Benson Ukwunnenyi & Anor V. The State (1989) LLJR-SC

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C.

Appellants at the Anambra State High Court, sitting at Nsukka, were charged with two others for the murder of one Chukwuma Okoro. Appellants alone, were on the 23rd September, 1985 convicted and sentenced to death. The other two were discharged and acquitted. Appellants’ appeal to the Court of Appeal was heard in the Court of Appeal Division sitting at Enugu; and dismissed on the 16th June, 1988. This is a further appeal from the judgment of the Court of Appeal by the appellants.

The facts of this case may be stated shortly as follows – Benson Ukwunnenyi, Echena Chito, 1st and 2nd appellants, respectively, Sampson Echa and Ozoemena Chukwuemeka, 3rd and 4th accused persons at the court of trial are all members of the same family and related to one another by blood.

One Paul Onwubiko, a relation of the ‘deceased Chukwuma Okoro who appellants are alleged to have murdered, had in 1982 stabbed the 4th accused, also a relation of the 1st appellant, on the head. Early in the morning of 26th December, 1983, the same Paul Onwubiko had murdered Onuora Chizor, the elder brother of the appellant, who was responsible for his education at Idah Polytechnic, Benue State.

In his statement to the Police and evidence in court, 1st appellant stated that he decided to look for Paul Onwubiko and to know why he had chosen to maim or kill members of his (1st appellant’s) family. It was during this search that he encountered the deceased, a relation of Paul Onwubiko. The deceased engaged him in a fist fight without offensive weapons. In the ensuing exchanges, he applied his knowledge of Karate, kicked the deceased with his leg and knocked him down resulting in the death of deceased. 1st appellant claimed to have fought and killed the deceased alone, and that he did not employ any matchet or sharp instruments. 1st appellant admitted seeing P.W.6 at the scene of the encounter, but denied seeing P.W.4.

The case of the prosecution founded on the evidence at P.W.4 and P.W.6 was quite different. It was that a number of persons comprising the appellants, the 3rd and 4th accused persons and about four or five others at Ogurugu village, murdered the deceased Chukwuma Okoro at about 5 p.m. on the 26th December, 1983. The two eye witnesses called by the prosecution were P.W.4 David Okoro, the 14 year old son of the deceased, and P.W.6 Ukwuta Chekwu, the brother of the deceased who were with him when he was attacked. The hostile group was armed with matchets, axes, clubs. The evidence implicated the first appellant as having stabbed the deceased with a dagger, and the 2nd appellant for inflicting matchet cuts on him. This evidence was corroborated by the Medical evidence of the nature of the injuries resulting in the death of the deceased.

The evidence of the 2nd appellant in his statement to the Police and testimony in court was a complete denial. He said that on hearing that someone had been murdered he ran to the house of their Chief; Chief Tagbo Kpela Ojoma. He was sent by the Chief with others to convey the corpse of Onuora Chizor, to the hospital at Enugu-Ezike. He therefore accompanied the party to the hospital. It was on his return from the hospital after the autopsy on the corpse that he learnt at the Police station about the death of the deceased.

At the end of the trial, the learned trial Judge acquitted and discharged the 3rd and 4th accused persons, on the ground that neither P.W.4 nor P.W.6, who were the only eye witnesses to the crime mentioned in their statement to the Police the 3rd and 4th accused persons who they knew very well when the event was fresh in their minds. He rejected the evidence of the 1st accused, now 1st appellant and the alibi of the 2nd accused, now 2nd appellant. He rejected the alibi because as he said, at p.63 lines 15-18,

“It is inconceivable that on hearing this (i.e. the Paul Onwubiko has killed Onuorah Chizor, his relation) he merely ran to the house of the Chief acd from there to Enugu-Ezike General Hospital without attempting to find out Paul Onwubiko whom he heard killed his relation.”

The learned trial Judge sought for and found corroboration of the evidence of P.W.4 in the evidence of P.W.6 that 2nd appellant was a party to the murder of Chukwuma Okoro, the deceased.

The learned trial Judge considered and rejected the defence of self-defence and provocation raised on behalf of the 1st appellant. He rejected the suggestion that there was any form of fighting between the deceased and any of the accused persons. He also held that none of the provocative acts relied upon by the 1st appellant was offered by the deceased. The trial Judge relied also on the confession of the 1st appellant, but rejected the claim in the confession that he committed the offence alone.

In the Court of Appeal, appellants contended that the evidence of P.W.4, David Okoro, at the age of 16 required corroboration, and that the evidence of P.W.6 Okwuta Chekwu cannot constitute such corroboration. It was also contended that the 1st appellant was provoked. Finally, it was argued that the confession of the 1st appellant that he committed the offence alone ought to have been accepted. The defence of alibi of the 2nd appellant was raised, although considered in the court below was rejected by implication.

All the contentions were dismissed.

It was held that corroboration of the evidence of P.W.4 was not necessary, and that even if it was, it need not be sought in the evidence of P.W.6. The medical evidence was accepted as constituting sufficient corroboration.

In respect of the appellants, the finding of the trial Judge that there was no bias in the evidence of P.W.4 and P.W.6, was accepted. Also accepted was the finding in respect of 1st appellant, that provocation in law has not been established. This was because the deceased had offered no provocation to the 1st appellant. Agreeing with the learned trial Judge the Court of Appeal held that the 1st appellant’s confession confirmed the allegation that he took part in killing the deceased. It neither implicated nor exculpated the others who acted in concert with him. Tested with other evidence outside the confession it was possible to determine the extent to which the claims in the confession are true.

The Court of Appeal dismissed the appeal of the appellants, and affirmed the conviction and sentence of death imposed by the trial Judge. Appellants further appealed to this court. The grounds of appeal of the appellants before us raised issues of

(a) provocation on the part of the 1st appellant.

(b) effect and consideration of the confession of the 1st appellant.

(c) the reliance on the evidence of the P.W.4 as regards the part played by both appellants in the commission of the offence, and

(d) the consideration of the defence of alibi- raised by the 2nd appellant

In the brief of argument filed by counsel on which they relied in argument before us, appellants raised the following issues for determination –

In respect of the 1st appellant the issues raised are as follows –

“(i) Against the Background and circumstances of this case, does a defence of provocation avail the 1st appellant

(ii) Although in law a trial Judge can reject a part and accept the other part of a witness’ evidence, can he do so in respect of a confessional statement of an accused person

(iii) What is the effect of the failure of the learned trial Judge to warn himself on the evidence of P.W.4 and P.W.6 who are blood relations of the deceased”

In respect of the 2nd appellant, they are as follows –

“(i) Has an accused person who sets up a defence of alibi both in his statement to the Police and evidence in court and supplied enough particulars through which his movements can be investigated, if required, but calls no further evidence at the hearing, discharged the evidential onus placed on him

(ii) Is the trial Judge entitled to make a finding one way or the other on a defence of alibi which was not previously investigated by the Police or the result of such investigation, if, made, tendered in court

(iii) Did the Court of Appeal give sufficient consideration to the issues raised before it in the appeal”

The issues raised in respect of the 2nd appellant which relate to the failure of the prosecution to investigate the defence of alibi, can be more tersely framed as follows –

Whether the trial Judge was right to dismiss the defence of alibi raised by the 2nd appellant when there was no evidence to the contrary.

The issue (iii) is of such a general nature as not to require any specific consideration.

The formulation of issues by Counsel to the respondent in respect of the 1st appellant is different but cover the same grounds. The issues in respect of 2nd appellant concern the issue of alibi raised, but merely questions what the 2nd appellant ought to have done, I think the issues formulated by counsel to the respondent on behalf of the 1st appellant more adequately cover the grounds of appeal relied upon. It is as follows-

“(i) Taking into consideration the facts of this case as established at the trial, does the defence of provocation avail the First appellant

(ii) Is a trial Judge not right in law to scrutinize the confessional statement of an accused person just like any other piece of evidence and, subject to his findings in respect thereof, to accept it in part or as a whole

(iii) Having regard to the peculiar facts of this case and the findings of the learned trial Judge made at page 65 lines 2 to 13 of the record of proceedings was it necessary for the learned trial Judge to have warned himself about the reception of the evidence of P.W.4 and P.W.6”

Mr. Okonkwo, counsel to the appellants first argued the case of the 2nd appellant. In his brief of argument which he amplified orally before us, he submitted that 2nd appellant had set up a defence of alibi both in his statement “Exhibit D-D1” and in his oral testimony in court. The alibi of the 2nd appellant consisted in the evidence that he was not a member of the group alleged to have murdered the deceased. He stated that on hearing that Paul Onwubiko had killed Onuora Chizor, he ran to his Chiefs place and from there on the order of the Chief accompanied the party who conveyed the corpse of Onuora Chizor to the Enugu-Ezike General Hospital. He did not return to the village till after the doctor’s autopsy on the corpse. He said that he learnt of the murder of Chukwuma Okoro, at the Police Station when he returned from Enugu-Ezike. Concisely stated 2nd appellant was saying that he was at the General Hospital, Enugu-Ezike when the deceased was killed. In any event he was not at Ogurugu village.

Counsel submitted that the statement sufficiently satisfied the requirements of a defence of alibi. He submitted that 2nd appellant explained his movements on the 26th December, 1983, and that he was out of the village on the orders of Chief Tagbo Kpela Ojoma. He also stated that 2nd appellant gave particulars of where he was at the relevant time and the reasons for his being away from the village. It was submitted that since the Chief must be taken to be a well known person the onus was on the prosecution to verify the claim of the 2nd appellant by investigating his story. Counsel relied on several decided cases of this court to support his submission. Some of them are Abudu v. The State (1985) 1 N.W.L.R. (Pt.1) 55; Bozin v. The State (1985) 2 N.W.L.R. (Pt.8) 465; Umani v. The State (1988) 1 N.W.L.R. (Pt.70) 274; Salami v. The State (1988) 3 N.W.L.R. (Pt.85) 670; Nwabueze v. The State (1988) 4 N.W.L.R. (Pt.86) 16.

In his reply, Mr. Okolo for the respondents conceded that there was no onus on the 2nd appellant who sets up an alibi to prove, but submitted the duty on appellant to give particulars of the alibi was not discharged. He referred to the statement of 2nd appellant to the Police and also his testimony in court at his trial and submitted that the evidential burden imposed was not discharged. It was contended that

(a) 2nd appellant did not disclose where Chief Tagbo Kpela Ojoma could be found.

(b) the names of the people in whose company 2nd appellant took the corpse of Onuora Chizor to the Enugu-Ezike hospital.

It was submitted that in the absence of these facts the Police had no way of verifying the alibi.

The cases of Dikeocha & 3 Ors. v. The State (1966-67) 10 E.N .L.R. 155 at 158; Gachi & Ors. v. The State (1965) N.M.L.R. 333 at p.334; Eze v. The State (1976) 1 S.C.125; Salami v. The State (1988) 3 N.W.L.R. (PL85) 670; Nwabueze v. The State (1988)4 N.W.L.R. (Pt.86) 16 were cited in support of the submissions.

It is pertinent to point out that the judgment of the Court of Appeal challenged on this ground only inferentially upheld the judgment of the trial Judge rejecting the defence of alibi raised by the 2nd appellant (2nd accused) at the trial. Although the 2nd ground of the grounds of appeal and particular (v) of the particulars to the ground of appeal of the 2nd appellant raised the issue, it seems to me that the question of alibi was not independently considered at all. It is well settled that where a defence has been put forward, it must be considered however improhable or regarded as stupid Opayemi v. State (1985) 2 N.W.L.R. (Pt.5) 101. There is no doubt that the Court of Appeal relied on the finding of the trial Judge that P.W.4 and P.W.6 were eye witnesses to the incident that 2nd appellant was among those who murdered the deceased. In fact it was 2nd appellant who inflicted matchet cut on the head of the deceased. He also found that they were not biased even though P.W.4 was the son and P.W.6 the brother of the deceascd. Thus before the learned trial Judge there was the claim by the 2nd appellant that he was invited by Chief Tagbo Kpela Ojoma to accompany other members of the village to convey the body of Onuora Chizor, who had been murdered that morning to Enugu-Ezike General Hospital, and that he only heard of the death of the deceased at the Police Station when he and the others returned from Enugu-Ezike. The other evidence was the positive identification by P.W.4 and P.W.6, who knew 2nd appellant well to be a member of the family of the 1st appellant, and of Onuora Chizor alleged to have been murdered by Paul Onwubiko.

It is the duty of the Court of Appeal to consider issues properly raised in the grounds of appeal before it. Where this has not been done this court can notwithstanding the fact that the court below has not made any pronouncement consider the ground of law or facts so raised.

It is well settled that the defence of alibi where successful results in the acquittal of the accused relying on the defence. It is a claim of absence of both actus; not only that it is not reus, but also that there was in fact no act. It is also a defence of absence of mens rea. A defence of alibi by the accused is a combined defence of lack of act and mens rea. That is that he was not at the scene of crime and was therefore neither in a position to have committed the offence not participated in its commission.

There is no doubt that such a defence being a matter peculiarly within his personal knowledge, the burden of leading evidence of the fact is on the accused. See Gachi v. The State (1965) N.M.L.R. 333. Odidika v. The State (1977) 2 S.C. 21. Hence evidence tending to establish the defence should not be disregarded unless there is a stronger and more positive evidence of the participation of the accused. – See Odidika v. State (1977) 2 S.C. 21.

The best defence and evidence of an alibi is one pleaded at the first opportunity and not at the time of trial. In this case the 2nd appellant’s defence of an alibi was made at the earliest opportunity and before he was charged with the offence. There was therefore a duty on the prosecution to verify from Chief Tagbo Kpela Ojoma, whether 2nd appellant was in the party he sent to convey the body of Onuora Chizor to Enugu-Ezike General Hospital. It was also possible for the prosecution to verify when the party returned to Ogurugu, and whether the 2nd appellant had the opportunity and could have committed the offence despite the fact that he was a member of the team. There was nothing on the record to show that the claim of 2nd appellant was investigated by the prosecution. In fact, the findings of the learned trial Judge did not establish that there was any investigation. It was therefore in the situation not possible to conclude that the case of the accused if investigated would not have cast doubt on the reliability of the case of the prosecution.

The onus on the appellant was to adduce evidence which sufficiently contains the particulars of the alibi – See Nwasisi v. The State (1976) 6 S.C. 109. The onus to establish the guilt of the appellant remains on the prosecution throughout the case. The 2nd appellant having discharged the onus on him of adducing evidence of alibi, it could not be said in the absence of any verification of the claims made that the failure to investigate the alibi would not be fatal to the conviction – See Ntam v. The State (1968) N.M.L.R. 86.

In the circumstances where the relationship of P.W4 and P.W.6 to the deceased was one of son and brother respectively, and where the crime was committed in retaliation to that alleged committed by the brother of the deceased on the relation of the appellants, and where the appellants were well known to the P.W.4 and P.W.6, the trial Judge ought to have been extremely wary in accepting the eye witness testimony of the P.W.4 and P.W.6, in the face of an un investigated defence of alibi See Opayemi v. State (supra).

Counsel to the respondent has argued before us that the particulars of the alibi were not sufficient to enable a verification of the defence. That is not in my respectful view the issue. It is admitted that where the alibi pleaded is by its nature incapable of being verified because of the improbability of the facts, It will be unnecessary to investigate. The instant case is clearly not such a case. The question is whether the trial Judge considered the defence at all. The defence of the 2nd appellant ought to have been investigated and considered. – See Yanor & Anor. v. The State (1965) N.M.L.R. 337 It cannot therefore be said that the evidence in the case was sufficient to fix the appellant at the scene of crime at the material time – See Njovens v. The State (1973) 5 S.C. 17.

In Yanor & Anor. v. The State (1965) N.M.L.R. 337 at p.341-342, the court stated the approach to the consideration of alibi as follows:-

“On the defence of alibi, the law is that the jury should be directed that they should not disregard evidence of alibi unless there is stronger evidence against it. – See Chadwick (1917) 12 Cr. App. R. 247. Therefore while the onus is on the prosecution to prove the charge against an accused person the latter has, however, the duty of bringing the evidence on which he relies for his defence of alibi; when such evidence has been adduced the court should consider it in the light of the evidence adduced by the prosecution in support of the charge against the accused and if in the end the court is unable to reach a decision on the question whether evidence in support of the case for the prosecution is stronger than that produced in support of the alibi, the accused must be acquitted.”

The learned trial judge without any evidence of the investigation of the alibi of 2nd appellant doubted the credibility of the evidence when be said:

“I see no reason why P.W4 and P.W.6 should implicate accused No.2 that he was not at the scene. I rejected the defence of accused No.2 that he was not at the scene. He admitted in his statement to the Police Exh. D, D1, that he heard that it was Paul Onwubiko that killed Onuora Chizor who was his relation. It is inconceivable that on hearing this he merely ran to the house of the Chief and from there to Enugu-Ezike General Hospital without attempting to find out Paul Onwubiko whom he heard killed his relation. I have already held that P.W.4 was a grown up person and that his evidence did not require corroboration. In case I am wrong in this view and this is unlikely, I would that there was ample corroboration in the evidence of P.W.6. In my view the prosecution has established beyond reasonable doubt that accused No.2 was a party in the murder of Chukwuma Okoro.”

In accepting this view of the learned trial Judge the Court of Appeal stated that “The Judge, without doubt, attended to the issues raised by the defence counsel and all other issues in the case with scrupulous care.”

In what could be regarded as reference to the acceptance of the rejection by the learned trial Judge of the defence of alibi raised by the 2nd appellant, the Court of Appeal held,

“As to the second issue of bias or likelihood of bias in the evidence of P.W.4 and P.W.6 because of their relationship with the deceased, the Judge made a finding of fact believing the two witnesses. His premise for his belief which, in my opinion, is quite reasonable is stated in this form; “I do not think that the facts disclosed at the trial were such as to give rise to the inference that P.W.4 and P.W.6 had malice against any of the accused persons. It was indeed the accused persons who had a cause to bear grudge against P.W.4 and P.W.6 who are the relations of Paul Onwubiko for the latter’s alleged assaults on the relations of the accused persons and the final killing of Onuora Chizor the accused’s relation. I cannot discredit the evidence of P.W.4 and P.W.6 merely on the ground of their relationship with the deceased. The Judge has shown why the evidence in question need not be entertained with fear. It is not tainted by reason of relationship with the deceased. The cases of Opayemi v. The State (1985) 2 N.W.L.R. (PL5) 101 at 113; and Onafowokan v. The State (1986) 2 N.W.L.R. (PL23) 496 at 503 relied on by counsel for the appellants are not helpful to them.”

The above is an endorsement of the approach by the learned Judge to the consideration of the defence of alibi of the 2nd appellant, which in my respectful opinion is wrong. The particulars of alibi in the circumstances, having not been verified and proved to be false, the learned trial Judge was not in a position to reject the defence as he did. What he should have placed alongside the evidence of P.WA and P.W.6 is the investigated and verified particulars constituting the alibi of the 2nd appellant. It is only when the evidence of the prosecution in such a circumstance is shown to be stronger than the alibi and still fix the appellant with the commission of the offence can the alibi be rightly rejected. The Court of Appeal was therefore wrong to hold that the learned Judge was right to reject the alibi without being satisfied of its falsity or weakness in the face of the evidence of P.W.4 and P.W.6.

In the circumstances the case of the 2nd appellant has not been fully considered. Since the alibi raised was not properly considered, the 2nd appellant is entitled to the benefit of doubt resulting from such error. The appeal is therefore allowed.

The appeal of the 1st appellant is in a different category. Counsel is not contending seriously that 1st appellant did not commit the offence. He is however relying primarily on the defence of provocation to reduce the conviction from murder to manslaughter.

I have ignored the argument relating to the acceptance of the confession of the 1st appellant in my consideration of the appeal. This is because having allowed the appeal of the 2nd appellant, the only surviving accused in this appeal, the question whether 1st appellant confessed to committing the offence alone or with another is no longer relevant.

There was no evidence before the trial Judge suggesting the defence of self-defence on the part of the 1st appellant. Rather the evidence from Exhibit A, his confession, was that 1st appellant smarting under the provocation of the most recent of the assaults by Paul Onwubiko on members of his (1st appellant’s) family, was looking for Paul Onwubiko. He did not see him but met the deceased a brother of Paul Onwubiko. There was no evidence that the deceased attacked 1st appellant with dangerous weapons or indeed fists. It is more probable as suggested by the trial Judge that 1st appellant challenged the deceased to a fight. 1st appellant did not deny that the deceased died in the encounter. This was corroborated by the evidence of the P.W.4 and P.W.6 who were eye witnesses to the incident.

The defence of provocation relied upon by the 1st appellant is a little intriguing. The uncontradicted evidence of the 1st appellant about the savage and criminal assaults of Paul Onwubiko on blood relations of the 1st appellant, culminating in the killing of Onuora Chizor, the 1st appellant’s elder brother who was responsible for his education, at Idah Polytechnic, the apparent blind eye turned by the Police to reports of these incidents; All these ordinarily will provoke the ordinary person to action. It is the nature of the action that is governed by our law.

There is no doubt that the law is that the trial court has a duty to consider the defence of provocation disclosed by the evidence of the accused. See Queen v. Itule (1961) 1 All N.L.R. 462. Provocation consists of an act or acts which causes or may cause a sudden and temporary loss of self-control resulting in the commission of the offence charged. Where provocation is established it negatives the intention to kill or cause grievous bodily harm which are essential ingredients for a conviction for murder – See R. v. Akpakpan (1956) 1 F.S.C. 1; [1956] SCNLR 3. Although there is no hard and fast rule for determining acts to constitute sufficient provocation, each case depending upon its peculiar facts, the court may consider the relationship of the parties – See Queen v. Jinobu (1961) All N.L.R. 627. This court has held that it is possible to cause provocation to a class of people such as a community. Where the facts are appropriate the court may draw the inference – See Apishe v. The State (1971) 1 All N.L.R. 50; Shehu Dumeni v Queen (1955) 15 W.A.C.A.75. This is not a provocation of a member of a crowd in respect of which any other member of the crowd is a lawful target, the provocation having emanated from the crowd.

This court has held that provocation offered by one person cannot be a ground for killing another who did not offer such provocation, See Omeninu v. State (1966) N. M.L. R. 356 where a husband killed his child on account of provocation by his wife. In the instant appeal the trial Judge rejected the defence of provocation on the ground that the provocation pleaded did not flow from the deceased, but from the alleged conduct of Paul Onwubiko. The Court of Appeal agreed with this view relying on R. v. Ebok (1950) 19 N.L.R. 84 at p.86; R. v. Nwanjoku (1937) 3 W.A.C.A. 208 and Omenininu v. The State (supra). I agree entirely with this view as accurately representing the law.

The evidence before the learned Judge and the confession of the 1st appellant clearly show that the culmination of the provocating events which occurred in the morning of the 26th December, 1983 inspired in the 1st appellant an actual intention to kill in retaliation for what Paul Onwubiko has been doing to members of the 1st appellant’s family. The incident i.e. the murder of Chukwuma Okoro, in respect of which 1st appellant was charged occurring at about 5 p.m. the same day, he could not be said to have acted in the heat of passion, caused by sudden provocation, before there was time for his passion to cool – See Oladiran v. State (1986) 1 N.W.L.R. (Pt. 14) 75. Counsel to the appellants has submitted to us that the defence of provocation was available to the 1st appellant on the evidence before the trial Judge in addition to the collusion or connivance with the Police in the area. There is no doubt that the inexplicable inertia of the Police in investigating and prosecuting Paul Onwubiko for the complaints against him is sufficiently annoying to members of the family of the victims. I however do not think such annoyance can sustain a defence of provocation for murder committed because of such dereliction of duty. In any event such provocative acts flow from members of the Police Force, and not from those whose criminal acts have been condoned by the dereliction of duty.

I am satisfied that the trial Judge was right in rejecting the defence of provocation relied upon by the appellant and the Court of Appeal rightly in my view upheld that finding. I therefore reject the submission of counsel for appellants in respect of the 1st appellant whose appeal is hereby accordingly, dismissed.

The appeal of the 1st appellant against the judgment of the Court of Appeal is dismissed. His conviction and sentence by the learned trial Judge affirmed by the Court of Appeal is hereby further affirmed.

The appeal of the 2nd appellant is allowed. He is hereby acquitted and discharged.

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SC.185/1988