Nwanga Nwuzoke V. The State (1988)
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A. OPUTA, J.S.C.
The Appellant was in the Abakaliki Judicial Division of the Anambra State High Court charged with, and convicted of the offence of murder by Obayi, J. and sentenced to death. His appeal to the Court of Appeal Enugu Division was found to be totally unmeritorious and was accordingly dismissed.
In that Court neither learned counsel for the Appellant nor for the Respondent had anything useful to urge in his favour. He has now appealed to this Court on one original ground namely:-
“That the decision is unwarranted, unreasonable and/or cannot be supported by law.”
This ground calls for another review of the facts of this case. Just how many such reviews can we have in one single case That is the question and the answer seems to be in the policy of this Court to abide by the concurrent findings of the two Courts below unless exceptional circumstances are shown requiring this Court to intervene to prevent a miscarriage of justice.
Learned counsel for the Appellant, Senator N.N. Anah sought and obtained leave of Court to file and argue two additional grounds of appeal namely:”
- The learned Justices of the Court of Appeal erred in law by not considering self-defence which was implicit and inherent in the defence of the Appellant and this caused a miscarriage of justice…
- The learned Justices of the Court of Appeal erred in law by not considering the defence of property and person against a trespasser which also was implicit in the defence of the Appellant.”
The two additional grounds reproduced above refer and relate to two cardinal principles of our criminal law. It is trite law and needs no argument that when a defence however weak, however foolish, however unfounded, however conflicting, is raised by a person charged with crime, that defence should fairly and impartially be put to the jury. This is a paramount principle of our law R v. Kwabena Bio (1945) 11 W.A.C.A. 46 at p.48: see also R v. Dinnick (1909) 3 CR. App. R. 77 at p.79.
Following from the above is another principle no less fundamental that is, that such defence or defences need not be specifically put forward. It is enough if they arise from the totality of the evidence led on both sides or to use the phraseology of learned counsel for the Appellant if they are “implicit and inherent.” The summing up should therefore deal with any question arising from the evidence led which provides a defence to the charge even if counsel failed to raise or advert to such questions or defences.
The summing up should also deal with and adequately consider any other alternative view of the facts which might reasonably arise from the evidence: R v. Vassileva (1911) 116 CR. App. R. 228 at p.234: R v. Williams Hopper (1915) 11 CR. App. R. 136 at p.141: Mancini v. D.P.P. (1941) 28 CR. App. R. 65 at p.72. It is also necessary to emphasise that there is no obligation on any Court to go afishing for defences not borne out by the evidence.
There must be credible evidence to support any expressly pleaded and therefore explicit defence as well as any implicit or inherent defence. A story that was not believed by the trial Court cannot from the basis of an explicit or implicit defence.
The issues that now arise are as follows:-
(i) What were the facts of this case
(ii) What defences naturally arise from those facts
(iii) Were those defences considered by the learned trial judge
The Facts of the Case:
The facts of this case are by no means complicated. They are quite straightforward and lie within a comparatively very narrow compass. A case of unlawful killing was on 12/7/79 reported to the P.W.1, Corporal Hyacinth Mbam of the Abakaliki Police Station. He visited the scene of crime in the compound of the Appellant where he found the deceased in a pool of blood with several matchet cuts. There was no dispute about who killed, the deceased as the Appellant himself true to peculiar Abakaliki style went himself to the Police Station and reported that he killed the deceased. Following this report Corporal Mbam, P.W.1 arrested the Appellant, charged him with the offence of murder, cautioned him and he then volunteered a Statement which was tendered as EX.A.
The next important revealing feature of the evidence was that the deceased dead body was found in the compound of the Appellant. How did it get there It is here that the evidence of P.W.5, Odoma Orokugo and Nwehonyi Orota (P.W.6) the two wives of the deceased becomes relevant. Both testified that two brothers of the Appellant, Nwite Nwuzu and Iteshi Okuta came to their house in the late evening of 11/7/79 and invited the deceased for a drink. The deceased left with them. It was then night. The deceased did not return that night. The following day the two wives went to the compound of the Appellant where they found the lifeless body of the deceased with several matchet cut wounds.
How deep were those wounds and what amount of force will be needed to produce them The answer to the above question came from Dr. Michael Okoyeocha called as P.W.2. He performed the post mortem examination and found as follows:-
“(i) Deceased had a deep cut at the anterior aspect of the left shoulder which severed almost the left hand from the body.
(ii) There was another deep cut at the back of the neck.
(iii) There were other multiple cuts.”
From the evidence of the prosecution witnesses and the extra judicial Statement of the Appellant tendered as EX.A it is common ground that the Appellant killed the deceased and that he used such force that nearly cut off and severed the left hand from the body. So far the evidence has not shown any defences explicit or implicit.
Let us now go a step further – why and under what circumstances did the Appellant kill the deceased There was no eye-witness to this killing. The only evidence as to what happened, why it happened and how it happened all came from the Appellant. In his Statement. EX.A. Appellant stated:-
“Oruta Ugo came to fight us inside our compound. He drove us away. I then went into my house and brought my knife. I and him started to fight……I do not know how many knife cuts I gave to him but he did not give me any. I do not know whether I gave him three or two matchet cuts.”
In his sworn testimony in Court the Appellant testified as follows:-
“………On the night of the date in question, the deceased came to our compound and threatened to kill me. He pulled out his matchet. I ran into my house. I collected my own matchet and gave him a cut on his back. I ran away. As I ran I threw away my matchet. We had gone to drink and the deceased used his matchet to pursue me…..”
Cross-examined the Appellant continued:-
“Deceased never gave me any matchet cut. It was not up to a week that deceased earlier pursued me with a knife…..”
The above is a summary of the evidence before the trial Court – prosecution and defence. It is on the totality of this evidence and against their background that any Court can be invited to consider possible defences. But as I observed earlier on evidence is valueless if it was not believed by the Court that saw the witnesses, heard them testify and watched their demeanour and assessed their credibility. This is an appellate Court and not a trial Court. This Court is therefore bound to look at the findings of fact of the trial Court to know from those findings what defences are open to the Appellant.
The learned trial Judge did compare the version of the incident told by the Appellant per his Statement to the Police EX.A on 16/7/79 when the matter was fresh in his memory and the version he deposed to in Court on 19/10/83 over four years afterwards and held-
“There is no doubt that the accused story in open Court is an after-thought and I so hold.”
Earlier on referring to Appellant’s testimony in Court that conflicted with his Statement EX.A. the learned trial Judge emphasised – “I don’t believe this conflicting aspect of the accused’s story.” The question now is – Can a defence be founded on a story which was not believed, on a story described by the trial Court as an after-thought I suppose not.
What defences are available to the Appellant against the background of EX.A and the evidence of the prosecution witnesses Exhibit A started off thus “Oruta Ugo came to fight us inside our compound.” This solitary sentence is a pointer and only a pointer to a possible defence of self-defence against unprovoked assault as provided for by Section 286 of the Criminal Code Cap 30 of 1963 Laws of Eastern Nigeria applicable to Anambra State.
SC.113/1987
