➥ CASE SUMMARY OF:
Henry Nwokearu V. The State (SC.227/2011, 24 MAY 2013)
by Branham Chima.
➥ ISSUES RAISED
Murder
Automatism
➥ CASE FACT/HISTORY
Appellant was charged with the offence of murder contrary to Section 319(1) of the Criminal Code Cap. 30 Vol. II Laws of Eastern Nigeria applicable in Imo State before the Mbano/Etiti Judicial Division of the High Court of Imo State sitting at Etiti.
The particulars of the charge read thus: “Henry Nwokeoru on the 25th day of February, 7994 at Umuogele, Umuariam, Obowo in the Mbono/Etiti Judicial Division murdered Felix Onuoha.”
Appellant pleaded not guilty to the one-count charge on 27th June, 2001. The prosecution opened its case before Agugua, J. on 14th January, 2002, called six (6) witnesses and closed its case on 3rd February, 2003. Defence opened on 5th February, 2003. The appellant testified as PW1, called two other witnesses as DW2 and DW3 and closed his case on 14th May, 2003. Learned Counsel for the parties addressed the trial Court.
In his judgment delivered on 19th November, 2003 the learned trial Judge took pains to review the evidence led on each side and the addresses of learned Counsel for the parties and concluded: “From the totality of the evidence before me I am left in no doubt as to the role of the accused Henry Nwokeoru.
I accordingly find him guilty of murder as charged.” and sentenced him accordingly.
Appeal to the Court of Appeal was dismissed.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether the Court below was not wrong in failing to set aside the judgment of the trial Court in the absence of proof of specific intention to commit the offence of murder for which the appellant was charged and convicted?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE TRIAL JUDGE FOUND THAT INTENTION WAS ESTABLISHED
‘The trial Court found as a fact that intention was established through the evidence of prosecution witnesses. In his defence, appellant said inter alia: “As I was in my room I heard people quarrelling, I then came outside and met my uncles, namely Friday Onuoha…clustering round my father, heating him. On my seeing this action against my father I was annoyed. I approached my uncles to leave my father. They all left my father and rushed on me and out of annoyance and self defence I stabbed the deceased, Felix Onuoho with my dagger…” See page 125 of the record. The evidence of the appellant in his defence is irreconcilably in conflict with the evidence of the prosecution witnesses who gave eyewitness account of the incident. The learned trial Judge, having evaluated the evidence and ascribed probative value thereto accepted the evidence of the prosecution against that of the defence. I cannot say that the learned trial Judge did not make good use of the opportunity of seeing and hearing the witnesses from both sides gave their evidence.’
THE APPELLANT EMERGED FROM HIS ROOM WITH A DAGGER
‘In this case, the appellant emerged from his room with his dagger. If his case is that he did not intend to stab anyone with the dagger, then why did he come out with it, it not being part of his uniform? In the circumstances, it is my view that having come out of his room with the dagger, he had the intention of using it. Not only that he stabbed the deceased with the dagger, he stabbed him at a most vulnerable part of the body – on the left side of the chest. At page 34 of the record, PW1 testified in part as follows: “As accused came in he raised his T’ shirt and brought out a dagger he was holding and stabbed my brother Felix at the left side of his chest. Felix fell down, accused used the same dagger and stabbed my other brother Abraham Onuoho at the left jaw and right arm.”’
‘It would be unreasonable to conclude from the facts that the appellant who came out of his room with a dagger and stabbed the deceased on the left side of his chest to such death that the deceased fell down and died, did not intend to kill the deceased or cause him grievous bodily harm. Appellant was a soldier and knew where to strike to kill. It was a meditated and brutal attack on a defenceless relation of the appellant.’
‘Appellant gave two different accounts of the dagger – that it is part of his military uniform and that it is his personal property. In any case, I have demonstrated that a dagger or any other form of weapon cannot be part of a soldier’s uniform. A soldier’s uniform is distinct from his weapon which is issued to him as and when due. May be learned Counsel thinks it will be less than murder if a dagger sharpened for dismembering the carcase of a goat is used intentionally to kill a person. It is immaterial that the dagger was not sharpened or that it was sharpened for a purpose other than killing a person or causing him a grievous bodily harm. The lower Court was right when it affirmed the judgment of the trial Court that the act of the appellant was intentional.’]
.
.
II. Whether the defence granted by Section 24 of the Criminal Code was not improperly denied the appellant by the way the Court below held that the defence of occident con only be credible and thus acceptable if there had been a physical fight between the parties prior to the emergence of the appellant to the scene?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[PLEA OF AUTOMATISM DOES NOT AVAIL THE APPELLANT
‘A plea of automatism is of no avail to the appellant. Evidence shows, the trial Court found, and the Court below affirmed, that the appellant was master of his senses when he deliberately stabbed his victim to death. If the appellant suffered from amnesia at the material time, it was a selective one. Appellant is not “a bloody civilian”. He is a soldier trained to kill. He knew where to strike to kill.’
DEFENCE OF SELF-DEFENCE DOES NOT AVAIL THE APPELLANT
‘On the second arm of Section 24 of the Criminal Code, appellant cannot bring his act of stabbing the deceased to death within the meaning of “event which occurred by accident.” In his statement to the Police, he said: “… out of annoyance and self defence I stabbed the deceased…” See page 118 of the record. Annoyance is a feeling of being slightly angry. See Oxford Advanced Learner’s Dictionary, 20th Edition, page 51. An act done by someone slightly angry cannot be said to have occurred by accident. Also self-defence is a deliberate act to save oneself from impending danger and cannot be attributed to accident. Appellant, a trained soldier armed with a dagger, who attacked and killed an unarmed and defenceless civilian who did not in any way attack him, cannot rely on self-defence. He was not defending himself from anything or anyone.’]
.
.
.
✓ DECISION:
‘On the evidence, and as found by the trial Court and affirmed by the Court below, the third element was proved beyond reasonable doubt. All the defences available to the appellant were considered and rejected. Therefore the prosecution discharged its burden of proof beyond reasonable doubt. See Fasheun and ors v. A-G Federation (2008) All FWLR (Pt. 423) 1396 at 1411 A-B and Okoro v. The State (2012) 1 KLR (Pt. 305) 337 at 345 paras B-C. The two issues having been resolved against the appellant, his appeal fails and is hereby dismissed. I endorse the judgment of the lower Court affirming the decision of the trial Court.’
➥ FURTHER DICTA:
⦿ ISSUES SHOULD NOT BE MORE THAN THE GROUND OF APPEAL
The principle of law is that the grounds of appeal should in no circumstance be less than the issues for determination. Since the Respondent did not marry his issues with the grounds of appeal, I am left with one option – to strike out the Respondent’s third issue. Issue three in the Respondent’s brief is hereby struck out as it does not relate to any of grounds one or two of the appellant’s grounds of appeal. (See Omo v. JSC Delta State (2000) 7 SC (Pt. 11) page 1. — N.S. Ngwuta, JSC.
⦿ CIRCUMSTANCES WHERE A PERSON IS DEEMED TO UNLAWFULLY KILL ANOTHER
A person who unlawfully kills another under any of the following circumstances is guilty of murder: (1) If the offender intends to cause the death of the person killed or that of some other person. Under this heading, the prosecution is bound to prove beyond reasonable doubt: (a) that the deceased died; (b) that the death of the deceased resulted from the act of the accused; (c) that the act of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See Section 316(1) of the Criminal Code Cap 30 Vol. II Laws of Eastern Nigeria 1963 as applicable in Imo State of Nigeria under which the appellant was charged, tried, convicted and sentenced to death. See also Offorlete v. The State (2000) 80 LRCN 26 20; Effiong v. The State (1998) 59 LRCN 39 61; Richard Igago v. The State (1999) 73 LRCN 3502 at 3535. (2) If the offender intends to do to the deceased or to some other person some grievous harm. See Section 316(2) of the Criminal Code (supra); R v. Dim (1952) 14 WACA 154; R v. Adi (1955) 15 WACA 6. (3) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life. The unlawful act need not be a felony so long as it is likely to endanger human life. See Section 316 of the Criminal Code (supra); Obayi Asa v. The State (1976) 7 SC 173; Idowu v. The State (2000) LRCN 2788; R v. Attah (1961) 1 All NLR 590. (4) If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without a warrant, or for purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence. (5) If death is caused by administering any stupefying or overpowering things for either of the purposes in (4) above. (6) If death is caused by willfully stopping the breath of any person for either of such purpose. See Section 316(6) of the Criminal Code (supra). — N.S. Ngwuta, JSC.
⦿ MEANING OF INTENTIONAL AND INTENTION
One may ask: what is “intention” from which the word “intentional” is derived? Intention is the purpose or design with which an act is performed. It is the foreknowledge of the act coupled with the desire to do the act. The foreknowledge and desire form the cause of the act in so far as they fulfil themselves through the operation of the will. An act is intentional if, and in so far as it exists in idea before it exists in the realm of facts; the idea realising itself in the fact because of the desire by which it is accompanied. See Advanced Law Lexicon, 3rd Edition Reprint 2009, page 2394. — N.S. Ngwuta, JSC.
⦿ NO NEED TO ESTABLISH TRUTH OF FACT ALREADY ADMITTED
There is no need to establish the truth of a fact already admitted. See Ajikawo v. Ansaido (Nig) Ltd (1991) 2 NWLR (Pt. 173) 359. — N.S. Ngwuta, JSC.
⦿ THERE NEED NOT BE AN INTENT TO KILL FOR MURDER TO SUCCEED
What then is Murder as an offence with which the appellant was charged, convicted and sentenced? Murder is the taking of human life by a person who either (a) has a malicious and willful intent to kill or do grievous bodily harm, or (b) is wickedly reckless as to the consequences of his act upon his victim. For murder therefore, there must be an evil intent, that is, a criminal intent although it is not necessary that there should be an intent to kill. See; R v. Viockers (1957) 2 All ER 741 at 744. — Ariwoola JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Nwali Sylvester Ngwuta, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Ngozi Ulehi.
⦿ FOR THE RESPONDENT(S)
S.A. Njoku, A-G Imo State.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
