MBANEFO v. STATE
(2020)LCN/14260(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, June 11, 2020
CA/AW/62C/2019
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
AFAMEFUNA MBANEFO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE ESSENCE OF AN INTERPRETER
By the Provisions of Section 17 of the Administration of Criminal Justice Act 2015, – In Subsection 3; it deals with situation where if a suspect does not understand or speak or write in the English language, an interpreter shall record and read over the statement to the suspect to his understanding, and the suspect shall then endorse the statement, as having been made by him, and the interpreter shall attest to the making of the Statement.
In Sub-section 4, it stipulates that the interpreter shall endorse his name, address, occupation, designation or other particulars on the Statement. The suspect referred to in Subsection (1) of Section 17 of the Act, shall also endorse the Statement with his full particulars. (Subsection 5). PER PEMU, J.C.A.
WHETHER OR NOT A ACCUSED PERSON CAN BE CONVICTED BASED ON HIS CONFESSION ALONE
It is trite that an accused person can be convicted based on his confession alone. However, in such situation, there is the need to test the truth of the confession in the light of other credible evidence before the Court. The test was amply enunciated in R V SKYES (1913)8 CAR Page 233, which may include the following:
1. WHETHER THERE IS ANYTHING OUTSIDE THE CONFESSION TO SHOW THAT IT IS TRUE.
2. WHETHER IT IS CORROBORATED.
3. WHETHER THE STATEMENT MADE IN IT ARE IN FACT TRUE AS FAR AS THEY CAN BE TESTED.
4. WHETHER THE ACCUSED HAD THE OPPORTUNITY OF COMMITTING THE CRIME.
5. WHETHER THE CONFESSION IS POSSIBLE.
6. WHETHER IT IS CONSISTENT WITH OTHER FACTS WHICH HAVE BEEN ASCERTAINED AND WHICH HAVE BEEN PROVED –
OWYEN EYE V THE STATE (2012) 15 NWLR (PART 1324) 586 @ 619. ALARAPE V THE STATE (2001) 5 NWLR (Pt 705); DAWA & ANOR V THE STATE (1980) 8 – 11 SC. 236 Pg 267. PER PEMU, J.C.A.
WHETHER OR NOT A RETRACTED OR DENIED CONFESSIONAL STATEMENT AFFECTS ITS ADMISSIBILITY
For purposes of elucidation, a retraction or denial of a confessional Statement does not affect its admissibility – MBANG V STATE (2013) 7 NWLR (Pt 1352) 48.72.
Thus where an accused person retracts his confessional Statement, the trial Court can admit it, but should determine the weight to be attached to it in its judgment. The Court in such a circumstance would consider issues such as the following: –
(a) WHETHER THERE IS ANYTHING OUTSIDE THE CONFESSION WHICH MAY VINDICATE ITS VERACITY.
(b) WHETHER IT IS CORROBORATED IN ANY WAY.
(c) WHETHER ITS CONTENTS, IF TESTIFIED, COULD BE TRUE.
(d) WHETHER THE DEFENDANT HAD THE OPPORTUNITY OF COMMITTING THE ALLEGED OFFENCE.
(e) WHETHER THE CONFESSION IS POSSIBLE AND THE CONSISTENCY OF THE SAID CONFESSION WITH OTHER FACTS THAT HAVE BEEN ESTABLISHED.
OSETOLA & ANOR V THE STATE (2012) LPELR – 9348 (SC) 32-33 G-D; AKPAN V THE STATE (2001) 11.SC M66 OFORDIKE V STATE (2019) 5 NWLR. Part 1666, Pg 395 @ 426. PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court Onitsha in charge No. 0/2c/2015, delivered on the 8th of February, 2018.
The Appellant was found guilty of murder and was convicted and sentenced to death by hanging.
Regrettably, the Appellant’s Counsel did not deem it necessary to give a synopsis of the facts of this case in his Brief of Argument.
The only facts that the Respondent proffered is that the Appellant murdered his wife Nwabugo Obi at a farm in Akili Ogidi Village, Ogbaru, by hitting her on the head with a stone on the 20th of August, 2014.
The Appellant is dissatisfied with the judgment and has appealed it.
Pursuant to the Practice Directions of this Honourable Court, the Appellant filed a Notice of Appeal on the 8th of February 2018 encapsulating five (5) Grounds of Appeal – Pages 179 – 205 of the Record of Appeal.
Let me quickly say by way of observation that the manner in which the Grounds of Appeal were couched is very inelegant. Grounds of Appeal should be couched and presented according to the Rules
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of Court. Grounds of Appeal should not portray the nature of arguments in a brief, or argumentative.
It seems to me that the Appellant must have incorporated his argument in his brief of argument in his Notice and Grounds of Appeal.
A Ground of Appeal, according to the Court of Appeal Rules, is the sum total of the reasons why decision appealed against is considered wrong by the aggrieved party – METAL CONSTRUCTION W. A. LTD V MIGLIORE IN RE OGUNDARE (1990)1 NWLR (Pt 126) 229.
The Courts frown at Grounds of Appeal and their particulars, which are couched in such a manner that is merely argumentative.
SYNOPSIS OF FACTS AS PUT FORTH BY THE RESPONDENT
The Appellant who had intention to marry a new wife was allegedly dissuaded by the deceased over time from marrying the woman. The Appellant became frustrated as a result and he killed the deceased in the farm by hitting her on her head with a big stone. Thereafter, he took her body home and laid her on the bed, and ran away. He was consequently arrested and charged to Court.
The Appellant pleaded not guilty to the charge. The Respondent called three witnesses, PW1, PW2
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and PW3, respectively while the Appellant testified and called no witnesses.
The Respondent tendered Exhibits “A” and “B” which are the Extrajudicial statements allegedly made by the Appellant and his retraction of same respectively. At the conclusion of the trial, the Court below found the Appellant guilty of murder and convicted him by sentencing him to death by hanging – Pages 177 – 178 of the Record of Appeal. The Appellant filed his brief of argument on the 11th day of September 2011. J. O. Onwujekwe.
The Respondent filed his brief of argument on the 15th of October, 2019. It is settled by C. V. Ononye – Ekwerekwu (Mrs) Principal State Counsel, Ministry of Justice Onitsha.
The Appellant distilled (4) four issues for determination in his brief of argument viz:
1. WHETHER THE APPELLANT’S PURPORTED CONFESSIONAL STATEMENT EXHIBIT “F” WAS CORROBORATED AND CONSISTENT WITH THE OTHER EVIDENCE PRESENTED BY THE RESPONDENT IN PROOF OF THE OFFENCE AS CHARGED IN INFORMATION NO. 0/2C/2015 (GROUND 1).
2. WHETHER THE EVIDENCE ADDUCED AT THE LOWER COURT ESTABLISHED THE GUILT OF THE
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APPELLANT BEYOND REASONABLE DOUBT AND AS REQUIRED BY THE LAW (GROUNDS 2 AND 3).
3. WHETHER THE LOWER COURT WAS NOT WRONG IN HOLDING THAT 20/8/2014 BEING THE DATE ON EXHIBIT “F” THE ALLEGED CONFESSIONAL AND STATEMENT WAS MADE, WAS SUFFICIENT AND TOOK CARE OF THE ERROR IN 19/8/2014 AS THE DATE OF THE ALLEGED OFFENCE OF MURDER CONTRARY TO THE SUPREME COURT DECISION IN F.R.N VS BARMINAS (2017) 15 N.W.L.R. (PT. 1588) 181 – 192 (GROUND 4).
4. WHETHER THE LOWER COURT WAS RIGHT IN HOLDING THAT THE APPELLANT DID NOT ESTABLISH THE DEFENCE OF PROVOCATION EXCULPATE HIM FROM THE OFFENCE AS CHARGED (GROUND 5).
The Respondent proffered only one issue for determination from the Grounds of Appeal.
It is “DID THE PROSECUTION PROVE THE CHARGES AGAINST THE DEFENDANT BEYOND REASONABLE DOUBT”?
On the 24th day of March 2020, Counsel for the respective parties adopted their briefs of argument. It is apparent that the Respondent has adopted the issues proffered by the Appellant.
I shall consider this appeal based on the Appellant’s brief of argument.
ISSUE NO. 1
The Appellant submits that the Court
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below was wrong to have relied on Exhibit “F” in deciding that the prosecution proved its case beyond reasonable doubt.
Exhibit “F” is the alleged Confessional Statement which the Court below heavily relied on in convicting and sentencing the Appellant, without other corroborating factors/evidence as required by law.
He submits that the establishment of duress, oppression or coercion to make a confessional Statement is a finding of facts for the determination of the trial Court, who has the primary duty of resolving findings of facts as well as ascribing probative value to evidence. That the Appellate Court has no right to interfere with those facts or disturb them, except under exceptional circumstances – EGBE V ADEFARASIN (1987) 1 S.C. 1; EZE IBEH Vs STATE (1997) 1 SCNJ 256 – 27.
Submits that the corroborative evidence needed to convict an accused person must be evidence which confirms in some material that it was the accused person who committed the offence – ADISA V STATE (2019) 3 N.W.L.R. (Pt 1660) 491.
Submits that this is not the case here, because the accused person asserted that he did
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not know what was in Exhibit “F”. That it was the Police who recorded Exhibit “F” and called an interpreter to interpret same from English language to Igbo language.
The said interpreter and the recorder were however not called to testify at the trial. He submits that on the issue of admissibility of the statement of an illiterate accused person, the extra-judicial statement is recorded by another person, and interpreted to him by another person. Both the recorder and interpreter must be called to testify as witnesses, in respect of the extra judicial statement. Otherwise it will be inadmissible as a documentary hearsay.
He submits that the judicial trend is that Courts now ensure that other available evidence must establish the facts that the accused person indeed committed the crime. – OJO V STATE (2018) 15 NWLR (Pt 1643) 534; F.R.N. Vs IWEKA (2013) 3 NWLR (Pt 1341)285.
The Appellant has in essence reinstated principles of law and had not drawn this Courts attention to the principles of law that applies to the case at hand. He left this Court to fish. Indeed, the full facts of this case is not discernible from
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the Appellant’s brief of argument.
RESOLUTION OF ISSUE NO. 1
The Accused person is an illiterate and what comes to focus in this issue is the authenticity of the alleged confessional Statement – Exhibit “F” and whether there was any evidence which corroborates same. Moreso, whether there exists other evidence presented by the prosecution in proof of the offence.
By the Provisions of Section 17 of the Administration of Criminal Justice Act 2015, – In Subsection 3; it deals with situation where if a suspect does not understand or speak or write in the English language, an interpreter shall record and read over the statement to the suspect to his understanding, and the suspect shall then endorse the statement, as having been made by him, and the interpreter shall attest to the making of the Statement.
In Sub-section 4, it stipulates that the interpreter shall endorse his name, address, occupation, designation or other particulars on the Statement. The suspect referred to in Subsection (1) of Section 17 of the Act, shall also endorse the Statement with his full particulars. (Subsection 5).
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A cursory look at Exhibit “F” shows that there was no cautionary word in it; it was not recorded in the language in which it was made nor interpreted. There is tampering with the date on which it was made.
There is no jurat.
At the trial, the Appellant testified in Igbo language, that the Police put his hand to his Statement after hitting him on the head – Pages 144, 145, 146, and 147 of the Record of Appeal.
The Court below in its judgment referred to two statements. But only one was tendered – Exhibit “F”. The Court did not indicate in the proceedings that the Ibo language in which the Appellant testified was interpreted.
It is trite that an accused person can be convicted based on his confession alone. However, in such situation, there is the need to test the truth of the confession in the light of other credible evidence before the Court. The test was amply enunciated in R V SKYES (1913)8 CAR Page 233, which may include the following:
1. WHETHER THERE IS ANYTHING OUTSIDE THE CONFESSION TO SHOW THAT IT IS TRUE.
2. WHETHER IT IS CORROBORATED.
3. WHETHER THE STATEMENT MADE IN IT ARE IN FACT TRUE
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AS FAR AS THEY CAN BE TESTED.
4. WHETHER THE ACCUSED HAD THE OPPORTUNITY OF COMMITTING THE CRIME.
5. WHETHER THE CONFESSION IS POSSIBLE.
6. WHETHER IT IS CONSISTENT WITH OTHER FACTS WHICH HAVE BEEN ASCERTAINED AND WHICH HAVE BEEN PROVED –
OWYEN EYE V THE STATE (2012) 15 NWLR (PART 1324) 586 @ 619. ALARAPE V THE STATE (2001) 5 NWLR (Pt 705); DAWA & ANOR V THE STATE (1980) 8 – 11 SC. 236 Pg 267.
The Court below found the Appellant guilty based on his confessional Statement Exhibit P4.
The I.P.O who investigated the matter did say that he went to the scene of crime. He did not say when and whether he did recover the object used to hit the deceased head, or anything for that matter.
Exhibit E, the Medical Report is not legible. How may I ask did the Court below know the cause of death as alleged on Exhibit E?
In the present case, I find that the Statement of the Appellant was not recorded in the language in which it was made, nor interpreted. And the law is elementary that where that is the evidence available, the Court should be wary to rely on it. This does not affect the admissibility of the
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alleged confessional Statement, but the weight to be attached to it. KOLAWOLE V STATE (2015) LPELR 24400 S.C.
The Chairman of the vigilante who allegedly arrested the Appellant and followed him to the Police Station was not called to testify as to how he came about to arrest the Appellant and why. His testimony would have corroborated the Statement of PW1 and PW3.
For purposes of elucidation, a retraction or denial of a confessional Statement does not affect its admissibility – MBANG V STATE (2013) 7 NWLR (Pt 1352) 48.72.
Thus where an accused person retracts his confessional Statement, the trial Court can admit it, but should determine the weight to be attached to it in its judgment. The Court in such a circumstance would consider issues such as the following: –
(a) WHETHER THERE IS ANYTHING OUTSIDE THE CONFESSION WHICH MAY VINDICATE ITS VERACITY.
(b) WHETHER IT IS CORROBORATED IN ANY WAY.
(c) WHETHER ITS CONTENTS, IF TESTIFIED, COULD BE TRUE.
(d) WHETHER THE DEFENDANT HAD THE OPPORTUNITY OF COMMITTING THE ALLEGED OFFENCE.
(e) WHETHER THE CONFESSION IS POSSIBLE AND THE CONSISTENCY OF THE SAID CONFESSION
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WITH OTHER FACTS THAT HAVE BEEN ESTABLISHED.
OSETOLA & ANOR V THE STATE (2012) LPELR – 9348 (SC) 32-33 G-D; AKPAN V THE STATE (2001) 11.SC M66 OFORDIKE V STATE (2019) 5 NWLR. Part 1666, Pg 395 @ 426.
I shall view Exhibit “F” in the light of these aforementioned issues (factors).
Criminals commit heinous crimes and often times their activities are shrouded in secrecy, and this makes the prosecution to face difficulties in fielding eyewitnesses to the crime.
A trial Court can convict an accused person merely on his Confessional Statement, and only if that confession is direct and positive.
This is because the confessional statement of an accused person obviates the need and the stress of further investigation into a crime – STATE V SA’IDU (2019) 10. N.W.L.R (Pt – 1680) 308 @ 314.
After a painstaking perusal of the confessional Statement Exhibit “F”, it is my view that the confession was not taken down in Igbo language which the Appellant understands. There is nothing on the face of Exhibit “F” to show that the content was interpreted to the Appellant.
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PW1, Nnamdi Obi is a son to the deceased. He testified on the 31st of January 2017. He was not an eyewitness to the murder. He did say that the Appellant told him that it was the devil that made him kill his mother. That the deceased before the incident had left his father’s house (ie. the Appellant) and gone to her sister’s house.
PW2, Nkiruka Obasi corroborated PW1’s testimony to the extent that the deceased came to her house. That the Appellant came to PW2’s house to call the deceased to accompany him to the farm to harvest the cassava. She went with him.
She did say that the Appellant later came to ask her about the whereabouts of her sister. She was later informed by the Police that the deceased had died in the farm. She ran to the farm and found her mother dead.
In the alleged confessional Statement made on the 20th August 2013, the Appellant stated that while he was in the farm with the deceased there arose misunderstanding. He hit the deceased with a stone on her head. He carried her to his house.
Interestingly PW1 and PW2 are related to the deceased and not children to the Appellant.
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They definitely had an interest to protect and can be regarded as “tainted witnesses” The alleged confession says that the Appellant carried the corpse of the deceased to his house, but PW2 said that she ran to the farm on the day of the incident and found the body of the deceased in the farm.
In his judgment, the learned trial judge said that Exhibit “F” is unchallenged. But the Appellant said he did not make it.
The Statements of the witnesses is fraught with lack of “dates” and “time” when situations arose. Even the statement of the I.P.O. There is in my view nothing outside the alleged confession which indicates the veracity of Exhibit “F”. The I.P.O did not even say whether he recovered anything at the scene of crime. He did say that he visited the scene of crime, but did not state when. Neither was any stone allegedly used to hit the deceased which caused her death recovered or tendered. As dead on arrival as Exhibit “F” is, (not having been taken in the language which the Appellant understands) and there having been no evidence of the fact that the statement was interpreted
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in Igbo language there is lack of credible evidence to support the alleged confessional statement. Indeed, the investigation carried out by the Police was shoddy.
You cannot corroborate a statement that is void ab initio.
You cannot test the truth of a statement that lacks form and substance ab initio.
Looking at the scenario, one would ask how, after the alleged murder, the Appellant was able to carry the deceased body to the house. But PW2 said she ran to the farm when told that the deceased had been killed, and she saw the body there on the farm. I am at a loss as to what point in time the body was carried to the Appellant’s house.
The Appellant did say that he never made a confessional statement. That the Police hit him on the head and forced him to thumbprint the statement which they had made – Exhibit “F”.
The fact that Exhibit “F” was not taken down in the language in which the Appellant understands, vitiates Exhibit “F”. That shows that Exhibit “F” is questionable. The issue of its consistency therefore does not arise. You cannot put something on nothing. Both
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would collapse – MACFOY V UAC. (1961)3 ALL ER 1169.
This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO 2
The Appellant submits that the evidence of PW1, PW2 and PW3 were contradictory. That PW1 gave evidence that the deceased was hit with a knife on his head. PW2 said that she died as a result of chemical. That PW3 issued a medical report where it was mentioned that the deceased was hit with a big stone.
The Appellant submits that these contradictions were fatal to the prosecution’s case – OKON V STATE (1987) NSCC 291 @ 302; ONUBOGU Vs STATE (1974) 9 S.C. 1.
RESOLUTION OF ISSUE NO. 2
PW1’s story is that when he heard that his mother had died, he went to the Appellant’s home and saw her mother’s body on the bed, with chemical kept by her side which they said she took. He said that his mother cannot take such chemical used for grass. That by then the Appellant’s brother had procured a coffin to be used to bring the deceased and he rejected it. He ran to the Chairman of their village vigilante and asked him whether he knew of what was happening.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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He told him that he had heard of it and had called the D.P.O in their local government in Atem. He followed the Chairman of the vigilante to the Police Station. On getting there he saw the vigilante boys with the Appellant. In the presence of them that the Appellant pleaded with him that it was the devil that made him kill the deceased because she deprived him from marrying another woman.
Curiously enough, however, none of the vigilante boys was called to corroborate this piece of evidence.
PW1 did testify that the Divisional Police Officer gave him two Policemen to go to the village where they collected the corpse of his mother from the Appellant’s house and they took her corpse to the mortuary. That when the mortuary attendant removed the net on the deceased head, it turned out that she was matcheted on her head, he identified the corpse to the doctor. No one corroborated this piece of evidence.
Noteworthy is that PW1’s statement to the Police was dated 20th August 2014, and he said he was informed of his mother’s death on the 19th of August 2014 (Page 12 of the Record of Appeal). Specifically, he testified thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“On the 19th of August 2014, Obinna Oky my cousin called me on phone and told me that my mother had died” – Page 125 of the Record of Appeal
Answering questions put to him in Cross-examination he said that he made statements to the Police on 21/8/2014 and 26/8/2014 – Page 127 of the Record of Appeal.
He also said that the deceased died on the 19th of August 2014. When asked if he suspected that the Appellant killed the deceased, he replied in the affirmative – Pages 128 of the Record of Appeal.
Exhibits A & B are purportedly the statements of PW1 which are not reflected in the Record of Appeal. Neither were they brought in by way of additional Record.
PW 2 – Nkiruka Obano is another child to the deceased. The Appellant is her stepfather. She testified how that on the 19th of August 2014, the Appellant told the deceased that he wants to marry and her mother did not restrain him. The deceased then came to live with her. The Appellant came and told her mother to accompany him to the farm to share their cassava. That the Appellant thereafter came to her to ask after her mother.
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That her brother’s wife later came to tell her that her mother is dead in the farm. She ran to the place and saw that her mother had died. She found that chemical was poured in her mouth. She however, did not see the Appellant pour chemical in the mouth of the deceased.
I find that her statement to the Police was recorded on the 20th of August 2014 – Page 14-15 of the Record of Appeal. The statement is not legible.
A cursory look at the information states thus:
“STATEMENT OF OFFENCE
Murder contrary to Section 274 of the Criminal Code Cap. 36 Vol. II, Revised Laws of Anambra State of Nigeria 1991 as Amended”.
PARTICULARS OF OFFENCE
Afamefuna Mbanefo on the 20th day of August, 2014 at a farm in Akidi Ogidi village Ogbam in Onitsha Judicial Division did murder one Nwabugo Obi of the same village by hitting her with a stone on her head”. – Page 2 of the Record of Appeal.
Curiously the evidence elicited from the witness speaks about the event having taken place on the 19th of August 2014. There is nothing to show that the charge was amended. There are contradictions not only among the witness and
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their respective stories, but the charge before Court is at variance with the evidence before Court, and that is fatal to the prosecution.
PW1 testified that the deceased was hit with a knife on the head; PW2 testified that the deceased died as a result of chemical whilst the medical report (which is not legible) certifies the cause of death to be head injury (Page 24 of the Record of Appeal).
I find the evidence elicited at the Court below so weak and same was so confusing that it did not assist the trial Court to resolve the matter judiciously. The Court was faced with Exhibit “F” which was manifestly unreliable; evidence that constituted a tangled web, and there is a huge lacuna in the Police investigation. These all should have created doubt in the mind of the learned trial judge. To convict on such evidence and lacuna was grossly erroneous on the part of the trial Court.
It is the duty of the prosecution to establish its case beyond reasonable doubt in order to secure a conviction. The onus is on the prosecution and it does not shift.
The evidence before the Court was manifestly unreliable; weak and very confusing, and
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loads of doubt abound. Such evidence, whether challenged or unchallenged cannot be acted upon by a Court – AGAGU V MIMIKO (2009) 7 NWLR (Pt 1140) 342.
This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO 3
This issue has been exhaustively dealt with in resolving Issue No. 2.
I also resolve this issue in favour of the Appellant and against the Respondent.
ISSUE NO. 4
Learned Counsel submits that it is the duty of the prosecution to ensure that the elements of an offence are properly spelt out in the charge.
That it is the duty of the trial Court to ensure not only that the charge was and explained to the accused, it must also be in a language he understands.
That an accused person will be discharged, if tried on an incompetent or bad charge. That for there to be a valid trial which is tantamount to a valid arraignment, there must be a valid charge – OKONOYE V STATE (2012) 17 NWLR (Pt. 1329)350.
RESOLUTION OF ISSUE NO 4
By virtue of Section 246(1) ACJ Law 2010 Anambra State of Nigeria, it stipulates thus:
“The charge shall contain such particulars
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as to the time and place of the offence and the person, if any, against when or the thing, if any, in respect of which it was committed as are reasonably sufficient to give the defendant notice of the matter with which he is charged”.
A Cursory look at the charge sheet shows that no time was stated thereon.
A charge must state a particular time frame within which the alleged offence was committed – ANKWA V THE STATE (1969) 1 ALL. NLR.133
Where there is a doubt as to the time and date that a crime was committed, the accused person is entitled to an acquittal. That doubt must be resolved in favour of the accused person. –KALU V STATE (1988) 4 NWLR (Pt 90)503 @ 510.
Any mistake in the particulars of a charge will render the entire proceedings liable to be quashed. OKEKE Vs I.G.P (2015)10 NWLR (Pt1467) 333.
The Prosecution did not deem it fit to amend the charge. This is fatal to the case of the prosecution. An accused person cannot be forced to accept the time, date and place of the offence he is charged with, if that is not what he stated, or the witness stated. The date mentioned in a statement made by the
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Appellant of 20th August 2014 is 18th of August 2014, PW1 & PW2 mentioned 19th of August 2014, and the charge has on it the 20th of August 2014.
The Court cannot assume the duty of a fisherman in resolving the case of a party. Neither can the Court assume the duty of a mathematician in resolving the case of a party – DAMINA Vs STATE (1995) 8 NWLR (Pt 415)573.
It seems to me that the Court below based on conjecture and speculations in arriving at its decision; Courts do not entertain or act on speculations, but on facts only – IBORI V F.R.N. (2009) 3 NWLR (Pt 1127) 96.
The defect in the charge, which was for reasons best known to the prosecution (left unamended) stripped the Court below of the relevant jurisdiction to adjudicate on the matter. Therefore, its proceedings, in my view constitute an exercise in futility (no matter how well conducted).
The proceedings amount to a nullity ab initio and liable to be set aside.
This issue is resolved in favour of the Appellant against the Respondent.
ISSUE NO 5
Learned Counsel submits that the Court below held that the Appellant did not establish provocation to
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exculpate him from his acts as charged contrary to the dictates of the law. That in Exhibit “F” heavily relied on by the Court below in convicting and sentencing the Appellant, he Appellant stated thus:
“Whilst we were at the farm, we started having misunderstanding with both of us to start exchanging words. I then used a big stone and hit her on the head and she fell and died.”
That there must be a state of passion without time to cool placing the defendant beyond control of his reason.
RESOLUTION OF ISSUE NO 5
Having held that the prosecution did a shoddy job, and having pointed out the various lacuna in this matter that cast so much doubt on the case of the prosecution, it would be futile to dwell on this issue, as same would amount to embarking on an academic exercise.
I have held that the prosecution failed to establish their case for a motley of reasons adduced earlier in this judgment.
This issue is resolved in favour of the Appellant and against the Respondent.
The Appeal succeeds and same is hereby allowed.
The judgment of the High Court of Anambra State, holden in Onitsha delivered on the 8th of February 2018 whereby the Appellant was sentenced to death by hanging is hereby set aside. The Appellant Afamefuna Mbanefo is hereby discharged and acquitted.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had
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a preview of the judgment just delivered by my Learned Brother, R. N PEMU, JCA.
I agree that the appeal be allowed and the judgment of the trial Court set aside for the more detailed reasons contained in the lead judgment.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilage of reading a draft of the judgment delivered by my learned brother PEMU, J.C A
I agree with and adopt the decision reached by my learned brother in the lead judgment that this appeal is meritorious and is allowed.
The judgment by the lower Court delivered on 8th Febuary, 2018 in Charge No. 0/2c/2015 wherein the Appellant was sentenced to death by hanging is set aside by me. The Appellant is discharged and acquitted.
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Appearances:
J.O. Onwujekwe Esq. For Appellant(s)
C.V. Ononye-Ekwerekwu(SSC) For Respondent(s)
