Nworie Nwali Vs The State (1991)

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O. OLATAWURA, JSC.

At the end of the hearing of this appeal on 7th February, 1991, I dismissed the appeal and I adjourned the reasons for the dismissal of the appeal till today. I now give my reasons.

The appellant was charged with murder of one Elizabeth Nwafor contrary to Section 319(1) of the Criminal Code, Laws of Eastern Nigeria, applicable to Anambra State. The particulars of the offence are that on or about 7th day of November,1983, at Ndiggu Okoffia Ezza in Abakaliki Division of the High Court of Anambra State, he murdered the said Elizabeth Nwafor.

He pleaded not guilty.The facts relied on by the prosecution were that the appellant was a boy friend of the deceased who at the time of her death was about 13 years old. That association was in existence for about one year before the deceased met her death in the hands of the appellant on 7th November, 1983. On that fateful day, the appellant who was quite known to the mother of the deceased, went to the house of the deceased. At the time he got there, the mother of the deceased (P.W.3) was already in the bathroom. She heard when the appellant called the name of the deceased. The next thing she heard was the shout by the deceased. She ran out and saw the deceased with matchet cuts.

When the appellant saw P.W.3, he also inflicted some matchet cuts on her. She collapsed. It was in the hospital she regained consciousness. The reasons for this dastardly act would appear to be a refusal on the part of the P.W.3 to allow the appellant bring palm wine to the family of the deceased. The refusal by P.W.3 was based on the fact that the love affair between the deceased and the appellant was not yet made known to the father and male members of the family. This did not go down well with the appellant.

As a result of the death of the deceased, a report was made to the police. The appellant was arrested. He made a statement to the police. The Ibo version and the English translation of the statement were admitted in evidence and marked Exhibits B and B1 respectively. The appellant gave evidence on oath. His defence was based on provocation and self defence. He agreed that he went to the house of the deceased on 7th November, 1983. On that day, he went there with palm wine. It is significant that he admitted he went alone. P.W.3 then asked him why he brought the palm wine. He reminded her that she asked him to bring the palm wine. P.W.3 denied and gave him the impression that her daughter was no longer going to marry him. No reason was adduced for this change of heart. The remaining part of his defence is as follows:

“At that stage both P.W.3 and the deceased suddenly started attacking me beating with sticks. I fell down on the ground. The deceased ran into the house, brought a matchet and stabbed me on my right leg. At that stage I collected a stick of Indian bamboo, hit the deceased, she staggered and fell on the matchet on the ground. P.W.3 came back and hit me with a piece of Indian bamboo.

I fell down. I got up and was running for dear life when P.W.3 went inside the house and brought a matchet. The deceased ran away into the back yard. P.W.3 wanted to use the matchet on me and I used a piece of Indian bamboo in defending myself and disarmed P.W.3. The matchet she had fell off her hand. I collected a piece of Indian bamboo used on me and used it in hitting P.W.3. I did not make statement to the police. I did not go to school. I never lived at any other place except Okoffia Ezza. I killed Elizabeth Nwafor.

I killed Elizabeth Nwafor the deceased because on 7/11/83 it was P.W.3 who told me to bring wine that she had arranged with the half brothers of the deceased for me to come. It was when the deceased went in and brought a matchet and stabbed me on my right leg, that I took the matchet off her and inflicted a matchet cut on the deceased from which she died. I had no previous quarrel with the deceased and P.W.3 apart from this incident.”

He was cross-examined and he agreed that according to their custom, the male members of the family give out a girl in marriage. He denied that the issue of marriage of the deceased was discussed with the mother of the deceased (P.W.3) alone. Counsel addressed the court. After a careful review of the evidence and the authorities cited in support of the submissions made, the learned trial Judge found the appellant guilty of murder.

He convicted him and sentenced him to death. The appeal to the Court of Appeal was dismissed on 7th December, 1989. The appellant has now appealed to this court. When this appeal came up for hearing on 7th February,1991, Otunba Ajayi- Okunuga, the learned counsel for the appellant who had earlier filed a fourth ground of appeal without leave of the court, sought leave to withdraw the fourth ground. Leave was granted.

The 4th ground was accordingly struck out. The grounds of appeal properly filed before this court are as follows: “(i) The learned Justices of the Court of Appeal erred in law in dismissing the appeal by relying mainly on the English version of the supposed confessional statement by the appellant tendered as Exhibit B contained in the Records when in fact the appellants’ statement made in Ibo language was not pleaded before the court.

PARTICULARS OF ERROR (a) It is clear from the evidence of P.W.6 at page 11 L 20- page 12 L 1-22 that the appellant’s statement was made in Ibo Language and tendered at the trial as Exhibit B, with the supposed English translation thereof as Exhibit B1. (b) Exhibit B the actual statement of the appellant is not part of the records, the only statement contained therein being the English version of that statement – (see page 40). (c) In the absence of Exhibit B, Exhibit B1 relied on in support of the conviction constitute hearsay evidence and a conviction based solely on such evidence cannot stand. (ii) The Learned Justices of the Court of Appeal erred in law in supporting the rejection of the appellant’s plea of self defence, when the findings thereon by the trial court were both unfactual and speculative. PARTICULARS OF ERROR (a) The trial court at page 33 L 16-26 noted the plea of self defence entered by the appellant, but failed to adduce any facts to support his disbelief of the appellant’s story.

(b) Having also found at page 35 L 6-9 that there was no evidence that the appellant came to the deceased residence with the matchet used, that fact ought to have further strengthened the appellant’s plea of self defence. (c) The Court of Appeal merely confirmed the trial court’s rejection of that defence without any examination of the issues raised in that defence. (iii) The decision of the Court of Appeal is unwarranted unreasonable and cannot be supported on the evidence.

PARTICULARS OF ERROR (a) Of the 7 (Seven) prosecution witnesses who testified at the trial only P.W.3 gave what approximates to an eye witness account. (b) That testimony was unsatisfactory on two principal issues, of whether she actually saw the appellant kill the deceased, and also in respect of her story that the appellant used the matchet on her,in both of which aspects she was discredited. (c) Exhibit A tendered at the trial shows that it was one Nwokwu Ukpai, (a person known to the same P.W.3 as the go-between who on occasions accompanied the appellant to the deceased residence), who allegedly killed the deceased. (d) It cannot therefore be said that the deceased’s death was satisfactorily pinned down to the appellant, on the applicable requisite standard of proof”. Briefs were filed and exchanged. The appellant’s counsel filed a reply brief which is absolutely unnecessary as nothing new was raised therein. It is a repetition of what the appellant’s brief contained.

A reply brief Is filed when an issue of law or arguments raised in the respondent’s brief call for a reply. I will now set down the issues raised in the appellant’s brief: “(i) Whether the learned Justices of the Court of Appeal were right in believing that the alleged translation of the said confessional statement of the appellant was in fact his confession when in fact they did not have the original Ibo version Exhibit ‘B’ before them in order to be absolutely certain that Exhibit B1 is the true interpretation of Exhibit B, whereas appellant’s conviction was based on the alleged confession.

(ii) Were my Lords, the learned Justices of the Court of Appeal right in confirming the conviction of the court below in the absence of evidence in the record of proceedings dislodging the plea of provocation and self defence put up by the appellant. (iii) Whether the learned Justices of the Court of Appeal were right in confirming the conviction for ‘murder” passed on the appellant when the ingredients of the capital offence were not proved as required by the law, in the court of trial. (iv) Whether my Lords, the learned Justices of the Court of Appeal were right when they confirmed the conviction of the appellant for ‘murder’ whereas the totality of the evidence before the trial court did not support the conviction for ‘murder’.” In my view, the first three issues raised by the respondent are succinct and germane. The four issues are as follows:

“(1) Was it right for the learned Justice of the Court of Appeal to rely on the English version of the appellant’s statement where both the English version and the Ibo version were tendered in the High Court?

(2) Whether the Court of Appeal rightly supported the rejection of the appellant’s plea of self defence, and provocation.

(3) Whether conviction is supported by the evidence before the court.

(4) (As an aside) Whether the Honorable Judge of the High Court rightly held that a confessional statement not endorsed by a Senior Police Officer is inadmissible”. However, since there has not been a cross-appeal, I will leave the consideration of issue 4 out of this appeal since it is not a complaint which if sustained may affect the merit of the appeal. As rightly pointed out by Mrs. Izundu, the learned Principal Legal Officer, It is a side issue.

I will now consider Issue No. 1 i.e.,the vernacular statement of the appellant i.e. Exhibit B and whether Exhibit B1 the English translation is the correct version of the Ibo statement (Exhibit B). In an attempt to whittle down the confession made in Exhibit B, learned counsel had doubted the correctness of Exhibit B1, and submitted that the non-production of the Ibo version of the statement (Exhibit B) before the learned Justice of the Court of Appeal has deprived their Lordships the opportunity of knowing whether Exhibit B1 “was a true interpretation of Exhibit B which was not before their Lordships”.

It is better to point out at this stage that the complaint is not that the appellant was unable to follow the proceedings in the court of trial because it was conducted in English language: See Queen v. Eguabor (1962) 1 AII NLR. 287; (1962) 1 SCNLR 409. Nigeria has no lingua franca. There are over 200 languages in this country.

The medium of communication and expression in our courts, because of our judicial set-up, is the English language. This in itself has its root in our colonial days when those who administered justice in our courts, notably, Magistrate Courts, Supreme Court (now High Court), West African Court of Appeal (WACA), were largely expatriates. To allow them to follow the proceedings, interpreters were provided for the benefit of the accused persons and the courts.

Furthermore and this is more important, the different languages spoken in this country make it imperative that notwithstanding the impressive record In our judicial system, and because Nigerians of different tribes now administer justice, the proceedings in the court of trial must of necessity be recorded in English language.

The set-up of our courts demands that the English language will still be used. It is for this reason that when a statement is recorded in vernacular from a witness or an accused, there is always an English translation. The contention of the learned counsel for the appellant is untenable. Even if the Ibo translation was placed before the learned Justices of the Court of Appeal, of what use would it have been to them?

The appeal was heard by Katsina-Alu, Ndoma-Egba and Mukhtar JJCA. I take judicial notice of the fact that no member of the panel is Ibo, consequently, to place the Ibo version i.e., Exhibit B before them would have been an exercise in futility. But the most important reasons why the submission on this issue appears to me a storm in a tea cup is that as at the time the appellant gave his evidence in the witness box, he did not even disown the statement as not being the correct version of what he said. Besides, when P.W.6, Police Constable Celestine Ugwu tendered the statements as Exhibits B and B1 respectively, the record of the court shows: “The statements Exhibits B and B1 are read respectively in Ibo and English by P.W.6.” An attempt was made during cross-examination of this witness (P.W.6) and it was suggested that the appellant denied that what he recorded and read to him was not what he said.

The witness denied. But what he said in his examination-in-chief was a denial that he made statement to the police. It was not an issue of correct version of what he said. If he denied ever making any statement, then the issue of the correctness of Exhibit B1 will not arise. The learned trial Judge believed that the appellant made the confessional statement Exhibit B and that it was voluntary.

The correctness of Exhibit B was NOT an issue before the lower court, it is therefore speculative to conclude that the Court of Appeal was wrong in believing the translation i.e., Exhibit B1. The second issue deals with provocation and self defence; the impression created by the case of Bozin v.The State (1985) 7 SC. 471;(1985) 21 NWLR (pt.8) 465,cited by the learned counsel for the appellant is that these defences were not considered by the court; and further that the onus of proving his innocence was cast on the appellant. This, from the printed record before us, is a misapprehension of the judgment of the learned trial Judge. After reviewing the evidence of the prosecution witnesses, the learned trial Judge on the issue of self-defence said:

“ But I do not believe that evidence of the accused. I do not believe the evidence of the accused person that the deceased stabbed him with a matchet on his leg and that as a result he took the said matchet off her and inflicted matchet cut on her from which she died. Surely the accused person is lying. He is not a witness of truth. He did not from my observation of his demeanour at the witness box impress me as a witness of truth.

He was very hesitant in answering questions. Sometimes and for most of the time, he deliberately kept mute. He started a story of saying that the deceased fell on the matchet on the ground until he bowed to the truth in his evidence-in-chief that he inflicted the matchet cut on the deceased and in his own words said as follows:- “I killed Elizabeth Nwafor ” I did not therefore believe the evidence of the accused person that he killed Elizabeth Nwafor because she stabbed him with a matchet on his right leg.”

Similarly, the learned trial Judge rejected the defence of provocation. It is the totality of the findings of the learned trial Judge that the Court of Appeal per Katsina-Alu, JCA., considered and concluded thus: “It must be noted that it was not the contention of the appellant in the court below that someone else killed Elizabeth Nwafor. No. He confessed to the killing but put up the defence of self-defence and provocation, both of which were rightly in my view, rejected by the learned trial Judge. These defences have not been raised in this appeal before us. But I have considered them from the available evidence and have not found any reason to disturb the way the trial Judge resolved those defences”.

There was no provocation from the deceased, or P.W.3 the mother. There is ample justification for the conclusion reached by the Court of Appeal. Under issue No.2, Otunba Ajayi-Okunuga, the learned counsel for the appellant has referred to the conclusion of the respondent’s brief in the lower court where the learned Principal State Counsel who filed the respondent’s brief concluded thus: “I therefore agree with the submission of the appellant that on the totality of the evidence that conviction and sentence cannot be sustained.

The appellant therefore has no case to answer; I humbly submit that the appeal be allowed.” A State counsel or any other law officer who appears on appeal involving conviction has the right to announce his inability to support the conviction by the trial court. No court is bound to accept the submission once satisfied that there are valid grounds why the conviction should be affirmed.

The State counsel making such a submission is enjoined to give reasons why the conviction cannot stand. This case on appeal was argued and the lower court came to the conclusion that the appellant was properly convicted. Whatever reliance is being placed on the submissions made in the lower court by the learned Principal State Counsel; after going through the submissions on both sides the lower court was right in confirming the conviction. For the lower court to allow the appeal, without listening to arguments, on the submissions of the Principal State Counsel who said she could not support the conviction would have led to a miscarriage of justice.

I will therefore turn down the invitation to overturn their decisions solely on the ground that the learned Principal State counsel in the lower court did not support the conviction. Where, however the State is the appellant, the position is different. An appellant has the right to file notice of withdrawal. See Order 9 rule (1) Supreme Court Rules 1985. The third issue raised by learned counsel is based on ‘malice aforethought’. The submission of learned counsel is as follows:

“Whereas in this case ‘malice aforethought’ which is the ‘mens rea’ required for the crime of murder was not proved. It is also abundantly clear from the record of proceeding that the appellant did not conceive the ‘mens rea’ of malice aforethought at any stage throughout the incident if ‘malice aforethought’ was not proved, because it did not exist, can the appellant’s conviction be sustained”. The above quoted submission shows a fundamental error on the part of the learned counsel. It is for this reason that I am impelled to refer to the definition of murder as laid down under Section 316 of the Criminal Code, Laws of Eastern Nigeria applicable to Anambra State. This section provides: “

Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say- (a) if the offender intends to cause the death of the person killed, or that of some other person; (b) if the offender intends to do to the person killed or to some other person some grievous harm; (c) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life; (d) if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;

(e) if death is caused by administering any stupefying or overpowering thing for either of the purposes last aforesaid; (f) if death is caused by wilfully stopping the breath of any person for either of such purposes; is guilty of murder. In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed. In the third case it is immaterial that the offender did not intend to hurt any person. In the three last cases it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.”

What is relevant in our criminal law is that the act of the accused person resulting in the death of the deceased must be unlawful. The ‘mens rea’ or ‘malice aforethought’ no longer governs the criminal responsibility of the accused. These are common law concepts. One can also say motive is irrelevant except that where it is proved, it strengthens the case for the prosecution. Reference to the definition of murder in Halsbury’s Law of England 4th Edition Vol. II paragraphs 1152 is unhelpful. The question now is: was the act of the appellant unlawful? To my mind and on the evidence accepted by the learned trial Judge and found reliable and credible, the act of the appellant was unlawful and he was rightly convicted of murder.

The act of the appellant in inflicting matchet cuts was not only intentional but savage. There was no justification. Once it is appreciated that a cutlass is not synonymous with a feather, then the intention became manifest in the manner he drew his cutlass and inflicted the cuts on the deceased. On the evidence of P.W.3, it was a pre-meditated murder. I now come to the fourth issue which is a repetition of issues two and three already discussed above.

There was overwhelming evidence in support of the conviction and the lower court was perfectly justified in confirming the findings of fact made by the trial court. It was for the above reasons that I dismissed the appeal.

The conviction and sentence passed by the trial court are hereby affirmed.

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Other Citation: (1991) LCN/2467(SC)