Anthony Igbo V. The State (1975)
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OBASEKI, AG. J.S.C.
The appellant was on the 23rd day of September, 1974, convicted of the murder of one Paul Dunu by Umezinwa, J. sitting at Aba in the Aba Judicial Division of the High Court of the East Central State of Nigeria and sentence to death. Being aggrieved by the conviction and sentence he appealed to this court.
But at the hearing of the appeal on the 13th day of November, 1975, Mr. F.O. Akinrele, counsel assigned to argue the appeal, announced that he had nothing to urge in favour of the appeal. Mr. H.C. Oguchi (Principal State Counsel) appearing for the Respondent thereupon urged the Court to hold that the conviction was justified by the evidence on record. On a careful study of the record of proceedings, we felt satisfied that the conviction was fully supported by the evidence adduced and accepted by the learned trial Judge and we dismissed the appeal. We now give our reasons.
As already stated above, the offence for which the appellant was tried was murder charged in the information as “murder contrary to Section 319 (1) of the Criminal Code Law Chapter 30 Vol. II Laws of Eastern Nigeria 1963 applicable in the East Central State of Nigeria”. The facts of the case as found by the learned trial Judge are as follows:- On the night of the 8th day of March, 1973, the appellant and the deceased, Paul Dunu, a boy of 10 years of age were among the crowd of spectators who watched a film show at the Rex Cinema Hall Aba. Also present in the crowd was one Ndubusi Obiekwe who testified as the 3rd prosecution witness. While the deceased was watching the film show his mother Selina Dunu who testified as the 4th prosecution witness was busily engaged in selling cooked food to the public at the Aba Motor Park. The film show ended at about 10.30 p.m. to 11.00 p.m. and then the crowd began to leave the Hall. As the crowd moved out there rang out from among the crowd shouts of ‘Pick-Pocket’ ‘Pick-Pocket’. Apparently these shouts were rung through the crowd as a warning to them.
It appears they focussed the attention of some members of the crowd on the appellant, for his reactions, which could not be explained otherwise, were, as we shall see later, those typical of uncontrolled excited aggression. Irritated by the shouts, the appellant grabbed one boy whom he suspected was ringing the words out and queried him but the boy quickly denied ringing out the words ‘Pick-Pocket’ ‘Pick-Pocket’ while at the same time pointing to the deceased as the person. Satisfied with the denial, the appellant released the boy from his grip and made for the deceased. He then grabbed the deceased and dragged him into the Cinema Hall and without listening to or answering the enquiry of P.W.3 as to what he had done pushed the boy’s head against a row of iron chairs and then threw the boy down leaving him to fall on his back and bleed from the head. The impact of the iron chairs on the boy’s fore-head injured his fore-head and drew blood from the area.
Not content with the injury he has inflicted so far on the boy, he turned again with fury on the deceased where he lay and lifting up his leg stamped his foot on the stomach of the deceased with force. Horrified by this action P.W.3 hastened to inform P.W.4 the mother of the deceased of the serious assault on her son. P.W.4 hastened with P.W.3 back to the Cinema Hall but before they arrived the deceased had been carried out of the Hall.
As they arrived P.W.3 saw Appellant come out from the Cinema Hall rolling his bicycle and he identified him to P.W.4 the mother of the deceased. P.W.4 rushed up to the appellant held his bicycle and asked for the grounds or reasons for assaulting and inflicting such injuries on her son. The question provoked the appellant and as he was about to beat her up as well, P.W.3 cut in, advised her to leave him assuring her that he could identify the appellant anytime. She then left the appellant and took the deceased to New Era Hospital for treatment.
There he was treated. He was not admitted but his wounds were stitched and he was asked to go home and report the following morning. She took him home but he had a restless night complaining of pains in the stomach all night. She observed on having a closer look at him that his stomach was distended. On the following morning she took him back to New Era Hospital for further treatment. It is also on record that after the deceased was rushed to New Era Hospital the previous night, P.W.3 rushed to see P.W.2 Dick Dunu, the father of the deceased at the Inland Revenue Office, Aba and gave him information about the assault on and the condition of his son (the deceased).
As he was working as a night watchman at the Inland Revenue Office, he directed that the deceased be taken to the Hospital for treatment and intimated that he could not leave his post. However, when a Policeman called later and advised him to see for himself the condition of his son, he rushed to see him in the New Era Hospital. He saw him in the theatre room and observed that the open wound on his forehead was being stitched. He returned to his place of work and on getting home in the morning he found the deceased writhing in pain. As the deceased was not given admission into New Era Hospital the parents (P.W. 2 and P.W.4) took him to Dr. Ohaeri’s Hospital. T
here he was given admission and treated but died the following day from the injuries inflicted by the appellant. To ascertain the cause of death a Post Mortem Examination was conducted by Dr. Fidelis Umeha Ozougwu. His findings were according to his evidence as follows:- “It is a fresh corpse without rigor mortis. There was bloody foam oozing from the nostrils. The abdomen was distended. The heart, lungs and spleen had neither inflammation nor traumatic changes. Both kidneys were slightly pale. There was a traumatic rupture of the liver. In my opinion the cause of death is internal bleeding due to the traumatic rupture of the liver. The rupture of the liver must have been caused by an external force on the liver-side of the abdomen ………….. a kick on the abdomen could rupture the liver.
On these facts, the learned trial Judge found the appellant guilty and sentenced him to death.
Against this conviction the appellant filed a Notice of Appeal containing 4 grounds of appeal which read as follows:-
(1) That the verdict cannot be supported having regard to the evidence.
(2) That a case of assault against me was reported to the Police by the complainant.
(3) That a single witness is not enough to warrant my conviction whereas the assault was said to have been committed in a public place.
(4) There is clear reflection of manslaughter in this case instead of murder as charged by the prosecution.
We have stated earlier on that none of these grounds was argued as Counsel could find no substance in them.
We shall deal with them separately in the following order:-
Firstly Ground 2
Secondly Ground 3
Thirdly Ground 4 and
Lastly Ground 1
We observe that Ground 2 is no ground of appeal. It complains of nothing. The fact that a complaint of assault was made to the Police immediately after the assault on the deceased by the deceased’s parents when the deceased was still alive is no bar to a prosecution for murder of the deceased who died within a few days of the assault from injuries received in the assault. The only burden on the prosecution as to limitation of time was to show that the deceased died from the injuries given him by the appellant within a year and a day after he received it. This burden has been discharged in this case. It is only if the deceased had died after that time that the law would conclusively presume that death proceeded from some other causes. See R. v. Dyson (1908) 2 KB, 454, 1 Cr. App. R13. We also see not substances in Ground 3 which we shall now consider. If the evidence of a single witness sufficiently proves the case against an accused person and the trial court accepts the evidence there is no rule of law or practice dissuading the court from convicting on the evidence. In the case of Commissioner of Police v. Daniel Nunoo Kwasie (1952-1955) 14 WACA 319 decided on 4th day of June 1953, Foster Sutton P dealing with a similar point said at page 320-
“It is true that the prosecution’s case depend upon the evidence of one Police Constable but in announcing his decision the learned District Magistrate said ‘I believe the evidence of prosecution. I have no doubt at all in finding the accused guilty of the offences before the Court and it being clear that there was evidence before the Magistrate upon which he could properly reach the conclusion he did, we are of the opinion that Denson, J. erred in reaching the decision.
The Magistrate had the advantage, denied to the appellate Judge, of seeing and hearing the witnesses, and there is no rule of law or practice which should make a Court hesitate in convicting upon the evidence of one witness, in a case where there is no suggestion that the witness is an accomplice, if the Court is satisfied with the evidence given.”.
Similarly, in the case of Joshua Alonge v. Inspector-General of Police (1959) 4 FSC 203, Ademola, C.J.F. at page 205 said:
“We are not prepared to say that a Magistrate may not convict on what is commonly called “Oath against Oath” if as in this case, he has sufficient reason to prefer the evidence of the witness for the prosecution to that of the accused.”
Both in Section 137 of the Evidence Law Cap. 49 Vol. 3 Laws of Eastern Nigeria and in very many decisions of this Court it has been laid down that the burden of proving the commission of a crime is laid upon the prosecution. In discharging the burden of proof cast upon it the prosecution has a duty to place before the Court all available relevant evidence. This does not mean that all available witnesses must be brought to Court to testify. This point was brought out clearly in the Judgment of the West African Court of Appeal in the case of Rex v. George Kuree (1941) 7 WACA 175. In that case the Court said at page 177:
“It is well established that it is the duty of the prosecution to place before the Court all available relevant evidence. This does not mean, of course, that a whole host of witnesses must be called upon the same point, but it does mean, that if there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called.”
See also R. v. Mansu 12 WACA 113 at page 114 and Joshua Alonge v. Inspector-General of Police (1959) 4 FSC 203 at page 204 per Ademola, CJF.
While reaffirming our decision in the case of Joshua Alonge v. Inspector-General of Police 4 F.S.C. 203 that a Court of Law is entitled to convict on the credible evidence of one witness, we may however, observe that the conviction of the appellant herein was not based on the evidence of a single witness, notwithstanding the fact that only one of the prosecution witnesses (i.e. P.W.3) who testified was an eye witness.
The learned trial Judge was so favourably impressed by the prosecution witnesses that he accepted the case for the prosecution in the following words:-
“The facts are overwhelmingly against the accused in this case. After a careful consideration of the case for the prosecution and the case for the accused, I have not the slightest hesitation in accepting the case for the prosecution and rejecting the case for the defence, put forward by the accused.”
With regard to the 4th ground of appeal we find nothing in the evidence on the record of appeal that calls for a finding of ‘Guilty’ in respect of the reduced offence of manslaughter. The evidence accepted proved an unprovoked assault on the deceased by the appellant, leaving the deceased mortally injured internally.
Turning to the 1st ground of appeal we find that the evidence on record accepted by the learned trial Judge conclusively proved the guilt of the appellant for the murder of the deceased Paul Dunu.
For the above reasons we found ourselves therefore in entire agreement with the learned Counsel for the appellant when he announced to us at the hearing of the appeal on the 13th day of November, 1975 that he had nothing to urge in favour of the appellant and we dismissed the appeal.
Other Citation: (1975) LCN/2002(SC)
