Esonu Chukwunyere V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Owerri delivered on 6th August, 2014 wherein the lower Court affirmed the trial High Court’s conviction and sentence of the appellant to death. The appellant was charged along with one Obineche Chukwunyere for the murder of one Beatrice Kwemma by killing her using an axe, contrary to Section 319 of the Criminal Code, Cap 30 Vol. 11 Laws of Eastern Nigeria 1963, applicable to Imo State of Nigeria. The offence is said to have been committed on 14th January, 2002 at Ozara Ihube, Okigwe, Imo State. A synopsis of the facts leading to this appeal will suffice.

The record of appeal discloses that on 14th January, 2002, at about 8.00am, the deceased, Beatrice Kwemma was preparing to go to the farm to harvest cassava. She instructed her grandson, Chijioke Kwemma to come to the farm later and carry home the harvest. According to the prosecution, it was at that point that the Appellant and one Obineche, in company of another person, passed opposite the house of the PW1. Appellant was wearing dark glasses and they

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focused their attention at the house of the deceased as they passed, while the deceased was discussing with her grandson. The deceased later went to the farm, and when PW1 joined her in the farm as agreed, he saw the appellant cutting his grandmother (the deceased) with an axe with one other boy he (PW1) could not identify. The deceased was already down on the ground as appellant was hitting her with the axe while the other person was holding her leg.

The PW1 was terrified and ran to the house of his father’s sister, Catherine Nwakamma to report. He also reported this incident to the Village Chief. The villagers trooped out to the farm, but could not see the assailants. They saw the corpse of the deceased lying on the ground, and while they were searching for the killers in the farm, somebody saw and picked a dark glasses in the farm which belonged to the appellant.

PW2 told the Court how he heard the noise about the death of the deceased and went to the village Chiefs house to hear from PW1 what actually happened. They left to the farm where they saw the body of the deceased woman lying on the ground. He said that while they were searching for the killers,

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he picked the dark goggle (glasses) which PW1 confirmed belonged to the appellant and he handed it over to the police.

The 3rd prosecution witness was a Medical Doctor. He tendered Exhibit 2 – The Post Mortem examination report which indicates that the cause of death was a deep laceration on the left jaw, soft tissue swelling of the scalp, with multiple compound fracture of the skull. In his opinion, the cause of death was as a result of brain injury caused by blunt/sharp object.

PW4 was the investigating Police Officer (IPO). He tendered the statements of the Appellant, dated 17/1/2002 as Exhibit 4 and 4A. He told the Court that the eye glasses (goggle) that were recovered were transferred with the original case file to Owerri C.I.D. and were with the Exhibit keeper.

At the close of the prosecution’s case, appellant gave evidence in his defence as DW1. He called no witness – He claimed he travelled home (village) on 13/1/2002 and left on 14/1/2002 at about 8.00am. He denied killing the deceased. At the conclusion of the trial, the trial Court believed the evidence of the prosecution and convicted the appellant while discharging the 1st

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accused person Chineche Chukwunyere. Appellant was then sentenced to death by hanging.

Dissatisfied with the decision of the learned trial Judge, the appellant appealed to the Court of Appeal which, after hearing, dismissed the appeal in its judgment delivered on 6th August 2014.

Further dissatisfied with the judgment of the Lower Court, the appellant filed notice of appeal on 25th August, 2014. The said notice contains eight (8) grounds of appeal out of which the appellant has distilled four issues for determination.

At the hearing of this appeal on 21st September, 2017, J. C. Okafor Esq adopted the appellant’s brief filed by him on 23/6/15 and relied on same as their argument in the appeal. In the said brief, appellant’s four issues are contained in pages 3 – 4 thereof. They are: –

1. Whether the learned Justices of the Court of Appeal were right to have rejected the defence of alibi properly and timeously raised by the Appellant inspite of the fact that there were sufficient facts on record to support the defence of alibi.
2. Whether the learned Justices of Court of Appeal were right in upholding or affirming the conviction and

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sentence of the appellant for murder when the prosecution failed to prove the charge of murder beyond reasonable doubt.

3. Whether the learned Justices of the Court of Appeal were right in holding that the evidence of PW1 was corroborated by the appellants’ dark spectacle or goggle even when the said dark spectacle or goggle was not tendered in evidence before the trial Court.
4. Whether the learned Justices of the Court of Appeal were right in holding that there were no material contradiction or inconsistencies between the extra-judicial statement to the police of PW1 (Chijioke Kwemma) and his oral testimony in Court and whether the Court of Appeal was right in holding that the trial Court can admit in evidence the alleged extra-judicial statements of the appellant (Exhibits 4 and 4(a)) which were not voluntarily made without conducting a trial – within – trial.

Also, in the respondent’s brief settled by K. A. Leweanya (Mrs) Assistant Chief State Counsel in the Ministry of Justice, Imo State of Nigeria, the four issues distilled by the appellant are adopted but couched differently as follows: –

1. Whether the defence of alibi avails the appellant

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and whether the trial judge was right to have rejected same.

2. Whether the learned justices of the Court of Appeal were right in affirming and holding that the case against the appellant was proved beyond reasonable doubt.
3. Whether the learned Justices of the Court of Appeal were right to have held that evidence of the PW1 was corroborated by the Appellants’ dark spectacle and whether the non – tendering of, is fatal to the prosecution’s case.
4. Whether there were material contradictions between the extra-judicial statement of PW1 and his testimony in Court and whether the trial Court can admit in evidence the extra-judicial statement of the appellant without conducting trial within trial.

I shall determine this appeal based on the four issues nominated by the appellant which are also in tandem with those of the respondent.

In his argument on the first issue, the learned counsel for the appellant J. C. Okafor, Esq submitted that the appellant, both in the extra-judicial statement to the police which was admitted in evidence as Exhibit 4 and in his oral testimony in Court properly and timeously raised the defence of alibi. He contended

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that nowhere in the evidence before the trial Court did the PW4, the IPO state that he ever investigated the alibi raised by the appellant. It is his view that the visit by the PW4 to Aba on 16/1/2002 could not have been in respect of the defence of the alibi made by the appellant on 17/1/2002 when he made Exhibit A after he was captured by the villagers and taken to the police station the same date. That having given his address as G12 E15 Holy Line of Bakassi Aba, it was incumbent on the police to investigate whether he was there on 14th January, 2002 at about 8.50am when the murder took place. He submitted that failure to investigate the alibi is fatal to the prosecution’s case, relying on the cases of Njiokwu Emeru v. State (2001) FWLR (pt. 55) 538 at 546 paras G – H, Augustine Onuchukwu v. State (1998) 4 NWLR (pt. 547) 576, Odili v. State (1977) 4 SC 1 and Onafowokan v. State (1987) 13 NWLR (pt. 61) 538.

It is the further submission of the learned counsel for the appellant that the Justices of the Court of Appeal were wrong to hold that the appellant was fixed to the scene of crime as at 8.50am on 14/1/2002 as there is no such evidence in the record.

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According to him, such finding is perverse and should be set aside because it has led to miscarriage of justice, citing the cases of Lagga v. Sarhuna (2008) 16 NWLR (pt. 114) 427 at 474 and State v. Ajie (2000) 11 NWLR (pt. 678) 434 at 448. He then urged this Court to resolve this issue in favour of the appellant.

In response on this issue, Mrs. K. A. Leweanya, learned Chief State Counsel, submitted that the defence of alibi did not avail the appellant as there were no sufficient facts to support such a defence. She opined that it is the duty of the accused to furnish the particulars of his alibi in full details to the police including his whereabout and those present with him at the material time of the incident.

The learned Chief State Counsel opined further that even if it is the duty of the prosecution to check on a statement of alibi or attempt to do so, there is no inflexible or invariable way of doing this if the prosecution adduces sufficient and accepted evidence to fix the accused person at the scene of crime at the material time. His alibi is logically and physically demolished, she concluded. See Njovens v. State (1973) 5 SC 17 Aliyu v.

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State (2013) FWLR 149.

It is her further submission that where the statement of an accused made before the trial is inconsistent with his testimony at the trial, the Court should reject both, relying on the case of R. V. Ukpong (1961) All NLR 25. She drew the attention of the Court to the extra-judicial statement of the appellant where he gave his address in Aba as G13 E15 Holy Line Bakassi, Aba which is different from the one he gave in Court while testifying as No. 46A over Rail, Aba. That in both addresses, the appellant failed to give the names of people living with him or who saw him there on the fateful day.

Referring to the evidence of PW1 and PW2, she submitted that the appellant having been fixed to the scene of crime, his alibi was demolished, relying on State v. Ezekiel Adekunle (1989) 1 CLRN 348. She argued that contrary to the submission of the learned counsel for the appellant that the PW4 (IPO) failed to investigate the alibi, the said investigator told the Court that the appellant did not mention anybody whom he could make findings against the alibi of the appellant. She urged the Court to resolve this issue against the

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appellant, further relying of the cases of Ochemaje v. The State (2008) 36 NSCQR (pt. 2) 862 at 879 – 880 Adebeji v. State (1971) All NLR 75; Emmanuel Ben v. The State (2006) 7 SCNJ 217.

Simply put, the word alibi means “elsewhere”. Whenever an accused person’s defence to a criminal charge is alibi, he is simply saying that he was at another place at the time material to the charge. The defence is based on the physical impossibility of an accused’s guilt by placing him in a location other than the scene of the crime at the relevant time. See Blacks’ Law Dictionary, 9th Edition, page 84, Shehu v. The State (2010) 8 NWLR (pt. 1195) 112, Olatinwo v. The State (2013) LPELR – 19979 (SC) (2013) 8 NWLR (pt. 1355) 126, Ayan v. The State (2013) LPELR – 20932 (SC), (2013) 15 NWLR (pt. 1376) 34, Idemudia v. The State (2015) LPELR – 24835 (SC), Eyisi & Ors vs. The State (2000) LPELR – 1186 (SC) (2000) 15 NWLR (pt. 691) 555.

Whenever an accused person intends to rely for his defence, an alibi, the law is trite that he must raise it at the first possible opportunity in answer to a charge by the police at the investigation stage to enable the truth

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and falsity of the allegation to be established by the police. The accused must furnish the particulars of his alibi in full details to the police. He would not only furnish his whereabout at the time material to the commission of the offence, he must also mention those present with him at the address so furnished. See Ozaki & Anor v. The State (1990) LPELR – 2888 (SC), (1990) 1 NWLR (pt. 124) 92.

Once a plea of alibi is proved, it serves as a complete exoneration of the accused/appellant from the commission of the crime alleged. See Anselem Agu v. The State (2017) LPELR – 41664 (SC), Adebiyi v. The State (2016) LPELR – 40008 (SC).

It must be emphasized that the plea of alibi, whenever it is raised, the prosecution is under a bounded duty to investigate the alibi. This is so because the plea presupposes that the accused not only claims he never committed the offence but that he was not at all at the locus delictis. However, the alibi must be definite as to time, place and the persons who know about accused’s whereabouts. It should not be just to set the police on a wild goose chase. See Chukwu v. The State (1996) LPELR – 856 (SC), (1996) 7 NWLR, (pt. 463) 686, Yanor

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& Anor v. The State (1965) NWLR, 337 at 341 – 342; Abubakar Mohammed v. The State (2015) LPELR -24397 (SC).

In the instant case, the appellant in his extra-judicial statement to the police (Exhibit 4) stated that although he went to his village, Ozara Ihube Okigwe on 13th January 2002 and remained there till the morning of 14/1/02, he however left the village to Aba around 8.00am. In the said Exhibit 4, the appellant informed the police that he is resident at G12 E15 Holy Line of Bakassi Aba in Abia State. Although the PW4 (IPO) said that he went to the address on 16/1/02 but did not find anybody to make enquiries, that visit could not have been in respect of the alibi which was set up on 17/1/02 for the first time. Be that as it may, did the appellant provide enough particulars to enable the police to investigate the alibi I do not think so. The appellant did not actually state where he was as at 8.50am when the murder took place. In his statement to the police (Exhibit 4), he merely said “I am resident at G12 E15 Holy Line of Bakassi Aba in Abia State”. The above statement, did not translate to something like “I was in my house at G12 E15 Holy line

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of Bakassi Aba as at 8.50am on 14/1/02.” It cannot be speculated. An alibi must be specific with particulars to enable the police investigate same.

The Court below, having reviewed the content of Exhibit 4, the statement of the appellant, had this to say at page 180 of the record: –

“Certainly, the narration above does not state the place Appellant was at the time of the commission of the offence at about 8.50am and who was with him at that time. Was he on his way to Aba or already in Aba at the time If on his way to Aba, he would have been in a vehicle with, at least, a driver and the vehicle would have had a registration number and the driver, a name!

If he was already in Aba at the time, he should have stated the place and the people who were with him.”

On the above views expressed by the Court below, the learned counsel for the appellant argued that it was not possible for the appellant to say who the driver was and the registration number of the vehicle since the vehicle the appellant boarded was of a public transport system. Granted that I may be persuaded to agree with him, that does not solve the problem. The truth is that the

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appellant failed to give verifiable particulars of his alibi to the police to enable it to be investigated.

Apart from the fact that the appellant failed to give particulars of his alibi, he gave contradictory address of residence in his extrajudicial statement to the police (Exhibit 4) and his evidence in Court. Whereas he states in Exhibit 4 that he resides at G12 E15 Holy line of Bakassi, Aba, Abia State, he gave as his residence, No.46A Over Rail Aba, in his testimony in Court. The inconsistency in his address is a clear indication of the character of the appellant or so it seems as there is no explanation to the inconsistency.

Quite apart from all I have said above, the law is trite that where there is direct and positive evidence of participation in the commission of the offence charged, the alibi, even if raised, will be rebutted by such evidence. See Aliyu v. The State (2013) FWLR 1497. In Njovens v. The State (1973) 5 SC 12 at P. 68, this Court stated the position of the law concerning the plea of alibi as follows: –

“There is nothing extra-ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person

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could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this, If the prosecution adduced sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely this alibi is thereby logically and physically demolished.”

See also Sunday Madagwa v. The State (1988) 5 NWLR (pt. 92) P. 60; Owolabi Kolade v. The State (2017) LPELR – 42382 (SC).

There is no doubt that the alibi set up by the appellant in this case was effectively demolished by the evidence of prosecution witnesses which fixed the appellant squarely at the scene of the murder of the deceased. The PW1 gave an eye witness account of the gruesome murder of his grandmother by the appellant using an axe. The dark eye glasses (goggle) worn by the appellant earlier that morning of 14/1/2002 was found at the scene of crime which was collected by PW2 and handed over to the police, though not tendered in Court. The appellant admitted ownership of the eye

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glasses but told the trial Court that the glasses were seized from him on 17/1/02. It is my view that the prosecution marshaled enough concrete and credible evidence which fixed the appellant at the scene of crime. I am satisfied that the Court below was right to accept the rejection of the defence of alibi set up by the appellant at the trial Court. Issue one, is, accordingly, resolved against the appellant.

The second issue is whether the Court below was right to affirm the conviction of the appellant for murder when the prosecution, according to the appellant, failed to prove the charge of murder beyond reasonable doubt.

Learned counsel for the appellant submitted in the main, that the learned justices of the Court of Appeal were in serious error when they upheld the conviction and sentence of the appellant for murder when the prosecution failed to prove the charge of murder against the appellant beyond reasonable doubt. It is his submission that in criminal cases, the burden of proof rests on the prosecution and does not shift, relying on Njoku v. The State (1993) 6 NWLR (pt. 299) 272 at 285, Idowu v. The State (2000) 7 SC (pt. 2) 50 at 95,

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Oforlete v. The State (2000) 2 NWLR (pt. 681) 415.

Learned counsel further submitted that to prove a charge of murder, the prosecution must prove: (1) that the deceased has died, (2) that the death of the deceased was caused by the accused person and (3) that the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its natural consequence. It is his contention that all the three ingredients must be established by the prosecution so as to leave no reasonable doubt regarding the guilt of the accused, relying on Anekwe v. State (1976) 9 – 10 SC 255, Aiguoreghian & Anor v. State (2004) 3 NWLR (pt. 860) 367 and Caleb Ojo v. FRN (2008) 11 NWLR (pt. 1099) 467.

Learned counsel submitted that there were inconsistencies and contradictions in the evidence of PW1 as follows: –

1. That in his extra-judicial statement to the police (Exhibit 1), he said that the appellant and an unidentified person hit the deceased with an axe but in his evidence in Court PW1 said the appellant used a stainless axe.
2. The second alleged contradiction is the difference

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between the evidence of PW1 and that of the appellant in respect of the eye glasses picked at the scene of crime and/or removed from the body of the appellant on 17/1/02 the date he was arrested.

It was his further contention that the PW1, a 13 year old boy, ought to have been in school on the date of the incident and wondered why he failed to have gone to school only to stay home to help his grandmother (the deceased). He submitted that the Court below ought not to have upheld the findings of the learned trial judge on the issue of the absence of the PW1 from school.

He submitted further that the prosecution failed to disclose the motive of the appellant in killing the deceased. That intention is specifically provided for as an ingredient of the offence of murder and it must be specifically proved, relying on the case of Onovo v. Queen (1961) 1 SCNLR 56, Uguru v. State (1964) 1 All NLR 21, Amayo v. State (2002) FWLR (pt. 91) 157, Abigail Njoku v. State (supra).

On the evidence of PW2, he submitted that he only told lies against the appellant because appellant’s mother had prevented him (PW2) from following her son (Appellant) to Onitsha. Learned

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counsel also faulted the evidence of PW3 – Dr. Godian Nwambara as according to him, it did not specifically state the particular object used in killing the deceased. On the whole, he urged the Court to hold that the Court below was wrong to affirm that the prosecution proved its case beyond reasonable doubt. He urged the Court to resolve this issue in favour of the appellant.

In response, the learned counsel for the respondent agrees completely with the submission of the appellant’s counsel that to ground a conviction in a criminal case, the prosecution must prove all the ingredients of the offence charged beyond reasonable doubt. She also adopts the three ingredients of the offence of murder espoused by the appellant’s counsel.

It is her submission that there is no dispute on the fact that Beatrice Kwemma died on 14/1/2002. Also, that there is abundant evidence that she was murdered by Eseonu Chukwunyere and another by cutting the deceased with an axe on her head which resulted in her death. After reviewing the evidence led at the trial, she submitted that it was the act of the appellant that caused the death of the deceased on 14/1/02. She

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relies on the cases of Uyo v. AG. Bendel State (1986) 1 NWLR (pt. 17), Alabi v. State (1993) SCNJ 109.

On the third ingredient of the offence of murder, which is intent, she submitted that the prosecution may rely on the presumption that a man intends the natural consequences of his act, citing and relying on R. V. Nwugu (1953) 14 WACA 379 and Hyam v. DPP (1974) 2 All ER 43. Learned counsel further opined that taking into consideration the nature of the weapon used, the force applied and the part of the body affected by the act of the appellant, mens rea or mental awareness was established, relying on Alhassan Maiyaki v. The State (2008) All FWLR P. 440 at 628, Mohammed Garba v. The State (2001) 2 ACLR 221. It is her view that the appellant, in the circumstance of this case, actually intended to kill the deceased.

On issue of contradiction in the evidence of prosecution witnesses, learned counsel replied that there was none as appellants counsel did not point out any except the flimsy issue of “an axe” and a “stainless axe’” She also contended that non tendering of the dark glasses and the axe did not vitiate the conviction of the

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appellant.She urged the Court to resolve this issue against the appellant.

It is now a well established principle of law that in criminal proceedings, the onus is always on the prosecution to establish the guilt of an accused person beyond reasonable doubt and the prosecution will readily achieve this result by ensuring that all necessary and vital ingredients of the charge or charges are proved by evidence. This legal requirement is given statutory vent by Section 135 of the Evidence Act 2011. May I quickly add that proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. See Fabian Nwaturuocha v. The State (2011) LPELR – 8119 (SC), (2011) 6 NWLR (pt. 1242) 170, Osuagwu v. State (2013) LPELR – 19823 (SC), Adekoya v. State (2017) LPELR – 41564 (SC), Oseni v. The State (2012) LPELR – 7833 (SC) (2012) 5 NWLR (pt. 1293) P.351.

In a charge of murder contrary to Section 319 of the Criminal Code, the prosecution is under a duty to

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establish or prove the following ingredients of the offence beyond reasonable doubt before an accused can be convicted. That is the say: -1. That the deceased has died.

2. That the death of the deceased resulted from the act of the accused person.
3. That the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable consequence of his act.

To be able to establish the three ingredients of the charge of murder stated above, the prosecution’s evidence may flow from any of the following ways: –

1. The confessional statement of the accused which has been duly tested, proven and admitted in evidence.
2. By circumstantial evidence which is complete, cogent and unequivocal and heads to an irresistible conclusion that the accused and no other person, committed the offence charged.
3. By direct evidence of eye witnesses who actually saw the accused committing the offence.

See Ugochukwu Okereke v. The State (2016) LPELR – 40012 (SC), Akinlolu v. The State (2015) LPELR – 25986 (SC) Ogedengbe v. The State (2014) 12 NWLR (pt. 1421) 338, Ogba v. The State (1992) LPELR – 2273 (SC), Akinfe v. State (1988) 3 NWLR

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(pt. 85), 729, Onah v. State (1985) 3 NWLR (pt. 12) 236, Gabriel v. The State (1989) 5 NWLR (pt. 122) 457.

In the instant appeal, the prosecution proved the charge against the appellant through direct evidence from witnesses who saw the appellant commit the offence. To start with, both the appellant and the respondent’s witnesses agree that one Beatrice Kwemma died on 14th January, 2002. That settles the first ingredient of the offence.

Secondly, the PW1 Chijioke Kwemma, the grandson of the deceased testified that when he visited the deceased in the farm to help her evacuate her harvest to the house, he met the appellant and another hitting her on the head with an axe. He was frightened, ran to his Aunty and then to the village. This is what he said in his evidence in chief on page 25 of the record of appeal: –

“I did as ordered and wanted to go to the farm to bring home the cassava and the three leaf yams. As I approached the farm, I looked up and saw Esonu (2nd accused) and one other I have already said I don’t know. The same attire they wore when I saw them inside the farm was still the same they had on them while passing through (sic) and

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fro our house. Esonu still wore the black spectacle he was wearing. That other man I do not know held my grandmother on the leg and this Esonu had a stainless axe he used to inflict injuries on her head. I got frightened ran home and raised alarm. I got home nobody was there, I then ran to Akpugo to my aunt. As I got there, I told her that Esonu and others have killed my grandmother and she replied – “oh they have done what they planned.” Two of us then started crying and ran to our Chief. This Chief sounded the village kong (sic) and people gathered asked what happened and I narrated the story. After we all went to the scene. My grandmother was dead. The glasses 2nd accused was wearing was on the ground and one of us picked it. This man who picked the glasses is Sunday Ehejiuba.

The learned counsel for the appellant complained about inconsistency or contradiction in the evidence of the PW1. The only issue he pointed out in his brief is that whereas PW1 told the police in his extra-judicial statement that the appellant used an axe to hit his grandmother on the head, his evidence in Court shows that the appellant used a “stainless axe” to hit the

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deceased. I think, I agree with the learned counsel for the respondent when she argued in her brief that what the appellant has labeled as contradictions are minor discrepancies which have not affected the material aspects of the testimony of the PW1. A discrepancy may occur when a piece of evidence stops short of, or contains a little more than, what the other evidence says or contains some minor differences in details. Minor discrepancies between previous written statement and subsequent oral testimony do not destroy the credibility of the witness. In fact, it has been held that where no such discrepancies occur, it may lead to a suspicion that the witness has been tutored. See Hassan v. The State (2016) LPELR – 42554 (SC), Attah v. The State (2010) LPELR – 597 (SC), Ogbu v. The State (1992) 8 NWLR (pt. 259) 255, Gabriel v. The State (supra), Uwagboe v. The State (2008) 12 NWLR (Pt. 1102) 621.

Without any doubt whatsoever, I agree with the Court below which upheld the findings of the trial Court that the evidence of PW1 was quite unequivocal, clear, authentic and unshaken during cross-examination.

PW2 testified that he picked the dark eye glasses at

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the scene of crime which the PW1 earlier saw on the appellant just before the commission of the crime. The appellant agrees he owns the eye glasses but alleged that it was taken from him on 17/1/2002 when he was arrested by the villagers. He denied it was taken from the scene of crime. Unfortunately, the prosecution did not tender the eye glasses. Appellant’s counsel made a mole hill out of this.

I state here that although it would have added to the strength of the case of the prosecution, it is not the law that failure to tender the weapon or instrument used to kill the deceased is fatal to their case, let alone, the eye glass which could have merely linked the appellant to the scene of crime. See Esene v. The State (2017) LPELR – 41912 (SC), Olayinka v. The State (2007) 9 NWLR (pt. 1040) 561 Chukwuemeka Ezeuko (& Dr. Rev. King) v. The State (2016) LPELR – 40046 (SC). May I add that once the prosecution proves the ingredients of the murder beyond reasonable doubt, failure to tender the offensive weapon or any item linking the accused to the scene where he has been effectively identified and seen at the scene cannot result in the acquittal of the

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accused person. This is because of the possibility of the accused person doing away with the offensive weapon or any other thing after the commission of the offence to exculpate himself from criminal responsibility.

Quite apart from the evidence of the two witnesses, the PW3, Dr. Godian Nwambara who performed Autopsy and gave evidence as to the cause of death and tendered the medical report which was admitted as Exhibit 2, concluded as follows: –

“In my opinion, the cause of death is as a result of brain injury. This could be caused by blunt object. The injury i.e. laceration caused by sharp object.” See P. 33 of the record of appeal.

Although the learned counsel for the appellant argued that the cause of death was not certain, the Doctor’s report is very clear and certain.

On the last ingredient i.e. intention, I accept the views expressed by the House of Lords in the English case of Hyam v. Dpp (1974) 2 All ER 43 that an intention to cause death or grievous bodily harm is established if it is proved that the accused deliberately and intentionally did an act knowing that it was probable that it will result

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in the death of or grievous bodily harm to the victim. Also, that if a man in full knowledge of danger involved and without lawful excuse deliberately does that which exposes a victim to the risk of probable grievous bodily harm or death and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to same extent as if he had actually intended the consequences to follow irrespective of whether he witnessed it.

Now, taking into account the nature of the weapon used, in this case an axe – whether stainless or ordinary and the force applied on the head of the deceased as described by the PW1 and confirmed by PW3, the appellant cannot be heard to complain against his conviction for murder especially as the axe was used to hit the deceased on the head. There can be no doubt that a person delivering a violent brow with an axe on a vulnerable part of the body of the deceased such as the head must be deemed to have intended to cause such bodily injury as he knew that death would be the probable consequence of his act. See James Afolabi v. The State (2016) LPELR – 40300 (SC) Orisakwe v. The State (2004) 12 NWLR (pt. 887) 258, Ejelikwu v. The State (1993) 7 NWLR

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(pt. 307) 554, Nwokearu v. State (2013) 4 – 5 SC (pt. 4) 95 at 122. Akinlolu v. The State (2015) LPELR – 25986 (SC).

From all I have said above, I agree entirely with the Court below that the prosecution proved its case before the trial Court beyond reasonable doubt. This issue is also resolved against the appellant.

The 3rd issue has to do with none tendering of the spectacle or goggle. In resolving issue 2, I made reference to the effect of not tendering the eye glasses. It is of no moment. I need not repeat the exercise. Although it was desirable to tender the said dark eye glasses, the failure to tender it is not fatal to the case of the prosecution. The 3rd issue is thus resolved against the appellant.

The last issue is a double barrel issue. It has to do with issue of inconsistencies in the evidence of PW1 and the failure of the learned trial Judge to conduct trial within trial.

On the 1st leg of this issue, I wish to draw attention to my earlier decision in issue 2 which incorporated issue of contradiction and/or inconsistencies in the evidence of PW1. I do not know why counsel is repeating himself. May be he has all the time in the

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world to do so. It is a waste of precious judicial time to repeat the exercise. I adopt my decision in issue two as far as the 1st leg of this issue is concerned.

On the 2nd leg of this issue, may I appeal to counsel not to dribble the Court as if we are in a football match. Criminal trial is a serious business especially where the life of the accused is at stake. The learned counsel for the appellant has complained that the trial Court failed to conduct trial within trial since the appellant said his statement was taken under duress. But as was pointed out by the learned counsel for the respondent, the record of the Court shows otherwise. I shall refer to pages 34 – 35 of the record of appeal. It is part of the evidence of PW4 (IPO) and the order of the Court. It states: –

“On 17th January 2002, the accused was captured by the villagers and brought to the station. He made a statement under caution. After this, case file and the accused were handed over to the State C.I.D, for further investigation. This is the statement of the accused. He made two statements in all. Counsel seeks to tender these. Shown to defence counsel and she objects. Case

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adjourned to the 11th day of May, 2005 for trial within trial.

(Signed)

Hon, Justice Ngozi Opara

Judge

27/04/05

HOLDEN AT OKIGWE

BEFORE HIS LORDSHIP HON. JUSTICE NGOZI OPARA – J

THIS WEDNESDAY THE 11TH DAY OF MAY, 2005

HO/13c/2004

STATE

vs.

ESONU CHUKWUNYERE

Accused person is present. S. C. Osuaha Esq State Counsel for the State. Ngozi G. Uwaezuike (Miss) for the accused person. Withdraws the issue of trial within trial since the accused person has acknowledged the statement as his. The State now says he wants a date to prepare and present his witness. Case adjourned to the 26th day of May, 2005.

(Signed)

HON. JUSTICE NGOZI OPARA

JUDGE

11/05/05.”

In this case, the appellant has not challenged the record of appeal captured above. It is therefore a settled principle of law that admitted facts should be taken as established. Having not challenged the facts as stated in the record, it is deemed admitted. It is therefore unconscionable for a party to approbate and reprobate. See Asaboro v. Pan Ocean Oil Corporation Nig. Ltd & Anor (2017) LPELR – 41558 (SC),

31

Intercontinental Bank Ltd v. Brifina Ltd. (2012) All FWLR (pt. 639) 1192 at 1206. Federal Republic of Nigeria v. Faith Iweka (2013) 3 NWLR (pt. 1341) 285.

The record of appeal shows that the learned trial Judge adjourned the case from 27/4/05 to 11/05/05 to enable trial within trial to be conducted. But on 11/05/05, the learned counsel for the appellant aborted the said trial, intimating the Court that the appellant admitted the statement to be his. That was how the Court cancelled the order for trial within trial. I am disturbed that learned counsel, after telling the Court that appellant admitted the statement as his and aborted the trial within trial would turn around to make it an issue before this Court. This is, as I said before, very unconscionable. Counsel must desist from such practice. This Court is very busy and does not have time for frivolities. I need not say more on this. This issue does not avail the appellant at all.

Having resolved the four issues against the appellant, I hold that this appeal is unmeritorious. It is accordingly dismissed. The judgment of the lower Court is accordingly affirmed.

Appeal Dismissed.

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SC.325/2015