Aro Nivome Vs The State (1972)

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B. A. COKER, J.S.C

The Appellant was at the High Court, Abakaliki convicted by Anya, J., of the murder on the 21st May, 1971 of one Joseph Chukwu and sentenced to death. He appealed against that judgment to this court and on the 13th March, 1972 we dismissed his appeal at the hearing, stating that we would later give our reasons for so dismissing the appeal.

According to the prosecution and the evidence given at his trial, the appellant on the date of the crime had killed six children and severely wounded one who was taken to the General Hospital. One of those who were killed was Joseph Chukwu. There was no eye-witness of the killing of Joseph Chukwu but the story was told at the trial of the appellant by one John Okochi (3rd P.W.) that on the 22nd May, 1971, he heard an alarm by a woman called Ivo Ajali. As a result of the alarm he ran out in the direction and saw in the compound of the appellants, apart from the woman Ivo Ajali, a number of the villagers and six corpses, and one of them was the corpse of Joseph Chukwu. This witness further stated that as the appellant could not then be found, a search was organised for him by the villagers and he was eventually found somewhere in the bush on top of a tree.

The villagers entreated him to come down and he later did so after first throwing down a blood-stained matchet which he held. The appellant was thereafter arrested by the villagers and later handed over to the police. At the police station, he made a statement to Police Corporal Peter Ezelu (1st P.W.); the statement was admitted in evidence at his trial as Ex. ‘A’ (English translation Ex. A1) and it was confirmed by the appellant to be his voluntary statement before the Divisional Police Officer, Afikpo Division, Daniel Azih (2nd P.W.). The matchet which the appellant threw down from the tree where he hid was produced in evidence by police Corporal Peter Ezelu as Ex ‘B’. John Okocha (3rd P.W.) was a member of the same family as the appellant; so was Oyi Chuku (4th P.W.) as well as Aja Uzuoigwe Oluo (6th P.W.). The three testified to the effect that, the appellant was neither mad nor known to be insane.

In his statement to the police (Ex. ‘A’), the appellant stated that it was he who killed the six children including Joseph Chukwu and that he did so because he was unable to kill Aja Uzuoigwu Oluo whom he had set out to kill with his matchet after his fellow villagers had forcibly taken away his wife from him. He also said in the statement that he knew that he had done wrong and that the children whom he had killed did not offend him in any way.

At his trial and in the course of his evidence in his own defence, the appellant tried to resile from this statement, but still tesified that he had killed the six “men” who were members of a gang that had come to remove his wife forcibly from him and whom he had chased into his own yam barn. Under cross examination he stated inter alia as follows:

“When I went into my house none of the people followed me into the house. When I came out they all began to run. I chased them. I overtook four and killed them. The parents of the six children were present at my compound and were those who annoyed me. I could not overtake the parents who outran the six children. I had to pour my anger on their children.

The learned trial judge who tried the appellant, in the course of a reserved judgment, carefully reviewed the evidence before him. He concluded that the plea or defence of provocation which was argued by learned counsel for the defence was not made out according to law. He then convicted the appellant as charged.

Before us on appeal, learned counsel assigned to argue the appeal was unable to find anything which he could usefully urge in favour of the appellant. He, however, chose, as he said, to thumbnail what he referred to as some “irregularities” in the trial.

One of the irregularities he referred to was the admission in evidence of the statement of the appellant, Ex. ‘A’. We did say earlier on in this judgment that the appellant had made a statement to Police Corporal Ezelu (1st P.W.). At his trial, the appellant, as the accused, was defended by Mr. Okwuosa. The relevant part of the evidence of that witness, i.e., first prosecution witness is recorded as follows:-

“I took down the statement in Ibo and read it over to him and he said it was correct and made his right thumb print. I made an English translation of the statement. This is the statement with its translation, (Okwuosa asked if he has any objection). Okwuosa says “I would like the statement read for the accused to hear because he has denied some of the facts as I see in the deposition”. Statement read out in court. Accused denied making the statement read or any part.

Okwuosa: There are things told me by the accused which are in the statement read. I feel embarrassed by the accused’s denial. I ask that the statement be admitted.

Court: Statement admitted and marked Ex. ‘A’.

(English version Ex. ‘A1’). I then took the accused and his statement to the Divisional Police Officer, A.S.P. Azih who read the Ex. ‘A1’ to the accused through me as an interpreter. The accused confirmed his statement to the D.P.O. who completed certain Police forms in the presence of the accused.”

Learned counsel for the appellant had submitted that the judge should not have admitted the statement in evidence and indeed referred us to the cases of Queen v. Nwagbo Igwe (1960) 5 FSC 55 and Queen v. Itule (1961) All NLR 462.

First of all we observe that at that stage of the proceeding, it was not right to ask an accused person to speak to his statement from the dock and in clear cases where an accused was so asked it would be open to a court of appeal to find that there has been an irregularity in the conduct of the trial. In this case, however, it does not appear that the appellant was specifically asked to speak. It seemed that all that happened was that he was consulted by his own counsel and the court had recorded down what was essentially a part of his discussion with his own counsel.

We now advert to the contention of the learned counsel and we observe that in the cases relied on by him, the admissibility in evidence of the statements was challenged by the defence whereas it was not so challenged in the case in hand. It is indeed significant that if the evidence of Daniel Azih (2nd P.W.), the Divisional Police Officer, Afikpo Division, was accepted by the court, as indeed it was, the appellant had admitted the statement before him. We are, of course, not happy about the statement ascribed to counsel defending the appellant concerning his own embarrassment at the conduct of the appellant with respect to the statement Ex. ‘A’. In the Queen v. Eguabor 1 All NLR 287, the Federal Supreme Court observed that if counsel felt all that embarrassed in the course of a trial, the course open to him was that of withdrawal from the case and if in the case in hand learned counsel defending the appellant had felt embarrassed in the way the record had described, he would have done well to withdraw from the defence. Nevertheless he continued to defend the appellant and it cannot be disputed that he had ably put forward all the defences open to the appellant on the materials before the court.

We do not think that there was any merit in the point taken by learned counsel before us, for, manifestly, the defence did not dispute the admissibility of the statement as he thought and in any case the learned trial judge made no use of the statement in convicting the appellant as the record was otherwise replete with other evidence of the appellant’s guilt.

No other form of irregularities was canvassed before us and we are ourselves satisfied that none had occurred. We therefore dismissed the appeal as stated.

Other Citation: (1972) LCN/1511(SC)