Peter Ndukwu V. The State (1999)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

 The appellant stood trial before the Imo State High Court, sitting at Oguta, on an information that the Attorney-General of the state had laid before that Court. The statement and Particulars of offence as contained in the information were as follows:
Statement of offence:-
Murder, contrary to section 319 of the Criminal Code Cap. 30, Vol. II, Laws of Eastern Nigeria 1963, as applicable in Imo State.
Particulars of offence
Peter Ndakwu on the 18th day of April, 1988 at Mgbala Agwa in the Oguta Medical Division, murdered one Alexander Atta.”

The prosecution’s case before the lower Court was that during a quarrel between the appellant and the deceased the former shot the latter in the head with a gun. The latter died the following day as a result of the wound he sustained from the shot to his head. To prove this case the prosecution called PW1 to PW5 PW 1 and PW 4 claimed in their evidence before the trial Court that they were eyewitnesses to the actual shooting. P.W.1 testified that she sat in her compound pealing cassava when the appellant came in and told his wife to cook for him as something was about to happen. He then left. Not long afterwards the witness heard a gunshot. The wife of the appellant rushed out. Shortly afterwards the witness saw the appellant and his wife returning to the compound. Later still she heard the deceased crying out that the appellant had killed him. She saw a pistol in the hand of the appellant. She got hold of him while P.W.2 dispossessed him of the pistol. In his own evidence P.W.2 stated that he had just returned from the farm and was having a bath when he heard a gunshot. He got out, looking inquiringly in the direction whence the shot came. He saw gunfire smoke still billowing on the wind. He heard the deceased crying out to him and P.W. 1, saying that the appellant had shot him. He was on his way to the scene when he met the appellant and his wife. P.W.1 got to them first and got hold of the appellant. The witness then dispossessed the appellant of the gun. P.W.3 was not in town on the day of the incident. He had, according to him, however, heard the appellant the previous day threatening to do something to the deceased. P.W.4 testified that on the day of the incident the deceased went to the appellant to complain about how the wife of the former had injured his son. The appellant threatened to give the deceased what he wanted to get. As the deceased left, the appellant followed him, continuing his threat. The witness intervened but the Appellant would not be stopped. He produced a gun and shot at the deceased. P.W.5 was the investigating police officer. Among other things he tendered in evidence the report of the autopsy on the deceased. It was admitted as Exh. H.

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The Appellant’s case was a total denial that he ever shot the deceased. On the contrary, it was the deceased who, according to him, produced a gun from his pocket and shot at the appellant. In his evidence before the trial Court he stated that when the deceased fired at him he docked and the bullet missed him. He then got hold of the deceased and both of them fell to the ground. In the process, the screwdriver that he held in his hand pierced the deceased in the head, he denied that there was any gunshot wound on the deceased. In his extrac judicial statement made to the police soon after he was arrested, admitted in evidence as Exh. D, he had stated the same thing, except for the variation as to how the wound that was seen on the head of the deceased came to be there. This is what he had said on that occasion.
“As the bullet went off, I dived and carried him and threw him on the ground and used the screwdriver/iron rod I was holding and wounded him on the head and threw him on the thorn of palm tree.”

The wife of the appellant testified for him as D.W.2 confirming that it was the deceased, and not the appellant, who fired the shot. At the end of the trial the learned trial Judge convicted the appellant of murder as charged. Although he disbelieved PW 1 and PW4 on their claim to being eyewitnesses to the shooting and found as a fact that only the appellant and the deceased were present when the shot went off, he found that the shooting had been done by the appellant. He rejected the appellant’s version of how the deceased came to have the injury that was found on his head. He sentenced the appellant to death.
Dissatisfied, with his conviction and sentence the appellant has appealed to this Court. Only one ground of appeal, i.e., the omnibus ground, was filed with the notice of appeal. Counsel on his behalf, however, later filed eight additional grounds.

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In the brief of argument that Mr. B.E.I. Nwofor filed on behalf of the appellant in compliance with the rules of this Court, learned counsel formulated the following three issues for determination:
“1. Whether the learned trial Judge was right in admitting the medical report (i.e Exh. H) in evidence and in relying thereon in ascertaining the cause of the death of the deceased having regard to the peculiar facts of this case?
2. Whether the statements and/or declarations of the deceased that the appellant “had shot him” or “had killed him” were admissible in law either as dying declarations or as forming part of the res gestae or as both to justify their reception in evidence and reliance thereon by the learned trial Judge in reaching his decision convicting the appellant in this case?
3. Whether the guilt of the appellant was proved beyond reasonable doubt as laid down by law?
Mr. J. C. Duru, the learned Deputy Director of Public prosecutions, Imo State, in the respondent’s brief, adopted these three issues, but formulated the following additional one:
“Whether, on the legally admissible and admitted evidence at the Court below, there is no alternative offence for which the appellant could have been, and can still be convicted, having regard to the entire circumstances of the case?
In the respondents brief Mr. Duru readily conceded the first and third issues to the appellant without any reservations. With respect to the second issue, however, he conceded only in part. He conceded, firstly, that the evidence of P.W.1, P.W. 3 and P.W.4 should be completely disregarded as these witness showed themselves at the trial to be unreliable witnesses. He conceded further that the evidence of PW2, that he heard the deceased cry out that he had been shot by the appellant, was inadmissible as a dying declaration. The learned DPP gave copious reasons in paragraph 4 of his brief for his concessions. See pages 2-9 of the brief. He contended, however, that it was admissible against the appellant as a fact forming part of the res gestae.

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Based on these concessions and contention the learned DPP summarised and concluded his brief thus in paragraphs 5, 6 and 7.
“5. Summary
1. The Learned trial Judge was not right in admitting the medical report (Exhibit H) in evidence, and in relying thereon, in ascertaining the cause of death of the deceased, having regard to the facts of this case.
2. The declarations of the deceased that the accused (Appellant) had shot him (without more to that) is not admissible in law as a dying declaration, but is admissible in evidence as forming part of the res gestae, in view of its contemporaneity (sic) with the act of shooting, by the Appellant, in terms of time, place and circumstances, that the two are part of one and the same transaction. Teper v. R. (1952) A.C. 480 487.
3. There was no satisfactory evidence establishing the identity of the corpse on which the medical doctor performed postmortem examination, in the case.
4. The prosecution did not prove the cause of death of the deceased, as required by law.
5. The prosecution did not prove which of the four (4) acts of the appellant caused the death of the deceased.
(i) the shooting of the deceased, by the appellant with gun (as testified by the PW 2- Chikere Nzeke, and as forming part of the res gestae) or
(ii) the throwing of the deceased on the ground,
(iii) the wounding of the deceased on the head, with a screwdriver/iron rod which the appellant is holding.
(iv) the throwing of the deceased on thorn of palm tree (as so stated by the appellant himself, in Exhibit D – his statement to the police).
6. Instead, the prosecution proved that the Appellant attempted to murder the deceased, through the medium of one or more of the acts enumerated in paragraph 5(i) (v) above.
6. Resolutions

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Accordingly, the resolution of the three issues as formulated above, by the Appellant, and adopted by the Respondent alight to be as follows:
Issue No. 1: In the NEGATIVE
Issue No.2: In the NEGATIVE as dying declarations, but in the affirmative as Res Gestae.
Issue No.3: In the negative for the offence of (MURDER) charged, but in the affirmative for the alternative offence of ATTEMPT TO MURDER – though not charged.
And, the proper resolution of the sole issue as formulated by the Respondent, for determination, ought to be that THERE IS, and that is, ATTEMPT TO MURDER.
7. Conclusion
For the reasons stated in the Summary (5) of this brief, this honourable Court is urged to:
1. Allow the appeal against the Appellant’s conviction for murder
AND
2. Substitute, in its stead, a conviction of the Appellant for ATTEMPTED MURDER”

Having regard to the concessions made by Mr. Duru on behalf of the respondent, I see no point in considering the value of the evidence of P.W.2 regarding what he claimed to have heard the deceased say. Even if I agree with learned counsel that that piece of evidence is admissible in evidence no useful purpose will be served as far as the charge of murder, or even the alternative charge of attempted murder suggested by counsel, is concerned. The case sought to be put up by counsel before us is not based on the wounding of the deceased by shooting but by other means.

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Mr. Duru, relying on the issue he formulated in the respondent’s brief of argument, has urged us to substitute the conviction for murder with one for attempt to murder. Learned counsel drew attention to the portion of the statement of the appellant to the police that I reproduced earlier on. He then submitted that anyone of the three acts that the appellant admitted doing, i.e., throwing the deceased to the ground, wounding him with a screw/driver/iron rod, and throwing him on the thorn of the palm tree, afforded sufficient evidence of assault with intent to kill the deceased. This admission by the appellant, counsel finally submitted, entitles us to exercise our powers under section 169 of the Criminal Procedure Law, Cap. 31, Laws of Eastern Nigeria, 1963, to substitute a conviction for attempted murder.

Mr. Nwofor filed a reply brief on behalf of the appellant in response to the respondent’s brief. This reply brief dealt solely with the additional issue formulated in the respondent’s briefs. Learned counsel launched a three-pronged attack on the issue as formulated. He submitted, firstly, that there being no cross-appeal or Respondent’s notice the issue is incompetent. He referred to Nzekwu & Ors. v. Nzekwu & Ors. (1989) 2 N.W.L.R. (Pt. 104) 373, at 422, where Nnaemeka-Agu, J.S.C. said:
“This Court has said a number of times that a respondent who has neither cross appealed nor given a respondent’s Notice has not got an unbridled freedom of raising issues for determination which have no relevance to the grounds of appeal filed. So it is in this case”
Learned counsel referred also to page 430 where his Lordship continued:-
“As this Court has said a number of times, where a respondent has not cross-appealed at least given a respondent’s notice, the role of this court is strictly limited to seeing whether or not the decision of the court is correct.. .. The respondent has not filed either a cross appeal or a respondent’s notice, I should confine myself to seeing whether these judgments of the court below could be sustained.”

Secondly, learned counsel submitted that the additional issue is incompetent on the ground that it is not related to any ground of appeal filed before this Court. Counsel referred again to the following observation of Nnaemeka-Agu, J.S.C. on the point:
“Counsel will do well to remember that issues for determination must arise from and relate to grounds of appeal filed, and no more. Conversely, any issue for determination which has no ground of appeal to support it is worse than useless.” See Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 580 per Nnaemeka-Agu J.S.C.
Learned Counsel referred also to Baridam v. The Slate (1994) 1 N.W.L.R (Pt. 320) 250, at 260, where it was observed.
“It is trite law that an appellate court can only hear and decide on issues raised in the grounds of appeal filed before it and that an issue which is not covered by the grounds of appeal must be struck out as incompetent”.
(That observation was by Iguh, J.S.C., and not by Ogundare J.S.C.)

Thirdly, and finally, learned counsel submitted that the additional issue raised by the respondent was not raised before the lower Court.

On the first point of objection I observe that all the cases relied on by Mr. Nwofor are civil cases. There is none of them the facts or circumstances of which are anywhere near the facts or circumstances of the one now before us. In many material respects a civil appeal is different from a criminal appeal. One such respect, in my view, is the filing of cross-appeals or the giving of a respondent’s notice. It is easy to find many reasons why a respondent in a civil appeal would want to file a cross-appeal or give a respondent’s notice. The reliefs or benefit that a party hopes to obtain before a court of civil jurisdiction are far more varied and imprecise than before a criminal court. The civil court may give a decision that is unsatisfactory to both sides, either one of them feeling that the decision ought not to have gone the way it has, or has not gone in that direction as far as it ought to have.

In a criminal trial, however, the court is concerned only with one thing. That is to ascertain whether or not the guilt of the accused has been established as required by law. Where it comes to a decision that it has, then it enters a conviction. If not, it acquits. If it convicts as charged the convict may appeal, but I cannot see any ground for complaint by the prosecutor either by way of a cross-appeal or a respondent’s notice. If it acquits, the prosecutor may appeal.

The trial court has power to convict for a lesser offence, though not charged, if it is of the view that the facts proved by the prosecution do not establish the offence charged, but constitute the lesser and related offence. See sections 169 – 179 of the Criminal Procedure Law. Cap. 31, Laws of Eastern Nigeria applicable in Imo State. In such a situation either side could appeal, the later appellant in time being referred to as cross-appellant.

In the matter before us the prosecutor pressed for and secured a conviction before the trial Court. On further reflection, however, he came to the conclusion that the conviction of the appellant was not right in law. He now thinks that the conviction should have been for different and lesser offence disclosed by the facts. I do not think that as the law stands he needs to cross-appeal or give a respondent’s notice. He has no ground to cross-appeal on. The trial Court gave him exactly what he asked for i.e., the conviction of the accused as charged. It is true that he has asked us to vary the decision of the trial Court. It is equally true, however, that he is not asking for the varying of the decision in his favour, but in the appellant’s favour. A respondent’s notice would, in my view, therefore, be inappropriate in the circumstances. In any case Order 4 of the Court of Appeal Rules, which deals with criminal appeals, makes no provision for the giving of a respondent’s notice as does order 3, which deals with civil appeals.

I shall take the second and third points of objection together. It is my view here that the respondent has properly raised the issue that he raised in his brief. I do not agree that the issue framed by the respondent has not arisen from or not related to the grounds of appeal. In my view, this issue could be clearly accommodated in the original ground of appeal, i.e., the omnibus ground. It is not different from the issue No.3 as formulated on behalf of the appellant. They both raise the question whether, upon the evidence before the trial Court the appellant could be set free. The State, on the other hand, wants to contend that the evidence does not justify such a course of action, although it concedes that the evidence before the Court does not justify the particular conviction returned.
In Mr. Nwofor’s view, as the State did not make this argument before the trial Court it cannot make it now without our leave, since it is a new point not canvassed before the Court. I do not think that the fact that the State did not ask the trial Court to consider entering an alternative conviction renders the point a new one before us. It was always there by virtue or Section 169 of the Criminal Procedure Law. Whether or not the parties brought it up the Court could always consider doing it. The trial Court did not do it in this case because it considered that the evidence before it justified a conviction for murder. Now that it has been raised before us we can, and ought to, look into it. We need no further licence than the provisions of section 20(3) of the Court of Appeal Act. That was what the Federal Supreme Court did in Owe v. Queen (1961) 1 All NLR. 680 relied on by the learned DPP. (Also reported in (1961) 2. S.C.N.L.R. 354).

For the reasons I have given I see no merit in the objections taken to the issue framed by the respondent.

On the merit, the learned DPP, as has been seen, urged us to hold that the available evidence justifies us in exercising our power of substituting a conviction for attempt to murder. I have looked at the facts relied on by the learned DPP. I do not agree that they support conviction for the offence of attempt to murder. To provide such support the facts must show that the accused assaulted his victim with intent to kill. The learned DPP seems to me to think that the portion of the appellant’s statement, Exhibit O, which I earlier set out, amounted to a confession by the appellant that he assaulted the deceased in circumstances from which the inference can be drawn that he had the intent to kill the deceased. I cannot subscribe to this view. In the first place, I do not even think that what the appellant said amounted to a confession. I think the learned DPP has read it out of context. On reading the entire statement I gather the impression that the appellant was saying that in his attempt to repel the murderous attack on him by the deceased he injured the deceased. I do not understand him to be confessing that he deliberately, and with malice towards the deceased, pierced the deceased in the head with the screwdriver he had. My view is strengthened by the evidence of the appellant before the trial court. He made it clear that the screwdriver pierced the deceased by accident as they struggled. He was not challenged, either in cross-examination or by the production of contrary evidence. It was never suggested to him that his evidence was an after-thought.
I form the same view with regard to the other acts that the learned DPP said the appellant admitted doing. What I understand the appellant to be saying was that while he and the deceased struggled the deceased fell on the palm branch. The upshot of all that I have said is that the evidence on record does not support a conviction for attempt to murder. Accordingly I resolve the issue formulated by the learned DPP against him.

Since the State has conceded all the points of complaint raised by the appellant the appeal ought to be allowed and I allow it. Since the issue raised by the State has gone against it, I see nothing standing between the appellant and acquittal. Accordingly I set aside the conviction and sentence of the appellant and in its place I enter an order of acquittal.

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Other Citations: (1999)LCN/0537(CA)