I • IN THE COURT OF Al-JAMBRA STATE OF NfGERiA IN THE HIGH COURT OF NNEWI JUDICIAL DI VISlON

HOLD :NAT NNEWI:

BEFOR E HIS LORDSHIP, THE H)N filSTICE 0 . M. ANY ACHEBl: L J ON MON Tl IE 2 I sr DAY OF JAN 2 0 ·i 9 · /.

SUIT NO HN/ 30C_1201 2:

RF.TWEEN :

THE STATE COMPLAIN.AN f

AND

CHlGBO NZELU 8 DEFEN D \ NT

JUDGMENT

Thl initial informatio11 and proof of evidence in respect of thi s ca: e was fil cJ 011 25 11' September 201 2. It we: s then a one count charge in c.i ica ti11 ~ u Tc11cc of manslaughter. The pa1tic ll lars of offence was stated . On the 22 i>J Ar ri I 20 13, the Ocfcncb nt p1c;i ckci not guilty to he ch~rgc ~s rc~ci .

Actual hearing commenced o 1 13111 June 2013 with the evidence of PW I . Altogether the Prosecution fi elded 5 witnesses .

With the close of the case fm the Prosecution on 11 th February 20 I \ the

defence opted for a no case submi! sion. Written addresses in respect ti creof were filed and duly adopted. _ In a considered ruling delivered on 24

th cay of

November 2016 , the no case submis ;ion was ovenuled.

Subsequently, the defe;ice op( ned on 25th January 2017 wi th the evi lcnce of Defenda nt as OW 1. The court 11.otes that in between, there \Vere mo' cs to resolve amicably but it failed . Altogether, the Defendant fielded 3 witness, :s.

It is on record that at the collclusion of cross-examination of DWI on l 5th January 201 8, the Prosecution r ioved motion No I 1N/l 289M/201 7 sc ?!~ing leave to amend. That motion was g ·anted without objection, bringing on >Oard the current charge before the court lt is the charge filed on ~0th Novc rnher 2017. It reads as follows ;

Statement of offence - Count l - vfurder, contrary to Section 274 (I) c f the

Crnrn \ ~ fflf ~ ~~-~cirry• d Laws of Anambr;:, Stale of Nigeria 1991 .

I L 1 IJ- r ·•v r· ~ -~/lu(' • 'rlJGH COUR f •7 I I I I \( 11~.,,, . · ,

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Particulars of offence

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<la~ ?~ Decem_ber 20 I I , al u llllleLiuµ 1 Vii l,i : ·t.:. 1,,_1 r;iifitc 111 Nnew1 Jud1c1al D1v1s1on , while armed witli sti'cks ~ 11' ' . . r , cl ll(J O !Cf' .rn~crnus \\ t: ::ipons, did unla\\ 1 ully a~,sault one Ngoz1 Nzclu witl1 ~, • ,·cl . 1·. ,

. . ..> l \S , , 1.:i l ·· lows. and leg kicks which eventually led to her death on the sth day of Janu: ry· ~n 12

-·rc:sh pica was taken on the new charge on 15/ I /18 . 1kadcd 110l guilt y.

The Defendant ag 1111

It is significant to stress that the Prosecution did not therea fte r n~o JC ll

..: ,i:-.c tu call t'ut tiler cv1Jc11cc . A ccor<lingly , the <lcfc11ce co11tmucd \Nit li cv1dc 1-.:e ) ! DW2 and DW3 , On 2ih February 7018, the Defence was voluntari ly clos :d .

Subseq uent ly , both learned cot.nsel obliged and filed written aci re, '~cs \\ h1ch '' ere ciu ly zi cioptcd on :nrJ Oct )bcr 20 l R The Dcfcnchnt ' s rid cl rt.:c; s \ :is

fi led 011 l -l th

.I une 2018, while that of :)rosccutitn was filed J0 11i .I u ly 20 1 8. !' lie

defe nce also field reply brief 0 ·1 19/ IO , 18.

These addresses arc 11ct ed as adopted and incorporated ;:i s µa1i ol tlic rn: u rJ ~.

The e\'1den cc by the wi ti1esscs are hercinbelow summarized .

PW 1 was one Ch111wc.: Nzclu. She ,is the daughter of the deceased N ~~oz i

~Lclu , Shi..: 11a1-ra tcJ l1 u\\ u11 the 10111 Jay of Decclllbcr 2011 011 lier \\ ;1y ,; 1ck from her sh op at about 8 ,00 pm, she heard the voice of s9mcone groa 11i 1 g in pnms On flnshi ng her torchlight . 10 tlrnt direction , she rc-1lizcci it w ,1, her mot her lyi ng bes ide a bush on the road leading into their compound ,

Upon inquiry on what happe,ned, the deceased slated tha l it w ;i the Defendant Chigbo Nzelu and his wife Chinelo that beat her up . Prior tl this 111c1Jc:11t the De:: lenda11t haJ witho ttl the deceased ·s co11sc11t cul dowt tile Avacad~ pear bel onging to the dece.1sed. On that fateful I 0th December :~o I 2, the Di..:fc11d;J 111 · s \\ ifc look the bra11ches of llic said J\ , ,acadu µc;_1r l1 c~ ;1J1Ll packed inside a wheel barrow in orc'er to use same as firewood . The dee ~:1scd intercepted :rnd instead took the whe-~I barrow into the house .

The Defendant's wife infon ,1ed the Defendant on phone about what liappc:ned . 011 ii1s rdurn , he and his wife procecJed tu where the dec ..:ased packcJ the Avacado branches and put it back inside the \\'heel harrow. The o~rc 11JL111t 110\\ \\ ~Ill lo \\hell: the <l c:ccasc<l w· ~ wllliIJ g yq;ctabk s, dr:i_t;; l;,~ d ltcr

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to. tl'e "arde,1 w,.tl11·11 the compound and started beating her. 1-1,·, ·c: · · , , ..._ 1 s w11c J Ol!l u.1 in

., bea1111~ tht.: deceased . ·

/\t a point, the Defendant's w ife went to keep the fire wood that was replaced in the wheel ba1Tow on the instruction of her husband . Thereafte ,· she

returned to join her husband . The Defendant beat the deceased with stick 0 ,1 her hcaJ \\·liich causc<l swelling on her head . He 1ml his wife pourc<l sanJ 011 li ~r. I

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While the beating was going on, the deceased attempted to run awa ,; but wl11k crosl'!ing a hedge, the Defendant kicked her and she foll dow 11 , c.i us .11g a swell on her waist. He further hit h:~r with a stick on her hedd caus in g z1 ;we ll a11J internal blccdi11g.

PWl assisted the deceased i11to the house . She called the ir ui:cl< Mr. Fe l1.>- 1\.1.ubuike Unig,-\c l>u l he ca111c the next <lay, in the lltu!11ing . I t wa Ilia!

same morning that she reported th f· incident to the police dt Ozub ulu r-o lice St :.1tio11 . She went in the comp~ny of her brother Chi~rnikc. She 1n: Jc a statement at the Police Station .

After a report at the station she took her mother to one Od in ,-rn ma Hospital at Nnewi . She was admitted for two days and thereafter di scharged but continued goi ng for check up . She was readmitted when it was di scoverc I that she was not getting any better. Subsequently, she was taken to a Min is t y for Pravcrs . Frn lll lltcre she was moved to Nnamdi Azikiwe Universi ty Tea J 1i11!!.

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Hospital , Nnew i. In the course of tests and examinations, the doctors inqu ired if she k.1J J11 JcciJcnt 0 11 the 1. cad. She died 011 the evening of Ilic J ay s li : "as brought to the Teaching Hospital being 8°1 day of January 20 12 . PW I also m;;ide stcl tement at State CID Awka .

It is the case of the PWI that prior to the " firewood " incident, tlie1 .: had been a l111gen11g dispute for which ihe Oefenda11t had sueJ tlic deceased , l)W I amJ others claiming the deccased ' s house which she built . The case is 1t the 11 tr;.!.h Co urt \Jut \\ he11 the deceased pul up appearance through li c1 cuu11s1 l, the Defendant abandoned the court case . ·

Under cross-exa mination by the defence counsel, the PW I ad1111tl c .I that -~ , sh\1 did not wit ness the incident . Si1e however said that her moth er mcn1 iu ncd

~ ~ -~ 1i1.c wtlc or one Ha~sa man Duniya as one of the neighbours tha_t \V itnesse( from ___. , , ;-r,. ·1·1ic said Dt11lJ\1a li ves 111 the s; tme com1Jo und with the Delc ndant. rn n--· 1 9 ~ - J

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~ ~ .. -~ 2:. t~ PW I admit ted that she has~ ot_her brothers asi?e the lklc11 da11t_ wl o live ;--rl ~::·-r\}'i) l lii.:1 J l lO the JLT Ca::,cJ . She 111s1sh.:J tliat slic J1J llOl cal l all o f {Ii , Ill Oil

!~ -~ ··=: .' t b~<' \C wly::n the 1nc1dcnt happened but call ed only the one arou nd as til e Jthcrs

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live outside the t9w n. When that one named C hibu1kc can ,c back , the Dd~m.lant quickl y kfl m his 111 0torcycle .

She denied the suggestion by the Defendant' s counsel that she took the de~c.;ased lo the tv1in,stry bcca 1se she believed what happened to th~ µec~c scJ was a spiritual attack . She insisted it wa5 because the decea ,;;cd 'was not

responding l o treat ment in the hospi~.11. She further a<lmiltc<l tki : the, ,·i::- tcJ another prayer house called s· gns and wonders alter the first one hut did not "pend ~ night in any of the pra: e r hou~,es

She admitted sayin g in cour1 that the wife of the I lau ~zi 1·1an w, c.-; a w 1t11ess but at the Stale C ID , she slated tlial tli c 1c wc1~ 11 u t.: )t: \\ 11111..:,:-- l \11\Vl vet

she explained that she staled ~0 beca11se the I l:wsa woman ~cJ 1d she wou ld not comL to Police SL1lio 11 to k sti \' .

The photocopy of the st; 1temcnt of the witness to police made at 071 11 ulu datc<l l l / 12/\ I was admitted a1,d rnar~ ed as Lx li1b1l Pl .

She confinned that an Autopsy .vas carried out on the deceased but ndjcd that she <loes not know the doclor that carneJ ,t o ut .

She fina\ly confirmed that on the day of the incident , she saw brui se:• on the deceased cheek , head and waist.

PW2 was one Maxwell Chukw1:ka Nzelu . He is the one of the sons of the Deceased . He recalled the said I 0th December 20 I I . His ve rsion was t lia1 0 11

his way from work around 8 .00am on d1at fateful day he recei ved a call fro1 P bis s iskr (PW l) who rcqucste<l that he rdums home immc<liatcly . 0 11 ge t! i1 1_.~; lo their house, he met the dece2.sed lying on a 81ong bench in the parlor . -; he appeared weak and her clothes were d;rty .

Upon~inquiry , the deceased told him the Defendant beat her up . This Nas because she prevented the Defe ndant' s wife from carrying the wood bra11clies or the Avacado tree the Defendant cut previously . She stated that' when she ·vas µicking vegetables later in the day, the Defendant came back and sta rted cal ' ing her names. She was then dragged by the Defendant to the nearby garden wirhin the compound where the Defendant's ' Nifejoined him and together they hc,1t her up. As she tried to run away, the Defendant kicked her and she fell , sustail'i ng an in\ury on her waist. They both hit her with sticks and p9ured sand on l1cr.

All ti1e ·shouts of the deceased proved abortive as no one came out . Howl ver she told PW2 that she heard of the voic~ of one Mama Victor . ---

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At this pomt, PW2 went to a nearby __ Chen~1 :::, t and purchased some drugs ( .

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. 1_1,, called the deceased brother Felix Umgwe on phone but he ca111 . · tor 1,.:1. v < c 111

(li t: 11 u111i11g.

PW2 and his sister took the deceased to Odinamma Hospital where she was 1 •catcd . She was not admitted initially. They reported to the Police that

same day . ) I

On discovering that the deceased was not improving, she was taken back to the hospital and was admitted . After some days as she appeared not getting any t.ctter, she was taken home and · thereafter they took her to a praying IIIIIII S ry .

Eventnal\y, she was brought to the Teaching Hospital. In the course of treat n ent , the doctor asked whether she had an accident but w e infonned him that sl c was beaten up by her son . She died 111 the teaching hospital. iJ

PW2 contended that the Avacado pear tree belongs to the family as their father s property has not been shared. He stated that the Defendant instituted a court ~;uit against himself, his siblfogs and the deceased. In the said suit, he clai111e J lhal as tlte first so11 , lie is e11tilk<l lo the exc lusive use, uw11ersltiµ uf lhe Obi cc mpound of their late father and damages.

~e made statement to the police in respect of this matter. He mentioned that th ~ir late father did not build any house in his lifetime. Instead they lived . JifTere.t lly fru111 the Defe11da11l. They live in the house built by their mother, tht deccas~d.

,Jnder cross-examination PW2 admitted that both himself and PW l were not pre sent when the Defendant allegedly beat up the deceased. He further a d111 ill c J thal Ii~ observed no open wounds except a swollen mark 011 the ueceas,.:d face .

} le stated that he bought some pain relief drugs mixed by a chemist . He admitted that the deceased brother Felix Unigwe an d the doctor at Odinamrna 1iu~pil,1 111c1J~ ~l alernenls lo the police. He confirmed thal the deceased was admitkJ to the said Odinamma hospital for 3 or 4 d~:ys but stayed at the divine heali ng home Cor a fc'"' minutes for prayers .

l-! c admitted that he was told by the deceased that the Defendant and his wife be 1t her up ,vith sticks . He denied the suggestion by the defence counsel that in !1is statement to _the police that he sta~ed.that he was told tltat it' was only tile Dc t..:ndant that assaulted the deceased . ·

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The :-- Lilcmc nt or the wi tness to the State C ID Awka dated 12/1 / I~ was <1dii 1111..: d at.d 11 1.111-- cJ c1 ::-, L:...l11 b 1t P2.

PW2 confi rmed that the deceased did not make any report to the police LK-~:. 1u::--c due t0 li~r phys ical slak , she was unable lo go lo the police station . H..: qui, kly at.kk d that he requested that 1.P.O .. to come and take the statcme1nt Ill

l Il l< li~Hi::,...: but lie r~ fu ::-icJ . 1

PW3 was one Feli x Azub uikc Un igwe . He is the cousi :1 of the deceased. He I l'.ca l k d l he 111 c 1dt: 11l o 1· I 0

th December 20 l l . :I is ve rsion was that as ill'. was

heh ng_ hi s supper that night, he was ca\\ ed on phc,ne by the deceascd' s daughter (P \ '- · 1) i1\l.u1 rn i1l6 li i1\1 or ,, kit took pL1cc in their hou ::;c ::; tat ins tk1 t the Dc!":ndant has kill ed the ir mother. He went to he dcccascc ' s house the next m01 nin ::'- \0 rncc\ her \yin g. reslless on the lloor . ~he w c1s s~yi 1 g \hnf C' hi gho i e the ,) efcnd:rn t has kill ed her in \ g_bo language .

P\V:i proceeded to conrro,et the Defendant. asked him why he did not go lo s .:e hi s mother who was unconscious but he replied that he should se ize from c .. dl 11 g the <-.kcea sed hi s 1notlier.

He stated that accordin g to PW I , the De1 endanf s version was that the J ec ,..: ascd \ve1 1t .. .111d look the t"irewood pac ked O) lii s w,k. rk th e LJck11da11l lat e : went and collected it back and in the process, he held hi s mother while lrJ i 1g to ic -cu1kct · the firc\\ ooJ , and lhc Jeccascd rcll J 0 \\ 11 a11 J bcc .1111c unconscious .

Accord ing to him , he told " them" to take her to hospital. He stated that the\ were also visiting. her in the said hospital until when he was called and infq rmcd of her death . The Defendant fwther st c1.ted that he made statement to the 10\ icc .

PW] admitted that prior to the incident, the Defendant, the deceased and oth u · s ibl i11gs have Ul'.Cn having issues . They ,, ere all summ oncJ to a peace

meet ing a t the Obi ' s place at Ogbe Ezumeri and in the course of the ci e l i l )er ci tion . there wci s ci mi sunderstanding. The Defendant then brought ;:i

sc-rew driver from his motorcycle and attempted to stab one of his relations. He w ~:-:; held back by some yOLmg men.

Finally , after the death of the deceased, he reported the case to CPS U/.l, oulu . Hi::- slate1-11cul was taken there .. Wh~n the case proce~Jej lo Awka, lit: adouted hi s earlier state ment made at the CPS Ozubulu .

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.l Jndcr -:f1..)ss-exammat11..1n. PW 3 dem~·d cn:r b~mg Slll'd together with

0·thcr 1 1cmbcrs of their fam ily to Okija Shn 11~ by the d~ccascd in relation to a µi1.;:~ c;;; ', r land . rk ~lah;J that it ,,as U ll(' Chuk.,, llllLI U1ll~\-\'l! lk1t 111~ d~1.:~.a:,;cd

sued a 1d he only acted as a witness.

:-l e marntamed that hc had no dispu te with anyone but ,vas merely la witness. He stressed that he had no animosity tm, .u-ds the DcJ~ndant but th;1t llie ldi ; r ,va~ very atrut'.ctlll.

He admitted that the OkijJ Shrine: matter haci been conclmkd before her death .

PW4 was the mYest1gating otlicer, i.e. inspector 0km lnah - Force No. AP 1 0•-J334 _ He stated that upon a rep01t made on I he 9Lh January 2012 about a ca~e uf lllltrJe r at OLl1bLdu Police Station "by 011 ~ Chuka Nzdu agai11~1 th~ Defendant , he commenced investigation .

He recorded the statement of the -Complainant and a witness. He further visite I the ,d kged scene at Oraifite . Tbat was where the Defendant ,,vas iJe11 i i ·,e;;J _ rk was arreslcJ a11J brought ;o the ::-. talion . Hi :::- slak111~11( was recor(.cd.

PW4 further visited th~ scene which is the compound of the~deceased . He a Lo went to the Nnamdi Azikiwe Teaclnng Hospital where rhe corpse of the Jecea)eJ wa~ Jeposiied. The corpse was identified by the Co111plai11a11l and PW 4 LOok photograph of same. The case"' as thereafter transferred to the State C.!. C , AwKa. c

Statement of the Defendant at Ozubulu Polil~e Station de ted 29/ I /2012 is Exh il it P3 .

PW4 slai~d tl1al he was unable lo trace U1e photograph~r who took the photc h-Tfaph of the deceased as he had relocated.

The stripe of 2 No . negatives was adriitted a;id marked as Exhibit P4 .

Tl1(; 2 Nu. µl1otographs or the deceased v.-ere a<lmilled anJ markeJ a~ E:d1 i ,it P5 and P5A respectively .

Under cross-examination, PW4 denitd knO\\ing the Nze i u family prior to thi s ucidc1L He stated that the corpse had bec11 taken to ti e mortuary ever

tic :v e ik Cd >C \I d> rcpuiicJ lu 0Lubulu Police Sta, ion. recf.:T~~ll:D ~ IE co~~.\ \,;--~--, -r1vr~:v ~~ i !; .... ,GH C"'UR ' - 1

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1 c maint a ined that he was not aware w hether an autopsy w as c8nctuctcd · .1 ii · tli l..'. dc~cascd . He 1s also 11ul aw.tre whether lite Jeceased h-1 ... b·· .11 Ill (L'. ::-. fJl l. l L.J ...,1;,;

buried . 8

1>W5 was one Eke Eni , the Assistant Superinte ndent of Po ice attached to the St )1c CID Awka . At the material time , he was serving at St:1te ClD Awka . On IO. I I / 12 , a case of murder from Ozubulu Division was tran .:) ferred to Stare CID and was referred to him and Inspector Samuel Nwagbala for investigation .

O n receipt of ·the case file , the Complainant , Chinwe Nzelu and. Chuk w uka NLclu rnaJe voluntary slalement. The D efendant abo volu11lent:d a statc11 :c11t recorded by Inspector Samuel Nwagbala in his presence .

Subsequently , they visited both the home of the deceased at Ozubulu and \ lnivE·rsity Teaching Hospital at Nnewi where the ci eceased was deposited in the hosp i al moit uary . Photographs were taken .

Therc zi ftcr , they filled Corona ' s Forms, served same on the Police Doctor one D r. Kazim Olawoye who performed post mortem on the d e:;ceased who was iJe11 L l'inl by Chukwuka Nzelu . Finally, lilt: case was chargeJ lo court.

The statement of the Defendant dated 12/1/2012 is adm itted and marked ~::xl11 .Jil I)() _

PWS .confirmed that the post mortem report by the said Dr. Kazim was Ju111: in his presence. The Joclor is now in ½iberia . . The Death Report to Corona-Fonn B 'together with the Report of Medical PrJ d itiom:r fonn C , Post Mortem Exa,mination R cp01t attached is Exhibit P7 .

Under cross-examination PW5 confirmed he was told that the deceased , Jiet• 011 o/i /2012 . He furl her confirmed that the de~easeJ I iveJ l'ur app ·oximatcly one month after assault before she died.

He admitted that before her death . she w as taken to Odinafhma Private H0 pit,1\ where she stayed for a day . She was also taken to prayer house hut wa . discharged the next day as her condition worsened. She was finally rushed to t 1e Teaching Hospital where the died few hours after getting there.

With the conclusion of the evidenc~ of PW5 and at the end of the case fo r Lil '- 1 .. m .. ise~ut 1011 on I l 1h February 20 l 1J, the defence opted for a 110 case sub mission . This was overruled. Deferce opened on 25 th January 2017 wit h

tll , c, idc 11cc or the Dcfcmlant as D\VI .- r;·.:::;~'1'"'t-c1r-?;"';·~~--/--·C tFIED r 'UE cop-;-, -'11 0 -- - ---!l /1/ · S,!<QNl<Wc;t

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His evidence in defence is to the effect that on 10/1 2/2011 when he .rdur i ,cd ho me from work, he was informed by his wife lhat his late mother came Jnd caITied the _Avacado tree wood pac~ed by him where he was currently crcc :i ii:; a li uu::,;c at the back to her own ap:u1ment. Dcfcnda111 with the aid of tore.\~ light went to meet his mother, asking her w t·y she carried the said woo8 . As he v,ms pncki ng the vmod hack into a wh1·~el barre>w, his mother held him . As this \/I as on go ing, the Defendant's wife start ed tak>ng the firewood to their own com p )und in piecemeal. Then he begged his mother to leave him ·alone but inste2-d she held his private part with his boxers . He then pulled off his boxers, forcc .ully took same from his mother and ran naked back to his house.

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Defendant contended that he is not aware that his mother fell down but he adrn i-lcu that he hcarJ lier shouting that th ,.: Dcfe ll<lant had ki lled her. H~ diJ not g > back to sec her but went ir'¢>ide his house, put on his generator and went to be I. He dcn ieci bec1ting or innicting any injury on his moth er while she w;:is holdi 11g him . He confirmed that no one else was present at that time except himstJL his wife and his mother (the decea~.ed) .

Defendant alieged that prior to the incident, his mother had malaria and lli~rc ore was nol physically fil. He <le11ied knowillg al a11yti111 e that his lllothe.r was qospitalized and maintained not to be responsible for the death cf his muCi T

Under cross-examination, the Defendant admitted not to be the I st son of the d ~ceased and that the compound was yet to be partitioned . He admitted not to ha 1c noti fied his mother before he cut the avocado tree. He also maintained llial l c wore shirt and trouser when he went to meet his moth1~r that night. I-k den ic j hitting his mother with wood which eventually led to her death . He also m~ in ~i11cd never to h~vc forcefully draggsd the wood with his mother \\·hich mach her fal I and hit her waist on the ground but insisted that after the incident , his 11 other went into her apc1rtmcnt .

The Defendant denied ever telling his maternal uncle, one ·Felix U11igwe 11cvc to re/er to the deceased as his mother the next day aHer t1.1e incident when he Cc. me. He stated that his mother fell sick one month after the incident but he did n ) l visit her in the hospital because he \vas not aware.

DW2 \Vas one Chine lo Nzelu (Mrs .). She is the wife of the Defendant on 1ccu1 .J Sill: !ulJ the story or how her 1ilother-in-la N came to tl :eir compounJ tu rcm c vc fire wood cut and packed by her ]1usband. She repmicd same to her lwsL 11H.l ;rn d they butli went lo her moth .~r-in-law's aparlm(n l \\'ith a \rliccl ban(. w .

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, \!hen thcv reached, DW2 started packing the wood while the deceased

held tlH Ucl'ell J;rn t' s trousers <lespite the plea by the Defendant for her~o lcavt! him . ·r ic De fe ndant therefore pulled off the tr~user and went home with only boxers. ! le Ji J no t hit the deceased with any _obJect. She alleged lhat before the date of the incident, the deceased v,as not s1ck and after _the incident , she was

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still sec- n moving 11round. OW2 made statement to the pohce. 1

1 Jndcr cross-examination, the DW2 denied saying in her statement to µolicc ihat til t: Defendant was wearing short nicker and that the deceased was

draggi 1g the short nicker.

·) riginal copy o"r the Statement of Chinelo Nzelu (DW2) to Ozubulu · Po\ ice elated 91 1 /20 \ 2 was admitted and marked as Exhibit D 1.

Under cross-examination, DW2 admitted that the Defendant and the Jecca eJ were draggmg tile firewood but quickly added that the Defendant JiJ not to 1ch her . He also conceded that when the Defendant ' s unc le came the next Jay, 1 ~ tolJ llic Dcfc11Ja11l lo go and sec his '.)ick moLhcr.

DW3 wzis one Uwaezuoke Godwin . He is c f the same Li ndred with the Dek: 1 J;:111l . !-le staled that prior lo lite clealb of the Defendant , s mother, slie haJ a di sp ute wi th the Defendant over Avacado wood which the Defendant cut on thc _LJ.H.l gi\·cn to hin1 as homestead .

DW3 conceded not being present on the day of the incident but was told what liappcneJ by one Obunike Nwosu who witnessed the i.1cidenl from his com pound. · He confinned that the Defendant was the actual owner of the rirc \\ oml. D\VJ stated that he knows no tlring pe1taini11g lo the death of the Dcfe 11dant ' s mother .

As al ready indicated, with the close of the case for the defence, written fin al addresses were duly adopted.

I have read the charge, the record of proceedings and exhibits . I have alsu apprecia teJ the submissions as adopted . The contents form part of the proc ccdings and are not reproduced her,~in . I adopt the lone i~sue as put r 0 1 \ Jrd b) Ddc11Ja11t ' s cou11scl as sufficient to cover the field , with slight mo< ification . It is thus~

8

'·W 1ctl~cr the Pro_sccution proved the clurge or any other beyond reasonable dm: ot irom the evidence before the Honot.:.rable Court?

CERTIFIED I}ffe_[ c_nPr j 1-t. o. CiKC!NK~~ol A . C. RE!"~iS r~ ~ A~

LO ATE 1 2---: l.z✓ (_Z±-,

rhc Defendant is charged for the offence of Murder contrary to Section ., ..... , , 1-c··i:" ')(> Vol 2 Revised Laws of ·Anambra Stale of Nioeria 1991 _/4~ l )O q .,- , · , . v ·

lt provides as follows :

Scctio 1 27 4 ( \) - Subject to the provisions of th is section, any person who coin rn ts the o!Ti..:: 11cc of mur<lcr shall be sentenced tc death .

I r;

r\s is usual in criminal Prosecution, the burden is on the State 1.e. Proscl ut ion lo 1xove the case beyond reasonable doubt in order lo sustain a convic tion . As a matter of fact , the burden does not shift. ,,

Sec Section 135 of the Evidence Act 2011.

Sec al so the case of e

court '. tatcd thus;

OBA GABRIEL ADEPOGU ADEYORA VS THE STATE (2012) 30 WRN 67 at 88 -89 where the

"By the pr<>vision of Section 138 (1) of the £, ,itlence Act, the standard of proof in all criminal trials is proof beyond reasonable tloubt ".

lndee i:;, it is the case of NWOSU VS THE ST A TE 1998 8 NWLR (PART 562) 4333 at 444, the comt staled

"In all criminal trials, the burden of proof is alll'ays 011 the prosecution in proving beyow.' reasonable doubt the g11ilt oft 'fie accuse,L Failure to do so will automatically lead to the dischar1:e of the accused". ·

In O ZAKI VS THE STATE 1990 1 N\\'LR PART 124 Po 9·2 ti . . · ' o , le COUI1 lurllte1 slaleJ ; ·

· "What this simply translates to is that where there i.'i any doubt ll.4i to guilty o_f the Acc11sed. such doubt 11111st be resofred in favour of the Accused, in this case the Appellant".

Now, on the 1nean1ng and scope of the phra, e roof be . d doubt . the com t 1n . · - ' P Jon reasonable

~E~I!FiEEol~UE COPYl l-1. L.I . . DKOt\JK ~~rt ,~AT~~~t~]

PATIENCE OMADARE & ANOR \ _✓ - vs

ATT. GEN OF FEDERATION (2013) 32 WRN 129 at 142 -143, had this to say;

"Pro<?{ heyond reasonable 1/oubt however does not JJJCl/11 pr()(~{ beyond fl 'CIJ s/ui(IOH' vf dvubt, but the cvitlcnce adduced by the Prosecution must he strong i aJ:ainst the Accused person as to leave onlv a remote possibility in hisfav()UT. Wh en there is n~thing short of this, the prosecution has discharged its burden anti the trial court may convict".

12

In order to prove the offence of rriurder, the burden placed on the Pro ::i~ culion 1s Lo prove and establish the following ingredients, namely;

a. That 'death of a human being took plac~ i.e. that the deceased died. b. That tile death \,vas caused by the AccLsed. c. That the act of the Accused that caused the death was done with the

i il lcnlio11 of causing death or that the accused knc\N that death wil I be the probable consequence of this act.

See r 1c Supreme Cou1i case of HARUNA VS AG. FEDERATION 2012 9 NWLR PART 1206 Pg 4 I 9 I{atio 1.

See a !so the case of GAMBO MUSA VS STATE 2009 39 NSCQR Vol. 39· at 392.

IGABELE VS THE STATE 2006 6 NWLR PART 975 Pg 100.

On the preliminary issues, it must be borne in mind that the guilt of the Acc u-:,eJ rnay b(.; proved by all or any of the follow ing;

a. b. C. .

Confessional statement. C1 1u1111sla11Lial evidence Di rect evidence i.e. evidence of an eye witness .

OKLJDO VS STATE 2011 3 NWLR PART I""'~~~--

:f.&209. CERTIFIEfJ l r ~:1}{L:op ;-1

'

. HJ GH CfJLJI" 1 f , - ;µ;;_ __________ ~ ' 7t7w• : r-l. u. c11<ur,;v ~,:o' i,~,-,:· n / .-il / 0) J ~.A . C. R~ ;;( i~~;~ J

-- - ~--:~~ r F. f2::~ .:.-kl~---~

j ' ' , N1th rc,'.ards to this ]'"' in,'.rcd,cnt , that is \\ here the issue of nature ol

cv1Jn ..:c arises . i\s already tmi1catcl!, it ts th.) l 111 tkrn b1 that th~ t)ms1.:cu1io11 did not tc1 dcr an c:, c ,v itncss account ot the enr ountcr between the Defendant and tile d-..' :..:~1::_-,..: d.

PW I und er cross-c:\amination stated that the ,kccascd m(1ther told her or OIIC ~.c \\' lllh.: ~s i11 tile µcrsull ur tile wik ~r one Hausa ma11 calk:d Da111iy,1. lncid( ntally , she did not testify and so the dctcncc had urged the court to rely 011

scct i,: 1 I (>7 ;J) 0 r the C, idc1h.:c :\ct 20 I I to ho!J thJt her i: ot being cdfkd impl i,:d that her evidence ,vould have been againsl the Prosecu tion . But could 1hi-; :1 )pl~, in th1:.' circum -; t~ncc'<) \Vith re~pe-: t I thil' ~ 110t .

In the cuursc of proceedings, it was l·cvealcd that the said Hausa woman slay::-. i11 tile same µremiscs with tile Dde11J a11l. It was further tt!vealeJ that she shm\ .:: cl umvill ingness to come to testify . I l i ~ i !1c1 c 1~>1-..: c: !car lliJl llicrc \\JS rc~1su11 fo r her nu. bci11g c;.il le d lo lcslil) .

I subscribe to the contention by the Prosecut ion that the section will make inq.kcl if the Prnsecutiou withheld the evidem.:c. There is 110 evidence or wit h 10lding. The ~urdcn on the Prosecuti;n is to call maternal evidence and 110l u cJII J 1x1rticular \\ il11css if tlic c:isc can ollien\ isc 'x pi·o, cJ . The Pros 2cut ion referred the court to the case of

TE\VOGBADE VS AKANDE I 981 N\VLR 40,i at 40S Per ESO JCA '" here th ,~ court or Appeal slatc:J

''Uc.fore rite presumption under the subsection rnn app~r, rile parry a;;aimt ll'hvm it is svughl tit at it should operate, 11111st have in fact withheld evidence. /Here.failure to produce the evidence woultl not 11ccc8sarily amount to witl,/wldi11;: such evidence"

What is therefore material is to consider if there was circumstantial ev i icnce conclusively pointing: to only one reasonable conclt1sion - g:uilt of the Defendant. What is material is whether the acrs of the Defendant directly or in c ircctly caused th~ death of the deceased.

PW 1 was one Chinelo Nzelu - daughter to the decc8sed and brother \l, !li , D.:k i1J~111t. The Jctaib of the cviJcncc arc aln.;aJy rcµroJuccd . Wli:.L

ap,Jc,1rs borne out f~?m the evidence is that the deceased informed her of wha '. · tr: nspircd :rnd -;pec1f1c:illy referred to the Defe11dc1nt as the person who ~ausro

11 '" ,· tile krnn w ~,.. -- vcntually led to her de2th. There was clear ev1dcnc:;

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f be!·( ,re the court that the deceased cont inued f'Joaning and stating that the · lk i : lld<1111 li <1d. k il led her in Ig~o lan~uage. L v~n lhougl1 she did not <lie

inrn cdiately thc'.ea ft er, it ~as akm to dy~ng decla _·ation since the evjdcnce fro m tile )rnscculiun 1s to the cf feel lliJt she did no t come out of that trauma until slic dice on 81

" Jan uary 2012 .

PW2 and PW3 collabora,ed the PWI b) evidence. They heard the Deceased state that the Defendant had killed h ~r. PW3 ,vas very specific . lndc-~d he even proceeded to confront the Defe ndant after hearing from the deceased but the Defendant appeared non challant about the incident.

PW 1, PW2 and PW3 interestingly all stood their 6rround . Th ~y gave evidence or L ie physic~il injuries \\ liich even rcn cctcd i11 the pliotogr..1plis that \\er\ : ad m ttcd without objection .

As s.atecl earlier, these witnesses were positive 1hat it was as a result of the assc1td t by the Defendant on the deceased that she eventua1ly died. They stood their ground even under cross-examination. In my view, the prosecution had crcdi 1Jlc evidence to showcase the contention th ,1t the Deceased died in the proci.. ss or l n.:al 111e11t resulli11g Crom the assa ult encc llnter with tLe De/endanl.

What \vas the reaction of the Defence to bting to the fo re the situation tlial could ge I1 c rale duubl '?

The D \V I himself admitted and stated undr.~r cross~examination that he look 1i s llH.:ker from lhe deceased by force . He however stateJ tliat he did not know if she fe ll down but heard her shouting that Chigbo (Defendant) had killed 111e . \Vli_y the tkccasccl could be groaning in ~hat manner, and yet the Dcfr11J3nt said , :1e left he r there, went into his apartment, took his bath, put generator and went o bed T fi nd it-difficult to believe that the Defendant was being sincere .

In the statc111cnt voluntarily made by the Defendant which was admitted \Vlllio Il ubjccti u 11 as l:::xhibit P3 , lite Defendant stated thus;

. . zit th is point, I sta11ed dragging to free myself from her, she held my 111ckc t so I used J'orce lo collect tile nicker from her, then she fe J i down, where 1 heard hat she: got wound on the hip". 0

rhc court notes, without prejudice to Exhibit P7, that the Defendant him~c1 I' conc eded tlrnt the decc<1sed fell down in the course of hi s encounter ,vith

I . . I C her, s.1 )w111g apparent v10 cncc. ------ . 7 _ . - :-:~·-::-----£0 TRUE CO i- · j \

11 that ,;a mc Exh1b1t PJ , the Defendant himsel f stated thus{ l __ .tHT\f\ ~ . --~ -~----------- . \·-~7--- -'cn<Ctt'l\(WU~

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:,11 ~~l1~, J ~~T;Jd,:b~:Y 01 I

I 1 , d he ld ihc barrov. and dragg11 g wnh me whik

other came an . , . . St) , ll \ Ill 11 mc my wi Jc !:)la , te;,;J pac" 111 g LI ,~ wuuJ a way

. l1 t•·• •ll l" tl 1c l,i 111 ow WI ' , • :-. it~ \ , I:-. l , ::-::- r

•. ti , wile of the . Defencant conccdl..!d under cross-DW~ ,,vl lO 1:-, lC '

, 1

. I) .1 .1 Lrnt and deceased wcrt· <l1agg111 g l 1c l 11cwouJ Gut ,.;\. ,JI 1111;1 (tUI I I I.ti C L; ll

dc11 1 ·d scc111 s the de.ceased fal l down .

On the nex t day a lte r the 111c1dcnt , PW3, confronted th..: Defendant and rcrw stcd him tn gn over tn sec the rl ecca~ed wlH wa~ sick \1n ce the 111r 1dcn t Ree l rds show that the L)clc11d;.111t refu sed. Yet it ' as this :-;am · Dcfo11da 11 t v.ho stated th at rno !licr was not pli ys 1call y fit prior t the 111c1dc it as a resul t of

111 , il c1 1,1. , Nc vertlic k ss, he w;-i s still violent aga 111 st h r DW.1 h, 11scl r confirmed

tl 1al i JC Uc lc1 1da 11l strn gg kd w 1tli llic 11 101li c1 (uccc, :-,cdJ t l :-i l, c Via~ 11 0111, cd :-, II ICC

lie w, s 11ot rc~JI ly , Ill eye w 11 ness e

It is s1 g11 11'icant tk1 t th e Defe nda nt stated i n chie f th at t! .:: boxer he \\ ~1s

wc;.m 11,.!. w;i s p1il lcd n ff hu t under crnss-C'< cl lll in ati <•11 chan~c cl 1;, c c, 1dc 11 cl' 1'1 :11

when he wrn t to co nfro nt the 111 othcr, li L: wa ~; w<.;arn g shirt a11cJ I ou~c r

/\ concise evalua t ion and apprec ,at, on o f th1...· entire c v1d_: ncc before the.

court. obvio usly shows that the De fendant 0 11 the 0th day of L )ecem bcr 20 11 , had c1 v1o lcnt encou nt er w 1tlt the dcceascu c1 1H.l 1ha1 -., hL: did no t ... omc o lll o f the effec t .111t il she J ied on the 8th

day of Januar) 20 12. There is therdore suffi cient grn u1H; lu li ul d 1'1 ~1 1 ii \\ JS !lie ac ts of the De fc 11 1... IJ nt tli ~1t c:. u:::.~J the <lca tli whcth1~r directl y or indirectl y .

\'l ie defence pl aced much re liance on the pos t Mortc11 Exa mination Report Ex hib it P7 whi ch indicated the probable c tusc of dearh to be card io pulm o1 1ary ar rest (Heart attack) . The rcpcrt did Jlso indicate that the sa id dcceas,~d body was examined and found to be w th no signifi cant ph ys ical 111.J UI y

l Jndoubted ly thi s exhibit P7 raised some issues worthy of attention . But 11 111Lt'~t r11·stl y be apprt;cialc<l thal the maker of Exhi0it P7 <lid nut testify as he was sai d to be in Liberia. As a result , he was not confronted which impliedly ~dlcc!s .li e \\e ight to be attached to the statement.

rf he medical report made reference · to signi fi cant body injury wh ich ol>viuu ::-.iy d1J · 111 t_;; ,rn lhal there was no. inj ury at al . Afte r all ,_ lhe De re11<lant

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Secti rn 272 or Criminal Code prov ides

··A pcrwn who u11ltrnf,1/ly kill.\· am~t/1er in sud, circum.\fm,n·, a.\ not to ,·on.'lhtlll ('

"'""/er is ~"il~r ,f nwns/auglzter'·'.

Sec al : o Sccti1.m ?.79 of the Criminal Code . I r

IX

:or ,1n 1i d;rn cc or doubt_ it is ex igent lo stress that this cou1i is empowered

I l) L, ' " il'.I !",)I .l \ :~:-.er uff cll(C i r l k it is \\"klt is µron:J .

"ice l~jcKc Vs The State ( Supra - Ratio 6 ).

I hol d i1 1 the circumstances that the Prosecution did not prove murder but proved ill(\.. '. ..: 11(c u:· 11'. ;rn :)bublikr J 6Ji11sl the Dcfc.1da11t b\~yond reasonable doubt.

rlic lone issue is to that e~tcnt reso lve j against the Defendant .

.luJ gmcni is therefore entered in the fe llowing terms ;

( I) ·1 he Defendant , Chi gbo Nzelu is found guilty of 111: -. nslaughter as it cl;i tc-; 1n the dc;1th nr N!.!o7.i N 7elu on ·~th .lanu~ry '.20 12 consecp1ent

upon the assault of I 0th December 2011 ·and 1s convicted :1 ccordi nµly .

1\ I U JC l J 1 L S

O.M.ANYACHEBELU Judge .

2 I st Jan 20 19 .

De ll dant ·s ' .... \ )unscl - Notifi es court that the Defendant has no prior criminal i l.'.cuI I k 1 .1 11 1 :--.1 ul k1 1t.k 1. ~ily s lie: 1s 1nl o m1 ed hat the wire lla~ a m:w babv. l lup(: , th at 11..cu11cil1a1io11 can stil l be etTcctcJ and p ·ays fo r opt ion of fi ne. -

f>rn.-,'- _ 1111 u11 L ounsc l Rcmrnds the co t.rt that the Defendant was gt ,·en 1'f'P'"' 1111 111 ,._. .... 1 rcc0nclle h111 he f:t led to ut li1e.

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::-cntL· 11x ( )b\ 1Pu:--ly lhl.'. coun has power to im1tosc num ber of years rn the (" l l ( t . !,:·,l.!llL' ~-· 1 !• .. · .. 1 HI lllll lJ tl 1Jl 1.kC\.:J S\. J \J~ , . ' vlui: I. \. r llr t.: Dd~11d:111I

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