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Intent to kill: An essential ingredient of the offence of attempted murder  

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STATE v. ILODUBA & ORS
CITATION: (2020) LPELR-50593 (CA)

In the Court of Appeal
In the Awka Judicial Division
Holden at Awka

ON MONDAY, 3RD AUGUST, 2020
Suit No: CA/AW/35C/2017

Before Their Lordships:
CHIOMA EGONDU NWOSU-IHEME Justice, Court of Appeal
RITA NOSAKHARE PEMU     Justice, Court of Appeal
BITRUS GYARAZAMA SANGA        Justice, Court of Appeal

Between

THE STATE                                        – Appellant(s)
And

1. OBODOECHINA ILODUBA
2. NWOKIKE EGWUATU ILODUBA
3. CHUKUNONSO ILODUBA           – Respondent(s)

LEADING JUDGMENT DELIVERED BY BITRUS GYARAZAMA SANGA, J.C.A.

FACTS
The respondents, who are sons of the same father, were charged before the High Court of Anambra State of Nigeria, Anambra Judicial Division, D.O.C Amaechina J. presiding for the offence of attempted murder contrary to Section 275 (b) Criminal Code Cap 36 Vol.2, Revised Laws of Anambra State.

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The fact of the case revealed that the first and third respondents (Obodoechina Iloduba and Chukwunonso Iloduba) seized and held the arms of one Lawrence Iloduba. The 2nd respondent (Nwokike Egwuatu Iloduba) went to his house, brought out a machete and deliberately macheted Lawrence Iloduba on the head and hands. Blood was oozing out, people nearby started shouting that Nwokike Egwuatu Iloduba want to kill somebody. The wife of Lawrence Iloduba on hearing the noise rushed to the scene and raised the alarm. Then one Kenneth Igweze intervened and rescued Lawrence Iloduba who seized the opportunity to escape from his assailants with the help of a commercial motorcyclist who took him to Nteje Police Station. After he had reported the incident at the Police Station, one Corporal Ossai Lazarus, the I.P.O rushed him to a private hospital i.e. Chirah Hospital Awkuzu. That hospital later referred him to the General Hospital Onitsha as he needed better facilities for his treatment.

The respondents as accused persons were arraigned before the trial Court and they pleaded “Not guilty” to the charge. Witnesses were called and evidence was adduced with various documentary evidence admitted. In his judgment, after reviewing the documentary and oral evidence adduced before him, the learned trial Judge accepted the credible evidence adduced by the prosecution. He however, held that the prosecution failed to prove intent to kill but instead proved intent to do grievous bodily harm. The learned trial Judge then passed his sentence on the convicts as follows;

“SENTENCE:
The defendants are to immediately enter into a bond to be of good behaviour for the next 18 months, and in that time, they shall be under Police supervision, making a report of their good conduct to the local Police, i.e. Nteje Police Station, every first day of each new month. In default, the defendants shall serve two years I.H.L for the offence of unlawful wounding.”

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Aggrieved by the trial Judge’s decision, the prosecution filed this appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on a lone issue viz: Whether the trial Court was correct when it held that the prosecution did not prove intent to kill, which is an essential element of the offence of attempted murder brought against the respondents.

APPELLANT’S SUBMISSIONS
In his submission on the issue, learned counsel to the appellant argued that Section 275 of the Criminal Code, Revised Laws of Anambra State, 1991, provides for the offence of attempted murder. That in the case of Aniefiok Robert Essien V. The State (2016) LPELR-41179 (CA), the Court laid down what the prosecution ought to prove in an offence of attempted murder. That among the key ingredients of attempted murder are: 1. The intention of the appellant to kill. 2. The execution of such intention by an overt act. 3. An intervening act from fulfilling such intention.

Counsel further relied on the case of Dibia v. The State (2017), 12 NWLR (pt. 1579) 196 at 218 and Jegede v. The State (2001) 14 NWLR (pt. 1033) 264 at 275 and submitted that in the instant case, the learned trial Judge rightly found that there was actus reus in the offence of attempted murder alleged against the respondents but that the Judge erred when he held that the prosecution did not prove an intent to kill on the strength of the evidence of PW5, the medical doctor in his medical report. That based on the authorities of Aniefiok Robert Essien V. The State (supra) and Dibia V. The State (supra) the prosecution proved beyond reasonable doubt that the steps taken by the appellants reached the point where they indicated beyond reasonable doubt that the respondents wanted to murder Lawrence Iloduba (PW2). Learned counsel urged the Court to resolve this issue in favour of the appellant.

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RESPONDENT’S SUBMISSIONS
On his part, learned counsel to the respondents argued that it is the duty of the prosecution to ensure that the elements of an offence are properly spelt out in the charge. Counsel relied on Saraki v. F.R.N. (2018) 16 NWLR (pt. 1646) 424, and submitted that the elements of the offence as laid out in the charge No. OT/18c/2013 were not properly spelt out. That under the Nigerian criminal justice system, the prosecution has the duty to prove its case against an accused beyond reasonable doubt, relying on Bello v. C.O.P. (2007) 10 NWLR (pt. 1043) 564; Oladele v. Nigerian Army (2004) 6 NWLR (pt. 868) 166; USO v. C.O.P (1972) II S.C. 37. That Section 135 (1) of the Evidence Act does not impose a duty on accused person to prove he is not guilty. Rather, it imposes an obligation on the prosecution to prove the guilt of the accused person beyond reasonable doubt. Where the prosecution fails to do so, the accused person is under no obligation to prove his innocence. Counsel cited Esangbedo v. State (1989) 4 NWLR (pt.113) 57; State v. Abeez (2008) 14 NWLR (pt. 1108) 439; KAZEEM v. STATE (2009) ALL FWLR (pt. 465) 1749 in support.

Counsel submitted further that a Court or tribunal must consider and act on the totality of evidence called by the prosecution and laid before it in proof of their case in order to determine whether they have proved their case beyond reasonable doubt. And if from the prosecution’s case the Court or tribunal is in a state of doubt, a conviction of the defendant in spite of obvious contradictions will be perverse. Reliance was further placed on SarakI v. F.R.N (2018) 16 NWLR (pt. 1646) 433-434; Ikhane v. C.O.P (1977) 6 S. C. 119; Muka v. State (1976) 9-10 SC, 305; Ameh v. State (1978) 6-7 S.C 27; Onyemena v. State (1974) 1 S.C 165. Learned counsel urged the Court to resolve this issue for the respondents.

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RESOLUTION OF THE ISSUE
In resolving the issue, the Court scrutinised the provision of Section 275 of the Criminal Code, Revised Laws of Anambra State, 1991 pursuant to which the respondents were charged. Which reads thus: “275. Any person who: a. Attempts unlawfully to kill another; or b. With intent unlawfully to kill another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life.”

The Court then held that, from the provision of the law under which the respondents as accused persons were charged, the first requirement in a charge of attempted murder is “Attempts unlawfully to kill another.” Because of the word ‘or’ these two requirements are disjunctive and not conjunctive, meanings; either of the two requirements can suffice to prove attempted murder. However, when the two ingredients are considered together it results in actus reus (attempts to unlawfully kill another) and mens rea (intent unlawfully to kill another). Thus, to constitute attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than preparation for the commission of the offence. It literally means that the act proved against an offender must be such as would show that he did all he needed to do to complete the act before it was stopped. Reliance was placed on Bello Shurumo v. The State (2010) LPELR-3069 (SC).

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Upon considering the facts and circumstances of the offence committed by the respondents, the Court held that it is obvious that there was an attempt to commit the offence of attempted murder. The Court narrated the evidence adduced by the prosecution, which the trial Judge accepted as true and held that, the 1st and 3rd respondents by their act of seizing and holding the arms of the PW2 while the 2nd respondent walked to his house, brought out a machete and deliberately matcheted Lawrence Iloduba on the head and hands when his arms were in the firm grip of the said 1st and 3rd respondents is a clear intention by the respondents to unlawfully kill Lawrence Iloduba. That if Kenneth Igweze did not intervene by preventing the respondents from continuing with their dastardly act and thus rescuing PW2 from their grip, he would have been matcheted to death by the said respondents. The ends to which the respondents aimed to reach would have been attained but for the intervention of Kenneth Igweze, which they never anticipated, and which prevented them from committing the offence, they intended.  Reliance was placed on Dibia v. The State (2017) 12 NWLR (PT. 1579) 196 AT 218.

It was thus held that the learned trial Judge was not right by holding that the prosecution did not prove intent to kill, an essential element in proving the offence of attempted murder. The issue was resolved in favour of the appellant.

HELD
The Court resolved the issue in favour of the appellant the sentence pronounced by the learned trial Judge on the respondents was set aside. The respondents were found guilty of the offence of attempted murder and were sentenced to 10 years imprisonment with hard labour.

Appearances
U.C Martins-Mmaju Esq. For Appellant with fiat of Attorney-General
J.O. Onwujekwe Esq. For Respondent
Compiled by LawPavilion.

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