Okoagwu Azu Vs The State (1993)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.S.C. 

The appellant stood trial before the High Court of Imo State in the Afikpo Judicial Division for the murder of one Ude Agwu. He pleaded not guilty to the charge. At the trial the prosecution called eight witnesses and closed its case. The appellant testified in his own defence and called a witness. At the close of the defence and after addresses by learned counsel for both the defence and the prosecution, the learned trial Judge in a reserved judgment found the charge proved and convicted the appellant of the murder of Ude Agwu. He was sentenced to death by hanging.

Dissatisfied with this judgment the appellant appealed to the Court of Appeal (Port Harcourt Division). That Court dismissed the appeal. He has now further appealed to this court upon four grounds of appeal which, without their particulars, read as follows:-

“(A) The Court of Appeal erred in law when it affirmed the decision of the trial court which convicted and sentenced the appellant to death despite the fact that the cause of death could not be proved beyond all reasonable doubt.

(B) The Court of Appeal erred in law when it held that P.W.8 was an expert witness, when there was not evidence that he enjoyed that status within the meaning of Section 56(2) of the Evidence Law Cap. 49. Vol. III Laws of Eastern Nigeria 1963.

(C) The Court of Appeal erred in law when it held that there was no fighting between members of the family of the deceased and the appellant, consequently the defence of provocation, accident and self defence could not avail the appellant.

(D) The decision of the Court of Appeal is unwarranted, unreasonable and cannot be supported having regard to the evidence. “Pursuant to the Rules of this court, learned counsel for both appellant and the respondent filed and exchanged their respective briefs of argument. The issues formulated in the appellant’s brief which coincide with the grounds of appeal are:-

I. Whether the prosecution has proved its case beyond all reasonable doubt in the light of obvious and material contradictions and inconsistencies in the evidence and statements of the prosecution witnesses.

II. Whether medical evidence was necessary in this case to prove cause of death. If the answer is ‘yes’, whether P.W.8 was an expert within the meaning of Section 56 of the Evidence Law Cap. 49 Vol. III, Laws of the Eastern Nigeria 1963, and competent to give expert opinion.

III. Whether there was a free for all fight between the appellant and members of the deceased’s family. If the answer is in the affirmative, whether the defence of accident, self-defence and provocation could avail the appellant.

IV. Whether the court below properly evaluated the evidence of the P.W.5 to P.W.6 in the light of the fact that the said witnesses were members of the deceased’s family.

Before I consider the issues as raised in the appellant’s brief and which I would adopt for the purpose of this judgment, I need to state the facts how-be-it briefly. The appellant on 23rd November, 1987 went to the house of one Emmanuel Agwu, P.W.5 at Amachi Afikpo where the latter’s wife, Beatrice Ewa (P.W.1) ran a food restaurant. The appellant made an order for food and was served by P.W.4 Patience Ewa, daughter to P.W.1. Appellant however complained that the meat in the food was not only small but bony.

Upon this complaint, P.W.1 instructed P.W.4 to add another piece of meat for the appellant which P.W.4 promptly did. Appellant however, got up from where he was sitting, went into the kitchen without the permission of either P.W.1 or P.W.4, opened the meat pot and unilaterally helped himself to a piece of meat. As he was about to put the meat in his mouth, P.W.1 knocked the meat from his hand and it fell down. The appellant thereupon slapped P.W.1 who started crying. Egwu Ewa P.W.1’s son on hearing the cry of his mother went to the scene and asked the appellant why he slapped his mother. The appellant picked a kitchen stool and hit P.W.1 on the head; P.W.1 slumped to the ground and shouted. Ude Agu (the deceased) was attracted to the scene by P.W.1’s shout. The deceased also enquired what was happening. The appellant hit him with the same kitchen stool that he had used on P.W.1 and he too slumped exclaiming that the appellant had killed him. He was rushed to the hospital but died on the way.

In his defence, appellant admitted throwing a kitchen stool at P.W.1. He also admitted that P.W.1, P.W.4 and P.W.6 were present at the time. He gave his own account of what happened on the fateful night and claimed that one Nnachi was present at the time. He denied that it was the kitchen stool tendered in evidence he used on the night of the incident. He denied knowing the deceased and claimed that it was about 2 to 3 hours after the incident he learnt that someone died. His witness, Ndubu Eze Egwu gave an account of what happened on the fateful night. He testified that the appellant complained that the meat served him was bony. The meat was shown to the witness who found that the meat was bony. In his evidence about what happened on the fateful night, he testified that at a stage the appellant ran away and that it was after the appellant had gone away that P.W.1 hit the deceased on the head with the stool and that he helped to put the deceased in a vehicle that took him to the hospital. In short the evidence of this witness was to the effect that it was P.W.1, and not the appellant, that hit the deceased on the head with a stool resulting in the death of the latter.