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3PLR/1996/80  (CA)



1 NWLR PART 480 PG. 209








  1. O. Akhidenor – for the appellant
  2. O. Odigwe – Legal Officer, Ministry of Justice, Delta State – for respondent



CRIMINAL LAW AND PROCEDURE: Inconsistency rule: Extra-judicial confession of accused :Defences open to accused




SUNDAY AKINOLA AKINTAN delivering lead judgement:

This is an appeal from the judgment of Odita. J. sitting at Ogwashi-Uku High Court in charge No.0/1OC/89. The judgment was delivered on 14th August, 1992. The appellant was arraigned on an information before the Court for the offence of murder punishable under Section 319(1) of the Criminal Code Cap. 48, Laws of Bendel State of Nigeria 1976. The particulars of the offence are that the appellant on or about the 3rd day of April, 1988 at Obomkpa in Ogwashi-Uku Judicial Division, murdered Nkencho Uduje. The case was tried before Odita, J. At the trial, the prosecution called 8 witnesses in support of its case. The appellant testified on oath in his defence but called no witnesses.

The prosecution’s case was that on 3rd April, 1988 one Kanayo Okonkwo (f), who had just completed her apprenticeship training as a hair dresser, held a party to commemorate her successful completion of her said training. To that end, she invited many of her friends to the party. The girl entertained her guests with food and non-alcoholic drinks. The party ended at about 10.00 p.m. in the night and the guests left. The incident that led to the institution of this case took place while the guests were on their way home from the party.

According to the account of the incident given by Ngozi Nkosanyam (P.W.1), one of the guests who attended the party, the man told the court, inter alia, that as he and some other guests were going home after the party between 10.00 and 11.00 p.m. that night, they saw the accused person standing along the road. The witness gave the names of some of the people with whom he was going home at that time as including Mary Okonkwo and Nkencho Uduje, now deceased. At a point along their way, the appellant called Mary Okonkwo. The girl told the accused that it was nighttime and she could not come to where the appellant was standing by the side of the road. The appellant then got hold of the girl and tried to separate her from the other people walking along with her. The girl struggled to relieve herself from the appellant’s grip. The other people in company of the girl intervened and were able to release the girl from the appellant’s grip. P.W.1 then said he had to accompany the girl to her house leaving behind the deceased and the others together with the appellant at the spot where they met the appellant on the way. After taking the girl home, P.W. I returned to the scene and there he saw the deceased lying on the floor with blood on his body. The deceased was then still alive. The P.W.1 and the others with him decided to take the deceased to a nearby chemist shop for treatment. But the man died on their way to the chemist.

Basil Uduje (P.W.2) who claimed to be a brother of the deceased, told the court that he was already in bed in his house that night when his father called him and informed him about an incident involving his brother. The witness said he ran to the scene and met his brother, the deceased, in a pool of his blood. The deceased was then still alive. The witnesses said further that he immediately started to look for the appellant and while looking for the appellant he went to the appellant’s house. There he forced the door to the appellant’s room open and saw the appellant in his room. The witness said further that immediately the appellant saw him, the appellant asked if he (P.W.2) too needed his own share of the stabbing. The appellant then brought out a knife from under his pillow and tried to stab the witness on the chest with the knife. The witness said that he defended himself by dodging but that the appellant was able to inflict the wound on his head by stabbing him (the witness) on his head. P.W.2 said he was, however, able to knock down the appellant and remove the knife from the man. He identified the knife he recovered from the appellant that night as identification (A) which was later admitted as Exhibit 2 at the trial. The same witness said further that with the help of other people around, the accused was held before he (P.W.2) was taken to the hospital for the treatment of the stab wound he received on his head.

Mary Okonkwo (P.W.3) confirmed before the trial court that the appellant in fact tried to stab her with a knife that night after she refused the man’s invitation to come to where he was standing by the side of the road. She also identified Exhibit 2 as the knife with which the appellant tried to stab her. The girl said further that the appellant was prevented from stabbing her by the other people who held him.

The corpse of the deceased was taken to Agbor General Hospital where a post-mortem examination on it was performed by Dr. Michael Oghangwo (P.W.7) on 4th April, 1988. The Doctor certified the cause of the deceased’s death to be “traumatic shock and bleeding from the perforation of the heart”. He said further that on examination of the body, he found that there was a deep laceration on the occupation. There was also a penetrating piercing injury between the 5th and 6th intercostal space which pierced through the heart. He gave the age of the deceased at about 18 years and concluded that in his opinion, the injuries could be caused by sharp object as a knife violently applied.

The appellant upon his arrest made a confessional statement under caution to Sergeant Hillary Edom (P.W.6), the Investigating Police Officer. The witness told the Court, inter alia, that after he charged the accused with the offence of murder and cautioned him in English, the man volunteered the statement in “pigin English” which he (P.W 6) recorded in “Pidgin English”. The witness then produced the statement which was admitted without objection as Exhibit I1.

A day after the confessional statement (Exhibit 1) was made by the appellant, he (appellant) was taken before Augustin Okoh Oyeli (P.W.8) a Deputy Superintendent of Police for confirmation. The man said he read out the same statement to the appellant who confirmed that it was his statement which he made voluntarily to P.W.6. The statement was then duly endorsed by P.W.8.

The appellant said, inter alia, in the statement (Exhibit 1) that he attended the party that night and that after the party he too was going home when he saw the boys namely: Ose, Nkencho and Ekene. all of them with bottles of beer. He went on thus:-

“So after the party in the evening, as I was going to my house I see three boys namely Ose, Nkencho and Ekene all of them with bottles of beer. So Ose nack me bottle for my face so I put hand for my pocket bring out my pen knife takam stab Nkencho for chest. When I don stab Ukencho for chest everybody begin to shout. That time I don drunk well well but now I no dey drunk. The person we give me the drink na one of my brother called Ockwuchuwku Olika. Na two bottles of beer he give me. Me and Ose Uduje, Nkencho and Ekene Eze no get quarrel before. The time when I stab Nkencho finish I come comot. Before I comot I don stab Nkencho finish. After I don stab am, I come go for my house, I dey for my room when one Sunday Ojojo come tell me say Nkencho don die because of the stab way I stab am. So Sunday Ojojo took me to Okocha place. Na there they take rope tie me for hand and leg”

The appellant, in his evidence at the trial, denied that he made the statement (Exhibit I) voluntarily as alleged by P.W.6. He told the court that he accompanied a friend, called Boy Uwadozie, to the party. He said further that he assisted Boy Uwadozie in carrying the musical instruments used at the party to and from the party to Boy Uwadozie’s house. At about 10 minutes to 11.00 that night he heard that people were fighting at Ogbe-Obi Obomkpa. He said he did not go to the scene where the fighting was taking place. He was in his room. There, 3 people came to him and told him that he was the person that fought with Ukencho Uduje. He denied the allegation but they started to beat him up. The next morning. the police invited him to the police station where he was asked to make a statement. He told the police that he was an illiterate; but the police started to beat him. The policeman then wrote down the statement and the next day he was charged to court. He denied stabbing P.W.2 with a knife on his head or that he was the one who killed Nkencho Uduje. The appellant, however, admitted under cross-examination that he made a statement to the police but stated further that the policeman added his own words to what he told him. He also denied that the police ever read the statement to him but he admitted that he signed it.

In a reserved judgment delivered on 14th August, 1992 Odita. J. rejected the evidence given by the appellant in which he denied committing the offence. He also rejected his denial of making the statement Exhibit I voluntarily. He then held that the prosecution had proved its case against the appellant. He accordingly found him guilty as charged and sentenced him to death by hanging. The present appeal is against the verdict of the court. Two original grounds of appeal were filed and, with leave of this court, 2 additional grounds were added. The parties filed their briefs in this court. The following 2 issues were formulated for determination in the appellant’s brief:-

“1.     Whether the instrument presented in Court is distinct from the instrument confessed by the appellant was such to lead to the conviction of the accused for murder rather that manslaughter having regard to the circumstances of the case that there was no mens rea proved by the prosecution.

  1. Whether there was not enough provocation on the accused to have reduced the sentence of death to manslaughter.”

Two similar issues were also formulated in the respondent’s brief which I need not reproduce.

The main plank of the appellants’ submission, in respect of the 1st issue, is that the learned trial judge relied on the confessional statement made by the appellant rather than the account of the incident he gave at the trial. The court was said to have erred in holding that the knife used by the accused was Exhibit 2 whereas, according to the statement of the accused (Exhibit 1) the appellant said that he dropped the knife at the spot where he did the stabbing. Reference was also made to the evidence of P.W.2 as to how he (P.W.2) said he recovered the knife (Exhibit 2) from the house of the appellant that night after a scuffle. The learned trial Judge was said to have failed to resolve the conflict in the evidence relating to the knife as contained in the statement of the accused and the account of how P.W.2 recovered the same knife. This omission was said to be very vital to the prosecution’s case.

Similarly, the defence of provocation and self-defence as raised in the statement of the accused (Exhibit 1) was said not to have been considered by the learned trial Judge. This is again said to be very vital and the failure amounted to a miscarriage of justice.

The identity of the weapon used is one of the points canvassed in the appellant’s brief. It is true that Basil Uduje (P.W.2) told the court that what the appellant brought out from under his pillow was a dagger. But he identified the knife tendered as the instrument. The court recorded the instrument as “Identification A, knife identified’ Ngozi Nkosanyam (P.W.1) also identified the same knife as the very weapon which the appellant brought out and with which he tried to stab Mary Okonkwo (P.W.3). The same P.W.3 also identified the same knife as the one with which the appellant used to stab her when he (appellant) accosted her along the road but was prevented from doing so by the people who held him back. The same knife was admitted as Exhibit 2.

The learned trial Judge made specific finding of fact in his judgment regarding the instrument used by the appellant in stabbing the deceased. He said thus:-

“From the evidence before me I am of the firm view that the accused made Exhibit 1 freely and voluntarily. Accordingly, I find as a fact that the accused struck the deceased Nkencho Uduje with Exhibit 2,. the knife.’

I have no doubt in holding that the above finding of fact is adequately supported by the evidence placed before the court.

The question whether the evidence available was sufficient to support the conviction for murder was also raised in the appellant’s brief. It was submitted that the learned trial Judge failed to consider the defences raised by the defence. The defence of provocation was particularly mentioned in this respect.

As already mentioned above, the appellant made a confessional statement which was admitted in evidence without objection at the trial. The defence of provocation was said to have been raised in the said statement when the appellant stated that one of the 3 men he met that night hit him with beer bottle he carried. The appellant however, retracted his oral evidence at the trial. He totally denied committing the offence and failed to raise any defence. The learned trial judge rightly rejected the appellant’s oral testimony on the principle of law that where an accused makes a statement which is inconsistent with his testimony in court, such testimony is to be treated as unreliable. That stand is in accordance with the established principle of law; See Oladejo v The State (1987) 3 NWLR (Pt 61) 419; Nwangbomu v The State (1994) 2 NWLR (Pt 327) 380; and Edamine v The State (1996) 36 L.R.C.H 455.

Since the appellant failed to give any evidence to substantiate the defence of provocation raised in his confessional statement, the court was right in holding that there was no evidence to support the defence of provocation. It is settled law that before an accused can successfully raise the defence of provocation, he must satisfy the court that the act that caused the death of the deceased was (a) done in the heat of passion; (b) caused by sudden provocation; and (c) before there is time for passion to cool: See John v Zaria N.A. (1959) NRNLR 43. In addition to the above three requirements are the requirements that the retaliatory act is proportionate to the act of provocation and must be directed against the person that caused the provocation.

In the instant case, although the appellant alleged in his confessional statement that each of the 3 men: Ose, Nkencho and Ekene were holding bottles of beer, it was Ose that appellant alleged hit him with bottle on his face. But the person stabbed was Nkencho and not Ose who hit him with bottle. It is clear from the contents of the appellant’s statement that no satisfactory defence of provocation had been raised. The learned trial Judge was therefore right when he held that no evidence was adduced before him to support the defence of provocation.

The court accepted the confession of the appellant as contained in his said confessional statement and rejected the appellant’s contrary evidence given in court. I have no doubt that the admission of the appellant in his said statement, coupled with the other circumstantial evidence given by the other witnesses that gave evidence at the trial, there was sufficient evidence to support, the conclusion reached by the court. I therefore hold that there is no merit in the appeal. I accordingly dismiss it. The conviction and sentence passed on the appellant are accordingly affirmed.

Cases referred to in the judgment:

Dim v Queen (1952) 14 WACA 154

Edamine v State (1996) 36 L.R.C.H. 455

John v Zaria N.A (1959) NRNLR 43

Nwangbomu v State (1994) 2 NWLR (Pt. 327) 380

Obosi v State (1965) NMLR p. 129

Oladejo v State (1987) 3 NWLR (Pt. 61) 419

Queen v Onuro (1961) 1 SCNLR 56

Queen v Raft (1955) 15 WACA 26



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