ANUONYE v. STATE
(2020)LCN/14226(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, May 28, 2020
CA/OW/65C/2018
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Between
CHIBUNNA ANUONYE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE DEFENCE OF PROVOCATION
Section 284 of the Criminal Code provides for the defence of provocation. It state that:
“A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely, to cause death or grievous harm. Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by-whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.” PER PEMU, J.C.A.
BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS
The law is elementary that the burden of proof in criminal cases rest on the prosecution. It does not shift -IKO V STATE (2001) FWLR (PT. 68) 1161 @ 1196; SECTION 135(1) OF THE EVIDENCE ACT 2011. The term “proof beyond reasonable doubt” has been pronounced on in plethora of cases which are cast in stone.
Niki Tobi JSC (as he then was) had this to say on the expression “beyond reasonable doubt”. It means inter alia “fully satisfied, entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubt, which means that the facts proven must, by virtue of their probative force, establish guilt.” In OGEDENGBE V STATE (2014) NWLR (PT 1421) @ 379, PETER ODILI JSC had this to say inter alia viz: “The guilt of the accused can be established by (a) confessional statement (b) Circumstantial Evidence or (c) Evidence of eye witnesses. PER PEMU, J.C.A.
WAYS TO ESTABLISH THE OFFENCE OF MURDER
ADEKOYA V STATE. (2012) 9 NWLR (Pt. 1306) PAGE 539 AT 566-567; IGABELE V STATE (2006) 2 SC (Pt. 11) 61 AT 69.”To establish a charge of murder, the prosecution must prove the following viz:
a) That the death of a person had taken place
b) That the death has been caused by the accused
c) That the act was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.
There is no doubt that one Ugwunna Oriaku died on the 5th of May 2012. PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Abia State High Court sitting at Omoba in Suit NO HOM/5C/2012, delivered on the 27th of October, 2017 wherein the Appellant was convicted for murder and sentence to death by hanging.
SYNOPSIS OF THE FACTS
The Appellant’s story is that on the day of the incident, he went to his farm, after which he went home. As he was about to take his bath, he noticed that some people were at his backyard. The persons included the deceased Ugwunna Oriaku.
One of them Ngozi Oriaku held an egg in his hand, and after making some incantation, he threw the egg on the ground. The egg did not break. That he heard Ngozi say that whether the egg breaks or not, they would perform their mission.
That Ngozi flogged him on his shoulder with a shovel and asked his brothers to beat him up. The four brothers attacked him while two others went on a rampage of cutting down the plantain tubers or stems.
It was while he confronted them that they swooped on him. One of them used iron rod to hit his head while the other gave him a matchet cut on his back. He
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identified who gave him the matchet cut on his back as Chiemela Oriaku. Chiemela Oriaku wanted to give him another matchet cut, but he pushed the deceased back to him and he mistakenly inflicted a fatal cut.
After taking the witness for the prosecution which were three and two defense witnesses, the Court below found the Appellant guilty of murder and convicted and sentence him accordingly.
The Appellant dissatisfied with the judgment of the Court below is desirous of appealing the decision.
He filed a Notice of Appeal on 13th November, 2017 encapsulating seven(7) Grounds of Appeal pages 214-218 of the Record of Appeal. Same was amended vide an Amended Notice of Appeal filed on 31st of August, 2018, but deemed filed on 13th of February, 2019, with three(3) Grounds of Appeal.
The Appellant filed his brief of argument on the 31st of August, 2018 but deemed filed on 13th of February, 2019. It is settled by Emeka O. Nwagwu Esq. The Respondent filed his brief of argument on the 13th of March, 2019. It is settled by Isaac C. Nwachukwu Esq.
The Appellant in his brief of argument distilled a sole issue for determination which is:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
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“WHETHER THE PROSECUTION PROVED THE CASE OF MURDER CONTRARY TO SECTION 319(1) OF THE CRIMINAL CODE, CAP 30, VOL II, LAWS OF EASTERN NIGERIA 1963 (APPLICABLE TO ABIA STATE) BEYOND REASONABLE DOUBT AGAINST THE APPELLANT.”
The Respondent’s sole issue for determination is an adoption of that proffered by the Appellant. It is:
“Whether the prosecution proved its case beyond reasonable doubt as required by law.”
The gravamen of these issues is therefore whether the prosecution has discharged the onus on him to prove the murder beyond reasonable doubt.
The Appellant has argued that by virtue of Section 135 (1) of the Evidence Act 2011, the prosecution has the onus of proof and that with proof beyond reasonable doubt. That the standard of proof is beyond reasonable doubt but can’t be beyond shadow of doubt. He submits that the case was not properly investigated neither was the alibi put up by the 3rd accused investigated.
That even though the Court below believed the evidence of Pw1 that it was the Appellant and other accused persons at large who attacked the deceased. That the Pw1’s evidence in Court
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is inconsistent with his statement to the police. The Court below, in the circumstances had a duty not merely to reject the evidence given at the trial as unreliable – NWODO V STATE (1991) 4 NWLR (pt 185) 341; QUEEN V JOSHUA (1964) 1 ALL NLR 3; ONUBOGU V STATE (1974) 1 ALL NLR 17.
He submits that Pw1 and Pw2 are tainted witnesses who had a purpose to serve.
That the Appellant denied the commission of the crime, both in his extra judicial statement to the police, and evidence before the Court.
That there is a doubt as to who inflicted the fatal matchet cut, and that doubt should be resolved in favour of the Appellant.
He, submits that there are material contradictions in the evidence of the prosecution witnesses as to where the matchet cut was inflicted.
That it is not clear whether it was the matchet cut of Chiemela as asserted by the Appellant, or a cut from the Appellant that resulted in the death of the deceased.
RESOLUTION
It is observed that neither in his statement to the Police on the 25th of May, 2012 or his evidence in Court did the Appellant state or rather admit that he hit the deceased.
In his statement to
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the police, he said that four of them surrounded him, while two were cutting the plantain sucker and destroying the plantain trees; they began to fight and Ngozi told them to cut him with matchets. Ngozi used saw to hit him on his left hand shoulder. He then carried Ngozi and threw him on the ground. The deceased used matchet and hit him on the head. He then held him and their senior brother Prince on the ground. It was the deceased Ugwunna Oriaku that used the matchet to cut the Appellant on the head. He then held him and threw him on the ground. Chiemela Oriaku used a matchet to inflict a cut on him at his back; Augustine then carried a piece of iron and hit him on the head.
As he held them on the ground, Chiemela came again to cut him with matchet and he threw him Ugwunna on Chiemela to defend himself and the matchet cut Ugwunna instead.
When again Augustine came with iron to hit him on the head, he threw his senior brother Prince on him who hit him on the head.
Pw1, Darlington Oriaku testified that on the 26th of April, 2012, he and his brothers were invited by their father to go and clear their land. They went there. He saw some persons
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including the accused person with knives coming at him. The Appellant and others went on the land and the Appellant moved towards him with a knife, and when he asked what he did to him, he said that we should get out of the land. The Appellant now tried to inflict a matchet cut on him, but he defended it with the stick he was holding which he succeeded in breaking.
As he moved away from the Appellant, the deceased was the next person close to him. The Appellant tried to inflict a matchet cut on his head but the deceased used his left hand to defend it and he sustained a matchet cut on his left palm, as a result of this cut, the deceased held the Appellant and two of them fell down while wrestling. While Ugwunna was on the ground, some people hit him on the ground while he was still lying on the ground.
Himself and his other brothers ran out of the land and shouted that they should leave Ugwunna.
While the Appellant was beating the deceased, their senior brother Prince Oriaku called the SARS leader on phone. While this was going, that is, making the call, one of the boys (Ajuzieogu Reuben) gave him a matchet cut on his head.
He went back to
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give matchet cut on the deceased but mistakenly gave the cut to the Appellant. The Appellant had to leave Ugwunna (the deceased). As this went on, the SARS police showed up.
Under cross-examination, Pw1 testified that the Appellant inflicted a matchet cut on the palm of the deceased left hand, and that he stated this in his statement to the police.
PW2 investigated the case. He visited the scene of crime and prepared the coroner’s form for autopsy. That in the course of his investigation, he found that the Appellant as well as other accused persons attacked the complainant and a fight ensued, and that two person were injured on each side. He found that the deceased was given a matchet cut on the fingers and his body.
Pw3 in his medical report stated inter alia that he discovered multiple matchet injuries on the body of the deceased. Specifically that he saw matchet injuries on the wrist of the deceased, thereby severing a major blood vessel.
The deceased was brought to the Abia State Teaching Hospital from another hospital where according to him the bleeding from the radial artery could not be checked.
The deceased had multiples
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injuries all over his body. There were minor cuts on part of the body. That the deceased died as a result of the shock, due to multiple cut injuries.
Pw3 stated that he received the corpse for autopsy four months after the death of the deceased. But that this did not deprive him from differentiating if the injuries he saw on the corpse were inflicted before or after the death of the deceased. He stated under cross-examination that the injuries on the corpse which he examined were caused before the death of the deceased.
The Court below convicted the Appellant based on the evidence of Pw1.
The Appellant raised defence of provocation.
Section 284 of the Criminal Code provides for the defence of provocation. It state that:
“A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely, to cause death
8
or grievous harm. Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by-whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.”
The primary consideration which I deem pertinent to tackle is whether from the evidence before the Court below, the prosecution had proved its case beyond reasonable doubt.
The law is elementary that the burden of proof in criminal cases rest on the prosecution. It does not shift -IKO V STATE (2001) FWLR (PT. 68) 1161 @ 1196; SECTION 135(1) OF THE EVIDENCE ACT 2011.
The term “proof beyond reasonable doubt” has been pronounced on in plethora of cases which are cast in stone.
Niki Tobi JSC (as he then was) had this to say on the expression “beyond reasonable doubt”. It means inter alia “fully satisfied, entirely convinced. In criminal cases, the guilt of the
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accused must be established beyond reasonable doubt, which means that the facts proven must, by virtue of their probative force, establish guilt.”
In OGEDENGBE V STATE (2014) NWLR (PT 1421) @ 379, PETER ODILI JSC had this to say inter alia viz:
“The guilt of the accused can be established by (a) confessional statement (b) Circumstantial Evidence or (c) Evidence of eye witnesses – ADEKOYA V STATE. (2012) 9 NWLR (Pt. 1306) PAGE 539 AT 566-567; IGABELE V STATE (2006) 2 SC (Pt. 11) 61 AT 69.”
To establish a charge of murder, the prosecution must prove the following viz:
a) That the death of a person had taken place
b) That the death has been caused by the accused
c) That the act was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.
There is no doubt that one Ugwunna Oriaku died on the 5th of May 2012.
On the issue of whether the accused caused the death of the deceased Pw1, Pw2, Pw3 Cw1 & Cw2 did state that the Appellant was fixed at the scene of the crime on the fateful day. Indeed as a participant in the murder of the deceased.
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They all gave account of how the Appellant and other persons murdered the deceased.
The Appellant did testify thus:
“On the 26/4/2012, I went to my farm and after doing some work, I returned to my home. Where I was about to bath, I noticed some people at my backyard.” – page 101 of the Record of Appeal.
From the medical report “ID1”, the deceased was inflicted with matchet cuts, but by whom? None of the murder weapons were recovered at the scene of the crime or anywhere for that matter. Exhibit “E” is the Police Report which shows no sticks, cutlasses or any weapons whatsoever were recorded by the Pw2 in the course of his investigation. Pw2 did not go to see whether there was any pit toilet – the subject matter of the problem. Pw3 did not avert his mind to any pending land issues.
Pw1 was the star witness, the Court below relied heavily on his evidence, to convict the Appellant.
It is the submission of the Appellant in paragraph 4.20-21 of his brief of argument that Pw1 and Pw2 had their own purposes to serve as they were tainted witnesses. Their evidence is unreliable. This is because Pw1 is a
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brother to the deceased.
The Court below made findings of unreliability of Pw1 and Pw2 as unreliable witness. How come did he rely on their evidence?
The Application of the case of SULE V STATE by the Court below was misguided and perverse, as the facts in that case depicted that the accused made a confessional statement. This is not the case here.
In Exhibit D, at page 102 of the Record of Appeal, the Appellant said as follows:
“When Chiemela Oriaku wanted to inflict the 2nd matchet cut on me, I pushed him away and he mistakenly inflicted the matchet cut on his brother called Ugwunna (the deceased).”
This Appellant’s piece of evidence was not impugned in cross-examination. Therefore it is my view that in the circumstance, a doubt existed whether it was the Appellant that actually inflicted the fatal matchet cut that killed the deceased. And where such doubt obtains, it must be resolved in favour of the Appellant.
Hear the evidence of the Appellant as elicited at page 105 of the Record of Appeal.
Q. You inflicted a matchet cut on the deceased on one of his hands?
Ans: It is not true.
Q. While you are
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holding the deceased on the ground the 2nd accused pounced on him, and beat him up mercilessly?
Ans: It is not true.
An accused person is entitled to lie and keep lying, but the prosecution has the singular onus to prove his case beyond reasonable doubt. ANTHONY OKPERE V THE STATE (1971) NMLR 1 AT 3.
The prosecution failed to establish that it was the Appellant who killed the deceased and I so hold.
The prosecution failed to carry out thorough investigation that admits of articulation. There were many loopholes in the investigation of this matter which left many questions unanswered.
The appeal succeeds, and same is hereby allowed.
The judgment of the Abia State High Court sitting at Omoba contained in the judgment in Suit NO HOM/5C/2012, delivered on the 27th of October, 2017 is hereby set aside.
The conviction and sentence of Chibunna Anuonye is hereby set aside and he is hereby discharged and acquitted accordingly.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the opportunity to read in draft, the lead Judgment of my learned Brother R. N PEMU, JCA.
I agree with the reasoning and conclusion. There is merit in this
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appeal and it is hereby allowed. The Judgment of the Trial Court is hereby set aside.
ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read in advance, a copy of the lead Judgment just delivered by my learned Brother, RITA N. PEMU, JCA, allowing this appeal. I agree with and adopt as mine the reasoning and conclusions.
I also allow this appeal and abide by the orders in the lead Judgment.
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Appearances:
Emeka O. Nwagwu Esq.For Appellant(s)
Issac C. Nwachukwu Esq.For Respondent(s)
