3PLR – MOMO NWA UGWU AND ANOR. V. THE QUEEN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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MOMO NWA UGWU AND ANOR.

V.

THE QUEEN

FEDERAL SUPREME COURT OF NIGERIA

F.S.C. 111/1963

23RD SEPTEMBER, 1963.

 

BEFORE THEIR LORDSHIPS

SIR LIONEL BRETT, AG. C.J.F. (Presided)

SIR CLEMENT NAGEON DE LESTANG, C.J., (Lagos)

SIR SAMUEL OKAI QUASHIE-IDUN, C.1., (W.N.) (Read the Judgment of the Court)

 

BETWEEN

1. MOMO NWA UGWU
2. ALBERT OMEKE IDOKO

AND

THE QUEEN

 

REPRESENTATION:

Not recorded in the Judgment.

 

MAIN ISSUES

CRIMINAL LAW AND PROCEDURE:- Murder – Proof thereof – Whether conviction can be sustained on the evi­dence of a single witness without corroborative evidence – Propriety

CRIMINAL LAW AND PROCEDURE:-  Murder – Proof – Corroboration of evidence – Subsequent events and conduct used as corroborating evidence by trial court – Propriety of – Attitude of appellate court

CRIMINAL LAW AND PROCEDURE:- Murder – Proof of motive – Whether necessary

CHILDREN AND WOMEN LAW:- Widow – Women and Murder – Women and justice administration – Murder of husband by 3^rd party– Role of woman in securing investigation of husband death and as prosecution witness – How treated

PRACTICE AND PROCEDURE – EVIDENCE:- Corroboration – Subsequent events used as – Propriety of

 

 

 

 

 

MAIN JUDGMENT

QUASHIE-IDUN, C.J., (Western Nigeria) (Delivering the Judgment of the Court):

The two appellants were convicted of the murder of one Mama Ugwu by the High Court Holden at Nsukka and they have appealed against the convictions.

 

The evidence on which they were convicted are briefly as follows:­

 

On the night of the 29th of May, 1962, the appellants went to the house of the 4th Prosecution Witness, Chukwuma Ossai. According to the witness, the 1st Appellant was holding a torch-light and a piece of iron while the 2nd appellant held a stick.

 

The 1st Appellant asked the witness to call the deceased for him. Wit­ness went to the deceased’s house which was about 100 yards away, and came back with the deceased. The 1st appellant requested the deceased and the witness to go out with him as he said he had something to tell the de­ceased. When they left the house, the deceased was in front followed by the 1st appellant who was followed by the 2nd appellant; witness was at the rear. The witness saw the 1st appellant hit the deceased on the head with the ob­ject he was holding. The 2nd appellant also joined in the attack by hitting the deceased with a stick. The witness was afraid and ran back into his house. On the next day, the 1st appellant went to the witness’s house and swore that if the witness revealed what he had seen, it would cost him (the witness) his head. The 1st appellant then told the witness that he was going to Nsukka to report that the deceased had died from stomach ache.

 

Evidence was given by the 3rd Prosecution Witness, Eze Nwugwu, full brother of the deceased and by the 8th Prosecution Witness, Iganyi Uruama, wife of the deceased, that after the body of the deceased had been disco­vered in the bush the 1st appellant took them to the Police Station, Nsukka on the 29th May and that after he had had a conversation in English with somebody, 1st appellant asked the witnesses to tell the Police that the de­ceased had died from stomach trouble. After the two witnesses had been threatened by the 1st appellant that if they did not make the report as suggested by him he would kill them on the way, they did so and sub­sequently the body was buried.

 

The 2nd Prosecution Witness, Michael Okon, an Assistant Superinten­dent of Police also gave evidence that about 7 a.m. on the 30th of May, 1962, the 1st appellant came to him at his house and told him that on the previous day he had gone to the Police Station to make a report that his brother who had stomach trouble for a long time had died and that he wished to make the report before burial. The Police Officer said that he told the 1st appellant that it was all right. When the Officer later checked up about the report made to the Police, he found that the report was not made by the 1st appel­lant but rather by a woman and another man. In consequence of a letter re­ferred to the Assistant Superintendent of Police by the District Officer the 2nd Prosecution Witness obtained an exhumation order. The body of the de­ceased was exhumed by the Medical Officer, Moses Ozoh, the 1st Prosecu­tion Witness, who also performed a post-mortem examination on it. Ac­cording to the doctor, the deceased died from shock resulting from a frac­tured skull which could have been caused by a blunt and heavy object; also that the injury must have been inflicted from the closest proximity.

 

When the 1st appellant was charged and cautioned, he made a state­ment to the Police in which he said that after the body of the deceased had been discovered in the bush he accompanied the 3rd and 8th prosecution witnesses to Nsukka to make a report to the Police. But at Nsukka he drop­ped at the lorry park to arrange for transport to take them back while the 3rd and 8th prosecution witnesses went to the Police charge office to make the report. He said that when he saw the deceased’s body in the bush he did not see any injury or blood on it. He had made the suggestion that a report should be made to the Police because the deceased had died in the bush in­stead of dying in his house.

 

The 2nd appellant was also charged and cautioned. In his statement to the Police he denied having known the deceased prior to his death. He saw the deceased for the first time when he heard of his death and went to sympathize with the 1st appellant and the relatives of the deceased.

 

Both appellants gave evidence at the trial. In his evidence, the 1st ap­pellant denied having killed the deceased and said that the people who gave evidence for the prosecution have grievances against him. He admitted that he told the Police Officer that he did not know the cause of the death of the deceased and also that the deceased had suffered from stomach ache; but de­nied that he told the officer that his brother had died from stomach ache. He also denied that he instructed the 3rd and 8th prosecution witnesses to tell the Police that the deceased had died from stomach ache. He said that on the night the deceased died he slept with one of his eleven wives. Nsenobi Og­buabo who gave evidence for the husband said that she slept with the 1st ap­pellant on the night in question and that as far as she knew, her husband did not go anywhere in the night.

 

The second appellant also denied in his evidence that he took part in kil­ling the deceased. He said that the 4th prosecution witness who testified against him was his enemy.

 

In this Court a number of grounds of appeal was filed on behalf of both appellants.

 

On behalf of the 1st appellant the following grounds were ar­gued:­

1. The learned trial Judge erred in law as to his opinion on the plea of alibi set up by the 1st accused person.
2. The learned trial Judge did not give sufficient consideration to the defence set up by the 1st accused.
3. The learned trial Judge failed to consider in his finding that Chukwuma Ossai – P. W. 4 -lied to the Court in several aspects especially as he in cross examination admitted before the trial Judge that he had an N.C.N.C. Membership Card in his house; but when the trial Judge sent a police escort to go with the P.W. 4 to his house to produce the said membership card, on return the police escort informed the court that no N.C.N.C. Membership card was seen.
4. The learned trial Judge was wrong in law in the questions which he asked at the trial.
5. The judgment is wrong, unreasonable and unwarranted and can­not be supported having regard to the evidence adduced at the trial.

 

In respect of grounds 1 and 2 it was submitted that the learned trial Judge did not adequately consider the defence of alibi in that he did not say whether or not he believed the evidence of the 1st appellant’s wife. Although the learned trial Judge did not make a specific finding to that effect it is clear from his judgment that he considered the defence of alibi put up by the 1st appellant and rejected it.

 

It is our view that the learned trial Judge properly rejected the evidence of alibi not only for the reasons he stated but also because the wife of the 1st appellant was only able to say that to her knowledge her husband did not go out on that night while she was asleep. It is also our view that the case R. v. Liddle 21 C.A.R. p. 3 referred to by the appellant’s counsel does not strictly apply as there is no evidence that the learned trial Judge called evidence in rebuttal of the evidence of alibi led by the 1st appellant as was done in Liddle’s case of which the Court of Appeal held to be irregular. As we have stated earlier the evidence of the 1st appellant’s wife was not sufficient to satisfy any jury that her husband did not go out while she was fast asleep. In respect of ground 3 an affidavit was filed by one of the counsel for the 1st appellant in which it was alleged that while the 4th prosecution witness was giving evidence he said he was a member of the N.C.N.C. and could pro­duce his membership card. The contention of the defence was that the wit­ness was “masquerading” as a member of the N.C.N.C. when in fact he was a member of the Dynamic Party which was opposed to the party to which the 1st appellant belonged. It was alleged that the 4th prosecution witness of­fered to produce his N.C.N.C. membership card if given the chance and that the learned trial Judge ordered the Police to take him to his house and to bring the membership card. The 4th prosecution witness was taken by the Police but returned to the Court without the card. It was submitted that the trial Judge made no notes of this incident and that in effect the court did not consider the conduct of the 4th prosecution witness as a lying witness.

 

It is true that no notes were made by the trial court as to the incident but as this court pointed out to learned Counsel for appellant, it was the duty of the defence counsel to have put the 4th prosecution witness back into the witness box and to have established by cross-examination that the 4th pro­secution witness had lied to the Court. As the situation is now this Court is not in a position to say what transpired when the 4th prosecution witness was taken to his house to look for the membership card or whether or not the 4th prosecution witness would have been able to explain why he could not find the card if he had been put back in the witness box and further cross-­examined.

 

In respect of ground 4, it is submitted that the learned trial Judge was wrong in law to have put questions to the 1st appellant when he was giving evidence. The court’s attention was directed to page 24 of the Record of Pro­ceedings which showed that a number of answers were given by the 1st ap­pellant in answer to questions put by the Court.

 

After the answers were given there appear notes, i.e. “by the Court” and then certain answers recorded. After this there is a note that the cross­-examination of the 1st appellant by the Crown counsel was continued. It seems to us that an error has occurred or wrong notes were made by the learned trial Judge.

 

In any event even assuming that the evidence recorded and complained of were made in answers to questions put by the court, we can find nothing on the record to indicate that any irregularity has been committed or that the evidence recorded was prejudicial to the 1st appellant’s defence and that therefore a miscarriage of justice has occurred.

 

In respect of ground 5, learned Counsel for the 1st appellant referred to the evidence of the deceased’s wife at page 17 on the Record of Appeal in which she denied a former statement made by her to the effect that after the 4th prosecution witness had gone out of the house with the deceased the 4th prosecution witness came back to the house and had sexual connection with her and that it was at the time of the sexual intercourse that she realized that it was not her husband but the 4th prosecution witness who was having sex­ual intercourse with her.

 

Both the statement and the evidence of the deceased’s wife were consi­dered by the learned trial Judge who accepted the evidence which was given at the Court. In our view, it is not surprising that the deceased’s wife who told the court that after her husband had gone away, someone came and touched her legs and subsequently ran away when she shouted, should have suspected that the 4th prosecution witness was the person who came to her room that night. The deceased’s wife was present when the 4th prosecution witness went out with the deceased that night after which he was not seen alive again. It is reasonable to expect that the suspicion of the deceased’s wife would fall on the 4th prosecution witness after the deceased’s body had been found. In fact the wife said that on the next morning when she asked the 4th prosecution witness about her husband he heaved a sigh which must have aggravated her suspicion.

 

The 4th prosecution witness was the only eye witness of the cir­cumstances which led to the death of the deceased. In his judgment the learned trial Judge stated that he accepted the testimony of this witness after having considered the other statements which he made to the Police and in which he did not say that he saw the appellants kill the deceased.

 

It is not necessary to prove motive in a murder trial but in the present case, there was an ample evidence that the deceased and the 1st appellant were “political enemies” and that the 1st appellant had resented the ac­tivities of the deceased as a political opponent.

 

The learned trial Judge stated in his judgment that he would have hesi­tated to accept the evidence of the 4th prosecution witness without corrob­oration. Although we are not retrying the case, it is our duty to find out whether it can be said that the judgment was unreasonable or that it cannot be supported having regard to the evidence. We have, therefore, looked for evidence corroborating the story of the 4th prosecution witness as against each appellant separately.

 

It is our view that the evidence of the 4th prosecution witness against the 1st appellant was amply corroborated by the subsequent events and the con­duct of the 1st appellant after the body of the deceased had been discovered. Although the body was discovered lying in a pool of blood with injuries on the body the 1st appellant told the Police that he did not see any injury or blood on the body.

 

He threatened the 4th prosecution witness not to reveal that he had seen the deceased attacked by the 1st appellant and also the 3rd prosecution witness and the deceased’s wife and influenced them to make a report that the deceased died of stomach ache when it was clear to him that he died of violence. He also made a false report to the Police Officer that his brother, the deceased, had died of stomach ache with the obvious intention of pre­venting a post-mortem examination. It is our view, therefore, that the grounds of appeal argued on behalf of the 1st appellant have no substance and we dismiss his appeal.

 

In the case of the 2nd appellant the position is different. Apart from the evidence of the 4th prosecution witness which implicated him, there is no other evidence or circumstance showing that he took part in attacking the deceased, and we think that it would be dangerous to convict the 2nd appel­lant on the testimony of one witness particularly as the charge is one of mur­der. We, therefore, think that his appeal should succeed.

The appeal of the 1st appellant is accordingly dismissed. That of the 2nd appellant is allowed. His conviction and sentence are set aside and he is ac­quitted and discharged.

 

BRETT, AG. C.J.F.: I concur.

 

DE LESTANG, C.J. (Lagos):    I concur.

 

Appeal of 1st Appellant Dismissed. Appeal of 2nd Appellant Allowed.