⦿ CASE SUMMARY OF:
John Idagu v. The State (2018) – SC
– Self defence;
⦿ LEAD JUDGEMENT DELIVERED BY:
Amina Adamu Augie, J.S.C
* FOR THE APPELLANT
– Adekunle Ojo Esq.
* FOR THE RESPONDENT
– F. Omotosho Esq.
⦿ FACT (as relating to the issues)
The Appellant was tried and convicted by the High Court of Ondo State, for the murder of two persons – Stephen Ogbeche [first deceased] and his son, John Ogbeche, [second deceased]. He was sentenced to death. The Prosecution called five Witnesses and tendered four Exhibits, including the Appellant’s Statement to the Police, which he had objected to on the ground of involuntariness. The trial Court conducted a trial-within-trial and found that the Statement was indeed made voluntarily, and the Statement was thereafter admitted in evidence as Exhibit P2. In his defence, the Appellant denied the Charge and gave his own version of what transpired on that day, which amounted to self defence.
He testified that he accompanied “Julius Ogbeche” to obtain a loan of N4,000.00 from Stephen Ogbeche (first deceased), which he gave him, on condition that Julius pays back N8,000.00 at the end of November. When the loan became due, the first deceased asked the Appellant for the whereabouts of Julius Ogbeche on two different occasions and when Appellant insisted that he did not know where Julius Ogbeche was, the first deceased then reported the matter to the Police on 18/12/2005. The Appellant was arrested and taken to Oda Police Station where he was detained until 7pm that day. He was only released after he signed an agreement promising to pay the debt at the end of December 2005. On 21/12/2005, the first deceased sent his wife to ask him for the money. He gave her N1,000.00 but she insulted him, tore his shirt and started to fight him in the presence of the family, and as the fight was going on, the wife of first deceased ran inside the room and came out with a cutlass. Afraid for his life, he threw a stick at her and then collected the cutlass, but her whole family gathered around him, and it was during the struggle to take the cutlass from him that he started “to use the cutlass on them”.
PW1, Godwin Oga, and PW2, Janet Ogbeche, the daughter of the first deceased, were eye-witnesses for the Prosecution, and the point of divergence between their evidence and Appellant’s testimony is that they testified that he brought out the cutlass, which he hid within himself, and started to cut the first deceased; his wife and the second deceased.
The learned trial Judge, Adeyanju, J., believed the two Witnesses, and in his Judgment delivered on 22/11/2012, he concluded as follows: “I find that the acts of the Accused coming from his house with a cutlass and inflicting same on the deceased was intentionally done with the knowledge that death or grievous bodily was its probable consequence. The act of the Accused was an unprovoked assault on the two deceased. I hold that the prosecution has proved its case against the Accused beyond reasonable doubt. I find the Accused guilty of the offence of murder. The sentence of this Court is that you be hanged by the neck until you be dead”.
Dissatisfied, the Appellant appealed to the Court of Appeal, however, the Court of Appeal dismissed his Appeal and affirmed the decision of the trial Court.
1. Whether or not, in view of the evidence on the record, the Court below erred in upholding the decision of the trial Court that the Prosecution successfully proved the offence of murder beyond reasonable doubt against the Appellant.
2. Whether the learned Justices of the Court of Appeal are right in upholding the decision of the trial Court that the Appellant is not entitled to the defence of self-defence.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. What is more, when evaluation of evidence involves credibility of witnesses, an appellate Court is hamstrung because it is the trial Court that saw them, heard them and watched their demeanour that is in the position to believe or disbelieve witnesses, and this can never be captured by an appellate Court that only has “cold printed record to contend with” Sogunro & Ors V. Yeku & Ors (2017) LPELR-41905(SC). It is only when a question of evaluation of evidence does not involve the credibility of witnesses but is against non-evaluation or improper evaluation of the evidence that an appellate Court is in as good a position as the trial Court to do its own evaluation.
ii. It is trite that the issue of credibility of witnesses is the pre-eminent duty of a trial Court, and there is a presumption that its findings are right and correct until the contrary is shown. Thus, this Court is usually very slow in interfering with such primary findings. In this case, the trial Court believed PW1 and PW2 and accepted their accounts of what happened on that eventful day, when the Appellant used the cutlass to cut people.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In this case, it is clear from Appellant’s account of events, whether in Exhibit P2 or oral testimony before the trial Court, that the answers to the aforesaid questions are in the negative; the defence of self-defence was not necessary, and injuries he inflicted on the deceased persons, were not proportionate to whatever threat the deceased persons offered him on that day. The force he used on them was excessive and inexcusable. The decision of the Court of Appeal affirming the Judgment of the trial Court cannot be faulted, and the said decision stands. This Appeal, certainly, lacks merit and it is dismissed.
S. 33(2) CFRN 1999;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
The question of its value and what weight to attach to the confessional statement admitted in evidence after a trial-within-trial is a different matter altogether, as admissibility and weight are not the same. In other words, the fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial Court. – Augie, JSC. Idagu v. State (2018)
It is settled law that it is not every minor contradiction that matters; for a trial Judge to disbelieve a witness, the contradiction in his evidence must be on a material point. In effect, the law allows room for minor discrepancies in the evidence of witnesses, which may not be fatal to the Prosecution’s case. – Augie, JSC. Idagu v. State (2018)
But the Prosecution is entitled to call witnesses it considers relevant to its case. It is not bound to call all the eye-witnesses or every person present at the scene of crime to testify in order to discharge the burden placed on it to prove its case beyond reasonable doubt. – Augie, JSC. Idagu v. State (2018)
In fact, a single witness, who gives cogent eye witness account of the incident, will suffice, even in a murder Charge. – Augie, JSC. Idagu v. State (2018)
At any rate, where an Accused feels strongly that the evidence of a particular witness is vital or essential to his defence, he is at liberty to call the witness in his defence. He should not sit and wait for the Prosecution to call the witness since the Prosecution is not expected to also conduct the case for the defence as well as its own. If the Appellant needed the evidence of the first deceased’s wife, whom he blamed for the incident, there is nothing in the statute books that hinders him from calling her as his defence witness. But he cannot be heard to complain or quarrel with the Prosecution for not calling her as its witness in the case against him. – Augie, JSC. Idagu v. State (2018)
It is a fundamental principle of criminal law that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness that his or her conduct is criminal, is the mental element, and actus reus, the act itself is the physical element. The concept of mens rea, which is Law Latin for “guilty mind”, developed in England around the year 1600, when Judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common law crime varied then. In other words, mens rea is a criminal intention or knowledge that an act is wrong, and today most of the crimes are defined by statutes that generally contains a word or phrase indicating the mens rea requirement. Thus, a typical statute may require that a person act knowingly, purposely or recklessly. – Augie, JSC. Idagu v. State (2018)
The accepted definition of a tainted witness is a person, who is either an accomplice or who, by the evidence he gives, may and could be regarded as having some personal purpose to serve. Evidence of such a witness should be treated with considerable caution “and examined with a tooth comb”. – Augie, JSC. Idagu v. State (2018)