Mr. Henry Chukwu V. The State (2012)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C.

This is an appeal against the judgment of the Court of Appeal Port-Harcourt Division delivered on 20th June, 2007. The appeal actually arose from the decision of the High Court of Justice of Imo state, hereinafter called trial court.

The accused person Henry Chukwu was arraigned to the High Court of Imo State holden at Okigwe Judicial Division for the offence of murder contrary to Section 319 (1) of the Criminal Code Cap. 30 Vol. 11 Laws of Eastern Nigeria 1963 applicable to the Imo State of Nigeria. The charge reads thus:

“You Henry Chukwu (m) on the 6th day of May, 2001 at Low Cost Housing Estate Ubaha in the Okigwe Judicial Division did murder one Onibuike Uhio after stabbing him with dagger and thereby committed an offence punishable under Section 319 (1) of the Criminal Code Cap. 30 Vol. 11 Laws of Eastern Nigeria 1963 as applicable to Imo State”.Six prosecution witnesses testified for the prosecution. The prosecution’s case in a nutshell was that there was a scuffle between the accused person and the deceased. In the course of the said scuffle, the accused stabbed the deceased with a dagger whereupon the deceased was injured and, subsequently died. Although the police searched the Appellant’s room no weapon was found. i.e no dagger of any sort was discovered. In this case, there was no eye witness who gave direct evidence as to what had happened.

The appellant in his evidence stated that what happened was not intentional act, and that he did not murder the

deceased. The trial court in its judgment however found the accused person guilty and convicted him for murder and sentenced him to death. The trial court on page 99 found thus:-

“The defence counsel submitted that the intention of the accused was to (sic) dispose the deceased of the dagger and not to kill him. He relied on Thomas v. The State (supra) at page 158. The accused was alone in the room with the deceased. The evidential burden on him was to explain how the deceased got stabbed with a dagger. The accused said he did not know how the deceased got the injury. He did not stab the deceased. The submission of counsel, with due deference, is not based on the evidence before the court.

For all I have said above, I hold that the prosecution has proved, by circumstantial evidence, the charge against the accused as required by law, I find him guilty as charge” (sic) per Egole J.

The appellant was dissatisfied with this judgment and has thus appealed to the Court of Appeal Port-Harcourt Division, hereinafter called the lower court. The lower court in the lead judgment delivered by Garba JCA unanimously found as follows:-

“It may be recalled that the appellant has stated in the course of his evidence that it was the deceased who pulled out a dagger from his trouser. By these pieces of evidence the appellant mean (sic) to say that since it was the appellant who pulled out a dagger from his trousers, it was he who initiated or started “what happened” that led to the injury he sustained. I would like to point out that these pieces of evidence couldn’t be considered in isolation of the other part of the appellant’s evidence as well as the evidence of the other witnesses as highlighted in this judgment. The relevant part of the Appellant’s evidence on the point is where he said inter alia. “Immediately I saw the dagger I rushed his hands and we started struggling over it until both of us landed on the bed. The next thing I saw was Chibuike Uhio (deceased) started moving outside. I followed him and he fell down. It was then I noticed that he was injured. I stopped a Cyclist and told him to drop me at Okigwe Police Station”.

The salient points to be noted in the above evidence include:

i) That the evidence did not show that even if the deceased had pulled a dagger out of his trouser he did not attack or even attempt to attack the Appellant with it.

ii) That it was the Appellant who upon sight of the dagger “rushed” the hands of the deceased (whatever that may mean).

iii) That even though both them “landed on the bed” it was the deceased that rushed out of the bed and room injured.