Adolphus Onyerika V. The State (1993)
LawGlobal-Hub Lead Judgment Report
ABDULLAHI, J.C.A.
T
his appeal is from the decision of the High Court, Owerri, Imo State dated 22/11/79 convicting the appellant for murder and sentencing him to death. The appellant appealed to this Court. In a one sentence judgment dated 12/5/81, the appeal was dismissed. The appellant appealed further to the Supreme Court. The Supreme Court in its judgment dated 15/10/92 sent the case back to this court to be reheard on merit.
The facts of the case briefly are that on 3/2/77 at Okuku, in Owerri Judicial Division one Alfred Onwusumaka now deceased was walking together with Mbonu Iroegbulam, who testified as P.W.1 the trial and the son of the deceased to the house of the deceased to have their meal.
As they were walking, P.W.1 heard a sound at their back he turned and saw the appellant holding a single barrel gun and a matchet. He talked to the appellant and the appellant indicated that he was going to his farm. P.W.1 then joined the deceased and his son and continued their journey to the house of the deceased. The next thing he heard was a gun shot. The deceased fell down. P.W.1 then turned round again and he saw the appellant raising his matchet and aiming at him. He ran into the bush and raised alarm. The son of the deceased ran home and informed his mother what happened. The deceased died on the spot. The wife of the deceased went to the scene and saw the corpse of her husband. She observed a gun shot wound on the head of the deceased and a deep matchet cut wound on the neck. The Police were informed and eventually the corpse was conveyed to the mortuary of the Owerri general hospital.
The appellant run away after the incident and he was not arrested until the following day. The appellant made a confessional statement to the Police on the day he was arrested admitting killing the deceased.
At the trial, the prosecution called six witnesses and the appellant gave evidence in his defence on Oath. At the end of the day, the appellant was convicted under Section 319 of the criminal code and was sentenced to death.
As I mentioned at the beginning of this judgment, the appellant appealed to this Court. On 12/5/81 the appeal was dismissed. The record of what happened on 12/5/81 is very short. It is as follows:-
Iketuonye, ABC for the Appellant
Ezenagu, A.I., Legal Adviser Imo State with him Mrs. I.A. Nwogu Senior State Counsel for Respondent.
Iketuonye: I have carefully read the Records and I am of the view that there is nothing to urge in favour of the appellant.
The evidence as to who killed the deceased coupled with the confessional statement of the appellant is so overwhelmed “(sic).
Ezenagu: I associate myself with that view.
Court: Appeal is dismissed.
The appeal then went to the Supreme Court. In an Order dated 15/10/92 the Supreme Court directed that the appeal be reheard again on it’s merit.
In this appeal, the learned counsel for the appellant, CHIOBI EKPECHI Esq filed appellant’s brief of argument. The respondent did not file any brief.
In his brief, the learned counsel for appellant indicated that he find himself unable to support any of the grounds of Appeal originally filed by the appellant himself and that from the totality of the evidence before the Court, he could not but agree with the learned trial judge that the prosecution has proved it’s case beyond all reasonable doubt.
He however went ahead and identified one issue for determination in the appeal.
I found this situation somewhat strange. If the learned counsel was unable to support the grounds of appeal filed, I wonder on what basis, he formulated the issue for determination in this appeal strangely. Learned Counsel did not make any attempt to seek leave to amend the original grounds which were filed within time or to file additional ground or grounds of appeal. So technically if I accept the position taken by the learned counsel, it means that the issue for determination he formulated has no base and therefore incompetent, since issue for determination in an appeal is based on valid ground or grounds of appeal combined, filed before the Court. See MANAGEMENT ENT. VS OTUSANYA (1987) 2 NWLR (PT.55) 179; ADEGOKE VS. ADIBI (1992) 5 NWLR (PT. 242) 410.
Happily, the Supreme Court has held in several decisions that technicalities shall not be allowed to defeat substantial justice. See NWEJI VS. CHUKWU (1988) 6 SCNJ 132 at 138, BELLO & ORS. VS A.G. OYO STATE (1986) 5 NWLR (PT.45) 828.
In this, situation I examined the 8 original grounds; of appeal filed and I am of the view that taking into account the numerous complaints they highlighted together, the single issue identified by the learned counsel for appellant can get a base to stand.
I think it will be helpful if I set out the 8 grounds in full as well as the issue for determination formulated by the learned counsel for appellant which I regard as adequate for the purpose of this appeal.
They are as follows:-
“(1) I did not kill the deceased.
(2) It was true that I had a land case with the deceased, but the day he died, I did not see him alive for once.
(3) Neither I nor any of the prosecution witnesses saw how and when the incident occurred.
(4) One of the prosecution witnesses Justina Amajuoyi, was among the people I chased out of my farm and from my farm to our village where the corpse was discovered is about two miles.
(5) It was not proved by the prosecution Council that the knife that was seized from me was used for the killing.
(6) There was no doctor’s report to show how and what was used in killing the deceased.
(7) The honourable trial Judge was biased over my case.
(8) The sentence passed on me is in the circumstances, unlawful.
The issue for determination reads as follows:-
“Whether the prosecution proved all the ingredients essential for the conviction of the appellant for the charge of murder”.
At the hearing of the appeal, the learned counsel for appellant adopted his brief of argument and offered no further submission. The respondent did not file any brief.
In a person of the judgment at pages 34 – 35 the learned trial judge stated as follows:-
“As to the cause of death, I have not the least doubt that Alfred Onwusuruaka died on the spot following the gun shot and the matchet cut wounds inflicted on him by the accused. I believe the P.W.1 that it was the accused who fired the gun shot. I also accept the statement of the accused Exhibits “D” and “E” where the accused confessed that after he used his gun to fire the victim, he used his matchet to cut his head. The accused admitted this confessional statement as his evidence on Oath before me as having been made voluntarily. I am satisfied that the prosecution has produced satisfactory evidence of the fact of death of Alfred Onwusuruaka, the cause of his death and also that it was the act of the accused which caused that death.”
The learned trial judge concluded on page 38 – 39 of the record as follows:-
“An ordinary reasonable man of the accused’s standing in life and degree of civilization would not react in the way the accused reacted in the known circumstances when his case was already in the court. The defence of provocation therefore fails.
I am therefore satisfied that the accused when he fired the gun shot and inflicted the matchet cut on the deceased intended to cause the death of the deceased or to do him some grievous harm.
The accused is a healthy and sane adult. There is no evidence of any mental abnormality either at the time of the offence or at any other time.
I find the accused guilty of the murder of Alfred Onwusuraka.”
Learned Counsel started his submission in the brief by referring to Section 316 of the Criminal Code applicable in Imo State and contended that an offence of murder is committed if the offender intends; to cause the death of the person killed, or if the offender intends; to do the person killed or to some other person some grievous, harm. Consequently (a) the record of the trial court must disclose the evidence of intention to kill or an intention to cause grievous bodily harm upon which the court relies for conviction or, (b) From the evidence as a whole one can reasonably infer from the appellant’s conduct that he ought to have foreseen the natural and probable consequences of this acts. In this respect the weapon used, the severity with which it was, inflicted, the injuries sustained by the deceased, the general conduct of the appellant before and after the act, are all matters which the trial court ought to consider. (c) The trial court must consider the evidence in relation to (a) & (b) above in it’s judgment and arrive at a definite conclusion. Some decided authorities mere referred to by the learned counsel in support of the above legal propositions. Some of them are: R. v. NUNGU 14 WACA, ONORO VS. THE QUEEN (1961) 1 All NLR 3.
Learned Counsel for appellant submitted that applying the facts of the instant case to the above principles, the learned trial judge arrived at the right conclusion having correctly applied the principles of Law.
He went further to submit that the learned trial Judge had adroitly and meticulously reviewed and evaluated the evidence led at the trial and the said review disclosed that the appellant unlawfully killed the deceased by firing at him with a gun and giving him a deadly matchet cut on the neck. That the appellant himself confessed to the murder and that the body of the deceased was identified by P.W.4 to the medical doctor who performed the post mortem.
Learned Counsel contended that although there is no medical evidence to prove cause of death, there is evidence to show that the appellant caused the death of the deceased by attaching him with lethal weapons. He cited the case of TONARA BUKARI VS. THE STATE (1965) NWLR 163 at Page 164in support. He concluded that the totality of the testimony of all the prosecution witnesses coupled with the confessional statements’ Exhibits “D” & “E” of the appellant pointed positively to no other conclusion than that of the guilt of the appellant; and that there; was, no provocation or justification for the murder. He cited the case of R. V. MOMODU LAOYE 6 WACA 6; CHUKWU V. THE STATE (1966) NMLR 274 in support.
It is clear that the learned counsel for appellant supported the findings and conclusion reached by the learned trial Judge except perhaps the finding of the Learned Judge at page 39 of the record where he that:-
“The accused is a healthy and sane adult. There is no evidence of any mental abnormality either at the time of the offence or at any other time.”
Learned Counsel considered this finding as a mere expression of opinion which the learned Judge is not entitled to, because it is not based on any facts or evidence.
Learned Counsel conceded however that the Supreme Court has made it clear that in a murder charge the trial court is enjoined to consider all the defences available to the accused, whether infact raised by the accused or not.
Learned Counsel also castigated the counsel representing the appellant at the trial for his failure explore the field of the defence of insanity further and wider in line with the consistent decisions of the Supreme Court especially; UDO AKPAN UDOFIA VS. THE STATE (1988) 3 NWLR (PT 84) 533 at 541; NWOYE ONYEKWE VS. THE STATE (1988) 1 NWLR (PT 72) 565 at 579.
Learned Counsel considered the excuse given by the appellant in his confessional statements Exh. “D” and “E” for murdering the deceased as flimsy, therefore the mental antecedents of the appellant should have been explored further. He concluded that the opportunity was lost and it is rather too late to do so now.
I think the complain of the learned counsel with regard to the finding of the learned trial Judge on the mental state of the appellant at the time it was made is rather misplaced. The appellant gave his reason why he killed the deceased. It was not only the deceased he intended to kill but six others because they took all his properties and land. The reason and motive for the murder given by the appellant showed that the intention to kill the deceased was voluntarily designed and put into action. It was not dictated by any form of instability of the mind. In the circumstances, I would rather give credit to the learned trial judge for giving consideration to the defence of insanity even though it was not raised by the appellant.
In the case of OLADIPUPO V. STATE (1993) 6 NWLR (Part 298) 131 at 140 KUTIGI JSC reemphasized the point in the following words:
“It is a principle of criminal justice that any defence raised by an accused person, however weak, foolish or unfounded it may appear, must be adequately considered by the court. It is also immaterial to the consideration of such defences whether they are contradictory or inconsistent provided they are available or the totality of the evidence before the court and are not merely being formulated in the address or brief of counsel STEPHEN V. THE STATE (1986) 5 NWLR (Pt 46) 981.”
In this case the learned trial judge went even further to consider the defence even though it was not raised by the appellant and found that it does not help. I think what he did is right.
In the final analysis, I agree with the findings and conclusion reached by the learned trial judge as well as the conclusion reached by the learned counsel for appellant, that on the evidence available before the trial court, the appellant fired the gun shot and inflicted the matchet cut on the deceased intending to cause the death of the deceased. It is my view that the appeal lacks merit and I dismiss it accordingly. The conviction and sentence of death imposed by the trial court is hereby affirmed.
Other Citations: (1993)LCN/0154(CA)
