The State Vs Nathaniel Okpala (2012)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C. 

This is an appeal by the State now appellant against the decision of the Court of Appeal, Enugu Division which on the 7th day of July, 2008 allowed the respondent’s appeal against his conviction and sentence to life imprisonment and discharged him by setting aside the judgment of the trial High court coram: Ijem Onwuamaegbu J. sitting at Aguata. It is against that judgment of the Court of Appeal, Enugu that the appellant has by a notice and grounds of appeal filed on 6th October, 2008 come before this court.

The respondent cross- appealed on the ground that the Court of Appeal had erroneously only discharged him instead of making an order of discharge and acquittal. That this court should dismiss the appeal and order a discharge and acquittal in favour of the respondent/cross-appellant.

The facts as briefly stated in this appeal are as follows:

After the initial trial was aborted as a result of the transfer of the trial Judge to another Judicial Division, the respondent/cross-appellant and his son, Chidozie Okpala were on 5/11/2003 arraigned before the Honourable Justice Ijem M. Onwuamaegbu of the High Court of Anambra State sitting at Ekwulobia for the murder of one Nkasiobi Ononamadu on 6/1/2001 contrary to section 274(1) of the Criminal Code Cap. 36, Vol. 11, Laws of Anambra State, 1991. The respondent/cross appellant and the 2nd accused “Not guilty” and their trial commenced.

The prosecution’s case was rendered through six witnesses including PW2 – Charles Ononamadu and PW6 – Sgt. Livinus Ofiaelu both of whose hearsay testimonies the trial court relied on to convict the respondent/cross-appellant. The substance of the PW2’s evidence was that the father of the respondent/cross-appellant one Okpalalisinkwo told him (PW2) that respondent/cross-appellant and 2nd accused person “Murdered” the deceased and that the said Okpalalisinkwo offered to atone for the murder of the deceased in accordance with their custom.

On his own part, PW6 testified that in the course of his investigation, he obtained statements from Okpalalisinkwo and PW4 to the effect that the respondent/cross-appellant and 2nd accused person killed the deceased. Okpalalisinkwo was not called as a witness at the trial and PW4 denied on oath her extra-judicial statements to the police. PW6 tendered the statements of the respondent/cross-appellant and the 2nd accused person to the police as Exhibit “E” and “F” and the prosecution closed its case. The respondent/cross-appellant and the 2nd accused person testified on their respective behalf and called no other witnesses.

After counsel’s final address, on 14/12/2005, the trial court discharged and acquitted the 2nd accused person but convicted the respondent/cross-appellant of manslaughter and imposed the maximum sentence for the offence on the basis that the provisions of section 279 of the Criminal Code, Cap 36 Vol. 11 Laws of Anambra State, 1991, are mandatory.

Being dissatisfied and aggrieved by the conviction and sentence, the respondent/cross appellant appealed to the Court of Appeal within time on five grounds of appeal. In a unanimous decision, the Court of Appeal allowed the appeal but in doing so, the said Court of Appeal merely discharged the respondent/cross-appellant rather than discharging and acquitting him despite holding that the prosecution had failed to prove the offence against the respondent/cross-appellant beyond reasonable doubt.

The appellant through counsel, Chief G. Oseloka Osuigwe settled the appellant’s brief of argument filed on 2/6/10 and a cross respondents brief filed on 24/10/2011.

Emeka Etiaba Esq had the respondent’s brief and that of cross-appellant filed on 5/10/2010 settled on his behalf.

The appellant framed a single issue for determination which is as follows:

Whether the learned Justices of the Court of Appeal were right to set aside the conviction and sentence of the respondent and discharged him on the ground that evidence relied upon by the trial court was hearsay evidence and the guilt of the respondent not proved beyond reasonable doubt.

The respondent couched a sole issue too but differently and that is thus: