3PLR – YOUNG UKAUWA UGURU V. THE STATE

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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YOUNG UKAUWA UGURU

V.

THE STATE

COURT OF APPEAL, PORT HARCOURT DIVISION

9TH JANUARY 2001

CA/PH/151/99

3PLR/2001/288 (CA)

OTHER CITATIONS

[2001] F.W.L.R. (PT. 60) 1517

CHILDREN AND WOMEN LAW: Women and Crime/Justice Administration – Murder – Mother and sisters convicted for assisting son/brother murder a neighbour – How treated

_____________________

BEFORE THEIR LORDSHIPS

IGNATIUS CHUKWUDI PATS-ACHOLONU

MICHAEL EYARUOMA AKPIROROH

ABOYI JOHN IKONGBEH

BETWEEN

YOUNG UKAUWA UGURU
IJEOMA UKAUWA
NWANYI SUNDAY UKAUWA

AND

THE STATE

REPRESENTATION

Egwu Esq.,- for the appellants.

Respondent not presented.

OTHER ISSUES

CRIMINAL LAW – MURDER:- Standard of proof – Duty of prosecution – Nature of evidence required to sustain same

ETHICS – JUDGE:- Duty to be impartial – Whether judge should not do anything to give the impression that he wants a particular person punished by all means – Attitude of appellate court to failure thereto

PRACTICE AND PROCEDURE – COURT:- Duty to be impartial – Need for Judge not to descend into the arena as to give the impression that he wants a particular person punished by all means

PRACTICE AND PROCEDURE – COURT:- Nature of the office of a Judge – Rule that a judge must involve himself in the initiation and direction of criminal prosecution – Justification and Necessity of

PRACTICE AND PROCEDURE – EVIDENCE – CONTRADICTION OR INCONSISTENCY:- Meaning –How determined – Distinction between material and non-material contradiction/inconsistency – Whether there is any duty on defence to cross-examine prosecution witness with regards to any inconsistency in their testimony

PRACTICE AND PROCEDURE – EVIDENCE – CONTRADICTION:- Extra-legal statement and testimony on the face of the court – Where there is inconsistency or contradiction – Duty of Judge thereto – Whether Judge can ignore such inconsistencies because opposing party has not cross-examined the witness with a view to extracting an explanation for the inconsistencies – Duty of party whose witness or record discloses contradiction

PRACTICE AND PROCEDURE – EVIDENCE – CONTRADICTION:- Where a party, or counsel on his behalf, wishes to contradict a witness by reference to a previous statement made by the witness – Need to first draw the attention of the witness to the previous statement particularly the inconsistent portion – Effect of failure thereto

PRACTICE AND PROCEDURE – EVIDENCE – CONTRADICTION:- Where inconsistencies are material enough to affect the credit of the witness – Bounden duty of judge not to ignore them – Whether any belief expressed by a judge in the face of material inconsistencies as to affirm the testimony is a perverse one – Duty of appellate court thereto

MAIN JUDGMENT

ABOYI JOHN IKONGBEH, J.C.A. (Delivering the leading judgment):

On 13/8/85, a Principal State Counsel in the D.P.P.’s division of the Ministry of Justice, Umuahia, then Imo State, now Abia State, filed an information at the High Court, Umuahia. The information alleged that the 1st appellant before us, who was then the sole accused, murdered one Mark Ukeagu. Filed along with the information were the charge sheet, the statement of seven witnesses to the Police and the statement under caution of the 1st appellant. Included among the paper filed was also the report by the investigating police officer (I.P.O.) to his superior. In it he made the observation and expressed the opinion, after reviewing the evidence he had gathered, that –

“The alleged Young Ukauwa Uguru has been arrested and his statement recorded under caution … If we accept the statement of Young, it then means that only himself caused the death of Mark Ukeagu…

A case of murder under section 319 C.C. has been established against him. I am of the opinion that no prima facie case has been made against the other accused and should be discharged.” (Italics supplied.)

(See pp. 1 – 19 of the record of proceedings).

Accordingly the 2nd and 3rd appellants and three others, who had been arrested soon after the death of the deceased, were released. I shall revert to this aspect of the case later in the judgment.

The Ministry of Justice, after studying the police case diary, evidently fully endorsed the opinion of the I.P.O. This is manifested, as was indicated at the beginning of this judgment, by the fact that the ministry presented the information against the 1st appellant alone. It was on the basis of this information and the accompanying papers that the prosecution of the 1st appellant alone commenced.

His plea was taken on 24/2/86. The court (D.E. Njiribeako, J.,) assigned counsel to defend him. Hearing proper commenced on 18/4/86, when three witnesses testified for the State. Further hearing continued on 25/4/86 with the testimony of P.W. 4. After the cross and re-examinations of this witness, the learned judge, suo motu, and without hearing anybody, entered the following order (see p. 26 of the record):

“Court: – In the light of the evidence of this witness, I order for the arrest of the mother of the accused and the sister of the accused. The information should be amended. Case is adjourned to 2nd May for plea.”

The mother and sister of the accused referred to in the order were the 2nd and 3rd appellants. On 2/5/85 the learned State Counsel, Mr. E.J. Ejelonu, duly sought and obtained leave and amended the charge to bring them in. He also gave notice of additional evidence, including the statements to the police of the two new accused persons. On that same date the pleas of the three accused persons were taken. The hearing de novo started on 12/5/86 when two witnesses testified. P.W. 3, who had testified as P.W.4 at the earlier hearing before the learned judge, and based on whose evidence the judge ordered the arrest of the 2nd and 3rd appellants, testified on 16/7/86. Three other witnesses testified and the State closed its case.

The 1st appellant testified under oath in his own defence and was cross-examined. The other two appellants made statements to the court, but not under oath. No other witness testified for the defence.

After hearing addresses by counsel for the two sides, the learned judge delivered his judgment on 20/9/88. In it he made a meticulous recapitulation of the evidence of each witness, both in-chief and in cross-examination. At the end of that exercise he made an equally meticulous and critical analysis of the unsworn statements the 2nd and 3rd appellants made before him and the ones they had made to the police and made the following observations and findings of fact:

“It is easy to see that the incident which 3rd accused narrated in her statement exhibit C is totally different from what the 1st accused painted in his own statement ….” (P. 76 of the record.)

“The account of the incident as given in court by the accused and summarised above, followed yet a totally different pattern.

There is no doubt at all in my mind that the accused persons are in considerable difficulty to fashion a story that will reasonably explain why 1st accused should give the deceased a matchet blow. I watched their antics in court and they impressed me as liars. I do not find any truth whatever in their varying accounts of the events of that fateful day.

The truth in this case was that the deceased was drawing attention of his neighbour that his son was in the habit of using his home as a rendezvous for boys of very questionable character in the neighbourhood. The 1st accused in order to show his displeasure for that report descended on the deceased with a matchet. The deceased raised alarm which attracted P.W. 3 to the scene to save his father but the 1st and 2nd accused stopped him and effectively blocked all attempts to rescue the deceased. The 1st accused was enabled thereby to continue dealing matchet blows on the deceased until he fell.

I accept the evidence of P.W. 3 Augustine Ukeagu that when he ran to the scene and saw his unarmed father receiving matchet blows from 1st accused he desperately tried to stop the 1st accused but 2nd and 3rd accused effectively stopped him thus allowing 1st accused to deliver more blows until the deceased fell. I accept the evidence that it was when the deceased had fallen that 2nd and 3rd accused then left P.W. 2 and took to their heels. P.W. 2 Godwill Onwuegbuchula Ndukwe was an eye witness of the incident and I believe his evidence. He was very surprised to see 1st accused dealing matchet blows on the deceased who had no weapon on him and he also saw 2nd and 3rd accused as they were struggling with P.W. 2……

The 2nd and 3rd accused by effectively blocking the efforts to restrain the 1st accused from giving matchet blows on the deceased, enabled him to deal those fatal blows which lead to his death. Indeed it may well be that but for their act, 1st accused may only have succeeded in inflicting grievous harm on the deceased. In the circumstance the 2nd and 3rd accused are as much guilty of the offence as the 1st accused.” (Italics supplied) (p.78 – 79 of the record).

Then, at page 80, he concluded –

“I am satisfied from the evidence before me that the prosecution has proved beyond reasonable doubt the offence of murder as enunciated in either section 316(a) or (b) reproduced above against the 1st accused and by virtue of section 7(b) C.C. the 2nd and 3rd accused are equally guilty of the offence as the 1st accused. In the final result I find the three accused guilty of the offence of murder contrary to section 319(1) C.C.”

He then sentenced each of them to death.

It can thus be seen that the learned judge found the involvement of the appellants in the incident that led to the death of the deceased on the evidence of P.W. 2 and P.W. 3, the only two eye-witnesses. It is also clear, from the portions of the judgment that I have italicised, that the judge based his decision against the appellants also on the fact that (1) there were inconsistencies and other discrepancies in the stories told variously by them, and (2) their demeanour in court was consistent with the fact that they were lying.

Aggrieved by his/her conviction and sentences, each accused person has appealed to this court, Mr. C.O. Akpambgo, S.A.N., has raised the following three issues in the appellants’ brief for determination by us:

“(i) Was the trial judge right to have convicted and sentenced to death the 2nd and 3rd on the grounds that they come within the provisions of section 7 of the Criminal Code?

(ii) Did the learned trial judge consider the defence of the appellants?

(iii) Did the prosecution prove its case on that burden explicit under section 138 of the Evidence Act?”

Mr. A.M.O. Onukaogu, the learned D.P.P. of Abia State, who prepared the respondent’s brief, adopted these three issues.

The first issue, and the additional ground 1 on which it was based, relate only to the 2nd and 3rd appellants. It was the submission of Mr. Akpamgbo, S.A.N., that the learned trial judge was in error to have convicted them. Learned senior counsel pointed out that neither P.W. 2 nor P.W. 3, on whose evidence their convictions were based, mentioned in his statement to the police, as he did in his evidence before the court, that they blocked attempts to rescue the deceased from the murderous attack by the 1st appellant. Learned senior counsel pointed out also that P.W.2 did not say anything in his earlier testimony before the judge about the 2nd and 3rd accused persons blocking any attempts to save the deceased from the 1st accused. It was the learned senior counsel’s submission that the judge should have weighed the evidence in court of these witnesses against their respective statements to the police and, in the case of P.W.2, his earlier evidence before the judge. Had the judge done this, senior counsel argued, he would have seen that their evidence in court was most unreliable. Learned senior counsel cited in support Rex v. Golder & Ors. [1960] W.L.R. 1169, and Onubogu v. State [1979] 9 S.C. 1, at17.

On this point, Mr. Onukaogu, the learned D.P.P., evidently has not contested the suggestion by the Senior Advocate that the judge ought to have weighed the evidence of P.W 2 and P.W.3 in court against their statements to the police. He, however, made a two pronged response. He submitted, firstly, in effect, that there was no discrepancy between the evidence of the two witnesses in court and their previous statements. It was his contention that what the witnesses, particularly P.W.3, did was to elaborate in court on their statements to the police. This, counsel pointed out, is permissible as “It is consistent with common sense that a witness is not bound to state on oath only what he stated in his statement to the police” and “Testimony in court is not a recitation of the statement earlier made to the police. A witness is allowed to elaborate on what he stated in his statement to police by stating more relevant facts provided he can give reasonable explanation for doing so if so required.” He cited in support Ajao v. State [1984] 12 S.C. 1,at 12 – 13.
The second part of his answer is as follows:

“… where a witness says in court something different from what is contained in his statement to the police he should be cross examined with the statement to the police in order to get an explanation for the inconsistency. Where there is such an explanation like in Adebowale Ajao’s, case (supra), the explanation required in Agwu v. The State has been met. The explanation comes by way of cross-examination. The appellants throughout the trial were represented by counsel. P.W. 3 was never confronted with this earlier statement to the police and cross-examined with it in view of his testimony in court that the 2nd and 3rd appellants blocked him from rescuing his father which was not contained in his earlier statement to the police. This issue which relates to the credibility ought to have been raised at the lower court and not on appeal. Therefore as the issue borders on credibility the trial court is the best and undisputed judge.”

He cited in support Nasamu v. The State [1979] 6 – 9 S.C. 153, at 161.

I think I should record a short observation before I express my view on the submissions by counsel on this aspect of the case. Although the statements of P.W. 2 and P.W. 3 that Mr. Akpamgbo, S.A.N., says are inconsistent with their evidence in court were among the papers filed with the information, they were not formally admitted in evidence. As I pointed out earlier on, however, the learned D.P.P. was of the same view as the Learned Senior Advocate that notwithstanding the non-formal admission in evidence of the statements the learned judge was entitled to look at them when considering the credibility of the witnesses concerned. At first this stance agitated my mind. But then, this point has not been made an issue before us. In the circumstances of this case, I must agree with both counsel, especially as there appears to be support for the stance in the authorities. In Ajao’s case, (supra), there was no indication that the statements of the witnesses in question were formally put in evidence. Indeed, Coker J.S.C., in his lead judgment made it clear at p.786 that the inconsistency in question was between the witness’s evidence in court and “his statement (or proof)”. Karibi-Whyte in his concurring judgment made the point even clearer. He said the paper in questions was “the proof of evidence served on the accused.”

I should, I think, take the second leg of the learned D.P.P.’s answer first.

I do not think it is a correct statement of the law that in every case “where a witness says something in court different from what is contained in his statement to the police he should be cross-examined…. in order to get an explanation for the inconsistency.” With all due respect to the learned D.P.P., I think he has stated the proposition more widely than the Evidence Act has provided for, and than is supported by the authorities. What, in my understanding, the Act has stipulated is that where a party, or counsel on his behalf, wishes to contradict a witness by reference to a previous statement made by the witness, he must first draw the attention of the witness to the previous statement particularly the inconsistent portion. See sections 198 and 209. Where the party for whom the witness testifies puts forward two inconsistent stories, one in an extra judicial statement of that witness and the other in his evidence in court, I think the burden should be on that party to explain the discrepancy. I do not think the other party has any obligation to ask for the explanations. The fact that the other party did not cross-examine the witness does not, in my view, relieve the first party of explaining the discrepancy apparent in the information supplied by the witness on the two different occasions if that party expects that witness to be believed. When the judge is considering the credit due to that witness he is, in my view, bound to have regard to such apparent inconsistencies. If the inconsistencies are material enough to affect the credit of the witness the judge cannot be excused for ignoring them merely because the other opposing party has not cross-examined the witness with a view to extracting an explanation for the inconsistencies. The mere fact that the judge has uttered what some have come to regard as the magic words, “I believe this witness”, does not end the matter. Any belief expressed by a judge in the face of material inconsistencies in the stories by the witness in respect of whom the belief has been expressed is a perverse one and this court will not allow it to stand.

This must be so especially in a criminal trial where the state has the burden of proving the guilt of the accused beyond all reasonable doubt. In such a case, the state cannot, in my view, take refuge behind the fact that the accused has not asked the witness to explain the apparent inconsistency between his earlier statement and his evidence in court.

The next questions that naturally arises, and which relate to the first leg of the D.P.P.’s answer, are (1) whether or not P.W. 2 and P.W.3 had told inconsistent stories, and, if so, (2) whether or not the inconsistencies were material enough to affect their credit as witnesses. It becomes pertinent at this point to see what the witnesses said in their previous statements and in their evidence in court. P.W. 2 made his statement on 16/3/85, six days after the alleged attack on the deceased and two days after the latter’s death. The relevant portion reads (p.9 of the record):

“On Sunday 10th of March, 1985, at around 8.00 p.m. I was on my way to collect my records from a brother in the village. I heard some noise as if people were quarreling. So, I stopped and listened to hear what the noise was for. The noise kept on going high, so I rushed to that particular place and saw Mr. Young Ukauwa seriously cutting Mr. Madukiro Ukeagu with a cutlass. By then Madam Mgbaraonye Ukauwa and the two daughters were beating the man too. So, I rushed the boy (Mr. Young Ukauwa) and held him by the hand which was holding the knife with. I dragged him into the gutter, and succeeded in snatching the knife from him. I then ran to hide the knife, after which I came back and helped to carry the man to his compound, where we were before a motor car came and carried him to the hospital.

In the present of God almighty, this is just all I know about the whole thing. I succeeded in snatching the knife away from Master Young Ukauwa with the assistance of Mr. Sunday Isiocha. This is the knife I recover from him, which I have handed over to the police.”

(Italics supplied)

His testimony before the learned judge on the first occasion (as P.W. 3) is on pp 22 – 24 and the relevant portion (p.23) reads:

“Sworn on Bible states in English. My name is Godwill Onwuegbuchalam Ndukwe. I live at Akpai Obiohuru. I am a radio technician. I know accused. On the 10th March, 1985, about evening time, I was in my village. I was going to collect a record from a friend in the village when I had voices. The noise suggested quarrelling. The noise was from the direction of the village square. I stopped to hear what was being said. I was about 40 metres from the village square. When the noise continued and it became more intense I started to move toward the village square. As I was going I saw crowd. I saw a man hitting someone in the ground with what looked to me like a piece of wood. I hurried. As I got there I heard a sound of a matchet and at once I knew that what I thought was wood being used on the man on the ground was not wood but matchet. I shouted, is this boy using a matchet on someone? I got there. The man on the ground was not moving and could not talk. I tried to carry him with the help of other people there. Sunday Isiocha was one of those who helped to lift the man. One Madam Mgbaraonye and her two daughters were fighting one Augustine Chidiebute Ukeagu and his sister, beside the man who was already on the ground. As I and other tried to carry the man on the ground Chidiebube also came to help. As he bent down to help someone gave him a matchet cut at the left shoulder. He shouted and we dropped the man we were trying to help and rushed on the assailant. As we tried to hold him he wielded the matchet he held and we dodged. We made the second attempt and held him, and eventually disarmed him and I took the matchet. I hid the matchet. The accused was the assailant who attacked Chidiebube Ukeagu. The assailant i.e. the accused was the person I saw who dealt matchet blows on the man on the ground.”
(Italics supplied)

His testimony before the learned judge on the second occasion, which is the subject of this appeal, is on pp. 39 – 40. On the point under discussion he testified that on arrival at the scene, he –

“also saw the 1st, 2nd and 3rd accused and other not in court. She is Ebere a sister of 3rd accused. They were struggling. The four persons i.e. 1st, 2nd and 3rd accused and Ebere not in court were beating Chidiebube and his sister.”
(Italics supplied)

P.W. 3 made two statements to the police, one on 14/3/86 and another on 16/3/85. The relevant portion of the first (P.6) reads:

“I above named and address freely elects to state as follows: On Sunday the 10th day of March 1985 at about 200hrs. some people visited my father from Umuokehi, after discussing with them he went and escorted them. On his way back he saw one Micca Ikpeama as he was discussing with Micca Ikpeama his son Osadebe Ikpeama came and hold my father on his shirt, as Osadebe was holding my father.

Young Ukauwa came and gave my father a matchet cut on the head and he fell down then Ikwudimuko Ukaua also gave him matchet cut on his head and back. Mgburuonyeuvaya Ukauwa and Ebere Ukauwa hit him with pistle (sic) on the chest, Onyekachi Ukeagu then him with block on the chest. When I went in to rescue my father Young Ukauwa also gave me a matchet cut on my left shoulder and they all ran away. When I chased them to their house and did not see them I pushed down their two houses and burnt down all the properties in the house I also damaged the doors and windows in their uncompleted building. I was the only person who caused the whole damages in their houses. I also recovered the axe and matchet which Ada Ukauwa used on my father. The matchet cut on Ada Ukauwa’s both hands was given to her by themselves. I damaged those properties out of provocation because my father was almost dead that time.” (Italics supplied)

This witness had, as has been seen testified before the learned judge as P.W. 4. I think I should reproduce the entirety of his earlier testimony on that occasion, since that was what had prompted the learned judge to order the arrest of the last two appellants. At pp. 25 – 26 he testified:

“Sworn on bible states is Ibo. My name is Augustine Ukeagu. I live at Akpahi Obiohuru in Umuahia. I am jobless but I farm. I know the accused. I know Mark Ukeagu the deceased. He was my father. On 10th March, 85 about 8p.m. I was at home when three persons came to see my father, the three persons were Orji, Lewechi and Ihejuobi. After discussing with my father, he led them out. I and my sister Christiana were in the house when my father led out the visitors. My father held a torch and wore a pair of French suit. About 8.15 p.m. I heard my father shouting, “Anwuonam! Anwuonam!” This is the cry of someone in great distress or in great danger. The cry came from the direction of the village. I recognised the voice very clearly to be my father’s voice. My sister and I immediately ran towards the village square. When we arrived at the square I saw the accused his mother and accused’s sister called Ebere surrounding my father who was then on the ground. The accused held a matchet and was dealing matchet blows on my father. I shouted and called on my father but he could not speak. I tried to prevent the accused from dealing more blows on my father. He hirned (read turned?) on me and started to waive the matchet at me. Just then some other people came to the scene. And they tried to help rescue my father and I also tried to lift my father the accused gave me a matchet cut on my left shoulder. Those who tried to help my father left him and tried to disarm the accused. The accused was wantelly (sic) disarmed. The accused ran away but I pursued him. He ran into his home and flied through the backyard. When my father fell the mother of the accused and Ebere the accused’ sister ran away. I later returned to where my father was but I did not see him. He had been rushed to the hospital. I went immediately to the police and lodged a report. The matchet recovered from the accused was handed over to the police. I was later taken to a private hospital, Ukelonu’s hospital where I was treated. My father later died on 14th March at the Hospital.

Cross-examination by Imo:

You and your father attacked the accused at the village square on the evening of 10th March alleging that he is a thief.
This is false. We did not attack the accused at all. I was not at all with my father at any time at the village square that day.
You beat up the accused.
No.
You also beat up the accused’s sister called Nwanyisunday.
This is false.
Your father had been complaining about the association between Osadebe and the accused.
I do not know. I was not present when my father was conversing with accused’s father. I did not known if the accused tried to fight my father. I did not take part in any fight.
The accused gave your father matchet blows when your father gave the accused’s sister a matchet cut.
This is false.
But the matchet used by the accused was left in the accused’s house.
It was recovered from the accused when he was disarmed.

By Court: to counsel. Where then is the matchet.

Counsel: the accused left the matchet there and ran away.” (Italics supplied.)

In his evidence on the second occasion (pp. 42 – 43) he testified that on his arrival at the scene in company of his sister he saw that the 1st appellant had felled their father with matchet blows that he was raining on him and that –

“… the 2nd and 3rd accused blocked all other attempts to stop further blows by 1st accused. When I tried to stop the 1st accused, the 2nd and 3rd held me. While we were struggling first accused continued to deal blows on my father. When they saw that my father had felled the 2nd and 3rd accused ran away leaving the first there.”

(Italics supplied)

As can be seen from the italicised words, this witness had stated on 16/3/85 that when he rushed to the scene and saw the 1st appellant cutting the deceased with a matchet, he also saw Madam Mgbaraonye (presumably 2nd appellant) and two of her daughters) (one of whom was presumably the 3rd appellant) also beating the deceased. On the first occasion when he testified before the learned judge he stated that when he got to the scene he saw Madam Mgbaraonye and co “fighting one Augustine Chidiebute Ukeagu and his sister beside the man who was already on the ground.” When he stated in his evidence before the judge on the second occasion that he saw the three appellants and Ebere struggling, and beating, Augustine Chidiebute he was clearly elaborating on his earlier statement in evidence on the first occasion. He was giving a few more details of the fight he had referred to on the earlier occasion.

But can one say the same thing about his statement on the one hand and his statement to the police? As has been seen, the learned D.P.P. says one can. With all due respect to him, I do not think so. To elaborate on a statement is to describe or explain the subject-matter of that statement in greater, details. A details is a small individual particular item or aspect of something. A general statement that one ground of persons was fighting another group can be elaborated upon by the statement that the first ground was struggling with and beating the second group. The second statement describes the particular facts that, to the speaker, constitutes what he described in the 1st statement as “fighting”. Where, however, a witness states that he saw some people beating a man and later, in describing the same scene, states that what he saw was the same people beating a different person, I do not think that one can properly say that he has elaborated on the earlier statement. The two statements are disparate and the one cannot be said to an item or aspect of the other. The one cannot, therefore, be said to be an elaboration on the other. The statement said to be elaborated on must be related to the elaborating statement.

In my view, neither of the statements made by P.W. 2 in his evidence in court can be said to be an elaboration on his statement to the police. What he said in court about the appellants was completely different from what he said about them in his statement to the police. In the circumstances, I must say that there was a discrepancy or an inconsistency between his statement to the police and his evidence in court as it relates to the part allegedly played by the 2nd and 3rd appellants in dealing with the deceased.

I hold the same view of the evidence of P.W. 3 viewed against the background of his statements to the police. Like P.W.2, he had told the police in his first statement to them that the 2nd appellant and her daughters joined the 1st appellant in beating the deceased. He even added more detail to his version. According to him –

“Mgburuonyeuwaya Ukauwa and Ebere Ukauwa hit him with pistol (sic) on the chest, Onyekachi Ukeagu then hit him with block on the chest.”

Again in his evidence before the learned judge on the first occasion he said about the same thing:

“When we arrived at the square I saw the accused his mother and accused’s sister called Ebere surrounding my father who was then on the ground.”

The statements made here about the 2nd and 3rd appellants are, in my view a far-cry from that made by this witness in the trial that resulted in this appeal that –

“My father had fallen and the 2nd and 3rd accused blocked all other attempts to stop further blows by 1st accused. When I tried to stop the first accused, the 2nd and 3rd held me. While we were struggling first accused continued to deal matchet blows on my father. When they say that my father had fallen, the 2nd and 3rd accused ran away leaving the 1st there.”

This certainly could not have been an elaboration on the statement to the police on the point it covers. It clearly raises a different allegation against the 2nd and 3rd appellants from that he raised against them in his statements to the police.

Now, should the learned trial judge have ignored these inconsistencies or discrepancies between the evidence in court and the statements to the police of these two witnesses? Could his belief in P.W. 2 and P.W. 3 without considering these discrepancies not have affected his judgment?

With the utmost respect to the learned judge, I think he was wrong to have proceeded the way he had especially having taken an almost undue note of such discrepancies in the evidence of the 2nd and 3rd appellants. As I noted earlier in this judgment, before a judge can properly accredit a witness he must take note of all other statements properly brought to his notice that the witness had made on every point under consideration. If the prosecution credits one of its witnesses with two accounts of one incident that cannot co-exist, and no reasonable explanation has been offered for the discrepancy, no judge can reasonably claim that the evidence of the witness has induced belief in him. For instance, in the case on appeal, when the learned judge said he believed the evidence of PW2 which version of his accounts did he believe?

Was it the version that said that on arrival at the scene he saw the 2nd and 3rd appellants and Ebere beating the deceased. Or was it the version that said he saw them beating PW3. Neither this witness nor PW3 suggested, so it cannot be supposed, that both incidents, i.e., beating the deceased and the fighting with PW3 took place that day. Even if they had done the prosecutor had the duty of clarifying the air. But as it is, we cannot just assume that that was the case.

Surely, had the judge given the allegation against the 2nd and 3rd appellants by PW2 and PW3 its due consideration in the light of the unexplained apparently different account given by them earlier, he would have been slower in placing so much store on their evidence. Choosing to believe and relying on their evidence to make the damaging findings against the 2nd and 3rd appellants has rendered his decision perverse.

Now, if one discounts the evidence of PW2 and PW3 upon which the learned judge relied to convict the 2nd and 3rd appellants, all that is left is that these appellants were merely present at the scene. There is no evidence that they did anything to the deceased. There is left no evidence that they aided or in any way abetted anybody to cause the death of the deceased. In the circumstances, I must resolve the first issue in their favour and agree with Mr. Akpamgbo, S.A.N., that the learned trial judge was in error to have convicted this set of appellants under section 7 of the Criminal Code at all.

Before I leave this aspect of the case, I must comment on the manner in which the learned judge had involved himself in the prosecution of the 2nd and 3rd appellants. I deliberately set out at some length at the beginning of this judgment how both the police and the D.P.P.’s went through the case diary and found no case at all against them. I pointed out also how the judge, without any application by anybody but purporting to be acting on the evidence of PW3, who on the initial occasion had testified as P.W.4, dragged them into the case. I deliberately set out the entirety of the evidence of this witness to show how deficient it was in support of the Judge’s move to bring them into the case. I highlighted, by italics, the only part of it that said anything about these appellants. All that was said there, as has been seen, was that when the witness arrived on the scene he saw the 1st appellant, his mother, the 2nd appellant, and Ebere surrounding his father who was then on the ground. I do not see what offence in law that could have constituted. He did not even say anything about the 3rd appellant. Yet, the judge found enough license in his evidence to put her through a totally uncalled – for and unfair prosecution. Having thus brought them in, he found evidence, where there was absolutely none, to ensure their conviction. It was easy for him to look into the proofs of evidence, though not formally admitted in evidence, to scrounge for evidence against them. It was only by reference to that source that he was able to determine that Madam Mgbaraonye and the 2nd appellant were one and the same person. It was also from that source that he learned that P.W. 3, Augustine Ukeagu, was the same person as Chidiebube or Chidiebute. Yet he did not find it relevant to look in that same source and bring out the obvious discrepancy between the previous statements of P.W.2 and P.W.3 and their evidence in court. No judge should, as the learned judge in this case has done, do anything to give the impression that he wants a particular person punished by all means. The judge has no business whatsoever directing who should and who should not be brought before him for prosecution and what charge should or should not be framed.

The very nature of the office that the judge occupies forbids him to involve himself in the initiation and direction of criminal prosecution. Lack of initiative in originating proceedings is one of essential characteristics or attributes of judicial power. There is no power in the court to initiate proceedings. It must wait until it is moved for that purpose by an interested party, no matter how obvious and flagrant the infraction of the law. This is recognised by both the moslem and common law systems that operate in this country. Thus in Mafindi v. Sokoto N.A. [1956] N.R.N.L.R. 41; Duru v. Gumel N.A. [1975] N.R.N.L.R. 151 and Ogoja v. Adamawa N.A. [1958] N.R.N.L.R. 35, where alkalai courts convicted persons of offences in respect of which nobody had complained, moslem assessors who had sat with the Northern Regional High Court advised the court that the alklai courts were wrong to have embarked on a trial of the persons for the offences of which they were convicted without a complaint having been made by somebody in respect of those offences. The court accordingly quashed their convictions.

The rationale for keeping matters in this state was succinctly stated thus by Prof. Nwabueze on p. 49 of his book Judicialism in Commonwealth Africa:

“It is eminently sensible and politic that the court should not intervene in disputes except at the instance of a complainant. A meddlesome judiciary poses the danger of abuse … and is well calculated to undermine, if not destroy, the court’s popular image of an impartial, disinterested arbiter between contestants in a dispute. It is this posture of impartiality and disinterestedness that makes a decision … tolerable …”

Provisions for the initiation of criminal proceedings are contained in Parts 6 – 8 of the Criminal Procedure Law, Laws of Eastern Nigeria, 1963. Section 57, which generally authorises the court to hear criminal cases only empowers the court ” to cause to be brought before it any person who … is charged with an offence.” Section 59 makes abundantly clear that the initiative lies with persons or authorities other than the court. This clearly prescribes that someone must have made a complaint against the person charged. The power given to the court is to secure the presence of that person before it, it is not power to initiate the accusation against that person.

I now came to the second and third issues, which can conveniently be taken together. The complaints here relate essentially to the 1st appellant alone. In substance, the complaint was that the learned trial judge did not consider the defence of provocation and self-defence suggested by the evidence of the three appellants. The learned Senior Advocate drew attention to their evidence to the effect that the deceased drew the first blood by aiming a matchet blow at the 3rd appellant, although missing her, and that the 1st appellant only used his own matchet thereafter. The learned Senior Advocate complained bitterly that the observation by the judge that the appellants were liars had hardened him up against them and “foreclosed any consideration of the defence of the appellants”. It was his submission that “on the totality of the evidence adduced when weighed against that of the appellants, the prosecution did not prove its case on that burden explicit in section 138 of the Evidence Act.”

Not unnaturally, the learned D.P.P. was of the contrary view. According to him, the evidence, which the trial judge accepted, justified his conclusion that the State had proved a case of murder beyond all reasonable doubt.

Now, we have seen that the learned judge accepted the evidence of P.W. 2 and P.W.3, the two eye-witnesses to the incident, that they saw the 1st appellant dealing matchet blows on the deceased. Did the evidence before him support this stance?

I have carefully gone through the evidence of these two witnesses. They testified positively that they saw the 1st appellant dealing matchet blow after matchet blow on the deceased, even after the latter had fallen to the ground and was evidently out of the fight. This testimony was consistent with what they had told the police in their statements and in their evidence before the judge on the first occasion. The appellants themselves agreed that the 1st appellant used his matchet on the deceased. I see no reason to disagree with the learned judge on his findings of fact here my quarrel with his findings against the 2nd and 3rd appellants does not apply here. As I pointed out, they were consistent in the story as it relates to the 1st appellant right from the beginning.

What remains to be investigated is whether or not a miscarriage of justices has been occasioned by the judge not specifically referring to the defences of provocation and self-defence. With all due respect to the learned Senior Advocate, I do not think that any miscarriage of justice has been occasioned to the 1st appellant in the way the judge has handled the case against him. It is true that he did not specifically say he was considering the defences in respect of which complaint has been raised. It is equally true, however, that he did consider the manner and the circumstances in which the blows had been delivered. In my view, his acceptance of the story as told by P.W.2 and P.W.3 and the rejection of that told by the appellants was an automatic rejection of the defences suggested by the evidence of the latter and, considering the evidence he was justified in such acceptance and rejection. The fact that the judge made no specific mention of those defences is, in my view, immaterial in the circumstances. As I indicated earlier on, I have no reason to quarrel with his preference for the prosecution story to the defence’s.
In all the circumstances, I see no merit in the appeal as it relates to the 1st appellant.

His appeal is accordingly dismissed. His conviction and sentences are confirmed. The appeals by the 2nd and 3rd appellants, however, succeed and are allowed. Their convictions and sentences are set aside. In their place I enter an acquittal for each of the two.

IGNATIUS CHUKWUDI PATS-ACHOLONU, J.C.A:

I have read the judgment in draft of my learned brother Ikongbeh, J.C.A. and I agree with him. The court below used two unharmonised statements and evidence of 2 prosecution witnesses to convict the 2nd and 3rd appellants who he roped in on the strength of the evidence of one of the prosecution witnesses at the earlier trial.

In all trials particularly in criminal trials the court must not be seen to appear to look for excuses to shore up the case of the prosecution to get a conviction. Such an attitude of ignoble practice would portray the court as anything but impartial arbiter. It is indeed reprehensible for any court to manifest or demonstrate any attitude that shows untoward tendency to get conviction for the prosecution at all costs. In that case the court would have turned itself into a prosecutor and persecutor.

MICHAEL EYARUOMA AKPIROROH, J.C.A:

I have read in advance the judgment just delivered by my learned Ikongbeh, J.C.A. I agree with the reasoning and conclusion reached by him. I also dismiss the appeal of the 1st appellant and allow the appeals of the 2nd and the 3rd appellants.

I abide by the orders made by him.

CASES CITED IN THE JUDGMENT

Agwu v. The State (1965) NMLN 1.

Ajao v. State (1984) 12 S-C 1.

Duru v. Gumel N.A. (1957) N.N.L.N. 151.

Mafindi v. Sokoto N.A. (1956) N.M.N.L.R. 41.

Nasamu v. State (1979) 6- 9 SC 153.

Ogoja v. Adamawa N.A. (1958) N.M.N.L.N. 35.

Onubogu v. State (1979) 9 S-C 1.

Rex v. Golder & Ors. (1960) W.L.R. 1169.

STATUTES REFERRED TO IN THE JUDGMENT

Criminal Code; sec. 7, 319 (1), 316(a).

Criminal Procedure Law, Laws of Eastern Nigeria 1963 sec., 57, 59.

Evidence Act, sec. 198, 209.

YOUNG UKAUWA UGURU

V.

THE STATE

COURT OF APPEAL, PORT HARCOURT DIVISION

9TH JANUARY 2001

CA/PH/151/99

3PLR/2001/288 (CA)

OTHER CITATIONS

[2001] F.W.L.R. (PT. 60) 1517

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CHILDREN AND WOMEN LAW: Women and Crime/Justice Administration – Murder – Mother and sisters convicted for assisting son/brother murder a neighbour – How treated

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BEFORE THEIR LORDSHIPS

IGNATIUS CHUKWUDI PATS-ACHOLONU

MICHAEL EYARUOMA AKPIROROH

ABOYI JOHN IKONGBEH

BETWEEN

YOUNG UKAUWA UGURU
IJEOMA UKAUWA
NWANYI SUNDAY UKAUWA

AND

THE STATE

REPRESENTATION

Egwu Esq.,- for the appellants.