Ugwuezumba Onwukiru V. The State (1999)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

In an information in charge No. HOG/2C/88 filed at the Oguta High Court of Imo State, the appellant was the first of the nine accused persons charged with the offence of murder contrary to section 319 of the Criminal Code, Cap 30, Vol. 11, Laws of Eastern Nigeria, 1963 applicable to Imo State. According to the particulars of the offence, it was alleged that the nine accused persons all of Uba Agwa in the Oguta Judicial Division did on 13th August, 1987 at Uba Agwa murder one David Njirizu hereinafter referred to as the deceased.

At the trial, the prosecution called five witnesses and the accused persons one. The case advanced by the prosecution may be epitomised as hereunder. On 7th August, 1987, at about 6 p.m., Chibuzor Nlemoha (PW1) was at his home in Uba Agwa eating. Suddenly, he heard a voice in Ibo saying ‘beat him, beat him’. He came out to see what was happening. He got to a nearby orange tree and saw the appellant (1st accused) as he slapped the deceased. As the deceased was shouting and asking what he had done, the appellant picked a piece of wood and hit the deceased on the head. The deceased fell down unconscious. The P.W.1 raised an alarm which attracted one Leonard Nnadike (P.W.3) to the scene. Both P.W.1 and P.W.3 carried the deceased to the base of a nearby tree. At the instance of P.W.3, P.W.1 sought for and called a relation of the deceased by name Chief Fidelis Ikwu (P.W.4) who on arrival at the scene and having seen the bad condition of the deceased went to lodge a report to the police and on the arrival of the police, the deceased was conveyed to a hospital known as the New Life Hospital, Agwa. There, he was admitted and treated by Dr. Charles Nwabueze Ikeji (P.W.2) who observed he had pain in the stomach and being of the view that his condition was bad referred him to the General Hospital, Owerri where he later died on 13th August, 1987. A medical report of his death Exhibit (L) was made by Dr. H.O. Ihezue, a Senior Medical Officer at the General Hospital, Owerri. A police corporal Lawrence Okolie (P.W.5) then serving at the Oguta police station completed the investigation already undertaken by the Agwa police post. He visited the scene of crime and recovered a bicycle fork (Exhibit M). He also recorded Statements of the accused persons.

The star witness for the prosecution Chibuzor Nlemoha (P.W.1) made a Statement to police (Exhibit A) in which he Stated that the appellant took an iron-fork of bicycle and hit the deceased on the stomach as a result of which the deceased fell down unconscious. This Statement Exhibit “A” was tendered through him in the course of proceedings to contradict his oral testimony in court. Another vital witness called by the prosecution was Leonard Nnadike (P.W.3) who it appeared was the first to get to the scene of crime on hearing the alarm raised by P.W.1. The Statement Exhibit “B” made by P.W.3 to the police was also tendered in evidence and with the leave of the court, the P.W.3 was treated as a hostile witness for according to the prosecution his oral testimony was materially different from his Statement to the police Exhibit “B”.

After the investigating police officer (P.W.5) had concluded his evidence, learned counsel representing the accused persons intimated that he was resting his case on that of the prosecution. Thereupon learned counsel on both sides addressed the court and on 11th January 1993 the case was adjourned to 25th March, 1993 for judgment. On that date however, the learned trial Judge did not deliver the judgment. Instead, he reopened the hearing on the ground that the post-mortem report on the deceased (Exhibit L) contained medical terms which needed to be explained to the court. The case was then adjourned for P.W.2 to be recalled to explain the medical terms in Exhibit “L”. The prosecution made him available and he gave evidence a second time and was duly cross-examined. As the defence did not quite agree with his opinion on Exhibit “L”, the defence with the leave of the lower court called another medical doctor Dr. Donatus Sunday lzuagbe (D.W.1) to offer opinion on the medical report.

Thereafter both counsel addressed the court and judgment was reserved.

In his reserved judgment delivered on 28th July, 1993, the learned trial Judge Njiribeako J., convicted and sentenced the appellant to death while discharging and acquitting the other accused persons. Dissatisfied by that judgment, the appellant has now appealed to this court. His notice of appeal contained only one ground of appeal but with the leave of this court, an amended notice of appeal was filed with the inclusion of five additional grounds of appeal. The appellant’s brief of argument was filed on his behalf by his counsel. The brief is dated 19th January, 1994 and was filed on 24th January, 1994. The respondent also on 4th March, 1994 filed its brief of argument dated 2nd March, 1994. In the appellant’s brief of argument, the following two issues were formulated for determination. These are:-

“(a) Whether or not the learned trial Judge rightly applied the evidence led at the trial against the appellant.

(b) Whether the conclusion drawn by the learned trial Judge that the reluctance of the witnesses to give evidence against the appellant bordered on collision of (sic) between the witnesses and the defence is justified.”

The respondent on the other hand advanced only one issue for determination which reads:-

“Whether the conviction of the accused/appellant could be sustained considering the evidence adduced at the trial.”

I consider the issue formulated by the respondent which is substantially the same as issue (a) in the appellant’s brief germane to this appeal.

To sustain a conviction for murder in this case, it must be established that it was the appellant who assaulted the deceased and that it was that assault that caused the death of the deceased: See R. v. Samuel Ahengowe (1936) 3 WACA 85; R. v. William Oledinma (1940) 6 W.A.C.A. 202; Frank Onyenankeya v. The State (1964) NMLR 34.

In the case in hand, it is necessary to determine whether there is credible evidence that the appellant dealt a blow on the deceased and whether it was that blow that led to the death of the deceased.