Where killing was intentional self defense fails – Rhodes-Vivour

This is an appeal from the judgment of the Benin Division of the Court of Appeal which affirmed the decision of an Oleh High Court Delta State that sentenced the Appellant to death. On the 18th day of January, 2006 the Appellant was arraigned on one count for murder. The charge read: STATEMENT OF OFFENCE Murder punishable under Section 319(1) of the Criminal Code Cap 48, Vol.ii Laws of the defunct Bendel State of Nigeria 1976 as applicable to Delta State. PARTICULARS OF OFFENCE Harrison Owhoruke (M) on or about the 14th day of November, 2004 at Uroto Quarters, Ozoro, within the Oleh Judicial Division murdered one Augustine Eveh (M)

The Appellant as the accused person pleaded not guilty to the one count charge of murder. In support of its case the prosecution called four witnesses, they are:

PW1 - The medical doctor who performed the postmorterm examination on the deceased

PW2 - gave evidence of what he saw and heard when the deceased was stabbed by the Appellant

PW3 - the father of the deceased. He identified the corpse of his dead son to PW1. PW4 - The Investigating Police Officer Documents marked exhibits, A, B, C, D, E, were admitted in evidence. The Appellant gave evidence, but did not call any witness. The facts are these. Augustine Eveh (deceased) and PW2, Joel Eriewe were outside the E. T. O. Bar at Uroto Quarters, Oleh, in Delta State at about 8.pm on the 4th of November, 2004. The Appellant was inside the Bar having a drink. There was an altercation outside the Bar between a man called Uzezi and Joel Eriewe over a girl who goes by the name Blessing. The Appellant was attracted to the scene and was able to restrain Joel Eriewe and Uzei from fighting. The Appellant thereafter returned to the Bar to resume drinking. The deceased came into the bar and snatched the Appellant’s bottle of drink and broke it. He held on to a piece of the broken bottle and threatened the Appellant with it. A struggle ensued. The appellant overpowered the deceased and stabbed him with the broken bottle on his neck. He died before he could get to the Hospital. The medical Doctor who performed the postmortem examination on Augustine Eveh said on oath that the stab wounds were on the left side of the neck, and that the major blood vessels, carotid arteries and jungular veins were cut into two. He concluded that the wound was not self inflicted. The Appellant admits that he stabbed the deceased, and that act of his resulted in his death, but that the death was not intentional.

The learned trial judge reviewed evidence led in detail, examined the defences of self defence, provocation and accident and rejected all of them in these words.

“I totally reject the defence of the accused. I hold that this case was proved beyond reasonable doubt against the accused. I find the accused guilty as charged and convicted (sic) accordingly for the offence of murder punishable under Section 319(1) of the Criminal Code Cap 48, Vol. ii. Laws of the defunct Bendel State 1976 as applicable in Delta State”.

The Appellant lodged an appeal. The Court of Appeal Benin Division affirmed the judgment of the trial High Court. The Court concluded thus:

“From the fact of this case the trial judge had considered all the facts before coming to the conclusion reached. The prosecution has proved the case of murder against the accused person and the conclusion is not perverse therefore not liable to be interfered with. The judgment of the trial court i.e. Delta State High Court of Justice at Oleh delivered on 10th August, 2006 is affirmed”. This appeal is against that judgment. Learned counsel for the Appellant formulated a sole issue for determination. It reads:

1. Whether the learned justices of the Court of Appeal were right in upholding the decision of the trial court that the Appellant is not entitled to the defence of self defence and provocation.

Learned counsel for the Respondent also formulated a sole issue for determination. It reads:

1. Whether having regard to the state of Evidence the Court of Appeal was right in law when it affirmed the judgment of the trial court.

I shall consider the Appellant’s sole issue in resolving this appeal.

By his own admission in both his statements the Appellant said that he stabbed the deceased on his neck. This was corroborated by PW1, the Medical Doctor who performed the postmortem examination on the deceased when he said on oath that:

“upon examination I found a young man with two stab wounds on the left side of the neck, cause of death was severe harmorhage secondary to stab wounds.”

When the defence of provocation is raised, the question is whether the Appellant was in fact provoked to lose his self control. If the answer is yes, the next question is whether the provocation was enough to make a reasonable man do as he did. That is, stab the deceased to death.

There is no doubt that the act of the deceased in snatching the Appellant’s bottle of drink and breaking it, then proceeding to threaten the Appellant with the broken bottle is enough to provoke a reasonable man to lose his self control.

Was the retaliation proportionate to the provocation?

Learned counsel for the Appellant never denied that the Appellant was responsible for the death of the deceased. On page 4 of the Appellant’s brief learned counsel says:

“From the evidence on record, the issue of the death of the deceased was not in contention. It was also not in dispute that the act of the Appellant was responsible for the death of the deceased”

The Appellant made two confessional statements. There was no objection when they were tendered in court. In Exhibit C the Appellant said:

“I overpower (sic) the deceased and collected the broken bottle from him and used it to stab him the neck.” In Exhibit E the Appellant said: “I later overpowered him and seized the bottle from him. And I used it to stab him on his neck”.

The threat to the Appellant’s life ended when the Appellant overpowered the deceased and took the broken bottle from him. A reasonable man would have given the deceased a couple of slaps and thrown away the broken bottle. Stabbing the deceased with the broken bottle was clearly disproportionate to the provocation. The stabbing of the deceased was not as a result of temporary loss of control rather the stabbing was for the sole purpose of causing grievous harm. In such a situation it is immaterial that the Appellant did not intend to hurt the deceased. The killing was intentional and the defence of provocation would not avail the Appellant.

Section 286 of the Criminal Code states that:

286. When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault:

Provided that the force used is not intended, and is not such as is likely to cause death or grievous harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believe, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.

The defence of self defence would avail the Appellant if he can show that at the time he stabbed Augustine Even (deceased) he was in apprehensive of death or grievous bodily harm from Augustine Eveh (deceased). By his own admission, the Appellant was no longer in apprehension of death or grievous bodily harm since he stabbed the deceased after he had overpowered him and retrieved the broken bottle from him. At the time of the stabbing the Appellant he was no longer in apprehension of death but rather an unjustified aggressor that retaliated in a disproportionate manner. The killing was intentional.

It is lawful if the nature of the assault on the Appellant is such as to cause reasonable apprehension of death or grievous harm for him to use such force on the deceased as is necessary to defend himself, but this does not arise since the danger had passed after the Appellant overpowered the deceased, retrieved the broken bottle from him and stabbed him on the neck with it. The stabbing was clearly unnecessary. The killing was intentional. The defence of self defence fails.

In view of concurrent findings of fact by the two Lower Courts, this court will not interfere with such findings unless special circumstances are shown, such as the findings are perverse, or there was a serious error of procedural or substantive law which has resulted in a miscarriage of justice. See Lasisi v. State (2013) 3-4 SC (pt.i) p.58

Ndulue & anor v. Ojiakor & 2 Ors (2013) 1-2 SC (pt.ii) p.91.

This is not the case as no special circumstances have been shown in this case to warrant any interference with these concurrent findings of fact.

The Court of Appeal described the defence of the Appellant as confused. This is true. The reason is simple. The Appellant did not have the service of a legal practitioner when he wrote exhibit E, a day after the incident. It must be noted that most crimes are committed by people with little or no education, consequently they are easily led along by the Investigating Police Officer to write incriminating statements which legal minds find almost impossible to unravel and resolve. Confessional statements are most times beaten out of suspects, and the courts usually admit such statements as counsel and the accused are unable to prove that the statement was not made voluntarily. A fair trial presupposes that police investigation of the crime for which the accused person stands trial was transparent. In that regard it is time for safeguards to be put in place to guarantee transparency. It is seriously recommended that confessional statements should only be taken from suspect if, and only if his counsel is present, or in the presence of a legal practitioner. Where this is not done such a confessional statement should be rejected by the court. In the end, I find myself in complete agreement with the judgment of the Court of Appeal, which affirmed the judgment of the Trial High Court. The appeal is dismissed. Appearances Ayo Asala with him, E. M. Odje, for the appellants

O. E. Enemmo DDPP of Delta State Ministry of Justice with him, Mrs. N. B. Emakpor, SSC Ministry of Justice Delta State, for the respondents