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Anselem Agu V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

At the High Court of Imo State, Iho Ikeduru Judicial Division, the appellant (as accused person) was arraigned on Information which charged him with the offence of murder. Upon his plea of not guilty before the said Court (hereinafter, simply, referred to as “the trial Court”), the matter went to trial.

While the Prosecution relied on the testimonies of its seven witnesses in proof of its case, the appellant (as accused person), who did not call any witness, testified in his defence. At the end, being satisfied with the Prosecution’s compelling evidence, the trial Court found him guilty of the said offence contrary to Section 319 (1) of the Criminal Code, Cap 30, Vol 11, Laws of Eastern Nigeria. It accordingly, convicted, and sentenced him to death. His appeal to the Court of Appeal (hereinafter referred to as “the lower Court’) was unsuccessful; hence, this appeal to this Court.

He distilled two issues from his Notice and Grounds of Appeal of December 6, 2012: issues which were framed in these terms:

Whether the Court below is (sic) right in applying the

inconsistency rule as resulting in making the appellant’s viva-voce evidence and cautioned statement as both unreliable and therefore held the viva-voce evidence of the appellant as having totally contradicted Exhibit B qua cautioned statement of the appellant

Is (sic) the Court below right in holding that their was no legal duty on the Police to investigate the appellant’s plea of self defence and particulars therein furnished for reasons of the existence of eye witness account, denial of the cautioned statement by the appellant and that the viva-voce evidence, totally contradicted the cautioned statement

On their part, the respondent framed the issues thus:

Whether the Prosecution proved its case beyond reasonable doubt against the appellant
Whether the statement of the appellant, admitted in Court as Exhibit ‘B’ is (sic) not at variance with his testimony in Court and if the answer is in the affirmative, what is the legal position

My Lords, I take the view that, though the issues framed by the respondent are more succinct apropos the appellants main complaint in his Notice and Grounds of Appeal, only the first

issue is, truly, determinative of this appeal. Thus, only the sole issue, expressed as the respondent’s first issue would be adopted in the determination of this appeal. In effect, the sole issue for the determination of this appeal is the very commodious one couched thus:

Whether the Prosecution proved its case beyond reasonable doubt against the appellant

Before dealing with this issue, however, a statement of the factual background would not be out of place.

FACTUAL BACKGROUND

The fateful day was May 2, 1992; the time was between 4 -5pm. The Prosecution’s case was that on the said day and time, PW3 took her bicycle to one Fabian Uqwushie for repair. As she was there, she overheard the deceased person calling on her. She left the repairer to meet her (the deceased person). On her way, she met the deceased person who asked her to go home and prepare for dinner. As she was about to go, she saw the accused person emerging from a track road with a machete.

As she (the deceased person) turned to move on her way, the accused person charged at her, cutting her with a machete on the neck. As she (the deceased person) ran, shouting as she

was running away, the accused person pursued her, dealing further machete cuts all over her body.

She ran into the compound of one George Opara with the accused person still following and cutting her. All this while, PW3 was shouting and following them closely until all of them got into that compound. However, when the appellant turned to the direction of the PW3 with the machete, she ran to the backyard of the said compound, where she saw Emelia Opara, PW1. She related the story of the incident to her (Emelia Opara). As a result, PW1 ran to the frontage of the compound. She (PW3) later went to the frontage of the compound where she found the deceased person in a pool of her blood, dead.

The accused person, on being arrested by the Police, volunteered a statement which was confessional in nature. At the trial Court, as indicated earlier, the prosecution called a total of seven witnesses. On his part, the accused person (now, appellant) gave evidence in his own defence and closed his case. Following his unsuccessful attempt to quash his conviction and sentence at the lower Court, he approached this Court entreating it to upturn the verdict sentencing

him to death.

ARGUMENTS ON THE SOLE ISSUE

Whether the Prosecution proved its case beyond reasonable doubt against the appellant

At the hearing of this appeal on November 24, 2016, Chief Henry Akunebu, adopted the appellants brief filed on February 8, 2013. Arguing this issue, which was treated as the appellants second issue, learned counsel explained that, on May 2, 1992, while the accused person was returning from the mission, near his house, he was accosted by the deceased person. She (the deceased person) attacked him while in the company of one Okeuchi, Clifford Ejioba, Robbert Opara, and Chinasa. While Chinasa had a knife, Okeuchi and the deceased person held sticks with which they all attacked him, citing the appellant’s statement, Exhibit B.

Counsel submitted that the graphic details relating to the particulars of the attackers, contained in the appellant’s statement, ought to have been investigated by the police for purpose of factual balance and fair hearing which doctrine to be observed even in enquiry or investigation.

In his view, where a plea of self defence was made at the earliest opportunity, the Police

had the onus of disproving it. He maintained that, as the Police were, already, seized with the particulars of the appellant’s attackers, they should have invited them and obtained their statements to determine the veracity or otherwise of the appellant’s plea of self defence.

He submitted that the Police, abysmally, failed in discharging the duty of investigating the said plea. In his view, this alleged failure was fatal to the Prosecution’s case as it resulted in a miscarriage of justice, as his defence was neither confirmed nor repudiated by investigation. He opined that the said failure amounted to a denial of fair hearing, Udo v. State (2005) & (sic) NWLR (pt, 928) 521.

He observed that the appellant’s graphic account as to how he was attacked by the deceased person with a stick and knife, along with other named persons, showed the role played by the named

attackers. He explained that these named attackers were never investigated by the police to confirm or repudiate the plea as contained in the appellant’s statement.

He pointed out that, since the said plea had the prospect of absolving the appellant from criminal responsibility, the dereliction of the Police negatively impacted on the investigation and the subsequent trial, citingAigbadion v. The State (2007) 7 NWLR (pt 666) 636.

He contended that, notwithstanding the statement of PW3, the eye witness and her evidence in Court, the Police still had the duty of, thoroughly, investigating the appellant’s plea of self defence, as the allegation related to specific acts of his attackers in response to which he acted in self defence to repel same.

See also Ejindu V Obi (1997) LLJR-SC

In his submission, the persons who offered the aggression and who were named should have been investigated. As such, the evidence of an eye witness could not displace the necessity for the evidence of the said attackers: evidence obtained upon their investigation through their statement because the plea of self defence was in response to their acts.

He pointed out that, though the appellant’s

statement Exhibit B contradicted his evidence at the trial, it did not relieve the Prosecution of the duty of investigating his plea of self defence, He observed that an accused person’s defence comprises of his statement and his evidence in Court notwithstanding any attempt to disown or contradict it, Tsoho v. State (supra); State v. Madaki (supra).

In his view, the miscarriage of justice which resulted from the failure to investigate the appellant’s defence in Exhibit B was worsened by the fact that the solitary eye witnesss statement, at page 6 of the record, clearly, contradicted the evidence of the witness in Court on the point. He urged the Court to resolve this issue in favour of the appellant.

RESPONDENT’S SUBMISSION

On his part, the learned DPP, Imo State, C. N. Akowundu, for the respondent, adopted the brief filed on March 28, 2013, although, deemed filed on November 24, 2016. In the said brief, he argued that, in a case of murder under Section 319 (1) of the Criminal Code (supra), it is incumbent upon the Prosecution to prove beyond reasonable doubt that; the deceased person has died; that his/her death resulted from the act of

the accused person and that the act of the accused person was intentional with knowledge that death or grievous bodily harm was its probable consequence. He cited Ndukwe v. State (2009) 37 NSCQR 425, 459-460; Nwachukwu v. The State (2002) 3 FWLR (pt. 123) 312, 332; Onah v. State (1985) 3 NWLR (pt.12) 236; Ogba v. State (1992) 2 NWLR (pt. 222) 164, 198.

It was submitted that the prosecution proved the above ingredients beyond reasonable doubt. On the first ingredient, reference was made to the evidence of PW.1, Emelia Opara, pages 26-27 of the record.

Counsel, also, referred to the evidence of the PW.2, Hyacinth Opara, pages 27-28, particularly, page 28. This witness had stated on oath that the deceased person died on May 2, 1992. He identified the corpse to Dr. Innocent Njemanze who performed autopsy on the body of the deceased person.

Reference was further made to the evidence of the PW.6, Dr. Innocent Njemanze, pages 50-52 of the record. At page 51, this witness stated that the corpse was that of a female, Francisca Opara, who died on 2/5/92 at about 4.00p.m. He submitted that the Prosecution proved the death of the deceased person beyond all

reasonable doubt.

Turning to the second ingredient, he referred to the evidence of the PW.3, one Anastasia Opara, pages 30-36 of the record. He submitted that the act of accused person in cutting the deceased with a machete was intentional, with full knowledge that death or grievous bodily harm was its probable consequence, citing Section 316 of the Criminal Code.

In his view, there were two intentions relevant to the appeal, namely, the intention to kill, Section 316 (1) of the Criminal Code and intention to do grievous bodily harm, Section 316 (2) of the Criminal Code. He canvassed the view that if the act, which caused death, was done with either of these intentions, the offence of murder had been committed, citing Amayo v. State (2002) FWLR (pt. 91) 1571, 1575.

He took the view that the requisite intent to kill or cause grievous bodily harm could be inferred from: the type of weapon used; the nature of wound inflicted on the deceased person; the part of the body where the wound was inflicted,Bakare v. The State (1987) 1 NWLR (pt. 53) 579; Buje v. The State (1991) 4 NWLR (pt. 185) 287, 300.

He contended that, from the evidence of the

PW.3, an eye witness account, the appellant cut the deceased person on the neck and gave her several machete cuts on other parts of her body, citing the evidence of the PW.6, Dr. Innocent Njemanze, pages 51-52 of the record. Thereat, the PW.6 averred that on May 21, 1992 (1) performed an autopsy on the body of one Francisca Opara, deceased and issued a medical report.” He described the nature of the injury on the body of the deceased person.

The learned DPP submitted that the accused person not only had the intention to do grievous bodily harm to the deceased person but the intention to kill her. He maintained that the learned trial Judge was, therefore, right in holding that the Prosecution proved its case beyond reasonable doubt against the accused person, citing Ndike v. The State (1994) 8 NWLR (pt 360) 33, 45.

In his view, having proved the ingredients of the offence of murder against the accused person (now, appellant), the trial Court was duty bound to find him guilty, Ehot v. The State (1993) 4 NWLR (pt 290) 663.

Citing the evidence of the PW.3, an eye witness, whose evidence was never impugned in the instant case, he urged the

Court to resolve this issue against the appellant and in favour of the respondent.

RESOLUTION OF THE ISSUE

My Lords, it would seem obvious that, more than other aspects of our corpus juris, the offence of murder under the Criminal Code (culpable homicide punishable with death under the Penal Code) has been the subject of the generous and consistent espousal of this Court in cases too numerous to mention here. Indeed, so frequent has this phenomenon become that I am constrained, in this judgment, to resort to my previous exertions in this regard. Your Lordships must bear with me.

In Tajudeen Iliyasu v. The State (2015) LPELR -24403 (SC) 24 -26, G-C, speaking for this Court, I intoned as follows:

The three constitutive elements or ingredients of the offence which must be proved in order to secure a conviction under this Section have been, generously, outlined in case law, Maigari v. State (2013) 6-7 MJSC (pt 11) 109, 125, citing Ochemeje v. The State (2009) SCNJ 143; Daniel v. The State (1991) 8 NWLR (pt. 443) 715; Obudu v. State (1999) 6 NWLR (pt 1980) 433; Gira v. State (1996) 4 NWLR (pt 428) 1, 125.

Under the said Section, the prosecution

is obliged to prove; (1) that the deceased died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm, These ingredients…have witnessed consistent espousal in many jurisdictions, for example, by English Courts,R v. Hopwood (1913) 8 Cr. App. R. 143; Hyan v. DPP (1974) 2 All ER 41; Woolmington v. DPP (1935) AC 462; by Nigerian Courts, Madu v. State (2012) 15 NWLR (pt 1324) 405, 443, citing Durwode v. State (2000) 15 NWLR (pt 691) 467: Idemudia v. State (2001) FWLR (pt. 55) 549, 564; (1999) 7 NWLR (pt 610) 202; Akpan v. State (2001) FWLR (pt 56) 735; (2000) 12 NWLR (pt 682) 607 and by Courts in other Commonwealth jurisdictions, see, for example, R. v. Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v. The Queen (1968) 42 A. L. J. R.; R. v. Tralka (1965) Qd, R. 225, (Queensland, Australia).

Scholars have seldom disagreed with judicial authorities on this question, C. O, Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd, 2009) 209 et seq; A.G. Karibi-Whyte, History and Sources of Nigerian Criminal Law

(Ibadan; Spectrum Books Ltd, 1988) passim; Archbold’s Pleadings: Evidence and Practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passim; K. S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); P, Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) 194 et seq.

I entertain no doubt that the lower Court, rightly, affirmed the trial Court’s conclusion that the Prosecution proved the first ingredient, that is, the factuality of the death of the deceased person. This is evident from the testimonies of PW1, Emilia Opara, pages 26 -27 of the record; PW2, Hyacinth Opara, pages 27 -28 of the record and PW6, Dr Innocent Njemanze, pages 50 -52 of the record. PW2 having identified the corpse of the deceased person to PW6, he (the PW6) performed an autopsy on the said corpse (that is, the body of the deceased person, Francisca Opara).

As it is often the case with most medical reports, the PW6, Dr Innocent Njemanze, described the nature of the injury on the body of the deceased person in these medical terms:

There was a deep laceration wound cutting across the back of the

root of the neck severing muscle, blood vessels and nerves, leaving only the skin holding the neck interiorly. The lacerations had sharp edges. There were deep incisional wounds two in number, each ten centimetres long and two centimetres deep the right periator and the occipital regions of the skull of the head respectively. There were multiple incisional wounds on both upper limbs cutting across the right shoulder, left arm, right elbow joint and right and left palms severing blood vessels muscles and nerves. All the incisional wounds were as a result of multiple wounds from impact with a very sharp object. An example of a sharp object is a machete.

(Italics supplied)

With regard to the second ingredient, counsel for the Prosecution referred to the testimony of PW3, Anastasia Opara, pages 30 -36 of the record. He submitted that the requisite intent to kill or cause grievous bodily harm could be inferred from: the type of weapon used; the nature of wound inflicted on deceased; the part of the body where the wound was inflicted.

This submission is unanswerable. True, indeed, from a conspectus of the testimonies of PW3 (the eye witness who

observed and saw how the appellant, most brutally, employed a machete in cutting the neck of the deceased person) and the above medical report of the PW6, the lower Court was on firm footing in affirming the finding of the trial Court on the Prosecution’s proof of the second and third ingredients set out above, that is, that the appellant caused the death of the deceased person and he intended to kill her or cause her grievous bodily harm.

In the words of the trial Court “PW3 gave a positive, consistent and harmonious evidence of the acts of the accused (person) leading up to the death of the deceased (person)”, pages 87 – 88 of the record. The lower Court affirmed this finding: a finding that found firm anchorage on the evidence of PW6. I take the liberty to set out the opinion of PW6, once more:

There was a deep laceration wound cutting across the back of the root of the neck severing muscle, blood vessels and nerves, leaving only the skin holding the neck interiorly. The lacerations had sharp edges. There were deep incisional wounds two in number, each ten centimetres long and two centimeters deep the right periator and the occipital regions of

the skull of the head respectively. There were multiple incisional wounds on both upper limbs cutting across the right shoulder, left arm, right elbow joint and right and left palms severing blood vessels muscles and nerves. All the incisional wounds were as a result of multiple wounds from impact with a very sharp object. An example of a sharp object is a machete.

As this Court held in Iliyasu v. State (supra) at page 34, paragraphs B-F, true indeed, Case Law and scholastic treatises are unanimous on the point that if a dangerous weapon was used (in the instant case, a machete was employed in hacking at the neck of the deceased person), the Courts will infer that death was a probable and not just a likely consequence of the accused person’s act, Adamu Garba v. The State (1997) 3 SCNJ 68; Bakuri v. The State (1965) NMLR 163; Silas Sule v. The State (2009) LPELR – 3125 (SC) 24, F-G; Ejeka v. State (2003) 7 NWLR (pt. 819) 408; Garos Bwashi v. State (1972) 6 SC (Reprint) 55; (1972) LPELR-SC.104/1972; P. Ocheme. The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd. 2006) 203; also, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second

Edition) (supra) 221.”

In effect, having concurrently found that the Prosecution proved the ingredients of the offence charged, the lower Court affirmed the verdict of the trial Court.

My Lords, as shown above, counsel for the appellant, spiritedly, tried to fault the above concurrent findings on the ground that the Police, abysmally, failed in discharging the duty of investigating the appellant’s plea of self defence. In his view, this alleged failure was fatal to the Prosecution’s case as it resulted in a miscarriage of justice, as his defence was neither confirmed nor repudiated by an investigation. He opined that the said failure amounted to a denial of fair hearing.

He, further, maintained that the said failure created a doubt in the prosecution’s case as to whether or not the appellant acted in self defence: a doubt that should have resulted in the acquital of the accused person (now, appellant). I will return to the implausibility of the so-called plea of self defence anon. Before then, I would draw attention to the findings of the trial Court at pages 89 – 90 of the record, thus:

….this defence of alibi that he went to the market

the date of the incident was raised for the first time the witness box in Court, it was not ever contained Exhibit B…

The best defence and evidence of alibi is one pleaded at the first opportunity (usually to the Police when making a statement) and not at the time of trial

Not done yet, the trial Court, admirably, defenestrated that spurious defence in this unanswerable conclusion which was, rightly, affirmed by the lower Court;

In the instant case not only was the defence of alibi not raised before the Police with sufficient particulars, even the casual and unsubstantiated manner in which it appeared to have been raised contained no details that will lend it to belief

My Lords, I find no justification for tampering with the above concurrent findings. I will adduce reasons for this later in the course of this judgment. For now, I will deal with the submission of the appellant’s counsel with regard to the so-called plea of self defence. With respect, he (the learned counsel for the appellant) would seem to betray his misconception of a well-established principle in Criminal Law. In the apt findings of the trial Court -findings

which were affirmed by the lower Court-

I find that at the time of the attack on the deceased (person) there was neither any provocation offered to the accused (person) by the deceased (person) or any member of her family nor was there any threat or reasonable apprehension of death or grievous bodily harm to the accused (person) to justify the savage attack that ended the life of the deceased (person)…I therefore find no merit whatsoever in the defence of self defence and provocation raised by the defence

(page 92 of the record; italics supplied)

The lower Courts were right in the above conclusion. In Edoko v State LPELR -24402 (SC) 62 – 63, this Court found it curious that the appellant (just as the appellant in the instant appeal) set up the defences of self defence and provocation at the same trial. Listen to this Court’s adumbration of the rationale for its curiosity:

Whereas the Criminal Code provides for self defence in Sections 286 and 287, the same Code provides for the defence of provocation in Section 284. Whilst the former (the defence of self defence) is an exculpatory defence because, where it is established, it exonerates the

accused person, Uwaekweghinya v. The State (2005) 9 NWLR (pt 930) 227, the latter is, merely, an attenuating or a mitigating defence. Where available, it merely, attenuates; dis-rates or demotes the offence from murder to manslaughter.

In effect, the defence of provocation does not exonerate the accused person. It, only, earns him a mitigation of the punishment due for the offence of murder to a sentence for manslaughter, Uraku v. State (1976) LPELR-SC. 300/1975; (1976) 6 SC 128, Akang v. State (1971) 1 All NLR 47, 49; Musa v. State (2009) LPELR-SC.323/2006; (2009) 15 NWLR (pt 1165) 465; Ada v. State (2008) LPELR-SC.242/2004; (2008) 13 NWLR (pt 1103) 149; (2008) 34 NSCQR 508; Ajunwa v. The State (1988) 1 SC 110; Laoye v. The State (1985) 2 NWLR (pt 10) 832; C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan; Spectrum Books, 2000) 240; C. O. Okonkwo, “The Unlawful Act Doctrine and the Defence of Accident” in The Nigerian Bar Journal Vol 11 (1973) 93-97.

It is, thus, the dissimilarity in the consequences of the availability of these defences that make them, mutually exclusive, that is, that make them inconsistent

defences – defences that cannot avail an accused person at the same time, Ibrahim v. State (1991) LPELR-SC.167/1990; (1991) 4 NWLR (pt 186) 399; (1991) 5 SCNJ 129; see, also, the very incisive, and the most stimulating, article by the cerebral Professor of Law, F. I. Asogwah, “The Applicability of Some ‘Inconsistent’ Defences in the Nigerian Criminal Code,” in I. A., Umezulike (ed), Law and Administration of Justice in the Twenty First Century (Enugu: Fourth Dimension Publishing Co. Ltd, 1997) 75-98.

(per Nweze, JSC in Edoko v. The State (2015) LPELR -24402 (SC) 62 -63, A- C)

Now, to the question of alibi. As pointed out earlier, the trial Court found at pages 89 -90 of the record, that:

….this defence of alibi that he went to the market on the date of the incident was raised for the first time in the witness box in Court, it was not ever contained in Exhibit B…

The best defence and evidence of alibi is one pleaded at the first opportunity (usually to the Police when making a statement) and not at the time of trial…

I, entirely, endorse this view which was affirmed by the lower Court. True, indeed, to be entitled to the

beneficent effect of the defence of alibi, an accused person must raise it at the earliest opportunity, Hassan v. The State (2001) 6 NWLR (pt 709) 286, 305, which would, preferably, be in his extra-judicial statement. This is to offer the Police an opportunity either to confirm or confute its availability to the accused person, Ibrahim v. The State (1991) 4 NWLR (pt 186) 399; Nwabueze v. The State (1989) 3 NWLR (pt 86); Ikemson v. The State (1988) 3 NWLR (pt 110) 455.

What is more, the said defence must be unequivocal as to the particulars of his whereabouts and those present with him, Onyegbu v. The State (1995) 4 SCNJ 275, 285-286; Ibrahim v. The State (supra); Balogun v. AG, Ogun State (2002) 6 NWLR (pt 763) 512, 535-536; Eke v. The State (2011) LPELR – 1133 (SC) 16. It is only where an accused person, such as the appellant, raised the said defence at the earliest opportunity without any ambiguity that a burden is cast on the Prosecution to investigate it, Eyisi v. State (2000) 4 NSCQR 60 and to disprove same, Eke v. The State (supra). Failure to investigate the defence of alibi raised in such circumstance will lead to an acquittal, Yanor v. The

State (1965) ANLR (Reprint) 199; Bello v. Police (1956) SCNLR 113; Odu and Anr v. The State (2001) 5 SCNJ 115, 120; (2001) 10 NWLR (pt. 772) 668. However, the said defence would be unavailing in a situation, as in this case, where the accused person raised it during the trial, Hassan v. State (2001) 6 NWLR (pt 709) 305.

In all, like the lower Courts, I hold that the Prosecution, sufficiently, proved the case as required by law, that is, beyond reasonable doubt, Alabi v. The State (1993) 7 NWLR (pt 307) 511, 523; Nasiru v. State (1999) 1 NWLR (pt 589) 87, 98; Adio v. The State (1986) 2 NWLR (pt 24) 581; Muka v. The State (1976) 9-10 SC 305; Anaekwe v. State (1976) 8 -10 SC 255; Bakare v. The State (1987) 3 SC 1, 32; Aigbadion v. State (2000) 4 SC (PT 1) 1; Agbo v. State (2006) 6 NWLR (pt. 977) 545.

Accordingly, I hereby endorse the concurrent findings of the lower Courts. I find no merit in this appeal. In consequence, I shall enter an order dismissing it as lacking in merit. I, further, affirm the judgment of the lower Court which affirmed the conviction and sentence of the appellant.

SC.514/2012

Anselem Agu V. The State (2017) LLJR-SC

Anselem Agu V. The State (2017)

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