The State Vs Nathaniel Okpala (2012)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal by the State now appellant against the decision of the Court of Appeal, Enugu Division which on the 7th day of July, 2008 allowed the respondent’s appeal against his conviction and sentence to life imprisonment and discharged him by setting aside the judgment of the trial High court coram: Ijem Onwuamaegbu J. sitting at Aguata. It is against that judgment of the Court of Appeal, Enugu that the appellant has by a notice and grounds of appeal filed on 6th October, 2008 come before this court.
The respondent cross- appealed on the ground that the Court of Appeal had erroneously only discharged him instead of making an order of discharge and acquittal. That this court should dismiss the appeal and order a discharge and acquittal in favour of the respondent/cross-appellant.
The facts as briefly stated in this appeal are as follows:
After the initial trial was aborted as a result of the transfer of the trial Judge to another Judicial Division, the respondent/cross-appellant and his son, Chidozie Okpala were on 5/11/2003 arraigned before the Honourable Justice Ijem M. Onwuamaegbu of the High Court of Anambra State sitting at Ekwulobia for the murder of one Nkasiobi Ononamadu on 6/1/2001 contrary to section 274(1) of the Criminal Code Cap. 36, Vol. 11, Laws of Anambra State, 1991. The respondent/cross appellant and the 2nd accused “Not guilty” and their trial commenced.
The prosecution’s case was rendered through six witnesses including PW2 – Charles Ononamadu and PW6 – Sgt. Livinus Ofiaelu both of whose hearsay testimonies the trial court relied on to convict the respondent/cross-appellant. The substance of the PW2’s evidence was that the father of the respondent/cross-appellant one Okpalalisinkwo told him (PW2) that respondent/cross-appellant and 2nd accused person “Murdered” the deceased and that the said Okpalalisinkwo offered to atone for the murder of the deceased in accordance with their custom.
On his own part, PW6 testified that in the course of his investigation, he obtained statements from Okpalalisinkwo and PW4 to the effect that the respondent/cross-appellant and 2nd accused person killed the deceased. Okpalalisinkwo was not called as a witness at the trial and PW4 denied on oath her extra-judicial statements to the police. PW6 tendered the statements of the respondent/cross-appellant and the 2nd accused person to the police as Exhibit “E” and “F” and the prosecution closed its case. The respondent/cross-appellant and the 2nd accused person testified on their respective behalf and called no other witnesses.
After counsel’s final address, on 14/12/2005, the trial court discharged and acquitted the 2nd accused person but convicted the respondent/cross-appellant of manslaughter and imposed the maximum sentence for the offence on the basis that the provisions of section 279 of the Criminal Code, Cap 36 Vol. 11 Laws of Anambra State, 1991, are mandatory.
Being dissatisfied and aggrieved by the conviction and sentence, the respondent/cross appellant appealed to the Court of Appeal within time on five grounds of appeal. In a unanimous decision, the Court of Appeal allowed the appeal but in doing so, the said Court of Appeal merely discharged the respondent/cross-appellant rather than discharging and acquitting him despite holding that the prosecution had failed to prove the offence against the respondent/cross-appellant beyond reasonable doubt.
The appellant through counsel, Chief G. Oseloka Osuigwe settled the appellant’s brief of argument filed on 2/6/10 and a cross respondents brief filed on 24/10/2011.
Emeka Etiaba Esq had the respondent’s brief and that of cross-appellant filed on 5/10/2010 settled on his behalf.
The appellant framed a single issue for determination which is as follows:
Whether the learned Justices of the Court of Appeal were right to set aside the conviction and sentence of the respondent and discharged him on the ground that evidence relied upon by the trial court was hearsay evidence and the guilt of the respondent not proved beyond reasonable doubt.
The respondent couched a sole issue too but differently and that is thus:
Whether the learned justices of the Court of Appeal were wrong to have set aside the conviction and sentence of the respondent based on a thorough appreciation of the evidence adduced at the trial court.
In my view each of the issues is the same side of a coin being similar though stated in different forms, the bottom line being the rightness or not of the decision of the Court of Appeal in the light of the evidence proffered before the court below.
On the 27th day of October, 2011 date of hearing, learned counsel for the appellant adopted the briefs and argued that there was evidence before the trial court that the deceased was healthy when he came to the house of the respondent and he died in the compound of the respondent and was the last person to see him alive. That the PW3, Dr. Nwannedi Wilfred who performed the autopsy on the body of the deceased had testified and stated thus:
“The findings were swelling on the right side of the neck. The testes on the left side of his scrotum were found to be crushed and discoloured and there was blood in his scrotum. There was also caked blood on the right angle of the mouth, also on the left groin and the left scrotum.
“In my opinion the cause of death must have been shock as a result of trauma (sic) something that hit him on the scrotum must have caused shock and death.”
Learned counsel for the appellant stated on that since the respondent claimed in his evidence that he was the only person present when the deceased allegedly jumped up, fell down and died, he owed an explanation on how the deceased sustained the injuries of the magnitude described by the PW3, the doctor and which injuries led to his death. That the doctor’s evidence remained unchallenged and uncontradicted. He stated on that though it is trite that the burden of proving a charge against an accused person rested on the prosecution by virtue of sections 138(1) and 139 of the Evidence Act, that burden shifted in this instance to the accused person by virtue of sections 138(3) 139, 141 and 143 of the Evidence Act. He referred to the case of Nasiru v State (1999) 1 SCNJ 83 at 99.
It was again submitted for the appellant that the doctrine of last seen applied to this case and the inability of the respondent to proffer the needed explanation led to the irresistible conclusion that he was responsible. He cited the cases of Godwin Igabele v State (2006) 6 NWLR (Pt. 975) 100 at 105; Adeniji v The State (2001) 5 SCNJ 371 at 375.
For the respondent learned counsel on his behalf said the Court of Appeal was right in holding that the evidence relied upon by the trial judge to convict the respondent were mere hearsay which were inadmissible and could not ground a conviction in law. That as regarding to the time, place and cause of death of the deceased beyond the hearsay evidence adduced, every other evidence was mere speculation and conjecture. He said the pieces of evidence as to the time of death from the prosecution are in conflict and the lower court was right in resolving the doubt in favour of the respondent. That there was also a conflict as to where the deceased died and the matter of the cause of death left a lot to question. That the prosecution witnesses gave contradictory evidence on the time, place and cause of death and these contradictions were devastating to their case. He cited Aigbadion v State (2000) 7 NWLR (Pt.666) 686 at 699.
Learned counsel for the respondent said that reliance on circumstantial evidence cannot be without considering other co-existing circumstances that could weaken or destroy the inference. He cited
Tepper v Queen (1952) AC 480 at 489;
Lori and Anor v The State (1980) 8 – 11 SC 52 at 55;
Godwin Igabele v State (2006) 5 NWLR (Pt.975) 100 at page 105;
Adeniji v The state (2001) 5 SCNJ 371 at 375;
Nweke v State (2001) 4 NWLR (Pt.704) 588 at 603
The learned trial judge had held:
“The crucial question now is whether it is the act(s) or commission (sic) of the accused persons that caused the unnatural death of the deceased. In other words are the accused persons responsible for the injuries on the body of the deceased as stated by PW3 and shown in Exhibit A – the Medical Report. As stated earlier there is no direct evidence available to this court on how the deceased ended up with the injuries described by PW3 and contained in Exhibit A…. I am of the view that if Okpalalisinkwo the father of the accused person did not know that his children (the accused persons) were responsible for the death of deceased he would not have offered to atone for it and certainly would not have provided the items for atonement. I therefore infer from this uncontroverted evidence and have no doubt whatsoever that the accused person (s) were responsible for the injuries found on the corpse of the deceased by PW3, which injuries caused the death of the deceased… From the evidence before me I am satisfied that the acts of the 1st accused in inflicting injuries on the deceased caused the death of the deceased and I hold that the prosecution has proved this arm of this crime beyond reasonable doubts. However there is nothing before me to show that the 1st accused had the necessary mens rea (intent) therefore I find the 1st accused can be convicted of, even though he was not specifically charged with it.
…It is lesser offence than the offence of murder for which the 1st accused is charged and it is punishable under S.279 of the Criminal Code. It carries a term of Life Imprisonment. In the light of the foregoing I find the 1st accused guilty of the offence of manslaughter contrary to S.279 of the Criminal Code Cap.36 Laws of Anambra State. I find the 2nd accused not guilty. The 2nd accused is therefore discharged and acquitted.”
The Court of Appeal after reviewing what the trial court did, came to the following conclusion:
“Clearly the Police investigation of the case is less than adequate …..My lords, in the respondent’s brief, presumably of murder, in earlier case and in both cases the prosecution failed to prove the offence against the accused person of manslaughter and of the offence of murder that the accused was charged with unlawful homicide is a sum generis which covers the offence of murder and or manslaughter. To secure a conviction in both cases the offence must be proved beyond reasonable doubt…. It sometimes happens that the cause of an action in a death resulting in murder is commuted to manslaughter when it is found that no intention to kill or mens res can be proved. In both cases of murder and manslaughter prosecution (sic) made in such proof is conclusion… I have written above that the only cogent evidence before the court for the offence of murder of hearsay. It is not admissible to prove the offence consequently no offence is proved against the appellant. I am left in no doubt whatsoever that no offence should have been imposed to prove the offence against the accused beyond reasonable doubt. The accused person is discharged, but not acquitted.”
From what I have stated above there was no strong base upon which the trial Judge came to his conclusion of manslaughter and proceeded with the punishment and so the Court of Appeal was right in its own finding that whether the offence of murder or possible manslaughter the prosecution has not proved either beyond reasonable doubt as required by section 138 Evidence Act, Cap.112 Laws of the Federation 2004.
Also lacking was the circumstantial evidence which could lead irresistibly with the compelling and cogency to no other conclusion than that accused was responsible for the death of the deceased. This is because there were too many loose ends that could not just be ignored and there existed some other circumstances which did indeed weaken or destroyed the inference which unfortunately the learned trial Judge relied on. See
Lori and Anor v The State (1980) 8 – 11 SC 52 at 55;
Godwin Igabele v State (2006) 6 NWLR (Pt.975) 100 at page 105;
Adeniji v The State (2001) 5 SCNJ 371 at 375;
From the foregoing and except for the rather bizarre order of “discharge, but not acquitted” of the Court of Appeal, I dismiss this appeal and I uphold the finding and decision of that court. I also set aside the order of “discharge but not acquitted” of the court below and replace it with an order of discharge and acquittal of the respondent.
CROSS-APPEAL
The respondent/cross appellant couched a single issue for the cross-appeal and that is:
Whether having held that no offence was proved against the respondent/cross-appellant and that the prosecution has failed to prove the offence against the respondent/cross-appellant beyond reasonable doubt the proper order the Court of Appeal ought to have made was an order discharging and acquitting the respondent/cross-appellant
The sole issue was adopted by the appellant/cross-respondent. For the cross-appellant was contended that on the Court of Appeal finding that the cross-appellant was not guilty of the offence charged the resultant order should have been a discharge and acquittal and not a mere discharge as that court had ordered. He referred to section 246 of the Criminal Procedure Act, Cap 43, Laws of the Federation, 2004, Bamaiyi v A G. Federation (2001) 12 NWLR (Pt.727) 468 at 497; Achineku v Ishagba (1988) 4 NWLR (Pt. 89) 411; section 36(9) of the 1999 Constitution of the Federal Republic of Nigeria.
In the cross-respondent’s response, it was put forward a support for the view of the cross-appellant that if the court found the offence not proved beyond reasonable doubt, the proper order should be a discharge and acquittal and not a mere discharge as the Court of Appeal did. He cited section 246 of the Criminal Procedure Act and section 243A(2)(a) of the same Criminal Procedure Act Cap.41 Laws of the Federation, 2004.
This cross-appeal has no contest any way since it is a question on what the position should be if indeed the accused is found not guilty what the proper order should be as in the case in hand. I would have recourse to section 246 of the Criminal procedure Act, Cap 43, Laws of the Federation, 2004 which provides as follows:
“If the court finds the accused not guilty, the accused shall forthwith be discharged and an order of acquittal recorded.”
This court has had no difficulty in interpreting the word “shall” as provided for in statutes as in the present case to connote a mandate, a command that brook no watering down or denoting of any other meaning than that the command must be obeyed. Therefore when the Court of Appeal found and decided that the accused/cross-appellant was not guilty, it was duty bound to order and record that he was discharged and acquitted and not do what it did by saying discharged but not acquitted. It was not for that court to merely order a discharge and the accused not acquitted. The law, section 246 of the Criminal Procedure Act said the accused should be discharged forthwith and an order of acquittal recorded. Nothing less than that would suffice. That order or mandate or command of the law should have been carried out without dilution. See Bamaiyi v A – G. Federation (2001) 12 NWLR (Pt.727) 468 at 497; Achineku v Ishagba (1988) 4 NWLR (Pt. 89) 411.
In the circumstances therefore the cross-appeal is allowed and it is hereby ordered that the respondent/cross-appellant is discharged and acquitted forthwith of the charge against him.
SC.66/2009
