Anselem Akalonu Vs The State (2002)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, J.S.C.

The appellant was at the High Court holden at Owerri charged with the offence of murder of one Edmon Uzoma contrary to Section 319 of the Criminal Code. He pleaded not guilty to the charge.

At the trial, the prosecution called a total of five witnesses two of which were star eye witnesses. The appellant also testified in his own defence. He called no witnesses. At the close of the case for the prosecution and the defence, and after addresses of counsel, the learned trial Judge carefully examined the evidence on both sides and came to the conclusion that the offence against the appellant was proved beyond reasonable doubt. He therefore found the appellant guilty and sentenced him to death.

Aggrieved by the decision of the trial High Court the appellant appealed to the Court of Appeal holden at Port-Harcourt. In a reserved judgment the Court of Appeal after consideration of all the issues submitted to it for resolution, unanimously dismissed the appeal and confirmed the judgment of the trial High Court.

Still dissatisfied with the judgment of the Court of Appeal, the appellant has now appealed to this Court. But before delving into the appeal before us, it will be appropriate first of all to state the facts of the case albeit briefly as follows:-

On 15th November, 1988 at about 6.30 p.m. in the evening the appellant waylaid the deceased and two others (P.W.1 and P.W.4) on a road they were traveling on a motor cycle (all the three of them). They were flagged down to stop by the appellant. When they stopped the appellant switched off the ignition key of the machine and removed the key. A struggle then ensued when the motor cycle riders tried to get the key back from the appellant. They succeeded and got back the key. As the motor cyclists tried to move away to continue their journey, the appellant attacked the deceased, who was sitting last on the motor cycle, with a dagger and wounded him in the chest. The deceased was rushed to a clinic where a nurse attended to him, but he died around midnight on the same day.

The matter was later reported to the Police who investigated same. The dead body was examined by a medical doctor (P.W.3) at the Owerri General Hospital. In his opinion massive internal haemorrhage as a result of punctured left lung and left ventricle of the heart caused the death of the deceased. He said a sharp penetrating object such as a dagger or knife applied with force, could cause the injuries he saw.

The appellant’s defence on the other hand was that in the night in question, P.W.1 and those with him (meaning P.W.4 and the deceased), knocked him down from the bicycle he was riding with their motor cycle on which they were riding without headlight. That, according to him led to a fight between them whereupon he threw the deceased down and climbed on top of him. That, it was in this situation that P.W.1 tried to stab him (the appellant) with a dagger which mistakenly landed on the deceased after wounding him (appellant) on his left thumb only.

As I said above the learned trial Judge accepted the case of the prosecution, rejected that of the appellant and convicted him as charged. The conviction was confirmed by the Court of Appeal, hence the present appeal.

Both the appellant and the prosecution (or Respondent) have filed and exchanged their briefs of argument as mandated by the Rules of Court. These were adopted and relied upon at the hearing of the appeal during which time additional oral submissions were also made to us.

In the appellant’s brief the following issues have been identified as arising for determination in this appeal –

“1. Whether P.W.1 and P.W.4 are tainted witnesses.

2. Whether the Police investigated the case.
3. What is the effect of Section 149(d) of the Evidence Act, 1990 on the prosecution’s case with regard to the failure of the prosecution to call numerous identified witnesses of the incident.
4. Whether the prosecution established beyond reasonable doubt that the act of the appellant caused the death of the deceased.”

I must say here now that the above issues are respectively the same as issues 1, 3, 2 and 4 in the Court of Appeal as can be found on page 124 of the record. There is thus nothing new in these issues.

Issue 1