Aganmonyi v. AG Bendel State (1987)

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DAVID AGANMONYI

V.

ATTORNEY-GENERAL OF BENDEL STATE

SUPREME COURT OF NIGERIA

SC. 127/1985

ANDREWS OTUTU OBASEKI, J.S.C. (Presided)

KAYODE ESO, J.S.C.

AUGUSTINE NNAMANI, J.S.C. (Read the Lead Judgment)

MUHAMMED LAWAL UWAIS, J.S.C.

BOONYAMIN OLADIRAN KAZEEM, J.S.C.

FRIDAY, 16TH JANUARY, 1987

CRIMINAL LAW – Circumstantial evidence – Effect.

CRIMINAL LAW – Confession – Effect where corroborated in evidence.

CRIMINAL LAW – Defences – Provocation – Self-defence and insanity – Principles applicable.

CRIMINAL PROCEDURE – Charges – Murder joined with another offence – Propriety.

CRIMINAL PROCEDURE – Charging accused to court – By information or committal – S.340 Criminal Procedure Law Bendel State, considered.

Issues:

1.
Whether it is possible to join a count of murder with another offence in the same charge.

2.
Whether the appellant’s conviction was rightly upheld by the court.

Facts:

The appellant was charged before the High Court of Bendel State on two counts of unlawful wounding and murder. He was alleged to have injured a woman Felicia Omogui, with an iron rod, and also to have killed one Samson Aganmonyi, his brother, with a knife.

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The brief facts were that on the fateful day P.W.l Solomon Aganmonyi, a brother of the accused and deceased came home to find the accused (the appellant) at the backdoor of the house with a piece of iron and a knife. The accused pointed the iron and the knife in the direction of P.W.l. and said that P.W.l was lucky or else he would finish him. When P.W.1 entered the house he found the body of the deceased, Samson Agonmonyi, on the ground while his bed and beddings were full of blood. He raised an alarm to secure the attention of the people and the accused chased him away with the rod and knife. At about 7.30 p.m. same day (20/9/80) while P.W.4, Felicia Omogui, was at home with her children, the accused rushed into her room and slapped her. When she raised an alarm, the accused said that he was going to finish every one in the house that day. P.W.4 and her husband were tenants in the accused’s father’s house. The accused produced a knife from his pocket and P.W.4 held his hand but he stabbed her left wrist with the knife. P.W.4 wanted to run but the accused struck her chin with an iron and she fell at the door. P.W.4 became unconscious and was later rushed to the hospital.

The accused made a confessional statement to the police.  The accused raised the defences of provocation, self-defence and insanity. He was convicted by the trial Judge, Gbemudu J. on both counts, but the sentence for the first count of unlawful wounding was suspended.
The Court of Appeal upheld the conviction and the appellant further appealed to the Supreme Court.

Held:

1.
For the defence of provocation to avail an accused person, he must have acted under grave or sudden provocation, before there was time for passion to cool down. Mere annoyance does not amount to provocation. The following cases considered and relied upon: [Lee Chun-Chuen v. The Queen (1963) 1 A.E.R. 73; Okoro v. Rex (1942) 16 N.L.R. 63; Obuji v. The State (1965) N.M.L.R. 417; R. v. Nwanjoku (1937) 3 W.A.C.A. 208; Laoye v. The State (1985) 2 N.W.L.R. (Pt. 10) 832.]

2.
Murder accused will be availed by the defence of self-defence he killed the deceased under reasonable grounds that his life was in danger and that he had to kill in order to preserve it.

3.
To determine whether a murder accused had reasonable grounds to believe that his life was in danger, his belief would be tested on objective grounds and such factors as the quality of the force used on him, and the proportionality of his reply must be considered. In the instant case the act of the appellant of killing the deceased was clearly beyond proportion to the kind of force applied on the appellant, which according to him, was being hit on the teeth and fingers with a rod.

4.
By Section 27 of the Criminal Code, every person is presumed to be of sound mind and to have been of sound mind at any time in question unless the contrary is proved.

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  5.
An accused person relying on the defence of insanity has the onus of establishing the defence, although the onus would be discharged on a balance of probabilities: [R. v. Echem 14 WACA 158 considered and applied.]

  6.
The absence of motive in the actor conduct of an accused person is not by itself evidence that the accused is insane.

  7.
The Supreme Court will not interfere with the concurrent findings of both the High Court and Court of Appeal unless there is a miscarriage of justice.

  8.
Conviction for murder can be based upon pure circumstantial evidence which points irresistibly to the accused’s guilt: [Ukorah v. The State (1977) S.C. 167; R. v. Teper (1952) A.C. also considered and approved.]

  9.
A Confessional statement of an accused person will be taken to be true if there is enough material in evidence led at the trial which corroborates the contents of the confessional statement.

  10.
Under the Criminal Procedure Law of Bendel State, an accused may be brought to court either by committal by a Magistrate who has conducted a preliminary investigation or by an investigation.

11.       Where a Magistrate has conducted a preliminary inquiry under Sections  310-325 of the Criminal Procedure Laws of Bendel State he may, if he  considers that there is sufficient evidence to that effect, convict the  accused to trial by virtue of Section 326 of the Criminal Code Law.

  12.
By the requirements of S.340(a)(b) of the Criminal Procedure Law of Bendel State (being an alternative to that in S. 340(2)(a), once an accused has been committed to trial in the High Court it is unnecessary to file an information and obtain the consent of a High Court Judge before performing charges against an accused person.

  13.
By Act No. 84 of 1966, it is now possible to add another count to a count of murder on an information.

  14.
Although S.156 of the Criminal Procedure Act requires that distinct offences committed by an accused be charged separately, such counts may be brought in the sane charge if it will neither embarrass nor prejudice the accused person or cause a miscarriage of justice.

15.
Although the original S.339 of the Criminal Procedure Act has been amended by Act No. 84 of 1966 thus making it now possible to add another count of offence to one of murder, this will not form part of the Criminal Procedure Laws of Bendel State, 1976.

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16.
In the instant case, though the offences of murder and unlawful wounding ought not to have been brought together having in mind S. 156 of the Criminal Procedure Law of Bendel State, they can be entertained since they have not caused a miscarriages of justice to the accused, particularly as separate and different evidence was used to establish each of the 2 offences.

17.
Although Section 156 of the Criminal Procedure Law of Bendel State 1976 is, mandatory, there is nothing in it which renders a charge brought contrary to its principles a nullity, thus the test should be whether or not the accused will he or is, prejudiced by the charge.

18.
The instant case falls within the exception provided in S. 157 of the Criminal Procedure Law, Cap 49 Vol. II, Laws of Bendel State 1916, in that the appellant committed the offences of unlawful wounding and murder for which he was tried, on the same date.

Nigerian Cases Referred to In the Judgment:

Dan v. Kano Native Authority Police 12 WACA 2

Etowa Enang v. Adu (1981) 11 -12 SC 25

Ikomi v. State (1986) 3 . (Pt 28) 340

Laoye v. State (1985) 2 . (Pt. 10) 832

Obaji v. State (1965) NMLR 417

Okoro v. Rex (1942) 16 NLR 63

R.v. Dim 14 W.A.C.A. 154

R. v. Echem 14W.A.C.A. 158

R. v. Kami 14 W.A.C.A. 30

R. v. Nwanjoku (1937) 3 W.A.C.A. 208

R. v. Ukpong (1961) 1 All NLR 25

Foreign Cases Referred to in the Judgment:

Lee Chun-Chuen v. Queen (1963) 1 All ER 73

R. v. Sykes (1913) 8 C.A.R. 233

R. v. Teper (1952) A.C. 480

Nigerian Statutes Referred to in the Judgment:

Criminal Code, Cap 48 vol. II Laws of Bendel State of Nigeria, 1976, Ss. 27, 284, 286, 318, 319, 332

Criminal Justice (Miscellaneous Provisions) Decree No. 84 of 1966, Sections 156, 157-161

Criminal Procedure Law Cap 49, Vol. II Laws of Bendel State of Nigeria, 1976 Sections 156, 157, 158, 310-325, 326, 339, 340(2)(a)(b) and (3)

Appeal:

     This was an appeal from the judgment of the Court of Appeal, Benin upholding the appellant’s case from the High Court of Bendel State, of Gbemudu, J. The Supreme Court unanimously upheld the conviction.

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History of the Case:

Supreme Court:

Appeal No: SC. 127/1985

Date of Judgment: Friday 16th January 1987

Names of Justices that sat on the appeal: Andrews Otutu Obaseki, J.S.C. (Presided), Kayode Eso, J.S.C., Augustine Nnamani, J.S.C. (Read the Lead Judgment), Muhammadu Lawal Uwais, J.S.C.; Booyamin Oladiran Kazeem, J.S.C.

Names of Counsel: Alhaji Abdul Razak S.A.N. (with him, A.L. Keshinro and A. Kalu-Anya) – for Appellant.

A. J. Alufohai, Senior State Counsel Bendel State – for Respondent.

Court of Appeal:

Division of the Court of Appeal from which the appeal was brought: Court of appeal, Benin City.

Names of Justices that sat on the appeal: Latif Junaid Dosunmu, J.C.A.(Presided), John Hezekiah Omolohu-Thomas, J.C.A (Read the Lead Judgment) Ibrahim Kolapo Sulu-Gambari, J.C.A

Appeal No.: CA/B/21/85

Dare of Judgment: Tuesday, 11th June, 1985

Names of Counsel: Mrs. M. U. Wakare – for Appellant.

Mrs. D. Ojo Senior State counsel – for the State.

High Court:

Name of the High Court: High Court Benin City, Bendel State

Name of the Judge: Gbemudu, J.

Charge No: B/101C/81

Date of Judgment: Wednesday, 24th October 1984

Names of Counsel: Miss Obaseki, Senior State Counsel – for the State.

Mr. Elumeze – for the Accused.

Counsel:

Alhaji Abdul Razak S.A.N. (with him, A.L. Keshinro and A. KaluAnya) – for Appellant.

A. J. Alufohai, Senior State Counsel, Bendel State – for Respondent.

NNAMANI, J.S.C. (Delivering the Lead judgment): On the 23rd of October, 1986, I dismissed the appellant’s appeal and indicated that I would give my reasons for that judgment today. I now give reasons.

The appellant, David Aganmonyi was in 1983 charged with the following offences:

           “Statement of Offence: Count 1:

Unlawful wounding punishable under:Section 332 of the Criminal Code, Cap.48, Vol. II, Laws of Bendel State of Nigeria, 1976. Particulars of Offences

David Aganmonyi (m) on or about the 20th day of September, 1980, Benin City, in the Benin Judicial Division, unlawfully wounded one Felicia Omoigui (f).

Statement of Offence Court II:

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Murder Punishable under Section 319(1) of the Criminal Code, Cap. 48, Vol. II, Laws of Bendel State of Nigeria 1976.

Particulars of Offence:

David Aganinonyi (in) on or about the 20th day of September, 1980 at Benin City in the Benin Judicial Division murdered one Samson Aganmonyi (m)”.

At the appellant’s trial, nine witnesses testified for the prosecution. The accused person gave evidence on his own behalf and called no witnesses. On the 24th October, 1984, Gbemudu, J. after a detailed judgment in which he fully evaluated the evidence and considered such possible defences as provocation, self-defence and insanity, convicted the appellant on both counts of the indictment. In respect of count 1, the sentence was stayed. He, however, sentenced him to death following the conviction on count II.

The appellant appealed to the Court of Appeal (Dosunmu, Omololu-Thomas, Sulu Gambari, JJ.C.A.) which on 11th June, 1985 dismissed his appeal. The appellant then appealed to this court. Two original grounds of appeal were filed: By leave of this Honourable Court, Learned Senior Advocate who appeared for the appellant filed 9 additional grounds of appeal. These grounds of appeal were copiously argued in his brief. I do not propose to set down all these grounds of appeal. Additional grounds of 1 and 2 (without their particulars) were in these terms:

” 1.     The trial in the High Court and consequently the appeal in the Court of Appeal are a nullity in that the appellant was tried in the High Court on an information which was preferred contrary to law i.e. Section 340(2) and 3 of the Criminal Procedure Law, Cap. 49, Vol. II, Laws of Bendel State of NIGERIA, 1976 and which is hereby liable to be quashed….

2.
The trial in the High Court and consequently, the Appeal in the Court of Appeal are a nullity in that the charge of unlawful wounding (contrary to Section 332 of the Criminal Code, Cap.48, Vol. II), Laws of Bendel State of Nigeria, 1976 (hereinafter referred to as “C.C.”) was laid and tried together with a charge of murder (contrary to Section 319(1) C.C.) in the same information contrary to law (Sections 339 and 156 of the Criminal Procedure Act) and prejudicial embarrassing and unfair to the appellant thereby resulting in a miscarriage of justice.”

Grounds 3 and 4 are similar to ground 2.1 shall return to these 4 grounds of appeal later in this judgment. I do not propose to consider additional grounds 5, 6 and 7 which complained respectively of the admissibility and/or the manner in which the learned trial Judge and the learned Justices of the Court of Appeal dealt with exhibit 7 – the confessional statement of the appellant exhibit 8, the medical report issued by Doctor S.O. Ajulo after autopsy of the deceased and exhibit 10, the deposition of Dr. Ajulo at the preliminary inquiry before the magistrate court and which was admitted in evidence at the appellant’s trial in the High Court. All the issues arising from these complaints were fully and most satisfactorily examined and dealt with in the Lead Judgment of Omololu-Thomas, J.C.A. and no useful purpose would be served in reventilating them in this judgment. With all respect, from the argument on them in learned Senior Advocate’s brief of argument, it seemed to me that learned counsel did not fully advert his mind to the evidence before the trial court.

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      Additional grounds 8, 9 and 10 complained that the learned Justices of Appeal did not review the trial court’s finding on appellant’s defences of provocation, insanity and self defence. Apart from pointing out that these issues were not part of the 4 grounds of appeal argued before the Court of Appeal, it is also pertinent to state that it was indeed the learned trial Judge who, as he ought to do, considered these possible defences based on the totality of evidence before him. It was not the appellant who put forward these defences. Additional ground II complained that the lower courts erred in falling to find from the totality of evidence at the trial that the prosecution failed to prove its case beyond reasonable doubt.

The facts of this case as stated by the principal prosecution witnesses were that on the day of this tragic event P.W. 1, Solomon Aganmonyi, a brother of the accused and deceased came home to find the accused (i.e. the appellant) at the back door of their house with a piece of iron exhibit 6 and a knife exhibit 5. The accused pointed the iron and the knife in the direction of P.W. 1 and said that P.W.1 was lucky or else he would finish him. When P.W. I entered the house he found the body of the deceased, Samson Aganmonyi, on the ground while his bed and beddings were full of blood. He raised an alarm to secure the attention of the people and the accused chased him away with the iron and knife. At about 7.30 p.m. on 20/9/80, while P.W.4, Felicia Omogui, was at home with her children, the accused rushed into her room and slapped her. When she raised an alarm, the accused said that he was going to finish every one in the house that day. P.W.4 and her husband were tenants in the accused’s father’s house. The accused produced a knife from his pocket and P.W.4 held his hand but he stabbed her left wrist with the knife. P.W.4 wanted to run but the accused struck her chin with an iron and she fell at the door. P.W.4 became unconscious and was later rushed to the hospital.

The statement of the accused person was taken by a Police Officer who was at the time of the trial in Kano and could not come to give evidence. It was tendered by the Investigation Police Officer P.W.7 who, finding that the statement was confessional, took the accused/appellant to a Superior Police Officer Mrs. Omo-Lawani P.W.6. Before Mrs. Omo-Lawani, the appellant agreed that that was his statement and that it was made by him voluntarily. It was duly attested by the Superior Police Officer, in that statement the appellant said in part:

“Samson’s brother came to fight me. He is by name Solomon and his friend who I did not know his name. They fight me and threw me into a gutter. After fighting I heard them saying that he is fainting, that Samson is fainting. I then left the house for M.T.D. Benin City, where I was detained by the Police there until this morning, when I was brought to ‘B’ Division. That is all. I did not use knife on Samson and Felicia, it was iron rod. The rod must be at home. I only pick up knife when Solomon and his friend was fighting me.

And I did not use it on anybody. I did not know it was still in my pocket when I get to M.T.D.”

But in his testimony in court he said as follows:

“I came from the outside with my bicycle. I met the deceased standing at the door. I asked him to give me way. He stood by the side of the door. As I was passing with my bicycle one of the cycle pedals came in touch with the deceased. He pushed me and I fell down. I got up and gave him a slap. Then fight ensued. The

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deceased ran into his room and got a rod and started to strike me with it. I tried to shield myself with my left hand. He struck me on my 2 fingers and front teeth. I seized the rod from him and I retaliated. Felicia Omogui came to separate us. She grabbed my shirt and pulled me backwards while the deceased was still fighting me. I pushed Felicia, she fell down and knocked her head on the ground. Some people separated us and the deceased cried to his room. I went into my room, I heard Solomon Aganmonyi saying that the condition of Samson was getting bad. I then went to the M.T.D. to report.”

The learned trial Judge considered the evidence of the prosecution and the appellant and believed the testimony of P.W.1, PW.4, P.W.5 and P.W.7. He disbelieved the testimony of the appellant. After his evaluation of the evidence the learned trial Judge had concluded as follows:

“I do not accept the evidence of the accused that Felicia P.W.4 held him while the deceased fought him. I hold that Felicia P.W.4 was not present when the accused attacked the deceased. I believe the evidence of P.W.4 and P.W.5. exhibit 7 that is the statement of the accused contradicted his evidence at the trial – that the deceased knocked him with his body and called him jobless goat. But at the trial he said that a pedal of his bicycle touched the deceased and he pushed him and he fell down and fight ensued. The deceased got a rod and struck him with it. He seized the rod and retaliated. But in exhibit 7 the accused said that he fought the deceased and P.W.4 said that he fought the deceased and P.W.4 and picked the rod with which he fought them. In R. v. Ukpong (1961) 1 A.N.L.R. 25 it was held that when a witness is shown to have made previous statements inconsistent with the evidence given by him at the trial, the jury should not merely be directed that his evidence at the trial should not be regarded as unreliable, but also that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act, and in a non-jury case, the court should direct itself likewise.

In the case in hand the circumstantial evidence and the confessional statement exhibit 7 are enough to find the accused guilty as charged.”

       It is against the background of these findings which were upheld by the Court of Appeal that one has to examine the various defences which the learned trial Judge and the Court of Appeal examined but with which the learned Senior Advocate now quarrels. As regards provocation, it is pertinent to reiterate that the learned trial Judge mentioned the two versions of the incident given by the appellant. He commented that they were miles apart and that he did not believe them. Section 284 of the Criminal Code, Cap 48, Vol. II, Laws of Bendel State 1976 provides that:

“A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self control, and

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acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation and is not intended, and is not such as likely, to cause death or grievous harm.”

The principles of law governing the defence of provocation have been set down in numerous decisions of this court and are in fact now trite law. See Lee Chun-Chuen v. The Queen (1963)1 AER. 73; Okoro v. Rex (1942) 16 N.L.R. 63; Obaji v. The State (1965) N.M.L.R. 417; R. v. Nwanjoku (1937) 3 WACA 208. These cases were reviewed in the recent decision of this Court in Laoye v. The State (1985) 2 . (Pt. 10) 832 at 842. From none of the two versions of the incident given by the appellant can one see any material on which a defence of provocation could have been based. The appellant was never provoked. In one version he said his deceased brother hit him with his body and abused him as a jobless goat. After an exchange of words, fighting ensued. In the other version he said that the pedal of his bicycle touched the deceased as he was passing. After a push by the deceased, it was he the appellant who slapped the deceased. Thereafter a fight ensued. The appellant may have been annoyed by either of these events but certainly not provoked in the legal sense. Learned Senior Advocate for the appellant complained that the learned trial Judge mentioned sudden and grave provocation in his judgment contending that grave provocation is not part of the Law of Bendel State. It was clear that he did not advert his mind to Section 318 of the Criminal Code Law of Bendel State. There was no sudden or grave provocation of the appellant nor was there anything to indicate that he acted before there was time for passion to cool. Even if there was provocation, his retaliation was totally disproportionate to the provocation offered. On his admission, the deceased hit him with a rod injuring him on his 2 fingers and front teeth. When he retaliated, he hit the, deceased so hard with the same rod as to cause intracranial injury leading to deceased’s death. The doctor’s report Exhibit 8, described the injuries on the deceased thus:

“Deep laceration right ear 1″ long on the tragus. Also diagonal 11/2″ laceration on the medial aspect of right ear in the parotid region. Deep and penetrating with fracture of the temporal bone affecting the brain matter.”

As for self defence again there was nothing in the evidence accepted by both lower courts on which such a defence could avail the appellant. Perhaps it is pertinent to remember that it was also the finding of the learned trial Judge that “the accused went on a rampage and punitive expedition to slaughter the inmates of his father’s house for no just cause.”

    It is established that the law would excuse a killing if the killer had reasonable grounds for believing that his own life was in danger and that he had to kill in order to preserve it. The belief of the accused in such a case would be tested on objective grounds and several factors would necessarily arise in determining the objective belief, for example the quality of the force used on the deceased must be the same as that with which the accused defends himself Laoye v. The State (supra). This is also the effect of Section 286 of the Criminal Code Law of Bendel State. Here the appellant clearly had no reasonable grounds for believing that his life was in danger. Even on his words, he was hit on the front teeth and fingers with the rod. Again the force with which he defended himself was dearly unrelated to what he claimed the deceased did to him.

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     As for insanity, there was no evidence whatsoever to sustain the defence. I agree entirely with the learned trial judge that that defence was half-heartedly put up by the appellant when he talked of heart and brain trouble and of “family trouble.” Every person is presumed to be of sound mind and to have been of sound mind at any time which comes in question until the contrary is proved. See Section 27 of the Criminal Code. The law therefore places on an accused person the onus of establishing a defence of insanity although such onus would be discharged on a balance of probabilities. R. v. Echem 14 W.A.C.A. 158. It is also settled law that absence of motive as appears to be the case in this appeal is not a sufficient ground on which to infer mania R. v. Dim 14 W.A.C.A. 154. As for appellant’s ground 11 in which it was complained that on the totality of the evidence the case was not proved beyond reasonable doubt. This is undoubtedly a repetition of the original ground 2 in which the appellant complained that the evidence of the prosecution witnesses was so full of conflicts, contradictions and inconsistencies that they fell far short of the standard of proof in a criminal trial. This is clearly an attempt to open the issue of facts on which there are concurrent findings. I see no conflicts and inconsistencies which were not resolved by the learned trial judge and the Court of Appeal. In any case, this court will not interfere with such concurrent findings unless there is a miscarriage of justice. See Etowa Enang v. Adu (1981) 11/12 S.C. 25, 42. I see no miscarriage of justice. Nor do I find any justification for interfering with the conclusions of the High Court and the Court of Appeal that the ease against the appellant was proved beyond reasonable doubt. Although the case turned on circumstantial evidence, the circumstances pointed irresistibly to the appellant’s guilt Ukorah v. The State (1977) S.C. 167; R. v. Teper (1952) A.C. 480. It was on the strong circumstantial evidence together with the confessional statement of the appellant that the learned trial Judge based his guilt and I think that he was right. As for the confessional statement, there was enough material in the evidence led at the trial to give corroboration to the contents of that statement leading to the correct inference that it must be time. See R. v. Sykes (1913) 8 C.A.R.  233; R. v. Kanu (1952) 14 W.A.C.A. 30.

     Perhaps the only other grounds deserving of consideration are grounds 1 and 2 of the additional grounds of appeal which I set down above. In ground 1 the complaint is to the effect that there is nothing to indicate that there was compliance with Section 340 of the Criminal Procedure Law, Cap 49, Vol. II, Laws of Bendel State, 1976. Section 340(2) provides that:

    “Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless either –

(a)
the person charged has been committed for trial or

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the information is preferred by the direction or with the consent of a judge or pursuant to an order made under Part 31 to prosecute the person charged for perjury.”

Section 340 was fully considered by this court in Ikomi v. The State (1986) 3 . (Pt. 28) 340.

It can be seen that a method of commencing criminal trial is by committing the accused to trial as is indicated in Section 340(2)(a) of the Criminal Procedure Law. The committal for trial will follow from a preliminary inquiry conducted by a Magistrate in accordance with the provisions of Sections 310 – 325 of the

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Criminal Procedure Law. The actual committal of the accused person for trial in the High Court will be made by the Magistrate if pursuant to Section 326 of the Criminal Procedure Law he considers that the evidence led at the inquiry is sufficient to put the accused on his trial. In the instant case, although it was not so obvious on the face of the record of proceedings, there was a preliminary inquiry at the end of which the accused person was committed for trial in the High Court. This is clear from the testimony of P.W.9 in the High Court. He was a Higher Registrar attached to the High Court Registry. He received original manuscripts and depositions from magistrate’s courts. He received the deposition in respect of Charge No. MB.3298C/80 and this included the testimony of Dr. Ajulur (the Doctor) who performed the autopsy on the deceased, Samson Aganmonyi. That deposition was tendered as exhibit 10. Once it was established that there was a committal of the accused for trial in the High Court, it would be unnecessary to file an information and obtain the consent of a High Court Judge before charges can be preferred against the accused. The requirement of Section 340(2)(b) of the Criminal Procedure Law is an alternative to the procedure in Section 340(2)(a).

In additional ground 2, the appellant’s Senior Counsel had complained of duplicity in that the charge of wounding which related to Felicia P.W.4 was joined to the charge of murder. It certainly seemed to me a confusing and clumsy manner of framing charges as I can find no difficulty that would have precluded the prosecution from separating the charges. Section 339 of the Criminal Procedure Act of the Federation provides that the provisions of Sections 151 to 180 shall apply mutatis mutandis to counts of an information. The former provision of the Section “save that no other charge shall be joined with a charge punishable with death and not more than one charge punishable with death shall be charged in the same information” was removed by Act No. 84 of 1966; Section 156 of the same Act however provides that-

“for every distinct offence with which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 157-161 (these were in respect of offences of the same kind”).

The rationale behind these provisions is to ensure that the accused person is neither embarrassed nor prejudiced, and accordingly that there is no miscarriage of justice. Since the original Section 339 of the Criminal Procedure Act was amended by Act No. 84 of 1966, it could not have formed any part of the Criminal Procedure Laws of Bendel State, 1976. But Section 156 of the Criminal Procedure Act is the same as Section 156 of the Criminal Procedure Law, Cap 49, Laws of Bendel State, 1976. It would appear therefore that the offences of unlawful wounding and murder which are clearly separate offences ought not to have been joined together in the same information. The question that arises is whether that renders the whole trial a nullity. Although the Section is mandatory, there is nothing in the law itself rendering such a charge a nullity. The real question is whether the joinder has been prejudicial to the appellant. The learned Senior Advocate contends that it was, for as he submitted, the same evidence was used in arriving at the appellant’s guilt in both charges. Felicia P.W.4, gave evidence exclusively of the attack on her which was the basis of the conviction for unlawful wounding. She gave no evidence about the murder charge. It cannot be true, at least in her own case, that the same evidence was used for the conviction in both charges. It was in fact the appellant who in

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his statement exhibit 7 tried to drag P.W.4 into the murder matter by alleging that P.W.4 held him while the deceased dealt blows on him. This was disbelieved by the learned trial Judge. P.W.5 who gave evidence for the prosecution also confined his testimony to the attack on his mother; so did P.W.2, the husband. In fact no witness gave evidence in respect of the two charges. I cannot see therefore how the appellant could have been prejudiced or how the trial could have been unfair. P.W.4, P.W.2 and P.W.5 were cross-examined at the trial by counsel to the accused. The appellant could not have been embarrassed since in any case he was the person who introduced Felicia P.W.4 in his statement to the Police exhibit 7. Besides, it would appear to me that this is a case which falls within the exception provided in Section 157 of the Criminal Procedure Law, Cap. 40, Vol. II, Laws of Bendel State 1976. Subsection 1 thereof provides that –

“(1)     When a person is accused of more offences than one committed within the period of twelve months from the first to the last of such offences whether in respect of the same person or thing or not he may be charged with and tried at one trial for any number of them not exceeding three.”

In the instant case, the appellant committed the offences of unlawful wounding and murder for which he was tried in two separate counts on the same date, 20th September, 1980. It is arguable too that the appellant could fall within the second part of Section 158 of the same law as it relates to “series of acts or omissions … which form or are part of a series of offences of the same or a similar character. See Dan v. Kano Native Authority Police 12 W.A.C.A. 2 at p. 3. I do not therefore see g any merit in this additional ground. In any case after the appellant was convicted on the charge of unlawful wounding, the sentence was left in abeyance. In the circumstances, these two grounds of appeal are of no avail to the appellant.

     It was for these reasons that I dismissed the appellant’s appeal on 23rd October, 1986.

OBASEKI, J.S.C. (Presiding): I dismissed the appellant’s appeal on the 23rd day of October, 1986, after hearing and considering the submissions of counsel appearing in the matter and indicated that the reasons for that judgment would be delivered today. I now proceed to give my reasons.

       The appellant was arraigned before the High Court, Gbemudu, J. on a two count charge. He was tried and convicted on each count. The first count charged the offence of unlawful wounding of one Felicia Omoigui contrary to Section 332 of the Criminal Code, Cap 48 Vol. II, Laws of Bendel State of Nigeria 1976 while the appellant was charged in the second count with the offence of murder of one Samson Aganmwonyi. The appellant was sentenced to death on count two and the sentence in respect of count one was stayed.

         The appellant’s appeal to the Court of Appeal was unsuccessful. The appellant, still dissatisfied, then appealed to this court. Nine grounds of appeal were argued before us both in appellant’s brief and orally by counsel in elaboration of his brief.

The appellant and the deceased are brothers and lived with their father in the same house. Felicia Omoigui, P.W.4 and her husband were tenants in the accused’s father’s house. They lived there with their children. On the fateful day, for unexplained reasons, the appellant armed himself with a knife and an iron rod.

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He rushed to P.W.4 in her room where she was with her children and slapped her when she raised alarm, he stabbed her on the left wrist with the knife. As she tried to run for safety, he struck her on the chin with the iron rod and she fell down unconscious. She was rushed to the hospital and it was days before she regained consciousness. P.W.l, Solomon Aganmonyi is another brother to the appellant and the deceased. He had been out on that day. When he came home, he found g the appellant at the back of the door armed with the knife exhibit 5 and the iron rod, exhibit 6.

On seeing P.W. 1 the appellant, pointing the weapons at him threatened that P.W.l was lucky or else he would finish him. To his horror, when he entered the house, he found the body of the deceased, Samson Aganmonyi on the ground while his bed and beddings were soaked with blood. To call people’s attention, he raised alarm. The appellant did not like this so he chased P.W.1 out with the knife and the iron rod. On his arrest, and charged by the police, he made a confessional statement exhibit 7 under caution.

The investigating police officer, P.W.7, took the appellant with the statement before P.W.6, Mrs. Omo Lawani, a superior police officer for attestation. The appellant confirmed the statement before her and that he made it voluntarily. P.W.6 duly attested it after appellant’s confirmation. The statement in part reads:

“… I did not use knife on Samson and Felicia, it was iron rod. The rod must be at home. I only pick up knife when Solomon and his friend were fighting me. And I did not use it on anybody. I did not know it was still in my pocket when I get to M.T.D.”

The testimony of the appellant in court was a different version but the iron g cod still featured prominently. In part, it reads:

“As I was passing with my bicycle one of the cycle pedals came in touch with the deceased. He pushed me and I fell down. I got up and gave him a slap. Then, fight ensued. The deceased ran into his room and got a rod and started to strike me with it. I tried to shield myself with my left hand. He struck me on my 2 fingers and front teeth. I seized the rod from him and I retaliated. Felicia Omoigui came to separate us. She grabbed my shirt and pulled me backwards while the deceased was still fighting me. I pushed Felicia, she fell down and knocked her head on the ground. Some people separated us and the deceased cried to his room. I went into my room. I heard Solomon Aganmonyi saying that the condition of Samson was getting worse. I then went to the M.T.D. to report.”

In his judgment, Gbemudu, J. considered the evidence of the prosecution and the appellant. He believed the testimony of P.W.1, P.W.4, P.W. 5 and P.W.7. He disbelieved the testimony (sic) and in the concluding paragraph of his judgment, he said:

“In the ease in hand, the circumstantial evidence and the confessional statement exhibit 7 are enough to find the accused guilty as charged.”

The above facts were basic to the determination of the appeal. They are overwhelming.

Learned counsel in his brief and oral arguments raised many questions for determination including joinder of offences in one information. On the issue

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of joinder of offences, joinder, in my view, is permissible under Section 156 and 157 of the Criminal procedure Law. Before the amendment to the Criminal Procedure Act, it was not possible to add any count charging any other offence to an information charging the offence of murder.

      The position of law as it now stands is that it is permissible and such a joinder is not fatal to the information.

    My learned brother, Nnamani, J.S.C., has dealt with the issue raised in an admirable manner in the reasons for judgment delivered by him a short while ago, the draft of which I had the advantage of reading in advance. I agree with those reasons on the issues raised and I adopt them as my own and incorporate them herein.

      It was for the above reasons that I dismissed the appeal on the 23rd day of October, 1986.

ESO, J.S.C: I have had a preview of the judgment which has just been delivered by my learned brother Nnamani, J.S.C. and I am entirely in agreement. The defence of the appellant lay in provocation and insanity.

This court has in Laoye v. The State (1985) 2 NWL.R (Pt. 10) 832 very recently reviewed the earlier cases on provocation. It is my view that the facts as found by the learned trial Judge could not amount to provocation nor could the feeble attempt to put up a defence of insanity avail him.

My learned brother has dealt adequately with the provision of Section 340(2) of the Criminal Procedure Law (Cap 49) Vol. II Laws of Bendel State 1976 and I do not intend to go over that provision again.

For these reasons and the reasons given by my learned brother Nnamani J.S.C., I dismissed the appeal on 23rd October, 1986.

UWAIS, J.S.C.: When this appeal was dismissed on 23rd October, 1986, I indicated that I will give my reasons for the dismissal today. I have had the opportunity of reading in draft the reasons for judgment read by my learned brother Nnamani, J.S.C. As the reasons given accord with mine I adopt them and I have nothing to add.

KAZEEM, J.S.C .: I have had the privilege of reading in draft the reasons for Judgment just delivered by my learned brother Nnamani, J.S.C. and I am satisfied that it has succinctly and adequately dealt with the submissions canvassed before us, and given the reasons (with which I entirely agree) why this appeal was summarily dismissed by this court on 23rd October, 1986. I therefore have nothing more to add.

Appeal Dismissed

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