Sunday Amala V. The State (2004)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

By this appeal, the appellant, Sunday Amala is seeking to set aside the majority judgment recorded against him by the court below per Ikongbeh & Ogebe (JJCA) wherein his conviction for the offence of murder by the trial court was affirmed. His trial and conviction arose upon an information filed by the Attorney-General of Abia State that the appellant and Ngozi Onyenso on the 5th day of March, 1992 at Ntigha Nvosi, in Isiala Ngwa Judicial Division murdered one Nwa Nwaosuagwu Ojo.

At the trial, the learned trial Judge having considered the evidence, delivered a considered judgment in which he concluded that the two accused persons were guilty of the offence of murder, convicted each of them and passed the sentence of death on each of them. As they were both dissatisfied with the judgment and orders of the trial court, each of them appealed to the court below. That court after due consideration of the evidence on record and the submissions of learned counsel for the parties, formed the view that the 2nd appellant, namely, Ngozi Onyenso was wrongly convicted by the trial court. The court below therefore ordered that the conviction and sentence pronounced upon Ngozi Onyenso be set aside. In its place, the court below made an order of discharge and acquittal in his favour.

This appeal as stated above is therefore against the conviction of Sunday Amala and its affirmation by the court below. In order to appreciate the argument canvassed in this appeal for and against his conviction, I will reiterate briefly the facts led at the trial as found in the printed record. The case for the prosecution appears to be that, on the 5th day of March, 1992, Imo Onuoha P.W.3, saw the appellant while P.W.3 was returning from Ndiolumbe pushing his motorcycle that had broken down. He alleged that he heard the appellant shouting and running. He had with him a matchet and a climbing rope. He then saw him run into the house of Christopher Nwamuo and he immediately raised an alarm in order that some persons might go to verify if there had been an accident or someone had fallen from a palm tree. Lovina Enyinaya next gave evidence as P.W4. Part of her evidence is that the deceased was a friend of her family and that on the 5th day of March, 1992, he had his breakfast at 6 a.m. with her in her residence. The deceased thereafter left for work. At 2 p.m. of the same day, she came to the road when she heard some people shouting that the deceased had been killed. And there on the road she saw the body of the deceased on the ground. She further testified that she saw the appellant, Christopher Nwamuo and the other accused at Uzomgbalo. The P.WA then went to inform the maternal relations of the deceased that he had died. They then went with her to the scene where they saw the dead body of the deceased, and P.W4 added that she saw that the legs of the deceased were tied with rope. The evidence of the arrest of the appellant was given by Friday Onwughara who claimed that he was a member of the search party that was set up to locate the whereabouts of the appellant. He was according to this witness arrested in Obomo on the 27th of April, 1992. After his arrest, he was handed over to the police in Umuahia. P.W.7, Corporal Ogbonnaya Item, No. 132271, who was detailed to investigate the alleged crime, took two voluntary statements from the appellant which were admitted by the trial court and marked exhibits “A” & “B” respectively. P.W.7 also executed a search warrant in the home of the appellant where he recovered a climbing rope and a matchet. They were both admitted at the trial and marked exhibits “E” & “F” respectively. The prosecution also called Nwaogwugwu Ojo as P.W.1, a brother of the deceased who also identified the body of the deceased to P.W.6, Dr. Anyinwo Joel Nzerem. In the opinion of P.W.6, cause of death of the deceased was due to severe haemorrhage from the cut on the chest and ruptured heart. He also formed the view that the cut must have been inflicted with a sharp object like a knife.

In his defence, the appellant stated that on the 5th day of March, 1992, he had gone on hire to trim or cut some palm trees and the surrounding bush for one Christopher Nwamuo. For the job, he used climbing ropes and a knife. According to the appellant, he claimed he had no knowledge that the land on which he worked was being disputed with any person as no one told him anything. However, he continued by saying that after trimming the palm trees, the deceased, whom the appellant said he did not know before, accosted him and wanted to know what he was doing. He responded by telling the deceased that it was Christopher Nwamuo who had hired him to trim the palm trees for him. He claimed that the deceased then threw a stick at him and when he asked why the stick was thrown at him, the deceased threw a stick at him a second time. At that stage appellant said that one of his ropes fell down and the deceased picked it up. Appellant continued by saying that while climbing down the tree, he noticed that the deceased was already at the foot of the palm tree. According to the appellant, the deceased then tried unsuccessfully to tie him to the palm tree with the climbing rope. As a result, a fight ensued between him and the deceased. In the course of the fight, the deceased being stronger than the appellant, threw the appellant to the ground. The deceased who had a knife, then held the appellant by the throat, and that prevented him from shouting. Appellant claimed that while struggling to free himself from the deceased, his (appellant’s) knife cut the deceased on his belly. The appellant said he then took to his heels. The deceased chased him for a while and fell down. The appellant made good his escape by running to his own house. And when he learnt that the deceased had died, he ran from his house to take refuge at Itunata, where he was arrested.

The appellant was as previously noted, convicted of the offence of the murder of the deceased by the trial court and sentenced accordingly to hang by his neck until pronounced dead. His conviction and sentence were confirmed by the majority decision of the court below. In this court, learned counsel for the appellant, based on the grounds of appeal filed against the judgment and orders of the court below, has in the appellant’s brief raised the following issues for the determination of the appeal:

“1. Whether there was proof beyond reasonable doubt that the appellant murdered the deceased.

2. Whether the defences of self-defence and provocation were adequately considered and did not avail the appellant.
3. Whether the arraignment and plea of the appellant was in compliance with the mandatory provisions of S. 215 of the Criminal Procedure Act.
4. Whether there was any evidence of conspiracy to warrant invoking the provisions of sections 7 and 8 of the Criminal Code which was the basis of the conviction of the appellant which was affirmed by the Court of Appeal.
5. Whether the failure by the majority of the Justices of the Court of Appeal to make a specific finding that there was no evidence of conspiracy between both the appellant and the acquitted accused person is not fatal to the case.”

In the respondent’s brief, learned counsel for the respondent formulated two issues, which adequately encompassed the questions raised in this appeal by the appellant. However, the merits of this appeal would be considered upon those issues raised in the appellant’s brief.

In the appellant’s brief, issues 1 & 2 were argued together. With regard to these issues, the questions raised for the appellant are two folds. The first being, whether the guilt of the appellant was established beyond reasonable doubt as required in law. And the second question is, whether in the course of the consideration of the evidence led, the learned trial Judge considered adequately the defences of self-defence and provocation, which learned counsel argued were available to the appellant.

In respect of the 1st issue, it is contended for the appellant that the prosecution did not prove beyond reasonable doubt the guilt of the appellant. Particularly the prosecution failed to prove by direct evidence that it was the voluntary acts of the appellant that caused the death of the deceased. In other words, argued the appellant’s learned counsel, no direct evidence linking the appellant with the death of the deceased was proved by the prosecution. Also learned counsel argued that there was no circumstantial evidence that the prosecution could call in aid to establish the guilt of the appellant. In support of all his submissions, he referred to the following cases: Alabi v. State (1993) 7 NWLR (Pt. 307) 511; Okoro v. State (1988) 5 NWLR (Pt. 94) 255; Ubochi v. State (1993) 8 NWLR (Pt. 314) 697; Bello v. State (1994) 5 NWLR (Pt. 343) 177. Learned counsel for the appellant also invited the attention of the court to the view taken of the evidence of the appellant that he lied with regard to his evidence concerning the events that led to the death of the deceased. As this view by the trial court he submitted, was erroneously affirmed by the court below, it is his submission that the finding be reversed. It being his submission that the duty lies on the prosecution to establish its case by proven evidence. In support ofthat submission, he referred to the following cases: Yisau v. State (1995) 2 NWLR (Pt. 379) 636 at 644; Gufwat v. State (1994) 2 NWLR (Pt. 327) 435 at 462.

With regard to whether the defences of self-defence and provocation were duly considered by the trial court before concluding that the appellant was guilty of the offence, it is his submission that the trial court did not consider those defences. And he further submitted that the court below wrongly affirmed that decision of the trial court. I do not propose to set out herein the arguments for the respondent in the respondent’s brief in reply to that of the appellant. But they would be considered along with my consideration of the merits of the issues raised by the appellant.

Now, there is no question that the established principle in all criminal cases tried by any court within this jurisdiction is that the prosecution must establish the guilt of the accused beyond reasonable doubt upon the established evidence before the trial court. That burden on the prosecution never shifts. After due consideration of the evidence led at the trial, the learned trial Judge found the appellant guilty. Now, I accept the submission that from the evidence led, none of the prosecution witnesses gave evidence that they saw the appellant inflict the mortal wounds that caused the death of the deceased. However, the learned trial Judge in the course of his judgment had this to say about the evidence at page 52 of the record. It reads:-

“If the deceased was bigger and stronger as both accused said, and was holding machete, how could the first accused alone have over powered, killed him and never got a scratch in return The truth is that the three men who P.W.2 saw at the scene and 1st accused in exhibit

“A” admitted that PW.2 came to the scene and who PW4 saw running through a track road at Uzoe Ngbogo did the act with malice aforethought supplied by P.W.1 to the effect that Christopher Nwamuo who had land dispute with the deceased.”

The question then is, whether the Court of Appeal by its majority judgment was right to have affirmed the decision of the trial court to find the appellant guilty. It is apt to refer to part of the reasoning of the court below in the course of its judgment. It reads:-

“The appellant himself made it clear, both in his statements to the police, exhs. A and B, and his evidence before the court, that he inflicted a wound on the deceased, who bled profusely and soon thereafter fell down and later died.”

The further question that must be answered, is in my view, whether there is evidence that stands in support of the majority decision of the court below to prove that the appellant was guilty of the offence charged. Earlier in this judgment, I had set out briefly though, the evidence given by the witnesses for the prosecution, and the evidence given by the appellant. As already remarked, no witness gave evidence for the prosecution that the appellant was seen applying the fatal wound that caused the death of the deceased. But the evidence as to what happened that led to the death of the deceased was given by the appellant in the course of his oral testimony at the trial. As part of his evidence he said that it was on the day of the incident that he met for the first time the deceased. This was when he was trimming a palm tree for Christopher Nwamuo on a piece of land, which he presumed belonged to the said Christopher Nwamuo. He claimed that he knew of the presence of the deceased where he was when the deceased threw a stick at him. He then asked why the deceased should throw a stick at him. But without giving any explanation for this conduct, the deceased threw a second stick at him. So, the appellant decided to climb down the tree. Upon getting down, the deceased who was standing beside the tree tried to tie him to the tree. As the deceased failed to tie him, a fight ensued between them. Appellant now claimed that in the course of the fight, the deceased was seen with a machete, but they continued with the fight. In the middle of it, appellant claimed that the deceased tried to choke him and it was while he struggled to rescue himself that appellant’s machete struck the stomach of the deceased who was lying on his back. That evidence which the appellant gave at his trial by the appellant are in material terms similar to what he stated in his extra-judicial statements exhibits “A & B”. It is settled law that the extra-judicial statements made by a prisoner are admissible in evidence at the trial of the prisoner, and if it is evident that they were made voluntarily by the prisoner, such evidence become admissible against him. Also the oral confessional testimony of an accused person at his trial is admissible and become upon those facts part of the evidence that the court may consider to determine whether he is or not guilty of the offence for which he was charged.

In the instant case, the extra-judicial statements made by the appellant, exhibit A & B, were admitted in evidence at the trial without any objection. And there was also no dispute about them as to whether they were made voluntarily. In the said statements he gave a graphic account of how he struck the deceased with the machete, which he had with him. It must be added that the evidence of the medical doctor who performed the post mortem on the body of the deceased and which remains unchallenged is revealing. According to the 6th P.W., Dr. Anyinwo Joel Nzerem, the death of the deceased was due to severe haemorrhage from the cut on the chest and ruptured heart. The cut must have been inflicted with a sharp object like a knife. The court below by its majority decision was in my view right having regard to all the evidences before it, that it was the appellant who inflicted the fatal wounds that led to the death of the deceased.

What remains to be considered is, whether, before coming to its conclusion on the guilt of the appellant, the trial court considered the defences of self-defence and provocation which it is argued were available to the appellant. It is very clear that before arriving at his conclusion, the learned trial Judge at page 52 of the record stated thus:-

“Does self-defence, provocation or section 286 of the Criminal Code avails in the circumstances of this trial I answer this in the negative.”

It is evident from the above passage that the learned trial Judge did consider whether the two defences of self-defence and provocation were available to the appellant. True enough, he could have elaborated in that passage by giving his reasons for answering the question in the negative. It is however my view that the failure of the learned trial Judge to give elaborate reasons for coming to that conclusion cannot be interpreted to mean that he failed to consider the defences of self-defence and provocation in the course of his judgment. As I have also read the judgment in the light of the evidence led at the trial, it is my view that the court below by its majority decision was right to have affirmed the conviction of the appellant.

In respect of issue (3), which is, whether the arraignment and plea of the appellant was in compliance with the mandatory provisions of section 215 of the Criminal Code. This complaint was made before the court below, and it was rejected by the decision of the majority in that court. The complaint in this regard is whether the plea of the appellant who was charged with another person was properly taken before the commencement of their trial at the High Court. In this regard, he referred to the relevant portion of the record where the learned trial Judge recorded the plea of the accused persons thus:-

“charge read and explained to the two accused persons in Igbo language and both pleaded not guilty to the charge.”

Having regard to the manner in which the learned trial Judge took the plea of the accused persons, reproduced above, it is the contention of learned counsel for the appellant that the plea of the accused persons as taken was in breach of the provisions of S. 215 of the Criminal Procedure Act.

For a proper appraisal of the argument of counsel, I deem it necessary to quote the provisions of the said section 215 of the Criminal Procedure Act. It reads:-

“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the Registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.”

From the argument of the learned counsel for the appellant in the appellant’s brief, it does appear that the thrust of his argument are two pronged. The first being that there is nothing on the face of the record to show that the charge was read and explained to the accused persons to the satisfaction of the trial court. This argument is easily deposed of as it ignored the basic principle that the Judge in whose presence the charge was read and explained to the accused persons in the language common to all the parties in court has not been shown not to have understood the charge as read and explained to the accused persons. For the complaint to serve any useful purpose, there must be evidence that the learned trial Judge was deaf of hearing and if not, he was not able to understand the charge as read in the Igbo language.

The second point of his argument in which he contends that the plea of each accused person should have recorded separately also lacks merit. This court in Cyril Udeh v. The State (1999) 7 NWLR (Pt. 609) 1 had to consider a question similar to that now raised in the instant case. I agree with the view held in that case that it would be absurd to suggest that a charge must be read separately to each of several accused persons jointly charged together. On this issue, I would gratefully quote the dictum of Ayoola, JSC in that case at page 18 of his judgment. It reads:-

“It is difficult to fathom the logic in the argument which in effect, is that the trial Judge should have stated that the charge had been read to each of the accused persons, or; that only separate reading of the charge meets with the requirements of section 333. The argument founded on the use of singular person in section 333 is misconceived having regard to the provision of section 41 of the Interpretation Law which has been referred to in this judgment. It is not difficult to agree with Salami, JCA when he held that ‘the complaint of the appellant giving rise to the issue concerning the validity of the arraignment was predicated upon misapprehension of section 333 of the Criminal Procedure Law, Cap. 37 which is in pari materia with the provisions of section 215 of the Criminal Procedure Act, Cap. 80 of the Laws of the Federation of Nigeria, 1990’. I hold that notwithstanding the joint reading and explanation of the charge, there was compliance with section 333 of the Criminal Procedure Law, Cap. 37 and the Court of Appeal was right to have so held.”

There can be no doubt that the plea of an accused person must be taken before his trial, in obedience to section 215 of the Criminal Procedure, but care must be taken not to raise this question to fish for success in an appeal which is totally devoid of any merit upon the facts and the law. The appeal in this case falls into this class.

I now turn to the consideration of issues 4 and 5. By his issue 4, appellant is asking whether there was any evidence of conspiracy to warrant invoking the provisions of sections 7 and 8 of the Criminal Code which was the basis of the conviction of the appellant and which was affirmed by the Court of Appeal. I think this question as worded totally misconceived the majority judgment of the court below. I do not need to review the basis of their judgment, which had been earlier set out in this judgment. Suffice it to say that the conviction of the appellant was affirmed on the basis of the evidence of the appellant. That was also the basis of his conviction by the trial court. True enough, the learned trial Judge considered the provisions of sections 7 and 8 of the Criminal Code in order to convict the 2nd accused before him. The conviction of the 2nd accused was set aside by the court below, and rightly too. This is because there was no evidence against the 2nd accused, and it is settled law that the commission of the offence as admitted by him can only be evidence against the appellant. That the learned trial Judge adopted that wrong approach to convict the 2nd accused cannot in the circumstances lead to the conclusion that the verdict against the appellant ought to be set aside. I also do not see any merit in the complaint that the court below failed to make any finding that there was a conspiracy or not between the appellant, the 2nd accused at the trial court or any other person. This is because there is no evidence to justify such an exercise by the trial court and the court below.

In the result, as all the issues have been resolved against the appellant, his appeal must be dismissed. It is hereby dismissed in its entirety. The judgment and orders of the court below are hereby affirmed.

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SC.231/2002