Emmanuel Okoro V. The State

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A. 

The accused was arraigned in the defunct Anambra State High Court of Justice, in the Nsukka Judicial Division holden at Nsukka on an information alleging murder of one Nnenaya Onu, contrary to section 319(1) of the Criminal Code Cap 30 of the Laws of erstwhile Eastern Nigeria, 1963 which was applicable in the former Anambra State. The particulars of the offence are that the accused on the 1st day of September, 1983 at Ugbo Okpondu in the Nsukka Judicial Division, murdered Nnenaya Onu.

At the trial parties joined issues when the accused pleaded not guilty to the one count information. Thereafter the prosecution called five witnesses in support of its case and the accused testified on his own behalf. He did not produce further evidence in support of his case.

The synopsis of the evidence adduced is that the deceased was a girl of about 18 years who was living with her sister, Angelina Onu, the fifth prosecution witness, at Ejeabali Camp. The accused age was also placed at about 18 years. He was on holiday and was living at the same Ejeabali Camp with his parents. It appears he made some amorous advances to the deceased who failed to reciprocate. She reported the advances to her sister, fifth prosecution witness, who discussed the matter with their elder, David Eze, first prosecution witness, who counseled against a moral relationship between the deceased and the accused on the ground of consanguinity. The accused was apparently not satisfied with the explanation proffered and was incensed by the deceased’s failure to requite his love.

On 31st August, 1983, the accused paid a visit to the deceased and the two quarreled. The accused left in annoyance threatening to deal with the deceased presumably because the deceased failed to submit to his suggestions. On the following day, first prosecution witness was in his wife’s shed at the Ejeabali Camp listening to news at 6 o’clock when he heard the accused inviting him to come for something. He fell for the bait as he was approaching him the accused dealt him a matchet cut on his head and first prosecution witness raised an alarm. The accused responded to this by dealing him two more matchet cuts, in quick succession, on the head. The witness raised up his hands to either fend off further attack or plead with the accused whereupon the accused dealt him a further matchet cut on the left hand. First prosecution witness attempted to escape but after managing a few steps he faltered and fell down. The blood thirsty hound pounced on him and inflicted further matchet cuts on the body of the first prosecution witness. Thinking that David Eze’s condition was hopeless he left the witness, hopefully, to die a painful death and turned upon the deceased who had meanwhile appeared at the scene in response to the distress call of the first prosecution witness. David Eze watched helplessly as the accused mounted vicious onslaught on the deceased and when the accused observed that there was still some flicker of life in the prosecution witness, he gave him another cut on the face with the matched. This was the final blow that broke the cannel’s back. David Eze fen unconscious or was unaware of events that was being enacted thereafter.

The sister of the deceased, who was away from the camp, returned in time to watch the accused butcher her sister to death. She saw first prosecution witness lying in front of the house of a man otherwise known as Picolo. At the back of the same house she observed the accused so engrossed in attacking the deceased that he was unaware of her presence. She stealthily rode back on her bicycle to whence she came. There she related the fact of her sister and Eze to the people before reporting the same to the police.

Two police officers who testified as third and fourth prosecution witnesses visited the scene and found first prosecution witness alive but the deceased was already dead. She was identified to the police officers as Nnenaya Onu by the villagers. Dr. Clews Eze, second prosecution witness, performed examination, post mortem, on the body of the deceased after the third prosecution witness had identified it to him. Dr. Eze traced the cause of death to brain damage consistent with head cuts inflicted by the use of a sharp edged metallic object such as a big knife like matchet or dagger or sword.

The accused made two extra judicial statements which were admitted as exhibits A and B. The accused, in his evidence in court, adopted as part of his defence his two statements but proceeded to narrate an account of the incident which was inconsistent with the two exhibits. The essence of his testimony in court was to resile from the two confessional statements he had made and to put up the defences of self-defence, provocation and accident.

The learned trial Judge in a reserved and considered judgment rejected the defence put up by the accused. Thereafter, he found that the prosecution had proved its case beyond reasonable doubt and accordingly convicted the accused.

The accused being unhappy with the decision of the learned trial Judge has appealed to this court on four original and additional grounds of appeal.

Grounds 3 and 4 are omnibus grounds but while ground 3 is omnibus ground in a civil case the other one is good in a criminal appeal. The qualities of the four grounds of appeal are of little or no consequence in view of the steps subsequently taken by the learned counsel for appellant in the appellant’s brief. Learned counsel for appellant, in the appellant’s brief formulated only one issue which formulation was predicated upon the only additional ground. The four original grounds are for that reason deemed abandoned and are hereby struck out.

Learned counsel for appellant filed an appellant’s reply brief apparently on service or respondent’s brief on him. In reaction to the appellant’s reply brief, learned Deputy Director of Public Prosecution, Enugu State, also file further respondent’s brief which was struck out by this court differently constituted.

It seems to me that respondent’s counsel decided on replying to appellant’s reply brief because of the contents of that brief. In the appellant’s purported attempt to reply to respondent” s brief he proffered fresh arguments which are in fact not remotely related to the respondent’s brief of argument. The appellant by implication has filed two briefs because what he styled as appellant’s reply brief is in effect another or supplemental brief which he is not entitled to.

The approach is prejudicial to the respondent who is entitled to reply to the fresh argument but is denied the opportunity because Order 6 of the Court of Appeal Rules Cap 62 of the Laws of the Federation of Nigeria, 1990 does not provide for a reply to appellant’s reply brief.

The procedure adopted by learned counsel for appellant has no basis whatsoever. The procedure is not supported by the provisions of Order 6 of the Court of Appeal Rules Cap 62 which did not envisage that an appellant would file an appellant’s reply brief wherein fresh arguments which are not adverted to in the respondent’s brief are canvassed. Such a brief, to my mind is null and void. I am strengthened in this view by the case of Chief Onu Uzoukwu v. Igwe Chukwudebelu Ezike Ezeonu II (1991) 6 NWLR (part 200) 708, 750 where Court of Appeal per Nasir PCA, said –

“the learned counsel for respondent filed, what he called an additional brief on 25th April, 1991. There was no application for this additional brief to be filed. This procedure was definitely wrong but the learned counsel for appellant after pointing out that the procedure was irregular, stated that he had no objection and that he wanted the appeal to continue and concluded. We concluded that we should allow the document to be filed but treated as a continuation of oral argument. It would seem to me that any brief or additional brief filed when the appeal was part heard and without leave or filed out of time without the leave of court or simply deposited in the court as additional brief was a nullity and should form no part of the original brief if one has already been filed. It is because of above and the agreement of learned counsel for the respondents (sic) that we agreed to treat the document as part of oral argument. (See Buraimoh v. Bamigbose (1989) 3 NWLR (Pt. 109) 352 at 360). No consent or lack of objection by counsel can make any document which is not legally admissible to be used as part of the brief. The document in question in this case may be admitted if the necessary leave has been applied for and granted. A careful consideration of the said document clearly shows that it is the oral submission of the counsel produced in a written form.”

The brief involved in the instant appeal is not respondent’s brief. It is the appellant’s brief and when learned counsel for appellant decided upon fresh argument the only option open to him was to file another brief in the form or nature of appellant’s amended brief. The document styled respondent’s reply brief, had it not been previously struck out by this court differently constituted could have been taken as additional respondent’s brief as the Supreme Court did in the case of Emodi v. Kwentoh (1996) 2 MAC. 184, 190; (1996) 2 NWLR (Part 433) 656.

To allow the appellant’s reply brief in the instant appeal as it was earlier observed would be prejudicial to the other party who would have no opportunity of replying thereto. It would result in unfair hearing. Where one party is not afforded opportunity of answering what is being urged on behalf of his opponent the trial cannot be said to be fair and just. In the circumstance of this case that appellant’s reply brief would have to go. I am not unmindful of the fact that the liberty of nay life of a citizen is at stake but I am required to do justice according to law. That is what the rule of law is after. Just as the appellant is striving to have justice done to him, the soul of the deceased is crying from her grave for justice.

The only issue calling for determination in this appeal is whether or not the learned trial Judge complied with the provisions of Section 30 of the Children and Young Persons Law in determining the age of the accused who is hereinafter referred to as the appellant.

It was contended on behalf of the appellant in the appellant’s brief that the learned trial Judge fell into grave error when he made a pronouncement on the appellant’s age which, from the evidence before the court, clearly appeared to be a juvenile, without determining his age in accordance with the provisions of Section 30 of the Children and Young Persons Law Cap 19 applicable to the defunct Anambra State, before proceeding to convict and sentence him to death for murder. It is apt, at this stage of the submission to recite the following portion of the appellant’s brief which states as follows-

“We will now briefly examine the evidence to highlight the facts that were before the learned trial Judge at the lower court.

At the trial of the appellant for the murder of Nnenaya Onu, the prosecution tendered the two statements he made to the Police as Exhibits “A” and “B”. In Exhibit “A” just below the underlined caption, appears the following piece of information –

Occupation: Student. Age: 18 years.

Furthermore in his Evidence-in-Chief, the appellant stated as follows –

“I am a student of Technical College at Nsukka and am in class IV”, based on these pieces of evidence, the learned trial Judge stated as follows in his judgment – The accused who is also aged about 18 years was a student at a Technical College in Nsukka and at the time of this incident he was on holiday”

Counsel then proceeded to recite the provisions of section 30 of the Children and Young Persons Law Cap 19. Thereafter he went ahead to do analysis of the provisions of the same section.

The analysis is not only advantageous but also beneficial. I propose to take advantage of the counsel’s industry.

Learned counsel, in his effort to pin-point directly the express provisions and elucidate upon the clarity of the section, re-arranged without editing it as follows-

“Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that he is a juvenile,

(a) the court shall make an inquiry as to the age of that person, and for that purpose shall, require (a) the production of a birth certificate or,

(b) other direct evidence as to the date of birth, and

(ii) in the absence of such certificate or evidence-

(a) a certificate signed by a medical officer in the service of the Government giving his opinion as to such age and

(b) the age presumed or declared by the court to be the age of the person so brought before it shall, for the purpose of this Law, be deemed to be the true age of that person.”

What emerges from the above exercise is that there are four methods or ways of proving the age of a person who appears to the court to be a juvenile –

(i) the production of a birth certificate, or

(ii) other direct evidence as to the date of birth; or

(iii) a certificate signed by a medical officer in the service of government giving his age; or

(iv) the age presumed or declared by the court to be the age of the accused.

Before investigating whether any of these conditions was satisfied particularly (i) – (iii), the question calling for an answer is did it appear to the court that the appellant in the instant appeal was a juvenile? There is nothing on the face of the record showing that it appeared to the learned trial Judge that appellant was a juvenile. The relevant portion on which the learned counsel for appellant hinged his submission is already set out in this judgment. But for ease of reference or clarity, I propose to repeat the same –

“The accused who is also aged about 18 years was a student at a Technical College in Nsukka and at the time of this incident he was on holidays ….”

Firstly, the declaration of the learned trial Judge that the accused “is aged about 18 years” puts the matter beyond question. It could no longer appear to the learned trial Judge that the accused is a juvenile in view of the provisions of section 30 of the Children and Young Persons Law which provides inter alia, that-

“â€?where it appears to the court that the person so brought before it is of the age of seventeen years or upwards, that person shall for the purposes of this law be deemed not to be a juvenile.”

(Italics mine)

The antecedent of the appellant that he was in class IV in a technical college does not ipso facto indicative of the fact that he is or was a juvenile. I agree with the submission of the learned counsel for respondent that persons who are not juvenile could still be in class IV in a technical college. The evidence of the appellant to the effect that he was in class IV in a technical college without more is not sufficient to lend him appearance or semblance of a juvenile. In the absence of any material on record showing that appellant appeared to the court to be a juvenile, the court was not required to conduct an inquiry. There was therefore no need for the court to ask for evidence in the nature of birth certificate, medical certificate or otherwise in proof of the appellant’s age.

Assuming the court deemed the appellant to be a juvenile, which is not the case, the learned trial Judge under Section 30 of the Children and Young Persons Law can arrive at a decision on the age of appellant by four ways which are to be read disjunctively, in other words, each of the four methods stand independently of the other. It therefore follows that the conjunction “and” at the end of the third method and before the fourth way should read not conjunctively but as a disjunctive just as the disjunction “or” in the preceding methods. The word “and” should read “or” to carry out the intention of the legislature. Section 45 of the Interpretation Act States that the word “or” shall be construed disjunctively unless a contrary intention appears”. Maxwell on Interpretation of Statutes 9th Edition at page 244 states thus –

“To carry out the intention of the Legislature, it is occasionally found necessary to read the conjunction “or” and “and” one for the other.”

There can be no doubt that the legislature intended that an accused’s age is proved under section 30 Cap 19 if one of the modes specified therein is adopted. To interprete it as conjunction would clearly lead to absurdity. See R v. Eze 19 NLR 110 and Liney v. Pearson (1858) 6 H.L Cas 106. The word “and” which appears between the words “such age” and “the age presumed” in section 30 Cap 19 should be read as “or”.

That being the case one of the courses of action open to the learned trial judge is to presume or declare the appellant’s age. The learned trial Judge, who had the opportunity of seeing and observing the appellant during the trial having placed his age at about 18 years, the need to produce birth certificate, or medical certificate or direct evidence is thereby obviated. The case of Okara v. The State (1991) 3 NWLR (Pt. 140) 536 could not have been correctly cited in the appellant’s brief.

Even if it were, the instant case cannot be on all fours with it. In my respectful opinion, where the accused is not considered a juvenile as in the instant appeal, there is no duty to make an inquiry. The duty to make an inquiry into the age of the appellant only arises where he appears to the learned trial Judge to be a juvenile that is a person whose age is less than 17 years. But where the accused’s age is found or presumed or declared to be seventeen years and upward, it is no longer necessary to conduct an inquiry into his age. The age in issue is the age at the point of sentence and not for purpose of criminal responsibility or conviction. It therefore, follows that the accused is liable or fully responsible for the natural consequences of his act but for reason of his age (at the time of conviction and not of the offence) he cannot be sentenced to death. See R. v. Bangaza (1960) 5 FSC 1; (1960) SCNLR 1 which correctly interpreted the provisions of the relevant enactments: See Sections 30 of the Children and Young Persons Law Cap 19; Section 319 of the Criminal Code and Section 368 of the Criminal Procedure Act.

It derives from section 53 of The Children and Young Persons Act 1933 of England. It provided in Section 53(1) as follows-

“(1) Sentence of death shall not be pronounced on or recorded against a person under the age of 18years, but in lieu thereof the court shall sentence him to be detained during His Majesty’s pleasure”?

Subsection 3 of Section 368 of the Criminal Procedure Law Cap 31 of the Laws of Eastern Nigeria 1963 provides –

“(3) Where an offender who in the opinion of the court has not attained the age of seventeen years is found guilty of a capital offence, sentence of death shall not be pronounced or recorded but in lieu thereof the court shall order such offender to be detained during the Governor’s pleasure and if so ordered he shall be detained in accordance with the provisions of Part XLIV notwithstanding anything to the contrary in any written law.”

“(1) Sentence of death shall not be pronounced on or recorded against a person under the age of 18 years, but in lieu thereof the court shall sentence him to be detained during His Majesty’s pleasure …..

Subsection 3 of Section 368 of the Criminal Procedure Law Cap. 31 of the Laws of Eastern Nigeria 1963 provides-

“(3) Where an offender who in the opinion of the court has not attained the age of seventeen years is found guilty of a capital offence, sentence of death shall not be pronounced or recorded but in lieu thereof the court shall order such offender to be detained during the Governor’s pleasure and if so ordered he shall be detained in accordance with the provisions of Part XLIV not withstanding anything to the contrary in any written law.”The case of Uwa v. The State (1965) 1 All NLR 356 cited in the appellant’s brief is not helpful to the cause of the present appellant. It was found in Uwas case that it was doubtful that his age was up to seventeen years by the time of conviction and the doubt was, therefore, resolved in favorem vitae that he had not attained the age of 17.

This was possible because he said that he was 13 in 1960 when he was baptised. The appellant, in the instant appeal has not sought to put the age declared for him in doubt. There is nothing on record, in the instant appeal, putting the age declared for him in doubt which doubt can be construed in his favour.

In the circumstance, the appeal lacks merit and it is dismissed by me. The decision of the court below is affirmed.

Other Citations: (1998)LCN/0455(CA)