Ngwuta Mbele V. The State (1990)

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AGBAJE, J.S.C.

On 19/4/90, I dismissed the appellant’s appeal summarily. I indicated then that I would give my reasons for doing so today. I now proceed to do so.

The appellant, Ngwuta Mbele, was charged in an Abakaliki High Court of the Anambra State of Nigeria with the murder on 18/3/84 at Inyima Amuzu Ezza in the Abakaliki judicial Division of his wife, Onwushi Ngwuta. The actual trial of the case began before Offiah, J., on 17/1/85 and ended with the judgment the learned trial Judge gave in it on 30/4/85 whereby he found the appellant guilty as charged and sentenced him to death. In all five witnesses testified for the prosecution. The appellant testified in his own behalf. He called no other witness.

In his judgment the learned trial Judge held as follows:-

“I have carefully considered the evidence led by the prosecution and the defence. I believe the evidence of the prosecution witnesses and find that it was the accused who inflicted the matchet cuts which resulted in the death of the deceased. The deceased sustained very serious injuries. From the nature of the injuries sustained and the instrument used it seems clear to me that the accused had the requisite intent for murder. From the totality of the evidence, I am satisfied that the prosecution has proved its case of murder. I find the accused guilty of murder and convict him accordingly,”

With particular reference to the evidence of P.W.3 and P.W.4 the learned trial Judge made the following findings:-

“P.W.3. Nworie Mbele and Nwankwo Mbele, P.W.4, are obviously children of tender years. It was therefore urged on behalf of the accused that I should treat their evidence with caution as there can be lapses of memory. I agree. I think it is now settled law that the sworn evidence of a child need not be corroborated as a matter of law, but a jury should be warned not that they must find corroboration but that there is a risk in acting on the uncorroborated evidence of young boys or girls though they may do so if convinced that the witness is telling the truth. See Cross on Evidence, 4th Edition, p.182 and Anebamen v. The State (1972) 4 S.C. 35 at 38. Great caution is of course required in accepting their evidence because although children may be less likely to be acting from improper motives than adults, they are more susceptible to the influence of third persons and may allow their imaginations to run away with them . Cross on Evidence p.183. As I said, I watched P.W.3 and P.W.4 give evidence in the box. They were quite intelligent and gave rational answers to questions put to them by counsel. They were unshaken in cross-examination. They gave their evidence in a cool and assuring manner and were unruffled. There is also in my view sufficient evidence to corroborate their story. In the first place, the accused himself in his defence admitted seeing his wife lying dead in a pool of blood. He admitted that P.W.4, Nwankwo Mbele, came out of the house at the time. He also admitted that Stephen Mbele, P.W.2, came to the scene. Stephen Mbele saw the accused. The accused had a matchet at the time. When asked why he killed his wife the deceased, accused threatened to kill him. There is also the accused’s statement, Exhibit B. Although the accused denied most of the contents of the statement, I find from the evidence that the accused was the author of Exhibit B and that he made it voluntarily. There is again evidence to corroborate the statement. Accused was seen with a matchet by Stephen Mbele, P.W.2. This fact was admitted by the accused. P.W.3 and P.W.4 were at home when the incident took place. This fact was admitted by the accused his statement.”

Because of the main point urged in favour of the appellant in this appeal it behoves me to reproduce here all what the record of proceedings says about evidence of P.W.4 before it was taken on oath and the evidence itself in chief:-

“P.W.4: Nwankwo Mbele was examined by me in accordance with section 182 and 154 of the Evidence Act. She is aged about 10 years. She gave rational answers to my question and appears quite intelligent although she says she does not attend school. She understands the duty of speaking the truth and is possessed of sufficient intelligence as to justify reception of her evidence. She is now sworn on the gun and states in Ibo as follows: I live at Amuzu Ezza. I knew the deceased, Onwushi Ngwuta. I lived with her and the accused. On the day of incident and as I woke up I saw the accused inflicting matchet cuts on the deceased. I then ran to call Stephen Mbele, P. W.2. I went to P. W.3, Nworie. Stephen accompanied us back to the house. Stephen raised an alarm, people assembled and they used a stick in knocking off the matchet from the accused’s hands. Witness is shown a matchet and says, this is the matchet accused used to inflict the matchet cuts tendered for identification – matchet marked Identification.

The appellant appealed against his conviction and sentence to the Court of Appeal, Enugu Division. The appellant’s appeal was dismissed and the judgment of the trial court was affirmed. However that court as per the lead judgment of Uwaifo, J.C.A., held that the Exh. B, the confessional statement of the appellant was inadmissible because it was not recorded in the Igbo language in which the appellant made it, but in English language, and the interpreter who was used in the process could not be called to give evidence because of his death. For the latter reliance was placed on the decisions in R v. Ogbuewu 12 WACA 482 and R v. Zakwakwa (1960) 5 F.S.C. 12 at 13; [1960] SCNLR 36.

This view of the Court of Appeal on Exh. B has not been challenged before us by the prosecution.

Guided by the decision in Akpan v. The State (1967) NMLR 185 at 188; Arebamen v. State (1972) 4 S.C.35 and Director of Public Prosecutions v. Hester (1973) A.C. 296 at 314, Uwaifo, J.C.A. said:-

“The sworn evidence of a child need not as a matter of law be corroborated but the Judge must realise the possible danger in acting on such uncorroborated evidence.”

And finally, the learned Justice of Court of Appeal held that the only evidence in this case which could properly be used as corroborative evidence of P.W.4’s evidence is as follows:-