Ngwo Kalu Vs The State (1988)

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KAWU, J.S.C. 

On the 23rd day of June, 1988, after hearing submissions of both counsel in this appeal, we allowed the appeal and ordered the acquittal and discharge of the appellant. We then indicated that we would give reasons for our judgment today. I now give my reasons.

The appellant and another person called Uwagwu Kalu were arraigned before Maranzu, J. in the High Court of Imo State holden at Ohafia. They were both charged under Section 319(1) of the Criminal Code Cap. 30 Vol.II, Laws of Eastern Nigeria 1963 applicable in Imo State. The charge alleged that on or about the 8th day of February, 1983, at Asaga, in the Ohafia Judicial Division they murdered one PETER UME MADUKA. They both pleaded not guilty to the charge.

The substance of the case for the prosecution was that the appellant and Uwagwu Kalu (who was the second accused) were among a group of armed men who broke into the dormitory of the Asaga Boys Secondary School, Ohafia, on the night of 28th January, 1983 and inflicted injuries on several students. Amongst the students wounded in the attack were Peter Ume Maduka (the deceased), P.W.6 and P.W.7 It was the prosecution’s case that after the attack in the dormitory, several students, among whom were the deceased, P.W.6 and P.W.7 were taken to the Chief’s house in Asaga town that night. It was further alleged that in the Chiefs house, the second accused instructed the appellant to kill the deceased for his saying that Asaga Boys Secondary School should be removed to Isiama. In compliance with the second accused’s instructions, the appellant hit the deceased on the head with an iron rod. On the 8th day of February, 1983, Peter Ume Maduka died at the University of Nigeria Teaching Hospital Enugu as a result of the injuries sustained.

At the trial, eight witnesses gave evidence for the prosecution. Both accused persons testified in their defence but called no witnesses. At the conclusion of the hearing, the learned trial Judge Maranzu, J. reviewed the totality of the evidence adduced and held that the case against the second accused person – Uwagwu Kalu had not been established. He accordingly acquitted and discharged him. He, however, found the case against the appellant proved and so convicted him and sentenced him to death. The appellant’s appeal to the Court of Appeal was dismissed. He has now appealed to the Supreme Court.

In acquitting and discharging the second accused person, the learned trial Judge, in his judgment gave his reasons as follows:-

“The only evidence linking the second accused person with the commission of the offence is the evidence of p.w.6 who stated that the second accused instructed the first accused to kill the deceased because he (the deceased) had said that the college should be removed from Asaga to Isiama and that the second accused gave this direction in the Chief’s house…………………I have already in this judgment pointed out the indiscreet behaviour of the second accused. It is part of his defence on oath that the charge against him was as a result of the grudge Amaekpu people bear him because he divorced one of their daughters who was his wife. There is no evidence before me as to whether P.W.6 who implicated the second accused is in any way related to the divorced Amaekpu wife of the second accused nor have I any evidence of any other type of relationship cordial or strained between P.W.6 and the second accused. All one can infer from the entire evidence is that the people of Asaga and the people of Amaekpu bear each other some type of grudge. (Italics mine)

My view is reinforced by the answers of P.W.6 to the questions on the point put to him by the learned defence counsel which I have already reproduced in this judgment but which I will repeat to emphasize the point. Quote.

“Question: Did you believe or accept the allegation that Asaga people came to the campus to attack Amaekpu students

ANSWER: I may believe the story because a majority of the students from Amaekpu were seriously injured like myself.

Question: For you this case is an Amaekpu versus Asaga affair while in fact it was a students’ riot.

ANSWER: It was not a students riot because the very person who caught me was not a student and others also.”

The learned trial Judge continued in his judgment:-

“If therefore one accepts my findings of fact that there is ancient grudge between the peoples of Asaga and Amaekpu then one would be very slow in accepting in its entirety the very thin evidence of P.W.6 linking the second accused person who is accepted by both the prosecution and the defence to be the leader of his community of Asaga.”