Charles Anyaele & Anor Vs The State (1973)

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The two appellants were two out of six persons charged with, and tried of, the murder of one Samuel Alagor. The Information alleges that on 23rd June, 1970, at Ezira Orumba in the Onitsha Judicial Division, they murdered Samuel Alagor.

At their trial, five witnesses gave evidence for the prosecution, two of them being eyewitnesses of the events that led to the death of Samuel Alagor. One of the witnesses was Alagor Okpara the father of Samuel and the present appellants were the 2nd and 4th accused persons respectively. 

Alagor Okpara saw the accused persons when about ‘noon on the day of the murder they came with others to his house and forcibly removed his son and took him away. The witness testified that he even spoke to the 2nd appellant and asked him why he was perspiring so profusely. As for the 1st appellant, the witness said he spoke to him and he replied then that they had come to fetch Samuel as “all those that joined the Army were wanted at the village square”.

The witness further stated that those who came to arrest his son did beat him up severely before taking him away to the village square. Concerning what happened at the village square, Alagor Okpara testified that there his son Samuel was stripped naked by his assailants, tied up and was then beaten mercilessly until he became unconscious.

The witness, continuing his testimony, stated that in that condition of unconsciousness his son Samuel was carried away by some youths from the neighbouring village of Ime Ohia who warned him (the witness) seriously not to follow them lest they should kill him as well. The mother of the deceased was the 3rd P.W. She, Mgbeke Alagor, testified to seeing all that her husband had seen and described. She indeed stated that her son Samuel was beaten to death at the village square by the accused persons. Under cross-examination, she was asked to tell the court the persons who had beaten her son to death.

She replied:- “The 1st and 2nd, 3rd, 4th and 5th accused persons and another person in court but now not an accused person joined in beating Samuel at Okpulangwu. When they were removing Samuel now dead they untied the rope around his legs and hands.”

The prosecution also called a witness by name Francis Anaebo, a social welfare worker, living at Ezira Orumba in 1970. The witness spoke of the incidence of armed robbery in that area and indeed described an occasion on which armed robbers broke into his own house on the 22nd June, 1970. Soon after their arrest, all the accused persons made statements to the Police.

The 1st appellant, Charles Anyaele, described the story of the burglary in his village on the night of the 22nd June, 1970, and how one Francis Anaebo was robbed and had to be carried to Ajali hospital where, Charles Anyaele, was in fact throughout the 23rd June, 1970. In his own statement to the Police, the 2nd appellant, Thomas Akam, stated that although he knew Samuel Alagor he had not seen him for a very long time and that he had no hands in nor heard of the killing of Samuel Alagor.

The appellants gave evidence at their trial in their own defence. The 1st appellant, Charles Anyaele, repeated more or less the same story as contained in his statement to the Police – the burglary on Francis Anaebo (P.W.2) and his own sojourn at Ajali hospital throughout the 23rd June, 1970. He denied being a member of the gang that had beaten Samuel Alagor to death but admitted that burglary and stealing were rampant in Ezira Orumba during the month of June, 1970. He called two witnesses. One of them was a policeman, Joseph Chibuko, who had investigated his alibi and the other was Dr. Daniel Onuogo who testified that the 1st appellant was one of those whom he directed to stay and remain with Francis Anaebo at the Ajali hospital on the 23rd June, 1970 when Francis was brought to the hospital for treatment for injuries he had received during a raid on his house by armed robbers.   In the same way, the 2nd appellant, Thomas Akam, testified in his own defence. He swore that he had only just returned from his farm on the 25th June, 1970, when he was arrested by the Police on the charge of killing Samuel Alagor.

He denied having taken part in any incident of that type and stated that indeed on the 23rd June, 1970, he had gone to his farm called Aputu in company of his friend by name Samuel Ibe who also testified as his witness saying that they were together in the farm on the 23rd June, 1970. As stated before, the learned trial Judge convicted the appellants of the murder of Samuel Alagor and sentenced them to death. He found in effect that the alibi of the appellants was not established, that their identification as members of the gang that beat the deceased to death was properly and correctly carried out and that they had killed the deceased. This appeal was from that judgment.

Before us, learned counsel for the appellants had argued that the learned trial Judge wrongly relied on the evidence there was of the identification of the appellants, when the same evidence had been rejected by the same Judge in respect of others of the accused persons who had stood trial together. It was further argued that the learned trial Judge did not consider the alibi set up by the appellants and that the evidence in the case being circumstantial, especially with regard to the cause of death, the learned trial Judge should have concluded that the evidence was all but adequate.  

We are not impressed by the arguments of counsel and so did not call upon the respondent to reply. In the course of his judgment, the learned trial Judge carefully considered the law with regard to identification in general. He seemed to agree with learned counsel for the defence that identification parade conducted by the Police was bogus in view of the fact that the witnesses, as well as the accused persons, were all members of a small community where everyone was well known to the other. He took the view, which we consider appropriate in the circumstances, that an identification parade in that case was useless; but then the learned trial Judge considered whether, apart from the identification parade, there was evidence which , if believed, as indeed it was, pointed to the complicity of the appellants.

He observed thus :- “Common sense suggests that it is necessary to draw a distinction between the witness who has merely made a brief acquaintance with the accused person and the witness who knows him well. There is all the difference in the world between saying “I saw the accused whom I have known all my life” and “I saw a man I recognised as the accused whom I have met once before”.

In the case before me the 1st P.W. and the 3rd P.W. are saying in effect “ we saw the accused persons whom we have known all along.” This statement in my view is satisfactory identification if believed. The merits or demerits of the identification parades conducted by the 4th P.W. Inspector Benedict Onyia do not in my view therefore affect this case one way or the other.   I think the identification parades were unnecessary in this case except of course as the Police Ekwuluobia were investigating three or four murder cases all at once.” and later in the course of the same judgment, when the learned trial Judge was considering the cases of the accused persons, including the appellants, severally, he directed himself as follows:-

“In this case the 1st and the 3rd P.W.’s testified that the accused persons were among those who killed Samuel. Are their recollections of what happened on the 23rd June, 1970, exact? Is the testimony of 1st P.W. or that of the 3rd P.W. trustworthy? Can I draw from their testimony the inference and that inference only that the accused persons now before me were among those who killed Samuel Alagor and that there had been no mistake in identification? Can I say in this case that there was no indiscriminate arrest of Ime Ohia people leaving it to each person arrested to pull himself out of the fire? Can I say that the evidence of the 1st P.W. Alagor Okpara and his wife Mgbeke Alagor the 3rd P.W. is stronger than the alibi set up by the accused persons? It is only when I am satisfied on all those points that I can convict.”

In the course of his criticisms of the judgment, learned counsel for the appellants submitted that the learned trial Judge having discharged three of the accused persons on the evidence of identification, which had come from the 1st and the 3rd prosecution witnesses only, was in error of law in relying on that same evidence to convict the appellants. These arguments overlooked the clear facts of the case. The 1st P.W. and the 3rd P.W. were cross-exam

Other Citation: (1973) LCN/1764(SC)