Sunday Emiator Vs The State (1975) LLJR-SC

Sunday Emiator Vs The State (1975)

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BELLO, J.S.C 

This is an appeal against the decision of the High Court of the Mid-Western State holden at Agbor convicting the appellant of murder and sentencing him to death under Section 257 (1) of the Criminal Code, Laws of the Western Region of Nigeria 1959, (which is applicable in the Mid-Western State, on 26th March, 1975.

The charge alleged that on 23rd July, 1972, the Appellant murdered one Catherine Obuh. The evidence adduced by the prosecution shows that on the day in question there was a rampage at Umunede village by some soldiers stationed there, and in the course of the rampage, the appellant struck Catherine Obuh on her back with the butt of his rifle and thereby caused her death.

The incident started in this manner: a cyclist had apparently obstructed the passage of the appellant’s car and that after the car has over-taken the cyclist, the appellant stopped the car, alighted from it with three other soldiers and began to assault the cyclist. A police officer (P.W.6) who was nearby attempted to intervene and as a result the appellant and the other soldiers mercilessly butted the officer. Reinforcement of more soldiers arrived at the scene and they went amock beating up members of the general public who were around or passing by. The deceased was passing by when the Appellant gave her the fatal blow. She died immediately after receiving the blow.

It appears from the record of proceedings that all the soldiers, about 30 men, who took part in the rampage were rounded-up by the Military Authority and were detained in the guard room of their barracks. On 26th July, 1972, an informal identification parade was conducted in which the detainees formed a semi-cycle. Two eye-witnesses – namely Nwabogu Onwuemeri (P.W.2) and Victoria Obu (P.W.4) – identified the Appellant as being the soldier who had hit the deceased with the butt of his rifle. The investigating officer- (P.W.7) then arrested the Appellant and charged him with murder. The Appellant made his statement Exh. A on that very day.

The medical evidence shows the deceased had a ruptured spleen and the cause of death was due to shock as a result of the bleeding caused by the ruptured spleen and the rupture must have been due to a blow or a fall on a heavy object.

The defence of Appellant was an absolute denial. He denied having struck the deceased. He denied having taken part in the identification parade or ever being arrested in this case. He stated that on the day of the incident, he was alone in his car and that 5 men obstructed his passage and when he stopped to inquire why, the police officer, P.W.6, and the other men fell on him and while they were beating him one R.S.H. Usman arrived at the scene; that as a result of the advice given to him by the latter, the Appellant reported the matter to the police at Agbor. He stated that he went to the Magistrate Court on 21st August, 1973 in connection with the complaint he had made but to his great surprise he was charged with murder. The trial Judge did not believe the Appellant.

He believed the prosecution witnesses. He found that Catherine Obuh died on 23rd July, 1972 as a result of the blow inflicted upon her by the Appellant during the rampage. He convicted and sentenced the Appellant accordingly. Six grounds of appeal have been argued at the hearing of this appeal. Grounds 1, 2 3 and 4 cover the omnibus ground that the decision is unreasonable and cannot be supported having regard to the evidence in that the trial court could not say with certainty whether it was the Appellant or somebody else that killed the deceased; that there was serious conflict in the evidence of the eye-witnesses as to the dress worn by the Appellant at the material time.

The learned Counsel for the Appellant argues that the evidence of the three star witnesses for the prosecution – namely P.W.2, P.W.4 and P.W.6 – was inconsistent and unsatisfactory. He draws our attention to the evidence of P.W.2 and P.W.4 who both testified that the person who killed the deceased wore army uniform and that while P.W.6 confirmed the other witnesses in his evidence-in-chief, he stated under cross-examination that the person was in plain clothes. Counsel further indicates that P.W.2 denied that the deceased was carrying a baby on her back at the material time and also denied that he had deposed that fact at the Preliminary Inquiries. The deposition of the witness, which was admitted in evidence at the trial as Exhibit C discloses that the witness had in fact deposed that fact.

The learned Counsel proceeds to submit that although the trial Judge considered the aforementioned contradictions, the consideration was not proper. In this regard the trial Judge stated in the judgment:

“The inconsistent evidence by some of the Prosecution witnesses notwithstanding, I believe that the accused person assaulted the 6th P.W. and this ultimately led to a rampage during which the deceased was fatally assaulted either by the accused person or by another soldier on the order of the accused. The evidence of the 2nd witness and 4th P.W.s were, however, so positive that coupled with the evidence of P.W. VII as regards the Identification Parade, I have no hesitation in holding that the accused person killed the deceased.”

It is apparent that the trial Judge did not indicate the inconsistencies specifically in his judgment. Apart from the aforementioned inconsistencies pointed out by the learned counsel, the only other inconsistency is in the evidence of P.W.2 who stated that the Appellant hit the deceased with the butt of his gun and the deceased fell down. This implies that the Appellant hit her only once. On the other hand, P.W.4 stated that the Appellant hit her mother in the waist with the butt of his gun and she fell down and that he repeatedly hit her before she fell down and also after she had fallen down.

The trial took place over two years after the incident. Passage of time fades human memory on matters of details and human observation tends to defer in a confused situation such as was occasioned by the rampage. The inconsistencies in the evidence of the prosecution witnesses must be considered in the light of these factors and they did not create any reasonable doubt in the mind of the trial Judge that it was the Appellant who butted the deceased. Having shown that he appreciated the inconsistencies, the fact that the trial Judge did not set them out specifically is not sufficient to set aside his decision under the circumstances of the case.

The learned Counsel also complains that the trial Judge had failed to warn himself of the danger of convicting the Appellant on the evidence of the deceased’s relatives. There is evidence that P.W.2 was her daughter and that both P.W.4 and P.W.6 were her relatives. He cites Rex v. Thompson Udo Essien 4 W.A.C.A. 112 and submits that evidence of such relatives must be treated with caution.

The facts in Thompson Udo Essien’s case differ from the present case. In that case the witnesses were members of the deceased’s family who had known the Appellant and had believed that he had invoked juju against the family. The members of the family had therefore an apparent bias against the Appellant and the West African Court of Appeal held that their evidence must be received with caution and was necessary. In the present case none of the prosecution witnesses had known the Appellant before the incident and there is not the slightest evidence suggesting that any of them had any bias against the Appellant.

Ground 5 complains that the trial court misdirected itself in law when it held that for some 15 to 30 soldiers to be so locked up confirms that there was indeed a rampage for the Army authorities could certainly not have locked up these soldiers for the simple reason that the accused had been assaulted by 5 non-soldiers, when the locking up of the soldiers, if any, can be referable to other matters than a Rampage. This ground is misconceived. The evidence of the investigating officer, P.W.7, discloses that the 30 soldiers had been detained for having taken part in the rampage at Umunede on 23rd July, 1972.

Ground 6 reads:-

“The trial court erred in law as it did not make any specific finding of fact whether the Appellant took part in the identification parade at Asaba and whether he was in fact identified by anybody as the assailant of the deceased; or in the alternative.

The evidence of P.W. VII as regards the identification Parade is largely irrelevant, in view of the fact that P.W. VII was not an eye witness to the alleged crime, and the court erred in law in relying on such insufficient and irrelevant evidence in convicting the Appellant.

The learned Counsel argues that there is no cogent proof of identification of the Appellant at the parade and counsel relies on the omission of the Appellant in his statement, Exhibit A, to make mention of the identification parade. We are satisfied that the evidence of P.W.2, P.W.4 and P.W.7 regarding the identification of the Appellant at the parade as being the person who hit the deceased is clear and the trial court believed it. The evidence of P.W.VII is certainly relevant as it corroborates the evidence of the other 2 P.W.s.

Counsel further argues that the identification parade was not properly conducted in that no senior police officer was present; that the Appellant was not asked to choose his position and that measures were not taken to ensure fairness and eliminate mistake.

We are unable to agree with the learned counsel. The evidence shows that the author of the crime was not known by the police then; that all the 30 detainees who took part in the parade wore army uniforms; that the first witness identified the Appellant among the 30 soldiers out of the presence and view of the other witness who also later identified the Appellant. We find no element of unfairness in this procedure.

The result is that all the grounds of appeal fail. The appeal is dismissed. We affirm the conviction and sentence.

Other Citation: (1975) LCN/2003(SC)