Alo Chukwu V. The State (1992)

LawGlobal-Hub Lead Judgment Report

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.

1. the appellant, at close range held a gun that discharged the smoke cartridge that exploded and killed the deceased;
2. 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;
3. 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;-

1. 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;
2. 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;
3. 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.A. G. KARIBI-WHYTE, J.S.C.: I had the privilege of reading the judgment of my learned brother Belgore, J .S.C in this appeal. I agree with him that this appeal lacks merit and should be dismissed. I shall however, say a few words in amplification. I adopt the facts of this case as stated in the judgment of my learned brother Belgore, J.S.C.

Appellant a Police Constable who was charged before the High Court Port Harcourt for the offence of murder, was on 23rd May, 1988 convicted for the murder of Wilfred Ned George under section 319 of the Criminal Code. The offence was committed on the 6th August, 1983 at George Ama, Rivers State where appellant was on duty as one of the Police constables posted to maintain law and order at the general elections of 1983. There were other Police Officers on duty. Appellant could remember the name of one Martin Besong. Wilfred Ned George, the deceased, was the Presiding Officer at the George Ama Polling Station on the 6th August, 1983. Appellant’s appeal to the Court of Appeal against his conviction and sentence was on the 10th April. 1990 unanimously dismissed.

This is an appeal against that judgment.

It is important to observe that both Appellant and Respondent agreed in the court below with the issues for determination as formulated by the appellant. The issues argued before the court below are as follows-

(a) Having regard to the nature of the defence put up by the appellant and the admission made by the prosecution witnesses PW5, 4, 6 & 8 that other Policemen were present at the scene, whether the said Policemen are material witnesses.

(b) Whether the failure of the prosecution in calling the said Policemen is fatal to the prosecution’s case.

(c) Whether the evidence adduced before the lower court did raise defence of provocation. self-defence and manslaughter and drunkenness. (sic)

(d) Whether there was proper evaluation of the evidence which raised those defences by the learned trial judge before the convicted the appellant.

(e) Whether the I.P.O. (P.W.9) investigated the case properly and if not, what is the legal effect of it.”

The Court below resolved all these issues against the Appellant and thereby dismissed his appeal.

Appellant has filed five grounds of appeal before this Court. There is an original ground, and with leave of this Court four additional grounds of appeal were filed. Arising from the grounds of Appeal, Appellant has formulated four issues for determination in this appeal They are as follows-

“I. Whether the judgment of the Port Harcourt High Court delivered on 23 May 1988 and affirmed by the Court of Appeal (Port Harcourt Division) on 10th April, 1990 by which the appellant was found guilty of murder and sentenced to death, is not perverse or that justice was not miscarried.

2. Whether the combined defences of self defence provocation and accident are available to the appellant and that he established same on record.
3. Whether the trial high Court judgment affirmed by the Court of Appeal is safe and satisfactory and ought not be disturbed by the Supreme court when:-

(i) The Police investigation was shoddy and wholly unsatisfactory, for amongst others the police ought to have taken statement from other eye- witnesses, especially Police Constable Martin Besong (Benson).

(ii) It is manifest on record that the trial High Court judge shut his eyes to proved facts in favour of the Appellant

4. Whether on the totality of the evidence before the trial High Court on record the Respondent discharged the onus of proof beyond reasonable doubt as required by section 137 of the Evidence Act”.

Learned Counsel to the Respondent adopted the formulation of issues for determination proposed by learned counsel to the Appellant.

Mr. Ozekhome, for the appellant adopted and relied on the appellant’s brief of argument, filed by Mr. Akinrinsola, who sought and was granted leave of this court to withdraw from the appeal.

In his argument in support of the first issue, learned Counsel submitted that the decision of the Court of Appeal which affirmed the conviction and sentence was perverse.

It was also submitted that the investigation of the offence was not satisfactory. The contention was because it was claimed that vital witnesses such as Martin Besong (Benson) and two constables were not called to testify. This it was argued is fatal to the case of the prosecution. Learned counsel argued that the evidence of all the witnesses of the prosecution was circumstantial and should not have been relied upon for a conviction for murder. He distinguished this case from Okpulor v. State (1990) 7 NWLR (Pt.164) p.581. Learned counsel preferred Onah v. State (1985) 3 NWLR (pt.12) p.236

Learned counsel to the appellant in his brief of argument strenuously tried to show that Appellant was speaking the truth and ought to have been believed by the trial Judge. Counsel tried to cast some doubt on the recollections of the trial Judge considering the period which transpired between the commencement of the trial and judgment.

In reply learned counsel to the Respondent submitted that evidence against Appellant was direct, positive and overwhelming. It was not circumstantial. It was submitted that the Police investigation was fair and adequate. The identity of the ‘corporal’ was known only to ‘appellant who had the onus to call him as his witness. It was not the duty of the prosecution – See Okpulor v. State (supra). Referring to the issue of Martin Besong, which appellant referred to, learned Counsel submitted that he was not a material witness to the prosecution as he was not present at the scene of the incident at the material time. Prosecution called all the material witnesses. Evidence of the tom uniform was not relevant as it occurred only after the shooting. It was submitted that the court did not use the demeanour of the Appellant in determining his credibility. He relied on the appraisal of the evidence.

The second issue concerned the defences of self-defence, provocation and accident. Learned Counsel to the appellant submitted that Appellant was entitled to the defences, either separately or in combination. He referred to section 24 of the Criminal Code, Stephens-Digest of the Criminal Law and R. v. Knock (1877) 14 Cox C.C. p. I Learned counsel to the Respondent submitted that none of the defences was on the evidence available to the Appellant. The defences are inconsistent with the evidence. Refers to Aganmonyin v. A.G. Bendel State (1987) 1 NWLR (Pt.47) 26; Ajunwa v. State (1988) 4 NWLR (Pt.89) 380; Nwede v. State (1985) 3 NWLR (Pt.l3) 444; Stephen v. State (1986) 5 NWLR (Pt.46) 978.

Submissions on the 3rd issue were based on submissions on the first issue. It was submitted that Appellant was under no legal duty to call any of the Policemen to testify or to sub-poena them. Counsel observed that the learned trial judge ought not have admitted the alleged gun used by the appellant. Counsel questioned whether indeed it was the gun used. It was argued that the gun allegedly used being a smoke gun, not loaded with cartridge could not kill. It was submitted that the prosecution did not prove the intention to kill. Learned Counsel to Respondent adopted the arguments in issue in reply.

Finally, on issue 4, learned counsel submitted that the prosecution did not discharge the onus of proof beyond reasonable doubt as required by section 137 of the Evidence Act. ”

Learned Counsel to the Respondent submitted that the prosecution had discharged the onus on it beyond reasonable doubt. The cases of sholuade v. Rep. (1966) 1 ALL NLR 134 and Dagari v. State (1968) 1 All NLR 249 were cited and relied upon. We were urged to dismiss the appeal and affirm the conviction and sentence.

I have carefully considered the arguments of learned counsel in this appeal. I shall begin this judgment by reformulating the issues for determination agreed to by counsel. In my consideration, the four issues could be reduced to two. The substance of the issues 1, 3 and 4 could be argued together in the general issue of (a) whether the trial High court judgment affirmed by the Court of Appeal is safe and satisfactory and ought not be disturbed by the Supreme Court. The second issue is (b) whether the combined defences of self defence, provocation and accident are available to the Appellant and that he established same on the record.

In my opinion, the two issues as formulated cover the grounds of appeal filed and the four issues formulated.

I shall in this judgment rely on, and consider only, the two issues I have formulated, herein.

The learned trial judge after findings of fact found as follows:

1. It was not in dispute that the deceased Wilfred Ned George died as a result of gun shot wounds. He relied on the evidence of the pathologist, and corroborated by PW3, PW4.
2. That Appellant was the person who fired the gun which killed the deceased. Learned trial judge relied on the evidence of PW3,PW4, PW6, who were eye witnesses to the shooting.
3. The learned trial judge rejected the evidence of the Appellant that the gun exploded under circumstances beyond his control.
4. The eye witnesses PW3, PW4, PW6 & PW8 recognised Exh. 1 as the weapon fired by the Appellant, PW8 who recovered Exhibit1 from the appellant after the shooting recognised it as the gun he handed over to the Police on 7th August, 1983. PW9, sergeant Abioye confirmed that Exhibit 1 was the gun he recovered from PW8. PW7, the Ballistician made no mistake that Exhibit 1 was the gun he examined, and he confirmed that Exhibit 1 and no other gun discharged the cartridge, the learned trial Judge then concluded as follows:

“In my opinion there is no matter of mistaken identity so far as Exhibit 1 is concerned, I hold that Exhibit was the gun and no other. The quantum of identification evidence is quite sufficient that Ex. 1 was the gun.”

5. On the ability of Exhibit 1 to kill, the learned trial Judge held on the expert evidence that “Ex. 1 could kill, and indeed did kill Wilfred Ned George, the deceased.
6. On the question of the evidence of the intention of Appellant to kill, the learned trial Judge held that “there was direct evidence that the accused intended to kill the deceased, the evidence was supplied by P.W.3, P.WA, P.W.6 who were very truthful eye witnesses.”
7. The killing was deliberate, voluntary; unjustified.

Thus on the finding of facts the death of the deceased occurred as a result of a voluntary, intentional, unjustified and unprovoked act of the Appellant. The court of trial whose duty it is to appraise evidence given at the trial, having seen and heard the witnesses came to the right conclusion.

The Court of Appeal will not normally disturb such findings and have accepted those findings. The learned trial Judge who did not believe the appellant described the defence of the Appellant as a tissue of lies, and his evidence as fabricated. It is well settled that the decision of a court of trial on the facts is correct – See Williams v. Johnson (1937) 2 WACA. 253.

Before this court, Mr. Ozekhome tried to show that the findings of the learned trial Judge accepted by the court below were perverse. I am unable to accept such a contention. The findings of the learned judge necessarily follow from the evidence as accepted by him. They remained uncontradicted throughout the trial. The court below was right to have affirmed.

The contention that the onus was on the prosecution to call Martin Besong (Benson), the unnamed corporal and three unnamed policemen seems to me strange. The law is well settled that the prosecution is to call all material witnesses – See R. v. Adebanjo (1935) 2 WACA 315. There is no obligation to call a witness unless his testimony has any bearing or relevance to the case of the prosecution. See R v. Yeboah (1954) 14 WACA 484. The evidence remained uncontroverted and uncontradicted that martin Besong (Benson) was not at the scene of the incident. He therefore cannot by any stretch of Imagination be a material witness. The contention that the unnamed corporal and three unnamed policeman who are not prosecution witnesses are material witnesses for the prosecution is contrary to established principles of proof. See S. 135, 138 Evidence Act. Since the Appellant knew these witnesses, the onus is on him to call them in support of his defence. See s. 138 Evidence Act. It is not for the prosecution which neither knows them, nor regards their evidence as material to call them as its witnesses.

On the evidence before the learned trial Judge, there is no doubt that the prosecution proved the essential ingredients of the offence with which Appellant was charged. The Court of Appeal was right to have affirmed the judgment.

I now turn to the defences of self-defence, provocation and accident raised by the Appellant. Section 24 of the Criminal Code relied upon by the Appellant will exclude criminal responsibility where established. This is because it provides that

“Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident.”

Where the voluntary act results in an event which was neither intended not forseen, the consequence is an accident. Hence in Iromantu v. State (1964) 1 All N.L.R. 311, it was held that a person who discharges a firearm unintentionally and without the attendant criminal malice or negligence will be exempt from criminal responsibility both for the firing and for its consequences.

The evidence which the court believed in this case took the act out of the defence. This is because P.W.3, P.W.4 and P.W.6 who gave eye witness account of the incident testified that Appellant, aimed at and intentionally fired at the deceased. This cannot be regarded as an accident. On the facts as found the defence of accident is clearly not available to the appellant.

Appellant also relied on the defence of provocation. The term “Provocation” as defined in section 283 of the Criminal Code is in relation to an offence of which an assault is an element. It includes” any wrongful act or insult of such a nature as to be likely to when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, or in relation of master or servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.”

It is clear from this definition that a person who relies on a defence of provocation admits the commission of the assault or the doing of the intentional act, but seeks an excuse on the grounds of the wrongful act or insult done to him or some other person.

Hence when the act based on provocation as a defence results in the killing of another, the defence is only available to reduce the offence from murder to manslaughter, if the act which causes death was done in the heat of passion caused by sudden provocation, and before there is time for his passion to cool – See S. 318 Criminal Code – See John v. Zaria N. A. (1959) NRNL 43. It is not sufficient merely to raise provocation as a defence. There must be evidence on record in respect of which the court can find that accused was provoked within the meaning of section 283 of the Criminal Code. There was no evidence in the instant case by the Appellant of the act or insult from the deceased which constitutes provocation. – See Alonge v. R. (1964) I All NLR 115. He did not even give evidence of the person from who the provocation flowed. – See R v. Ebok (1950) 19 NLR 84. Even if there was provocation, there must be evidence that deceased was among the group which offered the provocation.

There are three essential elements of provocation. There is the act of provocation and in homicide, it must be grave and sudden: then the loss of self control both actual and reasonable. Then finally, the retaliation, which must not be disproportionate to the provocation – See sections 284 and 318 of the Criminal Code – See Lee Chun Chuen v. The Queen (1962) 3 WLR 1461. These are all questions of fact to be established by the person relying on the defence – See s. 138 Evidence Act.

There was in the instant case no evidence from which the learned trial Judge could find provocation within the meaning of our law. He was therefore right to have rejected the defence. The Court of Appeal was also right to have agreed with him.

I must however point out the conceptual inconsistencies in the defences raised on behalf of Appellant by learned Counsel. The contention was that Appellant was relying on the defences of provocation, self-defence and accident either separately or in combination.

It must be stated positively and clearly that the defence of accident and the others stated are mutually exclusive. This is because provocation and self-defence admit the intentional doing of the act resulting in the injury. Accident is a negation of intention. Reliance on all the defences on the same evidence shows some misconception about the nature of the defences. Whereas the defences can be considered separately where there is evidence in support, as I said, the defences of provocation and self-defence may be raised on the same facts. It is not possible on the self-same facts also to rely on the defence of accident.

Learned Counsel to the Appellant raised the length of the period between trial and judgment and submitted that this could have affected the evaluation of the evidence by the learned trial Judge. Contrary to such a speculation, the findings of fact were meticulous and detailed. Learned Counsel did not point at any finding which could be faulted by delay.

In Ariori v. Elemo (1983) 1 SCNLR 1 at p.8 where lapse of time was relied B upon for setting aside the judgment of the trial Judge, the Court pointed out six specific errors resulting from the lapse of time and said.

“We are of the view that these misdirection and non-directions by the learned trial judge resulted from the protracted and inordinately long period the proceedings took before him and in consequence, re lost the advantage, which as a trial court it undoubtedly had, of seeing and forming fair impressions of the witnesses and in the evaluation of the evidences: in addition. he failed to direct himself properly on the onus posed in the pleadings. The result in our view, is that grounds 3 and 4 succeeded.”

The complaint by the plaintiffs was that the learned trial judge took a long time after the conclusion of the case before he delivered judgment and by this reason he was not in a position to appreciate the issues in the case in a proper focus or remember his own impressions of the witnesses.

As I have already observed the same criticism cannot be made of the trial judge’s findings in the instant case.

For the reasons I have given in this judgment and for the reasons given in the judgment of my learned brother Belgore J.S.C” I also will and hereby dismiss the appeal.

The judgment of the Court of Appeal, affirming the judgment of the High Court Port Harcourt delivered on the 23rd May, 1988 is hereby affirmed.A. B. WALI, J.S.C.: I have read before now the lead judgment of my learned brother, Belgore, J.S.C. which has just been delivered. I entirely agree with his reasoning and conclusion that this appeal lacks merit and should be dismissed.

For these reasons stated in the lead judgment which I adopt as mine, I too will dismiss this appeal and hereby accordingly dismiss it.

The conviction and sentence passed on the appellant by the trial court and affirmed by the Court of Appeal are hereby affirmed,

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SC.151/1990