Moses Nkwegu V. The State (2016)
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RITA NOSAKHARE PEMU, J.C.A.
This is an appeal against the Judgment of the High Court of Ebonyi State presided over by Hon. Justice P. O. Elechi of the Abakaliki Judicial Division in charge No. HAB/6C/2012 delivered on the 28th of June 2013.
The Appellant Moses Nkwegu was convicted with five other persons for the offence of ARSON and was consequently sentenced to a term of 7 years imprisonment. – Pages 136-153 of the Record of Appeal.
FACTS LEADING TO THIS APPEAL
The Appellant and five other persons were alleged to have willfully and unlawfully set fire to the dwelling house of one Michael Onyibe on the 23rd day of May 2011.
They were arraigned before the High Court of Ebonyi State, in the Abakaliki Judicial Division, holden at Abakaliki on a one count charge of ARSON, an offence contrary to Section 43 (a) of the Criminal Code Law, Cap, 33, Vol. 1, Laws of Ebonyi State of Nigeria 2009. – Page 2 of the Record of Appeal.
The Appellant pleaded not guilty to the charge. – Page 80 of the Record of Appeal.
The Prosecution called four witnesses PW1, PW2, PW3 and PW4
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– Michael Onyibe, Paul Nwegede, Godwin Ofoke and Ojukwu Ottu respectively, while the Defence called thirteen (13) witnesses.
The case of the Prosecution is that on the night of the 23rd of May 2011, the Appellant and five other persons set fire to the dwelling house of one Michael Onyibe.
The Appellant had made a confessional statement. – Page 30 of the record of Appeal.
PW1 said he took the Appellants confessional statement on the 31st of May 2011.
In the Appellant’s statement of 31st May 2011, he did say thus –
“The people that did set the house on fire with me are as follows –
1) John Nwibo (m) (2) Nwibo Ngbeleke (m) (3) Fidelis Nwegede (m) (4) Anthony Nwema (m) (5) Iziogo Alegu (m) (6) Igbokwe Nkwegu (m) all of the same village with me?”
At the trial, the Appellant as DW1 said his statement to the Police was made under duress. At the trial within trial proceedings, he said he was hung and beaten. Hear him –
“The I.P.O tied my legs and hung me up before he took any statement?” – Page 107 of the Record of Appeal.
The Prosecution said that the Appellant with others invaded the
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victim’s house armed with pump action rifle, knocked on the door to his house. When they could not gain entrance, they now took his shirt which they found outside, soaked it in fuel, lit same and placed it on the window of his house for the fire to burn and spread to the house. The Prosecution said that it was the Appellant who soaked the shirt with fuel while the 1st accused lit it up and placed it on his window.
When PW2 tried to salvage the situation, the Appellant and the others stopped him and manhandled him. PW1 however ran away.
PW2 did say that it was the Appellant that held the gun. He was able to recognize him from the light from the fire.
At the close of the trial, the learned trial Judge found the Appellant guilty as charged.
Because of the denial of the confessional statement, and the fact that the Appellant said that his statement was not made voluntarily, a trial within trial was conducted, and at the end of same, the learned trial Judge, in a very short ruling, admitted the Appellants statement in evidence, as Exhibit, holding that it was made voluntarily. – Page 109 of the Record of Appeal.
?
As a result
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of the conviction of the Appellant, he being desirous of appealing his conviction filed a Notice of Appeal pursuant to the Practice Direction of this Court on the 19th of September 2013. – Pages 154-159 of the Record of Appeal. The Notice of Appeal encapsulates two (2) Grounds of Appeal. They are –
GROUND ONE
“The learned trial judge erred in law when he dismissed the case of Alibi and part pursuant by the accused person in his defence in the charge of Arson made against the accused person”.
GROUND TWO
“The learned trial Judge erred in law when he held without proof that the accused was the person that set fire on the properties notwithstanding the age long case of village authorizing that both parties accepted it exist, which metamorphose to this malicious allegation”.
Pages 154-157 of the Record of Appeal.
At the hearing of the Appeal, the Appellant had sought extension of time within which to compile and transmit the Record of Appeal. Same was granted on the 17th of September 2014 and the Record of Appeal was deemed compiled and transmitted on the 17th of September 2014.
The Respondent had also filed a motion for
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extension of time to file its brief of Argument. Same was granted and the Respondent’s brief of Argument was deemed filed and served on the 28th of January 2016.
The Appellant’s brief was filed on the 10th of October 2014. It is settled by Sir Ejike Ezenwa.
The Respondent filed its brief of argument on the 28th of January 2016, but same was deemed filed on same date. It is settled by Rt. Hon. Augustine N. Nwankwagu – Attorney-General, Ebonyi State.
The Appellant had distilled two (2) issues for determination. They are –
1) “WHETHER THE DEFENCES OF ALIBI WAS ADEQUATELY CONSIDERED IN VIEW OF THE EVIDENCE BEFORE THE TRIAL.
2) WHETHER THE PROSECUTION DISCHARGED ITS BURDEN OF PROVING THAT THE APPELLANT WILFULLY AND UNLAWFULLY SET FIRE TO THE DWELLING HOUSE OF MICHAEL ONYIBE BEYOND REASONABLE DOUBT”.
In the Respondent’s brief of Argument, he distilled a sole issue for determination. It is –
“WHETHER THE APPELLANT CAN RAISE FRESH ISSUE ON APPEAL WITHOUT THE LEAVE OF THIS COURT”.
ISSUE NO 1
This issue deals with ALIBI. With respect, I do not deem it necessary to even consider the Appellants argument on this
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issue, because he did not put up the defence of Alibi in his statement to the Police which he made on the 31st of May 2011. – Page 30 of the Record of Appeal.
There was therefore no need for the learned trial Judge to consider what was not brought up by way of a defence.
The Appellant in his testimony in Court on 3rd May 2013, having given evidence that he was at the time of the crime at Inyimagu village, house of one Edene Anthony at the time of the commission of the crime, this evidence was given at the trial of the case.
It is my view that the issue of failure to investigate the alibi is of no moment. This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO 2
Before I consider this issue, if necessary, I deem it even proper to see if this issue needs consideration in the circumstances of the case.
This is because, from records, the Appellant made a Confessional Statement.
But he was not brought before a Superior Police Officer for attestation of that Confessional Statement.
PW1 Otuu Ojukwu, 438658 Police Constable attached to SARS Abakaliki had this to say at the
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trial within trial proceedings, under cross-examination.
“Statement can only be read before a Superior Police Officer if it is a confessional statement, and the 2nd accused did not make any”. – Page 106 lines 4-5 of the Record of Appeal.
But with respect, the Appellant made a confessional statement to the Police on the 31st of May 2011. This is what informed the trial within trial by the Court in the first place.
The learned trial Judge, having found out (that is if he did) that the Appellant was not taken before a Superior Police officer for the attestation of his statement, should have made an order of no case submission at that threshold, or reject the statement in evidence.
But he went on to rule thus –
“Ruling: The accused person and the I.P.O. in this matter have given their sides of this case. The allegation of torture alleged by the accused is not substantially proved. I do not believe the evidence of the 2nd accused that he was tortured before making his statement in this case. I am more inclined to believe and accept the evidence of the prosecution that the accused made his statement voluntarily to the Police and I
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hereby admit in evidence and mark it as Exhibit C”.
It is apparent that the lower Court was not interested in how the statement was obtained and attested to (if any). He made no observation about this.
I do not find the need to go into the issues argued by the Appellant, as these above mentioned lacunae outweigh them.
First of all, the Appellant did not put up a defence of alibi in his statement.
Second of all, the confessional statement made by him was not attested to.
Third of all, the I.P.O. testified that statement can only be read before a Superior Police officer if it is a confessional statement. He said the Appellant made no confessional statement, when from the Records of Court, he did.
All these show that the case was not properly investigated by the Police and the leaned trial Judge erred by convicting the Appellant, when he failed to evaluate the evidence and circumstances before him properly.
The lower Court should have at that threshold, knowing that the Appellants statement was not attested by a superior Police officer, discharged the appellant on a no – case submission. This is because the
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authenticity of the confessional statement was manifestly unreliable, that no reasonable Court can safely convict upon it OKAFOR v. STATE (2016) 4 NWLR (Pt. 1502) PAGE 248 AT 264 C-D.
Although the present case, the subject matter of this appeal does not have the feature of a no-case submission, the learned trial Judge, having discovered that the Appellants statement was not attested to by a Superior Police officer should not have admitted it in evidence.
Moreso, the I.P.O. testified that there was no confessional statement, when the record shows that there was. The lower Court should have wondered why the issue of trial within trial came up, where there was no confessional statement being challenged.
Let me quickly say here that I had written Judgments in CA/E/470C/2014 ? MBAM CHUKWUMA v. STATE; CA/E/471C/2014 ? SIMON MBAM v. STATE, CA/E/469C/2014 – JOHN OTA OGBAGA v. STATE. Above cases bear the same facts and circumstances, inherent in the present appeal. The Judgments were delivered on the 10th day of March 2016 at the Enugu Division of this Honourable Court.
To deal with the other issues in this appeal would be
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embarking on an academic exercise. I resolve the second issue in favour of the Appellant.
The Appellant in the circumstance of this case should not have been convicted, and sentenced.
The Appeal succeeds, and the conviction and sentence of the Appellant in the Judgment delivered on the 28th of June 2013, in charge No. HAB/6C/2012, is hereby quashed while the Judgment is hereby set aside. The Appellant is hereby discharged and acquitted.
Other Citations: (2016)LCN/8788(CA)
