Peter Ndukwu V. The State (1999)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

 The appellant stood trial before the Imo State High Court, sitting at Oguta, on an information that the Attorney-General of the state had laid before that Court. The statement and Particulars of offence as contained in the information were as follows:
Statement of offence:-
Murder, contrary to section 319 of the Criminal Code Cap. 30, Vol. II, Laws of Eastern Nigeria 1963, as applicable in Imo State.
Particulars of offence
Peter Ndakwu on the 18th day of April, 1988 at Mgbala Agwa in the Oguta Medical Division, murdered one Alexander Atta.”

The prosecution’s case before the lower Court was that during a quarrel between the appellant and the deceased the former shot the latter in the head with a gun. The latter died the following day as a result of the wound he sustained from the shot to his head. To prove this case the prosecution called PW1 to PW5 PW 1 and PW 4 claimed in their evidence before the trial Court that they were eyewitnesses to the actual shooting. P.W.1 testified that she sat in her compound pealing cassava when the appellant came in and told his wife to cook for him as something was about to happen. He then left. Not long afterwards the witness heard a gunshot. The wife of the appellant rushed out. Shortly afterwards the witness saw the appellant and his wife returning to the compound. Later still she heard the deceased crying out that the appellant had killed him. She saw a pistol in the hand of the appellant. She got hold of him while P.W.2 dispossessed him of the pistol. In his own evidence P.W.2 stated that he had just returned from the farm and was having a bath when he heard a gunshot. He got out, looking inquiringly in the direction whence the shot came. He saw gunfire smoke still billowing on the wind. He heard the deceased crying out to him and P.W. 1, saying that the appellant had shot him. He was on his way to the scene when he met the appellant and his wife. P.W.1 got to them first and got hold of the appellant. The witness then dispossessed the appellant of the gun. P.W.3 was not in town on the day of the incident. He had, according to him, however, heard the appellant the previous day threatening to do something to the deceased. P.W.4 testified that on the day of the incident the deceased went to the appellant to complain about how the wife of the former had injured his son. The appellant threatened to give the deceased what he wanted to get. As the deceased left, the appellant followed him, continuing his threat. The witness intervened but the Appellant would not be stopped. He produced a gun and shot at the deceased. P.W.5 was the investigating police officer. Among other things he tendered in evidence the report of the autopsy on the deceased. It was admitted as Exh. H.

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The Appellant’s case was a total denial that he ever shot the deceased. On the contrary, it was the deceased who, according to him, produced a gun from his pocket and shot at the appellant. In his evidence before the trial Court he stated that when the deceased fired at him he docked and the bullet missed him. He then got hold of the deceased and both of them fell to the ground. In the process, the screwdriver that he held in his hand pierced the deceased in the head, he denied that there was any gunshot wound on the deceased. In his extrac judicial statement made to the police soon after he was arrested, admitted in evidence as Exh. D, he had stated the same thing, except for the variation as to how the wound that was seen on the head of the deceased came to be there. This is what he had said on that occasion.
“As the bullet went off, I dived and carried him and threw him on the ground and used the screwdriver/iron rod I was holding and wounded him on the head and threw him on the thorn of palm tree.”

The wife of the appellant testified for him as D.W.2 confirming that it was the deceased, and not the appellant, who fired the shot. At the end of the trial the learned trial Judge convicted the appellant of murder as charged. Although he disbelieved PW 1 and PW4 on their claim to being eyewitnesses to the shooting and found as a fact that only the appellant and the deceased were present when the shot went off, he found that the shooting had been done by the appellant. He rejected the appellant’s version of how the deceased came to have the injury that was found on his head. He sentenced the appellant to death.
Dissatisfied, with his conviction and sentence the appellant has appealed to this Court. Only one ground of appeal, i.e., the omnibus ground, was filed with the notice of appeal. Counsel on his behalf, however, later filed eight additional grounds.

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In the brief of argument that Mr. B.E.I. Nwofor filed on behalf of the appellant in compliance with the rules of this Court, learned counsel formulated the following three issues for determination:
“1. Whether the learned trial Judge was right in admitting the medical report (i.e Exh. H) in evidence and in relying thereon in ascertaining the cause of the death of the deceased having regard to the peculiar facts of this case?
2. Whether the statements and/or declarations of the deceased that the appellant “had shot him” or “had killed him” were admissible in law either as dying declarations or as forming part of the res gestae or as both to justify their reception in evidence and reliance thereon by the learned trial Judge in reaching his decision convicting the appellant in this case?
3. Whether the guilt of the appellant was proved beyond reasonable doubt as laid down by law?
Mr. J. C. Duru, the learned Deputy Director of Public prosecutions, Imo State, in the respondent’s brief, adopted these three issues, but formulated the following additional one:
“Whether, on the legally admissible and admitted evidence at the Court below, there is no alternative offence for which the appellant could have been, and can still be convicted, having regard to the entire circumstances of the case?
In the respondents brief Mr. Duru readily conceded the first and third issues to the appellant without any reservations. With respect to the second issue, however, he conceded only in part. He conceded, firstly, that the evidence of P.W.1, P.W. 3 and P.W.4 should be completely disregarded as these witness showed themselves at the trial to be unreliable witnesses. He conceded further that the evidence of PW2, that he heard the deceased cry out that he had been shot by the appellant, was inadmissible as a dying declaration. The learned DPP gave copious reasons in paragraph 4 of his brief for his concessions. See pages 2-9 of the brief. He contended, however, that it was admissible against the appellant as a fact forming part of the res gestae.

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Based on these concessions and contention the learned DPP summarised and concluded his brief thus in paragraphs 5, 6 and 7.
“5. Summary
1. The Learned trial Judge was not right in admitting the medical report (Exhibit H) in evidence, and in relying thereon, in ascertaining the cause of death of the deceased, having regard to the facts of this case.
2. The declarations of the deceased that the accused (Appellant) had shot him (without more to that) is not admissible in law as a dying declaration, but is admissible in evidence as forming part of the res gestae, in view of its contemporaneity (sic) with the act of shooting, by the Appellant, in terms of time, place and circumstances, that the two are part of one and the same transaction. Teper v. R. (1952) A.C. 480 487.
3. There was no satisfactory evidence establishing the identity of the corpse on which the medical doctor performed postmortem examination, in the case.
4. The prosecution did not prove the cause of death of the deceased, as required by law.
5. The prosecution did not prove which of the four (4) acts of the appellant caused the death of the deceased.
(i) the shooting of the deceased, by the appellant with gun (as testified by the PW 2- Chikere Nzeke, and as forming part of the res gestae) or
(ii) the throwing of the deceased on the ground,
(iii) the wounding of the deceased on the head, with a screwdriver/iron rod which the appellant is holding.
(iv) the throwing of the deceased on thorn of palm tree (as so stated by the appellant himself, in Exhibit D – his statement to the police).
6. Instead, the prosecution proved that the Appellant attempted to murder the deceased, through the medium of one or more of the acts enumerated in paragraph 5(i) (v) above.
6. Resolutions

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Accordingly, the resolution of the three issues as formulated above, by the Appellant, and adopted by the Respondent alight to be as follows:
Issue No. 1: In the NEGATIVE
Issue No.2: In the NEGATIVE as dying declarations, but in the affirmative as Res Gestae.
Issue No.3: In the negative for the offence of (MURDER) charged, but in the affirmative for the alternative offence of ATTEMPT TO MURDER – though not charged.
And, the proper resolution of the sole issue as formulated by the Respondent, for determination, ought to be that THERE IS, and that is, ATTEMPT TO MURDER.
7. Conclusion
For the reasons stated in the Summary (5) of this brief, this honourable Court is urged to:
1. Allow the appeal against the Appellant’s conviction for murder
AND
2. Substitute, in its stead, a conviction of the Appellant for ATTEMPTED MURDER”

Having regard to the concessions made by Mr. Duru on behalf of the respondent, I see no point in considering the value of the evidence of P.W.2 regarding what he claimed to have heard the deceased say. Even if I agree with learned counsel that that piece of evidence is admissible in evidence no useful purpose will be served as far as the charge of murder, or even the alternative charge of attempted murder suggested by counsel, is concerned. The case sought to be put up by counsel before us is not based on the wounding of the deceased by shooting but by other means.

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