Michael Udo Udo V. The State (1988)

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NNAEMEKA-AGU, J.S.C. 

This is an appeal by Michael Udo Udo against the confirmation by the Court of Appeal, Enugu Division of his conviction for murder and a sentence of death by hanging passed on him by an Oron High Court presided over by Esin, J., on the 13th of September, 1982.

Before the court of trial, he was charged that on the 3rd of June, 1979, at Adiata Fishing Port, Oron, he murdered Owong Bassey Ekpenyong. It is enough to state that at the conclusion of the trial, he was convicted and sentenced to death according to law. On appeal the Court of Appeal, Maidama, J.C.A., Olatawura and Ajose-Adeogun JJ.C.A. concurring, resolved all the three issues that arose for determination against the appellant and dismissed the appeal.

The appellant has appealed further to this Court. Although he had filed seven grounds of appeal with his notice of appeal, the appeal was argued on the appellant’s brief which was based on the additional grounds of appeal which learned counsel had the leave of this Court to argue. Those grounds and the appellant’s brief based on them set out the following issues for determination, namely:

“2.1 Whether the appellant had a fair trial for failure of the Court to assign to him the Counsel who was defending him when the Counsel said he could no longer do so because he was not sure who would pay him, considering the provision of S.352 of the Criminal Procedure Act and the decision of the Supreme Court in the case of Saka v. The State (1981) 11-12 S.C. 65.

2.2 Where a financially handicapped accused person who is facing a capital punishment is being defended by a Counsel of his choice who in the middle of the case says he will no longer defend the accused because he is not sure who will pay his fees whether it is not mandatory under S.352 of the Criminal Procedure Act for the trial Judge to assign the Counselor any other Counsel to him for purposes of a fair trial.

2.3 Whether it was not the duty of the trial Judge to identify the material contradictions in the evidence of the prosecution witnesses and resolve them and in this case whether the Court of Appeal was justified to hold that the trial Judge had performed his duty in this respect.

2.4 Whether the inconsistencies in the evidence of the P. W.3 and P.W.4 were de minimis or they were material contradictions and whether it was insufficient for the trial Judge to simply comment and observe generally without identifying the areas of contradictions before the comment and observation.

2.5 Whether it was not necessary for the trial court to consider the defence of the appellant that he was struggling over Exhibit 1 with the deceased when it accidentally hit the deceased and he died, no matter how stupid the defence might appear to be and whether the Court of Appeal was not in error by not adverting its mind to this.

2.6 Whether it was proper for the trial Judge not to warn himself before believing the evidence of P.W.3 a full blooded brother of the deceased and convicting the appellant on his evidence.

I shall take the issue of fair trial first. It is enough to state that it was part of the contention of the learned counsel for the appellant that the only eye witness to the murder was P. W.3. The prosecution, however, contends that both P.W.3 and P.W.4 were eye witnesses to the murder. For reasons which will become obvious later, I need not resolve the conflict in this appeal. I only wish to state that the main plank in the appellant’s complaint of unfair trial was that the P.W.3, the only eye witness according to the defence, gave his evidence in the absence of the learned counsel for the defence in the court of trial.

It was the contention of the appellant that the trial Judge could have avoided the situation by granting the application of defence counsel for an adjournment on the ground that he was appearing in a murder case in another court. Also, he had adjourned the matter several times at the instance of the prosecution and should hold the balance between the prosecution and the defence, but did not, he argued.

The appellant also contends that the learned Judge was in error to have refused the application of the defence counsel to withdraw from further appearance for the defence because by foisting the case on him, he was compelled to render some half-hearted services for the defence when he was present at all. Even in the address, he pointed out, counsel merely left the matter to the court and said nothing to assist the defence. Counsel was not even present on the date judgment was delivered and capital punishment inflicted. Finally on the point, he submitted that the Court of Appeal was wrong when it held that in so far as the appellant had a counsel of his choice, even though he was absent at part of the trial, the provision of section 352 of the Criminal Procedure Law had been satisfied.

He submitted that right to counsel entails not only the person accused of a capital offence retaining a counsel of his choice but also the counsel conducting the case for such a person. He cited in support section 33(6)(c) of the Constitution of 1979; Saka v. The State (1981) 11-12 S.C. 80; Josiah v. The State (1985) 1 NWLR, 125 at p. 140. He submitted that the refusal of the trial court to grant the application of defence counsel for an adjournment was a wrongful exercise of his judicial discretion, and that the Court of Appeal was wrong to have acquiesced to that. In support he cited: University of Lagos v. Agoro (1985) 1 N.W.L.R. 143, p. 153, Saffiaddine v. C.O.P. (1965) 1 All N.L.R. 54, p. 56; Solanke v. Ajibola (1968) 1 All N.L.R. 46. p.52; Mobil Oil (Nig.) Ltd. v. Fed. Board of Inland Rev. (1977) 3 S.C. 97., p. 141. Demuren v. Asuni (1967) 1 All N.L.R. 94 p. 101; and Enekebe v. Enekebe (1964) 1 All N.L.R. 102, p.106.