Ngwo Kalu Vs The State (1988) LLJR-SC

Ngwo Kalu Vs The State (1988)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

On the 23rd day of June, 1988, after hearing submissions of both counsel in this appeal, we allowed the appeal and ordered the acquittal and discharge of the appellant. We then indicated that we would give reasons for our judgment today. I now give my reasons.

The appellant and another person called Uwagwu Kalu were arraigned before Maranzu, J. in the High Court of Imo State holden at Ohafia. They were both charged under Section 319(1) of the Criminal Code Cap. 30 Vol.II, Laws of Eastern Nigeria 1963 applicable in Imo State. The charge alleged that on or about the 8th day of February, 1983, at Asaga, in the Ohafia Judicial Division they murdered one PETER UME MADUKA. They both pleaded not guilty to the charge.

The substance of the case for the prosecution was that the appellant and Uwagwu Kalu (who was the second accused) were among a group of armed men who broke into the dormitory of the Asaga Boys Secondary School, Ohafia, on the night of 28th January, 1983 and inflicted injuries on several students. Amongst the students wounded in the attack were Peter Ume Maduka (the deceased), P.W.6 and P.W.7 It was the prosecution’s case that after the attack in the dormitory, several students, among whom were the deceased, P.W.6 and P.W.7 were taken to the Chief’s house in Asaga town that night. It was further alleged that in the Chiefs house, the second accused instructed the appellant to kill the deceased for his saying that Asaga Boys Secondary School should be removed to Isiama. In compliance with the second accused’s instructions, the appellant hit the deceased on the head with an iron rod. On the 8th day of February, 1983, Peter Ume Maduka died at the University of Nigeria Teaching Hospital Enugu as a result of the injuries sustained.

At the trial, eight witnesses gave evidence for the prosecution. Both accused persons testified in their defence but called no witnesses. At the conclusion of the hearing, the learned trial Judge Maranzu, J. reviewed the totality of the evidence adduced and held that the case against the second accused person – Uwagwu Kalu had not been established. He accordingly acquitted and discharged him. He, however, found the case against the appellant proved and so convicted him and sentenced him to death. The appellant’s appeal to the Court of Appeal was dismissed. He has now appealed to the Supreme Court.

In acquitting and discharging the second accused person, the learned trial Judge, in his judgment gave his reasons as follows:-

“The only evidence linking the second accused person with the commission of the offence is the evidence of p.w.6 who stated that the second accused instructed the first accused to kill the deceased because he (the deceased) had said that the college should be removed from Asaga to Isiama and that the second accused gave this direction in the Chief’s house…………………I have already in this judgment pointed out the indiscreet behaviour of the second accused. It is part of his defence on oath that the charge against him was as a result of the grudge Amaekpu people bear him because he divorced one of their daughters who was his wife. There is no evidence before me as to whether P.W.6 who implicated the second accused is in any way related to the divorced Amaekpu wife of the second accused nor have I any evidence of any other type of relationship cordial or strained between P.W.6 and the second accused. All one can infer from the entire evidence is that the people of Asaga and the people of Amaekpu bear each other some type of grudge. (Italics mine)

My view is reinforced by the answers of P.W.6 to the questions on the point put to him by the learned defence counsel which I have already reproduced in this judgment but which I will repeat to emphasize the point. Quote.

“Question: Did you believe or accept the allegation that Asaga people came to the campus to attack Amaekpu students

ANSWER: I may believe the story because a majority of the students from Amaekpu were seriously injured like myself.

Question: For you this case is an Amaekpu versus Asaga affair while in fact it was a students’ riot.

ANSWER: It was not a students riot because the very person who caught me was not a student and others also.”

The learned trial Judge continued in his judgment:-

“If therefore one accepts my findings of fact that there is ancient grudge between the peoples of Asaga and Amaekpu then one would be very slow in accepting in its entirety the very thin evidence of P.W.6 linking the second accused person who is accepted by both the prosecution and the defence to be the leader of his community of Asaga.”

He concluded his judgment in the case of the second accused by saying that he was in WAS IN “grave doubt having regard to my findings earlier on in this judgment whether he actually instructed the first accused to strike the deceased and I shall and do hereby resolve that doubt in favour of the second accused person UWAGU KALU and accordingly I hold that the prosecution has not proved its case against the second accused person beyond reasonable doubt and accordingly I find the second accused person UWAGWU KALU not guilty of the murder of Peter Ume Maduka and accordingly I acquit and discharge him on that count.”

Now, one of the main complaints in this appeal is that the reasons given by the learned trial Judge, as set out above, for doubting the testimony of P.W.6 in regard to the case against the second accused, apply equally to the case against the appellant and that in the circumstances, the appellant should also have been given the benefit of doubt. I think there is a substance in this complaint.

It is pertinent to state that the learned trial Judge was of the view that it was not safe to convict the second accused on the evidence of P.W.6, not because of any personal grudge that p. w.6 might have had against the second accused, but because of the bad blood that had existed between the witness’s Amaekpu community and the second accused’s Asaga community. But, there is, in the record, overwhelming evidence, which has not been challenged, that the appellant, like the second accused, is also a member of Asaga Community. This evidence can be found in the appellant’s testimony in his defence on the 21st of January. 1985 and also in his statements to the Police which are Exhibits A1, B, C and J. If the appellant is also a member of the Asaga Community his case should not have been differently treated. He too should have been given the benefit of doubt that was accorded the case of the second accused. On this point alone, I should allow his appeal.

The other complaint in this appeal relates to the contradictions or discrepancies in the evidence of P.W.6 and P.W.7 which were said to have been disregarded by the trial Judge. With regard to the testimonies of these two witnesses as to what took place in the dormitory that night, the learned trial Judge in his judgment at pages 22 and 26 of the record did consider the alleged discrepancies in their evidence and came to the conclusion that they were not on material points – citing in support Joseph Aderemi v. The State (1975) 9-11 SC. 115 and Jimoh Ishola v. The State (1978) 9-11 SC. 81 at p.110. I agree with him. It is not every minor contradiction that is fatal to a case and for a trial Judge to disbelieve a witness, the contradiction in his evidence must be on a material point. See Nathaniel Nasamu v. The State (1979) 6-9 SC. 153 and Queen v. Ekanem (19110) 5 F.S.C. 14.

However, the more serious complaint is not in regard to the incident in the dormitory but relates to the testimonies of p. w.6 and p. w. 7 on the incident in the Chief’s house that night. In this regard, p.w.6 testified as follows:-

“While we were in the house of the Chief one man called Uwagwu (i.e. the second accused person) said that it would be better to kill the deceased PETER and the man called “ACTION” (i.e. the appellant) took up an iron rod and hit same on the head of the deceased PETER. Uwagwu gave that instruction because he alleged that Peter said that the school should be removed from ASAGA TO ISIAMA. We were then dragged into the house of the Chief and while we were there Peter was PANTING. When the Chief noticed that the tension was too much he directed that a vehicle should be brought with which we should be taken to the police station and then a white 504 station wagon was procured with which we were taken to the police station and we arrived at the police station by 1 a.m.”

In his own evidence, P.W.7 said that after the attack in the dormitory, he and the deceased were taken to the Chiefs house. He was then cross-examined as to what happened in the Chief’s house and the question put to him and his answer are as follows:

“Q. When you all arrived at the Chief’s house you were with Peter and nothing else happened other than that you were taken from there to the Police station

ANS. While we were in the Chiefs house with Peter nothing happened but Peter was taken to the police station before me.”

It is quite obvious that the evidence of p. w. 7 is in conflict with that of P.W.6 on a material point as to what happened in the Chief’s house. While P.W.6 swore that on the instructions of the second accused, the appellant struck the deceased on the head with an iron rod, p. w. 7 in his own evidence said that nothing happened to the deceased in the Chiefs house. It is significant to note, however, that throughout his judgment the learned trial Judge never said a word about this conflict in the evidence of p.w.6 and P.W.7 on this crucial and vital issue of who struck the fatal blow in the Chief’s house. However, the Court of Appeal did appreciate there was a conflict in the evidence of these two witnesses and attempted to deal with the matter when, in its judgment, it states as follows:

“This is a case more of recognition, than identification. Thus, it is clear that at least P.W.6 recognised the appellant Ngwo as “Action”, and that in the pandemonium that night, in the dark, the fact that “Action” was in the gang of attackers is irrefutable, and that he inflicted a mortal wound on the deceased, at least in the Chief house is certain as the Judge believed the story of P.W.6 in that regard. If P.W.7 did not notice that event, it cannot be said that it did not happen. He had his own injuries to nurse.”

(Italics mine).

Now with respect, there is not a single scrap of evidence to support the finding of the Court of Appeal that P. W. 7 was unable to see or notice what was going on in the Chiefs house because he was nursing an injury. That is mere speculation on which a court is not entitled to make a finding – see Seismograph Ltd. v. Ogbeni (1976) 4 SC. 85.

In this case, I am satisfied there is a discrepancy in the evidence of p.w.6 and p.w.7 as to the event in the Chiefs house’. It is a discrepancy on a material point in the case of the prosecution on which the trial Judge was silent. It is, in the circumstances difficult to say whether the learned trial judge simply overlooked the discrepancy or whether he considered it and found the witnesses

credible nevertheless. However, it is my view that if the learned trial Judge had adverted his mind to the discrepancy, he would have inevitably come to the conclusion that the case of the prosecution was not free from doubt, and that doubt should have been resolved in favour of the appellant. See Akosile v. The State (1972) 5 Sc. 332. In my judgment, on this point also I would allow the appeal.

It was for the reasons stated above that I reached the conclusion on the 28th day of June. 1988 that the conviction of the appellant cannot stand and accordingly allowed the appeal and set aside the conviction as already stated.

K. ESO, J.S.C.: I have had the privilege of a preview of the reasons for judgment given by my learned brother Kawu J.S.C. I am in entire agreement with the reasons which I hereby adopt as my reasons for allowing the appeal of the appellant on 28th June, 1988.

A. NNAMANI, J.S.C.: On 28th June, 1988, this appeal came before this court. Having read the records of proceedings as well as the beautifully written briefs of argument by learned Counsel to the Appellant and Respondent, and having heard oral argument, I allowed the appeal, set aside the judgment of the Court of Appeal and entered a verdict of discharge and acquittal against the appellant. I indicated that I would give my reasons for this judgment today. I now give my reasons.

The appellant was the 1st Accused in a charge of murder preferred against him and one Uwagwu Kalu at the Ohafia High Court. It would appear that on 28th January, 1983 there was a riot in the Asaga Boys’ Secondary School, Ohafia. In the course of that riot, it was alleged that some hefty men, including the accused persons, attacked the students of the school. Following the injuries sustained that night, one of the students, Peter Ume Maduka, died. The accused persons were therefore charged with having on 8th February, 1983, caused his death. At the end of the trial in the High Court in which 8 witnesses testified for the prosecution and accused persons testified in their own defence, the learned trial Judge Maranzu, J., discharged and acquitted the 2nd accused person. The 1st accused person, appellant herein, appealed to the Court of Appeal. His appeal was dismissed hence this appeal to this court.

In his brief of argument, learned Counsel to the appellant, Chief Njemanze set down four issues or questions for determination. I think that the answer to question 1 is sufficient to dispose of this appeal. The first question for determination was set down as follows:-

“whether the contradictions and inconsistencies in the evidence of the prosecution witnesses particularly P.W.6 Kalu Olugu and P.W.7 Kalu Nweke are sufficient to affect the appellant’s conviction and sentence to death”

Learned counsel to the appellant drew attention to the contradictions in the testimony of these two star witnesses particularly the events immediately relating to the death of the deceased. It is not in contention that, as P.W.5, Dr. Anthony Okafor, actually testified, death was caused by the injury the deceased suffered from the iron rod used in hitting him on the head. It was in evidence that this occurred at the house of the Chief. To appreciate the seriousness of the submission made here, it is necessary to set down the portions of testimony of the P.W.6 and P.W.7 relevant to this point. At pages 94 – 95 P.W.6 testified as follows:-

“When I received the matchet cut I could not speak again. I continued crying. They took us along with them. “Action” was holding the late PETER on his waist and they said they were taking us to the house of their Chief that night. As they were dragging us to the chief people continued to beat us and before we could arrive at the house of the chief I had almost fainted. While we were in the house of the chief one man called Uwagwu said it would be better to kill the deceased PETER and the man called “ACTION” took up an iron rod and hit same on the head of the deceased PETER. Uwagwu gave that instruction because he alleged that Peter said that the school should be removed from ASAGA to ISIAMA. We were then dragged into the house of the Chief and while we were there Peter was PANTING.”

P.W.7 on the other hand at pages 106 – 107 testified as follows:-

“I heard Peter Ume Maduka shouting that they have stabbed him but I do not know the particular person who hit Peter Ume Maduka because there was no electric light that night but I heard when” ACTION” was instructed by Emeka to catch the other two boys with me. The elderly men around and Emeka who beat me took me to the house of the chief. I was there when Peter (the deceased) was also brought to that place. The elderly men in the Chiefs palace later referred us to the Police Station.”

Under cross-examination, one of the questions that witness was asked was this.

“When you arrived at the Chiefs house you were with Peter and nothing else happened other than that you were taken from there to the Police Station”

The witness answered,

“While we were in the Chiefs house with Peter nothing happened but Peter was taken to the Police Station before me.”

There was no reference to the alleged injury inflicted on Peter by the Appellant. This is certainly a very material contradiction in a piece of evidence relating to the manner of death of the deceased. The contradiction is even made most poignant by the fact that neither P.W.6 nor P.W.7 said in Evidence that each saw the other that night or at the Chief’s house and yet P.W.7 said he was already there when Peter, the deceased, was brought to the Chiefs house. P.W.6 said he and the deceased were brought together to the Chief’s house!

Both the Court of Appeal and the High Court did not seem to consider this contradiction material. Of it, the learned trial Judge said at pages 265 266.

“I will now revert to the main point of the submissions of the defence counsel and that is his submissions that there are contradictions in the evidence of P.W.6 and P.W.7 as to the implements used whether knife, rod or stick and also as to the evidence of P.W.6 that the deceased was with him under a bed while P.W.7 said the deceased was with him in a ceiling. I do not, with respect to the learned Counsel share his views. There are definitely differences as to the places P.W.6 and P.W.7 took shelter with the deceased but there are no contradictions definitely no material contradictions. To appreciate this over flogged issue of contradictions each case must be looked at from its facts.”

Later, on page 268, the learned trial Judge concluded,

“From the evidence in this case what is the contradiction on a material fact between the evidence of P.W.6 and P.W.7 I have reproduced their evidence in this judgment and I must confess I do not see any contradiction on a material fact in their evidence before this court.”

The Court of Appeal on page 418 said on contradictions,

“As to the complaint of contradictions in the evidence of the P.W.6 and P.W.7, the learned trial Judge having found that there was none of substance, a Court of Appeal cannot and must not substitute its own findings of facts for those of the trial Court as learned Counsel for the appellant has invited us to do.”

It is regrettable that the Court of Appeal took this approach, for the findings of the learned trial Judge were not borne out by the evidence before his court. This is certainly one of the grounds on which a Court of Appeal can properly interfere with the trial court’s findings See Chief Frank Ebba v. Chief Warri Ogodo and Anor (1984) 4 S.C. 84. Connected with this issue of the contradiction in the evidence of P. W.6 and P.W.7 over this matter of the use of the iron rod is the weight, or lack of it, which the learned trial Judge attached to P.W.6’s testimony. The learned trial Judge held in discharging the 2nd accused person, Uwagwu Kalu, that P.W.6, who is from Amaekpu may have made the allegation against the 2nd accused person he being from Asaga Ohafia. Amekpu and Asaga Ohafia, it seems, are hostile to each other. In effect, the learned trial Judge refused to accept P.W.6’s testimony that it was the 2nd accused person who instructed the appellant to hit the deceased with the iron rod. Learned Counsel to the appellant rightly submitted that whatever benefit of doubt the learned trial Judge extended to 2nd accused person ought to be extended to appellant who is also from Asaga Ohafia. I think there is merit in this submission. In fact learned Legal Adviser, Mr. Amadi, for the Respondent agreed as much although he still felt there was overwhelming evidence to justify the conviction of the appellant. In fact he was also of the view that the 2nd accused person ought not to have been discharged and acquitted.

It has to be emphasised that, in these cases of murder, justice must also be done to the victim whose life has been cruelly cut short. Indeed this court has said it on several occasions See particularly Aniagolu, J.S.C. in Nwafor Okegbu v. The State (1979) 11 S.C. 1. Where else would this be more apposite than in a tragic case like this in which a young boy with a promising future was unceremoniously sent to the grave by hoodlums. However, it is a very fundamental principle of our system of criminal justice that an accused person is presumed innocent until proved guilty. The standard of proof in criminal matters is proof beyond all reasonable doubt. Any lingering doubt must be resolved in favour of the accused person See Okonji v. The State (1987) 1 N.W.L.R. (Part 52) 659. This is certainly a case in which the doubt ought to have been resolved in favour of the appellant.

It was for these reasons, and the more detailed reasons for judgment just delivered by my learned brother, KAWU, J.S.C. a draft of which I previously saw, that I allowed the appellant’s appeal.

C. A. OPUTA, J.S.C.: On the 23rd day of June, 1988 the court heard arguments on this appeal. After a careful perusal of the record of proceedings and the Briefs filed on both sides and after listening to learned Counsel in elaboration of the salient points made in their respective Brief, the court allowed the appeal of the Appellant, set aside the judgment of the trial Court that found the Appellant guilty and sentenced him to death. The judgment of the Court of Appeal, Enugu Division, which confirmed the judgment of the trial Court was also set aside and in their place a verdict of Not Guilty was substituted. The Appellant was accordingly acquitted and discharged. The court then reserved its Reasons for Judgment to Friday the 7th day of October, 1988.

I have had the privilege of a preview in draft of the lead Reasons for Judgment just delivered by my learned brother Kawu, J.S.C. And they accord with mine and I therefore adopt them as mine.

In the trial Court, two accused persons were charged with the murder of the deceased. The only evidence against both was that of P.W.6 and P.W.7. These two witnesses contradicted one another in very many material particulars. One saw the Appellant hit the deceased on the head with an iron rod. The other did not see this although they were both together in the Chiefs house where the alleged hitting of the deceased with an iron rod took place. There was also no agreement on where the deceased was hit on the head. One said it was in the Chiefs house; the other said it was in the dormitory. In their Statements to the Police at the earliest opportunity there was no mention that Appellant hit the deceased with an iron rod. With this type of evidence, in a serious case of murder, there is hound to be serious doubt concerning the main story told by these two important witnesses as well as the veracity of each of them.

Added to this was the finding of the learned trial Judge that “there is ancient grudge between the people of Asaga and Amaekpu.” Because of “this ancient grudge” the learned trial Judge rightly observed, “one would be very slow in accepting in its entirety the very thin evidence of the P.W.6 linking the 2nd accused person who is accepted by both the prosecution and the defence to be the leader of his Community of Asaga,” Now the Appellant is also from Asaga. Therefore what was true of the discharged 2nd accused ought to be true of the Appellant. That “ancient grudge” should have also been taken as a danger signal, a warning against accepting the evidence of Amaekpu witnesses (6th P.W. and 7th P.W.) “against the Appellant who hails from Asaga. If these two witnesses are discredited (as they should) then there remains nothing on which to convict the Appellant.

As the saying goes, what is sauce for the goose should also be sauce for the gander. Justice has not got two weights and measures – one for a rich and wealthy businessman, (which the discharged 2nd accused is); and another for a poor taxi driver which the Appellant is. It should be one and the same even handed justice, blind to all social distinctions and disparities in wealth and status and no respecter of persons. Using this acceptable standard of justice, the Appellant ought to have been discharged for the very same reasons given for the discharge of the 2nd accused. This was not done. And this was the error committed by the trial Court. The Court of Appeal should have corrected that serious error hut it did not. This court will not allow this error to persist hence the appeal was allowed.

In the final result, it was for the reasons given above and for the fuller reasons of my learned brother Kawu, J.S.C. which I earlier on adopted as mine that I allowed this appeal on the 23rd day of June. 1988.

S. M. A. BELGORE, J.S.C.: I had a preview of the lead reasons for judgment by my learned brother, Kawu, J.S.C., with which I agree entirely. I also set aside the conviction and sentence of tile appellant and allowed the appeal for the same reasons advanced in the lead reasons for judgment.

Appeal Allowed.

Other Citation: (1988) LCN/2375(SC)