Nnukwu Umuolo V. The State (2002)

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IBIYEYE, J.C.A. 

 The appellant, Nukwu Umuolo, was arraigned before the Delta State High Court of Justice sitting in Asaba and presided over by Akoro, J. on a one count charge for the murder of John Ogbue on 18th of August, 1989 under section 139(1) of the Criminal Code Cap. 48, Volume 1, Laws of Bendel State of Nigeria, 1976 as applicable to Delta State.

A plea of not guilty appeared to have been taken from the appellant after the P.W.1 had been sworn on iron but before he started adducing evidence.

Evidence was adduced by both the prosecution (now respondent) and the accused person (now the appellant).

The items of evidence in this case are briefly as follows, the respondent called seven witnesses while the appellant testified in his own behalf. Only the P.W.1 out of the seven respondent’s  witnesses appeared to give an eye witness account of what happened.

The P.W. 2, P.W. 4, P.W.5 and P.W. 6 testified to what happened after the deceased, John Ogbue, had been attacked. The testimony of the P.W.3, Madam Margaret Akpapuna, who ran a beer parlour is that both the deceased and the appellant, among others, patronized her outfit on the 13th day of August, 1989. Both of them separately placed order for bottles of beer which she obliged them. In the course of consuming the contents of the bottles ordered, she heard both the deceased and the appellant exchanging words. She intervened and the appellant informed her in the presence of others that the deceased threw an ashtray at him. She pacified the appellant who left the beer parlour. The deceased also left the beer parlour some twenty minutes after the appellant had left. The P.W. 7, Dr. Suleiman Abu, a consultant pathologist at the General Hospital, Benin City testified, in essence, that he performed autopsy on the corpse of John Ogbue. He wrote a report which he gave to the police. That report was not tendered and no police officer testified for the respondent. The seeming star witness, Mr. Benjamin Igbeka, the P.W. 1, who said the deceased was his brother testified that he saw when the appellant hit the deceased on the neck with an object he could not identify because the appellant put it back in his pocket immediately after use. The appellant thereafter held the deceased person’s throat. He tried in vain to release the appellant’s hand from the deceased but in vain. He raised an alarm and the appellant ran away from the scene and threatened to shoot anyone who came near him. In view of the threat, he withdrew and reported the incident to Ekeobodo, the sister of the deceased that the appellant had killed her brother. I shall cursorily remark that Madam Ekeobodo did not testify. Mrs. Veronica Obodo, the sister of the deceased, who testified as the P.W. 4 did not say that it was the P.W.1 who told her what she described as certain things. Under cross-examination the P.W.1 said that when he saw the deceased in a built up area at about 7.p.m. he was staggering and smelling of alcohol.

Only the appellant testified for himself. He denied killing the deceased. He instead alleged that it was the deceased who threw an ashtray at him in the beer parlour. The P.W. 3, the owner of the beer parlour, intervened and ordered the deceased out. He left the beer parlour. The appellant further testified that as he got out of the beer parlour, he met the deceased who slapped him and he retaliated and he (the deceased) staggered, and fell down. He further denied bringing anything out of his pocket to hit the deceased.

At the close of the case for the appellant, the learned counsel for both the respondent and the appellant addressed the court. In a considered judgment, the learned trial Judge convicted the appellant for murder on 25th April, 1995 and sentenced him to death by hanging.

The appellant was dissatisfied with the entire judgment and appealed against it on seven grounds.

The appellant formulated the following five issues for the determination of this appeal.

(i) Did the learned trial Judge comply with the provisions of Section 215 of the Criminal Procedure Law and Section 33 sub-section 6(a) and (e) of the Constitution of the Federal Republic of Nigeria, 1979, where he merely stated after P.W.1 had been sworn and after proceedings has commenced that; the charge was read to the accused person through a court interpreter and he appears to understand same and pleads not guilty to the offence of murder without disclosing the language in which the charge was purportedly read to the accused person?

(ii) Did the statement credited to the deceased by the P.W.6 qualify as dying declaration under section 33(1) (a) of the Evidence Act?

(iii) Was the learned trial Judge entitled in law to, in one breath, believe the confession of assault by the appellant as contained in exhibits A and B and in his examination-in-chief and in the same breach (sic) reject the said confession of assault by the appellant and believe that the appellant brought out an object to inflict injury on the neck of the deceased?

(iv) Was the learned trial Judge right in inferring intention to kill on the part of the appellant given the circumstance of the case?