SUNDAY IHUEBEKA v THE STATE (SC 34/1999) [2000] NGSC 1 (13 April 2000)

The appellant was convicted for murder and sentenced to death by Okungbowa, J on 14th January, 1991 at the High Court of the former Bendel State at Ekpoma. The offence was committed on 19th September, 1985 at Illeh-Ekpoma in the Ekpoma Judicial Division.

The deceased, Iregho Uluebeka was the father of the accused. At about 7pm on 18-9-85, the deceased invited PW.1 (Abu Uluebeka) to the family house where he was living. The accused who was at the time of the incident a Sales Representative of Green Sands Publishers at Benin came home that evening. In the presence of PW.1, the deceased requested the accused to help in the payment of the school fees of his younger brother who gained admission into a Technical College at Afuze. The accused refused to assist despite persuasion from PW.1.

In the morning of 19-9-85, PW.1 went to the house of the deceased to greet him and the deceased told him that he was going to the farm to harvest yam tubers which the accused would take with him when returning to Benin later that day. The deceased was the elder brother of PW.1. Later that day, PW.1 was invited to the deceased‘s farm where he saw the deceased in a pool of blood. He also saw two police men at the scene. The deceased told him something.

Shortly after, a vehicle arrived and with the assistance of the policemen, the deceased was put into the vehicle and they left for the Police Station, Ekpoma and from there to the hospital. He died immediately they arrived at the hospital.

The accused was arrested and he made a statement to the police. The statement was tendered and admitted in evidence without any objection as Exhibit "1" through PW.4 (Police Sergent Koliko Umaru) who investigated the complaint. It reads:

Statement of Accused Person

"….I, Sunday Ihuebeka having been duly cautioned in English language that I am not obliged to say anything unless I wish to do so but whatever I say will be taken down in writing and may be given in evidence.

(Sgd.) S. Uluebeka

My name is Sunday Uluebeka. I am a native of Illeh village Ekpoma in Okpebho Local Governemtn Area of Bendel State. I am married but no issue yet. My wife is under pregnant. I am married to one Grace Uluebeka a daughter to one Watchday by name Ugbo of Udugho Irrua. I married Grace in the month of December, 1984. Since then she has been living with me. Since about two months now my wife Grace has been quarrelling (sic) with me. She tells me that I brought her to my house for my parents to be insulting her since I have no job at hand. My father has been living with us since all the time until this morning 19/9/85 when I killed him because hehas been telling me to leave his house with his wife. He also told me to go away from his house with my wife Grace. His wife‘s name is Mrs. Rose Uluebeka. This morning 19/9/85, members of my family gathered together and started quarrelling with me and the same asked me and my wife Grace Uluebeka to leave my father‘s house. My father was also present at the gathering. One Abu Uluebeka my own brother was also present at the gathering. I was provoked this morning 19/9/85 because of home trouble and I took a decision of killing my father and his (sic) wife Mrs. Grace Uluebeka, I now say that I did not kill them but I gave them matchet cuts. I only cut my father Uluebeka and my wife Mrs. Grace Uluebeka all of Illeh village, Ekpoma. Some people like Dr. Odiase of Bendel Library headquarters Benin City is owning me a sum of N200 deposit I paid him to supply me with books, Managing Director (sic) of Green Suanders (sic) Benin City No.99 Sakpoba Road Benin City is owing me a sum of N1,000.000 as a sales man and I left him because of my ill-health. And it is because of this my ill-health that my parents are worrying me. I do not have any other thing to say than what I stated above. Abu Uluebeka is also owing me a sum of N190.00. I became annoyed because I have no money and everybody in my family continue (sic) to worry me more especial (sic) my father and his wife. I cut my wife because she was bulling (sic) me since I have no money. Since I have no money, my family became annoyed of me without minding my ill-health. This is why I decided to end my life with any person available.

(Sgd,) ??? – 19/9/85."

Four witnesses testified for the prosecution. The accused testified on oath. His evidence was in the main, an affirmation of the contents of Exhibit “1”. He testifies that the deceased was his father, that he died from the injuries he inflicted on his head and that he did not intend to kill him. In respect of Exhibit "1", the learned trial judge observed as follows:

"Exhibit "1" was not retracted. It is direct and was properly proved. The accused person to a great extent maintained his statement to the police although he introduced other elements in his evidence-in-chief. For example, he stated on oath that he was mentally ill and was taken by his younger brother Isaac to one Dr. Ojelua of Irua without his wife and father knowing about it. Another addition was that his T.V. set, Radio Cassette Player and electric pressing iron were stolen from his room on the day of the incident. In law those additions do not amount to contradictions of retraction of the voluntary statement Exhibit "1". The court can convict on the voluntary statement which is direct positive properly proved and unretracted."

After considering the whole evidence including the defences of insanity and provocation he found the accused guilty of the murder of Iregho Uluebeka and sentenced him to death by hanging. His appeal to the Court of Appeal, Benin Division was dismissed. His conviction and the sentence of death imposed by the trial court were affirmed hence the further appeal to this court.

From the grounds of appeal filed the following issues were submitted as arising for determination in the appeal.

(i) Whether the failure of the learned trial judge to resolve the allegation of lack of faith against the court by the former Counsel and not informing the substitute Counsel or appellant of this serious allegation breached the appellant‘s right to fair hearing as guaranteed by Section 33 of the Constitution of the Federal Republic of Nigeria 1979 (as amended).

(ii) Whether the trial of the Appellant on the 24th day of October, 1990 with the learned trial Judge acting as the prosecutor and the Judge was not contrary to section 33 of the Constitution of the Federal Republic of Nigeria 1979, which occasioned miscarriage of Justice.

(iii) Whether Exhibit "I" can be classified as a confessional statement of the Appellant for murder.

(iv) Whether the defence of provocation can avail the appellant to reduce the offence from murder to manslaughter."

The four issues formulated in the respondent‘s brief raise similar questions as those formulated in the appellant‘s brief except that they are differently worded. I will therefore consider the issues submitted by the appellant and the answers to them will take care of those furmulated in the respondent‘s brief.

At the hearing of the appeal the learned appellant‘s counsel abandoned issue (i) which is based on grounds (1), (2) and (3) of the grounds of appeal. Issue (i) together with grounds (1), (2) and

(3) of the grounds of appeal from which it was formulated are hereby struck out. The learned respondent‘s counsel did not object to the abandonment of the issue.

The appellant‘s complaint on issue (ii) is that on 24-10-90 the learned trial judge acted both as the prosecutor and the trial judge and that this is in contravention of Section 33 of the 1979 Constitution. It was submitted that this occasioned a miscarriage of justice. It was further submitted that the prosecuting state counsel was absent on that day and instead of adjourning the case in the absence of the state counsel, the trial judge hurriedly assumed the dual functions of a judge and a prosecutor, took the evidence of the accused as well as the address of the learned counsel for the accused and adjourned the case for judgment. We were urged to hold that the trial judge therefore manifested his partiality to secure the conviction of the accused at all cost. We were referred to the cases of Okoduwa v. The State (1988) 3 NWLR (Pt. 77) 333 at 347 and Akinfe v. The State (1988) 3 NWLR (Pt. 85) 729 at 752. In her reply Mrs. Uwuigbe, Assistant Chief Legal Officer, Edo State submitted that it is clear from the proceedings of 24-10-90 that the accused had more than a fair trial and that the learned trial judge was right in proceeding with the case in the absence of the prosecuting counsel.

The Prosecution closed its case on 19-9-90 and Mr. Udaze for the accused applied for adjournment to enable him prepare the defence. The case was adjourned to 10-10-90. When the case came up for defence on 10-10-90 the accused was present as well as both learned counsel. Mr. Adaze for the accused again asked for a short adjournment. Miss Tedeye for the State had no objection and the court adjourned the case to 24-10-90 for defence. On 24-10-90, the accused and his counsel were present. The prosecuting counsel was absent and there was no information to the court or any body as to the reasons for her absence. The learned counsel for the accused did not apply for any adjournment and I do not see why he should even do. The defence opened the accused gave evidence on oath and called no witness. There was no body to cross-examine him and the record of proceedings did not show that he was cross-examined by any body let alone the court. Thereafter, counsel for the accused addressed the court and the case was adjourned to 14-1-91 for judgment.

From the above summary of the proceedings of the trial court on 24-10-90, I cannot conceive any action or utterance of the trial judge tending to show bias. If there is anybody to complain about the proceedings of 24-10-90, it is the prosecution who lost the opportunity to cross-examine the accused and address the court. None of the provisions of Section 33 of the 1979 Constitution was breached in so far as the accused is concerned. His counsel was present in court throughout the days the case was heard cross-examined all the witnesses for the prosecution and addressed the court. The court also obliged his counsel with all his applications for adjournment. He cannot be heard to complain.

In the case of Okoduwa v. The State (supra) referred to us, the appellants applied through their counsel after arraignment and commencement of trial for the case to be transferred to another judge of the High Court. The reason given was that from the conduct of the proceedings, they would not get justice. The trial judge refused the application and proceeded to charge the counsel with contempt. He was subsequently tried, found guilty, cautioned and discharged. From then on, the trial judge took active part in the cross-examinations of the appellants‘ witnesses and often asked more devastating and damaging questions than the prosecuting counsel. He recalled some witnesses and from questions he put to them, he raised issues which neither party to the case raised and used the information elicited from them in reaching his verdict. Of course he convicted the appellants. On appeal, this court found that the trial judge jumped into the arena and from his excessive interference with witnesses together with his attitude to counsel, it could not be said that the appellants had a fair trial.

Okoduwa‘s case is a classic example of a situation where the judge‘s conduct amounted to grave injustice to the appellants and a brazen breach of Section 33(4) of the Constitution. No such thing happened in the proceedings before the trial court which led to this appeal. The allegations of bias and impartiality leveled against the learned trial judge in the circumstances of this case are most unfair and should be discouraged.

Issues (iii) and (iv) were argued together in the appellant‘s brief and I will consider them accordingly. It was submitted in the appellant‘s brief that for the extrajudicial statement (Exhibit

1) to qualify as a confessional statement, the accused who is alleged to have made it must admit or agrees clearly, precisely and unequivocally in the statement that he had committed the offence charged and that the admission must be direct and positive. The cases of Gbadamosi v. The State (1992) 9 NWLR. (Pt.266) 465 at 478 & 479 and Afolabi v. Commissioner of Police (1961) All NLR. 682 (Reprint) were referred to.

It was also submitted that the prosecution failed to prove the guilt of the appellant beyond reasonable doubt for the offence of murder The cases of Oteki v. Attorney General. Bendel State (1986)2 NWLR, (Pt. 24)648 and Ekpe v. The State (1994) 9 NWLR. (Pt.368) 268 at 269 were cited. It was further argued that the accused admitted that he matcheted the deceased in Exhibit "1" because he was provoked by the deceased and his wife and that where an accused kills his victim under provocation, the offence committed is not murder but manslaughter and that spoken words can amount to provocation. The following cases were cited and relied upon Akalezi v.

State (1993)2 NWLR. (Pt.273)1 at 14 and Ruma v. Daura N. A. (1960)5 FSC.93. Reference was also made to Section 318 of the Criminal Code Cap. 48 Laws of Bendel 1976 applicable to State. It we finally submitted on behalf of the appellant that where the act of the accused caused him to lose "momentary control of his mind, the defence of provocation will avail him." The cases of Akpan v. The State (1991) 9 NWLR. (Pt 368) 347 at 365 and 366 and Kada v. The State (1991) 8 NWLR. (Pt 208) 134 at 156 and 157, were referred to us. We were urged to discharge and acquit the accused, or, in the alternative, to return a verdict of manslaughter.

For the respondent, it was submitted in his brief that Exhibit "1" is confessional statement. We were referred to the portion of Exhibit "1" when the accused stated that he killed the deceased because the deceased had been telling him to leave his house and further said that he did not kill the deceased but only gave him matchet cuts. That in his evidence-in-chief, the accused further admitted that he inflicted the injuries which caused the death of the deceased. It was contended that these established that the accused knew what he did and he admitted them.

It was also submitted that a trial judge can convict on a confessional statement of an accused which is direct and positive and which properly establishes the truth of the guilt of the accused. The following cases we referred to us: Ukpo v. The State (1995) 33 LRN. 587 at 589 and R. v. Sykes (1913) 8 Cr. App. R.233 at 236.

As to the defence of provocation, it was submitted that the provocation must be grave and sudden and must be such as to take away the accused‘s self-control and that the act of killing must have been done in the heat of passion before there was time for passion to cool and that the retaliation must be proportionate to the provocation offered. It was further submitted that if the accused was actually provoked, he would have attacked deceased and his own wife in the heat of passion, that instead, he attacked his wife at home and allowed the deceased to go to farm before he went there to attack him. We were urged to hold that Exhibit "1" is a confessional statement which was positive and voluntary, that the defense of provocation did not avail the accused and that the appeal should be dismissed.

The facts are not in dispute. The accused admitted that he inflicted matchet cuts on the head of the deceased which caused his death. In his extrajudicial -statement (Exhibit "I") he stated as follows:

"I was provoked this morning 19-9-85 because of home trouble and I took a decision of killing my father and his (sic) wife Mrs. Grace Uluebeka, l now say that I did not kill them but I gave them matches cuts. l only cut my father Uluebeka and my wife Mrs. Grace Uluebeka all of Illeh village, Ekpoma……I became annoyed because I have no money and everybody in my family continue (sic) to worry me more especial (sic) my father and his wife. I cut my wife because she was bulling (sic) me, since I have no money. Since I have no money my family became annoyed with me without minding my ill-health. This is why I decided to end my life with any person available."

In his evidence on oath, the accused testified in part:

"The deceased was my father. The deceased died from injuries I inflicted in his head. I did not intend to kill him . Because my wife and my father ridicule me I was angry and so I went into the room and picked up a cutlass and cut my wife and my father. I was told later in the police station that my father had died but my wife did not die." (Italics mine for enphasis only)

Whatever doubt one might have had as to whether Exhibit "I" is a confessional statement or not to sustain a charge of murder, the evidence of the accused on oath established beyond any doubt that the deceased died from the injuries inflicted on him by the accused on the fateful day (19-9-85). Exhibit "I" is voluntary and there was no objection when the prosecution tendered it. It is part of the evidence before the court which the trial judge considered along with other pieces of evidence before he came to the conclusion that the prosecution proved its case beyond reasonable doubt and found the accused guilty as charged. The learned trial judge held as follows:

"On the evidence before me, I am satisfied that the victim in this case has died and that the cause of his death was the voluntary act of the accused person."

PW.I (Abu Uluebeka), PW.3 (Sunday Okosun) and PW.4 (Police Sergeant Koliko Umaru) who investigated the complaint all testified that the deceased had matches cuts in several places including the head, the waist, the hand and the mouth and that he bled profusely. These witnesses also testified that the incident took place in the farm and that the deceased died immediately he was brought to the hospital before he could receive any medical aid.