Peter Iroh V. The State (2009)
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RITA NOSAKHARE PEMU, J.C.A.
This is an appeal against the judgment of the High Court of Abia State, delivered on the 28th of March 2012, whereby the accused person and three others were convicted and sentenced to death for the murder of one Chief Peter Okorie.
SYNOPSIS OF FACTS
The Appellant and seven others were arraigned on an amended information before the High Court of Abia State, Umuahia Judicial Division for the offence of murder contrary to Section 324 of the Criminal Code Cap 30, Laws of Eastern Nigeria 1963 (applicable in Abia State)
In proving his case, the prosecution called four witnesses while the accused persons denied the charge and testified in their own behalf.
On the 13th of June 2004 the Appellant and others went to the deceased house with clubs, matchets and guns. He was stripped naked, his clothes were torn and he was beaten up. Thereafter he has not been seen.
PW1, wife to the deceased Chief Peter Okorie did state that on the 13th of June 2004, the Appellant, and other youths came to their house and started to beat her husband who was the traditional
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prime minister to the Eze. He was also a native doctor.
The deceased son Chimaoge Okorie did testify that in 1997, the Imo River Basin Authority had a problem with their community in Lokpanta, which led to some people being detained at the Police Station. After that, there were moves to settle the matter at home.
That members of the community came to his father to borrow them the sum of N20,000 and they showed his father a parcel of land for him to hold for a year pending the payment of the money.
When the community failed to pay same, the father started making use of the land in 2001. PW2 corroborated this evidence. Indeed he did say that the Appellant and others unknown, carried his father through a track road leading to the Enugu expressway. He followed them. That the 4th accused called his 1st son Josiah Udoh who brought his Nissan bus. They put his father in a jute bag and tied it and put it in the bus and went towards the boundary between Enugu and Abia State.
After the trial, the Court below found the Appellant guilty as charged, and convicted him of the offence of murder, and sentenced him to death.
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Dissatisfied the Appellant filed his Notice of Appeal on the 19th of May 2012. It encapsulates seven (7) Grounds of Appeal.
The Appellant filed his brief of argument on the 6th of July 2018. It is settled by J. C. OKAFOR ESQ.
The Respondent filed his Brief on the 18th of October 2018. It is settled by ENYINNAYA OKEZIE, ESQ. Solicitor General/Permanent Secretary Ministry of Justice Umuahia, Abia State.
The Appellant filed a reply brief on the 22nd of November 2018.
On the 2nd day of April 2019 the parties adopted their respective briefs of argument.
The Appellant in his brief of argument proffered four (4) issues for determination. They are:-
3.1. Whether from the proceedings of the 12th day of April, 2010, valid plea was properly taken by Appellant and others on the amended charge in accordance with the law? Distilled from grounds 3 and 6 of the notice and grounds of appeal.
3.2. Whether the prosecution proved its case beyond reasonable doubt against the Appellant in view of the inconsistent testimony and contradictions in the evidence of the prosecution witnesses? Distilled from grounds 5 and 7.
3.3. Whether the prosecution proved its case beyond
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reasonable doubt against the Appellant? Distilled from ground 4.
3.4. Whether the lower Court was right in convicting the appellant for the offence of murder when all the defences put up by the Appellant were not properly evaluated and considered? Distilled from grounds 1 and 28 of the notice and grounds of appeal.
The Respondent proffered four (4) issues for determination in his brief of argument. They are:-
3.1 Whether the defence of alibi raised was properly raised by the Appellant to warrant it to be investigated by the police and if such failure is fundamental to the case of the prosecution?
3.2 Whether from the proceedings of the 12th day of April, 2010 valid plea was taken by Appellant and others on the amended charge in accordance with the law?
3.3 Whether the prosecution proved its case beyond reasonable doubt as required by law.
3.4 Whether the lower Court was right in convicting the Appellant for the offence of murder in the circumstances of the case.
A cursory look at the Issues for determination proffered by the respective parties show that the Respondent?s Issues for determination is essentially an
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adoption of the issues for determination proffered by the Appellant, save that in its issue I, the Respondent had raised the Issue of Alibi.
I shall consider this appeal based on the Appellant?s Issues for determination and the Issue of Alibi raised by the Respondent.
ISSUE NO 1.
It is the Appellant?s contention that in the course of the trial, the prosecution amended the charge/information by adding two other accused persons, namely the Appellant and Monday Okeke as the 7th and 8th accused persons respectively. ? Page 58 of the Record of Appeal.
On the 12th of April 2010, when the amended charge was read afresh, to the Appellant and other accused persons the record of Court showed that it was Gabriel Ogu and 5 others who were being tried for the conspiracy and murder of one Peter Okorie.
Submits that no fresh plea was taken by the Appellant and the other accused persons. They only look the plea on 5/2/2009, when the original six accused persons excluding the Appellant took their plea.
?Referring to Section 163 of the Criminal Procedure Law of Eastern Nigeria 1963 (applicable to Abia State) and
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Section 163 of the Criminal Procedure Act Cap. C 41 Laws of the Federation of Nigeria 2004, and indeed Section 164 (4) of the said Act, he submits that the import of these provisions is that where, in the course of trial, an amendment is made to the charge, the said charge has to be read and explained to the accused persons.
That this was not done in the present case.
That indeed, there was no endorsement made on the charge, indicating that it had been amended.
Citing C.O.P. v. ALAO (1959) WRNLR 39, he submits that failure to do so will vitiate the proceedings. Refers to ?PRACTICAL APPROACH TO CRIMINAL LITIGATION IN NIGERIA? by J. A. Agaba 1st Edition 2011. Urges this Honourable Court to hold that since there was no endorsement on the said charge after its amendment, the proceedings before that Court were vitiated.
Referring to Section 215 of the Criminal Procedure Act, he submits that there is no record in the judgment of the trial Court where plea of the Appellant and others were taken afresh, and that the charge was read over and explained to the Appellant. Cites UMUOLO v. STATE (2003) 3 NWLR (PT. 808) 493 @ 508, 509.
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Submits that the trial Court failed to comply with the mandatory provisions of Section 215 of the Criminal Procedure Act 2004, and the Criminal Procedure Law of Eastern Nigeria as applicable to Abia State.
ISSUES NO 2 AND 3
Arguing both issues together the Appellant submits that the burden of establishing the elements of an offence falls on the prosecution and the standard of proof is that of proof beyond reasonable doubt.
Submits that in order to sustain an allegation of murder, the prosecution must establish these elements:-
1. The fact of death of the victim.
2. The fact that the death of the victim was caused by an act of the Appellant.
3. The fact that the act of the appellant resulting in the death of the victim was intentional.
He submits that in convicting the Appellant, the Court below relied so much on the evidence of PW1 and PW2, who are blood relations of the victim. The Court below ignored the contradictory evidence adduced by PW1 and PW2, as to what took place on the 13th day of June 2004.
?Submits that the prosecution failed to prove the charge of murder against the Appellant beyond reasonable doubt. That the prosecution
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failed to investigate the murder allegedly committed by the Appellant.
That from PW3?s evidence the alleged incident took place in 2004 but no investigation was carried out until 2009, when the Appellant was arrested for the alleged offence.
The Appellant was arrested on the 4th of November 2009 in his shoe workshop at Amaogidi Lokpanta, and thereafter taken to the SCID Umuahia on the 5th of November 2009, where he made statement to the Police, denying killing the deceased ? Pages 125 ? 126 of the Record of Appeal.
ISSUE NO 4.
He submits that the law is trite that in a trial for murder, it is the duty of the Court to consider all the Defences raised by the evidence, whether the person charged specifically put up such defences, or not. And no matter how weak or stupid a defence raised by an accused person may appear, it must be properly and adequately considered. ?UWAEKWEGHINYA v. STATE (2005) 9 NWLR (PT. 930) 227 @ 248 paras A-B.
He submits that the arrest and prosecution of the Appellant was an afterthought, as PW4 instigated it due to the land disputes he had with the Appellant and the 1st, 2nd and 8th
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accused persons.
He submits that PW3 did not state what investigation he carried out concerning the Appellant. That the Court below did not consider the defence put up by the Appellant.
He submits that the Appellant?s evidence was not controverted during cross ? examination, but that the Court failed to consider his defence.
RESOLUTION OF ISSUES
ISSUE NO ONE.
From records, on the 12th of April 2010, one Gabriel Ogu and 5 others were arraigned before the High Court of Umuahia Judicial Division Holden at Umuahia on an amended information. The charge on the information was read afresh to the accused and each pleaded not guilty to Courts 1 and 2 ? Page 80 of the Record of Appeal. The Appellant was not among these accused persons. See Page 3 and 56 of the Record of Appeal.
At Page 68 of the Record of Appeal, the Appellant is No 7 on the list of accused persons.
But in the Court appearance of the 12th of April 2010, it was Gabriel Ogu and 5 others that were arraigned and took their respective pleas ? Page 70 of the Record of Appeal.
?On the 17th of May 2010, it was Gabriel Ogu and 7 others,
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not 5 others that appeared in Court. There was no explanation for this ? Page 81 of the Record of Appeal.
It is pertinent to note that when an accused person is arraigned for a Criminal offence, his plea must be taken after the charge is read over to him, before the Court takes any further action or entertains any application (Section 396 (2) of the Administration of Criminal Justice) Act 2015. It reads:-
?After the plea has been taken, the Defendant may raise any objection to the validity of the charge or information at any time before judgment, provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivering of judgment? ? DESTRA INVESTMENTS LTD v. FRN & ANOR (2018) LPELR ? 43883 (SC) (2018) 8 NWLR (PT. 1621) 335; JEREMIAH v. FRN. & ANOR (2018) LPELR 46050.
From records, the charge which was transferred to the Chief Judge of Abia State, for hearing and determination or for further transfer to any other High Court of his choice in Abia State, did not contain the names of the Appellant ? Page 49 of the Record of Appeal.
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The totality is that I am at a loss as to whether the Appellant was one of the accused persons, and if so, if he took his plea before any Court.
Failure to take his plea vitiates the proceedings ab initio.
This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE 2, 3 AND 4
In the face of my observation above, to consider Issues 2, 3 and 4 would amount to an academic exercise.
Failure to take the appellant?s plea, coupled with the uncertainty of which charge he was charged with, before facing trial, truncates the proceedings in which he was charged and convicted.
These issues are resolved in favour of the Appellant and against the Respondent.
The Appeal succeeds and the judgment of the High Court of Justice Umuahia, delivered on the 28th of March 2012, convicting and sentencing the Appellant to death for murder is hereby set aside as being null and void.
The Appellant Peter Iroh is hereby discharged and acquitted.
Other Citations: (2009)LCN/3296(CA)
