Edwin Ogba Vs The State (1992)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.S.C.

By Section 33(6)(e) of the Constitution of the Federal Republic of Nigeria, 1979 every person who is charged with a criminal offence shall be entitled to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence. The main question which arises in this appeal in the light of this Constitutional provision is whether it is obligatory on a trial Judge to record the fact that an accused who did not understand the English language had at his trial the assistance of an interpreter if in fact he was provided with such assistance. Put in another way, is there a presumption of regularity if there is nothing on the record to show that the accused had the assistance of an interpreter? The Appellant as an accused, was charged, tried and convicted of the offence of murder at the Umuahia High Court, and was sentenced to death by hanging. His appeal to the Court of Appeal against his conviction and sentence was dismissed. He has now appealed to this Court.   The conviction of the Appellant in the High Court was based mainly on the evidence of PW.5, Doctor Madukwe Izuka who performed a post – mortem examination on the body of the deceased, Okoro Onyeador; PW.7 Godson Okereke into whose house the deceased ran immediately after he had been attacked; and the statement Exhibit 2 made by the accused in English and taken down in English by PW.4, Police Sergeant Adewusi Adebowale.   It was the case for the prosecution at the trial of the accused that on 14/6/81 at about 7.30 PM, when the deceased ran into the sitting room of PW.7, he was soaked in blood and was shouting “I am dying, I am dying”. He disclosed to PW. 7 that Edwin Ogba was responsible for his plight. The Appellant is Edwin Ogba. According to PW.7 “Blood was rushing from his body. Blood even rushed to the floor of my parlour. He was very weary and still saying he was dying.” After fruitless efforts to get the deceased attended to by a doctor in a number of hospitals, PW.7 succeeded in getting one Dr. Ezeikpe at Alaoma Hospital or Clinic to do so. When the shirt the deceased had on was removed, PW.7 saw wounds on his arm and stomach. According to PW.2 Marcus Nwankwo, a relation of the deceased, the doctor at Alaoma hospital or clinic decided to operate so as to find out if broken pieces of bottle were in his stomach. Before he could do so the deceased died.   The incident was reported to the Police. A team of Policemen, including PW.4, went to the house of the Appellant where he was arrested and taken to the Police station where he made the statement, Exhibit 2. In it he stated thus:   “yesterday evening 14/6/81 between 8 p.m. and 9 p.m. I was going along Uzuakoli road when I got to Orlu Street junction there was a motor man who came there with a speed. I defended myself by (going) jumping the gutter, there was a man and one other man they were two. I do not know them before and I don’t know their names, one of them was discussing with the other one that, is this not this one who killed his father? I was annoyed and I abused the man, the man who was staying with the man that I was abusing slapped me, then I fought with the man, I carried two bottles and broke them together I used them to defend myself when the other man carried a jack from his motor and wanted to beat me with it but he did not beat me with it. It was by the time I broke the two bottles together the pieces meet the man I was fighting with. I did not chook him directly with the broken bottles I was holding in defending myself. At that time, the man who carried jack said he was going to call Police for me, then I myself entered motor and came to the Police station to report that, somebody was abusing me on the road that I was the person who killed my father. I did not tell Police that I wound anybody because I did know that the man get wound. I did not know the number of the motor. The man who was fighting with me flog me with a stick. I have not known anyone of them more than that yesterday 14/6/81. I see the other man who carried jack, I can identify him. Many people gathered there but I don’t know any of them. It was when I got to the Police station I was told by Police that the man I fought with has died.”  The corpse of the deceased was removed from Alaoma Clinic to Queen Elizabeth hospital, Umuahia where PW.5, performed a post mortem examination on the body on 15/6/81. The corpse was identified by PW. 2. PW. 5 testified in part thus: “On examining the corpse, I found a curved wound about 4 inches long on the front aspect of the left shoulder extending to the muscles below. This wound was stitched. There was another incissional wound measuring about 8 inches in length on the anterior abdominal wall. This wound was also stitched. These stitches were removed and the wounds explored. The intestines were grossly hyperemic and there was dots of blood in most part of the intestines. A sharp object could have caused these injuries I described. The wounds could not be self inflicted even if the person was a mental case particularly the one on the left shoulder.   The injuries could not be caused by flying sharp objects but by direct hit by sharp object. The cause of death was excessive blood loss which led to shock.”    The Appellant testified in his own defence and called no witness. His evidence which varies slightly from his extra-judicial statement reads in part thus:   “When one of the men slapped me, I retaliated by slapping him back. The other man took up a stick and started hitting me. I ran away but they pursued me. When the two men were pursuing me they were holding a stick and a jack. One person was holding a stick while the other was holding a jack. I ran near a store and collected two empty bottles packed there. As the men were pursuing me, I broke the bottles and the men went back. One of the men said they knew what they would do. They entered into a Peugeot car and drove off. The men were about 14 feet from me when I broke the bottle.    I did not use the bottle on any of them. The pieces of the bottles did not touch any of the men.  After the incident, I went to the Police Station, Umuahia. I reported that some people assaulted me along the road I did not report to the Police that any body had a wound.   I know that somebody had a wound the following day when the Police came to my house about 4 a.m. and arrested me and took me to the Police Station where they told me that the person with whom I fought the previous day has died. When I broke the bottles, the men ran back. I am not aware if any pieces of the bottles touched any of the men of the two people, I do not any of them who is dead.   The men fought me. I had nothing in me. I was annoyed when the man pointed at me that I killed my father. I picked the two bottles for myself defence. Everything happened quickly, I do not know anybody who was present when this incident happened. I had no intention of wounding or killing any of them.”   The Appellant subsequently showed PW.4 the investigating police officer “the spot where the fighting took place.” At the scene PW.4 observed pieces of broken bottles and blood stains on the ground. PW. 4 picked up Exhibit 3, two heads of broken bottles, identified by the Appellant as the bottles he smashed against each other and which he claimed to have used in self-defence.  As already pointed out the trial Judge found the Appellant guilty of the offence of murder and sentenced him to death by handing. He did not believe that the Appellant never used the broken bottles on the deceased. He found as a fact that the Appellant stabbed the deceased with Exhibit 3. He inferred from the circumstances of the case that the Appellant intended to kill or do grievous bodily harm to the deceased.   In holding that the plea of self-defence was not available to the Appellant he referred to the fact that the Appellant had sufficient time to go into a store, take two bottles of golden guinea beer, negotiate the price, come out of the store, break the bottles at a distance of 14 feet from the two men who then ran away.   He concluded that the accused was not at all material time in reasonable apprehension of death or grievous harm. PW.6, Mrs. Angela Iro-Onuka had testified that at the time material to this case the Appellant came to her provision store, took two bottles of beer, asked for the price and when she told him he turned away saying he would return to pay for them.   In his notice of appeal to the Court of Appeal the Appellant filed a total of 17 grounds. In the Court of Appeal leave was however granted him to file an amended notice of appeal which consisted of only four grounds. I consider it necessary to reproduce the four grounds shorn of their particulars. They read:

“Ground One; Error of Law  The learned trial judge erred in law when he convicted the Appellant of murder when there was no conclusive evidence as to how the deceased came by his wound.

Ground Two: Error of Law:  The learned trial judge erred in law when he failed to accept the Appellant’s defence of self defence when the defence was unchallenged, undiscredited and uncontradicted.

Ground Three:  The judgment is erroneous and unwarranted having regard to the evidence before the court.

Ground Four: Misdirection in Law:   The learned trial judge misdirected himself in law when, after holding “I accept the fact that none of the prosecution witnesses saw when and how the deceased sustained the injury”, he went ahead to convict the Appellant of the offence of murder when the only inference deducible from the accused’s statement to the police, and undiscredicted testimony in court, was that of an uncontradicted denial of inflicting any wound.”    Three issues were formulated in the Appellant’s brief in the Court of Appeal. They were all resolved against the Appellant and his appeal was dismissed.   In his further appeal to this Court the only grounds of appeal relied on and argued are:   “ (1) The Appellant did not have a fair hearing in that although it is settled law that the language of the court of first instance or of the court below is English, yet in spite of the fact that three of the prosecution witnesses and the Appellant testified in Igbo language, there was no interpreter provided by court in respect of the evidence given by these witnesses and neither was the judgment interpreted to the Appellant at the end of the trial. (2) The court of Appeal erred in law in taking cognisance of Exhibit 2, statement of the Appellant to the police which was admitted by the learned trial judge, and which was not read out in court at the time of its being admitted, and relying on it in its judgments, and this error occasioned miscarriage of justice.  (3) The learned Justices of the Court of Appeal who entertained Appellant’s appeal misdirected themselves generally on the principles of law relating to the onus of proof in criminal cases, with particular reference to the cause of death in the instant case, and this misdirection occasioned miscarri

Other Citation: (1992) LCN/2497(SC)