Young Ukauwa Uguru V. The State (2002)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C.

In an amended charge or information, the appellant Young Ukauwa, his mother, Ijeoma Ukauwa and his sister Nwanyisunday Ukauwa were charged with murder contrary to section 319(1) of the Criminal Code, Cap. 30, Laws of Eastern Nigeria, 1963. The charge was read and explained to them and they all separately pleaded not guilty. Both the prosecution and the defence called witnesses at the trial and at the end thereof, the learned trial Judge Njiribeako J, found as follows:

” I am satisfied from the evidence before me that the prosecution has proved beyond reasonable doubt the offence of murder as enunciated in either section 316(a) or (b) reproduced above against the 1st accused and by virtue of section 7 (b) C.C. the 2nd and 3rd accused are equally guilty of the offence as the 1st accused. In the final result I find the three accused guilty of the offence of murder contrary to section 319 (1) C.C.”

The learned trial Judge then proceeded to sentence the three accused persons, including the appellant, “that each of you shall be hanged by the neck until you be dead. May the good Lord have mercy on your souls”.

The appellant, his mother and sister appealed to the Court of Appeal against their conviction and sentence. The Court of Appeal, heard the appeal whereby the appellant’s appeal was dismissed and that of his mother and sister was allowed and they were discharged and acquitted. The appellant therefore appealed to this court on three grounds.

Learned counsel for the parties filed and exchanged their respective briefs as required by the rules of court. At the hearing of the appeal they both adopted their respective briefs and expatiated orally some issues argued in their briefs. The issues for determination in the appeal which were formulated by the appellant in his brief are substantially the same as those raised by the respondent in his brief. I shall however consider those set out by the appellant for the purpose of this appeal which read thus:

“1. Whether there was a valid amended information properly filed before the trial court on which the entire proceedings in the de novo trial beginning with the fresh plea up to the judgment of the trial court was founded

2. Whether in all the circumstances of this case particularly having regard to the orders made suo motu by the learned trial Judge on 25/4/86 the appellant’s constitutional right to fair hearing was violated
3. Whether the guilt of the appellant was established beyond reasonable doubt as laid down by law before he was convicted for murder and sentenced to death”

Before considering the issues for determination in this appeal, I think it is useful to set out albeit briefly the facts giving rise to the case as produced at the trial. The deceased, Mark Ukeagu was a neighbour to one Micha in their village called Akpahia Obiohuru, Ohuhu in Imo State. On the 10th of March, 1985, at about 7.30 p.m., Mark Ukeagu told Micha that he observed that whenever Micha was away from his house, his son Osadebe, had converted the house into a rendezvous for persons of bad character. He, Ukeagu therefore advised Micha to talk to his son about this. While Mark Ukeagu was talking to Micha, Osadebe rushed out of the house infuriated, came to Ukeagu and asked if Ukeagu was calling him a thief. Ukeagu replied “no” but he repeated the advice he gave to Osadebe’s father about bad characters using his house whenever he was away. Osadebe then left his father and Mark Ukeagu together and went away. Shortly after that, some screaming noise and shouts were heard in the direction of the village square. When people arrived at the village square, it was discovered that the appellant was attacking Mark Ukeagu with a matchet. He inflicted many matchet cuts on his body that Mark Ukeagu fell on the ground and had to be carried by his children and other villagers from the village square to the hospital for treatment. One of the villagers (P.W. 2) was able to chase the appellant after he inflicted the matchet cuts, arrested the appellant and took away the matchet from him. The matchet was later handed over to the police in the course of investigation into the case. Mark Ukeagu was first taken to a private hospital and later to the Queen Elizabeth Specialist Hospital, Umuahia, where he died on the 14th of March, 1985. According to the evidence, Osadebe Micha’s son, is a friend of the appellant. This is the gist of what happened as far as the appellant was concerned.

I do not consider it necessary to say anything about the involvement of the mother and sister of the appellant with whom he was tried and convicted because they were discharged and acquitted by the Court of Appeal and no cross-appeal was filed by the prosecution in respect of either of them.

I now proceed to consider the issues ad seriatim.

Issue one is essentially a complaint on the amended charge or information which was used in what was referred to as the de novo trial. It is pertinent to observe that originally only the appellant was charged with the offence of murder of the deceased Mark Ukeagu, but after the trial Judge heard the evidence of some prosecution witnesses, he ordered as follows:

“In the light of the evidence of the witness I order for the arrest of the mother of the accused and the sister of the accused. The information should be amended…”

The main complaint of the learned appellant’s counsel in his brief and oral argument is that the prosecution did not first obtain the permission of the trial court before it proceeded to amend the charge. He contended that what the prosecution did in this case was to pre-empt the decision of the trial court by amending and filing the information before obtaining the order to do so which was a condition precedent. Therefore the amended information he argued, was incompetent and invalid, and the whole trial based on it was a nullity.

For the respondent, the learned D.D.P.P., David Onyieke, in his brief and in oral argument submitted that the amendment of the charge was regular and proper and that even if there was any irregularity (which was denied) it did not occasion any miscarriage of justice. Learned counsel also pointed out that as the appellant had pleaded to the charge as amended and was represented by a counsel throughout the trial, and the counsel did not object to the charge at that time, it is now too late to raise the objection. He cited in support the following cases:- A.-G., Edo State v. Jessica Trading Co. Ltd (1999) 5 NWLR (Pt.604) 500 at 514; Ijeoma v. Queen (1962) 2 SCNLR 157, Okeke v. CO.P. (1946) 12 WACA 363, R. v. Ntia (1946) 12 WACA 54, Ejelikwu v. State (1993) 7 NWLR (Pt.307) 544 at 583, chi v. State (1996) 9 NWLR (Pt.470) 83.