Ofoke Nwambe V. The State(1995)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C. 

This appeal is from the judgment of the Enugu Judicial Division of the Court of Appeal dated the 28th of March, 1994 dismissing Ofoke Nwambe (appellant’s) appeal against the judgment of the High Court of Enugu State sitting at Abakaliki. The trial High Court had on 4th May, 1987, convicted the appellant of the murder of one Nweke Ottah punishable under section 319 (1) of the Criminal Code and accordingly sentenced him to death.

The case for the prosecution briefly put is that on or about the 9th of February, 1986, one Egwu Nwankwo Agu, (PW3), organised a party to mark the giving-out of his daughter in marriage and for that purpose, invited his friends among whom was PW2 (Nwoba Ngiga) to his home in Mkprumeh Village in Inyimagu Izzi, for the celebration. The appellant who later arrived at PW3 ‘s house uninvited, after being served with food and wine, demanded of PW2 for palm wine to be purchased with his (PW2’s) money. When PW2 refused to accede to his request appellant insisted. This led to the intervention of PW3; who appealed to the appellant to leave PW2 alone. The appellant would not. So, PW3 ordered him out of his house and aided by PW2 tried to eject the appellant therefrom.

The appellant thereupon stabbed PW2 and as he bolted away, he was chased by PW3 and others engaged at the meriment making including Nweke Ottah (now deceased). It was in the course of that chase and in order to avoid being apprehended, that he (appellant) stabbed the deceased with a knife and he died soon thereafter of the injury he received.

Appellant’s own version of the event is that he was duly invited to the feast but that as he could not attend on the first day, he went over early on the second day. There, he demanded of PW3 the refund of the dowry of N264.00 which he had paid when he married his wife but who PW3 had taken away because she was and had been barren. PW3 thereupon promised to refer the matter to the family and so he left for his house. On the way, he met PW2 whom he requested to buy him palm wine, PW2, who said that he had no money on him to buy him wine until some other day, held him, beat him and knocked out his tooth. He, in retaliation, picked up a bamboo with which he hit PW2 causing him some injury. Appellant, after denying seeing the deceased at the material time, denied the charge.

The learned trial Judge in a well considered judgment disbelieved the appellant, found the case proved and convicted and sentenced him to the mandatory sentence of death by hanging. His appeal to the court below having been dismissed, he has further appealed to this Court firstly, on a general original ground of appeal which was later abandoned and with leave, being later sought and granted, to argue four additional grounds inclusive of one on a point of law not hitherto taken in the court below.

Briefs of argument were eventually exchanged in accordance with the rules of court. The appellant submitted three issues as calling for our determination, to wit:

1. Whether the appellant’s fundamental right to defend himself by himself or by counsel of his own choice was not violated by the assignment to him of counsel by the court of first instance as was done in this case.
2. Whether on the evidence the plea of self defence or provocation availed the appellant
3. Whether it was safe to convict on evidence that was corroborated.

The respondent, on the other hand, proffered the following three issues:-

1. Whether from the evidence on record the defence of provocation and or self-defence availed the appellant.
2. Whether the case against the appellant was proved beyond reasonable doubt
3. Whether the assignment of Counsel from the Legal Aid Council to the appellant by the Trial Court violated appellant’s constitutional right to defend himself personally or by Council of his choice

At the hearing of this appeal on 9th February, 1995, learned counsel for the appellant, Mr. Kanu Agabi, after adopting the appellant’s brief filed on 8th June, 1994 briefly expatiated thereon. He urged us to uphold the appeal, particularly as appellant’s right to fair hearing in regard to his right on choice of counsel was denied him. He then adverted our attention to the purport of section 13(4) of the Legal Aid Council Act.

Learned Chief Legal Officer, Mr. C.C. Eneh, after adopting the respondent’s brief filed on 12th January, 1995 urged us to dismiss the appeal since the appellant at the trial never complained about the counsel assigned to him.

I deem it necessary to stick to the three issues stated by the appellant as those pertinently related to the grounds of appeal. I will commence considering them serially as follows:-

ISSUE 1:

It is learned counsel for the appellant’s contention in his brief on this issue that on the 15th day of December, 1986 when the case first came before Offiah, J. the record showed that:-

“Charge is read and explained in Ibo to the accused who understands the same and pleaded not guilty. Court – proofs of evidence and information to be forwarded to the Assistant Director of Legal Aid. Enugu. The Assistant Director is to arrange for the defence of the accused” (Italics is for emphasis)