Alo Chukwu V. The State (1992)
LawGlobal-Hub Lead Judgment Report
S. M. A. BELGORE, J.S.C.
The charge against the appellant, Alo Chukwu, at the trial court, was that he murdered one Wilfred Ned George on 6th day of August. 1983 at George – Ama, Okrika in the Port Harcourt Judicial Division of Rivers State, and thereby committed an offence contrary to Section 319 of the Criminal Code. The 6th day of August 1983 was the day of the election for the President of the Federal Republic of Nigeria all over the Federation and the appellant was one of those policemen posted to George – Ama to maintain law and order. The deceased, Wilfred Ned George, was a Presiding Officer at George – Ama. At the end of the voting the deceased together with other persons concerned with the officiating at the various polling stations, including the appellant and other policemen, went to the George – Ama waterside to join a boat to convey them and their voting materials to Okrika mainland. It was when they were thus awaiting the arrival of the boat that the appellant pointed his gun at the people waiting as described above. The deceased and others waiting objected to the appellant thus pointing the gun at them. Shortly the appellant, at very close range, aimed the gun and pulled the trigger. The smoke (tear gas) grenade was thus fired and at that close range some witnesses said about three to four yards, but certainly it was very close……. it hit the deceased who fell down at the spot. There followed pandemonium. The appellant and two other policemen, perhaps to avoid irate mob, fled and took refuge in the house of Chief Jacob George (P.W.8). P.W.8 took the gun from the appellant, even though some witnesses said the appellant dropped his gun before fleeing, this is not a material fact. Lapse of time might have affected memory of what happened to the gun after the appellant fired it at the deceased. What was material is that the appellant was the one that fired the gun. The deceased was certainly fatally wounded and when he was carried to the hospital he died.
The appellant gave evidence but called no witnesses. His defence was that the villagers at Waterside where the team was to take a boat to Okrika were shouting at them for not allowing them to rig the election, and that they would not be allowed to go to Okrika. They then set on him and were beating him. At that time another policeman by name Martin Besong had not reached the Waterside (meaning he was not present to witness the occurrence). The appellant said he was knocked down and the deceased was appealing to the crowd to leave him. It was when he was on the ground struggling to get up that the smoke cartridge he had slotted into the gun accidentally went off and hit the deceased. There was one other Corporal, whose name he never gave, who was also beaten and ran to the house of P.W.8 with him after the gun went off and he was with this Corporal up to the next morning when an Assistant Superintendent of Police came to take them away. The appellant mentioned one Besong as being present at the scene; but Besong said he was not at the scene. The P.W.8, in his evidence which was not impeached, said the appellant and two policemen ran to take refuge in his house but that he saw no injury on any of them. The trial Court believed the evidence of the prosecution and disbelieved the solitary evidence of the appellant; this was after a thorough appraisal of all the evidence before him. The grouse of the appellant was that Besong was not called and that failure of prosecution to call him was fatal to the prosecution’s case. The Court of Appeal adequately considered this submission during the appeal to that Court. Olatawura, J.C.A. (as he then was) in the leading judgment of the Court of Appeal rejected this submission and held inter alia as follows:-
“The counsel for the prosecution is not bound to call a host of witnesses, once he can call sufficient number of witnesses to establish the case: Samuel Adaje v. State (1979) 6-9 S.C. 18/28;
Udofia v. State (1971) S.C. 36 of 9/7/71. Where the prosecution knows that a material witness will not speak the truth or give material evidence, the prosecution is not bound to call him: Eke v. Queen (1960) F.S.C. 219 of 30/11/60; (1960) SCNLR 571.The prosecution is not bound to produce all and every possible evidence.”
Though not raised before us as a ground is the fact that most of the prosecution witnesses came from the George – Ama Community and the trial judge ought not to have believed them. Olatawura, J.C.A. (as he then was) briefly dealt with this in a remarkably beautiful way, to wit.
“In a situation like this nothing stopped the appellant from calling those policemen who were present. A case is not lost on the ground that those who are witnesses are members of the same family or community. What is important is their credibility and that they are not tainted witnesses. The prosecution should not be encouraged to call hired witnesses. Justice will be defeated if the prosecution of any accused person can only commence when and only when the witnesses are neither related to the accused nor are nonmembers of the same family.”
In all criminal cases it is the duty of the prosecution to call all material witnesses to prove its case. But the prosecution shall call only those necessary to discharge this burden. Those witnesses whose evidence may not be material need not be called and if an accused strongly is of the view that a witness is material to his defence it is his duty to call him, not that of the prosecution. P.W.9, the investigating Police Officer, felt the evidence of Besong was not necessary as he (Besong) had maintained he was not at the scene when the accident took place.
The Court of Appeal dismissed the appellant’s appeal and he has appealed to this Court. But I have to restate the following facts that are undisputed.
- the appellant, at close range held a gun that discharged the smoke cartridge that exploded and killed the deceased;
- that the appellant thereafter ran to the house of P.W.8 who gave him refuge and that two other policemen soon followed the appellant and also took refuge;
- that certainly the discharge from the gun led to fatal injuries the deceased suffered.
However the issues formulated for determination on behalf of the appellant in this appeal may be summarized as follows;-
- That the judgment was perverse because Besong who was present during the incident was not called and that the Court of Appeal was wrong to have upheld the trial Court’s decision and whether this ought to be a reason to allow this appeal;
- Whether the defences of provocation and self defence which the appellant raised were adequately considered by Court of Appeal in upholding the decision of the trial court;
- Whether the Court of Appeal was right in upholding trial court’s decision in view of the shoddy investigation of the case by the police which the trial court ignored.
As I have held earlier once convincing proof is made by the prosecution to a level beyond reasonable doubt its onus is discharged. The number of witnesses is not of importance; what is important is the degree of proof. To my mind Martin Besong who gave statement to P.W.9 that he was not at the Waterside when the shooting took place and the evidence of the appellant himself that this man had not arrived was enough for prosecution not call him as a witness. If he was all that important it was the duty of the defence who claim the importance of his evidence to call him. But it is not always that a host of witnesses must be further called once the prosecution has proved its case (Adaje v. State (1979) 6-9 S.C. I am unable to find anything perverse in the decision of the Court of Appeal holding that the appellant had fair trial in the High Court. The prosecution called its witnesses to prove its case which met the evidential onus probandi. The appellant was availed every opportunity to put up his defence. He gave evidence and never called any witness. There is nobody the appellant mentioned as his witness that was not called. The appellant alleged Besong was not present at the scene of crime when the incident took place.
What is apparent on the record is that the appellant aimed his gun and pulled the trigger whereby the smoke grenade in the gun exploded and at close range hit the deceased. The deceased was not attacking the appellant physically. Self defence, to succeed, must be proved to be a response to an attack and it was the attacker or assailant that was the one to be hit back. The deceased was not claimed by the appellant to be his assailant whereby he would be entitled against him to an act of self-defence. Assuming it was true the appellant was physically attacked by a mob, a claim disbelieved by the trial court, the act of self-defence must not only be against those that attacked him but must be commensurate in force with the gravity of the alleged attack. A patently dangerous weapon like a gun with a smoke shell cocked in it and fired directly at a person at close range could hardly be described as self-defence to an attack whose ferocity is unexplained by the appellant. At any rate the evidence believed by the trial court which the Court of Appeal never had reason to disturb was that the appellant was attacked after he fired the gun that killed the deceased and that was why he had to run to take refuge. Throughout the trial the appellant’s claim that he was singled out for attack before the firing of his gun could not be explained as all those at the scene including the deceased were mainly officials for the election.
The defence of provocation seems to be totally out of place in this case in view of an the evidence. What is alleged is the accusation that the appellant was among those who prevented fraud at the election so that the election was hitch-free. The defence connotes that the appellant fired his gun and killed but he did not state the provocation that brought this fate on the deceased. He never testified that the deceased provoked him in any way.
The other issue raised was that of accident. The evidence amply before the trial court and believed by it and upheld by the Court of Appeal is that the appellant, at close range, having a tear gas (smoke) gun with a smoke shell (cartridge) inside, deliberately aimed at the deceased after he cocked it and fired it by pulling the trigger. This is not an accident. The conduct of the appellant some moment before the tragic shooting showed him menacingly waving the gun which gave rise to protests from those present, with the appellant at the same time threatening. He came back to shoot.
On the aforementioned reasons I find no merit in this appeal and thus I have no reason to disturb the judgment of the trial court which was upheld by the Court of Appeal. I dismiss this appeal and uphold the decision of the Court of Appeal which affirmed the conviction and death sentence passed on the appellant by the trial court.
Other Citation: (1992) LCN/2505(SC)
