Onwuchekwa Chukwu & Anor. V. The State (2006)

LawGlobal-Hub Lead Judgment Report

SAULAWA, J.C.A.

At the High Court of Abia State, Umuahia Judicial Division, Coram D. E. Njiribeako, J. the two appellants were charged with the offences of conspiracy and murder of one Nwachukwu Eke contrary to the provisions of sections 516(a) and 319(1) of the Criminal Code, Cap. 30, Laws of Eastern Nigeria, 1963, as amended. At the trial a total of eleven witnesses testified for the prosecution. The appellants testified in their own defence but called no any other witness. At the conclusion of the trial both appellants were convicted and accordingly sentenced to death by hanging. Not unnaturally, being dissatisfied with the said conviction and sentence, the two appellants have caused the records of the trial court to be transmitted to this court urging on us to quash the conviction and sentence passed thereon. It’s instructive that on 26/9/06 when this appeal came up for hearing, learned counsel adopted the briefs of arguments for the appellants and respondent respectively. The appellants have in the brief thereof identified only one issue for determination, to wit:

“i. Whether or not the learned trial Judge was right in convicting the appellants for murder having regard to the facts and circumstances of this case.”

On the other hand, the respondent has in the brief thereof also identified only one issue for determination thus:

“i. Whether the charge of murder preferred against the appellants was proved by the prosecution beyond reasonable doubt.”

Having contrasted the two issues alluded to above; I have no hesitation in coming to the conclusion that the fundamental question that calls for determination is whether the guilt of the two appellants had in fact been proved beyond reasonable doubt by the prosecution. It is trite that issues for determination formulated in briefs of argument must be precise and devoid of irrelevant complexities so as to ease comprehension of the matters to be adjudicated upon. See Guda v. Kitta (1999) 12 NWLR (Pt.629) 21. Hence, for the purpose of determining this appeal, I have deemed it expedient to adopt the issue formulated in the respondent’s brief referred to above.

However, after having painstakingly perused the entire records of this appeal and vis-a-vis the trial court’s record of proceedings, I was unable to trace any notice and grounds of appeal pertaining to the appellants. Thus it’s hardly surprising that the appellant’s learned counsel failed to allude to any ground of-appeal in the brief of argument thereof.

Most undoubtedly, it’s a fundamental principle that an issue for determination must be distilled from a competent ground of appeal. As such, where a ground of appeal is incompetent or non existent at all (as in the instant case), the issue formulated in the brief of argument is ipso jure incompetent. See Ayisa v. Akanji (1995) 7 SCNJ 245, (1995) 7 NWLR (Pt. 406) 129; Ogoyi v. Umagba (1995) 10 SCNJ 55, 62-63: (1995) 9 NWLR (Pt. 419) 283: Tsokwa Motors Nig. Ltd. V. Union Bank of Nig. Ltd. (1996) 9-10 SCNJ 294, 299-300; (1996) 9 NWLR (Pt. 471) 129: Mark Kele v. Nwerebere(l998) 3 SCNJ 84, 89: (1998) 3 NWLR (Pt. 543) 515; Shuaibu v. Nigeria Arab Bank Ltd. (1998) 4 SCNJ 109, 118 – 119: (1998) 5 NWLR (Pt. 551) 582; Agbaka v. Amadi (1998) 7 SCNJ 367, 374; (1998) 11 NWLR (Pt. 572) 16; Bendex Eng. Corp. v. Efficient Petr. (Nig.) Ltd. (2001) FWLR 118, 1208: (2001) 8 NWLR (Pt. 715) 333 respectively.

The above proposition is no doubt predicated on the premise that since an issue ought to be distilled from a ground of appeal representing the broad outline of the complaint against the decision being challenged, correlation between the two thus becomes imperative –

“in the sense that the kernel of complaint in the ground of appeal must be mirrored by the issue formulated from the ground as medium of dissecting and manifesting the entire plenitude of the complaint.”

See Bendex Eng. Corp. ” Efficient Petr: Ltd. (supra) per Olagunji (JCA) at page 1207 – 1208

It’s trite that for any appeal (both Civil and Criminal) to be competent, it must be commenced by the filing in the lower court of a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which to appeal.

See Order 4 rules 3(1) and 4 (7) of the Court of Appeal Rules, 2002 which arc to the effect that:

3. (1) A person desiring to appeal to the court against any Judgment, sentence or order of the court below, whether in the exercise of its original or of its appellate jurisdiction, shall commence his appeal by sending to the Registrar of the court below a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, as the case may be, in the form of such notice respectively set forth as forms 1, 2, 3, 4, 5, or 7 in the second schedule to these Rules.

4………….

(7) An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the Court below.

As alluded to above, any issue for determination must arise from a competent ground of appeal. Thus, where as in the instant case, an issue is formulated on incompetent or non-existent ground of appeal. the issue purportedly formulated thereupon is ipso jure also incompetent and ought to thus be discountenanced. See Bendex Eng. Corp. v. Efficient Petr: Ltd. (supra) at 1208 paragraph C: Abacha v. Fawehimi; (2000) FWLR (Pt.4) 533 at 615 paragraph G, (2000) 16 NWLR (Pt. 660) 228: Akinlagun v. Oshoboja (2006) 12 NWLR (Pt.993) page 60 at 80 paragraphs D -E: 90 paragraphs B – C, H thus:

“It is now settled law that issues for determination in an appeal must be formulated or distilled from the grounds of appeal themselves and not from anywhere …

It is trite law that a court has no powers to setup a case different from that which the parties have brought before it. It is also well established that although the appeal court has the discretionary power to reframe or formulate issues for determination in an appeal different from those raised by the parties in their briefs, the reframed or formulated issues must be derived from or culled from the ground of appeal filed by the parties. It has been stated and re-stated in a legion of decided authorities both in the Court of Appeal and in this court that for an issue for determination to be competent, it must he based or related to, or distilled from an identified competent ground of appeal…

It is settled however, that any issue not distilled from any ground of appeal, is incompetent and must be discountenanced together with the argument advanced thereunder in the consideration of the appeal, per Ogbuagu, JSC.”

There is no doubt that the decision of the court below purportedly appealed against was a final decision and one in which a sentence of death has been passed on the two appellants. Thus, it goes without saying that the two appellants have the right to appeal against that decision without the leave of this court. See section 241(1)(a) and (c) of the Constitution of the Federal Republic of Nigeria, 1999, thus:-

241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases.

(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;

(b )…….

(c) ……

(d) ……..

(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death.

However, as it would appear from the provision of section 243 of the 1999 Constitution (supra), the exercising of the appellants’ right of appeal under section 241(1)(a) and (e) (-supra) is subject to the dictate of the Rules of this court. See section 243 of the 1999 constitution (supra) to the effect that:-

243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this constitution shall be –

(a) ……

(b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.

As alluded to above, the provision of Order 4 of the Court of Appeal Rules (supra) specifically deals with Criminal appeals from the coul1s below to this court. As it would appear, Rules 3 (I) and 4 (7) of Order 4 (supra) have made it abundantly clear that 3(1) A person desiring to appeal to the court against any judgment, sentence or order of the court below shall commence his appeal by sending to the Registrar of the court below a notice of appeal…

And 4 ……

(7) An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the court below.

It’s true that ever since the introduction of brief writing into the Rules of this court and indeed the Supreme Court, the courts have stopped considering grounds of appeal filed by parties in the notices of appeal thereof. What the courts consider are the issues for determination formulated in the parties’ respective briefs of argument. However, it is pertinent to reiterate that the issues formulated in the brief of argument must be properly predicated upon or distilled from the grounds of appeal. See Akinlagun v. Oshoboja (supra) at 84 paragraphs F – H per Kalgo, JSC.

Thus, it goes without saying that the failure by the appellants to abide by the explicit and rather imperative provisions of Rules 3(1) and 4(7) of Order 4 of the Court of Appeal Rules (supra) is fatal and renders the purported appeal thereof incompetent.

However, the above postulations notwithstanding, after having accorded an ample regard upon the crucial nature and circumstances surrounding the appellants’ appeal, I have deemed it expedient to consider the two briefs of arguments on the merits thereof. As emphatically stated by the Supreme Court –

The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether a party entitled to be heard before deciding had in fact been given an opportunity of hearing. Once an appellate court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order or judgment thus entered is bound to be set aside. See Bamaiyi v. The State (2001) FWLR (Pt.46) 956 at 974 paragraphs D-E, (2001) 2 NWLR (Pt. 6(8) 435; Kotoye v. C.B.N. (1989)1 NWLR (Pt.98) 419; Atano v. A-G., Bendel State (1988) 2 NWLR (Pt.75) 201; Ntukidem v. Oko (1986) 5 NWLR (Pt.45) 909, respectively.

It’s undoubtedly trite that once it appears that strict adherence to rules of court will clash with the fundamental principles of justice especially those dealing with the rights of fair hearing as in the instant case, a court of justice (which is equally a court of equity) has a duty to jettison or discountenance those rules. See Unilag & Anor v. Aigoro (1984) 11 SC 152, (1985) 1 NWLR (Pt. 1) 143; Okaroh v. The State (1988) 3 NWLR (Pt.81) 214; Nwachukwu v. The Stale (2004) 17 NWLR (Pt.902) page 262 at 274 paragraphs G – H thus:-

‘The courts should see to it that justice is never defeated by technical rules of procedure. These rules should be seen as subservient hand-maid to justice and not as omnipotent masters at war with justice.” This proposition is no doubt premised on the well cherished fundamental principle that justice must not only be done, but that it must also be seen to have been done. There is no iota of doubt that denial of fair hearing tantamounts to an out denial of justice. And denial of justice is bad and outrageous. This is so because the denial of justice invariably inflicts grief suffering, pain and rather untold hardship on those who place their hope and aspirations on an impartial administration of justice.

In the brief thereof, it was the contention of the appellants’ learned counsel that the conviction of the appellants was based solely on the eye witness account of PW3 and the ten other prosecution witnesses who gave circumstantial evidence.

That, the appellants had denied that they killed and hanged the deceased on a tree with his wrapper i.e. exhibit “B”. That, the appellants had maintained their innocence even in their statements to the Police i.e. exhibits “CC/ and “DD/ at page 60 of the records.

It was also the contention of the learned counsel that the learned trial Judge hastily dismissed the appellants’ story as false (at page 99 of the records) even without evaluating the evidence of the prosecution. This, according to the learned counsel has occasioned a grave miscarriage of justice, as the learned trial Judge would appear to have cast the burden of proof on the appellants rather than on the prosecution. According to the appellants counsel, if the learned trial Judge had left his mind open and not been carried away by the PW 3’s testimony, he could have noticed that the story of the appellants was consistent with the fact that the possible cause of death was not known by PW1, the medical expert witness who testified inter alia that:-

“It was difficult for me to fix the cause of death from what I saw.” See page 40 of the records.

The appellants’ counsel was of the view that “the death of the deceased might have been caused by suicide which if considered would have led to the acquittal of the appellants.” He thus urged on this court to correct the alleged grave error by quashing the conviction and sentence of the appellants for murder: Referring to the evidence of PW3 under cross-examination, the learned counsel alluded to the fact that there is a conflict between the evidence of PW3 and his statement to the police. See pages 46 – 47 of the records. That, the learned trial Judge did not evaluate evidence of PW3 under cross-examination in question before he came to the conclusion at page 98 of the records that PW3 was an eye witness. That both the prosecution and defence agree that the cause of death of the deceased was not ascertained as –

All that was seen was a skeleton hanging on a tree in a valley, the lower limbs and thoracic cavity of which had dropped on the ground. There was no flesh on the bones, but there were flies around the place. The skeleton was hanging in a cloth which was clenched by the lower teeth of the jaw bone. The skeleton had collapsed from the neck down and part of the skull had also fallen off. The decomposing body was on the ground. Thus the learned trial Judge should not have ruled out suicide as the cause of death.

The learned counsel thus submitted that the learned trial Judge was duty bound to resolve all the above issues and where he failed this court ought to interfere with the decision thereof. See Ezeoke & Ors v. Nwagbo & Anor. (1988) 1 NWLR (P1.72) page 616.

It was further contended in that regard that proof beyond reasonable doubt imposes a duty on the prosecution not the accused to prove by sufficient, credible and admissible evidence all the essential ingredients of the offence. See Wondu Chia & 4 Ors “. The State (1996) 6 NWLR (Pt.455) 465 at 475 paragraph H: 476 paragraphs A: Dominic Pincent & Anor v. The State (1997) I NWLR (Pt.480) 234 at 249 paragraphs A-B.

The learned counsels concluded by contending that the guilt of the appellants had not been established and thus urged upon this court to allow the appeal, set aside the conviction and sentence, and in its place, enter a verdict of discharge and acquittal in favour of the appellants.

On the other hand, the respondents learned counsel has inter alia submitted on the single issue raised in the brief thereof that:

Where the charge of murder is preferred against an accused person the Onus is (sic) the prosecution to prove beyond reasonable doubts that:

a. the deceased is dead.

b. the act or omission of the accused which caused

the death of the deceased was unlawful: and

c. the act or omission of the accused which caused the death of the deceased must have been intentional with knowledge that death or grievous harm was its probable consequence.

It was further contended that all the prosecution witnesses in their extra judicial statements and their testimonies in the court below maintained that Nwachukwu Eke had died. That the PW3 (Ugwu Chukwu) even (said) he saw where the appellants killed the deceased.

That, the PW 4 (Eke Udechukwu) on his part identified exhibit “B” i.e. the wrapper the deceased used to wear and seen at the scene where the deceased lifeless bone was hanged on a tree the body having decomposed and fallen off. That, even the appellants themselves also admitted that the said Nwachukwu Eke had died as the search therefor was abortive. On the first ingredient of the offence, the learned counsel submitted further that all the pieces of evidence point irresistibly that the deceased had died and thus urged on the court to so hold. See Inewo v. The State (1992) 2 LRCNCC part 3.

Regarding the evidence of PW I Dr. Akanwa to the effect that:”

… It was difficult for me to fix the cause of death from what I saw.”

The counsel submitted that the same PW1 had certified at page 26 lines 33 – 34 of the record the cause of death in his opinion to be by hanging, Allusions were also made to the evidence of the PW3 at pages 44, lines 17 – 19: 44, lines 21 – 24 and31 to the effect that:-

“I started to trail them. I kept some distance and was watching. They did not see me…

… It was in a ditch made by erosion that they killed Nwachukwu they used the wrapper to hang the dead body.”

It was also contended that PW3 equally identified exhibit B at the scene as the cloth the deceased used to wear: that the PW1 (IPO) in company of the PW1 also saw the hanged body tied to a tree. The learned counsel contended further that it’s not in all cases that medical report is required to prove cause of death in murder cases before conviction can be secured. See Rex. v. Johnson Nwokocha (1949) 12 WACA 453: ii) Oka v. The State (1975) 9 – 11 SC 17: (iii) Onyenankeya v. The State (1964) NMLR 34 at 36: (iv) Asimiru Alarape & Ors. v. The State (2001) 3 SCM, (2001) 5 NWLR (Pt. 705) 79: (v) The State v. Obaji (1965) 9 ENLR 68: (vi) Adamu v. Kano NA IFSC 25, (1956) SCNLR 65; (vii) Homman v. The State (1967) NMLR 23: (viii) Idirisu v) The State (1968) NMLR 58. The counsel contended that in the instant case the PW3 an eye witness clearly described the injuries inflicted on the deceased and how he was killed by the appellants and that he died there on the spot and they tied the body with exhibit B. See page 45 line 2 – 4 of the record to the effect inter alia that:

When I was sure they had left, I went to where they hanged the dead body and cried…”

That considering the surrounding circumstances of the instant case, it is not necessary for PW1, Dr. Akanwa to give evidence in respect of cause of death of the deceased who died on the spot and the body thereof decomposed. He thus urged the court to so hold.

On the second ingredient i.e. the question of “who is responsible for the death of the deceased”, the counsel contended that the PW3, an eye witness testified that he saw the appellants killed the deceased.

See page 44 lines 17 – 19: 21 – 24 and lines 31 – 33 of the record. The counsel contended that PW3’s testimony is direct and not a hearsay and thus in total agreement with section 77 (a) and (b) of the Evidence Act Cap., 112. Laws of the Federal Republic of Nigeria, 1990. See also Joshua v. State (2000) 5 NWLR (Pt.658) page 591: Ehikioya v. COP (1991) 4 NWLR (Pt.133) page 57 at 60 to the effect that: “if the testimonies of a witness who saw and heard are believed. There will be proof beyond reasonable doubt.”‘

Reference was also made to PW1’s (Charity Uche) testimony who said she saw the appellants and Eke Aka now late as they were dragging the deceased along the tarred road and the deceased was shouting. that when PW1 intervened, the appellants warned her to get back into her house or else they would deal with her. That the evidence of PW1 corroborated that of PW3. That PW7 (Sunday Mgboji) also testified that he conveyed the appellants in his Peugeot car registration No 1M3138 H on 13/05/88 to a place called court at Alayi. See page 55 lines 9 – 16 of the record which corroborates the evidence PW3 that the deceased escaped from the same car.

See page 44 of the record. That the evidence of PW7 and PW1 were not challenged and thus deemed to have been accepted as true. See Ekwealor v. Obasi (1990) 1 NWLR (Pt.13l) page 13 I; Oforlete v.

The State (1000) 11 NWLR (Pt.681) page 415 at 436 paragraphs B – C at 439 paragraphs B – H and at 440 paragraph F. The court is urged to hold that the trial Judge was right in believing the evidence of PW3. PW7 and PW21.

It is also the submission of the learned counsel on this point that it’s trite that if the facts advanced by the prosecution leave only one inference that the accused and no other person is responsible for the death of the deceased then the court may convict on such circumstantial evidence being the best evidence available in the case.

See Peter Igho v. The State (1978) All NLR 88; Gbadamosi v. The State (1991) 6 NWLR (Pt.l96) 181 ratios 23. 27. That from the length and breath of the evidence of PW1, PW3 and PW8. there is no other reasonable inference the court can make in respect of who was last seen with the deceased except that the appellants were last seen with the deceased and they killed him (as) no other person did.

See The State v. Nwakerendu (1973) 3 ECSLR (Pt.11) 757.

On the oral confession made by the second appellant to PW4, PW5 and PW9, the counsel contends that it passed the six tests enunciated in R. v. Sykes (1913) 8 Cr. App. R. 133 approved in Kanu v. King (1951) 14 WACA 30 and later applied in Dawa v. The State (1980) 8 – 11 SC 136. The learned counsel alluded to the testimonies of the PW4. PW5 and PW9 which he contended have corroborated the alleged confession of the 2nd appellant thereto. The counsel thus urged on the court to so hold.

The counsel maintained further that the PW3 never contradicted himself as such the learned trial Judge was right in believing his evidence as an eye witness and thus urged the court to so hold.

On proof beyond reasonable doubt, the counsel contended that the burden on the prosecution do not suggest nor imply proof beyond shadow of doubt or absolute certainty. That on the contrary, the onus merely admits a high degree of probability. See Onafowokan v. The State (1987) 7 SCNJ page 238; State v. Victor E. Okonkwo (1988) 1 LRCNCC page 33; Nwachukwu v. The State (2004) 17 NWLR (Pt.902) 262; Akinyemi v. The State (1999) 6 NWLR (Pt.607) 449, respectively. The counsel thus urged on us to hold that the learned trial Judge was right in holding that the prosecution proved his case beyond reasonable doubt in the instant case. He concluded by also urging on us to hold that the appellants killed the deceased and thus dismiss the appeal and affirm the decision of the lower court.

1 have accorded an ample, critical but rather dispassionate consideration upon the nature and circumstances surrounding the appeal, the records of the trial court, the submissions of the two learned counsel in the briefs of argument thereof, as well as the various illuminative authorities referred to therein. It’s indeed trite that under the Nigerian adversarial judicial system, the prosecution has a fundamental burden of proving the guilt of an accused person beyond reasonable doubt. See section 138(1) of the Evidence Act (supra) which is to the effect that –

“138(1) if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

See also the provision of section 36 (5)of the 1999 constitution (supra) thus:

“36.(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”

Thus, as it would most cherishingly appear, the combined effect of the above two provisions of the Evidence Act and the 1999 constitution is that under our judicial system the prosecution has a fundamental duty of proving its case beyond reasonable doubt against an accused person, otherwise the trial vitiates and the accused person ought thus be discharged and acquitted. As authoritatively held by this court in one of the plethora of cases on the issue –

The burden placed on the prosecution in section 137(1) of the Evidence Act and section 33(5) of the Federal Constitution. 1979, as amended, (which are similar to section 138(1) of the Evidence Act as amended and 36 (5) of the Federal Constitution 1999) does not shift. It is as constant as the June/July rains of Nigeria. See Alake v. The State (1991) 7 NWLR (Pt.205) page 567 at 591 paragraph Q per Niki Tobi, JCA (as he then was) in his usual erudite characteristics.

It is trite that in ensuring that the prosecution proves its case beyond reasonable doubt against an accused person, the trial court nay the appellate court is enjoined to ensure that nothing is taken for granted. See Martins v. The State (1997) 1 NWLR (Pt.481) page 355 at 365 paragraphs. E – F. See also Bakare v. The State (1987) 1 NWLR (Pt.52) 579; (1987) 3 SC I at 33; Mbenu v. The State (1988) 3 NWLR (Pt.84) page 615 at 626 paragraphs C – D in which the Supreme Court held emphatically inter alia that –

“Besides, this being a capital offence, the onus on the prosecution throughout is to establish the guilt of the accused persons beyond all reasonable doubt though not beyond any shadow of doubt”. Per Nnamani JSC (of remarkable memory),

At this crucial stage, I have deemed it pertinent to reiterate that there are three fundamental ingredients which the prosecution has the burden of proving beyond reasonable doubt before the charge of murder could be sustained against the appellants. See Uguru v. The State (2002) 9 NWLR (Pt.77 1) 90 at 106 paragraphs E – G in which the Supreme Court held most authoritatively that;-

In a murder charge, for the prosecution to discharge its burden of proving the case beyond reasonable doubt, it must prove;

(a) the death of the deceased;

(b) the act or omission of the accused which caused the death; and

(c) that the act or omission of the accused stated in (b) above was intentional with knowledge that death or grevious bodily harm was its probable consequence. Per Kalgo JSC. See also Gira v. The State (1996) 4 NWLR (Pt.443) 375 at 383; Nwueze v. The State (1996) 2 NWLR (Pt.4:28) 1 at 11: Ogba v. The State (1992) 2 NWLR (Pt.:222) 164, respectively.

Regarding the 1st ingredient of the offence, its evident from the records of the trial court that the proof of the death of the deceased person, one NWACHUKWU EKE is no longer in doubt. First, the evidence of PW3, UGWA CHUKWU, gave an eye witness account of the nature and circumstances surrounding the death of the deceased person. See pages 41 – 48 of the records of the trial court. The PW3 has inter alia narrated how the two appellants and two others returned to his house on 14/5/88 at about 730 AM and forced him to accompany them in a car to search for the deceased person. However, on reaching the primary school at Ezi Alayi, the PW3 asked the driver of the car to stop and thus took to his heel and escaped into the bush. He later went back home only to be told by his sister that the 2 appellants and one other person caught the deceased in the PW3’s home. According to the PW3:

Then after eating, I armed myself with machete and ran to hide in a nearby bush from my hiding, I heard the voice of my friend Nwachukwu Eke as he was crying.

Shortly I saw the two accused and Eke Aka not here dragging him towards their own village through the bush path.

They were flogging him with sticks. He was stripped naked. I started to trail them. I kept some distance and was watching. They did not see me. On the way a woman who was returning from the farm saw them and they shouted on her to keep going. The three men dragged Nwachukwu into the bush … They dragged him far into the bush where there were animal traps. They up rooted the sticks used for the traps and used them to continue flogging him. Then suddenly Nwachukwu stopped shouting. I changed my position. I saw Eke Aka tear Nwachukwu’s wrapper. It was in a ditch made by erosion that they killed Nwachukwu. They used the wrapper to hang the dead body. Then I started to weep.

I cried out from the bush … I was in a concerted place when the three came out. They did not see me. When I was sure they had left. I went back to where they hanged the dead body and cried. I later returned home and informed my mother what happened. The cloth now shown to me (exhibit “B”) was the cloth used for hanging the dead body of Nwachukwu.

See pages 44 – 45 of the records of the trial court.

In addition to the testimony of the PW3, the PW4, Eke Udechukwu, a native doctor and relative of the deceased told the trial court inter alia that he was the one who identified the corpse of the deceased to the medical Doctor (PW1). According to the PW4:

“I was familiar with the wrapper he (the deceased) used to tie and that wrapper was at the scene where his skeleton was hanging. I d’ I was the wrapper the deceased used to tie”.

The PW7 Charity Uche on her pan told the trial court that on 14/5/88 at about 9am she saw the two appellants and one Eke Aka –

….dragging Nwachukwu Eke along the tarred road, opposite my home. Nwachukwu Eke was shouting that they should leave him. But they warned me to get back into my house or they would deal with me. I was pregnant then and I did not want to give them the chance of beating me so I went into my house. I have not seen Nwaehukwu Eke since then.

The PW11, Maurice Ene, an inspector of police was the investigation police officer in the case. As part of his investigation in the case he visited the scene of crime and collected the wrapper exhibit 13. According to PW11:

On 28th May, 88 when I visited Alayi, I was taken to a bush and there I saw the parts of human skeleton. The lower limbs had fallen on the ground part of the skull from the mouth was hanging on a wrapper tied to a branch of stick. At that time the accused had already been arrested and kept at the police custody 13ende. One of the villagers Ekechukwu Ude (PW4) recognized the wrapper as the one which the deceased was tying some days before. I collected the wrapper…

After viewing the scene I left for my station to invite a medical doctor for post mortem. On 27th May I invited a medical doctor and we proceeded to the scene in the bush where I saw the skeleton hanging. Some villagers accompanied us to the scene. The medical doctor viewed the skeleton and issued a report.

The PW1, Dr. Michael Akanwa, turned out to be the Medical Doctor who performed the post mOl1em examination on the remains of the deceased referred to by the PW11 on the 27/5/88 in question. His examination in chief is to the effect inter alia that –

I performed post mortem examinations at the instance of the police. On 27th May 881 was invited by the police to view a skeleton in a bush at Alayi Bende.

… The skeleton was hanging on a tree in a valley. The lower limbs and the thoracic cavity had dropped on the ground. There was no flesh on the bones, but there were flies around the place. The skeleton was hanging (sic) on a cloth which was clenched by the lower teeth of the jaw bone. The skeleton had collapsed from the neck down, part of the skull had all also fallen off … I fixed the probable date of death between ten and fourteen days. I did not see any broken bones. It was difficult for me to fix the cause of death from what I saw.

Now, as alluded to above, its rather evident from the foregoing pieces of evidence of the PW3. PW4, PW7, PW11 and PW1 that the death of a human being in the person of Nwachukwu Eke had in fact been proved beyond reasonable doubt by the prosecution. Thus I hereby hold that the trial court\was right in holding as it did that the 1st ingredient of the offence has been established beyond reasonable doubt by the prosecution.

On the second ingredient of the offence: the proof of the act or omission which caused the death of the deceased. It was the contention inter alia of the appellants’ counsel that the defence put up by the appellants in denying their role in killing the deceased was dismissed by the learned trial Judge ‘”as false” without evaluating the evidence of the prosecution.

This, according to the learned counsel has occasioned a miscarriage of justice –

‘”as the learned trial Judge would appear to have cast the burden of proof on the appellants, instead of the prosecution which must prove the guilt of the accused beyond reasonable doubt”.

The learned counsel’s reason for the above contention is hinged crucially on the alleged facts that the defence of the appellants was consistent with the PW1’s opinion that the cause of death was unknown.

According to the learned counsel –

The learned trial Judge had his mind so made up that the deceased was killed and hanged with exhibit “B” on a tree that he did not give a single thought or consideration to the above fact that the death of the deceased might have been caused by suicide which if considered would have led to the acquittal of the appellants. The Honourable court is urged to correct this grave error by quashing the conviction and sentence of the appellants for murder.

However, on the other hand, the learned counsel to the respondent in the brief thereof made copious references to the testimonies of most especially the PW3 (Ugwu Chukwu) at page 44 lines 17 – 19, 21 – 24 and 31 – 33 of the records; the PW2 (Charity Uche) as well as PW7 and came to the conclusion that the learned trial Judge was right in believing the evidence of those witnesses and accordingly urged on this court to so hold. The evidence in chief of the PW3 could be seen from pages 41 (paragraph 20) to 45 (paragraph 30) of the records. His evidence on cross-examination could also be found from paragraph 35 at page 45 to paragraph 24 at E page 49 of the records of appeal. I have herein above copiously alluded to the evidence of the PW3. The PW3 was emphatically unequivocal in his testimony that he knew both appellants and one other person Eke Aka now late. He narrated how, on 12/5/88, he was harassed by the 1st appellant and 15 others who warned and prevented him from visiting the house of his friend Nwachukwu Eke (the deceased). That the following day the 13’h Nwachukwu Eke visited the PW3 at the latter’s house. After the deceased had left, the two appellants and two others came to the PW3’s house at about 11pm and warned him to produce the deceased the next day.

On the next day i.e. 14/5/88, the two appellants and two others returned to the PW3’s house at 730 Am in a Peugeot 504 No IM 3138 H. He was forced to enter the car “to search for Nwaehukwu”.

However, on reaching the primary school at Ezi Alayi, the PW3 asked the driver to stop the vehicle and thus escaped into the bush.

He later returned home only to he told by his sister that the four men had caught Nwachukwu in his house. He then armed himself with a machete ran and hid in a nearby bush. He then heard his friend Nwachukwu crying. According to the PW3:

Shortly I saw the two accused and Eke Aka not here dragging him towards their own village through the hush path. They were flogging him with sticks. He was stripped naked. I started to trail them. I kept some distance and was watching. They did not see me. On the way a woman who was returning from the farm saw them and they shouted on her to keep going. The three men dragged Nwachukwu into the, bush. Then the 2nd accused held him by the shoulder and said he must take them to the bush to show them where he buried the thing and he kept on shouting. “I better die than to live.”

They dragged him far into the bush where there were animal traps. They up-rooted the sticks used for the traps and used them to continue flogging him. Then suddenly, Nwachukwu stopped shouting. I changed my position I saw Eke Aka tear Nwachukwu’s wrapper. It was in a ditch made by erosion that they killed Nwachukwu.

They used the wrapper to hang the dead body. Then I stated to weep. I came out from the bush ….I was in a concerted place when the three came out. They did not see me. When I was sure they had left. I went back to where they hanged the dead body and cried. I later returned home and informed my mother what happened. The cloth now shown to me was the cloth used for hanging the dead body of Nwachukwu.

It’s instructive that it was at this stage that the cloth with which the deceased was hanged as identified by the PW3 that was tendered and admitted by the trial court as “Id. I” and thereafter as exhibit B through the PW11. It is also in evidence that the PW3 had stated that after telling his mother about the incident as narrated above, he started recording everything that happened in writing up to 730pm when the father of the deceased came to his house. According to the PW3:

I told him all that I saw and how his son was killed and his dead body hangs (sic) in the bush. He shouted and went home. I then continued to record what happened.

On the morning I went to the man called Idiagbor where he digs stone. I confronted him and said to him. You people have killed my friend and warned that they must answer for it. I took a vehicle to Aha when I returned I found out that Nwachukwu”s father had also been killed. I expected him to come with me to the police, when they killed him I got scared and did not go to the police.

We sent for my friend’s uncle who lives at Enugu. It was when he arrived that I accompanied him to the police. At that time the accused had not been arrested. I was afraid for my life and did not tell the police all that I know.

Now regarding the allegation by the learned counsel to the appellants alluded to above to the effect inter alia that –

The learned trial Judge had his mind so made up that the deceased was killed and hanged with exhibit “B” on a tree that he did not give a single thought or consideration to the above fact that the death of the deceased might have been caused by suicide which if considered would have led to the acquittal of the appellants.

The above allegation is tied up to another allegation by the appellants’ counsel that the PW3 could not have been an eye witness that he claimed to be on the ground inter alia that:

“Under, cross-examination, PW3 stated clearly that he did not state in his statement to the police all he said during his evidence. Thus there is conflict between the evidence and statement of PW3 to the police.”

See page 4 of paragraphs 3.06-3.08 and paragraphs 3.09 – 3.12 of the appellants brief.

On the contrary the respondent’s counsel countered that allegation by contending inter alia that:

It is my submission that what the appellants’ counsel regarded as contradiction in the extrajudicial statement of PW3 and his testimony in court is not contradiction at all but inadequacy of evidence which PW3 made further or completed in his evidence in court. See page 8 paragraph 3 – 6 of the respondent’s brief.

I have amply considered the record of proceedings of the trial court and vis-a-vis the briefs of argument of the appellants and respondent. I have no doubt in my mind that contrary to the highly preposterous allegation of the learned counsel, the trial Judge has painstakingly and amply evaluated the evidence of the material witnesses called by the prosecution and vis-‘E0-vis the respondents witnesses. The learned trial Judge in the course of evaluating the evidence adduced in the court below especially regarding the PW3’s evidence asserted inter alia at page 96 paragraphs 5 – of the trial courts record that:

I have very carefully and painstaking studied the statement of PW3 Ugwu Chukwu to the police received as exhibit. He made on 21st May, 1988. The statement did not indeed contain vital information which the witness supplied in his evidence. He did not say as he said in his evidence, that he trailed the accused persons and late Eke Aka as they were dragging Nwachukwu Eke into the bush. He did not say in his statement as he told the court how Nwachukwu Eke was killed and his lifeless body hung (sic) on a tree with his wrapper. These very vital pieces of information were indeed missing in his statement to the police exhibit A. This is not of course the same as saying that during his evidence he contradicted his statement. He did not, but his evidence was clearly fuller. The witness however explained to the court why he decided to make his statement the way he did. He told the court that he was afraid that if he gave out the information that he saw the accused persons when they killed Nwachukwu Eke they would have killed him. He based his fear on what happened to Nwachukwu Eke’s father whom he told of the death of his son. Nwachukwu Eke’s father had visited him early in the mOllling of 15th May, 1988 to find out the whereabouts of his son and he told him how he was killed. The next day the man was himself killed. The witness just decided to keep his mouth shut so that he may not be target, as he said.

It is evident that the learned trial Judge did not merely accept the evidence of PW3 in isolation of the circumstances surrounding the entire evidence adduced by both the prosecution and defence.

See pages 96 – 99 of the records to the effect inter alia that:

Now, I have asked myself whether PW3’s account was a mere figment of his imagination and to answer this question. I have taken into account the following other factors:-

(i) A wrapper (exhibit B) usually tied by Nwachukwu Eke was recovered where the parts of the skeleton were hanging:

(ii) The 2nd accused made extrajudicial confessions of the killing to some close relations. The evidence of PW5 Ogbyealu Okorafor passed on the information to 2′” accused mother PW6 Hannah Orji who confronted him with the allegation …

(iii) There was also extra judicial confession made to PW4 Eke Ude Chukwu the native doctor…. PW4, PW5 and PW9 gave evidence of extra judicial confessions. PW4 and PW5 are very close relations of 2″” accused and have not been shown to suffer any prejudices against him. I accept as true the extra judicial confession to the murder made by 2nd accused.

From the above, its undoubtedly clear that the learned trial Judge had taken the pains, as it were to cautiously evaluate the evidence adduced by the prosecution at the trial prior to his coming to the conclusion that the prosecution has proved its case beyond reasonable doubt against the appellants. It is trite that the authenticity or credibility of an evidence does not ordinarily and necessarily depend upon the extent of the number of witnesses that were called to testify in a case. NO. Rather the fundamental question is whether the evidence of a single credible witness is believed and accepted in any given case.

Thus, where in a criminal case the evidence of one credible prosecution witness is believed and duly accepted by the trial court as in the instant case, then its sufficient to support a conviction of the accused person(s). See Ali v. The State (1988) 1 NWLR (Pt.68) 1; Abogede v. State (1996) 5 NWLR (Pt.448) page 270 at 280 paragraphs A-B.

Most undoubtedly, it’s a fundamental principle that where the testimony of a witness is materially contradictory with a previous extrajudicial statement, the court or tribunal seised with the trial of the case is enjoined to disregard both the testimony and extra-judicial statement to the police by the witness especially in a situation where it is impossible to determine which of the two statements represents the actual truth. See Joshua v. Queen (19.64) 1 All NLR 1; Omubogu v. State (1974) 9 SC I; J 124 Rumba v. State (1976) 1 ALL NLR 303; Agwu v. State (1965) NMLR 18; Adepetu v. State (1996) 6 NWLR (Pt.452) page 90 at 107 paragraphs 0 – E per Salami, JCA.

Hence, what is more considering the extent of the veracity and credibility of the evidence of the prosecution witnesses, especially that of the only eye witness, PW3 UGWU CHUKWU, the evidence of a medical expert becomes rather less important especially in confirming the actual cause of death of the deceased. it is trite that under section 42( 1) (a) of the Evidence Act (supra) the provision is that:-

42(1)(a) Either party to the proceedings in any criminal case may produce a certificate signed by … a Government Pathologist … and the production of any such certificate may be as sufficient evidence of the facts stated therein:-

Provided that, notwithstanding the provisions herein contained, the court shall have power, on the application of either party or of its own motion, to direct that any such officer shall be summoned to give evidence before the court if it is of the opinion that, either for the purpose of cross examination or for any other reason, the interests of justice so require.

In the instant case, it’s evident that the PW1, Dr. M. O. Akanwa (M.B. BSC; QE.S.H) had endorsed in exhibit A, the medical report to the effect inter alia:

“I certify the cause of death in my opinion to be by hanging.”

However, in the examination-in-chief thereof the PW1, Dr. Akanwa concluded his evidence by stating that:-

” … It was difficult for me to fix the cause of death from what I saw.” See page 40, line 31 to 32 of the record of proceedings of the trial court.

Thus, as alluded to above, considering the most credible and unimpeached evidence of the eye witness of the events and circumstances surrounding the brutal killing of the deceased person, Nwachukwu Eke, by the appellants and the late Eke Aka on the fateful day inquestion (14/5/88) the testimony of the PW1 was no longer necessary in confirming the actual cause of death of the deceased.

This is so because it is trite that it’s not in all murder cases that medical or Autopsy reports arc necessary in proving cause of death of deceased persons.

As alluded to above, in a murder case the cause of death of the deceased person IS a fact in issue that must be proved beyond reasonable doubt by the prosecution. It is necessary for the prosecution to prove a direct evidence linking the cause of the death of the deceased with the accused. Where there is none, then medical evidence becomes a sine qua non.

However, where the cause of death of the deceased becomes obvious and has been proved beyond reasonable doubt by the prosecution, medical evidence is not necessary and can thus be dispensed with by the trial court. See Opara v. The State (2006) 9 NWLR (Pt.986) page 508 at 524 paragraphs A-C; Igago v. The State (1999) 6 NWLR (Pt.608) 568; Emwenya v. A.-G. Bendel State (1993) 6 NWLR (Pt.297) 29; Adwnu v. Kano NA (1956) SCNLR 65. In the instant case, the facts and circumstances surrounding the death of the deceased, Nwachukwu Eke, are most undoubtedly beyond argument.

The cause of the death of the deceased has been proved beyond reasonable doubt vide the evidence of the PW3 by the prosecution.

Thus, neither exhibit A, the medical (Autopsy) report nor the evidence in chief of the PW I, Dr. Akanwa, is required to establish the actual E cause of death of the deceased.

Furthermore, it’s rather evident as rightfully held by the learned trial Judge that there wasn’t any material contradiction inherent in the testimony of the PW3 and vis-a-vis the extra judicial statement thereof to the police. What is more, considering the circumstances surrounding the case as a whole especially taking into account of the eye witness account of PW3 and the corroborative evidence of PW2, PW4, PW5, PW9 and PW11 respectively, I have no hesitation whatsoever in coming to the most inevitable conclusion that the learned trial Judge was right in holding as he did al page 99 line 18 of the record to the effect that:

I am satisfied from the evidence of PW3 that the accused persons Onwuchukwu Chikwa and Okorafor Oji and late Eke Kalu murdered the deceased Nwachukwu Eke.

After the murder, they hang (sic) the dead body on a tree with his wrapper exhibit B where it decomposed.

The prosecution proved the case against the accused persons beyond all reasonable doubt and find each of them guilty of murder contrary to section 319(1) of the CC.

The assertion by the appellants learned counsel that the learned trial Judge has failed to evaluate the evidence of the prosecution thus occasioning grave miscarriage of justice is no doubt preposterous, to say the least. It is indeed trite that a decision of a court could be said to be perverse when it ignores material evidence of facts adduced before it, thus leading to miscarriage of justice to the affected party. Hence in such a case, an appellate court has a fundamental duty to interfere with and set aside the decision in question. See Mogaji v. Odofin (1978) 4 SC 91; Queen v. Ogodo (1961) 2 SCNLR 366. Before putting the final dot on this judgment, I have deemed it expedient to comment on the circumstances surrounding the brutal and merciless killing of the deceased person, Nwachukwu Eke by the two appellants and one other person Eke Aka now late. It was evident that the deceased was a relative of the two appellants. There is no doubt that in every culture all over the world the crime of murder is shocking, revolting and rather abominable. It is as a matter of fact the most heinous and unnatural crime that could be committed. As aptly observed by the learned and foremost erudite jurist, Oputa, JSC:

“Normal people do not go about killing their own mothers (or relative as in the present case). Was the appellant insane” Why did he commit such a heinous and unnatural crime? What were the reasons if he was capable of reasoning.” See Udofia v. The State (1988) 3 NWLR (Pt.84) page 533 at 539 paragraphs F – H.

On the whole, in the light of the foregoing postulations, I have no hesitation whatsoever in coming to the most inevitable conclusion that the learned trial Judge had rightly, in my view convicted and sentenced the two appellants to death by hanging for the murder of the deceased person Nwachukwu Eke contrary to section 319(1) of the Criminal Code, Cap. 30, Laws of Eastern Nigeria, 1963, as amended. Thus, having found no merit in this appeal, the same is hereby, dismissed. Accordingly, I affirm both the conviction and sentence passed against each of the two appellants by the trial court.

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Other Citations: (2006)LCN/2103(CA)