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COURT OF APPEAL, PORT HARCOURT DIVISION
TUESDAY, 9TH JULY, 1991
BEFORE THEIR LORDSHIPS
MICHEAL EKUNDAYO OGUNDARE, J. C. A.
REIDER JOE JACKS, J. C. A.
BRAIMAH AMEN OMOSUN, J.C.A
J.C. Uwazuruonye – for the Appellant
CRIMINAL LAW AND PROCEDURE:– Murder – Proof of – Duty of court to consider all defences available to accused person – Burden of proof of crime and of discounting the existence of any legal defence – Whether shifts to accused
CRIMINAL LAW AND PROCEDURE:– Murder – Proof of – Dying declaration – What amounts to
CRIMINAL LAW AND PROCEDURE:– Murder – Proof of – Motive – Any fact showing the existence of a motive – Whether is a relevant fact – Materiality – Effect of section 9(1) of the Evidence Act and section 24 of the Criminal Code
CRIMINAL LAW AND PROCEDURE:– Defence of accident –Circumstances in which same would be available to accused – Effect
CRIMINAL LAW AND PROCEDURE:– Evidence of prosecution witness(es) – Where contradicts each other materially – Duty of court thereto – Whether can choose which to believe
CRIMINAL LAW AND PROCEDURE:– Proof of crime – Circumstantial evidence – Whether can ground conviction – Test of conclusiveness – Relevant consideration
CRIMINAL LAW AND PROCEDURE:– Proof of crime – Confession – Rule that free and voluntary confession can sustain a conviction – When inapplicable
PRACTICE AND PROCEDURE – COURT:- Whether can offer explanations suo motu as to the discrepancy between sworn testimony and documentary evidence – Whether can choose which witness to believe
PRACTICE AND PROCEDURE – EVIDENCE:- Evidence capable of two interpretations – Which is to be preferred
PRACTICE AND PROCEDURE – EVIDENCE:- – Cross examination – When witness may be cross‑ examined – Purpose of – Cross-examination of a witness who proffered testimony contradictory to his extra-legal statement – Proper use of such cross-examination – Whether can serve to cure the defect in the evidence as to make it true
OMOSUN, J.C.A. (Delivering the Leading Judgment):
The appellant was at the Afikpo High Court of Imo State, charged with murder contrary to section 319(1) of the Criminal Code. The particulars of the offence are that on 1St February, 1982, at ISHIAGU in the Afikpo Judicial Division the appellant murdered DANIEL EBUONU.
The appellant pleaded not guilty to the offence on 25th May, 1983. It was not until 15th January, 1985 that the trial began. The prosecution called 6 witnesses to prove its case. It tendered a number of exhibits. The appellant testified on oath in his defence and called 1 witness. Counsel on both sides addressed court at the end of the trial on 3rd October, 1985. In a reserved judgment, the learned trial Judge (Eziri J) on 10th October, 1985 convicted the appellant of murder and sentenced him to death by hanging.
The appellant is dissatisfied with the decision. He now appeals to this court. By a notice of appeal dated 1st November, 1985, he filed two grounds of appeal. Leave was sought and granted the appellant to file an amended notice of appeal on 7th March, 1991. The notice contained four grounds of appeal. These were the ones argued before us.
In a summary, this is the prosecution’s case.
The deceased though called Daniel Egbeonu, chose to be known and called as Dan C.C. Daniels. The appellant lived with his father, the deceased at Ishiagu. The deceased was in the mining of minerals business. The appellant worked for him. The case of the prosecution is that the appellant shot the deceased on 1st February, 1982 during a disagreement. P.W. 1.a Store Officer in the company lives in the premises of the deceased. He heard a gunshot at about 1.55 p.m. He ran out to find out what happened. He heard the deceased shouting ‘He had killed me, he had killed me.” The deceased pursued the appellant who was running away. He collapsed. The appellant had a gun with him and workers were scared to come near. The appellant was prospecting for Lead and Zink. P.W.2 Godwin Uwaezuoke helped P.W.1 to get the deceased back into the house. The deceased was unconscious and bleeding profusely with blood all over his body. He was shot at the lower part of the abdomen. The deceased was rushed to Okigwe General Hospital for treatment where he died. Exhibits B, B I, and E were tendered.
The appellant had denied the charge. He worked for his father the deceased. The salary was N150.00 per month. Payment was not regular. He went to his father – the deceased on the fateful day to ask for his salary. The deceased refused to pay. Instead he picked up quarrel with him. The deceased went into his room and came out with a pistol. He said he was in grave danger and he grabbed the pistol. There was a struggle for it. It went off. He ran out scared. He could not say what happened. He was confused, He ran into the bush and subsequently reported himself to the Police at ishiagu. He did not know his father was wounded. He was forced to sign Exhibit “G” his statement to the Police.
Briefs were filed and exchanged according to the rules of this court. The appellant has formulated four issues for determination, namely:
(1) Was the learned trial Judge right in convicting the appellant based on manifestly contradictory evidence of the prosecution.
(1) Was the learned trial Judge right in admitting Exhibit “G” and basing his Conviction of the appellant on an alleged confessional statement contained thereon without conducting trial within trial particularly when the appellant denied making Exhibit “G”
(1) Given the facts in this case and the state of the medical evidence, was there sufficient nexus between the alleged act of shooting” by the appellant and the cause of the deceased’s death as would make the appellant liable for the offence charged.
(1) What were the legal effects of the learned trial Judge not considering the legal defences open to the appellant as revealed in his statements to the police, the other statement of witnesses and his evidence in court and Exhibits tendered.”
The issues set down by the respondents for determination are:
(1) Whether there were material contradictions in the prosecution’s case as to weaken it.
(2) Whether the trial judge committed a procedural error by admitting the confessional statement of the appellant Exhibit “G” during the trial.
(1) Whether in view of Exhibit “G” the trial Judge ought to have considered any defence disclosed in the oral testimony of the appellant in his own defence.
In arguing the appeal, learned counsel for appellant adopted the brief of argument dated 26th March, 1991 and filed on 2nd April, 1991. He made Oral submissions in amplification of issue which relates to ground I of the appeal. He submits there were material contradictions in the prosecution’s case. He referred to pages 62‑63 of the printed records. In particular, he drew our attention to Exhibit “A” statement of P.W.2 to the police. He referred to pages 13‑15 lines 28‑30 and lines 11‑14. He says there is discrepancy between Exhibit “A” and the sworn testimony. He submits therefore that the sworn testimony of P.W.2 and the statement Exhibit “A’ are not evidence which can be relied on. Several cases are cited to us to show the effect of such a situation.
The submission on behalf of the respondent is, P.W.2 was an eye‑witness who saw the shooting even though in Exhibit “A” he did not say so specifically but went further to say that the appellant was even brandishing the pistol at him. It is submitted that the disparity between the sworn testimony of P.W.2 and his statement Exhibit ‘A’ to the police is not material. It is said that it does not affect substance of the prosecution’s case that it was the act of the appellant that caused the death of the deceased. He submits therefore that these are minor contradictions and do not create a doubt which can vitiate the conviction.
This matter agitated the mind of the learned Judge in the lower court for he devoted quite a considerable part of his judgment to it. At page 54 lines 1‑5 he observed:
“There is evidence from P.W.2 that he ran to the scene when he heard the alarm raised by the deceased that the accused had killed him. He saw the accused shot (sic) the deceased. In his statement to the Police ‑ Exhibit “A” gave a different impression”.
In other words, P.W.2 saw the appellant shoot the deceased in his testimony. P.W. I did not see the shooting. He arrived at the scene after the shooting when the deceased was pursing the appellant. It must not be forgotten that the appellant’s case is that the gun went suddenly off while he and the deceased were struggling possession of the gun.
In my view, the evidence of P.W.2 cannot be relied upon to arrive at the conclusion that the appellant shot the deceased. The learned Judge tried to get over that hurdle by being impressed by P.W.2 as a truthful witness. He discredited himself on the face of Exhibit “A” and sworn testimony.
Still at page 54 lines 24‑35 and page 55 lines 1‑4, the learned Judge recapitulated the whole scene. He observed:
“On Oath P.W.2 told the Court that he ran to the scene when he heard the deceased shouting. He went on and said ‑ “as I ran into the parlour, the accused fired at the deceased with the gun”. While part of Exhibit “A” said to be in conflict reads:
Later I heard them quarreling and not quite long, I heard a gunshot and I heard C.C. Daniels shouting he has killed me, hold him for me. Then I rushed out, grip the suspect. He started to brandish the pistol at me and I ran away for fear of being shot by the suspect”.
So far, it comes to this that only the appellant and the deceased can tell us the shooting episode but unfortunately, he cannot for dead men do not bite. It is of interest to know what the learned Judge made of this evidence. Continuing at lines 5‑16, he said:
“This piece of evidence does not exclude the fact that the witness saw the accused shot (sic) the deceased. In his evidence on oath, P.W.2 gave much more detailed account of the shooting. Counsel for the defence merely tendered the statement of P.W.2 to the police ‑ Exhibit “A” without adequate foundation laid that it is meant to contradict P.W.2. Thus the fact that Exhibit “A” does not contain the assertion that P.W.2 saw the accused shot the deceased, does not mean that he did not see him. Besides the evidence of P.W.2, that of P.W. 1 put together, point at nothing but the guilt of the accused person. The circumstances of this case as borne out by the evidence adduced added to the dying declaration which the deceased made, that the accused had killed him are quite consistent with the fact that it was the accused who shot the deceased. (Italics mine)
It seems to me that what the learned Judge is doing is to pass the buck. He is offering explanation suo motu as to the discrepancy between the sworn testimony and Exhibit “A” where none has been offered by the prosecution. It is a most ill‑fitted garb to wear. He is in error to do so.
Secondly, the exclamations of the deceased is not a dying declaration. Section 33(1) of the Evidence Act does not cover this evidence. The deceased did not believe himself to be in danger of death at the time he made the statements, There must be positive evidence that the deceased was in fear of death. In Okokor v. The State (1967) NMLR 189, the appellant was convicted of murder and sentenced to death. The case for the prosecution was that the accused dealt matchet blows on the deceased and two of the prosecution witnesses heard the deceased shouting “OVUOMARIENOR has killed me! Ovuomarienor has dealt matchet blows on me!” The trial Judge regarded the statement as a dying declaration because of the serious nature of the wound, the surrounding circumstances and the fact that the deceased died soon afterwards. On appeal, it was held that the trial judge erred in so holding. In this case, the deceased died a day after the shooting incident. Alsoin. v. Weyeku (l943)9WACA 195 the principal evidence against the appellant was that of several witnesses that the deceased shortly after he was stabbed said “Bang had shot me” or words to that effect. This evidence was held inadmissible as a dying declaration.
The learned Judge has described the evidence of P.W.2 as direct ‑ section 76 of the Evidence Act. He was wrong in his approach to the evidence of P.W.2 and did not apply the correct law. There is no doubt that the learned Judge recognised in his judgment that P.W.2’s sworn testimony contradicted his statement to the police Exhibit “A” and in contravention of Onubogu v. The State (1974) 9 S.C. 1 supplied the explanation for the contradiction of the evidence of P.W.2.
The learned Judge also criticised the way and manner Exhibit “A” was introduced into evidence. The answer here is that the learned Judge effectively brought out the contradictions in Exhibit “A” and the sworn testimony in his findings and that is the only proper use to make of it. In R. v. Akanni (1960)5 F.S.C. 120; (1960) SCNLR 239 it was said the trial Judge wrongly received a witness’ statement although he was not cross‑examined on it. At pages 15‑16 of the printed records, the 2 P.W. was cross‑examined about the statement and it was only received in evidence in the course of cross‑examination. At page 16 lines 9‑12 under cross examination, the witness answered:
“Witness said, he made the statement read to him but he added that he told the Police that he saw the accused shoot Mr. Dan CC. Daniels. I told the Police I saw the accused shoot the deceased”.
The witness was cross‑examined on Exhibit “A”. A witness may be cross‑examined to show that his evidence is inconsistent with his statement and then it may be tendered to discredit his evidence. That is the only proper use to which it can be put. It is not evidence of its own truth. In my opinion, Exhibit “A” was properly received in evidence and does not fall within the ambit of R. v. Akanni 5 F.S.C. 120, (1960) SCNLR 239 but was wrongly utilised by the learned Judge.
I agree that the inconsistency complained of between the statement and evidence must be one of substance on a fact in issue. The fact in issue here is the C shooting, was it accidental as the appellant says or a point blank shooting by the appellant as P.W.2 has contradicted himself on this issue. He did not say so at the earliest opportunity when the matter was fresh in his memory. Minor differences are unimportant but I hold the view here that inconsistency is one of substance on a fact in issue. The appellant’s defence is accident.
The learned Judge has said that apart from the testimony of P.W.2 which I say is unreliable, there is the evidence of P.W. 1, P.W.6 the doctor who treated the deceased and did the post‑mortem examination of the body. P.W. 1 did not see the shooting. He arrived at the scene in response to the alarm raised by the deceased. He saw the deceased pursuing the appellant who according to him was scaring away people by brandishing a pistol he held. It is the law that in a situation such as this, the court cannot choose which witness to believe or not: Onubogu v. The E State (supra). The position now is that we are left with only the evidence of the appellant as to what happened in the room where the shooting took place. Turning to Exhibits “B I “and “B I “, these were tendered no doubt to show that the appellant had motive for the killing. Any fact showing the existence of a motive is a relevant fact under section 9(1) of the evidence Act as tending to show that a person did the act alleged against him, but the commission of the offence has not been sufficiently proved by the evidence as a whole and it is no answer that motive has been shown. The third paragraph of section 24 of the Criminal Code provides:
“Unless otherwise expressly declared, the motive by which a person is intended to do or omit to do an act, or to form an intention is immaterial so far as regards criminal responsibility.”
If these letters show anything it is that the appellant is ill‑disposed towards the deceased his father for failure to pay his wages regularly. Exhibit “D” is of no evidential value. Exhibit “E” is undated and not signed.
The applicant made Exhibits “F” and “Fl” after caution. In both, he explains what happened and why he ran away. They are consistent with the last part of Exhibit “E”. Exhibit “G” is the final statement appellant made to the Police after caution. In it, he adopts Exhibits “F” and “F I”. At the hearing of this appeal H on 18th May, 1991, learned counsel for appellant conceded the point that Exhibit “G” was properly admitted in evidence.
The issue then is the evidential value of Exhibit “G”. The learned Judge said of Exhibit “G” as follows at page 57 lines 1‑16:
“In Exhibit “G” his overall statement of the Police, accused voluntary the idea of killing my dad, Daniel Egbeonu was initiated by Francis Daniels my Senior brother who was studying at the University of Port Harcourt.”
Again, accused voluntarily stated that one Reuben Ajogbu their former worker instigated him to kill his father. I quote the portion of his statement:
Immediately, he said this, I became biter with my dad, this idea coupled with that Francis Daniels had already suggested the Kola nut I ate with grand pepper then I did not feel myself again, the result that when he suggested about killing my Dad, I immediately accepted the idea. I had been against my dad and all I did since then was not from my free mind.”
Learned counsel for respondent submits that a free voluntary confessional statement alone, properly taken, tendered and admitted and proved to be true and which passes the six tests in R V. SYKES (1913) 8 CR. APP.R. 233 approved by West African Court of Appeal in KANLI V. THE KING 14 WACA 30 and also applied in JOHN DAWA & ANR. V. THE STATE (1980) 8‑11 S:C. 236 at 258‑9 sufficient to ground a conviction. That is a correct statement of the law. But what the facts here. In Exhibit “G” the appellant said:
“So on the day of the incident, I could not recollect whether I came to my dad with my pistol. It was after the incident and after I escaped into the bush that I fully recovered my very self hence I later reported myself to the Police at Ishiagu”. (Italics mine)
The appellant had all the time insisted the gun went off accidentally. That could be the incident he is referring to. We cannot conjecture that the incident referred to is how he shot the deceased. P.W.2 saw the appellant when he was going into the deceased’s apartment. They conversed. He did not see a gun with him. P.W.2 was the last person appellant saw before going in to see the deceased. P.W.5 testified that on 6th February, 1982, he took the appellant to the scene of crime at Ishiagu ‑ his father’s house. He demonstrated how he struggled with the pistol with father (page 23 lines 16‑19). This witness did not say what form the demonstration took. Did the appellant show how he and the deceased were holding gun and to whom was the nozzle pointing. I take the view that these are not just matters that should be left hanging in the air and then leave the court to speculate.
I have said earlier in this judgment that counsel for appellant conceded the point that Exhibit “G” was properly received in evidence. I only want to say in passing that a confession does not become inadmissible merely because the accused person denies making it and in this respect a confession contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession: R. v. Phiilip Kanu & Anor. 14 WACA 30. Exhibit “G” is said to be a confessional statement. It was not taken before a Superior Police Officer for confirmation. This point was not taken before us and I have only made passing reference to it because is a murder case.
The appellant in Exhibit “G” adopted Exhibits “F” and “F I” where he says the gun accidentally went off during the struggle. Exhibits “F” and “F I” are and parcel of Exhibit “G”. These 3 statements must as such be read together to find out if the appellant really confessed to the killing of the deceased. Exhib A “E” has also to be considered. In THE QUEEN V. ITULE (1961) All NLR 462 at 465, (1961) 2 SCNLR 183 at 187 the law is stated that:
“It is a general rule that the whole of the account which a party gives of a transaction must be taken together and his admission of a fact disadvantageous to himself shall not be received, without receiving at the same time his contemporaneous assertion of a fact favourable to him, not merely as evidence that he made the assertion, but admissible evidence of the matter thus alleged by him in his discharge”.
In this case therefore, there was evidence of the gun accidentally going off. Evidence of P.W.2 about the shooting is unreliable, it seems to me that the only direct evidence of the incident is that of the appellant. He had been consistent in maintaining that stand ‑ Exhibits “E”, “F” and “Fl” and in his defence in court was in conformity with them. It is therefore wrong in not considering the defence and relying solely on the evidence of P.W.2.
In Exhibit “F” he said at page 69 lines 228‑30:
“On the 1st of February, 1982. I met my dad to give me all the money he was owing me, he refused to do so. When I pressed further my dad rushed into his bedroom and emerged with a pistol”
And at page 70 lines 1‑7, he continued:
“When I saw that he came out with the pistol I went and held him and started to struggle with him. During the struggle a bullet went off and hit my dad and I did not know what part of his body the bullet got him. The pistol was with my dad when I heard the explosion of the bullet, I was scared and ran out of the house”.
He ended it this way at page 71 lines 2‑5:
“I did not fire my dad. It was the time I was struggling with him over the pistol that a bullet went off and hit him. It was at Obiozara Police Station that I was told that my dad is dead.”
I am of the opinion in this case for the reasons stated that there was evidence of accident which the trial Judge ought to have considered and accepted in the absence of 2 P.W.’s testimony. No mention was made of appellant carrying a gun when he went to the deceased to collect his money. No other gun was found in the appellant’s house. The appellant did say that the deceased had other guns. No evidence was led to disprove this nevertheless, no other positive evidence was led to disprove accident except that of P.W.2. The other evidence relied on is circumstantial and I will deal with it later in this judgment. For now, I do not feel able to say that no substantial miscarriage of justice has occurred through the Judge’s failure to consider the evidence of accident.
Section 27(1) of the Evidence Act defines a confession thus:
“Confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime”.
A confession must be direct and positive as far as the charge is concerned. A confession must he an unequivocal admission of guilt. So in a charge of murder, a statement where the accused narrated certain facts of the incident but made no unequivocal admission that it was he who killed the deceased, is not a confession of guilt: The State v. Enabosi (1966) 2 All NLR 116. Also not a confession is a statement which is merely an admission of implication in a crime. R. v. Essien (I 939)5 WACA 70. Exhibit “G” in my opinion cannot be a complete confessional statement. It shows ill will towards the deceased alright but in view of Exhibits “F” and “F1” incorporated in it by reference, he denied shooting the deceased. These exhibits cannot be considered in isolation. They must be read as one. At best, it is an admission of some fact relevant to crime. A confession is a full admission of guilt.
The appellant said in Exhibit “G” page 71 lines 24‑28:
“So on the day of the incident, I could not recollect whether I came to my dad with any pistol. It was after the incident and after I escaped into the bush that I fully recovered myself hence I later reported myself to the Police at Ishiagu”.
The appellant has maintained consistently that the gun went off accidentally during the struggle with the deceased who brought it from his room. There was a quarrel before the shooting. It is submitted that the learned Judge did not consider the defences available to the appellant. The Criminal Code contains provisions on mitigation or excuse: e.g. self‑defence, provocation, accident etc. If any circumstance of mitigation or excuse allowed by law becomes apparent from the evidence, the court must, even though the accused does not invoke it consider it. It must arise on the evidence before the court: Okoko v. The State (1964) 1 All NLR 423. The learned Judge rejected the defences of self‑defence and provocation ‑ see page 8 lines 1‑9. Of the accidental shooting, the learned Judge held:
“The evidence that the bullet went off when he the accused was struggling with the deceased, is an afterthought because I believe accused came into his father’s house, fully prepared to shoot him with the pistol he had”.
There is no evidence that appellant came to the deceased’s house with a pistol. His story is that the deceased brought it from his room. The submission of learned counsel with respect to the defence of accidental killing under section 24 of the Criminal Code is based upon the assumption that the testimony of 2 P.W being unreliable, the only other eye‑witness is the appellant himself. Therefore, learned counsel argued, the court ought to accept that evidence and hold that the shooting occurred by accident.
I have earlier on referred to the learned Judge’s finding rejecting the appellant’s version that it was accidental shooting. The question is, is there any evidence to support that finding. The answer is not. The issue here is on the shooting incident itself and not what the appellant did afterwards by running away and brandishing a gun. There is only the direct evidence of the appellant left unchallenged and the Court was bound to accept it. The error in the finding is the reliance placed on the testimony of P.W.2. At the earliest opportunity, the appellant said that the gun went off accidentally when he and the deceased were struggling for the gun. He had maintained that stand since.
In considering this case, the words of section 24 are that:
“A person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or for an event which occurs by accident”.
In Alli Bello & 13 Ors v. Attorney‑General of Ovo State (1986) 5 NWLR (Pt.45) 828 KARIBI WHYTE J.S.C. defined accident thus:
“An accident is the result of unwilled act, and means an event without the fault of the person alleged to have caused it”
Stephen’s Digest of Criminal Law says:
“An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it, and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought under the circumstances in which it is done to take reasonable precautions against it”
The learned Judge at page 57 lines 17‑24 said:
“It is in evidence that the deceased shouted that the accused has shot him and he pursued the accused person with others; there are no coexisting circumstances which could render the fact of the accused shooting the deceased, doubtful. All these pieces of evidence, are consistent with the intention of the accused to kill the deceased due to the premeditated malice he bore against him”
It is plain to me that there are co‑existing circumstances which could render fact of the appellant shooting the deceased doubtful. The learned Judge seemed have drawn the inference that appellant shot the deceased because he was in the room with him when the shot was heard. Appellant was running away from the scene pursued by the deceased. The appellant had a gun with him which he used to scare people away when he was pursued. It is well to remember that it is not the law that an accused should be convicted because the court regarded him as a liar because he was seen running away from the scene of the commission of crime with the weapon. The appellant says he was scared by the sequence of events. What the court should consider is whether the prosecution has proved its case beyond reasonable doubt against the accused: Felix Nwosu v. The State (1986) 4 NWLR (Pt.35) 348, Okpere v. The State (1971)1 All NLR 1. If the deceased and appellant struggled to get the gun, the inference from these facts are consistent innocence but they are also consistent with guilt. In such circumstance, the learned trial Judge could not say that he was satisfied of the guilt of appellant beyond reasonable doubt. Where evidence is capable of two interpretations, the favourable to the accused is to be preferred: Queen v. Anyiani (1961) All NLR (1961) 1 SCNLR 78.
In my opinion, the learned Judge was in error in not giving adequate consideration to the appellant’s case by excluding section 24 of the Criminal Code merely because of the testimony of 2 P.W. This is a capital case and I refer to the case of Nwosu v. The State (1986)4 NWLR (Pt.35) 348 at 359 where ANIAGOLU said:
“A judgment sending a man to the gallows, must be seen to be the product of logical thinking, based upon admissible evidence in which the facts leading to his conviction are clearly found and the legal deductions therefrom carefully made. It cannot be allowed to stand if founded upon scraggy reasoning or a perfunctory performance. It is so in all cases and more so in criminal cases, and particularly more so in capital offences”.
The learned Judge’s finding was not based on admissible evidence.
The phrase “an event which occurs by accident” used in section 24 of the Criminal Code means an event totally unexpected by the doer of the act and also not reasonable to be expected by any reasonable person: Bayo Adelumola v. The State (1988)1 NWLR (Pt.73) 683 at 692 per OPUTA J.S.C.
It is my view that had the learned Judge properly evaluated the evidence of P.W.2 and the appellant, he would have come to the conclusion that the shooting occurred independently of the exercise of the will of the appellant and injuries which led to the death of the deceased.
On the defence of self‑defence, the learned Judge held as follows at page 58 lines 2‑6:
“From the evidence before me, accused cannot avail himself of the defence of self defence. He was not attacked, rather he came prepared with his pistol to attacked the deceased”.
In view of the unreliability of 2 P.W.’s evidence, the only credible evidence left is that of the appellant that the deceased went into his room and came out with a gun and wanted to shoot him. A struggle ensued and in the process the gun was accidentally let off.
It is argued that the appellant formed an intent at some stage before the necessity of defending his own life. Section 286 of the Criminal Code provides that where an unprovoked assault causes the victim reasonable apprehension of death or grievous harm, the later is entitled to use such force to defend himself as he believes on reasonable grounds to be necessary to preserve himself from the danger, and this he is entitled to do even though the force may cause death or grievous harm: R.V. ONYEAMAIZU (1958) NRNLR 93 at 94 and 95. The appellant has stated that the deceased wanted to shoot him hence the struggle for the gun. If a person wants to shoot another and in the ensuing struggle the accused shoots the person, it is in my view sufficient and of such a nature to cause reasonable apprehension of death or grievous harm. Therefore, the defence of self‑defence must succeed.
In finding the appellant guilty of murder, the learned Judge held at page 56 lines 1‑4 that:
“Besides the direct evidence of P.W.2 an eye‑witness of the shooting, there are other pieces of evidence overwhelming, all pointing to the guilt of the accused person on the shooting of the deceased”.
And then at lines 9‑14, he said:
“The facts of this case as borne by the evidence of P.W. 1 and P.W.2 are incompatible with the innocence of the accused person on the matter and incapable upon any other reasonable hypothesis than that of the guilt of the accused person”.
The other evidence relied on by the learned trial Judge is that the deceased raised an alarm that the appellant had killed him, that the accused ran out of the house with a pistol which he brandished to scare away people, that the deceased pursued the appellant with his body full of blood before he collapsed and was helped by P.W.1 and P.W.2. He referred and relied on Exhibits “E” and “G” as the motive for the murder.
These findings cannot stand against the evidence. P.W.2 has been found unreliable. I have earlier said that the alarm is not a dying declaration. The fact that appellant was pursued by the deceased is not evidence that he committed the offence. Motive is generally not relevant in murder cases and reliance on Exhibits “E” and “G” is not evidence on which to hang a man. A statement in which the accused narrated certain facts of the incident but made no unequivocal admission that it was he who killed the deceased is not a confession of guilt ‑ THE STATE V. A ENABOSI (1966) 2 All NLR 116.
The learned Judge termed the evidence he used in convicting as circumstantial evidence. He said that for circumstantial evidence to ground a conviction in a charge of murder, it must be cogent, complete and unequivocal and must lead to irresistible conclusion that the accused and nobody else committed the offence. That is a correct statement of the law.
This is a case in which the appellant is the only eye‑witness P.W.2 testimony being unreliable. Evidence is not derogatory because it is circumstantial. The prosecution has called witnesses who have testified to various circumstances that seem to link together by undesigned coincidence from which the lower court inferred the appellant’s guilt. It seems to me that the learned Judge did not examine the evidence carefully and seem to have been carried away by sentiments. In my opinion, it is not enough that the evidence created suspicion, even strong suspicion. The evidence must be so cogent and compelling as to leave no room for reasonable doubt. There is a risk that the evidence may be fabricated to throw suspicion on the appellant. See PEPER V. R. (1952) AC 480. Another point is that it is necessary to be sure that there are no other co‑existing circumstances which would weaken or destroy the inference of the appellant’s guilt.
In this case, we have the statements ‑ Exhibits “E” and “F” and his testimony in court of a struggle and the gun going off. The learned Judge did not advert his mind to this aspect of the case in view of the evidence of P.W.2 and the contradictions in the case. Was there a struggle or not to get the gun? The learned Judge said there was no such struggle and it was an afterthought. In my opinion, the circumstances were no more than circumstances of suspicion but insufficient to support the finding that he killed the deceased. The learned Judge should have asked whether there was sufficient proof. It is not sufficient to say “if the accused is not the murder, I know of no one who is. There is some evidence against him and non against anyone else, therefore, I find him guilty: UKORAH V. THE STATE (1977) 4 S.C. 167. The learned Judge said that the facts of the case are incompatible with the innocence of the accused person and incapable upon any other reasonable hypothesis than that of the guilt of the accused person, such line of reasoning as this is unsound in relation to the evidence before him.
According to P.W.2, the deceased was shot in the stomach. P.W.6 Dr. Amadi testified that the deceased had multiple gunshot wounds on the upper right thigh, whole of supra‑public area, right hypachondrum, the right chest wall and left arm. There is a contradiction as to the place where the deceased was shot. I am however unable to accept the refined submissions of counsel for the appellant as to whether one or more guts shots were fired at the deceased. P.W.6’s testimony is that “the gun shot punctures were over thirty in number”, and “bleeding from the points was profuse especially the one over lapping the right groin and inginal area”. He also said that the formal artery was punctured by the pellets from the shots. P.W.6’s testimony boils down to this, that death was as result of gunshot wound. His evidence only went to show in detail the effect of the gun shot. P.W.6 has used technical terms of anatomy which laymen do not understand and should have made a note in ordinary language. See IYU V. THE STATE (1965) 1 All NLR 203.
Counsel for the respondent submits that it is the law that a free and voluntary confession can sustain a conviction. There is no quarrel about that. He however submits that the learned Judge ought not to consider any other defences raised by the accused in his defence. He submits therefore that the learned trial judge was therefore right in not considering any of those defences. The defences could not avail the appellant in view of Exhibit “G” which clearly pointed to the motive and guilt of the appellant in killing the deceased who was his father. I do not share the views of the learned State Counsel. While a confessional statement strengthens the hand of the leaned Judge in dealing with the defences raised on the evidence, he still has to consider them. He considers them in relation to the confessional statement. I have said that the conviction of the appellant cannot be solely based on Exhibit “G”. It was not a confessional statement.
Lastly, it is argued that the appellant’s mental condition was not considered. Reliance is placed on Exhibits “H” and “G”. Emphasis is made of the incident of Kola eating with ground pepper and the evidence of the step‑mother D.W. 1. The court is bound to consider all defences available to the appellant. Regard must be had to the material before the court. Can it be said that taking into account the statements “H” and “G”, it will be necessary to investigate the antecedents and mental state of the appellant. I do not think so. The appellant took his plea. He showed no abnormal behaviour during the trial. He testified on oath in his own defence. The defence did not base their case on it. The question whether he was fit to stand trial was not raised at the trial. There was nothing before the Judge to suggest that he was not. It is enough to show that the appellant was suffering from a disease which is capable of affecting the will without showing that his will was affected at the material time. Upetire v. A‑G,West (1964) 1 All NLR 204. The appellant gave a clear and lucid account of the incident with the deceased. That does not suggest an insanity or temporary delusion. Section 28 of the Criminal code does not avail him.
In the judgment at page 54 lines 10‑13 the learned Judge said:
“The wounds were on the lower part of the deceased’s body. The accused did not tell the court how the shot went to those parts of the deceased’s body”.
It seems to me that this is casting the burden of proof upon the appellant. It is not merely a question of adducing evidence on a matter whether or not peculiarly within his knowledge. It does not lie with the defence to offer evidence of such circumstance as the location of the injury and I hold the view that failure of the defence to lead evidence does not confirm the prosecution’s case. But there is a difference between leading evidence which would enable a jury to find an issue in favour of a defendant and putting the onus on him ‑ R. v. Lobbel cited in Okoko v. The State (1964) 1 All NLR 423.
The matter is not peculiarly within the appellant’s knowledge. See Akosa v. Commissioner of Police 13 WACA 43 at page 44. It is a serious misdirection to say that the accused did not tell the court how the shot went to those parts of the deceased’s body. The learned Judge described the defence of struggling with the deceased for the gun as an afterthought and that the appellant should have told the court how the shot went to those parts of the body. Such approach runs counter to the view which has prevailed since Woolmington v. Director of Public Prosecutions (1935) A.C. 462; the onus does not shift onto the accused person to the prosecution throughout. See Nwagu v. The State (1966)1 ALL NLR 213, Sholuade v. The Republic (1966) 1 All NLR 134.
I have given very careful consideration to the evidence adduced in the whole case. The circumstantial evidence relied on fails short of conclusiveness. There were several circumstances pointing to the appellant’s guilt, there was no legal evidence to support a verdict of guilt. There is the testimony of P.W.2 which turned to be unreliable and on which the learned Judge placed great reliance. There is again Exhibit “G” which was treated as confessional and on which a verdict of was placed. He referred to evidence which he said was dying declarations which is not. Adequate consideration was not given to the defences available to the appellant and there are passages in Judgment casting onus on the appellant to prove accident. It is arguable that the admission of incompetent evidence not essential to the result is not a ground for allowing the appeal. As was said in Teper (1952) A.C. 480 at 491 “the dominant question is the broad one whether substantial justice has been done” and that in the particular case, the question was “whether looking at the proceedings as a whole, and taking into account what has been properly proved, the conclusion came to has been a just one”.
It is my view that on a fair consideration of the whole proceedings, the defects which I have highlighted may probably have turned the scale against the appellant. Counsel for respondent has sought to belittle the effects of those defects. Without evidence, same verdict was not inevitable. It will be unsafe to convict on the state of the evidence and I hold that the prosecution has not proved its case beyond reasonable doubt and the appeal must succeed. It is hereby allowed, the conviction and sentence are quashed. The appellant is found not guilty. He is discharged and acquitted.
I have had the advantage of reading in draft the judgment of my learned brother Omosun J.C.A. just delivered. I agree with him that this appeal deserves to succeed. I only have an area where I wish to make some comments.
It was submitted by learned counsel for the appellant that there was contradiction in the evidence of P.W.2 and his statement to the Police. With respect to learned counsel, I can find no such contradiction. True enough, the witness in testimony in court claimed that he saw the appellant shoot at the deceased. This is a very vital piece of evidence which if believed, would tend to destroy the defence of accident put up by the appellant. In his statement to the police, he made at the time of the incident and when the facts would be expected to be still fresh in his memory, he did not say that he saw the appellant shoot at the deceased, It is not a contradiction to say in evidence what a witness failed to say in his statement to police at the early stage of the incident. The effect of course, of such omission is to render the evidence given in Court rather suspect, that is, the trial Judge should have been very cautions indeed to act on that evidence. The learned trial Judge, unfortunately, in this case did not exercise that caution and for that reason, lam not prepared to say that had he directed his mind properly, he would have acted unhesitatingly on the evidence of P.W.2. In the absence of any explanation from witness why he failed to mention this all important fact in his statement to the Police it would be unsafe to act on his evidence. We are thus left with the account of the incident as given by the appellant both in his statement to the police and in his evidence to the Court and as it cannot be said that the account given was unreasonable, the learned trial Judge ought to have accepted it and find that the death of the deceased was as a result of accidental shooting.
For the above reasons and the other reasons in the lead judgment of my learned brother Omosun, J.C.A. I too allow this appeal, set aside the judgment of the court below and discharge and acquit the appellant.
I have had the advantage of reading in draft the judgment of my learned brother OMOSUN, J.C.A. just read. I entirely agree with his reasoning and conclusion. For the same reasons I allow this appeal and enter a verdict of not guilty. The conviction and sentence of the appellant is hereby quashed. He is acquitted and discharged.
Appellant discharged and acquitted.