MADUKA v. STATE
(2022)LCN/17058(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Friday, May 27, 2022
CA/AW/99C/2019
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
CHIJINDU MADUKA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON REPLY BRIEF
By Order 19(5) (1) of the Rules of Court, 2021, a reply brief shall deal or respond only to fresh or new points raised in the respondent’s brief. A careful perusal of this reply brief shows that it is not replying to any new issues so raised by the respondent’s brief. Rather it is a rehash of the arguments of the appellant. In the circumstances, the reply brief filed by the appellant is liable to be discountenanced for being offensive to the Rules of Court. As Tobi, JSC aptly stated it in the case of MOZIE & ORS V MBAMALU & ORS (2006) 15 NWLR, PT 1003, 466:
“In the absence of a new point, a reply brief is otiose and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief.”
See also MUSACONI LTD V ASPINALL (2013) 14 NWLR, PT 1375, 435 and AWUSA V NIGERIAN ARMY (2018) LPELR–44377 (SC).
Consequently, the reply brief is hereby discountenanced for being otiose. PER MAHMOUD, J..C.A.
THE INGREDIENTS OF THE OFFENCE OF MURDER
Ordinarily therefore the Court should simply go ahead and resolve the issues one way or the other to determine the appeal. I have however taken a long and sober look at the three issues as well as the arguments in support of the issues as contained in the respective briefs of the parties. There is no doubt therefrom that both parties are in agreement that for the prosecution to succeed in proving that the appellant murdered the deceased, the law places a burden on them to prove the three ingredients of the offence. These are:
1. That the death of human being has actually taken place;
2. That such death has been caused by the accused and
3. That the act was done with the intention of causing death;
Or that it was done with the intention of causing bodily injury as (i) the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act; or (ii) that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause. PER MAHMOUD, J..C.A.
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellant, Chijindu Maduka was charged and tried with one Chidozie Agunwa for the offence of Murder contrary to Section 274 (1) of the Criminal Code, Cap 36, Revised Laws of Anambra State, 1991. The case of the Prosecution at the trial Court was that during the 2016 end of year Masquerade Festival of Agulu Community in December 2016, the 2nd accused, Chidozie Agunwa was the Masquerade while the 1st accused/appellant was his guide. In the course of the festival, the deceased; one Kenechukwu Nwokolo was allegedly flogged by the masquerade. In reaction, he held unto the masquerade. In the ensuring fight and while the appellant was trying to separate the fight he was alleged to have hit the deceased with a fist blow on the face and the deceased fell down on the tarred road and hit his head. He died two days later on the 28th December, 2016.
In proof of its case the prosecution called five witnesses and tendered four exhibits marked as Exhibits A – D. On his part, the appellant testified in his own defence and called no other witness. At the close of evidence, both parties adopted their written addresses in support of their distinct positions. In a considered judgment delivered on the 1st July, 2019, his Lordship, Hon. Justice S. N. Odili of the Anambra State High Court sitting at Awka convicted and sentenced the appellant to death by hanging but discharged and acquitted him on the charge of conspiracy to commit murder. The Court also discharged the 2nd accused on both heads of charge.
It is the said conviction and sentence that triggered this appeal filed by the appellant on the 3rd September, 2019 containing three grounds and their particulars as follows:
“GROUND ONE: ERROR IN LAW
The learned trial Court erred in law when it convicted the appellant on the charge of murder notwithstanding that all the essential ingredients of the offence of murder were not proved.
PARTICULARS OF ERROR
1. The offence of murder, like every other criminal charge, must be proved by establishing the actus reus and the mens rea of the offence as charged beyond reasonable doubt.
2. There was no evidence or inference at the trial that the appellant intended to cause the death of the deceased – which is the required mental element of the offence as charged.
3. In the absence of the mens rea of the offence being established beyond reasonable doubt, the learned trial Court erred in law, therefore, in convicting the appellant of the offence of murder.
GROUND TWO: Error in law
The learned trial Court erred in law when it relied on Exhibits A and C at the trial as confessional statement in convicting the appellant of the charge of murder.
PARTICULARS OF ERROR
1. Criminal charges are established by eye witness evidence, circumstantial evidence and/or confessional statement of the accused
2. For a confessional statement to ground conviction, it must be direct, positive and unequivocal as to the admission of guilt by the defendant.
3. The appellant did not in the Exhibits A and C at the trial directly and/or positively admit causing the death of the deceased and the said documents are not unequivocal and positive as to the admission of guilt by the defendant/appellant.
4. The learned trial Judge therefore erred in law by relying on Exhibits A and C as confessional statements in convicting the appellant.
GROUND THREE: Error in law.
The learned trial Court did not properly evaluate the evidence before it arrived at its decision where it held that “there is no doubt that it was the 1st defendant’s act of hitting the deceased with stick that gave him the deep cut in the occiput which caused him severe injury which led to his death” and which holding whereby led to miscarriage of justice in the circumstances.
PARTICULARS OF ERROR
1. There was medical evidence before the trial Court that the cause of death was a deep cut on the deceased’s occiput.
2. The prosecution did not lead or show any evidence that the appellant hit the Deceased on his occiput.
3. There was no evidence before the trial Court that the appellant had any contact with the deceased’s occiput at all.
4. The learned trial Judge did not properly evaluate the evidence before it when it arrived at the decision that it “was the 1st defendant’s act of hitting the deceased with stick that gave him the deep cut in the occiput which caused him severe injury which led to his death” and which holding thereby led to miscarriage of justice.
The appellant’s brief of argument was settled by MR. Uche Igwe on the 21st November, 2019. From the said grounds of appeal, the appellant formulated three issues thus:
1. Whether the learned trial Court was right when it convicted the appellant of the offence of murder when all the essential ingredients of the offence was (sic) not established by the prosecution. (Distilled from Ground 1)
2. Whether the learned trial Court properly evaluated the evidence before it in arriving at its decision that “there is no doubt that it was the 1st defendant’s act of hitting the deceased with stick that gave him the deep cut in the occiput which caused him severe injury which led to his death” (Distilled from Ground 3)
3. Whether the Exhibits A and C tendered at the trial amounted to a confessional statement positive enough to ground the conviction of the appellant (Distilled from ground 2)
The Respondent on the other hand had its brief settled by the then Hon A. G, DR O. Nwogu on the 19th March, 2021. Same was deemed properly filed and served on the 2nd March, 2022. Rather than stating unequivocally that it adopts the three issues formulated by the appellant, the respondent in purporting to submit three issues for determination merely repeated verbatim the appellant’s three issues.
Upon receipt of the respondent’s brief, the appellant on the 23rd November, 2021 filed a reply brief. Same was consequentially deemed as properly filed and served on the 2nd March, 2022. I have read this reply brief very carefully and I am unable to fathom what the new issues are as raised by the respondent that the appellant is responding to. By Order 19(5) (1) of the Rules of Court, 2021, a reply brief shall deal or respond only to fresh or new points raised in the respondent’s brief. A careful perusal of this reply brief shows that it is not replying to any new issues so raised by the respondent’s brief. Rather it is a rehash of the arguments of the appellant. In the circumstances, the reply brief filed by the appellant is liable to be discountenanced for being offensive to the Rules of Court. As Tobi, JSC aptly stated it in the case of MOZIE & ORS V MBAMALU & ORS (2006) 15 NWLR, PT 1003, 466:
“In the absence of a new point, a reply brief is otiose and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief.”
See also MUSACONI LTD V ASPINALL (2013) 14 NWLR, PT 1375, 435 and AWUSA V NIGERIAN ARMY (2018) LPELR–44377 (SC).
Consequently, the reply brief is hereby discountenanced for being otiose.
The three issues raised by both parties are the same. Ordinarily therefore the Court should simply go ahead and resolve the issues one way or the other to determine the appeal. I have however taken a long and sober look at the three issues as well as the arguments in support of the issues as contained in the respective briefs of the parties. There is no doubt therefrom that both parties are in agreement that for the prosecution to succeed in proving that the appellant murdered the deceased, the law places a burden on them to prove the three ingredients of the offence. These are:
1. That the death of human being has actually taken place;
2. That such death has been caused by the accused and
3. That the act was done with the intention of causing death;
Or that it was done with the intention of causing bodily injury as (i) the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act; or (ii) that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.
In other words, what is more commonly and legally known as mens rea, motive or malice afterthought is a necessary ingredient in homicide cases which distinguishes murder from manslaughter.
There is no dispute between the parties that the death of a human being has occurred and it was caused by an act of the appellant. The only bone of contention is whether the act was done with the intention of causing death. The sole issue for determination in this appeal in my view is ‘whether the prosecution proved beyond reasonable that the appellant knew that death would be the probable and not only a likely consequence of his act’. This issue is very important because it is only its proof that will determine whether the trial Judge was justified in returning a verdict of murder instead of manslaughter. In supporting the conviction, the respondent argued that the prosecution proved beyond reasonable doubt that the appellant intended by his act to cause the death of the deceased. It is an elementary proposition of the law that a person is presumed to intend the natural consequences of his act: SHAZALI V STATE (1988) 5 NWLR, PT 93, 164 and UKPONG V STATE (2019) LPELR–46427 (SC).
The consequence of an act may be said to be probable if a reasonable man would consider its occurrence to be the natural and normal effect of the act. See YAKUBU V STATE (1980) 3–4 SC 84 AT 98 and AFOLABI V STATE (2016) LPELR–40300 (SC).
The contention of the prosecution/respondent was that the appellant hit the deceased with a big stick and the deceased fell down and became unconscious. In trying to prove that the appellant intended the natural consequences of his act, the respondent referred and relied on a number of cases. The first case as cited by the respondent is the case of AKINYEDE OLAIYA V STATE (2014) LPELR 22707 (CA). In that case, the reason why this Court found that the accused/appellant intended to kill the deceased was because he was firing gunshots into a crowd of people in broad daylight. This case is clearly not comparable to the instant case. In the instant case, it is not conclusive whether the appellant hit the deceased with his fist or with a big stick. The fact that there was no premeditation or intention to kill the deceased by the appellant was confirmed by the trial Judge himself in his finding at page 164 of the record thus: “The incident leading to the death of the deceased occurred during a fight. It was contemporaneous. It was neither premeditated nor pre-arranged, hence there is no evidence or surrounding facts can be inferred or deduced.”
Though this finding was made to exculpate the appellant and his co-accused from the charge of conspiracy in the lower Court, it does show the lack of intent to kill by the appellant. The fact that there was a fight is confirmed by the confessional statements of the appellant, especially Exhibit C where he stated that he saw people fighting masquerade and he went to separate them and in the process he joined in the fight. In a situation where there is a fight which was not premeditated but sudden like in the instant case, it is difficult to ascribe motive and intention to kill or cause grave bodily injury.
Was death a probable consequence of the appellant’s act? The Apex Court in answering this poser in the case of ABDULLAHI UMAR V STATE (2014) LPELR–23190 (SC) held that whether death is a likely or a probable consequence of a person’s act is a question of degree. This would largely depend on the weapon used, the part of the body struck as well as the amount of force used. In the instant case, there was no specific finding of the trial Court as to whether the appellant used a stick or his fist to hit the deceased. Did the deceased fall as a result of the hitting or was he pushed by the fighting crowd? Furthermore, there was no medical or expert evidence to support the finding of the trial Court at page 168 of the record that it was the 1st defendant’s act of hitting the deceased with stick that gave him the deep cut in the occiput which caused him severe injury which led to his death. PW5 was the medical doctor who performed the post mortem examination on the deceased. His evidence in chief is contained at page 132 of the record and it is very terse. I reproduce same thus:
“On 9th January, 2017, I was called to perform a post mortem on the body of the said person. During the process, I noticed that there was a deep cut to the occiput. Considering the location of the injury, the cause of death was concluded to be severe heavy injury.”
There was no question put to the doctor as to whether a hit on the head with a stick or falling down on a tarred road could cause a deep cut to the occiput. The occiput is defined in the Oxford dictionary simply as “the back of the head.” Was there a nail on the stick allegedly used by the appellant? Did the deceased fall on a sharp object on the road to cause the deep cut? There are gaps in the evidence of the prosecution as to how a single hit to the head can cause a deep cut to the back of the head. The conclusion of the trial Judge that it was the hitting of the deceased by the appellant with a stick that gave him the deep cut is perverse and it is discountenanced. Furthermore, the cause of death as stated by medical evidence does not in my view connect with the act of the appellant in a way that makes death a probable consequence of the appellant’s act. Be that as it may, the act of the appellant was the proximate cause of death of the deceased but it was not intentional or premeditated. In the case of EJEKA V STATE (2003) 7 NWLR, PT 819, 408, the Apex Court held that a person who unintentionally and with premeditation kills another is guilty of or commits manslaughter. By Section 317 of the Criminal Code, a person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter; FAMAKINWA V STATE (2016) 11 NWLR, PT 1524, 538. The appellant from the evidence on record was assaulting the deceased with a stick or his fist when the deceased fell down and allegedly hit his head on the tarred road and died subsequently. This action of the appellant that resulted in the death of the deceased was not premeditated to cause his death. It cannot therefore constitute murder. In murder cases, the Court is required to consider under Section 316 of the Criminal Code whether or not the accused intended to kill or cause grievous bodily harm. When these ingredients are not proved like in the instant case, the Court should consider the verdict of manslaughter. Having already found in this judgment that the appellant did not intend to kill the deceased or put differently the prosecution having failed to prove that the killing of the deceased by the appellant was premeditated, the Court ought to have properly returned a verdict of manslaughter against him. In the circumstances, this appeal succeeds in part. I hereby quash the appellant’s conviction for murder and substitute same with a conviction for manslaughter.
In passing sentence, I must take cognizance of the actions of these masquerades and their guides which have become notorious facts. Most times they harass innocent citizens who should enjoy the festivities associated with the masquerade ceremony. Their highhandedness requires a sentence that will act as a deterrent. This may guarantee that going forward these masquerade festivities will become an entertaining cultural activity and not the terror events that they have become. These masquerades and their guides often beat spectators blue and black. These excesses need to be checked. Accordingly, the appellant is hereby sentenced to 15 years imprisonment. The sentence is to take effect from the 1st July, 2019 when the trial Judge convicted and sentenced the appellant for the offence of murder.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had the advantage of reading in draft, the leading judgment of my learned brother, P. A. MAHMOUD, JCA. I agree with it and for the reasons given I too agree that the appeal succeeds in part. I also quash the appellant’s conviction for murder and substitute same with a conviction for manslaughter and sentence the appellant to 15 years imprisonment with effect to the 1st day July, 2019 when the learned trial Judge convicted the Appellant.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA and I am in agreement with the reasoning and conclusions reached in allowing the appeal in part by commuting the offence of murder to manslaughter. I therefore abide by the consequential orders made thereto.
Appearances:
MR. UCHE IGWE, with him, MRS. N. C. DOM-ATTAH For Appellant(s)
DR. OBIANUJU NWOGU, HON. AG, Anambra State Ministry of Justice, with him, MR. FRANK AKUNEKWE, SSC For Respondent(s)