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In The Supreme Court of Nigeria  

On Friday , 7th day of July 1989  

SC 185/1988

 

 

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Chukwudifu Akunne Oputa

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

 

 

Between

 

Benson Ukwunnenyi

Echena Chito

 

.......

 

Appellants

 And 

The State

.......

Respondent

 

 

Judgment of the Court

Delivered by

Karibi-Whyte. J.S.C.

 

 

Appellants at the Anambra State High Court, sitting at Nsukka, were charged with two others for the murder of one Chukwuma Okoro. Appellants alone, were on the 23rd September. 1985 convicted and sentenced to death. The other two were discharged and acquitted. Appellants' appeal to the Court of Appeal was heard in the Court of Appeal Division sitting at Enugu; and dismissed on the 16th June, 1988. This is a further appeal from the judgment of the Court of Appeal by the appellants.

 

The facts of this case may be stated shortly as follows - Benson Ukwunnenyi, Echena Chito, 1st and 2nd appellants, respectively, Sampson Echa and Ozoemena Chukwuemeka, 3rd and 4th accused persons at the court of trial are all members of the same family and related to one another by blood. One Paul Onwubiko, a relation of the 'deceased Chukwuma Okoro who appellants are alleged to have murdered, had in 1982 stabbed the 4th accused, also arelation of theist appellant, on the head. Early in the morning of 26th December, 1983, the same Paul Onwubiko had murdered Onuora Chizor, the elder brother of 1st appellant, who was responsible for his education at Idah Polytechnic, Benue State.

 

In his statement to the Police and evidence in court, 1st appellant stated that he decided to look for Paul Onwubiko and to know why he had chosen to maim or kill members of his (1st appellant's) family. It was during this search that he encountered the deceased, a relation of Paul Onwubiko. The deceased engaged him in a fistfight without offensive weapons. In the ensuing exchanges, he applied his knowledge of Karate, kicked the deceased with his leg and knocked him down resulting in the death of deceased. 1st appellant claimed to have fought and killed the deceased alone, and that he did not employ any matchet or sharp instruments. 1st appellant admitted seeing P.W.6 at the scene of the encounter, but denied seeing P.W.4.

 

The case of the prosecution founded on the evidence P.W .4 and P.W.6 was quite different. It was that a number of persons comprising the appellants, the 3rd and 4th accused persons and about four or five others at Ogurugu village, murdered the deceased Chukwuma Okoro at about 5p.m. on the 26th December, 1983. The two eye witnesses called by the prosecution were P.W.4 David Okoro, the 14 year old son of the deceased, and P.W.6 Ukwuta Chekwu, the brother of the deceased who were with him when he was attacked. The hostile group was armed with matchets, axes, clubs. The evidence implicated the first appellant as having stabbed the deceased with a dagger, and the 2nd appellant for inflicting matchet cuts on him. This evidence was corroborated by the Medical evidence of the nature of the injuries resulting in the death of the deceased.

 

The evidence of the 2nd appellant in his statement to the Police and testimony in court was a complete denial. He said that on hearing that someone had been murdered he ran to the house of their Chief; Chief Tagbo Kpela Ojoma. He was sent by the Chief with others to convey the corpse of Onuora Chizor, to the hospital at Enugu-Ezike. He therefore accompanied the party to the hospital. It was on his return from the hospital after the autopsy on the corpse that he learnt at the Police station about the death of the deceased.

 

At the end of the trial, the learned trial Judge acquitted and discharged H the 3rd and 4th accused persons, on the ground that neither P.W.4 nor P.W.6, who were the only eye witnesses to the crime mentioned in their statement to the Police the 3rd and 4th accused persons who they knew very well when the event was fresh in their minds. He rejected the evidence of the 1st accused, now 1st appellant and the alibi of the 2nd accused, now 2nd appellant. He rejected the alibi because as he said, at p.63 lines 15-18,

 

It is inconceivable that on hearing this (i.e. the Paul Onwubiko has killed Onuorah Chizor, his relation) he merely ran to the house of the Chief and from there to Enugu-Ezike General Hospital without attempting to find out Paul Onwubiko whom he heard killed his relation.

 

The learned trial Judge sought for and found corroboration of the evidence of P.W.4 in the evidence of P.W.6 that 2nd appellant was a party to the murder of Chukwuma Okoro, the deceased.

 

The learned trial Judge considered and rejected the defence of self-defence and provocation raised on behalf of the 1st appellant. He rejected the suggestion that there was any form of fighting between the deceased and any of the accused persons. He also held that none of the provocative acts relied upon by the 1st appellant was offered by the deceased. The trial Judge relied also on the confession of the 1st appellant, but rejected the claim in the confession that he committed the offence alone.

 

In the Court of Appeal, appellants contended that the evidence of P.W.4,David Okoro, at the age of 16 required corroboration, and that the evidence of P.W.6 Okwuta Chekwu cannot constitute such corroboration. It was also contended that the 1st appellant was provoked. Finally, it was argued that the confession of the 1st appellant that he committed the offence alone ought to have been accepted. The defence of alibi of the 2nd appellant was raised, although considered in the court below was rejected by implication.

 

All the contentions were dismissed.

 

It was held that corroboration of the evidence of P.W.4 was not necessary, and that even if it was, it need not be sought in the evidence of P.W.6. The medical evidence was accepted as constituting sufficient corroboration. In respect of the appellants, the finding of the trial Judge that there was no bias in the evidence of P.W.4 and P.W.6, was accepted. Also accepted was the finding in respect of 1st appellant, that provocation in law has not been established. This was because the deceased had offered no provocation to the 1st appellant. Agreeing with the learned trial Judge the Court of Appeal held that the 1st appellant's confession confirmed the allegation that he took part in killing the deceased. It neither implicated nor exculpated the others who acted in concert with him. Tested with other evidence outside the confession it was possible to determine the extent to which the claims in the confession are true.

 

The Court of Appeal dismissed the appeal of the appellants, and affirmed the conviction and sentence of death imposed by the trial Judge. Appellants further appealed to this court. The grounds of appeal of the appellants before us raised issues of

 

(a)     provocation on the part of the 1st appellant.

 

(b)     effect and consideration of the confession of the 1st appellant.

 

(c)     the reliance on the evidence of the P.W.4 as regards the part played by both appellants in the commission of the offence, and

 

(d)     the consideration of the defence of alibi raised by the 2nd appellant.

 

In the brief of argument filed by counsel on which they relied in argument before us, appellants raised the following issues for determination –

 

In respect of the 1st appellant the issues raised are as follows -

 

(i)     Against the Background and circumstances of this case, does a defence of provocation avail the 1st appellant?

 

(ii)     Although in law a trial Judge can reject a part and accept the other part of a witness' evidence, can he do so in respect of a confessional statement of an accused person?

 

(iii)   What is the effect of the failure of the learned trial Judge to warn himself on the evidence of P.W.4 and P.W.6 who are blood relations of the deceased?

 

In respect of the 2nd appellant, they are as follows -

 

(i)     Has an accused person who sets up a defence of alibi both in his statement to the Police and evidence in court and supplied enough particulars through which his movements can be investigated, if required, but calls no further evidence at the hearing, discharged the evidential onus placed on him?

 

(ii)     Is the trial Judge entitled to make a finding one way or the other on a defence of alibi which was not previously investigated by the Police or the result of such investigation, if, made, tendered in court?

 

(iii)    Did the Court of Appeal give sufficient consideration to the issues raised before it in the appeal?

 

The issues raised in respect of the 2nd appellant which relate to the failure of the prosecution to investigate the defence of alibi, can be more tersely framed as follows -

 

Whether the trial Judge was right to dismiss the defence of alibi raised by the 2nd appellant when there was no evidence to the contrary.

 

The issue (iii) is of such a general nature as not to require any specific consideration.

 

The formulation of issues by Counsel to the respondent in respect of the 1st appellant is different but cover the same grounds. The issues in respect of 2nd appellant concern the issue of alibi raised, but merely questions what the 2nd appellant ought to have done. I think the issues formulated by counsel to the respondent on behalf of the 1st appellant more adequately cover the grounds of appeal relied upon. It is as follows –

 

(i)     Taking into consideration the facts of this case as established at the trial, does the defence of provocation avail the First appellant?

 

(ii)    is a trial Judge not right in law to scrutinise the confessional statement of an accused person just like any other piece of evidence and, subject to his findings in respect thereof, to accept it in part or as a whole?

 

(iii)   Having regard to the peculiar facts of this case and the find- of the learned trial Judge made at page 65 lines 2 to 13 of the record of proceedings was it necessary for the learned trial Judge to have warned himself about the reception of the evidence of P.W.4 and P W.6?

 

Mr. Okonkwo, counsel to the appellants first argued the case of the 2nd appellant. In his brief of argument which he amplified orally before us, he submitted that 2nd appellant had set up a defence of alibi both in his statement "Exhibit D-D1" and in his oral testimony in court. The alibi of the 2nd appellant consisted in the evidence that he was not a member of the group alleged to have murdered the deceased. He stated that on hearing that Paul Onwubiko had killed Onuora Chizor, he ran to his Chief's place and from there on the order of the Chief accompanied the party who conveyed the corpse of Onuora Chizor to the Fnugu-Ezike General Hospital. He did not return to the village till after the doctor's autopsy on the corpse. He said that he learnt of the murder of Chukwuma Okoro, at the Police Station when he returned from Enugu-Ezike. Concisely stated 2nd appellant was saying that he was at the General Hospital, Enugu-Ezike when the deceased was killed. In any event he was not at Ogurugu village.

 

Counsel submitted that the statement sufficiently satisfied the requirements of a defence of alibi. He submitted that 2nd appellant explained his movements on the 26th December, 1983, and that he was out of the village on the orders of Chief Tagbo Kpela Ojoma. He also stated that 2nd appellant gave particulars of where he was at the relevant time and the reasons for his being away from the village. It was submitted that since the Chief must be taken to be a well known person the onus was on the prosecution to verify the claim of the 2nd appellant by investigating his story. Counsel relied on several decided cases of this court to support his submission. Some of them are Abudu V. The State (4985)1 N.W.L.R. (Pt.1) 55; Bozin v. The State (1985) 2 N.W.L.R. (Pt.8) 465; Urnani V. The State (1988) 1 N.W.L.R. (Pt.70) 274; Salami v. Tlie State (1988) 3 N.W.L.R. (Pt.85) 670; Nwabueze V. The State (1988) 4 N.W.L.R. (Pt.86) 16.

 

In his reply, Mr. Okolo for the respondents conceded that there was no onus on the 2nd appellant who sets up an alibi to prove, but submitted the duty on appellant to give particulars of the alibi was not discharged. He referred to the statement of 2nd appellant to the Police and also his testimony in court at his trial and submitted that the evidential burden imposed was not discharged. It was contended that

 

(a)     2nd appellant did not disclose where Chief Tagbo Kpela Ojoma could be found.

 

(b)    the names of the people in whose company 2nd appellant took the corpse of Onuora Chizor to the Enugu-Ezike hospital.

 

It was submitted that in the absence of these facts the Police had no way of verifying the alibi.

 

The cases of Dikeocha & 3 Ors. V. The State (1966-67) 10 E.N.L.R. 155 at 158; Gachi & Ors. V. The State (1965) N.M.L.R. 333 at p.334; Eze V. The Slate (1976)1 S.C.125; Salami v. The State (1988)3N.W.L.R. (Pt.85)670; Nwabueze V. The State (1988)4 NW. L. R. (Pt. 86)16 were cited in support of the submissions.

 

It is pertinent to point out that the judgment of the Court of Appeal challenged on this ground only inferentially upheld the judgment of the trial Judge rejecting the defence of alibi raised by the 2nd appellant (2nd accused) at the trial. Although the 2nd ground of the grounds of appeal and particular (v) of the particulars to the ground of appeal of the 2nd appellant raised the issue, it seems to me that the question of alibi was not independently considered at all. It is well settled that where a defence has been put forward, it must be considered however improbable or regarded as stupid Opayemi V. State (1985) 2 N.W.L.R. (Pt.5) 101. There is no doubt that the Court of Appeal relied on the finding of the trial Judge that P.W.4 and P.W.6 were eye witnesses to the incident that 2nd appellant was among those who murdered the deceased. In fact it was 2nd appellant who inflicted matchet cut on the head of the deceased. He also found that they were not biased even though P.W.4 was the son and P.W.6 the brother of the deceased. Thus before the learned trial Judge there was the claim by the 2nd appellant that he was invited by Chief Tagbo Kpela Ojoma to accompany other members of the village to convey the body of Onuora Chizor, who had been murdered that morning to Enugu-Ezike General Hospital, and that he only heard of the death of the deceased at the Police Station when he and the others returned from Enugu-Ezike. The other evidence was the positive identification by P.W.4 and P.W.6, who knew 2nd appellant well to be a [) member of the family of the 1st appellant, and of Onuora Chizor alleged to have been murdered by Paul Onwubiko.

 

It is the duty of the Court of Appeal to consider issues properly raised in the grounds of appeal before it. Where this has not been done this court can notwithstanding the fact that the court below has not made any pronouncement consider the ground of law or facts so raised.

 

It is well settled that the defence of alibi where successful results in the acquittal of the accused relying on the defence. It is a claim of absence of both actus; not only that it is not reus, but also that there was in fact no act. It is also a defence of absence of mens rea. A defence of alibi by the accused is a combined defence of lack of act and mens rea. That is, that he was not at the scene of crime and was therefore neither in a position to have committed F the offence nor participated in its commission.

 

There is no doubt that such a defence being a matter peculiarly within his personal knowledge, the burden of leading evidence of the fact is on the accused- See Gachi V. The State (1965) N.M.L.R. 333. Odidika v. The State (1977) 2 S.C. 21. Hence evidence tending to establish the defence should not be disregarded unless there is a stronger and more positive evidence of the participation of the accused. - See Odidika V. State (1977) 2 S.C. 21.

 

The best defence and evidence of an alibi is one pleaded at the first opportunity and not at the time of trial. In this case the 2nd appellant's defence of an alibi was made at the earliest opportunity and before he was charged with the offence. There was therefore a duty on the prosecution to verify from Chief Tagbo Kpela Ojoma, whether 2nd appellant was in the party he sent to convey the body of Onuora Chizor to Enugu-Ezike General Hospital. It was also possible for the prosecution to verify when the party returned to Ogurugu, and whether the 2nd appellant had the opportunity and could have committed the offence despite the fact that he was a member of the team. There was nothing on the record to show that the claim of 2nd appellant was investigated by the prosecution. In fact, the findings of the learned trial Judge did not establish that there was any investigation. It was therefore in the situation not possible to conclude that the case of the accused if investigated would not have cast doubt on the reliability of the case of the prosecution.

 

The onus on the appellant was to adduce evidence which sufficiently contains the particulars of the alibi - See Nwosisi v. The State (1976) 6 S.C. 109. The onus to establish the guilt of the appellant remains on the prosecution throughout the case. The 2nd appellant having discharged the onus on him of adducing evidence of alibi, it could not be said in the absence of any verification of the claims made that the failure to investigate the alibi would not be fatal to the conviction - See Ntam v. The State (1968) N.M.L.R. 86.

 

In the circumstances where the relationship of P.W.4 and P.W.6 to the deceased was one of son and brother respectively, and where the crime was committed in retaliation to that alleged committed by the brother of the deceased on the relation of the appellants, and where the appellants were well known to the P.W.4 and P.W.6, the trial Judge ought to have been extremely wary in accepting the eye witness testimony of the P.W.4 and P.W.6, in the face of an uninvestigated defence of alibi See Opayemi v. State (supra).

 

Counsel to the respondent has argued before us that the particulars of the alibi were not sufficient to enable a verification of the defence. That is not in my respectful view the issue. It is admitted that where the alibi pleaded is by its nature incapable of being verified because of the improbability of the facts, It will be unnecessary to investigate. The instant case is clearly not such a case. The question is whether the trial Judge considered the defence at all. The defence of the 2nd appellant ought to have been investigated and considered. - See Yanor & Anor. V. The State (1965) N.M.L.R. 337 It cannot therefore be said that the evidence in the case was sufficient to fix the appellant at the scene of crime at the material time - See Njovensv. The State (1973)5 S.C. 17

 

In Yanor & Anor. V. The State (1965) N.M.L.R. 337 at p.341-342, the F court stated the approach to the consideration of alibi as follows –

 

On the defence of alibi, the law is that the jury should be directed that they should not disregard evidence of alibi unless there is stronger evidence against it. - See Chadwick (1917)12 Cr. App. R. 247. Therefore while the onus is on the prosecution to prove the charge against an accused person the latter has, however, the duty of bringing the evidence on which he relies for his defence of alibi; when such evidence has been adduced the court should consider it in the light of the evidence adduced by the prosecution in support of the charge against the accused and if in the end the court is unable to reach a decision on the question whether evidence in support of the case for the prosecution is stronger than that produced in support of the alibi, the accused must be acquitted.

 

The learned trial Judge without any evidence of the investigation of the alibi of 2'1d appellant doubted the credibility of the evidence when be said:

 

I see no reason why P.W.4 and P.W.6 should implicate accused No.2 if he was not at the scene. I reject the defence of accused No.2 that he was not at the scene. He admitted in his statement to the Police Exh. D, Dl, that he heard that it was Paul Onwubiko that killed Onuora Chizor who was his relation. It is inconceivable that on hearing this he merely ran to the house of the Chief and from there to Enugu-Ezike General Hospital without attempting to find out Paul Onwubiko whom he heard killed his relation. I have already held that P.W.4 was a grownup person and B that his evidence did not require corroboration, in case I am wrong in this view and this is unlikely, I would that there was ample corroboration in the evidence of P.W.6. In my view the prosecution has established beyond reasonable doubt that accused No.2 was a party in the murder of Chukwuma Okoro.

 

In accepting this view of the learned trial Judge the Court of Appeal stated that "The Judge, without doubt, attended to the issues raised by the defence counsel and all other issues in the case with scrupulous care."

 

In what could be regarded as reference to the acceptance of the rejection by the learned trial Judge of the defence of alibi raised by the 2nd appellant, the Court of Appeal held,

 

As to the second issue of bias or likelihood of bias in the evidence of P.W.4 and P.W.6 because of their relationship with the deceased, the Judge made a finding of fact believing the two witnesses. His premise for his belief which, in my opinion, is quite reasonable is stated in this form; "I do not think that the facts disclosed at the trial were such as to give rise to the inference that P.W.4 and P.W.6 had malice against any of the accused persons. It was indeed the accused persons who had a cause to bear grudge against P.W.4 and P.W.6 who are the relations of Paul Onwubiko for the latter's alleged assaults on the relations of the accused persons and the final killing of Onuora Chizor the accused's relation. I cannot discredit the evidence of P.W.4 and P.W.6 merely on the ground of their relationship with the deceased. The Judge has shown why the evidence in question need not be entertained with fear. It is not tainted by reason of relationship with the deceased. The cases of Opayemi v. The State (1985) 2 N.W.L.R. (Pt.5) 101 at 113; and Onafowokan v. The State (1986) 2 N.W.L.R. (Pt.23) 496 at 503 relied on by counsel for the appellants are not helpful to them.

 

The above is an endorsement of the approach by the learned Judge to the consideration of the defence of alibi of the 2nd appellant, which in my respectful opinion is wrong. The particulars of alibi in the circumstances. having not been verified and proved to be false, the learned trial Judge was not in a position to reject the defence as he did. What he should have placed alongside the evidence of P.W.4 and P.W.6 is the investigated and verified particulars constituting the alibi of the 2nd appellant. It is only when the evidence of the prosecution in such a circumstance is shown to be stronger than the alibi and still fix the appellant with the commission of the offence can the alibi be rightly rejected. The Court of Appeal was therefore wrong to hold that the learned Judge was right to reject the alibi without being satisfied of its falsity or weakness in the face of the evidence of P.W.4 and P.W.6.

 

In the circumstances the case of the 2nd appellant has not been fully considered. Since the alibi raised was not properly considered, the 2nd appellant is entitled to the benefit of doubt resulting from such error. The appeal is therefore allowed.

 

The appeal of the 1st appellant is in a different category. Counsel is not contending seriously that 1st appellant did not commit the offence. He is however relying primarily on the defence of provocation to reduce the conviction from murder to manslaughter.

 

I have ignored the argument relating to the acceptance of the confession of the 1st appellant in my consideration of the appeal. This is because having allowed the appeal of the 2nd appellant, the only surviving accused in this appeal, the question whether 1st appellant confessed to committing the offence alone or with another is no longer relevant.

 

There was no evidence before the trial Judge suggesting the defence of self-defence on the part of the 1st appellant. Rather the evidence from Exhibit A, his confession, was that 1st appellant smarting under the provocattion of the most recent of the assaults by Paul Onwubiko on members of his (1st appellant's) family, was looking for Paul Onwubiko. He did not see him but 'net the deceased a brother of Paul Onwubiko. There was no evidence that the deceased attacked 1st appellant with dangerous weapons or indeed fists. It is more probable as suggested by the trial Judge that 1st appellant challenged the deceased to a fight. 1st appellant did not deny that the deceased died in the encounter. This was corroborated by the evidence of the P.W.4 and P.W.6 who were eye witnesses to the incident.

 

The defence of provocation relied upon by the 1st appellant is a little intriguing. The uncontradicted evidence of the 1st appellant about the savage and criminal assaults of Paul Onwubiko on blood relations of the 1st appellant, culminating in the killing of Onuora Chizor, the 1st appellant's elder brother who was responsible for his education, at Idah Polytechnic, the apparent blind eye turned by the Police to reports of these incidents; All these ordinarily will provoke the ordinary person to action. It is the nature of the action that is governed by our law.

 

There is no doubt that the law is that the trial court has a duty to consider the defence of provocation disclosed by the evidence of the accused. -See Queen v. Itule (1961)1 All N.L.R. 462. Provocation consists of an act or acts which causes or may cause a sudden and temporary loss of self-control resulting in the commission of the offence charged. Where provocation is established it negatives the intention to kill or cause grievous bodily harm which are essential ingredients for a conviction for murder - See R. v. Akpakpan (1956) 1 F.S.C. 1; [1956j SCNLR 3. Although there is no hard and fast rule for determining acts to constitute sufficient provocation, each case depending upon its peculiar facts, the court may consider the relationship of the parties - See Queen v. Jinoba (1961) All N.L.R. 627. This court has held that it is possible to cause provocation to a class of people such as a community. Where the facts are appropriate the court may draw the inference - See Apishe v. The State (1971)1 All N.L.R. 50; Shehu Dumeni v. Queen (1955)15 W.A.C.A. 75. This is not a provocation of a member of a crowd in respect of which any other member of the crowd is a lawful target, the provocation may having emanated from the crowd.

 

This court has held that provocation offered by one person cannot be a ground for killing another who did not offer such provocation See Omerninu v. State (1966) N.M.L.R. 356 where a husband killed his child on account of provocation by his wife. In the instant appeal the trial Judge rejected the defence of provocation on the ground that the provocation pleaded did not flow from the deceased, but from the alleged conduct of Paul Onwubiko. The Court of Appeal agreed with this view relying on R. v. Ebok (I 950) 19 8 N.L.R. 84 at p.86; R. v. Nwanjoku (1937)3 W.A.C.A. 208 and Omeninu v. The State (supra). I agree entirely with this view as accurately representing the law.

 

The evidence before the learned Judge and the confession of the 1st appellant clearly show that the culmination of the provocating events which occurred in the morning of the 26th December, 1983 inspired in the 1st appellant an actual intention to kill in retaliation for what Paul Onwubiko has been doing to members of the 1st appellant's family. The incident. i.e. the murder of Chukwuma Okoro, in respect of which 1st appellant was charged occurring at about 5p.m. the same day, he could not be said to have acted in the heat of passion, caused by sudden provocation, before there was time for his passion to cool - See Oladiran v. State (1986)1 N.W.L.R. (Pt.14) 75. Counsel to the appellants has submitted to us that the defence of provocation was available to the 1st appellant on the evidence before the trial Judge in addition to the collusion or connivance with the Police in the area. There is no doubt that the inexplicable inertia of the Police in investigating and prosecuting Paul Onwubiko for the complaints against him is sufficiently annoying to members of the family of the victims. I however do not think such annoyance can sustain a defence of provocation for murder committed because of such dereliction of duty. In any event such provocative acts flow from members of the Police Force, and not from those whose criminal acts have been condoned by the dereliction of duty.

 

I am satisfied that the trial Judge was right in rejecting the defence of provocation relied upon by the appellant and the Court of Appeal rightly in my view upheld that finding. I therefore reject the submission of counsel for appellants in respect of the 1st appellant whose appeal is hereby accordingly, dismissed.

 

The appeal of the 1st appellant against the judgment of the Court of Appeal is dismissed. His conviction and sentence by the learned trial Judge affirmed by the Court of Appeal is hereby further affirmed.

 

The appeal of the 2nd appellant is allowed. He is hereby acquitted and discharged.

 

 

Judgment delivered by

Obaseki J.S.C.,

 

I have had the advantage of reading in draft the judgment just delivered by my learned brother, Karibi-whyte, J.S.C., and I agree with him that the appeal of the 1st appellant be dismissed and that of the 2nd appellant allowed. His opinions on all the issues for determination in this appeal accord with mine and I adopt them as my own.

 

Two points emerged in this appeal which seem to try our sense of justice. The first is the confession by the 1st appellant that he took the life of the deceased because a relation of the deceased took the life of his own relation.

 

Ours is a democracy notwithstanding that the military are temporarily in power, dedicated to the strict observance of the Rule of Law. Where the Rule of Law operates, the philosophy of self-help withdraws and law enforcement authorities of the state ensure that things are done according to law. Vengeance has no place in a society where the Rule of Law operates. The life of a person is more of an asset to the state and the state will not allow anyone to take the law into its own hands by avenging the death of a relation either on the culprit or on the innocent. The policy of avenging the death of a relation if allowed to take root will lead to a breakdown of law and order, to anarchy and eventually to the destruction of society itself.

 

Thus, under our law, the death of a relation at the hands of a felon does not constitute provocation to enable the relation of the deceased to take the' life of either the felon or an innocent relation of the felon. The 1st appellant is therefore not protected by our law in his confessed act of taking the life of the deceased.

 

The 2nd point is the defence of alibi put forward by the 2nd appellant both to the police at the earliest possible moment soon after arrest and also in court. It is a powerful defence for the innocent if true but gives no protection to the guilty if untrue. When it is raised at the investigation stage, it is the bounden duty of the investigating police officer to investigate it in order to ascertain its truth (i.e. that the suspect was present at a place other than the scene of crime when the crime was committed) or its falsity (that the suspect was not where he said he was when the crime was committed). [See Gachi v. The State (1965) N.M.L.R. 333. Ntam v. The State (1968) N M.L.R. 86.; Bozin v. The State (1985) 2 N.W.L.R. (Pt.8) 465; Nwabueze v. The State (1988) 4 N.W.L.R. (Pt.86) 16]. Failure to investigate deprives the prosecution of this vital piece of evidence and when the accused introduces evidence 6f his alibi, there will be nothing to counter the defence which a trial Judge can consider as a challenge to that defence. Thus, the failure of the police to investigate not only weakens the case for the prosecution but also gives force to the alibi to create doubt in the mind of the trial Judge the benefit of which must be given to the accused. It is therefore essential that the prosecution is fully aware of the importance of producing evidence of the investigation of the defence of alibi set up by the suspect before them. If however the suspect fails to put it forward to the police either deliberately or negligently and then spring the defence up as a surprise in court, he has an uphill task of convincing the trial Judge that he was not present at the scene of crime participating in the crime when there is strong evidence of his identity as a participant present at the scene of crime.

 

In the instant appeal the 2nd appellant set up his defence of alibi to the police at the earliest opportunity but the investigating police officer failed to carry out any investigation into the defence. Since the 2nd appellant discharged the evidential burden in court, he is entitled to the benefit of doubt created in the case put forward by the prosecution against him.

 

Accordingly, I hereby dismiss the appeal lodged by the 1st appellant and affirm the conviction and sentence of death passed on him by the High Court and affirmed by the Court of Appeal.

 

With respect to the 2nd appellant. I hereby allow his appeal and set aside the decisions of the Court of Appeal and the High Court convicting him and sentencing him to death. The conviction and sentence are hereby A quashed. Instead, the 2nd appellant is hereby acquitted and discharged.

 

 

Judgment delivered by

Nnamani, J.S.C.

 

I had the advantage of reading in draft the judgment just delivered by my learned brother, Karibi-Whyte, J.5.C., and I agree with his reasoning and conclusions.

 

The appellants and 2 others were charged with the murder on 26th December, 1983 of one Chukwuma Okoro contrary to Section 319(1) of the Criminal Code, Cap. 30 Vol.11 Laws of Eastern Nigeria applicable in Anambra State. After hearing the evidence of the parties, Edozie, J., in a fairly well considered judgment, discharged the 3rd and 4th accused persons, convicted the appellants and sentenced them to death. An appeal to the Court of Appeal was unsuccessful hence the appeal to this Court.

 

In his brief of argument, learned counsel to the appellants, Mr. Okonkwo set down 3 issues for determination in respect of the 1st appellant, while 3 issues were also set down in relation to the 2nd appellant. As they affected 1st appellant, these were mainly in respect of possible defence of provocation and the question of the learned trial Judge not warning himself on the evidence of P.W.4 and P.W.6 - the son and close relation of the deceased. In relation to the 2nd appellant, the issues related to the alibi raised by this appellant and the failure of the police to investigate it. The issues for determination set down by learned Counsel for the respondent, Mr. Okolo were really the same except that as regards the 2nd appellant, he raised the question of the evidential burden on that appellant to introduce sufficient evidence on his plea of alibi.

 

I shall adopt the facts of this case as set down in the lead judgment. The background appears to be that one Paul Onwubiko had over a number of years harassed and assaulted members of the appellant's family. This Paul is a relation of the deceased. Reports of these assaults to the Police appear to have been ignored. Indeed on the day of the murder, one Onuora Chizor, a brother of the 1st appellant was killed. This is the background to the murder of Chukwuma Okoro who was a relation of Paul Onwubiko. The harrassment and assaults by Paul Onwubiko on the appellants' family were indeed stated in the 1st appellant's statement for he claimed these to support his defence of provocation. They included

 

(i)     Paul daggering his brother, Uchechukwu on the nose in 1982.

 

(ii)     Paul in 1983 daggering his brother, Ozoemena (4th accused) on the head

 

(iii)     On 26th December, 1983 Paul was suspected to have killed his brother, Onuora Chizor.

 

I do not think there is much that can be added to the case of the 1st appellant as considered in the lead judgment. His defence of provocation was fully considered by both lower courts and rightly rejected. The harrassment and assaults by Paul Onwubiko on members of the 1st appellant's family cannot provide a basis for a defence of provocation to the murder of Chukwuma Okoro who offered no provocation to the 1st appellant. See R. v. Ebok (1950)19 N.L.R. 85; R. v. Nwamjoku (1937) 3 W.A.C.A. 208; Omeninu v. The State (1966) N.M.L.R. 356. The combined effect of Sections 283 and 318 of the Criminal Code puts the defence beyond the reach of A the 1st appellant. This is not also a case in which it can be said that the provocation was offered to the 1st appellant by persons acting in concert so that he could say he was provoked and killed one of those persons. This was rather a premeditated murder. The 1st appellant was out to revenge and took out his revenge on the deceased. a relation of Paul. Indeed, the 1st appellant in his statement which he later retracted but which the learned trial Judge accepted said,

 

As I continued looking for Paul in the bush and did not find him, at about 12 noon, I saw Paul's brother by name Chukwuma (deceased) and Okwuta Onwubiko (P.W.6) in the bush near Ogurugu. When they saw me Okwuta Onwubiko ran away so I killed Chukwuma as his brother Paul killed my Senior brother Onuorah.

 

There was no evidence of assault of 1st appellant b\ the deceased. Although 1st appellant talked about a tight and his use of Karate, the learned trial Judge rightly accepted the evidence of P.W.4 and P.W.6 on the injuries inflicted on the deceased by the 1st appellant, Which in ones agreed with the medical evidence.

 

As regards the question of P.W.4 and P.W. 6 being tainted witnesses. I think the learned trial Judge adverted his mind fully to this before accepting the testimony of these two witnesses. See Mbenu and 1 other v. state (1988) 3 N.W.L.R. (Pt. 84) 615 at 626-627.

 

It is in relation to the 2nd appellant that there was something that needed serious consideration. The defence of the 2nd appellant was alibi. He claimed at the earliest opportunity, i.e in his statement to the Police, that when he heard of the death of Onuora Chizor he ran to the house of their Chief, one Tagbo Kpela who told him to help in conveying the corpse of the deceased i.e. Onuora to Enugu - Ezike General Hospital. He claimed further that he returned with his people to the Police Station. It was there he heard of the death of Cliukwuma Okoro. The 2nd appellant repeated this in his evidence in court.

 

Learned Counsel, Mr. Okolo, has Contented before us that the 2nd appellant did not discharge the evidential burden on him to produce enough evidence on his alibi. I do not agree with this. What more did he need to give? The name of the Chief was given. What was the reaction of the prosecution to this alibi? Nothine. It w as not investigated. It is settled that because of the burden on the prosecution to prove the guilt of the accused beyond reasonable doubt, once a defence of alibi is set up there is a duty on the prosecution to investigate it once it was made known to it at the earliest opportunity. See Obinga and Ors v. Police ( l965 ) N .M..L. R. 172. It had to be so for an alibi is in effect an assertion of the accused person that he was somewhere else while the case of the prosecution is usually that he was at the scene of crime. Such an investigation becomes imperative for otherwise how can the truth or otherwise of these assertions be tested.

 

In the instant case, the learned trial Judge . without the benefit of this investigation proceeded to consider this evidence of alibi against the strong testimony of P.W.4 and P.W.6 that the 2nd appellant took part in the crime and was at the scene. At page 63 of the record he concluded as follows:

 

He said that on the fateful day when he heard an alarm about the death of Onuorah Chizor, he went to the house of Chief Tagbo Ekpela Ojomo and there at the instance of the Chief he took part in conveying the corpse of Onuorah Chizor to EnuguEzike General Hospital for autopsy. On the other hand P.W.4 and P.W.6 were emphatic that accused No.2 inflicted a matchet cut on the body of the deceased. I believe the evidence of P.W.4 and P.W.6 that accused No.2 was one of the murderers of the deceased."

 

With all respect, it was an unfair conclusion since the learned trial Judge had no information on the defence of the 2nd appellant. The evidence of the Chief was most necessary in resolving this issue and it was the prosecution who ought to have investigated the alibi. There was no burden on the 2nd ap- C pellant to lead evidence in proof of his alibi. Although the learned trial Judge did what he had to do i.e. consider the alibi against the evidence of the prosecution, the doubt created by the failure of the prosecution to investigate the 2nd appellant's alibi ought to have enured to his benefit. See Yanor & Ors. v. The State (1965) N.M.L.R. 337 and Umani v. State (1988)1N.W.L.R. (Part 70)274,284.

 

In the circumstances, the benefit of doubt must be given to the 2nd appellant. For these reasons and the more detailed reasons in the lead judgment. I too would allow the appeal of the 2nd appellant and enter a verdict of discharge and acquittal. The appeal of the 1st appellant is dismissed and the conviction and sentence previously passed on him are further affirmed.

 

 

Judgment delivered by

Oputa, J.S.C.

 

I have had the privilege of a preview in draft of the lead judgment just delivered by my noble and learned brother, Karibi-Whyte, J.S.C., and I am in total agreement with his reasoning and conclusion that the appeal of the 1st appellant should be dismissed and the appeal of the 2nd appellant allowed.

 

The facts of this case are not complicated at all, but the issues arising therefrom are both as intriguing, as they are challenging. They pose a challenge between our indigenous and erstwhile concept of the family and the village as a recognised "legal" group or entity, leading to our erstwhile group morality, group responsibility, group provocation and group retaliation etc. With the advance and our assimilation of European concepts (I will not say civilisation) and European individualism, our group consciousness and group responsibility slowly started to give way to personal responsibility for crimes like murder with which we are faced in this case. Can there be a marriage between the old and the new or shall we allow the cleavage to continue to its logical conclusion? That is the question posed by this case.

 

A relation of the deceased in this case named Paul Onwubiko was alleged to have persistently attacked members of the appellant's family unit. In 1982 the said Paul Onwubiko was alleged to have stabbed one Udechukwu (the brother of the 1st appellant) on the nose. Udechukwu survived this attack. In 1983 the said Paul Onwubiko again stabbed Ozoemeka Chukwuemeka, another relation of the 1st appellant on the head. In December, 1983, Paul Onwubiko again was alleged to have murdered Onuorah Chizor, another member of the appellants' family. Infuriated and incesed by these provocative attacks on member after member of his family ending up with the killing of one of them, the 1st appellant, Benson Ukwunnenyi went in search of Paul Onwubiko. I will reproduce the significant part of the Statement of the 1st appellant to the Police tendered as Ex.A..

 

When they saw me Ukwuta Onwubiko ran away, so I killed Chukwuma as his brother Paul killed my senior brother, Onuorah. I did not use knife on him, I only used my fist blows and karates on him till I was sure that he was dead. I was alone. I was not in the group of anybody. I did not come out immediately to say that I killed Chukwuma but when I heard that his people made out a list containing eight of my brothers as those who killed him, I came out openly and declared myself that it was only me who killed him and nobody else.

 

The evidence showed that all those previous attacks by Paul Onwubiko on members of the appellants' family unit were reported to the Police who apparently did nothing. The 1st appellant then resorted to "self help." He, as it were, took the law into his own hand. That would have been permissible in the olden days when he would have been praised as a valiant defender of the life and rights of his family members.

 

In ancient Ibo jurisprudence, the killing of a human-being "Ochu" was regarded as a very serious offence. Such a killing can trigger off an inter tribal war unless the offending unit is prepared to make adequate reparation by the killer surrendering and offering to hang publicly or by the guilty village or family handing over one or two girls to the offended family to bear children to redress the balance. This was clearly shown in Chinua Achebe's "Things Fall Apart." The above is not a peculiar or an exclusive African phenomenon. Mter all the ascending process of civilised well-being in Europe was suddenly fractured by a crime. On June 28th 1914, Archduke Franz Ferdinand, heir to the Austrian throne, was murdered at Sarajevo. Austria declared war on Serbia. The conflagration soon spread into the 1st World War.

 

Coming back to the case of the 1st appellant, he never denied killing the deceased, Chukwuma Okoro. His defence was Self-Defence and Provocation. We have advanced a long way from the era of group responsibility to one of personal responsibility although Section 78 of the Penal Code still retains the idea of composition and compensation for homicide; See A. G. Kaduna v. Hassan (1985) 2 N.W.L.R. (Pt.8) 483 at p.528. Under the Criminal Code the defence of Self-Defence is obviously not available to the 1st appellant on the facts of this case. He was not being attacked by the deceased. His life was never in danger. Rather he killed the deceased as a revenge for the previous alleged acts of his brother, Paul Onwubiko, not directed against the 1st appellant, but against his relatives. The defence of Self-Defence cannot be extended thus far.

 

What of provocation? Learned counsel for the appellants in his Brief submitted that "situations which would warrant a feeling of revenge or retribution could justify a plea of provocation." He relied on the decision of 411e West African Court of Appeal in Dummeni v. The Queen (1955)15 W.A.C.A. 7~. In Dummeni's case supra there was a fight between two groups of young men. The trial Judge dismissed the plea of provocation solely on the ground that the deceased was not the person who offered the pro-vocation. The Court (W.A.C.A.) in that case made two important pronouncements namely: -

 

(i)     That where a body of persons are acting together provocation can be successfully pleaded where the person provoked kills a member of the group from where the provocation came.

 

(ii)     That provocation must not be ruled out simply because the person acting under provocation gives a free rein to feelings of revenge or retribution.

 

In this case, the deceased and his brother Paul Onwubiko were not proved to have been acting together. Also the Court of Appeal in James Biruwa v. The State (1985) 3 N.W.L.R. (Pt. 11) 167 held that 'where there is a concerted attack by a group and actual provocation is offered by one of the aggressors, retaliation may be properly expended upon another in the group, to found a defence of provocation." In other words group retaliation must be the result of group provocation. In this case, Paul Onwubiko was acting alone.

 

Having thus discounted group provocation and consequently group retaliation, the principles decided by this court in Chukwu Obaji v. The State (1965) N.M.L.R. 417 at p.422 must apply to this case subject of course to the proviso that the act complained of as giving the provocation will also provoke an average man in the community to which the 1st appellant belongs. See R. v. John Okoro (1942)15 N.L.R. 63 at pp.65 and 66, R. v. James Adekanmi (1943)17 N.L.R. 99 at pp.1011102; George Nomad v. Bornu Native Authority (1954) 21 N.L.R. 31; Queen v. Afonja & Ors. (1955) 15 W.A.C.A. 26. Taking the cultural status of the 1st appellant as a yard-stick, E it can be safely said that the 1st appellant can put up provocation as a defence. But that defence can hardly stand when viewed against the background of Section 318 of the Criminal Code. That Paul Onwubiko killed his (1st appellant's) brother is not a fact established by evidence. The appellant was not there. The deceased did not offer the 1st appellant any provocation. It will be extremely dangerous to extend the defence of provocation far beyond the contemplation of Section 318 of our Criminal Code and our various decisions on the subject. That will turn our law of provocation into a law of indiscriminate revenge and thus a law of the jungle. The appeal of the 1st appellant must therefore fail.

 

The 2nd appellant stands on a firmer wicket. At the earliest opportunity, after his arrest, he made a Statement to the Police tendered in evidence 0 as Exs. D and Dl. In that Statement he pleaded an alibi. He was sent by their Chief, Tagbo Kpela, along with others to convey the corpse of Onuorah Chizor alleged killed by Paul Onwubiko to the Hospital at Enugu-Ezike from there he went to the Police Barracks. It was in the barracks that he heard of the death of the deceased. He did not and could not possibly be at the time and place the deceased was killed.

 

Normally when a person accused of a crime sets up an alibi and gives names and tangible particulars which can be investigated and cross-checked, it is incumbent on the Police during their investigation to check up on this alibi. This the Police failed to do. The 2nd appellant testified in his own defence and repeated his alibi. The trial court then had both his Statement to the Police Ex. Dl and his sworn testimony in court. The question now is Was that enough or was the 2nd appellant expected to call further evidence to establish his alibi?

 

In criminal cases, the onus of proof is firmly on the prosecution. They have the onus, in this case, of proving the 2nd appellant guilty of the offence charged. Our system of criminal justice presumes an accused person (including the 2nd appellant) innocent until he is proved guilty. Now nobody set out to prove that which the law presumes in his favour. There is therefore no onus on an accused person to prove his innocence. To place such onus on the accused will be a serious misdirection. In R v. Lazarus Lobell (1957) 41 Cr. App. R. 100 at p.104, Goddard. C.J., outlined the burden or onus on the defence and on the prosecution whenever special defences, like alibi or self-defence are raised. The primary and general onus is on the prosecution throughout and that onus does not shift. Nwabueze v. The State (1988) 4 N.W.L.R. (Pt.86) 16. There is however an evidential onus on the accused -the onus of introducing evidence tending to show that he might not have been (not that he was not) at the scene and at the time the alleged offence was committed. If any trial court insists that the evidence tendered by an accused (pleading an alibi) must show that he was not there. that will be casting the onus of proving his innocence on an accused person. That will be wrong. If the evidence tendered by the accused merely raises a doubt as to whether he was present at the time and place of the offence. that is enough to secure him an acquittal. This was what this court decided in Oyewunmi Adedeji v. The State (1971) t All N.L.R. 75.

 

Once the 2nd appellant has raised an alibi in Ex.D1 at the earliest opportunity. the onus is on the prosecution to investigate and disprove that alibi. The Chief mentioned by name in Ex.Dl should have been contacted by the Police and should have been called as a prosecution witness in the case. The Police was definitelv in a position to investigate whether the body of Onuora Chizor murdered on the 26/12185 was taken to Enugu-Ezike Hospital and if yes, those who took the corpse there. If all these existed then there would have been something against which the evidence of P.W.4 and P.W.6 could have been compared. If the Police inquiries proved negative -that is to say that Chief Tagho Kpela never saw the 2nd appellant on the 26/ 12/83, never sent him along with others to Enugu-Ezike Hospital - that would then confirm the evidence of P.Ws. 4 and 6 and the trial court would cannot be on the basis of the demeanour of the accused or appellant in this case. It has to be a logical conclusion arrived at after demolishing and therefore discounting the main strands supporting the alibi. The trial court had a duty to test the evidence of the 2nd appellant's alibi against the evidence of the prosecution - here evidence of P.W.4 and P.W.6 who said they saw him and that he took part in the murder of the deceased. Not having investigated the 2nd appellant's alibi, the trial court had nothing against which it could compare and contrast the evidence of the P.Ws. 4 and 6: See Umani v. The State (1988)1 N.W.L.R. (Pt.70) 274 at pp.284/285. Evidence of alibi ought not to be too readily or too easily brushed aside except it is counter-balanced and therefore neutralised and nullified by stronger, more cogent and therefore more convincing evidence on rebuttal - Onafowokan v. The State (1987) A 3 N.W.L.R. (Pt.61) 538 at p.553.

 

It is true that the trial Judge said he disbelieved the 2nd appellant and believed P.W.4 and P.W.6. ~or one thing, belief and disbelief should not he either erratic or automatic. They should be based on facts and possibilities and probabilities based on facts. The story of the 2nd appellant is not intrinsically arid inherently so improbable that it cannot be believed without its first having been investigated and found not to be true. Secondly, given the surrounding circumstances of this case with the two families locked in murderous and mortal strife, the Judge was bound to accept the evidence of the P.W.4 and P.W.6 (relations son and brother of the deceased) against the 2nd appellant from the opposing enemy camp, with a pinch of salt. If nothing else, the alibi set up by the 2nd appellant, which was not investigated, should have induced a real and genuine doubt in the mind of the learned trial Judge, which doubt he should have resolved in favour of the 2nd appellant - Samuel Bozin v. The State (1985) 2 N.W.L.R. (Pt.8) 465 at p. 474.

 

I will conclude this concurring judgment by saying a few words about proof beyond reasonable doubt. This is the policy of our law. The policy derives from the fact that human justice has its human limitations. It is not given to human justice to see and know, as the great Eternal knows, the thoughts and actions of all men. Human justice has to depend on evidence and inferences. Dealing with the irrevocable issues of life and death, she has to tread cautiously lest she sends an innocent man to an early and ignoble death. In our system, it is therefore better that nine guilty persons escape than that one innocent man is condemned. And that is why the court gives the benefit of any reasonable doubt to an accused person. That benefit of doubt should have been given by the trial court to the 2nd appellant.

 

The trial court erred in not doing just that. The Court of Appeal, with respect, fell into the same error. This court will give that benefit of doubt to the 2nd appellant. His appeal is hereby allowed. His conviction and sentence by the trial court are hereby set aside. The appeal judgment of the Court of Appeal is also set aside. The 2nd appellant is accordingly acquitted and discharged. The appeal of the 1st appellant is hereby dismissed. His conviction and sentence are both affirmed and confirmed. The judgment of the Court of Appeal in respect of the 1st appellant is hereby confirmed.

 

 

Judgment delivered by

Nnaemeka-Agu, J.S.C.

 

 

This appeal by each of the two appellants against the confirmation by the Court of Appeal, Enugu Division. of their conviction of murder by Edozie, J., sitting in an Nsukka High Court raises rather interesting points of law.

 

My learned brother, Kanbi-Whyte, J.S.C., has stated fully the facts leading up to the conviction, and I do not intend to repeat them. I shall confine myself to those aspects of the facts necessary to give some meaning to the points of law I shall discuss.

 

Following the course taken by counsel on both sides I shall deal with the appeal by the 2nd appellant first.

 

The main plank in his case is a defence of alibi: In both his statement to the Police, Exh. D (English translation Exh. Dl) and his testimony in court he denied taking part in the murder. The murder of Chukwuma Okoro (hereinafter called the deceased) in question in this appeal took place at Ogurugu at about 5 p.m., on the 26th of December, 1983. But at about 8 a.m. on that day, one Onuora Chizor, a relation of the 2nd appellant had been allegedly murdered by Paul Onwubiko. Second appellant's case in both his statement and in his testimony in court was that when in the morning he heard of the murder of Onuora Chizor he ran to the house of the Chief of the village called Tagbo Kpela Ojomo to find out how it all happened. The Chief then instructed him to join others in conveying the corpse of Chizor to Enugu-Ezike General Hospital, and he did. He did not go to any other place. By the time he came back in the evening he heard that Chukwuma Okoro, whose murder is the subject of these proceedings, had been killed. The 1st appellant in his testimony stated that he alone killed the deceased.

 

The Police did not investigate the alibi: they did not appear to have interviewed Chief Tagbo Kpela Ojomo at all. However, David Okoro (P.W.4) and Ukwuta Chekwu (P.w.6) the son and brother respectively of the deceased testified that they saw the 2nd appellant at the scene of murder and that he took part in killing the deceased.

 

The learned trial Judge preferred the evidence of P.W.4 and P.W.6, found that the 2nd appellant took part in the murder and convicted him as charged. I must here mention that he did not give any reason why he preferred the evidence of P.W.4 and P.W.6 to that of the two appellants on the point, save that he did not see why P.W.4 and P.W.6 should implicate the 2nd appellant. Strikingly, he himself in discharging the 3rd and 4th accused persons who were also implicated by P.W.4 and P.W.6 destroyed this sole ground for his belief of P.W.4 and P.W.6 on the point where he held:

 

I am aware of the possibility that P.W.4 and P.W.6 in order to secure adequate punishment for the murder of the deceased might try to implicate as many relations of the deceased (sic) persons as they may choose but I have taken this into consideration in discharging the 3rd and 4th accused persons.

 

I may therefore ask: if the relationship of these two vital witnesses with the deceased is a ground for doubt with respect to their attempt to implicate the 3rd and 4th accused, why should this not be a ground for doubt in respect of the 2nd? I am of the view that where persons who are charged together for committing a crime have a common base for their defence, the acceptance of that defence to the benefit of one of them should also result in its acceptance for the benefit of the others. See on this -

 

Anthony Okobi v. The State (1984) 7 S.C. 47;

 

Abudu v. The State (1985)1 N.W.L.R. (Pt.1) 55,

 

In this case the learned trial Judge should have applied the same consideration which he invoked for the 3rd and 4th accused persons for the 2nd appellant. If he did so, he would have given a benefit of the doubt to him.

 

But by far the strongest case of the 2nd appellant was his defence of alibi. In his statement to the Police at the earliest opportunity he stated that, as a result of the murder of his relation Onuora Chizor at about 8 a.m., he went to the house of Chief Tagbo Kpela Ojomo to find out how it all happened. At the instruction of the Chief he joined others in accompanying the corpse to Enugu-Ezike General Hospital. By the time he came back in the evening he heard that the deceased had been murdered. I do not agree with A the learned State Counsel on behalf of the respondent that the appellant did not discharge the evidential burden on him on the state of the above facts. There was no suggestion that the Chief was unknown. Nor do I agree that the burden was not discharged simply because he did not give particulars of the persons who went to Enugu-Ezike with him. I hold that the particulars. he gave were sufficient. The police had therefore a bounden duty to investigate the alibi, once the appellant discharged the evidential burden on him. See

 

Abudu v. The State (1985)1 N.W.L.R. (Pt.1) 55

 

Bozin v. The State (1985)2 N.W.L.R. (Pt.8) 465, at 468

 

Salami v. The State (1988) 3 N.W.L.R. (Pt.85) 670.

 

Besides the general duty of the prosecution to investigate an alibi once C an accused person discharges the evidential burden on him, one feature of this case, makes such an investigation more compelling. On the state of the facts, it is clear that whereas the evidence of P.W.4 and P.W.6, relations of the deceased, states that the 2nd appellant took part in the murder of the deceased, the evidence of the 2nd appellant and the 1st appellant points to the contrary. In that state of the evidence, it was only the investigation of the D police of the 2nd appellant's alibi that could have rationally tilted the evidence one way or the other. It was not enough for the learned trial Judge to state that he did not see why P.W.4 and P.W.6 should lie against the 2nd appellant. The evident bad blood between the relations of the deceased and those of the 2nd appellant created a situation in which the evidence of either side should have been accepted with caution. This need for caution relates to E the evidence of P.W.4 and P.W.6. See Ali v. The State (1972)10 S.C. 87 and Essien (1938)4 W.A.C.A. 112. The ultimate burden to prove the guilt of the 2nd appellant beyond reasonable doubt was on the prosecution. With greatest respects, on the state of the evidence the learned Judge should have held that it was not possible for him to pick and choose between the evidence of P.W.4 and P.W.6 on the one hand and that of the 2nd appellant and 1st F appellant on the other. As the persuasive or ultimate burden of proof was on the prosecution, he should have held that the prosecution failed to prove its case beyond reasonable doubt. It was not enough for the learned Judge to have tried to hide under the clouds of "I believe" and "I disbelieve" without adverting to this debilitating element in the prosecution’s case. As the learned trial Judge and the Court of Appeal failed to give a benefit of the doubt to the 2nd appellant, I should myself do so. His appeal therefore succeeds.

 

The appeal of the 1st appellant has its own peculiar feature. It raises a rather unusual defence of provocation. In his statement to the police, Exh. A. he stated that:

 

(i)     Some time in 1982, Paul Onwubiko, a brother of the deceased stabbed his (1st appellant's) brother, Udechukwu with a dagger. They wanted to take up the matter but as Paul's people begged them his people dropped the matter.

 

(ii)    Earlier in 1983, the same Paul Onwubiko stabbed the 1st appellant's brother, called Ozoemena, in the head. 1st appellant's people wanted to take up the matter but Paul Onwubiko's people got the village Chief to intervene. So the matter was left to lie. 

 

(iii)   On the 26th of December, 1983, the same Paul Onwubiko at about 8 a.m., killed yet another brother of the 1st appellant called Onuora.

 

Incensed by the killing of Onuora which the 1st appellant obviously regarded as the greatest insult to his family, he set out in search of Paul Onwubiko. While looking for him, he saw his brother, Chukwuma and Ukwuta Onwubiko in the bush. On seeing him (1st appellant), Ukwuta ran away and the 1st appellant killed Chukwuma (deceased). The straight issue raised by this appeal is whether a defence of provocation would be available to the 1st appellant on these facts.

 

The view which courts in this country have taken of the defence of provocation in a murder case under the Criminal Code is that, inter alia, for it to avail an accused person the provocation must have been offered by the deceased. Where the issue is that of group provocation then the deceased must have been acting in concert with other members of the group who provoked the killing. See on this:

 

R v. Ebok (1950)19 N.L.R. 84;

R v. Nwanjoku (1937)3 W.A.C.A. 208;

Dummemi v. The Queen (1955)15 W.A.C.A. 75:

R v. Afonja & Ors. (1955) 15 W.A.C.A. 26.

 

I must pause here to observe that most of these decisions proceeded on the premises that the Nigerian Law on the point is the same with English Law. Even though the decision of the English Court of Criminal Appeal in the case of William Richard Hall (1930) 21 Cr. App. R. 48 appears to have decided that the murder of a brother who did not himself commit the provoking act in circumstances which in some material particulars are similar to the instant case can found a defence of provocation and result in reduction of a verdict of murder to manslaughter the most that I can say is that in England there have been two lines of decisions, one of which, represented by the view in the above cases, has been followed in Nigerian courts. We have not been asked in this appeal to over-rule those decisions. Unless and until we over-rule them, the principle will continue to apply. Applying the principle of those decisions in this case it follows that the defence of provocation has not been made out.

 

I therefore agree with my learned brother, Karibi-Whyte, J.S.C., that the appeal of the 1st appellant fails and should be dismissed. It is hereby dismissed. The appeal of the 2nd appellant succeeds, and is allowed.

 

Having disposed of the appeals, one aspect of the case still perturbs me. As I have stated, the appeal of the 1st appellant has failed on the state of our law, as it stands. As has been brought out most vividly in the concurring judgment of my learned brother, Oputa, J S.C., that state of the law is not in consonance with our traditional societal values which would have justified the act of a brother killing because of the brutal killing of his own brother and guardian, in fact the man who was training him in the Polytechnic. What is worse, the same Paul Onwubiko had stabbed Udechukwu a member of 1st appellant's family in 1982 and yet another, Ozoemena, in 1983 before he killed yet another, called Onuora Chizor, about 8a.m. in the morning on which the 1st appellant killed the deceased. Regrettably, the police did not appear to have taken any firm and effective actions on these series of serious issues. Indeed, judging from the obvious falsehood of P.W.3, Aloysius Ndubuisi, the D.C.O. at the time, where he suggested under cross-examination that the appellants were also charged with the murder of their own relation, Onuora Chizor, earlier on the date of the incident - a preposterous falsehood which was rightly rejected by the learned trial Judge - it is clear that the Local Police obviously took sides in the serious conflict between the family of the deceased and that of the appellants. For this reason they failed to bring Paul Onwubiko to book for his two previous stabbing escapades. If they did, the two killings of the 26th of December, 1983, would have been prevented. This is sad, and ought to be seriously regretted.

 

This brings me to the recommendation I propose to make. Considering the circumstances of the case, I hold the view that, although, a defence of provocation has failed on the present state of the law, a recommendation ought to be made which can mitigate the harsh result to the appellant which has been created by the police refusal or neglect to act. I would therefore, and hereby recommend that the appropriate authority exercises mercy to the appellant.

 

 

Counsel

 

J.C. Okonkwo

 

For the Appellants

D.O. Okolo

Principal State Counsel, Ministry of Justice

Anambra State 

For the Respondent