Peter Nwachukwu Eze V. The State (1976)

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OBASEKI, AG. JSC 

The appellant was on the 25th day of June 1973, found guilty of the murder of one Victoria Okonkwo, contrary to Section 319(1) of the Criminal Code and sentenced to death by Oputa, J., sitting at the Onitsha High Court. Aggrieved by the decision, he applied to this court. At the hearing on the 12th day of December 1975, counsel for appellant announced that he had nothing to urge in favour of the appellant. After considering the proceedings in the lower court, we dismissed the appeal and indicated that we shall give our reasons, and this we now do.

From the evidence before the court below, and the learned trial Judge’s findings, we find the following facts:   On the fateful night, the night of 11th November 1969, as it was getting dark at 7.30 p.m. after the deceased had returned from a burial ceremony to the compound, she requested her daughter Joy Okonkwo (P.W.2) to accompany her to lock the compound gate. She then followed the deceased who had hurricane lamp with her.

On getting to the steps of the house, P.W.2 expressed to her mother that she was afraid to go further and so stopped. She was then about 11 years old and it was war time. The deceased went alone with the aid of the hurricane lamp she held. As she got to the gate, the appellant and two others rushed at her from outside the compound. The appellant (was seen to have) snatched the lamp from her before the three men held her. A struggle ensued but the three assailants overpowered her and disappeared in the dark with her. As the struggle broke out at the gate, P.W.2 raised alarm – and rushed to one of her uncles by name Samuel Ekwenmuo P.W.4 with the afflicting news. The appellant’s mother ran to her from her room and in an attempt to quieten her, gripped and covered P.W.2’s mouth with her hand.    Samuel Ekwenmuo, P.W.4 arrived subsequently and ordered appellant’smother to leave her (P.W.2) to narrate what she saw happen to her mother.

The loud cries of P.W.2 was also heard by Nwankwo Mekowulu (a far relation). P.W.3 and he too came to the scene. By the time he arrived at the scene, a crowd had gathered. P.W.2 narrated what she saw happened to her mother. P.W.3 looked round and saw the hurricane lamp standing on the ground but without light.    On the suggestion of P.W.3, a report was made that night by P.W.4 accompanied by the appellant’s mother, Joy Okonkwo (P.W.2) and other relatives to Sub-Inspector Linus Anumudu P.W.5. He embarked on a thorough investigation immediately and after hearing from P.W.2, detained appellant’s mother and mounted a search for the deceased and the appellant and his gang.    

The appellant and his brother, one Joseph were however arrested the following morning and brought to the scene of crime by the police, P.W.5. When the appellant’s room was searched, a wet long-sleeve nylon shirt with stain suspected to be human blood was recovered.

About a week later, appellant took P.W.5 to a place Otolo Nnewi where he alleged, the deceased was buried. P.W.5 saw no signs of a grave, and on their way back to the station, appellant escaped.    The body of the deceased was recovered from the Mili Agu stream. It was sent for post mortem examination. Dr. Paul Onua Ibuzo, P.W.1, performed the autopsy after the body was identified by Joy Ufondu, P.W.7.  The Doctor, P.W.1, in his testimony gave his findings as follows:-   “The body was that of an African female aged about 30 years. The probable period of death was about one week before my examination. When the body was brought to me, post mortem changes were in progress.

The body was smeared with mud. I observed that a rope was tied around the neck. There was potrusion of the tongue. There was also abnormal mobility of the neck and I observed a fracture of the neck cervical vertebrae. I formed the opinion that death was due to shock due to fracture between the first and second cervica vertebrae. In my opinion, the fracture could have been caused by direct or indirect violence. By direct violence I mean a direct hit at that level. By indirect violence I mean a flexion or the twist of the neck”.    

The appellant made a statement – Exhibit 1 – to the police under caution denying any knowledge of her death. In it he said: “I know Victoria Okonkwo. I do not know anything about her death. I have nothing to say”. The appellant set up a defence of alibi and malice in his evidence. These were considered,and, in our view, rightly rejected by the trial Judge. On the above facts, the learned trial Judge convicted the appellantand sentenced him to death.  

In his consideration of the defence of alibi, the learned trial Judge said inter alia:   “The 1st accused put up a plea of alibi. He said that on the 11th day of November 1969, he was in the army and only came home on 16th November 1969 with a pass. I have no evidence of the Battalion orDivision of the Army in which the 1st accused served. A man who puts up an alibi as a defence has the evidential burden cast on him – the burden of adducing evidence to show where he was at the material time. The alibi of the 1st accused has been disbelieved by the court.

This notwithstanding, the primary onus of establishing that 1st accused was on 11th November 1969, present at Nnewi Ichi and took part in the abduction of the deceased, rests squarely on the prosecution – R.v. Harry Lazarus Lobell (1957) 41 Cr App R. The matter once more turns on the credibility of the account of the abduction as given by 2nd prosecution witness”.  

The learned trial Judge correctly stated the law that in defence of alibi, the evidential burden rests on the accused person. Explaining this “evidential burden” Brett, JSC., in the case of Gachi & Ors. v. The State (1965) NMLR 333 said at p.334:    “The word ‘alibi’ means ‘elsewhere’ and since it is a matter peculiarly within the knowledge of the accused person, if he was at some particular place other than that where the prosecution says he was at any material time, what has been called the “evidential burden” that is, the burden of adducing of eliciting some evidence tending to show this, rests on him”.    

We observe that in his ground 2, the appellant is objecting to the admissibility of the evidence of P.W.2 whom he described as a 12-year old girl. The evidence on record is that she was 15 years old at the time she testified. She gave evidence on oath and we find nothing in the Evidence Law of Eastern Nigeria Cap. 49 which renders her evidence inadmissible.    

We may perhaps point out that even after accepting her evidence, the learned trial Judge looked for other evidence of appellant’s complicity and participation in the crime and commeted thus:    “In this case, in spite of the evidence of the 2nd prosecution witness which I accept, it will still in my view be unsafe to conclude that the 1st accused was one of those who abducted the deceased to her death unless there is other evidence of the 1st accused person’s complicity and participation in this crime; evidence that will thus support and reinforce the identification evidence of the 2nd P.W..

It is here that the evidence of Linus Anumudu, 5th P.W. deserves closer scrutiny ………………… I believe the 5th prosecution witness (Linus Anumudu) and I am satisfied that the above six points that came out of his testimony go to confirm in some relevant and material particulars the evidence of the 2nd P.W. that the 1st accused participted in the crime. I believe the 2nd P.W. (Joy Okonkwo) and find, as a fact, that 1st accused was one of those who abducted the deceased on the fatal night of 11th November 1969”.    

Although there was no eye witness to the killing, there was an eye witness P.W.2 to the assault on the deceased and her abduction. There is the evidence of P.W.5 that appellant took him out to show him the grave where the deceased was buried.

Although no grave was shown and the opportunity of an outing was misused by the appellant to escape from police custody, the body of the deceased was later recovered from a stream in the vicinity dead, with post mortem changes in progress.

If a man forcibly abducts another from his or her home and his or her body is later found dead,the man who abducts him cannot escape the inference that he killed the person.  We therefore found no merit in the appeal and dismissed it.

Other Citation: (1976) LCN/2338(SC)