Ugwu Ogidi Eazea V The Queen (1963)

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 BAIRAMIAN JSC

On June the 14th, at the hearing, the Court dismissed this appeal for reasons which will now be given.

The appellant was convicted on 18th February, 1963, at Nsukka, by Allagoa, Ag. J. of murdering one Nwali Oma on February the 1st, 1962, at Umuozeola in Enugu Province. It was a market day, and most people were away from home. He was found in the premises of one Nwode Igwe (Prosecution Witness 2); he was a stranger in the village and had no business to be there.

When she spoke to him, he wanted to hit her with his stick, a big one, and as she ran off she raised the alarm. The deceased, a neighbour, ran up, and the appellant struck him on the head and broke his skull. Nweke Imeze ran up, also, closely followed by Igwe Otanu (Prosecution Witnesses 5 and 6), but they were too late to help the deceased. Many others came; the appellant could not escape and finally he was caught.

Next day, the appellant made a statement to the Police, in which he said that on his way home, between Umuaro and Opi Agu, four men were in hiding beside the road; the deceased came at him with a matchet, so he killed the deceased with his stick; the others came out of ambush and tied him hand and foot, saying they would kill him for their idols. He took a policeman to the spot, but there were no signs of any struggle there.

At the trial the appellant gave another story in his evidence. Nine men came out from their ambush and chased him, and caught him on the road; they hit him and he fell; the deceased was among them, and was hit by accident by one of his comrades.The trial judge did not believe his story: he believed the evidence of the prosecution witnesses mentioned above, and he convicted the appellant of murder.

The first argument at the hearing of the appeal was that the doctor should have been definite, but was not, on whether it was one blow or several, that the deceased was struck. The injuries to the skull were extensive and radiating; the doctor could not tell with certainty whether it was one mighty blow or more which caused them; and he, very properly in our view, did not venture on being more definite in his opinion than he could have been. Witnesses 5 and 6 spoke of two or three blows. The second argument was that it was not probable that they could have seen what they testified. The Court was of opinion that there was no substance in the argument: their evidence was ample support for the finding of murder. Moreover, the appellant himself had admitted to the Police in his statement that he had struck and felled the deceased. He placed the scene of his deed outside the village and alleged that he had been waylaid. The fact was that he was found in premises inside the village and killed the first comer to escape being caught. He was rightly convicted of murder.

What looked like a more serious complaint was his allegation, in the second notice of appeal that he gave, of a breach of the provision in section 21 (5) (c) of the Constitution of the Federation, which enacts that-

“Every person who is charged with a criminal offence shall be entitled-

(c) to defend himself in person or by legal representatives of his own choice.”

One of the aims of that provision is to ensure that an accused person shall not have counsel foisted on him but be at liberty to choose his own counsel.

It is the practice of the courts (in accordance with section 352 of the Criminal Procedure Act) to assign counsel to a person accused of murder, if he has no counsel of his own. The notes show that on the 11th February, 1963, when the trial began, Mr Anyamene and Mr Chukwuani appeared as counsel for the appellant, and that he pleaded Not Guilty. Three witnesses were called for the prosecution, and the case was adjourned to the 12th. The notes show that Mr Anyamene cross-examined the doctor, and Mrs Nwode Igwe, and the 3rd witness, Osulo Anigo, who had identified the body to the doctor.Neither the appellant nor Mr Chukwuani informed the Court that Mr Nnaemeka-Agu had been engaged to defend the appellant.

The trial continued on the 12th February; Mr Chukwuani did not appear; the evidence was concluded that day; the addresses were on the l3th; judgement was delivered on the 18th, and sentence pronounced. On the 27th February the appellant gave notice of appeal, but did not complain in it about the counsel who defended him at his trial. He gave a second notice of appeal on the 28th, which is attested by Mr Chukwuani and in which he complains that he had not had a fair trial contrary to section 21 (2) of the Constitution, having regard to the circumstances of the case. That does not tell one much: for the respect in which the trial was not fair was not disclosed. What that subsection provides is as follows:

“Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court.”

The court deprecates a ground of appeal which alleges a breach of section 21 (2) of the Constitution, without stating in what respect its provisions were contravened. That, however, was clarified by the affidavit which Mr Nnaemeka-Agu swore on the 2nd of March, 1963. It is to this effect: The appellant’s brother engaged him to defend the appellant, whom he went to see, and he wrote to the registries asking for the depositions, but the High Court registry did not send them to him. Mr Chukwuani, who had gone to Nsukka for the civil call-over, on his return to Enugu told Mr Nnaemeka-Agu that the appellant was being defended by Mr Anyamene on a Crown brief. On those facts Mr Nnaemeka-Agu argued that the appellant, who said that he had asked his brother to brief Mr. Nnaemeka-Agu, had been deprived of the counsel of his choice, contrary to section 21(5) (c) of the Constitution of the Federation.

He cited in support of his argument the case of Dixon Gokpa v. Inspector-General of Police [1961] 1 All N.L.R., Part 2, page 423. In that case, the Magistrate in his anxiety to get on with his work, did not grant an adjournment to enable counsel to appear for the accused person, who wanted to be defended by the counsel he had engaged and had reasonable ground for adjournment. It is not opposite to the facts of this case.

Here the High Court, in accordance with practice, assigned counsel to defend the appellant, who was charged with murder, not knowing (possibly because of some confusion in the registry) that his brother had briefed counsel. When the trial came on, the appellant did not tell the Court that he had his own counsel; neither did Mr Chukwuani, although Mr Chukwuani knew that Mr Nnaemeka-Agu had been briefed. Later in the day Mr Nnaemeka-Agu learned that the trial had begun; he could have gone to Nsukka, which is forty miles from Enugu, on the following day and asked to defend the appellant. He did not do so: he was going to Afikpo, to defend someone charged with forgery. The Court observed that as between the two, his duty was to go to Nsukka and defend in the graver case of murder

The Court was of opinion that there had been no breach of the provision in section 21 (5) (c) of the Constitution: the appellant having accepted Mr Anyamene as his counsel at the trial, and having refrained from telling the trial judge that he had another counsel of his own, could not reasonably complain that he had not been allowed to have his defence conducted by counsel of his own choice.

For the above reasons the Court dismissed the appeal.

Other Citation: (1963) LCN/1053(SC)