➥ CASE SUMMARY OF:
Amaechi Njoku v. The State (SC.424/2017 · 15 Jan 2021)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Murder;
Alibi;
Identification parade.
➥ CASE FACT/HISTORY
On the fateful day, 3rd April, 2009, the deceased was accused of kidnapping a young lady from the village. The appellant and his co-accused were alleged to have been part of a mob that matcheted and beat the deceased and thereafter put him inside his own car and burnt him and the vehicle to ashes. Soon after this dastardly act, the alleged kidnapped victim emerged hale and hearty and unscathed from the farm.
The appellant herein was the defendant among twelve others, in an offence of murder of one Christopher Nwankegu (deceased) charged before the High Court of Ebonyi State. The appellant was charged by one count information dated the June 4th, 2010, for beating and burning of the deceased by angry mob at Okposi, Umuoghara in the Abakaku Judicial Division, on the 3rd of April 2009. He pleaded not guilty.
The respondent in proof of its case called five (5) witnesses to wit PW1 (Andrew Nwankwegu brother of the deceased person) PW2 (CPL Uko Emmanuel), PW3 (Asp Madago Kerkite), PW4 (SGT Kure Army) and PW5 (DR. Festuse Iyare) after the close of the Prosecution, the defence opened its case and defendant testified as DW1 and DW2, DW3 respectively. The appellant was the DW4/7th Accused person.
The trial Judge found the appellant guilty as charged and sentenced him to death by hanging. Dissatisfied with the decision of the trial Court he appealed to the lower Court on the December 23rd, 2014. The lower Court dismissed the appeal.
Dissatisfied with the decision of the lower Court, the Appellant Appeal to this Honorable Court.
➥ ISSUE(S)
I. Whether the improper consideration of the appellant’s defence of alibi and lack of identification parade to fix the appellant to the murder of the deceased before the lower Court affirmed the conviction of the appellant has not led to miscarriage of justice?
II. Whether the lower Court was right in affirming that the respondent proved beyond reasonable doubt the offence of murder against the appellant so as to secure his conviction?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE DEFENCE OF ALIBI PROVIDED IS VAGUE
‘In the instant, there is no clear evidence to prove the defence of alibi raised by the Appellant apart from not being raised at the appropriate time. From the record of appeal, it is clear that the PW1 to PW5 fixed the accused person at the crime scene by adducing sufficient acceptable evidence, pages 245 of the record of appeal. It is also noteworthy that the defence of alibi consists of vague, for example, the appellant argued that, he was merely present at the crime scene and he left the crime scene by 5pm 30 minutes before the incident happened. However, according pages 8, 9, 201-206, Exhibit H, at pages 403 and Exhibit I at pages 405 of the record, the appellant submitted that he closed work at 4pm and followed the crowd to the police station. From the above statement, it is crystal clear that there is evidence of vagueness in his defense of alibi.’
THERE WAS NO NEED FOR IDENTIFICATION PARADE SINCE HE CONFESSED TO DOING THE ACT
‘On page 256 (lines 4-8) of the record of appeal, in the appellant’s cross -examination, he stated: “It is not true that the DPO met the deceased person bleeding at the place, the crowd uncuffing me, were including beating him. I don’t know if the DPO and his men answered a distress call at the time, we were beating the deceased close Ezza North Development Centre and rescued the deceased.” However, applying the principle stated above that, “where by his confession, an accused person identifies himself as the offender”, the above statement, it is unnecessary for the police to conduct an identification parade where the accused/appellant has confessed to doing the act. In the light of the above fact, the inevitable conclusion is to hold that the Prosecution has proved its case beyond reasonable doubt that the appellant was part of the event which killed the deceased person. That being said, I resolve this issue in favour the Respondent and uphold the lower Court decision regarding this issue.’]
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↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[THE PROSECUTION PROVED THE DEATH OF THE DECEASED BEYOND REASONABLE DOUBT
‘The appellant inveighed against this finding in his brief of argument. At page 5 of the brief, it was contended that “… [no evidence was] produced in proof of death of the deceased.” Now, at the lower Court, PW1 had testified thus: “…I saw the accused persons beating my elder brother. I looked there to know if I knew any of them but it was just one, I knew in person but other people I knew them by their faces. The only person I know is Andrew Omaha, the first accused, I knew him before the incident. The second accused person gave machete cut. I also saw tenth accused girl. I equally saw the fourth accused, seventh accused. The people mentioned including those I did not mention their names were the people macheting the deceased i.e. including the people standing in the dock,” pages 201-202 of the record.’
‘The PW2, DW1 and DW2 all agreed that deceased was dead. It was against that background that the Court found that the first ingredient had been established. It stated thus on page 209-210 of the record: The above piece(s) of evidence, without doubt, established clearly, one issue, Christopher Nwankegu died on 3/4/2009. In the light of the foregoing, this Court finds as a fact and so holds that Christopher Nwankegu, the deceased person died on 03-04-2009. This finding and holding establish the first element of the offence of murder and that is that the deceased, has died. The Prosecution has therefore proved this ingredient beyond reasonable doubt. We equally endorse the above findings of the lower Court. We therefore hold that the first ingredient of the offence of murder was established.’
THE APPELLANT WAS AMONG THOSE WHO KILLED THE DECEASED
‘Here, there was the direct evidence of PW1 who, both in his evidence-in-chief and cross-examination maintained that the appellant killed the deceased person in her presence. For example, on page 201-202 of the record where he stated that; “… I saw the accused persons beating my elder brother. I looked there to know if I knew any of them but it was just one, I knew in person but other people I knew them by their faces.” Counsel for the appellant probably forgot that there are authorities for the view that a “single witness, if believed by the Court, can establish a criminal case even if it is a murder. See Effiong v. State [1998] 8 NWLR (pt 562) 362; Akindipe v. State [2012] 16 NWLR (pt 1325) 94, 116, paragraph C. As was held in Ahmed v. State (2001) LPELR-SC.27/2001; [2001] 18 NWLR (pt 746) 622; [2001] 12 SC (pt 1) 135, Adamu v. Kano NA [1965] SCNLR 65; Azu v. State [1993] 6 NWLR (pt 299) 303. It was also contended that the Court relied on the testimony of PW2 “whose evidence as what happened was inadmissible because he stated in his evidence in chief and admitted under cross examination that PW2 did not see the appellant taking active or even passive part in the beating and burning of the deceased but that he saw him standing by the side of the road among the crowd, [paragraph 4.2. of the appellant’s brief]. The submission is not borne out of the records. The truth is that the Court believed the story of the only eye witness, PW1. It relied solely on his testimony.’
THE ACT OF THE APPELLANT WAS INTENTIONAL AND HAD FOREKNOWLEDGE OF HIS ACTS
‘The Court dealt with the third ingredient of the said offence in pages 201-256 of the record. In doing so, it examined the cases that have interpreted Section 316 (2) of the Criminal Code. Arising from the evidence placed before the Court by the Prosecution, particularly, the evidence of PW1, I have no hesitation in coming to the conclusion that the act of the accused person by beating and burning the deceased person with tyres and sticks on 03-04-2009 was intentional and with knowledge that death or grievous harm was its probable consequence. The beating and burning were intentional, the accused knew that this act would either lead to death or cause grievous harm. He intended the act and had fore-knowledge of its consequence. In the circumstance, this Court holds that the prosecution has succeeded in proving the third element of the offence of murder.’]
.
.
.
✓ DECISION:
‘In consequence, I hold that the third element has been resolved. In all, I resolve the second issue against the appellant. From the detailed reasoning and facts, my lords, I have come to unavoidable conclusion that this appeal lacks merit. It is accordingly dismissed. The judgment of the Court of Appeal, Enugu Division delivered April 11, 2017, CA/E/462C/2015 is hereby affirmed and upheld and appeal dismissed.’
➥ FURTHER DICTA:
⦿ DEFENCE OF ALIBI – VAGUE, RAISED AT THE EARLIEST TIME AFTER ARREST
It is a settled principle that the defence or plea of alibi must not only be raised but must be promptly and properly raised by the suspect to warrant any consideration; that is; it must be mentioned at the outset that the relevant time material to the defence of alibi is the exact time offence was committed. See Emenegor v. State [2010] ALL FWLR (pt. 511) 884. In the instant case, the record of appeal, pages 256, the appellant raised his defence of alibi at the dock. In fact, it must be part of his statement to the police if he were to make any statement; the reason is that, as soon as this plea is raised and reasonable particulars are given, the police or other law enforcement agent is under a duty to investigate the alibi to ascertain its truth or falsity. The duty of Court to consider the alibi depends on how properly it was raised. If it was raised properly, the Court is under a duty to consider it. It is noteworthy that, the defence of alibi is not meant to be used as ploy to send the police on a wide goose chase or divert attention of the police. Although it is the duty of the Prosecution to check on or investigate a statement of alibi by the accused person and disprove it, there is no inflexible or invariable way of doing this. If the Prosecution succeeds in fixing the appellant at the scene of the crime by adducing sufficient acceptable evidence, his alibi is thereby logically and physical demolished and that would be enough to render such plea ineffective as a defence. See Archibong v. State [2006] ALL FWLR (pt 323) 1747 at 1785, Sunday v. The State (2011) ALL FWLR (pt. 568) 922; Uche v. The State [2015] All FWLR (pt.796) 431. In other words, where the piece of evidence at the disposal of the Prosecution, either real or circumstantial or both, are so compelling that the accused person could not have been elsewhere than at the scene of the incident, in this circumstance, there is no need for the prosecution to carry on a goose chase investigation, in order to discharge the burden of plea of alibi. See Olaiya v. The State [2010] All FWLR (pt.514) Above all where the defence of alibi consists of vague accounts which are simply placed before the Courts as make-believe of plea of that defence which are completely devoid of material facts worthy of investigation there would be no need for investigation. See Saka v. The State (2006) All FWLR (pt.335) 148,163. — C.C. Nweze JSC.
⦿ IDENTIFICATION PARADE – EXCEPTION
The appellant’s counsel also raised the issue of identification parade. He stated that there is doubt as to whether the witness’s ability in the midst of the chaos and crowd which were up “1000-3000”. He also argued that PW1 has never seen the appellant after the incident until the day of trial and there is no way he would be able to recognise him. However, my Lords, I agree with the reasoning of the lower Court when it held that: “Identification parade is unnecessary where witnesses claim to have seen a person known to him prior to the incident. There is a difference between I have known him before and I saw him and ‘I saw one of them’ I can recognize him if I see him’. The former is a case of recognition which is distinct from identification and it does not require an identification parade. However, in this case the failure of the police and the prosecution to conduct an identification parade cannot prove fatal because the appellant as I said earlier, was at scene of the crime. There cannot possibly be a case of mistaken identity when the appellant admitted to have visited the crime albeit on a peace mission. In other words, identification evidence is evidence tending to show that a person charged with an offence is the same as the person, who committed the offence. The major dispute in this issue is the fact that he has never met the appellant before, neither does he know the appellant. However, the law is clear that, in a situation where the witnesses did not know the accused/appellant before the incident, identification parade becomes necessary and it should be conducted. See Bozin v. State [1986] 2 QLRN 69. It is also worth bearing in mind that there are exceptions to this rule. For instance, in the case of Ibrahim v. State [1991] 5 SCNJ 129, this Court held that: “Where identification parade will not be necessary; I. where by his confession, an accused person identifies himself as the offender, II. where the offender is apprehended at the scene of crime or pursued immediately thereafter and apprehended III. Where the offender is well known to the witness before the incident. IV. Where the circumstances of the case have sufficiently and irresistibly married the offender to the crime and the crime scene. V. Where a clear case of alibi has been put forward by the suspect. VI. Where there are clear and uncontracting eye witnesses account and identification of the person who committed the offence.” — C.C. Nweze JSC.
⦿ INGREDIENT OF MURDER: WHAT THE PROSECUTION IS OBLIGED TO PROVE
My Lords, the superior Courts in England, Nigeria and other Commonwealth jurisdictions are unanimous on the constitutive ingredients of the offence of murder, as could be gleaned from the applicable Code provisions. Thus, in a charge of murder, the prosecution is obliged to prove: (1) that the deceased person died; (2) that his/her death was caused by the accused person; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. See Woolmington v. DPP [1935] AC 462; Hyam v. DPP [1974] 2 All ER 41; R v. Hopwood (1913) 8 Cr. App. R. 143, [England]. The Nigerian cases on these ingredients include; Akinsuwa v. The State [2019] LPELR-47621 (SC) (Pp 23-25) Para E, The State v. Ali Ahmed (2020) LPELR-49497 (SC) at P.22, para A-B. Madu v. State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v. State [2000] 15 NWLR (pt 691) 467; Idemudia v. State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt. 610) 202; Akpan v. State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607. Elsewhere in the Commonwealth, the Courts have similarly upheld these ingredients. See R. v. Nichols (1958) QWR 46; R v. Hughes (1958) 84 CLR 170; Timbu Kolian v. The Queen (1958) 42 A.L.J.R.; R. v. Tralka [1965] Qd. R. 225, [Queensland, Australia]. Others include: Agboola v. The State (2013) LPELR 20652 (SC), Idiok v. State (2008) LPELR -1423 (SC) at pp. 8-9. The erudite and distinguished jurist cited, with approval, Ubani and Ors. v. State [2004] FWLR (pt 191) 1533, 1545; [2003] 18 NWLR (pt 851) 224; Godwin Igabele v. The State [2005] 3 SCM 143, 151; [2006] 6 NWLR (pt 975) 100; Alewo Abogede v. State [1996] 5 NWLR (pt 448) 270. Text writers are also, agreed on this: C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd 2009) 209 et seq; A G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan; Spectrum Books Ltd, 1988) passim; Archbold’s Pleadings: Evidence and practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passsim; K. S. Chukkoi, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); NIALS Laws of Nigeria (Annotated) Criminal Justice Administration Vol. One (Lagos: NIALS, 2008) 685; M. A. Owoade, Law of Homicide in Nigeria (Ife: Obafemi Awolowo University Press, 1990) 16 et seq; O. Olanipekun, “The ‘Actus Peus’ and ‘Mens Rea’ as Basis of Criminal Responsibility”, in The Lawyer Vol. 13 (1983) 50; M. A. Owoade, “Recurrent Problems in the Mens Rea of Murder: New Basis for Solutions”, in The Advocate Vol. 9 (1983/84) 81-89; P. Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) 194 et seq; S. A. M. Ekwenze, Nigerian Criminal Law Cases: A Synoptic Guide (Enugu: SNAAP Press Ltd, 2006) 330 et seq. However, the Courts have taken the view that the above ingredients must be co-existent or co-eval; that is, they must be co-incident in the sense that the three conditions must co-exist. The effect is that when one of these Trinitarian ingredients is absent, the prosecution would not have discharged its duty. See Ogba v. State [1992] 2 NWLR [pt 222] 16, 168; Idiok v. State (supra) at pages 8-9. — C.C. Nweze JSC.
⦿ THE LAW PRESUMES THAT A MAN INTENDS THE NATURAL CONSEQUENCE OF HIS ACT
This Court still invoked the natural consequence test. According to Katsina-Alu, JSC (as he then was), the law presumes that a man intends the natural and probable consequences of his acts. And the test to be applied in these circumstances is the objective test, namely the test of what a reasonable man would contemplate as the probable result of his acts. See Adamu Garba v. State [1997] 3 SCNJ 68. — C.C. Nweze JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Chima Centus Nweze, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
