Andrew Idemudia V. The State(1999)
LAWGLOBAL HUB Lead Judgment Report
I. KATSINA-ALU, J.S.C.
The appellant Andrew Idemudia was charged in the Mbano/Etiti High Court of Imo State with the murder of one Ngozi Okpara contrary to section 319(1) of the Criminal Code Cap. 30 Vol. II Laws of Eastern Nigeria 1963. He was tried and convicted. He was sentenced to death. On appeal to the Court of Appeal, that court dismissed the appeal and affirmed his conviction and sentence. The appellant has further appealed to this court.
The prosecution’s case is that on 19 November, 1985, the appellant and four other police officers were on duty at a police check point at Onu Imo Etiti-Umuahia Road, in Imo State. At about 9.a.m. P.W.1 drove up in a Hiace bus reg. No. RV. 6133 D. He was carrying his church co-members to a graduation ceremony at Assembly of God Mission Divinity School Old Umuahia. The group was singing and praising God. The appellant stopped the vehicle and questioned P.W.1 as to their destination. P.W. 1 told him. He then asked P.W. 1 to alight and he did. According to P.W.1 the appellant demanded some gratification. He said he told the appellant that the persons he was carrying were not fare paying passengers. The appellant was delaying the vehicle unnecessarily and it was on the intervention of P.W.5 the Inspector in charge of the check point that the appellant let him go.
On their way back, P.W.1 met the same officers at the check point. The appellant waved them on. P.W.1 moved on and was ascending the Umungwa village hill when a taxi 504 Peugeot carrying the appellant overtook him and blocked the road. P.W.1 stopped. The appellant then broke the front windscreen of the bus with the butt of his gun. P.W. 1 asked why he behaved so. According to P.W.1, it was at that stage that the appellant put the nozzle of his gun (Exhibit “D”) inside the bus and opened fire instantly killing Ngozi Okpara and injuring others. P.W.1 managed to escape and reported the incident to Umuopara police station.
The appellant testified on oath in his defence but called no witness. His case is that he was on a road block with P.W.5 and P.W.7 when the bus driven by P.W.1 approached the check point. P.C. Alphonsus waved the bus to stop but it did not. Constable Alphonsus stopped another vehicle and pursued it. When he did not return, the Inspector (P.W.5) ordered him to go and find out what happened. On arrival at the scene he saw people beating up P.W.7. He went to stop the fight but the people turned on him, beat him up and tried to remove his rifle. While they were struggling for the rifle, it accidentally went off. As I have already indicated, the learned trial Judge convicted the appellant of murder as charged and sentenced him to death.
At page .1 of the appellant’s brief three issues were formulated for determination in this appeal. They read:
“(i) Whether the trial, conviction and sentence passed on the appellant are a nullity in view of the failure of the trial court to comply strictly with the provisions of section 215 of the Criminal Procedure Law Cap. 31 Laws or Eastern Nigeria 1963 applicable in Imo State as well as section 33(6) (a) of the 1979 Constitution.
(ii) Whether failure of the prosecution to call as a witness the person who was said to have identified the corpse of the deceased to the doctor who performed the autopsy (P.W.4) is fatal to the case of the prosecution.
(iii) Whether the prosecution proved its case beyond reasonable doubt,’
For its part the respondent raised the following issues for determination:
(i) Whether the non writing down of the trial Judge that the appellant/respondent understood the language of the court which is English and in which language the appellant testified amounted to any miscarriage of justice and extended to section 215 of Criminal Procedure Cap. 31 of Eastern Nigeria 1963 applicable in Imo State and section 33(6) (a) of the 1979 Constitution.
(ii) Whether the State (respondent) proved beyond reasonable doubt the identity of the body of the deceased notwithstanding it’s (sic) failure to call John Egwim to testify.
(iii) Whether the prosecution proved its case beyond reasonable doubt.”
The issues raised by the parties are identical
Issue No.1
This issue is whether the trial, conviction and sentence of the appellant are a nullity in view of the failure of the trial court to comply strictly with the provisions of section 215 of the Criminal Procedure Law Cap. 31 Laws of Eastern Nigeria 1963 applicable in Imo State as well as section 33(6) (a) of the Constitution of the Federal Republic of Nigeria. 1979. On 8 June 1988, this matter came on for hearing before Pats-Acholonu J. The record shows that although the appellant was present in court, he was not represented by counsel. The trial Judge however took his plea. The record for that day reads:
“The accused is present in court. Esowe (Mrs.) for the State, charge read to the accused. On the 1st count, the accused pleads as follows:
I am not guilty. Accused says his counsel is not in court.”
It is what “transpired on that day that has been criticised. It was said that the conditions laid down in s.215 of the Criminal Procedure Law and s.33(6) (a) of the 1979 Constitution are to guarantee the fair trial of an accused person. Therefore where there has been non-compliance with these conditions, the entire proceedings must be a nullity. I find it necessary, at this stage, to read s.215 of the Criminal Procedure Law and section 33(6)(a) of the 1979 Constitution. Section 215 of the Criminal Procedure Law reads:
“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has been duly served therewith.”
And section 33(6)(a) of the 1979 Constitution provides:
“(6) Every person who is charged with a criminal offence shall be entitled –
(a) to be informed promptly in the language that he understands and in detail of the nature of the offence.”
By the combined effect of these provisions a valid and proper arraignment of an accused person, must satisfy the following requirements:
(1) he shall be placed before the court unfettered unless the court shall see cause to otherwise order;
(2) the charge or information shall be read over and explained to him in the language he understands to the satisfaction of the court by the registrar or other officer of the court; and
(3) he shall then be called upon to plead instantly thereto.
Failure to comply with any of these requirements will render the whole trial a nullity. See Kajubo v. The State (1988) 1 (Pt. 73) 721; Eyorokoromo v. The State (1979) 6-9 SC 3. In the instant appeal the record of the trial court on 8 June 1988, which I have reproduced earlier on in this judgment, clearly shows that the charge was read to the appellant. What is not apparent on the record is whether the charge was explained to him in the language he understands to the satisfaction of the court.
He pleaded to the charge.
It has been submitted on behalf of the appellant that the record of the court must show the language in which the charge was read to the appellant. The record must show that the charge was explained to the appellant to the satisfaction of the court. I think the proposition is too widely stated. I do not think these requirements are applicable in every case. Procedural sections are usually mandatory. They are, as here, often inserted for the protection of accused persons, to ensure that they received a fair trial. The mandatory nature of section 215 of the Criminal Procedure Law is buttressed by section 33(6) of the Constitution.
Having said that the question must be asked: What category of accused persons do section 215 of the Criminal Procedure Law and section 33(6)(a) of the 1979 Constitution aim to protect The language of the court is English. A vast majority of the people in this country are not literate in the English language. I believe and indeed I am convinced that the person the lawmaker had in mind to protect by these provisions was the illiterate Nigerian. If this were not so the phrase “in the language he understands” would become meaningless. This phrase surely presupposes that the accused person does not understand the language of the court which is English. In Kajubo v. State (supra) Oputa, J.S.C, said “It is a notorious fact that English, the language of the court, the language in which charges and information are drafted, is not the mother tongue of Nigerians. It is also correct that most Nigerians are illiterate in English.
The cases of Kajubo v. State (1988) 1 NWLR (Pt. 73) 721; Eyorokoromo v. State (1979) 6-9 SC 3; and Erekanure v. State (1993) 5 NWLR (Pt. 294) 385 relied upon by the appellant were decided by this court. The failure to state the language in which the charges were read and explained to the accused persons, among other things, rendered the trials a nullity. The reason is obvious. Because in all of these cases the accused persons did not understand the English language and there was the need to comply strictly with the procedural provisions of section 215 of the Criminal Procedure Law and section 33(6)(a) of the Constitution to ensure fair trial. In Erekanure’s case for example, the accused spoke Urhobo language. In such situations the failure of the trial court to read the charges and explain to them in the language they spoke vitiated the entire proceedings.
In the present case, however, the appellant is literate in the English language. He pleaded to the charge in the English language and gave his evidence in the English language. He was a police officer. The record discloses that he understood and appreciated fully the nature of the charge. In my judgment the aspect of the provisions of section 215 of the Criminal Procedure Law of Imo State and section 33(6)(a) of the 1979 Constitution requiring, by implication, the interpretation from English language (used in court) to any other language were inapplicable in the circumstances of the present case. Issue one therefore fails.
Issues 2 & 3
The main issue here is whether the failure of the prosecution to call as witness the person who identified the body of the deceased to the doctor who performed the autopsy is fatal to the case of the prosecution. Could it be said that in the circumstances of this case, the prosecution proved its case beyond reasonable doubt.
It was pointed out that the prosecution called Dr. Nwosu who performed the post-mortem examination on the body of the deceased. He testified as P.W.4. Although it was said one John Egwim identified the body of the deceased to P.W.4, the said John Egwim was not called as a witness. It was submitted that in a trial where the prosecution intends to establish the cause of death by relying on a medical report, it is necessary to call evidence which will establish that the body examined by the medical officer concerned was definitely the body of the deceased. Learned counsel for the appellant relied on the cases of Enewoh v. State (1990) 4 NWLR (Pt. 145) 469 and Okoro v. State (1988) 5 NWLR (Pt. 94) 255.
This was a criminal trial and in all criminal trials the onus is on the prosecution to establish its case beyond reasonable doubt. See Esangbedo v. State (1989) 4 NWLR (Pt. 113) 57; Egbe v. The King 13 WACA 105; Ozaki v. The State (1990) 1 NWLR (Pt. 124) 92. In a murder trial the prosecution must show conclusively that death was caused by the act of the accused. In other words there must be a nexus between the act of the accused and the death of the victim: see Lori v. The State (1980) 8-11 SC 81 at 95 and 96.
It is now settled law that medical evidence, though desirable in establishing the cause of death in a case of murder, is not always essential. Where the victim dies in circumstances in which there is abundant evidence of the manner of death medical evidence can be dispensed with. See Lori v. The State (supra): Bwashi v. The State (1972) 6 SC 93; Adanu Kumo v. The State (1968) NMLR 227. That is the situation in the instant appeal. There is abundant evidence from eye-witnesses that the appellant shot and killed Ngozi Okpara instantly. Medical evidence on the circumstances of her death was clearly not essential.
In the light of what I have said, I am unable to accept the submission that the person that identifies the body of a deceased to a doctor must be called as a witness. The desirability to call a person is only in circumstances where the identity of the body examined by the doctor is shrouded in doubt. Where the identity of the deceased can be inferred from the circumstances of the case, then such direct evidence is not essential. In fact this is the decision of this court in the cases of Okora v. The State (supra) and Enewoh v. The State (supra) cited by the appellant. As the respondent rightly, in my view, submits, proof of identity of the deceased can be by direct or circumstantial evidence provided such circumstantial evidence leads irresistibly to one conclusion that the autopsy performed was on the body of the deceased.
Although, in the present case, John Egwim who identified the body of the deceased to P.W.4 was not called to give evidence, there is copious evidence from the testimonies of P.W.4, P.W.2 and P.W.5 from which identity of the deceased could be inferred. In his evidence-in-chief P.W.1 Michael Okeke testified thus at page 24 of the record:
“I know Ngozi Okpara – deceased. She was a member of my church.
At page 26 he said:
“Apart from Ngozi who died on the spot …”
P.W.2 Cyprian Anyanwu is a pastor. He gave evidence and said at page 30 of the record:
“I know Ngozi Okpara – who belonged to the same sect as I … ”
At page 31 he stated:
.;… the accused came and shattered the windscreen of our vehicle and commenced shooting at us. We started shouting and screaming. We found out that some of our members were caught by the bullets. Ngozi Okpara for example died on the spot…”
In addition there is the evidence of P.W.5 Kenneth Uzodinma Obi. He was an Inspector of Police. The appellant worked under him at the road block on the afternoon in question. When passers-by alerted him about the incident, he went to the scene.
In his evidence at page 36, he said:
“I then called 3 other constables with me and we left for Umungwa-Umuahia road, I saw Nissan bus packed at the left side of the road with the whole glasses shattered. I looked into the Nissan bus and at the back seat, I saw a young girl about /5 years in a pool of blood lifeless … ”
Ngozi Okpara was the only person that died on the spot. Surely there is direct and positive evidence of the killing of young Ngozi Okpara. She met a violent death at the hands of the appellant. As I have held earlier, in the circumstances of her death, medical evidence was clearly unnecessary. That notwithstanding, the medical evidence presented by the prosecution unequivocally established the cause of death and also provided the necessary nexus between the death of the victim and the act of the appellant. The doctor P.W.4 Dr. Nwosu testified and said the cause of death was haemorrhage from multiple gun shot wounds. He also said the deceased was shot at least three times. I have no doubt whatever in my mind that the evidence presented by the prosecution shows plainly that the body on which P.W4 performed the autopsy was the body of the deceased – Ngozi Okpara.
One last point. As I have already pointed out, the evidence against the appellant was overwhelming. P.W.1, P.W.2 and P.W.3 gave eye-witness account of the incident. In his evidence-in-chief P.W.1 Michael Okeke testified inter alia:
“On that I was conveying the above named people to the graduation ceremony of Assembly of God Mission Divinity School, Old Umuahia. On our way -something happened. My passengers were singing and praising God. On approaching Onu Imo police check point, the accused a Sgt. stopped us and asked us where I was going. I told him where we were going. He asked me to come down. I did. He removed the branches of flower stems I put in front and at the back. He asked me to give him something. I told him that these were no passengers. I told him I was carrying them free in my commercial vehicle. He took me to the back. When their Inspector noticed that he was wasting my time, he asked the accused to leave us that we were church people. This happened at around 9a.m. On coming back, my passengers were still singing. At about 4. p.m, the accused stopped us I cleared to the right. The Inspector asked us to move as we were the church people. I started, on climbing Umungwa village hill; I did not know someone was following me behind. A taxi 504 which overtook us and the accused caused the vehicle to block us. He asked me to stop or he would open fire on me. I asked the driver in front to move a bit further in as the order was so sudden. When I cleared he used the butt of his gun and broke my windscreen and shattered it. He then turned back to where he came from my steering wheel I turned at him and shouted ‘What is happening’. Then he put the nozzle of the gun inside the vehicle at the inside and opened fire on them. There was commotion at the back. There was so much blood.
“Apart from Ngozi who died on the spot.”
(Italics for emphasis)
P.W.2 Cyprian Anyanwu is a pastor. He was in the bus driven by P.W.1. P.W.3 Anastina was also in the bus. Both of them gave evidence in line with the testimony of P.W.1. As I have already indicated they gave eye-witness account of the incident.
In his defence the appellant gave this evidence. He said:
“At about 4 p.m. a white Nissan bus was coming from Umuahia heading towards Etiti. P.C. Alphonsus who was on the other side of the road stopped the vehicle and pursued it. At an interval when he did not return, Inspector crossed to my side. He ordered me to find out why the other constable had not returned. I then entered the vehicle to search for Alphonsus. I did not order Alphonsus to go after the Nissan bus – on getting near Umungwa, I saw the constable in the midst of many other people – they were beating him. He was not armed. I went to separate them. I had my arm along with me. There people then pounced on me and started beating me. Some of them gripped my rifle and held the butt and we were struggling over it. During the struggle, the gun exploded in rapid succession.” (Italics for emphasis)
The appellant’s claim that he saw many people beating Constable Alphonsus at Umungwa and he went to separate them was falsified by the testimony of Constable Alphonsus himself. He testified as P.W.2 At page 40 of the record he said:
“On 29/11/85 at about 4-5 p.m. were at Onuimo road block in company of others under the command of Inspector Kenneth Obi. While there, we saw 2 vehicles coming from Umuahia as we waved them to stop, the one in front of the Hiace bus refused to stop. Sgt. Idemudia ordered me to chase the vehicle which I did. I caught up with the vehicle. The driver still refused to stop. I took down the number and started coming down on foot. As I was coming back. I saw Sgt. Idemudia inside another 504. He stopped mid asked me what about the people he asked me to chase. I told him that the man refused to stop, that I only copied the number. He then started chasing them while I started coming down on foot. Then I heard a song of gun shot.(Italics mine)
I have carefully considered the evidence called by the prosecution and the defence and I am of the view that there was an abundance of evidence to justify the conclusion at which the learned trial Judge arrived. I have equally considered the possible defences of provocation, self-defence and accident open to the appellant. I am of the firm view that none of those defences avails the appellant. It is settled law that provocation offered by one person cannot be a ground for killing another who did not offer such provocation -see Omeninu v. The State (1966) NMLR 356: Ukwunneyi v. The State (1989) 4 NWLR (Pt. 114) 131 at 148. The refusal of P.W.1 to stop his vehicle when he was ordered to do so did not and cannot amount to provocation. Even if it did it does not justify the killing of young Ngozi Okpara who did not offer such provocation.
The defences of accident and self-defence also did not avail the appellant.
There is abundant evidence, from eye-witnesses, some of whom suffered gun shot wounds, that the appellant unleashed a premeditated attack on them by firing his gun into the bus thereby killing Ngozi Okpara instantly and wounding several others. The appellant was armed for a fight. The deceased and the others were helpless. He was clearly the aggressor and in the circumstances of the case the killing amounted to murder.
For all I have said above, this appeal fails and is dismissed. I affirm the appellant’s conviction and sentence.
SC.61/1996
