Diala Amako V. The State (1995)

LAWGLOBAL HUB Lead Judgment Report

ADIO,. J.S.C. 

The charge preferred against the appellant was murder contrary to section 319 of the Criminal Code, Cap. 30 of the Laws of Eastern Nigeria. 1963 applicable in Imo State. The allegation was that he, the appellant, on the 11th day of October, 1980, at Umuohuru Ife Mbaise in the Owerri Judicial Division of the High Court of Justice of the Imo State of Nigeria, murdered Celina Amako (f).

In the morning of the 11th day of October, 1980, at Amako compound, the appellant, who was a member of Amako compound, was seen by the PW4 within the compound. The PW4, who was an uncle of the appellant, heard the appellant when he (appellant) was bitterly complaining that one Catherine Amako and one Alerick Amako had harvested his cassava from his farm. The appellant threatened that if the two named persons did not pay him the equivalent in money of what the cassava was worth, heads would roll on that day.

Soon after the alleged threat made by the appellant, he got hold of a matchet in one hand and a stick in the other. While the PW2 was watching the appellant from a hide-out near the scene of the incident, the appellant met the deceased and struck her on the head with the matchet. The deceased fell down and died on the spot. The appellant then went to the house of his father. He saw him and struck him on the head with the matchet several times. The appellant’s father too died on the spot. The appellant then went to the police station in the area and lodged a report of an alleged assault on him by some persons that he did not name. What he had earlier done to the deceased and to his own father later became known. He was arrested and charged with murder. There was allegation that the appellant used to smoke Indian hemp and that whenever he did so he used to be aggressive. However, on the day in question he did not smoke Indian hemp.

The murder of the deceased and the murder of the appellant’s father were the subject of one count in the charge. The error was realised but what was done was to make the murder of the deceased the subject of one Count and the murder of the appellant’s father the subject of another count. Eventually, and before the end of the address, the learned counsel for the prosecution, with the leave of the court, withdrew the count relating to the murder of the appellant’s father. Thus, it was the charge relating to the murder of the deceased that subsisted from the commencement of the trial till the end. The appellant denied the charge.

The learned trial Judge, after due consideration of the totality of the evidence before him and the submissions of the learned counsel for the parties, found the appellant guilty of the murder of the deceased. He rejected the defence of the appellant and held that the usual defences were not available to him. He convicted the appellant and sentenced him to death. Dissatisfied with the judgment of the learned trial Judge, the appellant lodged an appeal to the Court of Appeal which affirmed the judgment of the learned trial Judge and dismissed the appellant’s appeal. The appellant was dissatisfied with this judgment of the court below and has lodged a further appeal to this court.

The parties duly filed and exchanged briefs. The appellant identified three issues for determination in his brief while the respondent too identified three issues for determination in its brief. The three issues identified for determination in the appellant’s brief, which were similar to those in the respondent’s brief, are sufficient for the determination of this appeal.

They are as follows:-

“(1) Whether the appellant was properly arraigned after the amendment of the charge.

(2) If the answer to issue (1) above is in the negative, whether there was substantial compliance with the procedure prescribed by law in relation to amendment or alteration of a charge.

(3) Whether the Court of Appeal was justified in affirming the sentence of death imposed on the appellant”.

There was no dispute on the question whether the charge originally preferred against the appellant was amended or altered during the trial of the appellant. The complaints of the appellant related to things which were allegedly done or not done after the amendment of the charge. It was submitted, in the appellant’s brief, that after the charge had been amended there were certain requirements prescribed by sections 64 and 65 of the Criminal Procedure Act which must be complied with.

In this connection, they are as follows:-

“(a) Who read the count and explained it to the accused/appellant in both English and Igbo languages