UDOCHUKWU OGBONNA v. THE STATE
(2018)LCN/12331(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of December, 2018
CA/OW/440/2017
RATIO
COURT AND PROCEDURE: WHETHER THE COURT CAN LESSEN A CRIME
“…Be that as it may, this Court is empowered under Section 179 of the Criminal Procedure Law to substitute the offence of murder for a lesser offence of manslaughter as prayed for by the Appellant’s Counsel. By the virtue of Section 15 of the Court of Appeal Act, 2004, this Court is endowed with the power to act as the lower Court would have. It is well established that an accused person can be convicted on his confessional statement alone.” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
CRIMINAL LAW: INGREDIENTS FOR THE OFFENCE OF MURDER
“It has been established that the essential ingredients that must be proved by the Prosecution to ground a conviction for murder are: (a) that the deceased died; (b) that the death of the deceased was caused by the accused; and (c) that the accused intended to either kill or cause the victim/deceased grievous bodily harm. It is also settled law that the above three elements/ingredients of the offence of murder must co-exist at the same time, otherwise the accused person is entitled to be acquitted of the offence so charged.” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
UDOCHUKWU OGBONNA Appellant(s)
AND
THE STATE Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment):
The Appellant filed a Notice of Appeal on the 15th September, 2017 challenging the judgment of the High Court of Abia State via C. O. Onyeabor, J., delivered on the 13th June, 2017 convicting him of the murder of one Chukwuebuka Onuoha and sentencing him to death by hanging on the neck. The Appellant was arraigned on the 27th February, 2013 on a Charge of the murder of one Chukwuebuka Onuohain an Information filed on the 31st May, 2012. He pleaded not guilty to the Charge that was read in English and interpreted in Igbo language to him, the language he seemed to have understood perfectly well according to the trial Court. The Prosecution called two witnesses while the Appellant only testified for himself.
Then in its judgment delivered on the 13th June, 2017, the trial Court held that in the absence of the direct evidence of P.W.1 and P.W.2 on the incident, and even without a Medical Report even where the body of the deceased is not seen as in the case, and relying on the case of Ochemaje vs. The State (2009) Vol. 168 LRCN 97, a person can still be convicted of murder if there is strong, unequivocal and compelling evidence that the victim of the alleged crime is dead, the absence of medical evidence of his death notwithstanding. It also observed that there is no material contradictions in the evidence of P.W.1 and P.W.2., and finally found that the Prosecution had proved all the ingredients of the offence of murder against the accused person beyond reasonable doubt.
The Appellant was dismayed at the judgment which then propelled him to file the Notice of Appeal hinged on eight grounds of appeal on the 15th September, 2017. The record of appeal was received by this Court on the 15th November, 2017. The Appellant’s Brief of Argument was filed on the 15 January, 2018 but it was deemed as having been properly filed and served on the 17th May, 2018. Eight issues were projected by the Appellants in his Brief for determination herein. The issues read thus:
(1) Whether the learned trial Judge was right when he convicted the Appellant for murder on the ground that it was the act of the Appellant’s stabbing the deceased which resulted to his death and which death being almost instantaneous and holding that the Appellant intended the consequences of his action which requires no medical evidence to establish notwithstanding the undisputed evidence before the Court that it was the deceased and his friend’s actions of flogging the Appellant with their belts and giving him several fist blows that led to the instantaneous reaction of stabbing and which reaction was held to be disproportionate to the said action of the deceased and his friend?
(2) Whether the learned trial Judge was right when he held that it has been established that the deceased had died, and when he died and the circumstances under which he died clearly point to the said act of stabbing of the deceased by the Accused/Appellant?
(3) Whether the learned trial Judge was right in convicting the Appellant for murder in the absence of any direct evidence from the PW1 and PW2, absence of any Medical Report to ascertain the cause of death as well as the absence of the corpse (body) of the deceased person?
(4) Whether the learned trial Judge was right when in convicting the Appellant for murder, he held that Exhibit ?E? was a confessional statement on how he allegedly murder of (sic) the deceased?
(5) Whether the learned trial Judge was right in convicting the Appellant for murder he found him guilty of the murder of the deceased and sentenced him to death by hanging by the neck until he be dead rather than the worst case scenario of finding him guilty of manslaughter having regard to the circumstances of the case?
(6) Whether the learned trial Judge was right in convicting the Appellant for murder when the prosecution failed to prove the charge against him beyond reasonable doubt as required by the law?
(7) Whether the learned trial Judge was right in convicting the Appellant for murder when the prosecution failed to disprove the Appellant?s plea or defence of self-defence and provocation?
(8) Whether the judgment of the trial Court finding the Appellant guilty of murder and sentencing him to death by hanging on the neck till he be dead is not perverse, unreasonable unwarranted and cannot be supported having regard to the evidence adduced before the Court?”
The Respondent did not file its Brief of Argument as prescribed by the Rules of this Court.
Under issue No. 1, it was contended by the Appellant’s learned Senior Counsel, K. C. Nwufo, S.A.N., that the trial Court was wrong when it held that the cause of death is very clear, that it was the act of the accused stabbing the deceased which resulted in his death, and the death almost being instantaneous, it required no medical evidence to establish that. The learned Senior Counsel then submitted that assuming but without conceding that Exhibit E, the alleged confessional statement of the Appellant, is correct, the highlight was that it was in the course of the deceased and his friend flogging the accused and giving him fist blows that the accused allegedly picked up a bottle that was at the scene and hit/stabbed the deceased in defence. It was during night time that the said flogging, fist blows and stabbing occurred. He stressed that the accused did not intend to stab let alone killing the deceased. There was no evidence of the time of his death after the alleged stabbing.
He referred to the remarks of the lower Court at pages 167-168 of the record and submitted that the Appellant did not intend to murder the deceased in the light of the circumstance where two persons over powered him by mercilessly flogging him with their belts and giving him several fist blows all over. He did not go looking for a bottle some where else but picked the one he saw at the scene. He argued that the death ensued in self-defence. It was pointed out that the Prosecution did not produce any eye witness in proof of the offence and that P.W.1 and P.W.2 who testified did not themselves witness the commission of the crime. He also argued that the said Exhibit E did not lend any assistance to the case of the Prosecution as it was shown therein that the deceased who had initially ran away from the scene suddenly returned and began dragging the bottle with the accused whereupon he sustained injuries and allegedly bled to his death.
It was argued that the Appellant’s story as allegedly contained in Exhibit E satisfied all the ingredients for a successful plea of self-defence and that the onus is on the Prosecution to disprove that and, not on the accused to establish that.
He relied on the cases of Umar vs. The State (2015)C.A.R. page 67 and Njoku vs. The State (1993) 7 SCNJ page 36, Umar Adamu vs. The State (2014) LPELR SC 191/2010; and Annabi vs. The State (2008) 13 NWLR Part 1103 page 179 at 201 paragraphs B-D, per Onoghen, J.S.C., (as he then was) that the omission of a lower Court to consider any defenses open to an accused can only be fatal to the decision of the Court if there are available evidence on the record and evidence of fact in support of the alleged defenses.
He argued that the Appellant was free from fault in bringing about the encounter/fight and that there was present an impending peril to his life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity. He referred to Iteshi Onwe vs. The State (1975) NSSC Vol. 9 page 375 at 386 where Sowemimo, J.S.C., observed that:
“If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes that he cannot otherwise preserve the person attacking from death or grievous harm, it is lawful for him to use any force to the assailant as it is necessary for defence though such force may cause death or grievous harm”.
On dispensing with the need for medical evidence, the learned Senior Counsel relied on the decision in Oforlete vs. State (2000) 12 NWLR Part 681 page 415 and submitted that medical evidence will only be dispensed with where there is ample evidence showing that the act of the accused caused the death of the deceased. He argued that in the instant case, there is an imperative need to ascertain the cause of death as none of the evidence adduced before lower Court stated the cause of death. He argued that the evidence of P.W.1 and P.W.2 was more of hearsay, they became involved in the matter after the demise of the deceased, therefore, any evidence of theirs alluding to how the deceased died, is nothing but hearsay.
He also referred to the decision in Eribo Emmanuel vs. The State (2015) 1 C.A.R page 74 at 103 paragraphs B-E, where a similar scenario existed and in which it was held that it behoves the Prosecution to adduce enough evidence to justify the need to dispense with medical evidence and thetrial Court erroneously found that there is no need for medical evidence because death came by violent act of the defendant and almost instantaneously. He further referred to Festa Nuforo vs. The State (2015) per Mbaba, J.C.A., and then urged this Court to resolve this issue in favour of the Appellant.
In respect of issue 2, it was submitted that for a confessional statement to sustain a conviction, there ought to be some other evidence outside the purported confession which would make it probable that the confession was true. He made reference to the case of Emma Nwaebonyi vs. State (1994) 8 NWLR Part 343 page 362, and the evidence of P.W.1 and P.W.2 where they respectively answered not knowing what actually killed the deceased person and not seeing the accused stab the deceased or hit him. He also referred to the evidence of P.W.2 that he was informed that someone had killed his nephew and the evidence of P.W.1 that the alleged confessional statement was not taken to any Superior Police Officer as required by the law.
He pointed out that the alleged confessional statement was recorded in English language by P.W.1 who is not Igbo and cannot speak Igbo language and he never interpreted the statement to the Appellant, a primary school drop out, in Igbo language before he signed. The learned Senior Counsel stressed that it was Miracle Onyedinachi who was last seen with the accused but the Prosecution woefully failed to produce him as a witness. He then invited this Court to invoke the provisions of Section 167(d) of the Evidence Act against the Prosecution.
He further referred to the case of Zubairu vs. State (2015) 16 NWLR Part 1486 page 504 at 521 per Ngwuta, J.S.C., in which it was highlighted that medical evidence if tendered would have established the identity of the person who died, the date of death, the cause of death which is a medical question and the manner of death to be determined from the nature and location of injuries on the body of the deceased or could have inflicted by another person or was self-inflicted. He then submitted that failure to tender the medical evidence is fatal to the case of the prosecution. In arguing issues 3, 4, 6, 7 and 8, the learned Senior Counsel reiterated his arguments marshalled under issue 2.
With respect to issue 5, he relied on Oforlete vs. State (2000) 12 NWLR Part 681 page 415 at 431, per Kalgo, J.S.C., and Achike, J.S.C., and then submitted that by virtue of Section 179 of the Criminal Procedure Law, the Court can substitute conviction for an offence lesser than the one on the Charge because the Prosecution has not proved a case of murder against the Appellant. He argued that the evidence before the Court at best, points to a case of manslaughter or causing bodily harm and not murder.
I have deeply perused the eight issues postulated by the Appellant and I believe they can conveniently be folded into two and be determined under two heads. In consequence thereof, issues 1, 2, 3, 4, 6, 7 and 8 will be considered together. The summation is whether the ingredients of the offence of murder were indeed established against the Appellant before the lower Court. It has been established that the essential ingredients that must be proved by the Prosecution to ground a conviction for murder are:
(a) that the deceased died;
(b) that the death of the deceased was caused by the accused; and
(c) that the accused intended to either kill or cause the victim/deceased grievous bodily harm.
It is also settled law that the above three elements/ingredients of the offence of murder must co-exist at the same time, otherwise the accused person is entitled to be acquitted of the offence so charged. Therefore, in a murder case, for the Prosecution to prove its case in certain cases, it must produce evidence that the victim of the offence not only died but also the cause of death and it was the act of accused person that caused that death. The cause of death is easily proved by evidence of witnesses who saw the very act that caused the death or in some cases of injuries to the victim, the medical evidence if available of the doctor who examined the corpse and proffers opinion as to the cause of death.
One Ubong Udoh, with Force No. 328307of Nigeria Police Force, Ndiegoro Division, the Investigating Police Officer, commenced his testimony in chief on the 20th May, 2013 as P.W.1 and narrated how one Pastor Chibueze Enoch approached their Station on the 20th May, 2011 and reported how one Udochukwu Ogbonna stabbed two people namelyMiracle Onyekachi and Chukwuebuka Onuoha.
While Miracle was rushed to Hospital, Chukwuebuka died. The following day, he arrested the Appellant at his No. 9 Nwosu Street, Umuogele residence, after which he proceeded to St. John Jesus Hospital where the corpse of the deceased was still left at the gate of the Hospital. He took a photograph of the deceased and then with the help of the Complainant, he took the body of the deceased to St. Anthony’s Hospital, Ngwa Road, Aba. Thereafter, the statements of the Complainant and the suspect were taken under caution. He also obtained statement from Miracle after his recovery and discharge from the Hospital.
He told the Court how the Appellant then confessed stabbing the deceased and Miracle. He tendered his Police Investigation Report as Exhibit A. As he was about tendering the statement of the accused person, the Defence Counsel raised an objection that the statement was not written by the accused person, that the Police wrote it and the accused merely signed it. When the Appellant was shown the statement for identification, he alleged he was coerced into signing the same, that the Police beat him to doing so. Immediately, the lower Court ordered that a trial within trial be held to determine the admissibility of such document.
However, P.W.1 continued with his testimony on that day and tendered the statements of Miracle Onyekachi dated 23/5/2011 and Chibueze Enoch dated 21/5/2011 as Exhibits B and C respectively.
The trial within trial eventually commenced effectively on the 31st March, 2014. The Court heard the evidence of P.W.1 who said he recorded the evidence of the accused on the 22nd May, 2011, and never tortured nor made any promise to the accused while recording his evidence, and that there was no person in the position with them as it was only the accused person and himself. The accused told him he finished primary school. He translated the document to him in English.
The accused testified and said that he stopped his education at primary five. He confirmed that P.W.1 was amongst those who arrested him on the 24th May, 2011. When he was asked by the Police to sign the statement he was wounded. He was hit with a baton on his mouth and he lost one of his teeth. The scar on his face was also caused by the Police. He alleged that the Police recorded the statement and it was not read over to him. The Police asked him to bring money so that he could be released.
During cross-examination he initially said he lived at No. 8 Nwogu, on Immaculate, but later said it is No. 8 Umuatako Street. The Court then observed that the last three questions put to the accused were answered by him without interpretation. He reiterated he did not make the statement and that the Police made the statement, then beat him up and asked him to sign. After the address of respective Counsel for the parties, the trial Court delivered its ruling on the 28th April, 2014 and however held that ‘the said statement does not become inadmissible in law merely because the accused person has denied making it’ the denial of a statement made by an accused person to the Police is not only on issue of fact to be decided in the judgment but an issue which does not affect the admissibility of the statement. The Court having found that the accused did not make the statement under duress but had stated emphatically that he did not make the statement at all, admitted the same as Exhibit E.”
P.W.1 continued with his evidence in chief in the main trial on the 17th November, 2014 and stated that the statement of Tony Nwala made on 25/5/2011 was made at the State CID.
He said he made a statement at the State CID dated the 24th May, 2011 which was tendered as Exhibit D. He also tendered photographs as ID1-ID5. The case at the State CID was investigated by Inspector Obeta. The investigating report that he claimed was made by Obeta was indeed prepared by one Micloth and which was later withdrawn by the Prosecution. During cross-examination he admitted he had not concluded the investigation of the matter before sending the file to the Police in Umuahia. He said it was not his duty to procure a Medical Report. He further said he was not there when the incident took place and did not see the accused stab the deceased. The time of 10pm he wrote in the report was when the matter was reported to him and not the time the incident happened. He said that because of his brief investigation of the matter, he would not have known what actually killed the deceased. There were no street lights where the incident happened. He further said that all he had said to the Court were relayed to him by ChibuezeEnoch.
One Tony Nwala, a shoe maker, testified as P.W.2. He said that the deceased was his nephew, the son of his sister.
He did not know the accused prior to the time he was informed that someone had killed his nephew. He then went to Ndiegoro Police Station where he saw the accused. What he narrated was post mortem as none related to anything that would have aided in determining the cause of death of the late Chukwuebuka Onuoha.
It is instructive to note that the said Chibueze Enoch who relayed or passed all the alleged information to P.W.1 did not testify at all and nor did Miracle, the second person allegedly stabbed by the Appellant. Only two witnesses gave evidence on behalf of the Prosecution. The Appellant then gave evidence saying that it is not true he told Tony Nwala that he killed Chukwuebuka Onuoha. He said that on the 23rd May, 2011, he was sent to Owerre-Aba Market by his mother, when he got to the boundary, he was arrested by the Police who were carrying out indiscriminate arrest of people at that point. He was then taken to the Police Station together with four other persons already arrested by the Police. When his parents came the following day to take him on bail, the Police demanded N50,000.00 from them. They told the Police they did not have such amount of money and then left.
The next day, the Police called him out and asked him to sign a document, when he asked why he should sign the document, the Police gave him a machete cut on his forehead and then his mouth with a baton and one of his teeth fell out. The Police did not read the contents of the document to him and he was not taken to anywhere too. Under cross-examination he said he was 19 years in 2011 and he has been living with his father since he was born at No. 8 Umuatako Street, Aba. He reiterated he did not make any statement, he was called out by P.W.1 and asked to sign the document. His mother’s name is Mary Sunday Ogbonna. His mother had three children for his father namely, Nweze, Atasie and himself. He denied having lived at No. 8 Nwogu Udemiri, Umuogele with his mother. He said he did not know the address. He stopped schooling at primary two. He did not know if his father made statement to the Police. He was not taken to the State CID. He denied being taken to the State CID and stabbing anyone. He also said he saw P.W.2 for the first time in Court. He only knew P.W.1, he accompanied him to the State CID. He said he did not say anything at the State CID.
He was taken to the Court on the same day he was taken to the State CID. Later he said he was kept at the counter, he slept there. He stated the Police did not tell him the name of the person they alleged he killed. He did not know the name of his father’s second wife, and she is dead. He denied making the statement shown to him at the State CID. The trial Court then marked ‘rejected’ the document the Prosecution Counsel had attempted to tender through the Appellant.
It is perhaps appropriate to note at this juncture that there was total lack of evidence of an eye witness. The evidence of P.W.1 and P.W.2 are nothing but hearsay. Neither witnessed the death or the alleged killing of Chukwuebuka Onuoha by the Appellant. None of the key witnesses of the alleged act i.e.Pastor Chibueze Enoch and Miracle was called by the Prosecution. There was no medical evidence establishing the cause of death. The only incriminating evidence against the Appellant before the trial Court was the supposed confessional statement of Appellant tendered as Exhibit E. As rightly contended by the Learned Senior Counsel, the contents would only go to establish absence of mens rea on the part of the Appellant to kill the said Chukwuebuka Onuoha.
His statement to the Police i.e. Exhibit E, was the only thing that pinned him down to the scene of the crime. The said statement showed that in the process of defending himself he picked the only object he found around and shook the deceased with it while struggling with him. It is the law that “it is always the gravity of the act/assault (say on vital part of the body) that could lead to conviction of either murder or manslaughter.
To establish a charge of murder it must not only be proved that the act of the accused/person could have caused or led to the death, but that it actually did. See Alao vs. The State (2015) LPELR-24686 (SC) per Muntaka-Coomassie, J.S.C. Also, Ogbuagu, J.S.C., in Udosen vs. State (2007) 4 NWLR Part 1023 page 125 opined that: “…Having regard to the ingredients in proof of a murder charge, if there is inconsistency in the prosecution’s case such as to cast doubt, in the guilt of the accused person, the accused is entitled to be given the benefit of the doubt, and he should be discharged and acquitted.
There was no direct evidence proving the three ingredients of the offence of murder, that is to say, (a) that the deceased died; (b) that the death of the deceased was caused by the accused; and (c) that the accused intended to either kill or cause the victim/deceased grievous bodily harm. There is no evidence before the Court below which proved that the death of the said Chukwuebuka Onuoha was caused by the direct act of the Appellant, that he died as result of the stabbing therefore, the Prosecution woefully failed to prove the charge of murder against the Appellant. It is only Exhibit E which the learned Senior Counsel for the Appellant had argued that pinned the Appellant to the scene of the crime but without proof of the offence of murder charged against him. Be that as it may, this Court is empowered under Section 179 of the Criminal Procedure Law to substitute the offence of murder for a lesser offence of manslaughter as prayed for by the Appellant’s Counsel. By the virtue of Section 15 of the Court of Appeal Act, 2004, this Court is endowed with the power to act as the lower Court would have. It is well established that an accused person can be convicted on his confessional statement alone.
The Appellant apparently acted in defence which the lower Court did not consider at all. Accordingly, this appeal is allowed. The conviction and sentence of the Appellant by the High Court of Abia State delivered on the 13th June, 2017 in Charge No. A/16C/2012 for murder are hereby set aside. In its place, the Appellant is convicted for manslaughter and he is hereby sentenced to life imprisonment.
ITA GEORGE MBABA, J.C.A.: I agree.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother Hon. Justice Theresa Ngolika Orji- Abadua, J.C.A. I completely agree with her reasoning and conclusions. I have nothing more to add. I adopt her Orders as mine.
Appearances:
E. R. Iremeka, Esq.For Appellant(s)
No Legal representation for the RespondentFor Respondent(s)
