NWOSU v THE STATE

NWOSU v THE STATE


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

ON TUESDAY, 24TH NOVEMBER, 2015


Appeal No: CA/OW/277C/2010
CITATION:

Before Their Lordships:

IGNATIUS IGWE AGUBE, JCA

ITA GEORGE MBABA, JCA

PETER OLABISI IGE, JCA


BETWEEN

KINGSLEY C. NWOSU

(APPELLANT)

AND

THE STATE

(RESPONDENT)


PRONOUNCEMENTS


A. CRIMINAL LAW
1. Duty of Prosecution – Duty of the prosecution to establish the guilt of the accused beyond reasonable doubt

Whether the prosecution is duty bound to prove the guilt of an accused person beyond reasonable doubt

“To prove a charge of murder, under Section 319 of the Criminal Code, the burden is always on the prosecution, to establish the guilt of accused person, beyond reasonable doubt. That, we have always said, calls for a lot of caution on the part of the court, and imposes a duty of thoroughness on the part of the prosecution, to ensure that evidence is brought to show, unmistakably, that the accused person’s act or omission caused the death of the deceased, and that that act or omission of the accused person was with the requisite intention to cause the death of the deceased, or to cause him grievous bodily harm.” Per MBABA, JCA read in context

2. Offence of Murder – Elements to be established by the prosecution in order to prove the offence of murder

Essential ingredients that must be established by the prosecution for a successful conviction of the offence of murder

“As submitted by counsel on both sides, the following ingredients of the offence of murder, must be established:

(1) Death of the deceased

(2) The death resulted from the act/omission of the accused

(3) The accused person caused the death intentionally, or with requisite knowledge that death or grievous bodily harm was the probable consequence of his act/omission. See the case of Sule v. State (2009) 19 NWLR (pt.1169) 33; Nkebisi v. State (2010) 5 NWLR (pt.1184) 471; Mbang v. State (2010) 7 NWLR (pt.1194) 431; Usman v. State (2011) 4 NWLR (pt.1233) 1; Akpan v. State (2008) 14 NWLR (pt.110 ) 72; Musa v. The State (2014) LPELR 22912 (CA); Okon v. The State (2014) LPELR 24018 (CA). Of course, the above ingredients can be established by:

(a) Production of positive and direct eye witness account of the killing, when it occurred. See Blessing v. FRN (2013) 12 WRN 36; Okon v.The State (2014) LPELR 24018 (CA); OBASI v. The State (2014) LPELR 24013 (CA); (2015) 12 NWLR (pt.1473) 2 3.

(b) By cogent circumstantial evidence which points directly, unmistakably and conclusively at the accused person as the one from whom the guilt for the murder can be inferred. See Nasiru v. The State (1999) 2 NWLR (pt.589); Chiokwe v. The State (2005) 5 NWLR (pt.918) 424; Obasi v. The State (2014) LPELR 24013; (2015)12 NWLR (pt.1473) 213.

(c) By confessional statement of accused person, adjudged voluntary, even when it is retracted, where the court is satisfied that it accords with the other pieces of evidence before it. See Haruna v. A.G. Fed. (2012) 2009 LRCN 70; (2012) 32 WRN 1; Oseni v. The State (2012) LPELR 7833 (SC); Blessing v. FRN (2015) LPELR 24689 (SC).” Per MBABA, JCA read in context

3. Defence of Self Defence – Necessary conditions for the defence of self-defence to avail

Condition precedent for a defence of self defence to avail an accused person

“Of course, learned counsel for the appellant knows or should know, that a defence to a criminal charge of murder, is not a matter of conjecture or assumption, like there are possibilities appellant was acting in self defence…’

Such defence has to be, expressly, pleaded or stated by the accused person and evidence led to prove such acts of provocation or acting in self defence, and the court is expected to weigh the act(s) of self defence, whether it was commensurate with the danger posed by the opponent, to justify the force used by him (appellant) to ward off the attack (if any).See Mgboko v. the State (1972) LPELR – 1872 (SC); (1972) 2 SC (Report) 113; Nwuzoke v. State (1988) NWLR (pt.72) 529; (1998) LPELR – 1235 (SC) – where the Supreme Court said:“One point that must be emphasized with respect to the defence of self defence in cases of murder in our law is that it is a child of necessity.

It is available to a defendant only when he proves that he was, at the time of the killing, in reasonable apprehension of death or grievous harm and that it was necessary at the time to use the force which resulted in the death of the deceased, in order to preserve himself from the danger.

The force used by the defendant must also be shown to be proportionate to the force used or imminently threatened against him and reasonable in the circumstances in which it was used. There must be reasonable grounds for the accused person to believe that the only way by which he could escape death or grievous bodily harm to himself was to kill the assailant.” Per MBABA, JCA read in context

4. Defence of Provocation – Elements required for the defence of provocation to be available

Essential ingredients needed in order to establish the defence of provocation

“The defence of provocation will be available to a person who killed in reaction to the provocation given him. If the conditions are satisfied the provocation will reduce the murder to manslaughter. In this case the accused denied giving the deceased the machete cuts that resulted in the death of the deceased. Since he denied committing the offence it cannot be held that the excuse of justification for committing such offence, is available to him whether pleaded or not pleaded.” Per MBABA, JCA read in context

B. EVIDENCE
5. Medical Evidence –

Whether medical evidence is a sine qua non for the successful prosecution of a murder trial

“…the law is well settled on this issue, that medical evidence is not sine qua non for establishment of offence of murder, where the death of the deceased occurred on the spot or soon after the attack by the assailant. See the case of Adekunle v. State (2006) 14 NWLR (pt.1000) 717; Michael v. State (2008)13 NWLR (pt.1104) 361; Onyia v. State (2006) 11 NWLR (Pt.991) 267.In the case of Galadima v. State (2013) LPELR –20402 (CA) it was held:

“It is settled law that in a murder charge, much as medical evidence is desirable to establish the cause of death, it is clearly not a sine qua non, as cause of death may be established by sufficient satisfactory and conclusive evidence, showing beyond reasonable doubt that the death of a deceased resulted from the particular act of a defendant.

Thus, where death is instantaneous or nearly so, medical evidence ceases to be of any practical or legal necessity – Essien v. State (1984) 3 SC 14; Agu v. State (1993) 6 NWLR (Pt.229) 303; Akpan v. State (2008) 14 NWLR (pt.1106) 72.” Per MBABA, JCA read in context


LEAD JUDGMENT DELIVERED BY MBABA, JCA


This is an appeal against the judgment of Imo State High Court in suit no. HOW/46C/99, delivered on 28/7/2008, by Hon. Justice C. M. I. Egole, whereof the learned trial Judge convicted the appellant for murder and sentenced him to death, by hanging.

Appellant, as the accused person at the court below, was charged with murder of Innocent Nwosu on 22/6/1992, by giving him several machete cuts. Thereafter, he, Innocent Nwosu, was rushed to the hospital where he died. The murder charge was founded on Section 319 of the Criminal Code, Cap 30, Volume 11 Laws of Eastern Nigeria as applicable to Imo State of Nigeria.

Appellant, as accused person, was arraigned on 15/6/2006, when he took plea, and pleaded not guilty to the charge. See page 44 of the records. At the end of the trial, the lower court convicted the appellant and found him guilty as charged, and sentenced him to death, by hanging.

A brief facts of the case shows that, on 22/6/92, the appellant and the deceased had some altercation, when appellant accused the deceased of passing on a land he (appellant) cultivated cassava. The deceased told appellant not to address him (deceased) as a small boy, that he was not a small boy. The deceased passed on to ease himself and on coming back, appellant attacked him with a machete and cut his right hand when the deceased lifted it to ward off the attack. He also cut his left hand when the deceased raise it, peeling off the skin to expose the bone. Blood started gushing from the two hands. He was rushed to the Federal Medical Centre, Owerri for treatment, where he died the next day. PW2, who witnessed the machete attack, said Appellant ran with the machete into the bush, as they (witnesses) raised alarm that “Kingsley had killed Innocent”.

The prosecution called 7 witnesses to prove the charge, while appellant defended himself and called no witness. In his defence, appellant said that he was rather the victim of the assault by the deceased and the relations of the deceased.

Appellant filed his notice and grounds of appeal on 24/9/2008, as per pages 120 to 125 of the records of appeal, raising 10 grounds of appeal. He filed his brief of argument on 21/1/2013, with the leave of this Court and distilled six (6) issues for the determination of the appeal, namely:

1. Whether the trial Judge was right when he believed the evidence of non-experts as the cause of the death of the deceased. Grounds 1 and 6

2. Whether the trial Judge was right in acting on the contradictory evidence of the PW2 and PW3 (Ground2)

3. Whether the trial Judge was right when he believed the hearsay evidence of the prosecution witnesses as satisfactory to establish the cause of death of the deceased. (Grounds 3, 4 and 7)

4. Whether the trial Judge was right in believing the opinion of a non-expert in establishing the certainty of hand writing (Ground 5).

5. Whether the trial court was right in not considering any defence which would have availed the appellant. (Grounds 8 and 9)

6. Whether the judgment of the trial Judge was well founded in view of the dearth of evidence from the prosecution (Ground 10).

The respondent filed its brief on 5/6/2014 with the leave of this Court, wherein it distilled only two issues for determination of the appeal, as follows:

(i) Whether the prosecution, by admissible evidence, proved the offence of murder against the appellant beyond reasonable doubt.

(ii) Whether the learned trial Judge failed to consider any of the defences available in law for the benefit of the appellant that arose from the facts and evidence before the trial court.

This appeal was heard on 19/10/15 when the briefs were adopted by the parties.

Arguing the appeal, E. C. Onumajuru Esq, counsel for the appellant, on issue 1, submitted that when the court has to form opinion on a point of science or art or as to cause of death, the evidence of persons specially skilled in the area is relevant; that the court needs the assistance of experts on matters which require special study or still or knowledge, and such expert must be subjected to cross examination as to the extent and scope of his training, qualification, knowledge and skill. He said that none of the prosecution witnesses gave evidence as to his skill or knowledge in medical pathology and none of them was versed in the field of medicine or science. He said there was no evidence as to the actual or remote cause of the death of the deceased, from the point of view expert.

Counsel stated the ingredients of offences of murder as per the case of Igago v. State (2001)2 ACLR (Pt.123), namely:

(a) That the deceased actually died;

(b) That the death resulted from the act or mission of the accused; and

(c) The act of the accused was intentional with the probable consequence.

He said that the evidence that the deceased died in the hospital was not sufficient to establish that the death of the deceased resulted from the act of the deceased; that possibility abound that the deceased may have died as a result of negligence of medical expert to whom he was entrusted, or may have applied for euthanasia from any of the hospital staff, etc; that the prosecution did not lead evidence to foreclose such possibility, but the trial court overlooked all that and convicted the appellant.

On issue 2, appellant’s counsel reproduced the 1st issue again but argued that the evidence of PW2 was materially contradictory with that of PW3 as to what actually ensued between the deceased and the appellant. He relied on the case of State v. Yusuf (2007) All FWLR (pt. 377), 1001 to say that, where witnesses to the prosecution contradict each other on an issue, the court should not pick and choose which one to believe and should treat both as unreliable. On issue 3, counsel submitted that when evidence of a statement made to a witness seeks to establish the truth thereof, it is treated as hearsay and thus unreliable. He relied on Awuse v. Odili (2005) FWLR (Pt.261). Counsel highlighted on the evidence of PW1, PW2 and PW3 who all told the court that they were told that the deceased died in the hospital the next day. Counsel wondered which of them the trial court believed in the circumstances. He relied on the case of Ikemson v. State (1998) 1 ACLR 80 on what is material evidence. He wondered why the evidence of the persons who took care of the deceased at the hospital and who reported the death of the deceased to PW1 was not called. He relied on Bello v. State (1998) 1 ACLR to say that it is the duty of the prosecution to put all the facts, at its disposal, before the court and not to hide any, that the circumstances of this case makes it in safe to rely on evidence of non-experts, who neither saw the body nor witnessed the death of the deceased, to convict the appellant; that the guilt was not established beyond reasonable doubt.

Counsel also said it was wrong for the trial court to supply explanation for the contradictions in the evidence of prosecution witnesses. He relied on Daniel v. State (1991) 8 NWLR (Pt. 212) and added that the trial court violated the principle of evaluation of evidence.

On issue 4, (which is similar to issue 1), counsel submitted that failure of the prosecution to call the policemen who investigated the matter amounted to denial of appellant fair hearing, as PW7 could not have been cross examined on the contents of the statements he allegedly extracted from the appellant or from any of the prosecution witnesses; that there was no evidence that PW7 ever worked with Inspector Nwoha or Sergeant Nwosu from whom he may have acquired the familiarity in their handwritings. He said that merely saying he was familiar with the handwriting of the said Inspector and sergeant did not confer on him the status of an expert in hand writing; that ascribing weight to the evidence of PW7 was therefore wrong and occasioned miscarriage of justice to appellant.

On issue 5, counsel said the law enjoined the trial court to consider all the defences raised by the accused or which surfaced in the course of trial. He relied on Ahmed v. State (2001)2 ACLR. He argued the appellant had testified that the deceased, in company of PW1 and PW2, had removed his (appellant’s) wooden fence and when he asked why, the deceased pushed him and slapped him, that the deceased pursued him into the room and dragged him out and started beating him, in company of PW2 and PW3, and gave him a bite on his right hand; that it was PW 3 that gave the machete cut to the deceased, mistakenly, while trying to administer the machete cut on him (appellant). Counsel said there was possibility that appellant was acting in self defence of the assault provoked by the deceased and the other prosecution witnesses; that the trial court did not consider those pieces of evidence accruing to the appellant and that led to miscarriage of justice.

On issue 6, counsel submitted that the prosecution failed to prove the essential elements of the offence of murder, thus making the conviction and sentence of appellant unreasonable and unwarranted.

He urged us to resolve the issues for the appellant and allow the appeal.

The respondent’s counsel, G. O. Charles – Olumba (Mrs), Assistant Chief State Counsel (MOJ) Imo State, arguing her issue one (which she said embodied appellants issues 1, 2, 3, 4 and 6), said it is true that a court would have to form opinion upon a point of science or art or as to the cause of death, and that evidence of persons specially skilled in such area, calls for relevance; but such expert evidence is only relevant, not sine qua non, or must in all cases establish the cause of death. She agreed on the essential ingredients of offence of murder as stated by the appellant’s counsel, that to establish that accused person was the cause of death of the deceased, the prosecution is required to produce evidence linking the accused person with the death of the deceased. She relied on the case of Frank Uwagboe v. The State (2008)163 LRCN 92 at 109. She admitted the duty of the prosecution to call evidence to establish the ingredients of the offence. Eme Orji v. The State (2008) 163 LRCN 58 at 88. She said, to do this, the evidence can come by way of confessional statement of the accused person, or by circumstantial evidence, or by an eye witness account of the crime. She relied on Haruna v. A.G. Federation (2012) 209 LRCN 70 at 94; Adekoya v. State (2012) LRCN 125 at 152.

Counsel submitted that the trial court had to consider the totality of the evidence adduced, to be able to determine whether the prosecution had proved the guilt of the accused person beyond reasonable doubt (Eme Orji v. State (Supra); and she relied on Akalezi v. State (1993) 10 LRCN (1993) 2 NWLR (Pt.273) 1 on the meaning of “beyond reasonable doubt).

Court added that the prosecution is not bound to call all witnesses listed on the information sheet and that in homicide case, where the cause of death is obvious, medical evidence ceases to be of practical necessity – eg, where the victim died few hours after the machete cuts by the appellant. She relied on Haruna v. A.G. Federation (supra) at 96 – 97; Ogbu v. State (2007) All FWLR (Pt.361) 1651 at 1674; Akpan v. State (2008) 163 LRCN 186.

Counsel submitted that both the prosecution and the appellant had admitted that the victim of the assault died in the hospital, within the short period he was taken there, following the machete cuts, which parties also agreed the deceased had on that day. She said while eye witness evidence by the prosecution showed that the appellant gave the deceased the machete cuts, appellant himself pointed at the deceased himself and his relative as the cause of the machete cuts. Counsel said it was not mandatory for the medical officer, who performed the autopsy on the deceased to be present in court to give evidence; that production of the medical certificate by either party signed by the medical officer, was sufficient evidence of the fact therein. She relied on Section 42(1) of the Evidence Act,

2011; Edoho v. The State (2011) 192 LRCN 59, she said it was wrong for the trial court to reject the medical report. Counsel relied on the case of Akpan v. State (supra) on the inference that appellant caused the death of the deceased.

On the allegation of contradictions in the evidence of the prosecution, counsel argued that contractions can only be fatal where they are on material points, but where they are only discrepancies same cannot be fatal to the case of the prosecution. She relied on Attah v. the State (2010)183 LRCN 1 at 21. She submitted that what appellant counsel observed about the evidence of PW2 and PW3 were only discrepancies, especially as there was no doubt about the death of the deceased.

On their issue 2, counsel agreed that the defence put forward or open to the defence must be considered in offence of murder, but that the trial court can only consider such defence as disclosed by evidence before the court; that the Court cannot presume or speculate on a possible defence, as appellant counsel suggested. She relied on Edoho v. The State (2011) 192 LRCN 59 at 94-95; she stated that appellant never raised any defence of provocation or of acting in self defence at the trial, as he kept denying being the one that gave the deceased the machete cuts; that even with that, the trial court still considered whether such defences were available to the accused person she referred us to page 111 of the records.

Counsel said the trial court was right and urged us to resolve the issues against the appellant and dismiss the appeal.

RESOLUTION OF ISSUES

I shall consider this appeal on the 2 issues distilled by the respondent as they are more apt, especially as respondent’s issue 1 appears to have summarised appellant’s issues 1, 2, 3, 4 and 6.

To prove a charge of murder, under Section 319 of the Criminal Code, the burden is always on the prosecution, to establish the guilt of accused person, beyond reasonable doubt. That, we have always said, calls for a lot of caution on the part of the court, and imposes a duty of thoroughness on the part of the prosecution, to ensure that evidence is brought to show, unmistakably, that the accused person’s act or omission caused the death of the deceased, and that that act or omission of the accused person was with the requisite intention to cause the death of the deceased, or to cause him grievous bodily harm.

As submitted by counsel on both sides, the following ingredients of the offence of murder, must be established:

(1) Death of the deceased

(2) The death resulted from the act/omission of the accused

(3) The accused person caused the death intentionally, or with requisite knowledge that death or grievous bodily harm was the probable consequence of his act/omission. See the case of Sule v. State (2009) 19 NWLR (pt.1169) 33; Nkebisi v. State 2010) 5 NWLR (pt.1184) 471; Mbang v. State (2010) 7 NWLR (pt.1194) 431; Usman v. State (2011) 4 NWLR (pt.1233) 1; Akpan v. State (2008) 14 NWLR (pt.1106) 72; Musa v. The State (2014) LPELR 22912 (CA); Okon v. The State (2014) LPELR 24018 (CA).

Of course, the above ingredients can be established by:

(a) Production of positive and direct eye witness account of the killing, when it occurred. See Blessing v. FRN (2013) 12 WRN 36; Okon v.The State (2014) LPELR 24018 (CA); OBASI v. The State (2014) LPELR 24013 (CA) (2015)12 NWLR (pt.1473)213.

(b) By cogent circumstantial evidence which points directly, unmistakably and conclusively at the accused person as the one from whom the guilt for the murder can be inferred. See Nasiru v. The State (1999) 2 NWLR (pt.589); Chiokwe v. The State (2005) 5 NWLR (pt.918) 424; Obasi v. The State (2014) LPELR 24013; (2015) 12 NWLR (pt.14 3) 213.

(c) By confessional statement of accused person, adjudged voluntary, even when it is retracted, where the court is satisfied that it accords with the other pieces of evidence before it. See Haruna v. A.G. Fed. (2012) 2009 LRCN 70; (2012) 32 WRN 1; Oseni v. The State (2012) LPELR 7833 (SC); Blessing v. FRN (2015) LPELR 24689 (SC).

From the circumstances of this case and the evidence adduced before the trial court, was the trial court correct in holding that the prosecution had proved, beyond reasonable doubt, that appellant caused the death of the deceased?

In this case the trial court had relied on the evidence of eye witnesses to the commission of the offence, particularly, PW2 and PW3.

PW2, Kelechi Nwosu, a cousin of the appellant (also a cousin of the deceased) had told the court, in evidence in chief:

I remember 22nd day of June, 1992. On that day 22/6/92 I came back from school, I came at about 3.pm. Okenna, Ogedi and I were together, Three of us went to the back yard to pluck pear. Okenna also known as Okechukwu, was on top of the tree while Ogedi and I were on the ground, when the deceased was passing. He was going to stool.

The accused person saw him as he was passing and asked Innocent why he should pass through the place he cultivated cassava. The deceased told him not to address him, as a small boy that he is not a small boy. The deceased went and eased himself and started coming back. The accused saw him coming, ran inside his room and came out with a machete. Kingsley was the owner of the house he ran into to collect machete. As he was rushing towards the deceased, the deceased raised his right hand first, the accused cut him. Deceased raised his left hand the accused cut the skin which was peeled and the bone was seen. That also happened to the other hand. Blood started rushing from the two hands. We raised alarm that Kingsley had killed Innocent. Ogedi and I were shouting because Okenna was still on top of the tree. People inside the compound rushed out. The accused ran into the bush. The deceased began to stagger and on reaching his own house he fell down on the door of his house. Gaius (PW1) and Ngozi used wrapper and bandaged his two hands and PW1 brought out his motorcycle and he and Ngozi took him to the hospital… On the 2nd day the PW1 came back and told us that the deceased had died!

See pages 48 and 49 of the records of Appeal. Under cross examination, PW2 said:

“We were plucking trees when the incident occurred. I saw when he was cutting the deceased with a machete. I said when the accused was rushing to the deceased, with the machete, the deceased turned and tried to defend himself with his right hand and the accused cut his right hand. When the accused was rushing to the deceased I did not alert the deceased or make noise…” (pages 49 and 50 of the records).

PW3 (Okechukwu Nwosu, also called Okenna) Said, in-chief:

“I remember 22/6/92. I was on top of a pear tree plucking pears I was with Kelechi Nwosu and Ogedi who were on the ground collecting the pears. I was plucking. It was about 3.30pm. At the time our brother, Innocent, the deceased was going to the toilet. When he was coming back, Kingsley (accused) asked why the deceased was passing through that road. Accused ran towards the deceased with the machete which he collected from his house. As the deceased turned, the accused gave him machete cut. We started shouting that he had killed dede Innocent – the deceased. When the people in the compound rushed to the scene of the incident, the accused ran with the machete inside the bush. The deceased staggered and when he reached the door steps of his house, he fell down. Blood was rushing out from the hands where he had the matched cuts. Our brother Gaius (PW1) used wrapper and towel and tied the hands of the deceased… One of our brother’s wife called Ngozi comes (sic) back the following morning and told us that the deceased had died.” (See page 51 of the records).

Under cross examination, he said:

“…when accused confronted the deceased as to why he was passing through that place, the accused was not carrying a machete. He ran back and took the machete… what I told the court is what I told the police…”

The above evidence were not assailed by cross examination and the PW1 corroborated the PW2 and PW3, as to the injuries and taking the injured Innocent to the hospital and the role he played in that regard. He also confirmed that Innocent died the next day in the hospital, from the information he got from those who stayed the night with the deceased in the hospital. See pages 44 to the records of appeal.

PW7 was the police officer, who investigated the murder case. He said he arrested the accused person, following the report that he assaulted the said Innocent by giving him machete cuts. He said:

“Following his (PW5’s) report, I arrested the accused. I then kept the accused person in the cell. I recorded statement from (PW5) – Samuel Nwosu. He and I came to the General Hospital Owerri (now Federal Medical Centre). There we met the deceased kept in the mortuary. I observed severe cuts on the two hands.” (Page 62 of the records).

Appellants’ defence, as per his evidence as DW1, was

“… On 22nd June 1992, between 4.pm and 5pm, I was sitting in front of our house. I saw that Innocent, Bartholomew and Samuel, Okechukwu, Ikechukwu and Ogedi coming towards where I was sitting. In our family where we were living before and where we now live is about one pole apart even though it is in the same compound. We cultivated yam and maize in front of our house. We secured the place with wooden fence so that goats will not destroy what we planted (sic)’ On reaching that place, Innocent and the others started removing the wooden fence. When I saw them, I asked them why they were removing those things. Since we started living in that place we have not disputed that portion with anybody. When I asked the question, Innocent did not answer the question but rather pushed and slapped me. Ogedi tackled me and I fell down. Okechukwu held me and knocked me on the head. Innocent said that he came back because of me and I would die that day. Samuel and Bartholomew were standing there and told me that I would die that day. After beating me for a while, I seized a little opportunity I had and ran into the room. Innocent pursued me into the room. He dragged me out from the room and they started beating me again. Before Innocent dragged me out he first went into his house, changed his dress and came back and dragged me out. Innocent threw our bicycle on top of out (sic) thatched house and the bicycle fell down. Ikechukwu held me on the grand(sic) and continued beating me and said that I did want to die, but I must die that day. Ikechukwu rushed and I did not know that he went to fetch a machete. Innocent gave me a human bite on the right hand. Somebody shouted hei, I dodged and he macheteed Innocent. That was when I had an opportunity and I ran away. I reported to the Police Ulakwu and lodge a complaint…” (See pages 70 to 71 of the records of appeal)

He was cross examined.

Of course, the trial court did not believe him, and his story did not sound plausible, especially when he tried to present himself as the victim; that all the others (6 men, including those who were not even at the scene) were against him and had attacked him! He did not state any tangible reason for the attack. He claimed to have been pursued by

Innocent (the deceased) into his (appellant’s) room, when he had opportunity to escape; that Innocent dragged him out of the room and started beating him again; that before Innocent dragged him out, he first went into his house, changed his dress, and came back and dragged him out!

I am trying to reconstruct the scene, to imagine how that could be practicable – appellant had opportunity to escape from organised attack by 6 men; he ran into his room and is pursued into the room by Innocent (deceased), but before Innocent dragged him out, the man suspended the pursuit (after he had already entered the room!), went to his (deceased) house and changed his dress, and came back to the room to drag him (appellant) out!

What did he do, when the deceased went to his house to change? Why did he not escape then, if he was the victim?

Meanwhile, there was evidence, even from the police who investigated the murder, and from PW1 that Samuel Nwosu (PW5) was at his place of work and was not at the scene of the incident! See page 45 of the records. There was no defence of provocation, as appellant never admitted dealing the machete cuts on the deceased or acting in self defence.

He admitted the deceased was given machete cut, but alleged it was inflicted on him, by mistake, by one of those who attacked him (appellant).

There is no doubt that appellant dealt the machete cuts on Innocent, following their altercation, over what appeared to be a trivial quarrel. The deceased died in the hospital the next day, following the machete cuts injuries. Appellant’s counsel had argued that the absence of medical report, (autopsy report conducted on the body of the deceased) was fatal to the case of the prosecution. Evidence had shown that the report was available but it could not be admitted, because the doctor, who conducted the medical examination on the body of the deceased, was not available to tender it.

But the law is well settled on this issue, that medical evidence is not sine qua non for establishment of offence of murder, where the death of the deceased occurred on the spot or soon after the attack by the assailant. See the case of Adekunle v. State (2006) 14 NWLR (pt.1000) 717; Michael v. State (2008)13 NWLR (pt.1104) 361; Onyia v. State (2006) 11 NWLR (Pt.991) 267.In the case of Galadima v. State (2013) LPELR – 20402 (CA) it was held:

“It is settled law that in a murder charge, much as medical evidence is desirable to establish the cause of death, it is clearly not a sine qua non, as cause of death may be established by sufficient satisfactory and conclusive evidence, showing beyond reasonable doubt that the death of a deceased resulted from the particular act of a defendant. Thus, where death is instantaneous or nearly so, medical evidence ceases to be of any practical or legal necessity – Essien v. State (1984) 3 SC 14; Agu v. State (1993) 6 NWLR (Pt.229) 303; Akpan v. State (2008) 14 NWLR (pt.1106) 72.

In the case of Adekunle v. State (Supra) the deceased was shot by the defendant and was rushed to the hospital for treatment and died the next day. The Supreme Court held that medical evidence was unnecessary; that the gun shot was the cause of death. Also in Ben v. State (2006) 16 NWLR (pt.1006) 582, where the deceased was struck on the head with a stick and he fell down, unconscious and never regained consciousness until he was pronounced dead, some hours later in the hospital, the Supreme Court held that the trial court rightly found that the cause of death was the lethal blow to the head of the deceased, without a need for medical evidence.

In this case, at hand, evidence showed, clearly, that appellant dealt machete cuts on the two hands of the his victim (Innocent), as he (victim) tried to use the hand (each time) to ward off the inexplicable machete attacks on his body; the skin were peeled exposing bones and, as expected, blood gushed out and as the PW1 said:

“He was lying down in a pool of blood. His right hand was cut from the arm and left wrist. I saw all its arteries cut.” (Page 45 of the records)

PW1 and others used wrapper and towel to tie the injured hands and took him (victim) to the hospital for treatment. He died the next day in the hospital. I do not think it required any medical report to link the death to the brutal machete injuries inflicted on the deceased by appellant the previous day, draining blood from his body. It is obvious, from the circumstances of the death of the deceased that it was the attack (machete cuts inflicted) on the deceased by the appellant that caused his death. Medical evidence could therefore be dispensed with, in such circumstances, as the learned trial court held.

Of course, there was no doubt that the deceased died as a result of the machete cut injuries inflicted on him. Even the accused person (appellant), admitted that the deceased died as a result of the machete cuts he received. He said in exhibit P4:

“I am not the person who cut Innocent Nwosu with the said knife that killed him on 22/6/92.”(See page 108, and page 117, where exhibit P4 is reproduced).

I therefore resolve issue 1 against the appellant.

Issue 2 had alleged that the trial court did not consider the defence raised or open to the appellant at the trial.

I think appellant’s arguments on this point was lame when the counsel submitted in paragraph 4.52 of the brief, as follows:

“There are possibilities that the appellant was acting in self defence of the assault provoked by the deceased and other prosecution witnesses. A likely conspiracy among the prosecution witnesses, particularly PW2, PW3 and PW5, may have degenerated into the mishap.”

Of course, learned counsel for the appellant knows or should know, that a defence to a criminal charge of murder, is not a matter of conjecture or assumption, like there are possibilities Appellant was acting in self defence…’ Such defence has to be, expressly, pleaded or stated by the accused person and evidence led to prove such acts of provocation or acting in self defence, and the court is expected to weigh the act(s) of self defence, whether it was commensurate with the danger posed by the opponent, to justify the force used by him (appellant) to ward off the attack (if any).

See Mgboko v. the State (1972) LPELR – 1872 (SC); (1972) 2 SC (Report) 113; Nwuzoke v. State (1988) NWLR (pt.72) 529; (1998) LPELR – 1235 (SC) – where the Supreme Court said:
“One point that must be emphasized with respect to the defence of self defence in cases of murder in our law is that it is a child of necessity. It is available to a defendant only when he proves that he was, at the time of the killing, in reasonable apprehension of death or grievous harm and that it was necessary at the time to use the force which resulted in the death of the deceased, in order to preserve himself from the danger.

The force used by the defendant must also be shown to be proportionate to the force used or imminently threatened against him and reasonable in the circumstances in which it was used. There must be reasonable grounds for the accused person to believe that the only way by which he could escape death or grievous bodily harm to himself was to kill the assailant.

It is, therefore, unimaginable that appellant could resort to the defence of self defence or of provocation, when he never admitted the offence that he did the act (macheting of the deceased) which led to the death of the deceased! By, stoutly, denying giving the machete cuts to the deceased and alleging that another person did (by mistake), appellant was closing every door of defence of provocation or of acting in self defence against himself, by so doing, and could not have raised such defence. It is therefore not an honest submission, to say that the trial court did not consider possible defences opened to appellant at the trial.

Despite the blunders by the appellant at the trial, by his blind denial of dealing the machete cuts on the deceased, thereby forfeiting any defence of provocation, the trial court (on page 111 of the records) still went out of its way to consider possible defence of provocation, when it said:

The defence of provocation will be available to a person who killed in reaction to the provocation given him. If the conditions are satisfied the provocation will reduce the murder to manslaughter. In this case the accused denied giving the deceased the machete cuts that resulted in the death of the deceased. Since he denied committing the offence it cannot be held that the excuse of justification for committing such offence, is available to him whether pleaded or not pleaded.

I agree completely with the learned trial Judge and I therefore resolve the issue 2, too, against the appellant, and hold that the appeal is devoid of merit. I dismiss it and confirm the conviction and sentence of the appellant.

AGUBE, JCA

I have read in advance the very erudite Judgment of my learned brother I.G. MBABA, JCA and I agree with his conclusion that the prosecution established with credible evidence, the guilt of the accused/appellant for murder and he was accordingly convicted and sentenced to death. I hereby dismiss his appeal and affirm the sentence of death imposed on him.

IGE, JCA

I agree.

APPEARANCES

E. C. ONUMAJURU, ESQ. WITH HIM A. S. OLUSHOLA, ESQ.

FOR APPELLANT

G. O. CHARLES-OLUMBA (MRS) ACSC, MOJ OWERRI WITH HER NKECHI OBIOHA (SSC)-

FOR RESPONDENT