CLOTHING.

4. Date and hour holding examination: 3:11:2010 (2:00pm)

5. Name of Deceased (if Known): UGOCHUKWU ANICHE.

6. By whom identified: MRS NGOZI ANICHE.

7. Approximate age: 25 YEARS.

8. Sex: MALE

9. Height, colour and hair, eyes, peculiar clothing and any other marks or means of identity: 156cm, DARK AND BROWN EYES.

10. Probable date of death: 27:08:2010.

11. Medical Report: A YOUNG MALE, MODERATELY TO SEVERELY PALE WITH NO OBVIOUS INJURY EXTERNALLY. THE NECK/HEAD IS FREE OF ANY FRACTURE. THE CHEST SHOWS BOTH LOOLIS, WET AND SH…. CUT SECTIONS SHOWS FROTHY FLUID ……THE HEART IS ENLARGED WITH 500GMS AND CUT SECTIONS ENLARGED CHAMBERS WITH PONTAL, PALPALABLE CHORDE HINDINEA WITH MARKEDLY, ….. CEREBRAL VESSELS. ALL PICTURE/NEGATIVES ARE ATTACHED

I certify the cause of the death in my opinion to be

TONSILAR HERNIATION CONSEQUENT TO CEREBRAL

OEDEMA WITH HYPERTENSIVE HEART DISEASE

Date:3:11:2010

A medical report which showed that there was no obvious injury externally to the deceased and that the head and neck of deceased were not fractured was clearly not in support of the prosecution’s case. And more importantly the report opined that the cause of death was TONSILAR HERNIATION caused by cerebral Oedema with hypertensive heart disease.

The deceased could have died of heart failure which co-incidentally happened at the time of the fight. There is reasonable doubt that the accused caused the death of the deceased.

I therefore resolve the doubt in favour of he accused appellant. I resolve this issue in favour of the appellant in the circumstance.

ISSUE (b)
WHETHER THE TWIN DEFENCES OF SELF DEFENCE AND ACCIDENT AVAIL THE APPELLANT

On this learned counsel for the appellant submitted that the trial Court committed a grave error when it failed to consider the material defence of accident under Section 24 of the Criminal Code for the appellant.

He cited ADELUMOLA V THE STATE (1988) 1 NWLR (Pt. 73) 683, 692-693. He referred to the evidence of PW2 and contended that it was wrong for the trial Court to have convicted and sentenced the appellant for the offence of murder without adverting its mind to the evidence of PW2 and DW1. He cited USMAN V STATE (2005) ALL FWLR (Pt. 284) p. 315, 319 and UWAEKWEGHINYA V STATE (2005) ALL FWLR (Pt. 259) 1911, 1915.

On self-defence, learned appellant’s counsel submitted that it was the duty of the prosecution to establish that the defence was not available to the accused.

He cited AHMED SHEIDU V THE STATE (2014) SC/222/2011 LER. This according to appellant’s counsel, the prosecution failed to do. He argued that the life of the appellant was threatened by the aggression of the deceased and the only option for him was to struggle for a safe landing. He urged the Court to resolve the issue in favour of the appellant.

Learned Solicitor General in response submitted that the twin defence of self-defence and accident were not available to the appellant and they could not co-exist. He cited SOLE V THE STATE (2009) 171 L.R.C.N 1 at 28; ALIU BELLO & ORS V A – G OYO STATE (1986) 5 NWLR (Pt. 45) 428.

He contended further that for a plea of accident to avail the appellant, he must show that the act concerned was a lawful act exercised in a lawful manner. He referred to ABDULBAKI V KATSINA N.A (1961) NUCU 12.

He finally urged the Court to discountenance the twin defence for the appellant.

I have carefully considered the arguments canvassed on both sides on this issue. The twin defence of accident and self-defence were explained by the apex Court in ODUAK DANIEL JIMMY V STATE (2013) LPELR-SC 205/2009 ONNOGHEN J.S.C. (as he then was) explained the defence of self-defence thus:

“It is settled law that for an accused person to avail himself to the defence of self-defence, he has to establish the following

i. That the nature of the attack by the deceased was such as to cause a reasonable apprehension of death or grievous harm to the accused, and

ii. That the accused in fact apprehended death or grievous harm. See EKPEYONG V STATE (1991) 6 NWLR (Pt. 200) 683 at 707, UWAGBOE V STATE (2008) 12 NWLR (Pt. 1102) 621 at 648. The accused person must show that his life was so much endangered by the act of the deceased that the ONLY option open to him to save his life was to kill the deceased that he did not want to fight and that at all material time prepared to withdraw”.

His Lordship in the same report, also explained what the defence of accident entail thus:

“This Court has held in the case of UWAGBODE V State (2008) 12 NWLR (Pt. 1002) 621 at 639-640 that “An accident is an unpleasant event that happened unexpectedly and not planned in advance. It 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 willed deliberate act therefore negates the defence of accident”.

I agree with learned appellant’s counsel that it was the duty of the prosecution to prove that either of the defences was not available to the appellant. The fall of the deceased and hitting of his head on the ground, as explained by the accused, after lifting of the accused and the two of them fell together seemed to me an accident. Could the appellant have deliberately targetedly hit the head of the deceased on the ground when they fell jointly together? What caused the fall? Who tripped who? If the accused’s defence was considered the mysterious but unfortunate fall of his friend, the deceased would appear to be accidental and not designed. The prosecution failed to clear the above doubt as the above questions remain unanswered.

It should be noted that it is duty of the prosecution to prove its case beyond reasonable doubt. See OTEKI V A-G BENDEL STATE (1986) 2 NWLR (Pt.24) 648. According to Uwais JSC (as he then was) in the case:

“There is no corresponding duty on the accused to prove his innocence unless the prosecution has made such a case against him.”

I am of the respectful view that the defence of accident was available to the appellant. I also resolve this issue in favour of the appellant.

The death of the deceased in this matter is sad and unfortunate but the appellant does not necessarily have to suffer for it unless the contrary is proved.

This appeal has merit. It is hereby allowed. The conviction and sentence of the appellant in Suit HUZ/IC/2011 by the High Court of Abia State sitting at Uzuakoli on 18/12/2014 are hereby set aside. I hereby order instead that the accused (appellant) is discharged and acquitted.

AGBO, JCA

I agree with the conclusions of my learned brother Awotoye JCA in the lead judgment and abide by all the consequential orders contained therein.

OREDOLA, JCA

I have had the benefit of reading in draft, the lead judgment of my learned brother, Hon. Justice Tunde Oyebamiji Awotoye, JCA just delivered. I agree with his reasoning and conclusion that the appeal has merit and should be allowed. It is accordingly allowed by me. I also abide by the consequential orders made in the said lead judgment of my learned brother, Awotoye, JCA