Peter Orisakwe Vs The State (2004)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N.

The appellant was charged in the High Court of Imo State (Ojiako, C. J.) with the murder of one Sylvanus Agbarakwe contrary to section 319 subsection (1) of the Criminal Code, Cap. 30, Laws of Eastern Nigeria, 1963 applicable to Imo State and was sentenced to death.

The prosecution case is briefly as follows: On the 20th day of September, 1993, there was a ceremony in Umunoha town to mark the end of a mourning period which was referred to as “mourning clothes removal ceremony.” The masquerade dancing group of Umuokpara Ejimadu people was invited to Umunoha to participate in the ceremony. The group arrived there at about 2.00 p.m. and took part in dancing. At about 4.00 p.m., the deceased, Sylvanus Agbarakwe, who was a very good singer, came from Aba and joined the masquerade group and took over the singing. After the performance by the masquerade group, they bade farewell to the head of the masquerade of Umunoha town.

As they were on their way leaving for Umuokpara Ejimadu, the accused and his cohorts began to disturb them. The deceased had to warn the accused to keep his distance but the latter challenged the deceased and threatened to deal with him (deceased). When on their way home, the masquerade group saw the accused riding a bicycle on a main road followed by the masquerade group armed with a dagger in his hand. The accused accosted the deceased at a spot along the road near the accused’s home. The accused held the shirt worn by the deceased. The deceased asked the accused to leave him alone as he was rather young for the deceased, who was older, to fight with. After the deceased said so, the accused stabbed him with the knife on the chest and ran away, leaving behind the bicycle he rode. Those present chased the accused in vain. While Kingsley Onwuka (PW1) held the bicycle, the deceased was conveyed to a private hospital at Eziama Obiato, by one Philip Agbaraka, where he died. PW1` went home and reported to one of the elders Ukaobasi Mbaonu and left the bicycle with the latter, with whom it was until the police came to him and took it with them to Nwaorieubi police station. The accused person reported himself on the instruction of his father, (DW2) to the police at Eziama police station. He was arrested there and taken to Nwaorieubi where he was charged with murder. He was cautioned and he made a voluntary statement which was admitted at the trial as “prosecution exhibit No. 1.” The case was transferred to Imo State Central Investigation Department (C.I.D.) where it was assigned to Police Inspector Alex Okedu (PW3) on 23rd September, 1993 to investigate. The accused was again arrested, charged with murder, was cautioned and he volunteered a statement which was admitted at the trial as “prosecution exhibit No.2.” A search under a warrant was conducted at accused’s father’s home (DW2) but nothing incriminating was found. The accused volunteered another statement, which was taken under caution and was admitted in evidence as “prosecution exhibit No.3.” The body of the deceased was transferred from the private hospital to the mortuary of the General Hospital at Owerri. Autopsy was carried out by Dr. Innocent Njemanze (PW5) after the body of the deceased was identified as that of the deceased by his brother, John Agbarakwe (PW4).

The accused person testified in his defence as DW1. He gave his age as 14 years in 1993 and that he was a student in Senior Secondary Class 1 at Secondary Technical School, Ogbor Hill, Aba. That on 20th day of September, 1993, he was at Umuokpa, where he attended the ceremony for “removing the mourning apparel of a dead person.” He joined the village masquerade for the ceremony. As their masquerade emerged, the beating of masquerade drums was asked to be stopped. The deceased refused to do so and continued drumming despite the plea by other persons for him to stop. Consequently, two youths by names Chinedu and Aturuchukwuoda challenged the deceased to stop but he would not. A quarrel ensued between the youth and the deceased. As the accused went to them to intervene, he was pushed by the deceased who slapped him on his left cheek. People present asked the deceased to leave the accused alone but despite this the deceased continued to hit the accused with his fist and he eventually knocked the accused on the ground. As the deceased was about to hit the accused with a stick, the latter picked up a stone and hit the deceased on the stomach with it. The deceased fell on the ground and the accused ran away but the deceased got up and chased him. The accused escaped by running to his family compound where he remained. The next day, the accused’s father (DW2) took the accused to the police post at Eziama, from whence the accused was taken to Nwarorieubi police station. It was while he was there that he heard that the deceased had died and he made a statement to the police.

Under examination-in-chief the accused denied that he stabbed the deceased with a dagger but said that he “stabbed” the deceased with a stone and that he did not waylay the deceased on the road. He admitted making three statements to the police, which he said he adopted as part of his defence. He said under cross-examination that his birth was registered at Port Harcourt and that the certificate of birth was in his father’s (DW.2) possession. He said that at the time of the incident that led to the death of the deceased, he was not 18 years old.

In his testimony, DW.2, John Orisakwe, said he was a retired Inspector of Police and that the accused was his son and he was born on 7th October, 1979 at Port Harcourt General Hospital. He confirmed that accused’s birth was registered and he tendered the birth certificate in his possession, which was admitted in evidence as “defence exhibit No.1.”

On 7th May, 1996, the defence closed its case immediately after the evidence of DW.2 and the trial was adjourned to 8th July, 1996 for the trial court to be addressed. On the 8th July, 1996, the accused was not brought to court from prison custody and so the case was further adjourned to 7th October, 1996, “for continuation.” On this date, the learned trial Chief Judge minuted as follows:”

Court: On 7/5/96 counsel for the accused person, Mr. Azuatalam tendered a birth certificate No. 12399 dated 18th December, 1979 to the effect that the accused person, Peter Orisakwe was born at the General Hospital Port Harcourt on 7th October, 1979. The said certificate which was tendered and recorded as defence exhibit No.1 was procured by the father of the accused person, Mr. J. N. Orisakwe. On 12/6/96, the elder brother of the deceased, one Mr. John Agbarakwe wrote to the court to say that the said defence exhibit 1 was a forgery. This morning the Deputy Director of Public Prosecution has shown the court a letter dated 13/9/96 signed by Dr. G. J. Orgwu that the said defence exhibit 1 was a real forgery. John Agbarakwe’s letter dated 12/6/96 is

hereby tendered as miscellaneous exhibit ‘A’. Dr. G. J. Orgwu’s letter dated 13/9/96 is tendered as miscellaneous exhibit ‘B’.

At this stage the two opposing counsel have agreed that since fraud is alleged the matter should be investigated. I therefore, order that the person who issued the said certificate i.e. Dr. F. Chavez and the person who wrote denying the authenticity of the certificate, Dr. G. J. Orgwu should be subpoenaed by the parties in the matter for them to come to court on the next date of adjournment to be examined and cross-examined on oath. Each should come with all relevant documents pertaining to the alleged forged birth certificate of the accused Orisakwe.

This case is therefore, adjourned to 1/12/96 for the above issue to be sorted out.”

It is to be observed that Mr. John Agbarakwe, the elder brother to the deceased, was PW.4. His letter (Miscellaneous exhibit A) mentioned above reads –

“Mr. John Agbarakwe