OKPA v THE STATE

OKPA v THE STATE


IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, 28TH APRIL, 2017


Appeal No: SC.413/2013
CITATION:

Before Their Lordships:

WALTER SAMUEL NKANU ONNOGHEN, JSC

MUSA DATTIJO MUHAMMAD, JSC

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

EJEMBI EKO, JSC

SIDI DAUDA BAGE, JSC


BETWEEN

BASSEY OKPA

(APPELLANT)

AND

THE STATE

(RESPONDENT)


PRONOUNCEMENTS


A. APPEAL
1. Fresh Points on Appeal – Instances in which the Supreme Court will entertain fresh points on appeal

Conditions under which the Supreme Court will entertain fresh points raised for the first time before it

“Order 6 Rule 5(b) under which the appellant brought his notice of intention to contend that the charge he was tried and convicted for is incompetent reads:-
“5(b) the brief which may be settled by counsel, shall contain what all in the appellant’s view, the issues arising in the appeal. If the appellant is abandoning any point taken in the Court below, this shall be so stated in the brief. Equally, if the appellant intends to apply in the course of the hearing for leave to introduce a new point not taken in the Court below this shall be indicated in the brief.”

Undoubtedly, the foregoing rule gives this Court the discretion to allow the appellant to raise and argue such fresh issue or question that had not been raised and determined by the two Courts below particularly where the fresh issue or question raises a substantial point of law, substantive or procedural and the determination of the question of the question or issue does not require further evidence. Thus at such an appropriate instance the Court may allow a fresh point to be raised to avoid miscarriage of justice. In Okenwa v. Military Governor, Imo State (1996) 6 NWLR (PT.455) 394 at 408, this Court restated the principles and conditions for permitting a party to raise a fresh point on appeal thus:-1. Where the point of law ex-facie discloses that the Court has no jurisdiction.

2. Where the point of law raised arose out of the decision of the Court of first instance and could not have been raised earlier in that Court.
3. Where the point of law raised involves the interpretation of documents relevant to the determination of the case before the Court.
4. Where all materials necessary for the determination of the point of law raised are present in the records of the Court and
5. Where the Court is satisfied that the evidence is such that establishes beyond doubt, that the facts, if fully investigated would have supported the new plea.
(Underlining supplied for emphasis).

In the instant appeal where the notice the appellant gives is in respect of the competence of the initiating process, the charge on the basis of which the appellant is tried, convicted and sentenced, the jurisdiction of the two Court and extension this Court, is ex-facie made an issue and, furthermore, all the materials necessary for the determination of the point of law raised are available in the record of appeal, the appellant being entitled is accordingly hereby obliged to raise the fresh point. See Omnia (Nig) Ltd v. Dyktrade Ltd (2007) 15 NWLR (Pt.1058) 578 at 627; Ogbu v. State (2007) 5 NWLR (Pt.1028) 635; Helen Johnson Udo v. The Registered Trustees of the Brotherhood of the Cross and Star (2013) LPELR-19910 (SC) and Babawuro Usman v. The State.” Per MUHAMMAD, J.S.C. read in context

2. Interference with Concurrent Findings of Fact – Attitude of the Supreme Court to interference with concurrent findings of fact by the lower courts

Instances where the Supreme Court will not interfere with concurrent findings of fact(s) made by Lower Courts

“It is trite that evaluation of evidence and ascription of probative value to same is essentially within the province of the trial Court. It is undoubtedly the duty of that Court to assess witnesses, form impression about them and evaluate their evidence having regard to the impression it formed of the witnesses. In the case at hand I am satisfied that the Lower Court, having found that the trial Court’s conviction and sentence of the appellant is as a result of proper evaluation of the evidence before it, is right to have affirmed same. The trial Court has, indeed, not only assessed and gave value to the evidence at its disposal, the Court, in the course of the exercise, leaves no one in doubt as to how and why, in arriving at its conclusions, it preferred the evidence of the respondent to that of the appellant. In such an instance it is never the function of an appellate Court to set in and re-evaluate evidence as evaluation has already been properly carried out. See Alake V. The State (1992) 9 NWLR (Pt.265) 260 and Mogaji v. Odofin (1978) 4 SC 1. This Court, learned respondent’s counsel is right, is very hesitant at interfering with concurrent findings of the two Lower Courts and indeed lacks the jurisdiction of interfering in the instant case where their findings have not been shown to be perverse. See Isibor v. State (2002) 4 NWLR (Pt.758) 741, Maiyaki v. State (2008) 15 NWLR (Pt.1109) 173 and Itu v. The State (2016) LPELR – 26063 SC).”Per MUHAMMAD, J.S.C. read in context

3. Interference with Concurrent Findings of Fact – Exceptions to the general rule of noninterference by the Supreme Court with the concurrent findings of the lower courts

Instances where the Supreme Court will not interfere with concurrent findings of fact(s) made by Lower Courts

“It is settled law that the Supreme Court does not make a practice of interfering with the concurrent findings of facts by the Lower Courts except such findings have been demonstrated to the satisfaction of the Court to be perverse, or erroneous in substantive or procedure law etc, which has not been shown to have occurred in this case by appellant.” Per ONNOGHEN, J.S.C. read in context

4. Interference with Concurrent Findings of Fact – Attitude of the Supreme Court to interference with concurrent findings of fact by the lower courts

Instances where the Supreme Court will not interfere with concurrent findings of fact(s) made by Lower Courts

“Where the trial Court has made a finding of fact, upon proper evaluation of the facts available to it, and the intermediate Court has affirmed the findings of fact upon a further evaluation or re-evaluation of the said facts, this Court, unless the findings of facts are shown to be perverse, will not interfere with such findings of fact. The Appellant, having not, brought his case within the exception, has not convinced me to interfere with the concurrent findings of fact.” Per EKO, J.S.C. read in context

B. CRIMINAL LAW
5. Conviction – Powers of an Appellate court to set aside a conviction on the basis of conviction under a wrong section or wrong law

Whether an appellate court can set aside the conviction of an accused person based on the fact that he was convicted under a wrong section or wrong law

“I entirely agree with learned respondent’s counsel that appellant’s contention is grossly misconceived. Indeed, learned respondent’s counsel is right, that whereas Section 316(1) defines the offence of murder for which the appellant is convicted, Section 319(1), on the other hand, prescribes the punishment for the offence. The two sections are herein under reproduced for their relevance and ease of reference:-

Section 316 and 319 of the Criminal Code Law. “316(1) Definition of murder
Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:-
(1) If the offence intends to cause the death of the person killed, or that of some other person.”
“319(1) Punishment of murder

(1) Subject to the provisions of this Section any person who commits the offence of murder shall be sentenced to death.”
A perusal of the foregoing, learned respondent’s counsel cannot be faulted, takes the entire steam off the appellant. From the record of this appeal, it is glaring that the appellant is charged, tried and convicted for murder contrary to Section 319(1) of the

Criminal Code which is the Penal Section. This alone, ordinarily, determines appellant’s contention. Learned respondent’s counsel is right in his further submission that appellant’s refusal to take into account the provisions of Sections 160, 161 and 162 of the applicable Criminal Procedure Law is fatal to his cause. The Sections are also herein under reproduced for ease of reference:-Sections 160, 161 and 162 of the Criminal Procedure Law.

“160. Effect of error

No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.” “161. Objection to charge to be taken at plea

Any objection to a charge for any formal defect on the fact thereof shall be taken immediately after the charge has been read over to the accused and not later.” “162 (d). Objections cured by verdict

No judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the accused or during the progress of the trial might have been amended by the Court nor..” (Underlining supplied for emphasis).

It is in the application of the foregoing clear and unambiguous adjectival provisions that this Court has, in a plethora of its decisions, maintained that it does not matter under which section of the law, the definition or the penal section, an appellant is convicted. The conviction endures on appeal once it is shown that the facts for which the appellant is convicted constitute an offence known to law. It does not matter if the conviction is under the wrong section of or even an entirely wrong law, once the facts leading to the conviction constitute an infraction provided for by a written law, the appellate Court may not interfere with the conviction. It is late at that stage for the Court to interfere with the conviction notwithstanding such defect in the charge that could have, on account of any objection after the charge was read over to the appellant or in the course of the trial, been rectified by the trial Court. See Alhaji Mujahid Dokubo-Asari V. Federal Republic of Nigeria 5-6 SC 150 and Akinola Olatubosun V. State (2013) LPELR – 20939 (SC) and Boniface Adenike v. State (2015) LPELR – 24281 (SC). In the case at hand where appellant’s contention in relation to the charge under which he is convicted is wholly unfounded, the contention is hereby entirely discountenanced.” Per MUHAMMAD, J.S.C. read in context

6. Offence of Murder – Elements to be proven by the prosecution in a murder charge

Essential ingredients that must be proved by the prosecution to ground a conviction for murder

“It is well settled that to convict a person charged with murder as defined under Section 316(1) of the Code, the prosecution must prove beyond reasonable doubt the following:-
(1) the death of a human being.

(2) that the death was caused by the act of the appellant.

(3) the act(s) was/were done with the intention of causing death or

(4) that the appellant knew that death would be the probable consequence of his act.” Per MUHAMMAD, J.S.C. read in context

7. Charges – Effect of charging under a definition section of the Criminal Code instead of the penal section

Whether the fact that an accused person is charged under a definition section of the Criminal Code instead of the penal section will vitiate the trial and conviction

“The appellant was charged with murder contrary to Section 319(1) of the Criminal Code, Vol 3 Cap 16 Laws of Cross River State of Nigeria 2004. He was alleged to have murdered one Efa Ephraim on 23rd April 2009 along Target Road, Calabar within the Calabar Judicial Division. Learned counsel for the appellant is quite correct in his observation that Section 319(1) of the Criminal Code of Cross River State is the punishment Section for the offence while Section 316 of the Code creates the offence of murder. The question to be asked is whether the mere fact that the appellant was charged under the definition Section of the Criminal Code is sufficient to vitiate his trial and conviction?

Sections 166 and 167 of the Criminal Procedure Law provide:

“166. No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.
167. Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and NOT LATER.” (Underlining mine for emphasis)
It must be noted that the appellant’s plea was taken on 23/3/2010. The record shows that the charge was read over to him in English Language and he seemed to perfectly understand same before pleading not guilty thereto. He was represented by counsel on that day and throughout the proceedings up till the date of judgment. No objection was taken to the charge. Indeed the issue is being raised before this Court for the first time. There was also no suggestion throughout the trial that the appellant was misled by the charge made against him. Having regard to the provision of Section 166 and 167 of the Criminal Procedure Law reproduced above, it is clear that on the basis of the failure to act timeously and in the absence of evidence that the appellant was misled by the charge, the appellant’s contention that the charge against him was defective ought to be discountenanced without further ado. Furthermore, Section 168 of the Criminal Procedure Act provides inter alia, that no judgment shall be reversed on the ground of any objection, which, if stated after the charge was read over to the accused or during the progress of the trial, might have been amended by the Court. I therefore agree that there is no substance in the appellant’s contention. He has failed to show that he has suffered any miscarriage of justice in the circumstance. The contention is accordingly disregarded.” Per KEKERE-EKUN, J.S.C. read in context

8. Charges – Effect of failure to object timeously to a defect in a charge

Appropriate time to object to a formal defect in a charge; the consequence of failure to do so

“Section 160 of the Criminal Procedure Law (CPL) provides that no error in stating the offence or its particulars in the charge “shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.” The Appellant has not shown that the alleged error on the face of the charge has, in fact, misled him and/or has caused a miscarriage of justice to him.

Failure of the Appellant to timeously object to the defect on the face of the charge amounts to waiver by virtue of Section 161 of the CPL. The effect of that is estoppel by conduct which, by dint of Section 169 of the Evidence Act, 2011, estops the Appellant, as the accused person, from complaining about the said defect at this appeal stage of the proceedings.” Per EKO, J.S.C. read in context

9. Defence of Accident – Definition and nature of defence of accident

Meaning and nature of a defence of accident

“An accident is defined by this Court as the “Result of an unwilled act, and means an even without the fault of the person alleged to have caused it.” Per Karibi-Whyte, JSC (as he then was) in ALIU BELLO & ORS VS ATTORNEY-GENERAL OF OYO STATE (1986) 12 S.C. 1 at 73. Another very respected jurist of this Court, Oputa JSC, (as he then was and of a blessed memory) took it further, by considering the phrase “an event which occurs by accident.” He stated as follows:-

“It seems to me that the expression “an event which occurs by accident” used in Section 24 of Cap.42 of 1958 describes an event totally unexpected by the doer of the act and also not reasonably to be expected by my ordinary person, the reasonable man of the law. In other words, the test is both subjective from the stand point of the doer of the act, as well as objective from the stand point of the ordinary man of common prudence. The event should, to qualify as accidental, be a surprise both to the doer of the act that caused it, and a surprising thing to all and sundry. An event is thus accidental. It is neither subjectively intended nor objectively foreseeable by the ordinary man of reasonable prudence.” Per Oputa JSC, in BAYO ADELUMOLA VS THE STATE (1988) 1 NWLR (Pt.73) at Pages 639-693.” er BAGE, J.S.C. read in context

C. EVIDENCE
10. Burden of Proof – Duty of a party relying on improper evaluation of evidence to prove it

The onus on a party who relies on improper evaluation of evidence as a ground to set aside a judgment

“My lords, it is the duty of the appellant herein, who relies on improper evaluation of evidence to set-aside the concurrent decisions of the two Courts below, to identify the improperly evaluated evidence and to show that if the error he alleges is corrected the conclusion reached by the two Courts would not only be different but in his favour.” Per MUHAMMAD, J.S.C. read in context


LEAD JUDGMENT DELIVERED BY MUHAMMAD, JSC


This is an appeal against the judgment of the Court of Appeal, Calabar Division in appeal No. CA/C/82C/2012 delivered on the 29th April 2013, affirming the conviction and sentence of the appellant by the High Court of Cross River State, coram Obojor A. Ogar J, for the murder of Efa Ephraim contrary to Section 319(1) of the Criminal Code, Volume 3, CAP C16 Laws of the Cross River State of Nigeria 2004. The brief facts that brought about the appeal are supplied at once below.

The appellant was arraigned before the High Court of Cross River State sitting at Calabar on a one count murder charge contrary to Section 319(1) of the Cross River State Criminal Code. This was on the 23rd March 2010. He pleaded not guilty and the matter went into a full trial. To establish their case, the respondent called three witnesses, while the appellant testified in his own defence.

The prosecution’s case is that the appellant, a police constable attached to the Atakpa Police Division Calabar, and other policemen led by Inspector Isah Gambo, were on a routine check along Target road by Mary Slessor Avenue, Calabar, Cross River State, on 23rd April, 2009. Efa Ephraim, the deceased, was in company of his two friends, Archibong Okon, the owner and driver of the Mazda car with registration No.DZ 279 SMK (Lagos) and Enefiok John. The two friends gave evidence at the trial Court as PW2 and PW3 respectively.

As the three drove along Target road towards E. E. Okon filling station by Mary Slessor Avenue, the prosecution asserts, they met the police team on patrol. They stopped at the check point and proceeded after they had been checked and permitted to go. Soon after they took off from the check point, it is further asserted, they heard a voice ordering them to stop and a sudden gunshot immediately thereafter. Moments after the gun shot, the deceased who was sitting at the back of the car, alerted the other two, PW2 and PW3, in a dwindling voice, that he had been shot by the police. PW2 immediately stopped the vehicle by the Mary Slessor round about to attend to the deceased who, by which time, could no longer speak.

Realizing that Efa Ephraim was already dead, PW2 called in Mr. Bassey Effiom, the president of their cub, the Apex Sports Club Calabar and Barrister Efita Ephraim, the deceased’s elder brother, on whose arrival they all drove back to the police check point along with the deceased. On arrival at the check point, where other vehicles and motor cycles were being routinely checked, a motor cyclist at once pointed at the appellant as the person who fired the gun at them. Asked why he shot at the vehicle by the policeman who earlier checked their vehicle, it is the prosecution’s further case, the appellant grew hostile threatening to shoot anybody who dared move near him. He at once corked his gun. Another police officer ran and removed the magazine from appellant’s gun. Two pick-up loads of policemen drove and whisked away the appellant. At the permanent site of the University of Calabar Teaching Hospital, where the deceased was taken to, the prosecution further asserts, a doctor confirmed Efa phraim dead. The post mortem report, exhibit B, certify that the deceased died of a gunshot injury.

Appellant’s case is that the gun discharged itself by accident; that the vehicle carrying the deceased, which was recklessly driven and at a top speed almost ran into them by the bend where they stood immediately after the check point; that in a spontaneous reaction, the appellant further asserts, he jacked forward towards the vehicle at which moment the rifle he held by his shoulder accidentally discharged itself and thus the death of the deceased.

The trial court disbelieved the appellant and in finding for the respondent convicted and sentenced the appellant as charged. Appellant’s appeal at the Lower Court was dismissed. He comes to this Court on a further appeal by his notice filed on 23rd May 2013 containing two grounds.

At the hearing of the appeal, having filed and exchanged their briefs earlier, parties adopted and relied on same as their arguments for and against the appeal. Appellant’s brief contains a notice of intention to contend at the hearing of the appeal that the charge the appellant was tried and convicted for is incompetent. The notice is issued pursuant to Order 6 Rule 5 (b) of the Supreme Court Rules 1999 and the inherent powers of the court.

On their notice of contention against the charge appellant is tried and convicted upon, learned appellant’s counsel submits that the charge not being pursuant to the penal section, is incompetent and, as the originating process, the incompetent process cannot give rise to competent proceedings and decision thereon. Learned counsel relies on Madukolu v. Nkemdilim (1962) ALL NLR (Pt.2) 581, AG Federation v. Guardian Newspaper Ltd (1999) 9 NWLR (Pt.618) 187 and Kida v. Ogunmola (2006) 13 NWLR (Pt.997) 337.

Charging the appellant under Section 319(1) of the Criminal Code, a definition section, it is contended, offends, Section 151(1) which requires that the charge must, beyond stating the offence the appellant is charged, state the section of law against which the offence has been committed. Relying on the decisions in Federation V. Isong (1986) QLRN 75 and Amayo V. The State (2001) 8 NWLR (Pt 745) 251, learned appellant’s counsel urges that this Court so hold and set aside the null and void decisions of the two Courts arrived at in the absence of the necessary jurisdiction.

Responding to appellant’s foregoing arguments, learned respondent’s counsel submits that appellant’s contention that Section 319(1) is the definition section of the law is grossly misconceived. The reality, it is further contended, is that the definition section for the offence of murder is Section 316 rather than Section 319(1) the appellant wrongly contends it to be. In any event, had learned appellant’s counsel adverted his mind to Sections 166 – 168 of the Criminal Procedure Act, it is submitted, he would have realized that the contention is belated and unavailing. Appellant’s inability to establish that he had been misled by the defect in the charge, learned counsel further submits, necessitates that his contention be ignored. Learned respondent’s counsel relies on Gozie v. State (2000) 10 NWLR (Pt.675) 430.

Order 6 Rule 5(b) under which the appellant brought his notice of intention to contend that the charge he was tried and convicted for is incompetent reads:-

“5(b) the brief which may be settled by counsel, shall contain what all in the appellant’s view, the issues arising in the appeal. If the appellant is abandoning any point taken in the Court below, this shall be so stated in the brief. Equally, if the appellant intends to apply in the course of the hearing for leave to introduce a new point not taken in the Court below this shall be indicated in the brief.”

Undoubtedly, the foregoing rule gives this Court the discretion to allow the appellant to raise and argue such fresh issue or question that had not been raised and determined by the two Courts below particularly where the fresh issue or question raises a substantial point of law, substantive or procedural and the determination of the question of the question or issue does not require further evidence. Thus at such an appropriate instance the Court may allow a fresh point to be raised to avoid miscarriage of justice. In Okenwa v. Military Governor, Imo State (1996) 6 NWLR (PT.455) 394 at 408, this Court restated the principles and conditions for permitting a party to raise a fresh point on appeal thus:-
1. Where the point of law ex facie discloses that the Court has no jurisdiction.
2. Where the point of law raised arose out of the decision of the Court of first instance and could not have been raised earlier in that Court.

3. Where the point of law raised involves the interpretation of documents relevant to the determination of the case before the Court.

4. Where all materials necessary for the determination of the point of law raised are present in the records of the Court and

5. Where the Court is satisfied that the evidence is such that establishes beyond doubt, that the facts, if fully investigated would have supported the new plea.

(Underlining supplied for emphasis).

In the instant appeal where the notice the appellant gives is in respect of the competence of the initiating process, the charge on the basis of which the appellant is tried, convicted and sentenced, the jurisdiction of the two Court and extension this Court, is ex-facie made an issue and, furthermore, all the materials necessary for the determination of the point of law raised are available in the record of appeal, the appellant being entitled is accordingly hereby obliged to raise the fresh point. See Omnia (Nig) Ltd v. Dyktrade Ltd (2007) 15 NWLR (Pt.1058) 578 at 627; Ogbu v. State (2007) 5 NWLR (Pt.1028) 635; Helen Johnson Udo v. The Registered Trustees of the Brotherhood of the Cross and Star (2013) LPELR-19910 (SC) and Babawuro Usman v. The State.

I entirely agree with learned respondent’s counsel that appellant’s contention is grossly misconceived. Indeed, learned respondent’s counsel is right, that whereas Section 316(1) defines the offence of murder for which the appellant is convicted, Section 319(1), on the other hand, prescribes the punishment for the offence. The two sections are herein under reproduced for their relevance and ease of reference:-

Section 316 and 319 of the Criminal Code Law.

“316(1) Definition of murder

Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:-

(1) If the offence intends to cause the death of the person killed, or that of some other person.”
“319(1) Punishment of murder

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

A perusal of the foregoing, learned respondent’s counsel cannot be faulted, takes the entire steam off the appellant. From the record of this appeal, it is glaring that the appellant is charged, tried and convicted for murder contrary to Section 319(1) of the Criminal Code which is the Penal Section. This alone, ordinarily, determines appellant’s contention. Learned respondent’s counsel is right in his further submission that appellant’s refusal to take into account the provisions of Sections 160, 161 and 162 of the applicable Criminal Procedure Law is fatal to his cause. The Sections are also herein under reproduced for ease of reference:-Sections 160, 161 and 162 of the Criminal Procedure Law.

“160. Effect of error

No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.”

“161. Objection to charge to be taken at plea

Any objection to a charge for any formal defect on the fact thereof shall be taken immediately after the charge has been read over to the accused and not later.”

“162 (d). Objections cured by verdict

No judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the accused or during the progress of the trial might have been amended by the Court nor..” (Underlining supplied for emphasis).

It is in the application of the foregoing clear and unambiguous adjectival provisions that this Court has, in a plethora of its decisions, maintained that it does not matter under which section of the law, the definition or the penal section, an appellant is convicted. The conviction endures on appeal once it is shown that the facts for which the appellant is convicted constitute an offence known to law. It does not matter if the conviction is under the wrong section of or even an entirely wrong law, once the facts leading to the conviction constitute an infraction provided for by a written law, the appellate Court may not interfere with the conviction. It is late at that stage for the Court to interfere with the conviction notwithstanding such defect in the charge that could have, on account of any objection after the charge was read over to the appellant or in the course of the trial, been rectified by the trial Court. See Alhaji Mujahid Dokubo-Asari V. Federal Republic of Nigeria 5-6 SC 150 and Akinola Olatubosun V. State (2013) LPELR – 20939 (SC) and Boniface Adenike v. State (2015) LPELR – 24281 (SC).

In the case at hand where appellant’s contention in relation to the charge under which he is convicted is wholly unfounded, the contention is hereby entirely discountenanced. I will now proceed to consider the merit of the appeal.

A single issue has been distilled at page 8 of the appellant’s brief as having arisen for the determination of the appeal. The issue reads:-

“Whether the Appellant’s defence of accident was properly considered by the Court below before affirming the judgment of the trial Court.”

Appellant’s foregoing issue has been adopted by the respondent at page 10 of its brief as calling for determination in the appeal.

On their lone issue, learned appellant’s counsel submits that the appellant is entitled to avail himself such defences evidence reveal and the Court is obliged to consider the defence express or implied before convicting the appellant. Failure to consider the disclosed defence, it is submitted, is fatal to the decision of the trial Court as affirmed by the Lower Court. Learned counsel relies on Maiyaki V State (2008) 15 (2008) NWLR (Pt.1109) 173 at 209 – 210,

Appellant’s defence as shown particularly at pages 53-54 of the record, it is submitted, is that of accident. At page 48 lines 16-17, PW1, the IPO, it is further submitted, corroborates appellant’s evidence to the effect that the death of the deceased resulted from the accidental discharge of the rifle in appellant’s possession. Relying on Section 24 of the Criminal Code, definition of the word “accidental” in Collins English Dictionary (1985)

Edition), Black’s Law Dictionary (9th Edition) and the decisions in Amayo v. The State (2001) 18 NWLR (Pt.745) 251 at 203, Chukwu v. State (1992) 1 NWLR (Pt.217) 255 and Adelumola v. The State (1988) 1 NWLR (Pt.73) 683 at 692, learned counsel urges the resolution of the issue in appellant’s favour and allowing the appeal in consequence thereof.

On the lone issue, learned respondent’s counsel concedes that the defence of accident the appellant asserts is indeed provided for by Section 24 of the Criminal Code and if established, entirely absolves the appellant. The appellant who, however, it is contended, does not come within the purview of the law is not entitled to the defence the law provides. The authorities learned appellant’s counsel refers this Court to, it is contended, are cited out of context. The fact of the various cases and the pronouncements of the Courts on the facts, it is argued, are entirely against the appellant. The testimonies of PW2 and PW3 at pages 49 and 51 of the record respectively, it is further argued, controvert appellant’s evidence both in exhibit C, his extra-judicial statement, and his testimonies at trial reflected at pages 53 -55, that the death of the deceased is the result of the accidental discharge of the rifle in his possession.

In the case at hand where the credibility of the witnesses on both sides is in issue, learned respondent’s counsel further contends, the trial Court’s findings as affirmed by the Lower Court are not easily interfered with on appeal. The evaluation of facts by and the trial Court’s conclusion resulting from the evaluation, submits respondent’s counsel, is faultless. Equally relying on, inter-alia, Adelumola v. The State (supra) and Chukwu V. State (supra) learned respondent’s counsel submits that the reasonable inference any tribunal will draw from the facts of this case is that appellant is not entitled to the defence he pleads. Further relying on Eze Ibeh v. The State (1997) 1 NWLR (Pt.484) 632 at 644, learned counsel urges that the concurrent findings of the two Courts below that are not perverse be left to endure. On the whole, learned counsel urges that the appeal be dismissed.

Now, the issue the appeal raises is a very narrow one. The appellant is charged, tried and convicted under Section 319

(1) of the Cross River State Criminal Code for the murder of Efa Ephraim. It is well settled that to convict a person charged with murder as defined under Section 316(1) of the Code, the prosecution must prove beyond reasonable doubt the following:-

(1) the death of a human being.

(2) that the death was caused by the act of the appellant.

(3) the act(s) was/were done with the intention of causing death or
(4) that the appellant knew that death would be the probable consequence of his act.

It is not in contention in the instant case that Efa Ephraim has died and that it was the gun shot from appellant’s rifle that caused his death. What is still in contention is whether the gun shot was fired at the vehicle by the appellant with the intention of causing the death of the deceased or the knowledge that death would be the probable consequence of his act. The prosecution, from the circumstantial evidence it led, insists that the appellant by shooting at the vehicle intended to kill the deceased or knew that the death of the deceased would be the probable consequence of act. The appellant, on the other hand, asserts that with the death of Efa Ephraim ensuing from the accidental discharge of the riffle in his possession, the law ascribes neither the intention of killing the deceased nor the knowledge that the accidental discharge, for which he is not responsible, would cause the death of the deceased.

Certainly both side cannot be right. Whether or not the gun shot fired at the vehicle in which the late Efa Ephraim was a passenger is an accident or the deliberate act of the appellant is a question of fact the answer to which lies squarely in the evidence available to the trial Court.

At page 48 of the record, PW1, the investigating police officer who did not personally witness the incident, beyond tendering exhibits A, A1 and A2, the negatives and the printed photographs of the deceased, exhibit B the post mortem examination report on the deceased, exhibit C, the extra judicial statement of the appellant and exhibit D, D1 and D3 the photographs of the vehicle the deceased was in, proceeded under cross examination even though he was not at the scene and time of the incident thus:-

“I investigated the claim by the accused in his statement that the vehicle in which the deceased was swerved towards him and he staggered during which the rifle he was carrying exploded. My finding was that the driver of the vehicle refused to stop for the routine check by the Police. Inspector Gambo Isa who headed the team in which the accused was showed me where the accused stood. He said the accused was at the bend linking Target Road by E. Okon Filling Station toward Mary Slessor Avenue. Inspector Gambo was by the Patrol Vehicle which was parked in between the road linking Target to Mary Slessor by the Old Zoo area and the bend where the accused was standing. I did not go with the accused to the scene of crime because if I did he would have been killed. Even when we took him before the Chief Magistrate’s Court where he was ordered to be remanded in prison custody, it took a team of Mobile Policemen to prevent his being lynched. I was even attacked.”

PWII’s evidence in chief at pages 49-50 of the record reads partly thus:-

“On the 23rd of April, 2009, I came back from Lagos. I drove down to our Club House, No. 7 Mapel Street, Off White House Street, Calabar, when I decided to leave from the club to my house the deceased requested that I drop him in his house. I was driving along Target Road towards E. Okon Filling Station by Mary Slessor Avenue. I saw some policemen. One of them stopped me. I stopped. He looked into the car. He asked me to open the booth which I did. He then said we should move. As I moved I just heard a voice shout ‘stop’ ‘stop’. I then heard a gun shot. A few moments later I heard the deceased say these Police have shot me – o”. As I turned and looked at him I saw him going down. I stopped by the Mary Slessor Round about. I then called the President of our club….

I noticed that the deceased was dead. I say I noticed that he was dead because when I called him he did not respond.”

The witness continued as follows:-

“I drove back to where the police were standing and doing the checking. On getting there, there were other vehicles and cyclists packed there for checking. One of the cyclists pointed at the accused and told us that he was the Policeman who shot at us. The Accused then shouted ‘oh, oh, what happened?’ and the accused was taken to their Station….permanent site of the University of Calabar Teaching Hospital before going to the Police Station. At the Hospital the deceased was moved from my vehicle, the Doctors then checked and confirmed to us that he was dead.

I saw the corpse. I notice that the bullet entered the right side of the deceased.”

PWII remained unshaken under cross examination. He testified thus:-

“It is not true that I did not stop for the Police. I stopped for the first Policeman who stopped me and he searched my car, I opened the booth for him and he then cleared me to go. It was not the accused person who searched my car…The distance between where I heard the gun-shot and where I stopped is about 100 metres.

When the accused saw the effect of what he had done he was shaking. In my statement to the Police I told the Police that a cyclist pointed at the accused as the person who shot the gun. I was not reckless in my driving that day.”

At page 51-53 of the record, PW3 corroborated PW2’s evidence. He maintained in his evidence in chief inter-alia at page 52 as follows:-

“A policeman checked our vehicle and asked us to move. As we moved and were approaching Mary Slessor we heard a shot from the direction of the filing station on Target Road by Mary Slessor. The shout was followed by the sound of a gun-shot then the deceased who was sitting at the back seat shouted that he had been shot. I then put on the inner light and looked to his direction. I noticed blood from his side. We now stopped at the Mary Slessor round-about. I came out of the vehicle and went over to him and shook him, calling his name. He did not respond and instead foamed from his mouth and collapsed. We then called his elder brother, Barrister Efio Ita Ephraim, and some of our club members to tell them what had happened. When they came we drove back to the Police check-point and informed the Policemen that checked us that one of them had shot and killed our friend. The Policeman who checked us called on his colleague who shot the gun and asked him why he had to shoot at us. He shouted that nobody should come near him or he will shoot gain and was at the same time corking the gun but another Policeman ran to him and removed the magazine. It was then he started crying, and after the gun had been taken from him…”

PW3 insisted under cross examination this:-

“There were some vehicles ahead of us at the check-point. The one directly in front of us was checked and they left before we were checked. Nothing happened to those other people that I know. It is not true that we were at top speed and suddenly met the Police check-point and could not stop. We stopped at the check-point and we had been checked and moved away from there before the shot was fired. The accused was not even at the check-point. He fired from the direction of the Filling Station. I did not know the accused before this incident. The Policemen at the check-point were the people who identified the accused as the person who shot.”

The appellant in his extra judicial statement, exhibit C, reproduced at page 16 of the record, stated thus:-

“It was on 23/04/09 at about 1930 hrs under the command of Inspector Gambo Isah, we booked at the station and left for a routine patrol due to crime wave in the metropolis we stopped and pin (sic) down at Target by E. Okon Filling Station on stop and search. On (sic) the process we stop (sic) other vehicles in one lane, and there was this particular vehicle we try to stop, but he refused (sic) to stop, rather swash (sic) to the other lane. All the policemen put on there (sic) torchlight flacing (sic) the driver, all to no avail. As the last man giving coverage, try to stop the vehicle, on (sic) the process, I heard a gun shot. So I cork (sic) my riffle and the driver dangerous swash (sic) towards me, and because of shock, I staggered and on the process, the riffle in my hand exploded unknowingly. When I realized myself I could not see the vehicle the driver passed. For about 30 minutes, we saw about four vehicles coming towards us and they stop (sic) at the point we were and started alleging that one of us shot their man…”

In his evidence before the Court at page 53 – 55 of the record, he however stated as follows:-

” ….As we carrying out the exercise, a number of vehicle were parked on the right side of the road while our police vehicle was parked on the left side. Not quite long a vehicle came from up Target Road towards Mary Slessor Avenue. The vehicle was on top speed and as the driver suddenly saw the vehicles parked on his lane he diverted to the left side of the road where I was standing beside our patrol vehicle. That section of the road is a bending corner. The vehicle came towards me, and I staggered and almost fell. It was at that point that the riffle I was hanging on my shoulder exploded. I was holding the walkie talkie on one hand.”

The trial Court in evaluating appellant’s evidence vis-à-vis the evidence led by the respondent rationalized as follows:-

“If it is true that the accused was hanging the riffle on his shoulder as he suggested, and because of the vehicle swerving towards him he staggered and almost fell, will it be normal that he should stagger forward? I think not. I think it would be normal that he should stagger backwards to avoid the on-coming danger because staggering forward would be going to meet the danger. And if he staggered backwards and the riffle exploded in the process the bullet should go away from the road if the barrel was facing upwards, and not far from him if the barrel was facing downwards since he did not fall.”

And the Court inferred thus:-

“So shooting at the vehicle that is on top speed and failing to stop for routine check is the accused person’s way of using what is available to him to stop the vehicle.”

The Lower Court in affirming the trial Court’s findings held at page 127 – 130 of the record as follows:

“The Appellant himself stated that he corked his rifle. A man who corked his rifle had the intention to shoot. That the rifle exploded on itself was an afterthought. The appellant himself stated that when the rifle is hanging on the shoulder, it can only point towards or downwards. Any impact would be either skyward or downwards. It only goes to show that the Appellant intentionally corked his rifle aimed at the car that supposedly refused to stop, of all the cars at the check point. This only goes to show that there was no accidental explosion.”

My lords, it is the duty of the appellant herein, who relies on improper evaluation of evidence to set-aside the concurrent decisions of the two Courts below, to identify the improperly evaluated evidence and to show that if the error he alleges is corrected the conclusion reached by the two Courts would not only be different but in his favour. The appellant’s grudge is on the trial Court’s wrong inference that the gun shot that cause the death of the deceased is not accidental and that, rather, it is the international act of the appellant who, by law, is presumed to have intended the natural consequences of his action.

I have reproduced earlier in this judgment, and lavishly too, not only the evidence on the basis of which the appellant is convicted demonstrating the logic, sequence and inference drawn from the evidence by the trial Court in the course of its decision. It is the trial Court’s decision as affirmed by the Lower Court that appellant seeks, by this appeal, set aside.

It is trite that evaluation of evidence and ascription of probative value to same is essentially within the province of the trial Court. It is undoubtedly the duty of that Court to assess witnesses, form impression about them and evaluate their evidence having regard to the impression it formed of the witnesses. In the case at hand I am satisfied that the Lower Court, having found that the trial Court’s conviction and sentence of the appellant is as a result of proper evaluation of the evidence before it, is right to have affirmed same. The trial Court has, indeed, not only assessed and gave value to the evidence at its disposal, the Court, in the course of the exercise, leaves no one in doubt as to how and why, in arriving at its conclusions, it preferred the evidence of the respondent to that of the appellant. In such an instance it is never the function of an appellate Court to set in and re-evaluate evidence as evaluation has already been properly carried out. See Alake V. The State (1992) 9 NWLR (Pt.265) 260 and Mogaji v. Odofin (1978) 4 SC 1. This Court, learned respondent’s counsel is right, is very hesitant at interfering with concurrent findings of the two Lower Courts and indeed lacks the jurisdiction of interfering in the instant case where their findings have not been shown to be perverse. See Isibor v. State (2002) 4 NWLR (Pt.758) 741, Maiyaki v. State (2008) 15 NWLR (Pt.1109) 173 and Itu v. The State (2016) LPELR – 26063 (SC).

In sum, I find no merit in the appeal which I hereby dismiss. The conviction and sentence of the appellant by the two Courts below is hereby further affirmed.

ONNOGHEN, JSC

I have had the privilege of reading in draft the lead judgment of my learned brother MUSA D. MUHAMMAD, JSC just delivered.

I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.

The issue of lack of jurisdiction in the trial Court to try and convict appellant on a definition section of the Criminal Code instead of the penal section is clearly wrong/untrue/misleading and of no consequence at all as Section 319(1) of the Criminal Code under which appellant was charged and tried is the penal section while Section 316(1) thereof is the definition section. All the energy exerted in arguing the point therefore amounts to an exercise in futility.

Another point I want to make is on concurrent findings of fact which is the basis of the issues raised by learned counsel for appellant for the determination of the appeal.

It is settled law that the Supreme Court does not make a practice of interfering with the concurrent findings of facts by the Lower Courts except such findings have been demonstrated to the satisfaction of the Court to be perverse, or erroneous in substantive or procedure law etc, which has not been shown to have occurred in this case by appellant. I therefore find no reasons why this Court should interfere with the concurrent findings of facts made by the Lower Courts in this matter.

It is for these and other detailed reasons given in the lead judgment of my learned brother that I too find no merit in the appeal and consequently dismissed same. Appeal dismissed.

KEKERE-EKUN, J.S.C.

This appeal is against the judgment of the Calabar Division delivered on 29th April, 2013 confirming the conviction and sentence of death imposed on the appellant by the High Court of Cross River State, Calabar Judicial delivered on 17/5/2011.

That facts that gave rise to the appeal have been eloquently summarized in the lead judgment. I adopt the summary herein.

The two major issues that arise for consideration in this appeal are:-

(i) appellant’s contention that the charge was defective thereby robbing the trial Court of jurisdiction to try the appellant on the ground that the appellant was charged under the definition section of the Criminal Code and

(ii) that the Court below was wrong in affirming the trial Court’s finding that the defence of accident did not avail the appellant.

I must at this stage state that I have had the advantage of reading the judgment of my learned brother, Musa Dattijo Muhammad, JSC just delivered. I agree entirely with the reasoning and conclusion to the effect that the appeal lacks merit and should be dismissed. I shall add a few comments in support.

The appellant was charged with murder contrary to Section 319(1) of the Criminal Code, Vol 3 Cap 16 Laws of Cross River State of Nigeria 2004. He was alleged to have murdered one Efa Ephraim on 23rd April 2009 along Target Road, Calabar within the Calabar Judicial Division. Learned counsel for the appellant is quite correct in his observation that Section 319(1) of the Criminal Code of Cross River State is the punishment Section for the offence while Section 316 of the Code creates the offence of murder. The question to be asked is whether the mere fact that the appellant was charged under the definition Section of the Criminal Code is sufficient to vitiate his trial and conviction?

Sections 166 and 167 of the Criminal Procedure Law provide:

“166. No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.

167. Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and NOT LATER.”

(Underlining mine for emphasis)

It must be noted that the appellant’s plea was taken on 23/3/2010. The record shows that the charge was read over to him in English Language and he seemed to perfectly understand same before pleading not guilty thereto. He was represented by counsel on that day and throughout the proceedings up till the date of judgment. No objection was taken to the charge. Indeed the issue is being raised before this Court for the first time. There was also no suggestion throughout the trial that the appellant was misled by the charge made against him. Having regard to the provision of Section 166 and 167 of the Criminal Procedure Law reproduced above, it is clear that on the basis of the failure to act timeously and in the absence of evidence that the appellant was misled by the charge, the appellant’s contention that the charge against him was defective ought to be discountenanced without further ado. Furthermore, Section 168 of the Criminal Procedure Act provides inter alia, that no judgment shall be reversed on the ground of any objection, which, if stated after the charge was read over to the accused or during the progress of the trial, might have been amended by the Court. I therefore agree that there is no substance in the appellant’s contention. He has failed to show that he has suffered any miscarriage of justice in the circumstance. The contention is accordingly disregarded.

On the issue of the defence of accident, I fully agree with the concurrent findings of the two Lower Courts that the defence is not made out in this case. In my view, the most critical part of PW1’s evidence was that the rifle with which he shot at the deceased was on his shoulder. If he staggered, as he claimed, but did not fall and the rifle went off accidentally, it would have fired upwards or downwards but not horizontally. In his extra judicial statement, Exhibit C, he stated that he corked his gun. I agree with the Lower Court that the act of corking a gun means preparation to shoot. The inference that could be gathered from evidence before the trial Court was that the appellant intended death or grievous harm when he shot at the vehicle in which the deceased was sitting. I am not persuaded that the concurrent findings of the two Lower Courts are perverse to warrant any interference by this Court.

For these and the more elaborate reasons advanced in the lead judgment, I hereby dismiss the appeal and affirm the judgment of the Lower Court, which affirmed the appellant’s conviction and the sentence of death imposed by the trial Court.

Appeal dismissed.

EKO, JSC

I had a preview of the judgment just delivered in this appeal by my learned brother, MUSA DATTIJO MUHAMMAD, JSC. I hereby adopt the judgment, as I am in complete agreement with my learned lord on all the issues in the appeal.

The learned Appellant’s Counsel, when he launched attack on the mode of the arraignment of the Appellant at the trial Court, was not fully seised of the facts. The Appellant was arraigned before the trial High Court on a one count charge of murder punishable under Section 319(1) of the Criminal Code Law of Cross-River State, and not under Section 316 (1) of the same Code, that is the definition provision. He had clearly read and interpreted the one count charge with a gloss, suitable only for his purpose as against the actuality. That should not be, for it would seem misleading for a counsel to do so. In any case, the objection to the charge is rather belated.

Section 160 of the Criminal Procedure Law (CPL) provides that no error in stating the offence or its particulars in the charge “shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.” The Appellant has not shown that the alleged error on the face of the charge has, in fact, misled him and/or has caused a miscarriage of justice to him.

Failure of the Appellant to timeously object to the defect on the face of the charge amounts to waiver by virtue of Section 161 of the CPL. The effect of that is estoppel by conduct which, by dint of Section 169 of the Evidence Act, 2011, estops the Appellant, as the accused person, from complaining about the said defect at this appeal stage of the proceedings.

The only defence pleaded is one of accident. The plea, in the concurrent findings of fact by the trial Court and the Lower Court, was dismissed after proper and painstaking evaluation and re-evaluation, respectively, of the facts the Appellant relies on to raise the plea. He is not complaining that the evaluation and re-evaluation respectively were improperly done or not done at all. Where the trial Court has made a finding of fact, upon proper evaluation of the facts available to it, and the intermediate Court has affirmed the findings of fact upon a further evaluation or re-evaluation of the said facts, this Court, unless the findings of facts are shown to be perverse, will not interfere with such findings of fact. The Appellant, having not, brought his case within the exception, has not convinced me to interfere with the concurrent findings of fact.

The plea of accident was erected on a very spurious ground. Notwithstanding, the prosecution’s empirical evidence, not shaken or discredited by cross-examinations, that the Appellant had cocked the riffle and fired it to the direction of the vehicle with passengers therein, including the deceased; the Appellant suggested that the riffle, in one breath, was slung on his shoulder, and in another breath that he held it in his hands, and that it discharged accidentally when he staggered. He made no effort to distinguish between staggering and diving forward to the direction of the same car that jolted or startled him to stagger. The defence, as pleaded, is illogical and lacking in any common sense. The Lower Court cannot be faulted in affirming the trial Court’s dismissal of it.

There is no merit in the appeal, and I hereby dismiss it. The conviction of the Appellant is further affirmed.

BAGE, JSC

I have had the privilege of reading in draft the lead Judgment of my learned brother, Muhammad, JSC, just delivered. My learned brother has exhaustively considered and ably resolved the issues for determination in this appeal, which I completely agree with. I will add just a few words of my own in total support. In his journey, from the trial Court, to the Court of Appeal, and to this Court, the Appellant relied on the defence of accident, which cause the death of the deceased person. Appellant’s case is that the gun which caused the death of the deceased person, which was in his possession, had discharged itself by accident, that the vehicle carrying the deceased, which was recklessly driven and at a top speed almost ran into them by the bend where they stood immediately after the check point; that in a spontaneous reaction, the appellant further asserts, he jacked forward towards the vehicle at which moment the rifle he held by his shoulder accidently discharged itself and thus the death of the deceased. An accident is defined by this Court as the

“Result of an unwilled act, and means an even without the fault of the person alleged to have caused it.” Per Karibi-Whyte, JSC (as he then was) in ALIU BELLO & ORS VS ATTORNEY-GENERAL OF OYO STATE (1986) 12 S.C. 1 at 73. Another very respected jurist of this Court, Oputa JSC, (as he then was and of a blessed memory) took it further, by considering the phrase “an event which occurs by accident.” He stated as follows:-

“It seems to me that the expression “an event which occurs by accident” used in Section 24 of Cap.42 of 1958 describes an event totally unexpected by the doer of the act and also not reasonably to be expected by my ordinary person, the reasonable man of the law. In other words, the test is both subjective from the stand point of the doer of the act, as well as objective from the stand point of the ordinary man of common prudence. The event should, to qualify as accidental, be a surprise both to the doer of the act that caused it, and a surprising thing to all and sundry. An event is thus accidental. It is neither subjectively intended nor objectively foreseeable by the ordinary man of reasonable prudence.” Per Oputa JSC, in BAYO ADELUMOLA VS THE STATE (1988) 1 NWLR (Pt.73) at Pages 639-693.”

The event that occurred in this case, on appeal, did not qualify as accidental, the record clearly shows that. I agree with the Lower Court in affirming the trial Court’s findings held at pages 127-130 of the record as follows:-

The Appellant himself stated that he corked his rifle. A man who corked his rifle had the intention to shoot. That the rifle exploded on itself was an afterthought. The appellant himself stated that when the rifle is hanging on the shoulder, it can only point upward or downwards. Any impact would be either skyward or downward. It only goes to show that the Appellant intentionally corked his rifle aimed at the car that supposedly refused to stop, of all the cars at the check point. This only goes to show that there was no accidental explosion.”

No doubt, this apt finding of the Lower Court, is in tandem, with what must be objectively foreseeable by the ordinary man of reasonable prudence. For all the other detailed reasoning contained in the Lead Judgment. I too find no merit in this appeal and it is also dismissed b me. The conviction and sentence of the Appellant by the two Courts below is hereby further affirmed by me.