Gozie Okeke V. The State (2003)

LAWGLOBAL HUB Lead Judgment Report

M. A. BELGORE, J.S.C.

The appellant was arraigned before Ezeani J. sitting at Awka in the High Court of Anambra State, for the murder of one Kenneth Ojukwu (hereinafter referred to as the “deceased”). The appellant, the deceased and some other persons living at Onitsha traded in foreign monies. The traders contributed foreign monies, the accused also contributed, for the deceased to take to Lagos in course of the same business in foreign exchange. He was to travel by road from Onitsha, but as the bridge linking the town to the western bank of River Niger at Asaba was blocked by an accident he decided to go to Enugu to travel to Lagos by air. The appellant offered the deceased a lift to Enugu in his car. The appellant borrowed a Volkswagen car from his sister and headed towards Enugu but after a few kilometres, somewhere between Umunya and Awka, the appellant took out the motor Jack inside the car, which was in motion, with him at the wheel, and hit the deceased on the head. There was a struggle between the deceased and the appellant whereby the appellant used penknife to stab the deceased at the neck. All along, the appellant knew the deceased carried foreign currency, including the appellant’s own contribution. The money was mainly in CFA Francs. The deceased, having been grievously injured, managed to jump out of the car and a road user saw the appellant’s car pursuing the deceased along the road and he reported to police at the next check point.

The appellant made three voluntary statements in each of which he admitted attacking the deceased with the motor jack and a knife. In the statements, he never denied inflicting the injuries found on the deceased, he only maintained he never intended to kill but to get himself into police net and get, in the process, his father consenting to his proposal to marry a certain girl. The first two statements to police, he denied ever making voluntarily; but after trial within trial learned trial Judge ruled that they were voluntarily made. The third statement to the police was not challenged and it was also admitted in evidence. It is remarkable that the appellant who made statements to the police on 28th and 29th September, 1991 respectively, later resiled from them after making the third statement. In the first two statements he stated vividly how he attacked the deceased with motor hydraulic jack and a sharp knife, but in the third statement became somewhat evasive even though admitting hitting the deceased on the head with a heavy object. Towards the end of the third statement he wrote:

” … That was how I came to Abagana police station and make (sic) statement (sic) on 28/9/91 and 29/9/91. I still adopt the two statement as part of my statement to the police.”

When the appellant resiled from the first two statements one wonders what he would achieved with the third statement above in place. The sum total of his defence at the trial court was that he in fact hit the deceased on the head with a heavy motor jack and stabbed him with a knife in the neck, but he did not want to kill him. He only wanted to create a scene so that he would have police trouble whereby his father would allow him to marry a certain girl the father objected to. He claimed also that he purchased and smoked cocaine; but his vivid description of how he attacked the deceased seemed not to destroy his reasoning faculty.

The trial High Court Judge (Ezeani, J.) after reviewing the whole evidence before him concluded that the accused murdered the deceased by hitting him on the head with a heavy steel object and by stabbing him whereby he suffered massive haemorrhage which caused his death. He considered the defence of intoxication which he found did not avail the appellant because if the appellant had any impairment of the brain, it was self-induced as he deliberately took cocaine. He therefore found the appellant guilty of murder and accordingly convicted him as such under S. 274(1) of Criminal Code Law, (Cap.36) Laws of Anambra State 1986 and sentenced him to death.

There was an appeal to Court of Appeal Enugu on grounds of appeal ranging from misdirection to admission of statements as voluntary, from the effect of intoxication through cocaine, to the manner the voluntary statements were authenticated; and of course the general ground. The Court of Appeal, adverted to the formulated issues before it, which run as follows:

“1. Whether the learned trial Judge was right in law in convicting the appellant of murder on the sole ground that the offence was committed in a state or condition of self induced without any regard as to proof of a specific intent or whether the influence of cocaine was such as to render the appellant incapable of forming the specific or requisite intent.

2. Whether the learned trial Judge was right in convicting the appellant merely on the ground that the accused signed the alleged confessional statements.
3. Whether the trial Judge was right in law in admitting in evidence the alleged confession made by the appellant in the presence of one Michael Okonkwo PW 1 when he was brought out by the D.C.O. and without cautioning him.
4. Whether it was right to treat the alleged stains found on the money, jack or wheel spanner as corroborative evidence of the alleged confessional statements or circumstantial evidence connecting the appellant with the crime when there was no positive or conclusive evidence that it was human blood.
5. Whether the appellant was charged under a law in existence at the time of the commission of the offence. If the answer is in the negative, whether the trial Judge should have convicted of the offence as charged.
6. Whether the trial Judge properly evaluated the evidence of both sides.”

And came to the conclusion that the appeal lacked merit. The lower court observed that the appellant knew the deceased carried huge sums of foreign money and after attacking the deceased he took substantial part of these to his house where he hid it in the ceiling. The motive, which was to take these sums of foreign money, influenced the appellant, rather than the self-induced intoxication through the cocaine he smoked. Court of Appeal therefore found no merit in the appeal and dismissed it. Thus the appeal to Supreme Court.

The appellant in this appeal departed entirely from the issues canvassed in the two lower courts, even though on points of law in five of the grounds. The grounds are:

“i. The appellant as accused was not properly arraigned at the trial court and Court of Appeal erred in affirming conviction based on that arraignment.

ii. There was no fair-hearing at trial court because of the delay of about seven years in contravention of S. 33(4) of the Constitution of Federal Republic of Nigeria 1979 and Court of Appeal erred to affirm conviction based on that trial.

iii. The appellant was not “meaningfully and effectually” defended by counsel at trial court and Court of Appeal was in error to affirm conviction based on that trial.

iv. The Court of Appeal, in affirming the trial court’s decision that defence of insanity did not avail the appellant erred in law.

v. The Court of Appeal erred in law when, it went outside the findings of trial court when it held that the appellant was not intoxicated by cocaine leading to commission of murder”.

The last ground is the general ground. The appellant, on the foregoing grounds formulated the following issues for determination:

“1. Whether there was a valid arraignment or plea of the appellant at the trial court, pursuant to section 33 (of the) Criminal Procedure Law, and Section 33(6) of the 1979 Constitution

2. Whether the appellant had been tried within a reasonable time pursuant to section 33(4) of the 1979 Constitution
3. Whether the appellant had received a fair hearing pursuant to section 33(4) of the 1979 Constitution in the sense of having been meaningfully and effectually defended at the trial in the High Court
4. Whether the court below was not in error when it affirmed the judgment of the trial court that the defence of insanity did not avail the appellant
5. Whether the Court of Appeal did not go outside the findings of the trial Judge to make adverse material findings of facts not borne out of the evidence led during trial
6. Whether the court below was not in error when it affirmed the trial court that the guilt of the appellant was proved beyond reasonable doubt.”

For ease of following the appellant’s argument, I take the issues serially.

Issue 1

The original charge was amended and a new charge was substituted and it reads, in its particulars:-

“That you Gozie Okeke, on the 25th day of September, 1991 in the Awka Judicial division murdered Kenneth Ojukwu”

In the statement the charge reads:

“Murder, contrary to section 274(1) of Criminal Code, Cap. 36 vol. 1, Laws of Anambra State of Nigeria, 1986.”

The appellant, as the sole accused person before that court, heard the charge read to him by the court and pleaded not guilty. Learned trial Judge recorded this as follows:

“The amended charge is read to the accused who pleads not guilty to the charge”.

The original charge is substantially the same as the amended one the difference being the absence of “That you” before the words “Gozie Okeke”. The accused person spoke English all along, from his pre-trial voluntary statements to police to his evidence during trial. He had a counsel representing him from the arraignment in the person of one K.O. Nwanna, Esq. In 23rd May 1992 through to 8th November, 1996 when six witnesses testified for the prosecution, and taking of trial within trial on the admissibility of statements the appellant made to the police before trial. Mr. Nwanna thereafter disappeared from the case without any explanation. The court adjourned to appoint a new counsel. On 21st June 1996, S.N. Chukwuma, Esq., appeared for the appellant and from thence was for him to the conclusion of the trial. The question is “Was there a proper or valid arraignment on which the trial was based” The answer lies in the entire circumstance of the case. The accused must be placed before the court unfettered, the charge must be read to him in the language the accused person understands, and if he is represented by counsel, there is no objection to the charge and a plea is taken from the accused person. The charge must be read and explained to the accused, and if there is no objection by counselor the accused person, there is clear presumption of regularity that all that must be done to let the accused know the charge against him has been done. In that wise it is presumed the accused understood the charge which has been read and explained to him and the court was equally satisfied the charge was understood by the accused. All these conditions must be satisfied Kajubo v. The State (1988) 1 NWLR (Pt.73) 721; Eyorokoromo v. The State (1979) 6-9 SC 3; Ogodo Ebem v. The State (1990)7 NWLR (Pt.160) 113. In Erekanure v. The State (1993)5 NWLR (Pt.294) 385, where the accused person did not understand English language and it was not clear on the record whether the charge was read and explained to the accused in the language he understood. In the case presently at hand the appellant spoke in English throughout – from arrest to arraignment and throughout the hearing. There is nowhere in the record that the trial Judge was not satisfied the accused understood the charge. The record must be looked at as a whole and not in cosmetic way of recording every incident that would normally be presumed had been done; the requirement is that the accused must understand the charge he faced from the trial court through to the Court of Appeal. The appellant never raised all the issues he now canvasses; it is only in this court that he has by leave raised the issue of defect in arraignment.

Olatawura JSC said in Erekanure v. The State (1993) 5 NWLR (Pt.294) 385, that there was nothing in the printed record that the trial court read the charge and explained it to the accused; nor did the trial Judge indicate that he (Judge) was satisfied the accused understood the charge. In that case, the accused person could not speak or understand the charge, even though a counsel represented the accused this court felt the accused never had a good trial in the possibility that he never understood the charge he faced because the appellant could not understand English language. This short-coming could only be obviated by recording precisely in the proceedings that:

(i) The charge was read to the accused and it was explained to him in the language he understood;

(ii) That the trial Judge was satisfied that the accused understood the charge;

(iii) That the accused was then asked to plead and his plea was recorded.

In the instant case the charge was read to the accused and he pleaded. His counsel was present and he made a passionate defence to the charge. His defence however was that he took cocaine and he was intoxicated by it. I think the learned counsel for the appellant misapprehended the rationale in the case of Kalu v. The State (1998) 13 NWLR (Pt.583) 531, in which the accused could only speak Ibo language but the proceedings were in English, the language of the court. It was held that the proceedings, however well taken would be nugatory once it was not indicated that there was reading of the charge to him in language he understood and there was the certainly that he understood the charge.

The accused (now appellant) spoke English throughout the proceedings in the two lower courts where he was represented by various counsel including the one he personally briefed. All the cases relied upon in the present appeal are not on all fours with the situation in this trial.

The accused not only understood the charge against him, he sensibly pleaded “Not guilty”. He never at any time complained against the charge and the arraignment throughout the trial court and at the Court of Appeal. It is an entirely new case that is being made before the Supreme Court, even though with leave of the court. There is no evidence of miscarriage of justice. This issue has therefore no substance.

Issue 2

It is true the case took quite sometime to try and conclude. The most important portions of the trial period are:

i. Hearing of evidence, and

ii. Hearing final addresses and judgment.

Learned counsel for the appellant conceded that peculiarities of a case and circumstances are most important considerations. “Reasonable time” depends on nature of a case. How many witnesses testified and the number of exhibits involved and their effect on possibility of trial Judge losing track of the scenario of the case. Were the accused persons numerous that a possibility exists that what witnesses said on each accused is lost in recollection of the trial Judge All these are weighed against the length of the trial. In the present case, only the appellant was tried. The main exhibits were accused’s voluntary statements, and all evidence given could be recollected by a trial Judge by re-reading the record of proceedings and could not be destroyed by effluxion of time. The case of Ozuluonye and Ors. v.The State (1983) 4 NCLR 204 took four years to try, but there were more than ten accused persons, the trial Judge went on transfer to another judicial division and was transferred back to find the case remained where he left it, he then concluded it. But in the process mixed up the evidence. He obviously had lost track of the facts.

All adjournments in this case were either at the instance of the appellant or the prosecution without any objection and there is no evidence to show that the trial Judge lost track of any of the facts.

Issue 3

Was the appellant properly represented by counsel

On the face of the record, the first court-assigned counsel abandoned the accused and a new counsel was assigned and appellant rejected the new counsel and finally briefed a counsel of his choice. There is no evidence that appellant’s instruction was not followed by his counsel, or that any of the counsel advised the appellant wrongly. This is a very unfair issue of accusing counsel without inviting them in the time honoured practice of giving their own side of the story, I need not say much about this as it is an unwarranted foray into unfair accusation of professional colleagues.

Issue 4

The appellant took the police to his house after he made his voluntary statements. There the police recovered huge quantity of CFA francs stained with blood and the appellant’s personal dress also so stained. The appellant admitted he wore the same dress and the money came from those he took during the commission of the offence. For a court to comment on this is not an error as the facts were already in evidence.

Issues 5 and 6

Defence of insanity.

There is insanity that occurs through natural process without any inducement. There is a disturbance of the mind whereby the accused never knew what he was doing, or knew what he was doing but never appreciated the consequences. This type of insanity is a defence if pleaded and proved. The other type of insanity is the one that is self-induced by an accused person by taking of alcoholic drink or other intoxicating and stupefying substance that renders the accused insane for a period because of the effect of the drink or stupefying substance. The substance could be drug like cocaine, cannabis sativa or any of the gaseous substances having intoxicating and stupefying influence on the consumer.

In this case the accused voluntarily, without any urge by either in the way of medical prescription or necessity, takes the substance and run into criminal act. For this the intoxication is self-induced and it is no defence. In the case of crime committed e.g. murder, during the period of self-induced intoxication, it is no defence to a charge that the accused did not intend to do the act alleged in the offence. He is presumed to intend the natural consequence of his act. The accused is not a person lawfully authorised to hold cocaine and he claims that he took cocaine and in the process violently attacked the deceased and killed him. No accused is allowed to take shelter under defence of intoxication if that intoxication is self-induced. The appellant could not excuse his conduct on his getting off his head or faculty because he voluntarily took cocaine or any other stupefying substance.

It is true the Court of Appeal held that one of the reasons the appellant killed the deceased was because he wanted to rob the deceased of the foreign monies he carried. It is true this has not been one of the points the trial court found against him. But there is abundant evidence that the accuse took these monies and hid them in the ceiling of his house. What is wrong with this finding At any rate, Court of Appeal dismissed the appeal on the very grounds trial court found him guilty. What the appeal complains of is surplusage. There was proof beyond reasonable doubt that the accused murdered the deceased and the Court of Appeal rightly upheld the decision of the trial court.

I find no merit in this appeal and I dismiss it. I affirm the decision of the trial court as upheld by the Court of Appeal.

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SC.259/2000