Ayogu Ugwu & Anor V. The State (1972)

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B. A. COKER,  J.S.C. 

The appellant was tried and convicted in the High Court, Enugu, East-Central State (Phil-Ebosie, J.), of the murder on the 21st May, 1970 at Ikpamodo village in Enugu Ezike of one David Ona. He was one of ten persons charged before the court with the murder and indeed he was the 1st accused.

Nine witnesses in all gave evidence for the prosecution at his trial and the case against him was that he had lured the deceased away to an unknown place and got him killed there. The prosecution offered no direct evidence of any eye witnesses and did not claim to have done so.

The case of the prosecution was based on circumstantial evidence and it is to the following effect. On the 21st May, 1970, one Ugoro Uja, farmer of Ikpamodo town, gave a party for the female members of her family and invited some men as well to the party, including the appellant and David Ona (later deceased). The appellant seemed to have enjoyed the party for he freely mixed with and served the other guests with food and drinks. Later, however, he warned the women to drink up fast as it was getting late and that if they did not do that they would hold themselves responsible for whatever they saw.

The women drank fast and departed but some men, including some of the other accused persons, the appellant and David Ona, as well as the host, Ugoro Uja (P.W.2), stayed behind. The appellant then demanded some drinks which he said he was going to give to the night-guards watching the town and also that David Ona should accompany him to deliver the drinks. Ugoro Uja (P.W.2 and mother of David Ona) advised the appellant to invite the night-guards to her house and there give them drinks but the appellant refused to do so.

He then set out with the drinks and with the young man, David Ona. After some time he returned to the house of the 2nd P.W. but came back alone. He was asked about David Ona and he told them that he would soon come back and had only remained behind to collect the empty calabashes after the night-guards would have drunk their drinks.

As the appellant stayed with the company, a daughter of Ugoro Uja, by name Oyinna Itodo (3rd P.W.) went out to ease herself along the road by which the appellant and David Ona had gone. In the meantime, according to Oyinna Itodo, the appellant had left the house of Ugoro Uja and was proceeding along the same road. The 3rd P.W. testified further as follows:-

“While I was urinating about 15 yards away (indicated by witness) I heard someone groaning about 20 yards (indicated by witness) away from me. When I heard the groaning I cried out to my mother saying that 1st accused had killed the deceased. While I was crying I saw the 1st accused from the spot where the deceased was groaning across me and said that he was going to report to the police that he has been falsely accused with killing the deceased.”

Another witness at the trial of the appellant was one Christiana Ikoko (P.W.4). She testified to the facts of the party, the departure of the appellant with David Ona with drinks for the night-guards and the return of the appellant without David Ona. The witness is a daughter of Oyinna Itodo and so a grandchild of Ugoro Uja. She stated that when her mother raised an alarm she also ran in the direction and that –

“I ran to her. On the way before I met my mother I met the 1st accused running out from where my mother was raising the alarm. When I asked what was wrong he replied that it was the devil. I held him and tore his clothes. He extricated himself and said he was going to the Police to report that he had been falsely accused. This is the clothes of 1st accused that I tore.”

Later, the young man, David Ona, died on the spot where he lay. A doctor had performed an autopsy on his corpse and the doctor (1st P.W) thought that the cause of his death was cerebral hemorrhage and traumatic shock as a result of the fracture of the left parietal bone and shattering of the occipital bone. Furthermore, according to the doctor, the injuries on the deceased were consistent with severe injuries of combined sharp and blunt instruments.

After his arrest, the appellant made a statement to the Police. This was admitted in evidence as Exhibit 3 (and its translation into English as Exhibit 3A ). In that statement he said that from the party at the house of Ugoro Uja he saw David Ona carrying drinks away to the night-guards. He did not go with him but on his way home later he met the young man David Ona with three of the other accused persons charged with him standing together along that same road. He passed by them and went home but the following morning when he was going to his work-place, he discovered the corpse of David Ona at the same spot. At his trial he gave oral evidence and stated that after the party he went straight to his house; he stated that he did not that night see or meet David Ona again and denied owning the torn clothes which Christiana Idoko said she (P.W.4) had taken off him.

In a reserved judgment, the learned trial Judge considered the import and effect of the facts given in evidence. There was of course a large mass of evidence which, if believed, as indeed it was by the learned trial Judge, established beyond any doubt whatsoever that the appellant did take the young man, David Ona, out with him on the night of the party, as he left on the pre that he was carrying drinks to the night-guards. His statement to the Police, made soon after his arrest, fixed him at the spot where David Ona was lying and where he died and his corpse was subsequently discovered. The appellant’s flight at the sight of the 3rd P.W., Oyinna Itodo, who was attracted to the scene by the groanings of David Ona, his attempt at his trial to resile from his statement (Exhibit 3) and his complete denial of ever going to give out drinks along with David Ona, were all tendencious. It is not being said that every shred of evidence does by itself point to the guilt of complicity of the appellant; but the force of circumstantial evidence lies in the unmistakeable aim of the totality of evidence which by an undesigned coincidence points in that direction. See the observations of Hewart, LCJ., in R v. Taylor & Ors. (1928) 21 CAR 20 at p. 21; also Goddard, LCJ., in R. v. Onufrejezyk (1955) 39 CAR 1 at pp. 11/12.

In his judgment in which all the evidence before the court was carefully reviewed, the learned trial Judge stated:-

“After considering the whole evidence I do not hesitate to draw the only conclusion from the above event namely that the accused lured the deceased to his murderers with full knowledge that he was going to be murdered. Such an act amounted to aiding in the commission of the offence and under Section 7 of the Criminal Procedure Law he is a participes criminis and I accordingly find him guilty of the murder of David Ona”

He then convicted the appellant as stated before and sentenced him to death.

The appellant had appealed to this court against this conviction and before us the ground of appeal canvassed was that the circumstantial evidence given at the trial of the appellant had not such probative value as would ground the conviction of the appellant on a charge of murder. We were unable to accept this argument. The circumstances given in evidence and concerning the conduct of the appellant after he returned from the supposed visit to the night -guards were pregnant and it seems to us, as it seemed to the learned trial Judge who saw and heard all the witnesses and the appellant himself to be incapable of being explained on any other rational ground.

At the most crucial moment when the investigation of the death of David Ona must have been paramount in the mind of an innocent person, the appellant was threatening to protect an obviously dubious reputation and manifestly trying to stifle his own natural reaction to the tragic discovery about which all men were talking. We think that the learned trial Judge was entitled to draw the inference which he drew that it was the appellant who did what eventually led to the killing of David Ona.

We dismissed this appeal at the hearing on the 29th November, 1971, and the foregoing are our reasons for doing so.

Other Citation: (1972) LCN/1604(SC)