In the Supreme Court of Nigeria

Friday, May 28, 2004

Case Number: SC. 235/2002

















“It is dangerous for a trial judge to allow himself to be influenced by any extraneous event which takes place outside his court, because such could lead to a miscarriage of justice.” Per UWAIS, CJN

UWAIS, CJN(Delivering the Judgment of the Court)


The Appellant was charged in the High Court of Imo State (Ojiako, CJ.) with the murder of one Sylvanus Agbarakwe contrary to section 319 subsection (1) of the Criminal Code, Cap. 30 of the Laws of Eastern Nigeria, 1963 applicable to Imo State and was sentenced to death.




The prosecution’s case is briefly as follows. On the 20 day of September, 1993, there was a ceremony in Umunoha town to mark the end of a mourning period which was referred to as “mourning clothes removal ceremony.” The masquerade dancing group of Umuokpara, Ejimadu people was invited to Umunoha to participate in the ceremony. The group arrived there at about 2.00 p.m. and took part in dancing. At about 4.00 p.m., the deceased, Sylvanus Agbarakwe, who was a very good singer, came from Aba and joined the masquerade group and took over the singing. After the performance by the masquerade group they bade farewell to the head of the masquerade of Umunoha town.




As they were on their way leaving for Umuokpara Ejimadu the accused and his cohorts began to disturb them. The deceased had to warn the accused to keep his distance but the latter challenged the deceased and threatened to deal with him (deceased). When on their way home, the masquerade group saw the accused riding a bicycle on a main road followed by the masquerade group armed with a dagger in his hand. The accused accosted the deceased at a spot along the road near the accused’s home. The accused held the shirt worn by the deceased. The deceased asked the accused to leave him alone as he was rather young for the deceased, who was older, to fight with. After the deceased said so, the accused stabbed him with the knife on the chest and ran away, leaving behind the bicycle he rode. Those present chased the accused in vain. While Kingsley Onwuka (P.W. 1) held the bicycle the deceased was conveyed to a private hospital at Eziama Obiato, by one Philip Agbaraka, where he died. P.W.1 went home and reported to one of the elders Ukaobasi Mbaonu and left the bicycle with the latter, with whom it was until the police came to him and took it with them to Nwaorieubi police station. The accused person reported himself on the instruction of his Father, (D.W.2) to the police at Eziarma Police Station. He was arrested there and taken to Nwaorieubi where he was charged with murder, he was cautioned and he made a voluntary statement which was admitted at the trial as ‘‘Prosecution Exhibit No. 1.” The case was transferred to Imo State Central Investigation Department (C.I.D.) where it was assigned to Police Inspector Alex Okedu (P.W.3) on 23rd September, 1993 to investigate. The accused was again arrested, charged with murder, was cautioned and he volunteered a statement which was admitted at the trial as “Prosecution Exhibit No. 2.” A search under a warrant was conducted at accused’s father’s home (D.W.2) but nothing incriminating was found. The accused volunteered another statement, which was taken under caution and was admitted in evidence as “Prosecution Exhibit No. 3.” The body of the deceased was transferred from the private hospital to the mortuary of the General Hospital at Owerri. Autopsy was carried out by a Dr. Innocent Njemanze (P.W.5) after the body of the deceased was identified as that of the deceased by his brother John Agbarakwe (P.W.



4). The accused person testified in his defence as D.W.I. He gave his age as 14 years in 1993 and that he was a student in Senior Secondary Class 1 at Secondary Technical School, Ogbor Hill, Aba. That on 20th day of September, 1993, he was at Umuokpa, where he attended the ceremony for “removing the mourning apparel of a dead person.” He joined the village masquerade for the ceremony. As their masquerade emerged the beating of masquerade drums was asked to be stopped. The deceased refused to do so and continued drumming despite the plea by other persons for him to stop. Consequently, two youths by names Chinedu and Aturuchukwuoda challenged the deceased to stop but he would not. A quarrel ensured between the youth and the deceased. As the accused went to them to intervene, he was pushed by the deceased who slapped him on his left cheek. People present asked the deceased to leave the accused alone but despite this the deceased continued to hit the accused with his fist and he eventually knocked accused on the ground. As the deceased was about to hit the accused with a stick, the latter picked up a stone and hit the deceased on the stomach with it. The deceased fell on the ground and the accused ran away hut the deceased got up and chased him. The accused escaped by running to his family compound where he remained. The next day the accused’s father (D.W.2) took the accused to the police post at Eziama, from whence the accused was taken to Nwarorieubi police station. It was while he was there that he heard that the deceased had died and he made a statement to the police.




Under examination-in-chief the accused denied that he stabbed the deceased with a dagger but said that he “stabbed’’ the deceased with a stone and that he did not waylay the deceased on the road. He admitted making three statements to the police, which he said he adopted as part of his defence. He said under cross-examination that his birth was registered at Port Harcourt and that the certificate of birth was in his father’s (D.W.2) possession. He said that at the time of the incident that led to the death of the deceased, he was not 18 years old.




In his testimony, D.W.2, John Orisakwe, said he was a retired Inspector of Police and that the accused was his son and he was born on 7th October, 1979 at Port Harcourt General Hospital. He confirmed that deceased’s birth was registered and he tendered the birth certificate in his possession, which was admitted in evidence as ‘‘Defence Exhibit No. 1.”




On 7th May, 1996, the defence closed its case immediately after the evidence D.W.2 and the trial was adjourned to 8th July, 1996 for the trial court to be addressed. On the 8th July, 1996, the accused was not brought to court from prison custody and so the case was further adjourned to 7th October, 1996 “for continuation.” On this date, the learned trial Chief Judge minuted as follows: –


“COURT: On 7/5/96 Counsel for the accused person, Mr. Azuatalam tendered a Birth Certificate No. 12399 dated 18th December, 1979 to the effect that the accused person. Peter Orisakwe was born at the General Hospital Port Harcourt on 7th October, 1979. The said Certificate which was tendered and recorded as Defence Exibit No. 1 was procured by the father of the accused person, Mr. J.N. Orisakwe on 12/6/96, the elder brother of the deceased, one Mr. John Agbarakwe wrote to the Court to say that the said defence Exhibit 1 was a forgery. This morning the Deputy Director of Public Prosecutions has shown the Court a letter dated 13/9/96 signed by Dr. G. J. Orgwu that the said Defence Exhibit I was a real forgery. John Agbarakwe’s letter dated 12/6/96 is hereby tendered as Miscellaneous Exhibit ‘A’. Dr. G. J. Orgwu letter dated 13/9/96 is tendered as Miscellaneous Exhibit ‘B’.




At this stage the two opposing Counsel have agreed that since fraud is alleged the matter should be investigated. I therefore order that the person who issued the said Certificate i.e. Dr. F. Chavez and the person who wrote denying the authenticity of the certificate, Dr. G. J. Orgwu should be subpoenaed by the parties in the mater for them to come to Court on the next date of adjournment to be examined and cross-examined on Oath. Each should come with all relevant documents pertaining to the alleged forged birth certificate of the accused – Orisakwe.




This case is therefore adjourned to 11/12/96 for




The above issue to be sorted out.”




It is to be observed that Mr. John Agbarakwe, the elder brother to the deceased, was P.W.4. His letter (Miscellaneous Exhibit A) mentioned above reads – “MR. JOHN AGBARAKWE





12TH JUNE, 1996.




The. Honourable Chief Judge,




The Judiciary,




Owerri – Imo State.












With honour and respect. I submit this my humble petition against the birth certificate tendered before your honourable Justice on 7th May, 1996 by Ex-Inspector John Orisakwe.




The Certificate with registration No. 4321/79 with card No. 12399, dated 18/12/79, purported to have been issued by City Health Office Port Harcourt, Rivers State is forged. I have been to the City health Office Port-Harcourt where the document is proved to be False and forged.




John Orisakwe did this in order to mislead your Honourable Justice and thereby pervating (sic) the course (sic) of Justice. I pray your Honourable justice to scrutinize the document and bring the culprit to book so that it will serve as a deterrent to others.


The Doctor in charge of the City Health Office is ready to prove the falscity (sic) of the document.




May the Almighty God continue to give you the wisdom to dispense justice.




Thanks in advance.




I am,




Yours Obediently








The letter by Dr. G. J. Orgwu (Miscellaneous Exhibit B) mentioned above reads –








Ministry of Health &




Social Welfare




P.M.B. 5101




City Health Office




Ref: MH/PH/389/187 Port Harcourt.




13th Sept., 1996.




The Director of Public








Public Prosecutions Dept.,




Ministry of Justice,








Attention: J.C. DURU (ESQ.)








With reference to your DPP/ 18/Vol.4/123 of 3rd July, 1996 on the above subject, I am directed to inform as follows:




  1. That the Birth Certificate No 4321/79 with the name Peter Orisakwe was not issued from the birth and Death Registry Section of the City Health Office Port Harcourt.




  1. That there is no information about the said birth certificate found in our records.




  1. That the No. 4321/79 in our records belongs to a female child registered on the 2nd August, 1979 and not 18th Dec., 1979 as contained in the photocopied birth certificate sent to us for verification.


  1. From the foregoing, therefore, the birth certificate is not authentic and not genuine.




Sgd: DR. G. J. ORGWU



Senior Medical Officer i/c




City Health Office.




For: Hon. Commissioner for Health




And Social Welfare, Port Harcourt”.




On December, 1996, the learned Chief Judge’s record reads in part thus –




“Accused person present.




  1. C. Duru Deputy Director of Public Prosecution (sic)




For the State.




  1. C. Azuatalam for the accused person.




COURT: On 7/10/96 this Court asked the two opposing Counsel in the case to subpoena the two Doctors who gave contradictory documents regarding the birth date of the accused. This morning the Deputy Director of Public Prosecution (sic) says the Doctor he subpoenaed Dr. G. J. Orgwu is in Court, but Azuatalam Counsel for the accused says he is going to rely on what Dr. G. J. Orgwu says in Evidence after cross examination and so did not produce the other Doctor to testify.




Dr. G. J. Orgwu testified as the Court’s witness as both opposing Counsel agreed”.




Dr. G. J. Jethro Orgwu then testified. He said that as at that date he was the Principal Medical Officer and Assistant Director in charge of the City Health Office, a unit of the Ministry of Health, Rivers State. That his duties include the registration of birth and deaths within the Rivers State. He assumed this duty (in the 7th March, 1996. he mentioned the names of five doctors who were his predecessors in office, including Dr. (Mrs.) F. Chavez, a Philipino, who was the Registrar from 1977 to 1981. Before 1992 the City Health Office was known as Port Health Office. He stated that 23 births were registered on 18th December, 1979 at Port Health Office, River State and he tendered the Births Register for the period October to December, 1979 without objection and it was admitted as “Court Exhibit No. 1” containing the 23 births registered on 18th December, 1979. He could not find from the registered births the name of Peter Orisakwe. He said that registration No. 4321 of 26th July, 1979 bore the name Ngeribokoa G. Omoniye – Benibo and not Peter Orisakwe. The register was tendered without objection and was admitted in evidence as “Court Exhibit No. 2”.




Defence Exhibit 1 was shown to Dr. Orgwu and he said that he could not find it mentioned in the records with him. He said that he knew the signature of Dr. (Mrs.) Chavez, who had since returned to the Phillipines, and that if shown to him he could recognise it. He tendered a file containing document written and signed by Dr. Chavez. Defence counsel raised objection but was overruled by the trial court and it was admitted in evidence as “Court Exhibit 3”. At the end of his evidence-in-chief, Dr. Orgwu was cross-examined by the defence counsel R. C. Azuatalam Esq, and was re-examined by the Deputy Director of Public Prosecutions, J. C. Duru, Esq. The case was then adjourned to the 29th January, 1997 for the trial court to rule on the issue. On the adjourned date the following ruling was delivered by the learned Chief Judge –






Following the mini trial conducted on 11/12/96, I rule as follows: –



The conflicting dates of birth of the accused person as revealed by the prosecution in asking that the Birth Certificate, Defence Exhibit No. I be expunged gave rise to this trial within trial. It was for the defence to establish the authenticity of the said Defence Exhibit No. I which gave the date of birth of the accused as 7th October, 1979. The defence and the prosecution were on 7/10/96 asked to produce witnesses for the mini trial.




The mini trial is as recorded above. R.C. Azuatalam, Esq., Counsel for the accused person did not produce any Doctor or person to substantiate the date of birth, 7th October, 1979, as recorded in the Certificate of Birth he tendered in evidence as Defence Exhibit No. 1. Rather he said he was going to rely on what Dr. Orgwu would say in evidence after cross-examining him. Dr. Orgwu was subpoenaed by the prosecution to establish that the accused was not born on the date (7/10/79) reflected in the said Birth Certificate. His evidence to that effect was very obvious and overwhelming that the said Birth Certificate purporting the birthday of the accused person to be 7/10/79 which was procured by John Orisakwe, the father of the accused person is a Forgery.




I rule that the Birth Certificate, Defence Exhibit No. I should and is hereby expunged from the evidence already given, and should be marked as expunged.




The procurement of the said Birth Certificate should be referred to the police for thorough investigation and prosecution of whosoever was responsible for producing such a forged document in a serious matter of this nature before me’’.



PAGE| 12



Immediately after the ruling the following minute follows-




“COURT: The trial continues. Defence counsel says he has completed the defence of the accused and is ready to address the Court. The D.D.P.P. is in agreement”.



The defence counsel addressed the trial court at length, at the end of which the case was adjourned to 18th March, 1997 for the prosecution counsel’s address, which he did on that date. The case was then adjourned for judgment on the 22nd May, 1997 but on this date the learned Chief Judge minuted thus:-




“COURT: This case was on 18/3/97 adjourned to this date for judgment, but in the course of my evaluation of the case on a whole it occurred to me that even though in the mini trial the Court found the age of 14 years claimed by the accused, as his age as at the date of the alleged commission of the offence to be false there was the necessity, for the Court to make due inquiry as to the age of the accused person. With this persuasion hearing notices were given to the prosecution and the defence and subpoena given to Dr. Njemanze for him to testify today from his expert knowledge as to the age of the accused at the date of the alleged commission of the offence’’.




Soon after the ruling, Dr. Innocent Njemanze, Principal Medical Officer, Grade 1 (who was P.W.5) was called as “Court’s Witness No. 2′. He said that he had seen the accused person and had examined him physically and he stated that by physically looking at him “his chronological age will be between 22 and 25 years old”. He was examined by the D.D.P.P. and the case was adjourned to the 26th May, 1997 on which day the doctor said he “could not complete the x-ray test on the accused due to power fluctuation. We are likely was further adjourned to the 27th June, 1997 because the accused was not produced from prison custody.




It is significant to observe that the last time the defence counsel, R.C. Azuatalam Esq. appeared for the accused person was the 18th March, 1997, thereafter it was C.N. Metu Esq. who appeared for the accused up to the end of the trial. The minutes of the trial Chief Judge does not indicate that he was holding brief for Azuatalam Esq. nor whether the latter had withdrawn his appearance for the accused.




Be that as it may, on the 27th June, 1997, Dr. Njemanze continued with his testimony. He stated that x-ray of the important bones of the accused were taken as to determine his age. That from the x-ray films all the bones were normal, he further re-affirmed that in his opinion the age of the accused was “between 22 and 25 years at the time of the x-ray, that is on 22/5/97 and 26/5/97. He was then cross-examined by the defence counsel and at the end of the cross-examinations the case was adjourned to the 8th July, 1997 for judgment. In the judgment the learned Chief observed as follows: –




“Before the resumption of the case on 7/10/96 the elder brother of the deceased called John Agbarakwe who testified as P.W.4 wrote the Court on 12/6/96 saying that the Birth Certificate Defence Exhibit I tendered by the father of the accused was a forgery. On 9/10/96, the prosecution showed the Court a letter dated 13/9/96 signed by one Dr. G. J. Orgwu that the said Defence Exhibit 1 was a real forgery. The said John Agbarakwe’s letter dated 12/6/96 was tendered as Miscellaneous Exhibit ‘A’ while Dr. G. J. Orgwu’s letter dated 13/9/96 was tendered as Miscellanous Exhibit ‘13’. The two opposing counsel at the stage agreed with the Court that since fraud was alleged, and the age was disputed the letter should be investigated as enjoined by Section 208 of the Criminal Procedure Law (Cap. 31) Laws of Eastern Nigeria 1963 Vol. 2. The Court therefore ordered that the person who issued the alleged forged Certificate, i.e. Dr. F. Chavez and the who wrote denying the authenticity of the Certificate, that is Dr. G. J. Orgwu, should respectively be subpoenaed by each Party in the matter for them to come to court on the next date of adjournment to be examined and cross examined on Oath. Each doctor was to come with all relevant documents pertaining to the alleged forged birth certificate of the accused, Peter Orisakwe.




When the hearing resumed on 11/12/96, Dr. G.J. Orgwu who was subpoenaed by the prosecution was in Court. But R. C. Azuatalam, defence counsel, said he was going to rely on what Dr. G. J. Orgwu said in evidence after cross examination and so did not produce the other Doctor to testify.




The trial within trial was conducted after which I was convinced beyond any reasonable doubt that the Birth Certificate No. 12399 dated 18th December, 1979 and tendered as defence exhibit No. 1 by the father of the accused was a real forgery. After giving a ruling on the issue the said forged birth certificate was expunged from the evidence already given and marked as such after which the main trial continued by way of address as the defence had also closed its case.




As I was about to evaluate the evidence of witnesses as well as the submissions of the two opposing Counsel, it occurred to me that even though in the mini trial the Court found that age of 14 years claimed by the accused, as his age at the date of the commission of the alleged offence, to be false, there was the necessity for the Court to make due inquiry as to the age of the accused. This arose from the fact that the accused might silently be saying to himself.




“If the Court has discredited my age as 14 years and I have not admitted that of the prosecution of 18 years, then it is for the Court to say what my age is.”


With this persuasion, I had to recall the Medical Doctor who performed the autopsy to examine the accused person as to his age and testify. Dr. Innocent Njemanze did examine the accused person and gave evidence to the effect that the age of the accused person as at 20th September, 1993 was over 18 years”.




The learned Chief Judge went on to reject as an afterthought the testimony of the accused that he hit the deceased with a stone and not stabbed him with a dagger. He believed that the accused used a dagger. He believed the testimony of P.W.1 whom he said was not of the same family as the deceased but that they came from the same village, he saw no reason why he should not believe him. However, this notwithstanding, the learned Chief Judge said that he warned himself before accepting his evidence, in case the witness could be regarded as an interested party in the case. He considered the defences of provocation and self-defence, which were put up by the accused counsel in his address, and rejected them as afterthought as there was no evidence to support any of the defences, he concluded by holding “that the prosecution proved its case beyond reasonable doubt. I accordingly, find the accused person Peter Orisakwe guilty of the murder of Sylvanus Agbarakwe on 26th day of September, 1993”. He sentenced him to death by hanging.


Aggrieved by the decision, the accused person appealed to the Court of Appeal on a notice of’ appeal prepared on his behalf by C.N. Metu, Esq. On the 7th October 1999, a motion on notice inter alia praying for leave to file and argue 2 additional grounds of appeal was filed in the Court of Appeal on behalf of the accused by Chief C.A.B. Akparanta. At the hearing of the appeal by the Court below, Chief Akparanta abandoned all the six grounds of appeal originally filed by C. N. Metu, Esq. and argued questions for determination based on the additional grounds of appeal.


In considering the contention of the accused, that the trial court erred in law when it expunged “Defence Exhibited No. 1” from its record; received and admitted suo motu exhibits outside the Court and acted on private letters without being tendered during the  recalled P.W.5 at the stage it did to inquire into the age of the accused. Finally, the accused contended that the prosecution did not prove its case beyond reasonable doubt as required by section 138 subsection (1) of the Evidence Act.




The Court of Appeal in a considered judgment dismissed the appeal in its entirely. The accused, therefore, appealed further to this Court and raised in his brief of argument the following questions for us to determine, viz:-




(i)          Whether the learned Justices of the Court of Appeal were right in affirming that the procedure adopted by the trial Court in calling an additional witness re-calling two other witnesses and in conducting a mini-trial within main trial for the determination of the age of the Appellant, after both the prosecution and the defence had closed their case, did not lead to a denial of fair hearing to the appellant.




(ii)        Whether the Court of Appeal was right in affirming the conviction and sentence of the Appellant by the trial Court’’.




The prosecution, similarly formulated two questions for our determination. They read –




“(i) Whether the procedure adopted by the learned trial judge (sic) at the trial, as approved by the Court below, was unfair to the Appellant.




(ii)        Whether the lower court’s confirmation of the conviction of the Appellant by the trial court was supported by evidence at the trial”.




In my opinion the issues raised in the Appellant’s brief of argument are more akin to the grounds of appeal filed by the accused than the issues formulated in the Respondents brief. For this reason, I adopt the former issues for the purpose of determining this appeal.

Issue No. (i)




The accused contends that the procedure followed by the trial court led to a denial of fair hearing to the Appellant, he refers to the receipt of the two letters by the learned Chief Judge from sources outside the High Court and their being admitted in evidence as exhibits after the prosecution and defence had closed their cases and the case had been adjourned for addresses; and contends that every court has a duty to do substantial justice to both parties. That in the circumstances of this case the trial court was making a case for the prosecution. The cases of Okpulor V. The State (1990) 7 NWLR (Part 164) 581 at p. 590C per Belgore, JSC and UBA Ltd. V. Achoru (1990) 6 NWLR (Part 1 56) 254 at p. 270F-G per Karibi-Whyte, JSC were cited in support.



The accused argued further that in conducting mini-trial and recalling or calling witnesses after the cases for the prosecution and the defence had been closed, was to strengthen the case for the prosecution by filling gaps in the prosecution’s case and contradicting the defence. It is canvassed that this is so because at the close of the cases for the prosecution and defence, it was obvious that the former had not succeeded in proving that the Appellant s birth certificate was a forgery. The only reference about the Appellant’s date of birth in the prosecution case was a passing remark under cross-examination of P.W.6. Reliance has been placed on the case of Onuoha V. The State (1989) 2 NWLR (Pt. 101) 23 at p. 44 D-F where it was stated that




“…it would be contrary to natural justice and against the spirit of the law for a trial court to re-call an accused person (or call a witness for that matter) after the close of defence and addresses in order to clear up its doubts. For that would in effect be depriving the accused of the benefit of the doubt”.


The accused concluded that the procedural irregularity committed by the trial Chief Judge not only occasioned miscarriage of justice but also denied him fair hearing.




In reply, the prosecution argues, in the Respondent’s brief, that it was within the personal knowledge of the accused as to what was his correct age. The issue of age of the accused was raised after the prosecution had closed its case. This was done in order to spring a surprise at the prosecution. It was for this reason that the prosecution cross-examined the accused as to whether his birth was registered and what was his age. He was unable to answer this but said that his birth certificate was with his father (D.W.2). At the time D.W.2 produced the certificate which showed that the Appellant was 14 years old, the prosecution was not given notice at the earliest opportunity to verify the claim. It is argued that the disclosure of the fraud by P.W. 4 and the prosecution was legitimate and was done in the interest of justice as there is no rule of law which demands that the court should shut its eyes to an issue of fraud which has come to its knowledge as in the present case.




It is contended that nothing was in the proceedings being complained against which was done behind the defence’s back. It is significant that learned counsel for the accused agreed to all the steps taken in the proceedings and cross-examined all the witnesses that testified, whether called by the prosecution or the court. Therefore, it is submitted, on the authority of Ilodibia V. NCC, 1997 SCNJ 77 at p.79, that the Appellant cannot be heard to complain over the steps taken by the trial court, since they were taken with the consent of his counsel.




The Court of Appeal (Ogebe, Akpiroroh and Ikongbeh, JJCA) in dealing with this issue stated as follows, per Ikongbeh, JCA, who wrote the leading judgment, concurred with by other members of t



Chief C.A.B. Akparanta wth him R. M. Emem Esq., for the appellant

L.C Azuama, Assistant Direct or of Public Prosecution, Imo State, for the respondent

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