Nathaniel Mbenu & Anor V. The State (1988)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

In Suit No. HCR/27C/82 in the Orlu Judicial Division of the High Court of Imo State, the appellants were charged with the following offence –

“STATEMENT OF OFFENCE

Murder contrary to Section 319 of the Criminal Code

PARTICULARS OF OFFENCE

Nathaniel Mbenu and Daniel Nwokem on or about the 8th day of July, 1981 at Abajah in the Nkwerre/lsu Local Government Area in the Orlu Judicial Division, murdered one Camillus Abazie.”

At the trial before Jonah Johnson, J. 6 witnesses gave evidence for the prosecution, while the two accused persons gave evidence on their own behalf and called 5 witnesses. After evaluating all the evidence before him, the learned trial Judge convicted the appellants and sentenced them to death. The appellants appealed to the Court of Appeal, Enugu Judicial Division which on 9th February, 1987 dismissed their appeal. The appellants have now appealed to this Court.

One original ground of appeal was filed, and by leave of this Court, one additional ground of appeal was also filed and argued. These original and additional grounds without the particulars are as follows:-

“1. That the learned Justices of the Court of Appeal erred in law where the case against the appellants depends wholly or substantially on the correctness of one or more identifications of the appellants which the defence alleged to be mistaken in not warning themselves both as Judges and Juries of the special need for caution before upholding the convictions of the appellants in reliance on the correctness of the identification or identifications of the trial Court contrary to the guidelines laid down in R v. Turnbull (1976) 3 All E.R. 549 and as approved by the Supreme Court in the case of Zekari Abudu v The Stale (1985) 1 N.W.L.R. 55, 61, 62.”

ADDITIONAL GROUND OF APPEAL

“1. That the learned Justices of the Court of Appeal erred in law in saying that they find themselves unable to reverse the decision of the learned trial Judge and therefore dismissed the appeal when the onus of proving the guilt of the appellants beyond reasonable doubt in law had not been attained by the prosecution.”

Both Chief Akinyemi and Mr. Amadi, Legal Adviser, learned counsel to the appellants and the respondent filed copious briefs of argument which I have found quite useful. In his own brief, Chief Akinyemi identified 3 issues as arising for determination. These, set down on page 1 of his brief are,

“1. Whether the Court of Appeal was right in upholding the conviction and sentence of the Appellants when the principle of law and procedure applicable to the contradictions and inconsistencies in the extra-judicial statements of P.W.2 and D.W.2 were not followed

2. If the answer to the 1st question is that the law and procedure had not been followed, then could it be said that the Court of Appeal was right in upholding the conviction and sentence of the Appellants on the remaining evidence which the Court of Appeal admitted were inconclusive and not cogent and not compelling
3. Having regard to the time of the night when the crime was alleged to have been committed, the weather condition, the evidence of P.W.2 who can be regarded as a tainted witness, the grudge, and the animosity she bore against the Appellants, failure of the P.W.2 to mention the names of the Appellants, faulty evidence of recognition, could it be said that the guilt of the Appellants had been proved beyond reasonable doubt as required by our law and would the Court of Appeal be right to uphold the conviction and sentence of the Appellants”

As it is clear that the appellants are not here complaining of any failure by the two lower courts to sustain any special defence in law raised on their behalf, but are rather complaining generally that the case against them was not proved beyond reasonable doubt, I think I should set down briefly the facts of this pathetic case. Indeed were it not for the tragic death of an innocent student of the Anambra State University of Technology, one would have said that the case contained all the elements of a titillating tragic-comedy- stories of love affairs, unrequited love, violence, armed robbery etc.