No need to establish truth of admitted fact – SC

The particulars of the charge read thus:“Henry Nwokearu on the 25th day of February, 1994 at Umuogele, Umuariam, Obowo in the Mbano/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 […]

The particulars of the charge read thus:
“Henry Nwokearu on the 25th day of February, 1994 at Umuogele, Umuariam, Obowo in the Mbano/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 Nwokearu. I accordingly find him guilty of murder as charged and sentenced him accordingly.”
Appellant appealed to the Court of Appeal, Port Harcourt Judicial Division on four (4) grounds of appeal from which two issues were distilled for determination.  At the hearing of the appeal, the court below resolved each of the two issues against the appellant and concluded thus:
“I am of the view that none of the defences set up by the appellant can avail him in the circumstances of this case. I affirm the conviction and sentence of the appellant for the offence of murder. The appeal is dismissed.”
Dissatisfied, the appellant appealed to this court on four grounds.
I will now consider the two issues argued by learned counsel for the parties. Issue one is 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.
I have carefully considered the submissions of learned counsel for the parties as well as the case law relied on by them. 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.
 (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.
(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 wilfully stopping the breath of any person for either of such purpose.

See Section 316 (6) of the Criminal Code (supra).
Appellant’s case falls under Section 316 (1) of the criminal code. For the appellant, the first two elements of the charge under Section 316 (1) of the criminal code were conceded. In other words, it was conceded:
 (a) that the deceased died; and
(b) that the death of the deceased resulted from the act of the appellant.
Appellant and the state joined issues on the third element. While it was submitted on behalf of the appellant that his act which resulted in the death of the deceased was not intentional, the state argued to the contrary.
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 realizing itself in the fact because of the desire by which it is accompanied.
In criminal law, to involve guilt, accused must have done or omitted something contrary to law as criminal responsibility for conduct depends on intention. See Quinn v. Lethem (1901) AC 491, 533 where Lord Lindley said:
“It would revolutionise criminal law to say that criminal responsibility for conduct never depends on intention.” ‘Intentio mea imponit namien operi meo’ – My intention gives a name to my action.”
The purport of issue one is that the trial court convicted the appellant without proof of intention to kill the deceased and that the lower court perpetrated the error by affirming the decision of the trial court. 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 Onuoha with my dagger…”
The evidence of the appellant in his defence is irreconcilably in conflict with the evidence of the prosecution witnesses who gave eye witness 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.
In reconsidering the appellant’s appeal, the lower court considered the sworn evidence of the appellant that the dagger with which he killed the deceased was part of his military uniform against the statement of the appellant in Exhibit B that the dagger was not part of his uniform but his personal property. This has a negative impact on the appellant’s plea that he acted without intention.
Could the dagger be said to be part of the appellant’s military uniform? The answer is in the negative. Uniform is defined as a dress of some kind for persons who belong to the same body as of soldiers or policemen. See Advanced Law Lexicon, 3rd Edition Reprint 2009, pages 4820-4821.

In O’Moran v. DPP (1975) All ER 473 at 480-481, Lord Widgery, CJ, defined uniform to include beret, dark glasses and dark clothes. There was no mention of any form of weapon. A soldier’s uniform consists of a dress and the accessories and would not include his gun, knife, dagger or any other type of weapon. 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.
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 Onuoha at the left jaw and right arm.”

To be continued