Uchenna Nwachukwu & Anor V. The State (2001)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

Each of the two appellants, was convicted on the 21st day of July, 1995, of the murder of one, Benjamin Iheama, hereinafter called deceased, contrary to section 319(1) of Criminal Code, by the Owerri High Court, and sentenced to death by hanging.

The prosecution called three witnesses. Each of the appellants testified, but called no witness. None of the witnesses that testified for the prosecution, was an eye-witness to the events leading to the death of the deceased. The case for the prosecution against the 1st appellant, was based on circumstantial evidence and Exhibits B and C, said to be confessional statements, made by him to the police. The case for the prosecution against the 2nd appellant, was also based on circumstantial evidence. The evidence led by the prosecution showed that he was a mere victim of circumstances, his involvement being that he was serving both the deceased and Anthony Nwachukwu, who is still at large, and that he got to know of the death of the deceased, after it had taken place. He was not 16 years old, at the time of the commission of the offence.

The defence of each appellant was a complete denial of the charge. The 1st appellant alleged that, the police forced him to make Exhibits C and B, and that parts of them did not represent what he had stated. While the 2nd appellant admitted, he was the sales boy of the deceased and the brother of Anthony Nwachukwu, who was alleged to have masterminded the murder of the deceased, he denied that he had any connection with it.

At the end of the trial, and in a reserved judgment, the learned trial Judge convicted the appellants and sentenced each of them to death by hanging as earlier noted.

Aggrieved by his conviction, each appellant has appealed to this court and learned Counsel filed a brief of argument for each of them.

In respect of the 1st appellant, counsel identified the following issues for determination:

“1. Whether the learned trial Judge was right in convicting and sentencing the 1st appellant to death, when the prosecution failed to prove the charge of murder beyond reasonable doubt?

2. Whether the learned trial Judge was right in relying on Exhibits “B” and “C” held to be confessional statements, and finding the 1st appellant guilty without investigation or inquiry or trial within trial?
3. Whether the learned trial Judge was right in relying on Exhibit ‘F’ namely evidence given in the previous proceeding before another Judge and finding the 1st appellant guilty, contrary to the provision of section 34(1) of Evidence Act?
4. Whether the circumstantial evidence relied upon in convicting the 1st appellant and sentencing him to death, was sufficient to establish the guilt of the 1st appellant?”

In respect of the 2nd appellant he identified the following issues for determination:

1. Whether there was credible evidence from the prosecution on which a reasonable tribunal would convict, especially when the prosecution conceded that the charge against 2nd appellant had not been proved beyond reasonable doubt?
2. Whether the learned trial Judge was right in invoking the provisions of sections 7, 8 and 10 of the Criminal Code, when the prosecution neither based its case against the 2nd appellant on those sections, nor was the 2nd appellant given the opportunity of defending himself, under those sections and when both counsel were not called upon to address court on the issue of invoking those sections?
3. Whether the learned trial Judge was right in relying on Exhibit ‘F’ being evidence of previous proceedings before another Judge and finding the 2nd appellant guilty?

As the respondent did not file any brief of argument, the appeal was heard by us solely on the appellants’ briefs.

I shall consider the appeal of the 2nd appellant first.

I think all three issues formulated on his behalf can be taken together. They all raise the simple question whether or not the learned trial Judge was justified in convicting this appellant in view of the concession by the prosecution, that no offence had been proved against him.

Mr. A. Nwaiwu, for him submitted in his brief of argument, that nowhere was a link or nexus alleged between the 2nd appellant and the killing of the deceased. Nor did any witness either directly or indirectly, link him with the death of the deceased. Learned Counsel drew attention to the concession made by the prosecuting Deputy Director of Public Prosecutions that no case had been proved against this appellant. It was learned Counsel’s contention that, in view of this concession, the learned Judge was in error to have proceeded under sections 7, 8 and 10 of the Criminal Code to scrounge for evidence with which, to convict the appellant. In counsel’s view, this was the more condemnable, having regard to fact that the appellant had not been given any opportunity of being heard on the applicability of the provisions of the code in question. It was counsel’s contention also, that the reliance by the Judge on evidence given in a trial before another Judge was, in the circumstances, wrong. I think these submissions are well founded. There is no evidence that the 2nd appellant did anything either directly or indirectly, to cause the death of the deceased. There was no finding of fact made by the court below, that implicated the 2nd appellant in the murder of the deceased. In his statement, Exhibit D, he denied taking part in the murder of the deceased and he maintained that stance in his evidence on oath in the court below. Mr. J.C. Duru the learned D.D.P.P., Imo State, who prosecuted the case before the learned Judge, appreciated this fact. In his written address (p. 123, 11.5 – 11 and p. 124, 11.1 13 of the record) the learned D.D.P.P. had this to say –

“As for the 2nd accused -CHIBUZOR NWACHUKWU, I see him as a victim of circumstance – his involvement being that, he was serving both the deceased and the runaway, ANTHONY NWACHUKWU, at the material time, and knew of the killing of the deceased, without more.

In that regard, it is my dispassionate view that time is now ripe for his liberty to be restored.”

…I have already conceded that the case against him, has not been proved by the Prosecution beyond reasonable doubt which should therefore be resolved in his favour – he, being, in my view, a victim of circumstance.

In final result, I urge Your Lordship to:

1. Find the 1st accused – UCHENNA NWACHUKWU (alone) guilty of the murder of the deceased – BENJANlIN IHEAMA

(as charged) and convict him accordingly.

2. Find the 2nd accused – UCHENNA NWACHUKWU (alone) not guilty of the murder of the deceased BENJAMIIN IHEAMA and acquit and discharge him, of the offence charged.” “(Italics mine)

One would have thought that the matter would end there with the 2nd appellant being discharged and acquitted, especially as the learned Judge took particular note of the concession by the prosecution. He expressly stated that he would consider that concession, “which tallies with that of the defence counsel”. At the end of the exercise, however, the learned Judge did nothing of the sort. Rather, he looked into the statement of the 2nd appellant to the police (Exh. D) in search of evidence with which to convict him. He also looked in the evidence of the three prosecution witnesses, and evidence given before another Judge. Thus, where D.D.P.P., nor I, for that matter, could not see any evidence incriminating the 2nd appellant, the learned Judge saw enough to enable him hold at p.173, 11-1-11 of the record that –

“It is evident from the evidence of the prosecution witnesses and the statement of the second accused, which he adopted as his defence that the second accused was an accessory before and after the murder of the deceased having regard to the Provisions of sections 7, 8 and 10 of the Criminal Code… the second accused is also guilty of the charge of murder against him.”

This finding is not supported by the evidence led before the learned trial Judge. I see nothing in Exh. D or the evidence of the prosecution witnesses to support it. The learned Judge set out the entirety of Exh. D at pp. 167 – 169 of the record. I shall do the same to show how wrong the Judge was in his conclusion:

“I, Chibuzor Nwachukwu, having been duly cautioned in English language, that I am not obliged to say anything, unless I wish to do so and that whatever I say, will be taken down in writing and may be given in evidence, voluntarily state as follows:

I know Benjamin Iheama, I also know Anthony Nwachukwu. Anthony Nwachukwu is my brother while Benjamin Iheama was my cousin. I also know Uchenna Nwachukwu, he is my brother of the same father and mother. I know Christopher Ndulaka, he is a friend of Anthony Nwachukwu. Christopher Ndulaka, has no work doing. Anthony my brother, brought me to work with him, in the business between him and Benjamin. I am a salesman in their company. I could remember around January 10th, Anthony sent me to go to Orji and called Uchenna, and Christopher Ndulaka

for him. When they came, three of them entered into a hotel and started to discuss some matters. I do not know what they discussed about. I observed that from the period they use to meet together, in the same hotel and discuss matters. None of them tells me, what they discussed. I saw Benjamin lheama, last on 20/1/85, that was on a Sunday, I asked Anthony about Benjamin lheama, he told me that Benjamin travelled to Lagos.

On 28/1/85, Christopher Ndulaka told me to be careful over Anthony. I asked him if all is well. He asked me to call Anthony for him. I called Anthony for him. Anthony Nwachuku told Christopher Ndulaka, that he should not tell me any thing, if I asked him. As Christopher Ndulaka was going away, I followed him and he told me that Benjamin was no more alive. That himself and Anthony had killed Benjamin lheama. I proposed to report the information to my mother the following day, being 29/1/85. On 29/1/85 Policemen came and arrested me.

I could remember in the month of Jan. 1985. I observed that Benjamin and Anthony, were discussing over sales of Fridge, which we sold and hand over the money to Anthony, which Anthony did not account to Benjamin. Benjamin asked me about it, I told him that we sold the Fridge for N470.00, and handed over the money to Anthony. Anthony accused Benjamin of taking some money, with which he cleared his brother’s car from the wharf.

On 28/1/85 when Christopher Ndulaka told me that they have killed Benjamin, I did not inform Timothy, the senior brother of Benjamin, because he is not always in his Store. Since that date, I have not tell anybody about the information. I did not take part in killing Benjamin. I was not in conspiracy to kill Benjamin lheama.”

On this statement, the learned Judge commented at pp.169 – 170 of the record:

“…it contains the very vital information, that this 2nd accused was the person run-away, Anthony Nwachukwu, sent to summon the first accused, Uchenna Nwachukwu and Christopher Ndulaka (now deceased), for their conspiratorial meeting, and the three of them met regularly, according to second accused in the same hotel from 10th January, 1985, until Benjamin was killed on 20th January, 1985. This same second accused, was the person who told the driver of PW1 on 22nd January, 1985, that the deceased had travelled to Lagos, yet he visited the yard according to him by 10.30 .m. on Sunday 20th Jan. 1985 – the same day, the deceased was killed. This same second accused voluntarily, handed over to PW3 a Policeman the proceeds of his sales in his shop which he said belonged to his elder brother Anthony Nwachukwu and the deceased even when he did not know according to his evidence in-chief that Benjamin his master had died. All these sound too good to be true …”

With the profoundest respect to the learned Judge I see nothing sinister in the errand run by the 2nd appellant. He was categorical that he did not know what the three elder men were discussing even when he asked they refused to tell him. There is no credible or legal evidence from any of the prosecution witnesses that he knew that the “conspirators” were planning a murder. It is true that PW 1 testified-in-chief that the 2nd appellant knew of the arrangement to kill the deceased. Yet this was a witness who, on his own admission, knew nothing about how his brother, the deceased, met his death.

Parts of his cross-examination are instructive in this regard:

“Q. Everything you told the Court yesterday, about how your brother was killed, were stories told to you by others you were not there?

Ans: I was not there.

Q. You never had personal knowledge of how your brother was killed?

Ans: I do not have personal knowledge of how he was killed.”

If he did not have personal knowledge of how his brother had been killed, how did he know that there was an arrangement, and that the 2nd appellant knew of it? Was he told so, by someone else? If so, who told him, and why was that person not called as a witness to confirm it? As the witness had not explained how he came to know, that the 2nd appellant knew of the arrangement to murder the deceased, not, on his own admission, knowing it of his own personal knowledge, no reasonable tribunal could or should have believed him. If he had been told the fact by someone else, then, in the circumstances, his repetition of it was hearsay, which is not legal evidence.

Without the knowledge on the part of the 2nd appellant of what the so-called conspirators were planning, how could he be described as an accessory before the fact of that thing? And where is the evidence, that after the alleged fact he did anything to facilitate the escape from justice of the culprits? For who, after all, is an accessory, before or after, the fact? The former, according to Jowitt’s Dictionary of English Law, 2nd Ed., is

“one who directly or indirectly procured by any means the commission of a felony…”

According to the same source, the latter is –

“one who with the knowledge that a felony had been committed… in any way secured or attempted to secure the escape of the felony, whether by harbouring him or otherwise.”

In the case of the former, the keyword is “procured”. This is a simple English word, the primary meaning of which is “to obtain”. This clearly, implies knowledge on the part of the person who procures of the thing procured. You cannot obtain something about the existence of which you are unaware.

With all due respect to the learned trial Judge, there is no way, on the evidence before him, the 2nd appellant could be said to be an accessory before and after the fact of the killing of the deceased. The available legal evidence, as highlighted by me, in Exh. D earlier set out, is to the effect that 2nd appellant, knew nothing about the plot to kill the deceased. When he summoned (to borrow the learned Judge’s language) the alleged conspirators together, he did so like a true Nigerian youngster, running an errand for an elder brother. He did not have to know and, as the evidence showed, he did not know, why his elder brother had sent him to call the other people. It is not the province of a Nigerian youth to query his elder on the latter’s reason for sending the former to call somebody.

By summoning them together he may in a loose sense have facilitated the conspiracy by the conspirators (and this is even debatable). One sense of the term “to procure” is “to bring about”. So when the 2nd appellant brought the three men together he brought about the opportunity for them to conspire. This involuntary facilitation, however, is not in my view, what the law sets out to punish. As I pointed out before, the only legal evidence available, is the evidence of the 2nd appellant, that he knew nothing of any conspiracy to kill and that he was arrested soon after he got to know of how the deceased died, before he had the opportunity to tell anybody. As there was no contrary legal evidence and as it was not intrinsically incredible, the Judge was bound to accept it. He had no choice.

Inspite of this, the learned Judge rejected the concession made by the prosecution and started looking for incriminating evidence, against the 2nd appellant despite the admission that the charge against him was not proved beyond reasonable doubt as required by law. The wise observation of Eso, JSC. in State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548, at 577 is apposite here:

“And so, I ask, where did the trial court find that piece of evidence on emotion, mind and fear? It is a question that must determine this appeal. And the answer is, as learned Counsel for the State, submitted to the Court of Appeal, the case of a judge making-

‘his own speculation and presumptions not supported by any legal evidence or the Law of Evidence.’

It is a case of a speculator upon-

‘possible defences open to accused person’

Our law does not permit of such speculations judges! It is the case of a Judge who made it his business-

‘to scrounge for evidence, which may have the effect of raising one type of defence or the other in answer to the charge.’

It is unknown to the Law. A Judge of first instance, decides on evidence led by the parties to a case before him. He does not, with respect, concoct evidence. He does not imagine evidence. He interprets a situation as per the cold facts before him not as per what he would have preferred the facts to be. It is unfortunate, that the trial Judge in this case went on that voyage, even unsolicited by the defence. It is more unfortunate, that a Court of Appeal should permit such fancy to thrive!”

In that case, the two lower courts scrounged for evidence in favour of the accused., It was condemned by the Supreme Court. It must be doubly condemnable when the scrounging for evidence was done, as in this case, to rope in a citizen presumed innocent until proved guilty by legal evidence.

I find the learned Judge’s reliance on sections 7, 8 and 10 of the Criminal Code objectionable, not only because the evidence did not warrant it, but also because the prosecution neither based its case against the 2nd appellant on those sections, and the 2nd appellant was not given the opportunity of defending himself under those sections. The Judge brought those sections up in his judgment.

Condemnable also was the reliance by the Judge on Exh. F, the proceedings before another Judge. Page 170 to page 172, of the record shows clearly, that the learned trial Judge relied heavily on the evidence of PW 1, PW 2 and P W3 to which his attention was drawn by the prosecutor. These witnesses testified in the previous proceedings in Exhibit F, but did not testify in these proceedings in convicting the 2nd appellant. Such evidence could only be used for cross-examination as to credit of such person or persons, called to testify in the latter case.

See Alade v. Aborisade (1960) SCNLR 398; (1960) 15 FSC 167.

The learned trial Judge was therefore, wrong in relying on the evidence of PW1, PW2 and PW3 in Exhibit F, in arriving at the guilt of the 2nd appellant.

From all that I have said, I am of the view that it will be unsafe to allow the conviction of the 2nd appellant to stand. I accordingly, allow the appeal of the appellant, set aside the conviction and order that he be acquitted and discharged.

I now come to the 1st appellant’s appeal. Like the case of the 2nd appellant, all the issues formulated on behalf of the 2nd appellant, can be taken together. They all boil down to the same single question, was the guilt of the appellant proved beyond all reasonable doubt? Mr. Nwaiwu, beautifully summarised the complaints giving rise to the issues thus:

“(i) The failure to resolve the material contradictions in the evidence of prosecution witnesses and which raised doubt on the guilt of the 1st appellant.

(ii) The failure of the learned trial Judge to cause investigation or inquiry or trial, within trial to be conducted in the face of statements of 1st appellant namely: Exhibit ‘B and ‘C’ being made under duress.

(iii) The improper application of section 34(1) of the Evidence Act in relying on Exhibit ‘F’ being evidence given in previous proceedings before another Judge.

(iv) The circumstantial evidence not being conclusive especially in view of the issue of involuntariness of Exhibits ‘B’ and ‘C’.

The failure to prove the charge beyond reasonable doubt.”

The first point made by learned Counsel was that, the cause of death of the deceased was not proved, because PW2 and PW3 alleged that the deceased was tied with electric wire, from the neck to the penis, but the wire was not tendered in evidence. It was also learned Counsel’s contention that the autopsy report, was silent on whether the wounds or scars allegedly caused by the 1st appellant on the deceased, were likely to or did cause the death of the deceased. Counsel relied on a litany of cases, including Queen v. Izobo Owe (I961) 1 SCNLR 354; (I961) 1 All NLR 680 and Omogodo v. The State (I981) 5 SC 5,26 – 27.

It is trite, that while medical evidence to prove death is desirable in homicide cases, this is not absolutely essential.

To make the accused criminally liable in case of murder there must be clear evidence, that the death of the deceased was the direct result of the act of the accused. See R. v. Johnson Nwokocha (I 949) 12 WACA 453

Medical evidence in proof of death is, however, not essential in circumstances where –

(i) there is evidence of the death of the deceased; and

(ii) there is evidence that the death was the result of the unlawful and intentional act of the accused person.

Death can be established by sufficient evidence, other than medical evidence showing beyond reasonable doubt, that death resulted from the particular act of the accused. [Adekunle v. The State (I972) 3 SC 153.]

In the instant case, there is evidence that one, Dr. Ihezue, who had travelled overseas for further studies performed post mortem examination on the deceased and issued Exhibit E to PW.3. It is he, who stated that death was caused by asphyxiation, following strangulation. Failure to tender the electric wire was, in my view, therefore, totally irrelevant since the cause of death was known.

Learned Counsel further submitted that there were material contradiction as to the medical doctor, who had performed the post mortem examination because PW2, counsel pointed out, referred to Dr. Njemanze as the doctor who had performed it, while PW3 referred to Dr. H. Ihezue as the doctor who had performed it. He also submitted that, there were material contradictions in the evidence of PW2, as to who took them to the grave because PW3 said it was the 1st appellant, who took them there while in his previous evidence when he testified as PW6 before another Judge, he had said that it was the 1st appellant who described the place himself and Charles Anyanwu traced the place. This, according to him, was in conflict with the evidence of PW2 and PW3.

On the alleged contradiction in the case of the prosecution, I would like to refer to page 165, of the records where the learned trial Judge said:

“…I hold that there are no contradictions in the evidence of the prosecution witnesses, and any contradiction elicited are not material contradictions and they do not go to the root of the matter. It is important to remember that the prosecution witnesses were giving evidence from recollections of events, which took place about eight or nine years before they testified and in such circumstances it is not unusual for witnesses to be a little imprecise.” [Enahoro v. The Queen (1965) NMLR 265]

Having myself read the record, I cannot help agreeing with these observations and conclusion. The contradictions referred to in the case of the prosecution are minor contradictions, which are not sufficient to occasion miscarriage of justice, and the learned trial Judge was quite right in ignoring them. Despite the obvious mix-up as to the name of the doctor who performed the autopsy, there can be no question that a doctor performed it. The medical certificate, Exh. F, shows clearly that Dr. Ihezue was the one. The fact that one of the witnesses gave the name as Dr. Njemanze, is not serious enough to affect the fact that autopsy was in fact carried out. As to how the police found the grave where the deceased was buried, the pieces of evidence highlighted by counsel, as being contradictory are not even so in my view. They all point to the 1st appellant as being instrumental to the discovery of the grave. There may be some discrepancy, which, in my view, is not material.

It was also the submission of learned Counsel that the learned trial Judge was wrong in relying on Exhibits ‘B’ and ‘C’ and holding them to be confessional statements and without investigatory inquiry or trial within trial. He further argued that this failure by the trial Judge occasioned a miscarriage of justice to the 1st appellant because he relied on the statements to convict him. He relied on the cases of Auta v. The State (1975) 4 SC 125 at 134 – 135 and R. v. Igwe (1960) SCNLR 158; (1960) 5 SC 55.

I agree with the observation of learned Counsel that, the learned trial Judge did not hold a trial-within-trial before admitting the statement of the 1st appellant in evidence. It is, however, settled law when a confession is challenged on the ground that the accused never made it at all, that question is a matter to be decided at the conclusion of the case and, the confession can properly be admitted when tendered by the prosecution. In such a case, a trial-within-trial is not called for. Such trial-within-trial is called for, only where the objection to the admission is that the accused had made the statement but not voluntarily. The trial-within-trial is to test the voluntariness or otherwise of the alleged confession, not the fact whether or not the accused made the statement at all. This is the clear import of sections 27(2) and 28 of Evidence Act, Cap. 112, Laws of the Federation, 1990, which provide –

“27(2) Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.

A confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature.” (Italics mine)

Addressing himself to these provisions, Agbaje, JSC, in Obibiozo v. State (1987) 4 NWLR (Pt. 67) 748, at 760 – 76 1, said,

“It is clear law that if evidence of a confession is objected to on the ground that the confession is not made voluntarily, the Judge sitting alone should hear evidence on the point which may be tendered, and then rule on its admissibility, before receiving the confession in evidence. See R. v. Onabanjo (1936) 3 WACA 43 and R. v. Kassi Ors. (1939) 5WACA 154. It is equally clear law that, it must be shown affirmatively on the part of the prosecution that the statement was made voluntarily. I may remark that in R. v. kassi (supra) when the statements of the accused persons in the case were being tendered in the course of the case for the prosecution counsel for the defence, objected to their being received in evidence on the ground simpliciter that they had been made under duress or were induced by promises. In other words, the ground of the objection was simply that the statements were not voluntarily made. One can therefore say that when an objection is taken to a statement on the ground simpliciter that it was not voluntarily made by an accused person, a trial-within-trial must be held to determine the admissibility of the statement before it can be admitted in evidence.

After R. v. kassi (supra) there is the case of R v. Igwe [1960] 5 FSC 55 where it was held as follows:

‘It is now too late to question the rule whether voluntariness or otherwise of a confession must be decided by the Judge before its admission, even where the judge is sitting without a jury, since the courts of this country have applied that rule for many years; but we see no reason to extend the scope of the rule to cases, where a confession is challenged, not because it is alleged that it is not voluntary, but because it is alleged that the accused never made it at all. We are of opinion that, in such a case the question whether the accused made the confession is a matter to be decided by the Judge, in his fact-finding capacity at the conclusion of the case, and that the alleged confession can properly be admitted as part of the evidence, when it is tendered by the prosecution.’

Referring to R. v. Igwe (supra) the Federal Supreme Court said in The Queen v. Imadebhor Eguabor (1962) 1 All NLR 287 at 292 held:

‘as this Court held in R. v. Igwe (1960) 15 FSC 55, it is only where an issue arises as to whether a confession was made voluntarily, that the exceptional procedure of holding a kind of trial within a trial should be adopted, and if an accused person, wishes to deny that he made a statement attributed to him, or that his statement was correctly recorded, the time for him to do so, is when he comes to make his defence. It follows that he should not be permitted to say anything, whether by way of admission or denial, when the statement is tendered by the prosecution; a fortiori he should not be invited to say anything, though it is not clear whether or not that was done here.’

So it can be confidently said on the authorities of R. v. Igwe and The Queen v. Eguabor ( supra) that, where an issue arises as to whether a confession was made voluntarily, a trial within a trial must be adopted to determine the admissibility of the confession, before it is ever admitted in evidence. On the other hand, when the issue was whether the accused made the statement or not, or that the statement was correctly or incorrectly recorded, the statement can be admitted in evidence without holding the exceptional procedure of a trial within a trial, there then being no issue as to whether the confession was made voluntarily.” (Italics mine.)

Now, upon what ground did learned Counsel for the 1st appellant object to the admission of Exhs. B and C? It becomes pertinent to look at the record at this juncture. The learned D.D P.P. began his move to tender Exh. B. at p. 52, 1.28. The record from there up to p. 54, 1.30 reads:

“Duru applies to render same in evidence as in exhibit – the same is shown to defence Counsel, who took the statement to the first accused, and he looked at it for a very long time and the defence Counsel, then informed the court after a long conference with the accused, that the accused is alleging that he cannot now see properly; that he was forced to sign a document and he cannot say whether the document now shown to him is the one he was forced to sign. Defence counsel then says that he is objecting to the document being received in evidence on that ground.

Duru for the prosecution replies and says that, since 1st accused is saying that his sight is failing him, since he cannot see, he cannot say whether this is the document he signed.

Onuzuluike says that his objection is based on the fact that 1st accused said he was forced to sign a document, even though he cannot now recognise the signature thereon, because of his bad eye-sight.

COURT TO ONUZULUIKE: The accused persons including present 1st accused was defended by one Jacob Duke, when on 22/3/89 – PW 3, PW4 and PW5 testified and this same document, was received in evidence as Exhibit ‘C’ without objection, when present accused had very good sight. The proceedings were before F.I.E. Ukatta, J. as he then was what has made this same document now inadmissible in evidence before this Court?

Answer: I was not present at that trial and I am only relying on what the accused is telling me.

COURT TO ONUZULUIKE: Find out from 1st accused, can he sign his signature now so that I compare same with the one on the document sought to be tendered?

Answer: 1st accused says that he cannot see and he cannot write or sign his signature.

COURT TO CLERK OF COURT: Read out and interpret to the 1st accused, the document sought to be tendered since the accused says he can hear and is not yet deaf, whether that is what he told the witness and which the witness recorded.

After the said document was read to him and interpreted to the witness, he denied that that was not his statement to the police.

COURT: I have conducted some sort of trial within a trial in this matter, and I find as a matter of fact that, the present first accused, Uchenna Nwachukwu, is trying to deny his statement out of mischief and after a long stay in prison custody, since 1985. This document sought to be tendered, was read over to the 1st accused before a superior police officer, a D.S.P. on 8/2/85 and the accused accepted same as correct, and signed before the superior police Officer on 8/2/85. Four years later, on 22/3/89, this same document was tendered in evidence without his objection by the then defence Counsel and the accused before Ukattah, J. as he then was who heard this case, but could not conclude same because of creation of States. I disbelieve the denial of the accused and shall receive and I do hereby, receive the said document in evidence and mark same Exhibit ‘B’.”

The record in connection with Exh. C starts from p. 56,1.4 to p.57, 1.20, and reads:

“Duru now applies to tender the said statement in evidence.

Onuzuluike for the accused says, that the witness has requested that the document be read to him because he cannot see as to identify his signature. The first accused remembers making a statement to the police on 25/1/85.

First accused remembers that, the said statement was read over to him by the recorder and she accepted the statement in part and that he told defence Counsel, who was defending him so when this same statement was received in evidence as Exhibit ‘C’ before the High Court on 22 March, 1989, before Mr. Justice F.I.E. Ukattah as he then was.

Onuzulike for accused persons now requests that, the statement of the witness be read to him before he decides to oppose the admission of the statement or not.

COURT TO ONUZULUIKE: Refer me to the law that says that the statement of a witness to the police must be read to him, before you as defence Counsel, will decide whether the statement is that of the accused or not especially as you have told me that you have in your case file – the proof of evidence where the entire contents of the statement of the accused to the police now sought to be tendered, is fully recorded and set out and the proof of evidence was served on the first accused since 1985, before his alleged blindness.

ANS: Since I am satisfied that it is this same statement now sought to be tendered that was tendered before your Learned Brother F.I.E. Ukattah, J. as he then was in an earlier proceeding in this matter, when it was marked Exhibit ‘C’ on 22/3/89, I will not object to its being tendered in evidence now. I will only ask respectfully that the witness be recorded as having said that he did not accept part of that statement when it was tendered on 22/3/89 before F.I.E. Ukattah, J. as he then was.

COURT: The accused persons are being charged to Court for murder. It is left for the prosecutor, if he so wishes in the light of the submissions of defence Counsel to adduce additional evidence, to counter the submissions of defence Counsel mean-lime the statement of the 1st accused to the police is hereby received in evidence without objection and marked Exhibit ‘C’.” (Italics mine.)

From the portions of the record relating to Exh. B, that I italicised, it is clear that the 1st appellant complained that he had been forced to make a statement. When the contents of the statement sought to be put in evidence were read aloud to him he denied that it was the statement he made under duress. It is my view that, in the circumstances, the need for trial-within-trial became irrelevant. The voluntariness or otherwise of the statement ceased to be an issue. The issue became whether or not he made the statement tendered. That issue became a matter for the trial court to decide at the end of the trial.

With regard to Exh. C, the issue of the voluntariness or otherwise of the statement never arose. The only ground of objection was that part of the contents did not represent what he had told the police. The question of trial-within-trial did not, therefore, arise.

It follows from all these that the complaint about the admission of Exhs. B and C without first holding a trial-within-trail is baseless.

The next crucial question is whether or not the learned trial Judge was right in regarding Exhs. B and C as confessional statements.

Section 27(1) of the Evidence Act defines “a confession” as an admission made at any time by a person charged with a crime, stating or suggesting the inference that she committed the crime.

Let us now see whether or not Exhs. B or C, or either of them fits this definition. Exh. B is short and merely adopts what was stated in Exh. C. It also carries an endorsement that the 1st appellant was taken before a superior police officer who read over the statement to the appellant, who confirmed its contents as his statement. Exh. C is on pp. 178, 181 and reads:

“I Uchenna Nwachukwu voluntarily elect to state as follows:- I could remember some time this month, my senior brother Anthony Nwachukwu, told me that he has a trouble with Benjamin, from my mother’s place. I asked him what was the trouble, because Anthony Nwachukwu and Benjamin, have combined business in an electronic at No, 4 Douglas Road, Owerri. He refused to tell me what was their trouble and added that he will kill Benjamin. I told him that he should not kill Benjamin, because he is our brother and our mother’s relation.

On 20/1/85 at about 0700 hrs, my brother Anthony Nwachukwu, came to my house at Umuchoke Orji, and told me to come and help him to kill Benjamin. I told him that I cannot do such a thing. He rebuked me and said that I should follow him. I refused, later I followed him to his house at No. 454 Ikenegbu Layout Owerri. When I got to my brother’s house I saw Christoper Ndulaka and the deceased Benjamin, in my brother’s house. Before this time, my brother had informed Christopher Ndulaka, about the killing of Benjamin and he Christopher, agreed with my brother, but I refused to agree because he was my brother.

At about 0730 hrs, as we were all together in my brother’s bedroom, at last floor of the house, my brother Anthony Nwachukwu and Christopher Ndulaka, held Benjamin and started to strangulate him. When I saw this, I ran away. Only my brother leaves in that flat. I ran down stairs and was staying there, because I do not want to be there. After about 30 minutes, I went back to my brother’s room and saw that Benjamin is dead. My brother and Christopher were all there. I did not see any, injury on the body of the deceased.

After this incident all of us went to our homes.

At about 2100 hrs of 20/1/85, my brother Anthony came and collected Christopher Ndulaka and myself to his house in my brother’s house, he told Christopher and myself to help him bring down the body of Benjamin, from the second floor. Three of us brought the body down. We put the body into the booth of Car No. IM315 WB belonging to the deceased Benjamin. Later my brother drove the car and three of us went along Urratta Express Road Owerri, where they buried him in a shallow pit. It was Christopher Ndulaka, who brought the two shovels they used in digging sand with which they covered the grave. After the burial, my brother dropped me in my house at Orji, he dropped Christopher at Umuahu Orji before me, and finally went away with the car. On 29/1/85, my brother came to my house at about 0900 hrs and asked me why I did not open my shed at Orji, I told him that it was because of money.

On 30/1/85, at about 1700 hrs, I went to my brother’s store at No.4 Douglas Road Owerri, to see my brother, but he was not there. My junior brother Chibuzor told me that my brother went out but did not tell me where he went. My brother Anthony is not married. It was today 31/1/85, that two policemen came and invited me to their office, and told me that they have contract for me. When I got there, I was informed that my brother has killed Christopher Ndulaka, I shouted and told them that I do not know anything about that. I told the Policeman that I would like to see my brother and the person, where I saw Christopher being admitted in the hospital.

I saw that Christopher had injury on his right side of the stomach. Since 29/1/85 that my brother visited me, I have not seen him again. I am a native of Amaegbu Ogwa in Mbaitolu Ikeduru, Owerri.”

What I can gather from this statement is that the 1st appellant maintained that he never wanted to kill and did not take part in killing the deceased. He admitted, however, that he was aware all along of the plan to kill the deceased and was present when the killing began. He said he however left immediately it started, because of his aversion to it. Although he admitted following the other two to where they buried the body, he never took any part.

The only wrong that I find the 1st appellant to have admitted, is that he knew of the plan to kill the deceased but did nothing to prevent it. He did not admit taking any active part in it. Indeed, as has been seen, he denied any such participation. To this extent, therefore, I must agree with the 1st appellant that the learned Judge was wrong in regarding Exhs. B and C as confessional statements in relation to the offence of which he was convicted.

The next question is whether or not, the learned Judge relied on evidence given in Exh. F in convicting the 1st appellant.

Learned Counsel submitted that the learned trial Judge was wrong in relying on the evidence given in the previous proceedings before another Judge in convicting the 1st appellant without adverting his mind to section 35(1) of the Evidence Act. Reliance was placed on the cases off Jonathan Ajijola v. The State (1976) 6 SC 13; Nahman v. Odutola (1953) 14 WACA 381;R. v. Nwa lkpe 381 (l960)FSC 180.

I rnust say straight away that this submission is misplaced because the learned trial Judge did not rely on the evidence given in a previous proceeding, before another Judge in convicting the 1st appellant. At this stage, I would like to reproduce pages 163 – 164 of the record, where the learned Judge indicated upon what evidence he relied on, in convicting the 1st appellant:

“I have already in this judgment, reproduced in full verbatim the aspects of the statements of first accused to the police, which he denied. I do not still accept his denials. In saying so, I like to point out that those two statements were made on different days at one week’s interval- one on 31/1/85, and the other on 8/2/85, and first accused countersigned each of those two statements, before a superior Officer. It is my view, and I so hold that with or without his denials his statements amount to a clear, unequivocal admission of his guilt. I am reinforced in my view by the evidence in chief of the first accused himself, when he gave evidence on oath in his own defence, when he told the court inpart that, when the police came to his house and promised to award him a contract, he went with them to the Police station and later, to the hospital and after narrating to the court, what late Ndulaka, told him he continued, that in the presence of the police the hospitalised late Ndulaka, stated that late Benjamin Iheama was killed by his run-away brother Anthony Nwachukwu; himself Christopher. That part of his evidence has already been reproduced in this judgment.

It is in the circumstance my view, and I so hold that inspite of the denials of the accused, which denials I reject his evidence on oath as a whole tallies in material particulars, with his rather confessional statements to the police Exhibits ‘B’ and ‘C’ in these proceedings. There is also the evidence of PW2 in these proceedings, the relevant part of which I have reproduced in this judgment. That evidence of PW2 is purely circumstantial evidence, and having regard also to Exhibits ‘B’ and ‘C’ in these proceedings, I am convinced and I hold as a fact, that the entire evidence in this case in respect of first accused, Uchenna Nwachukwu and in particular the circumstantial evidence provided by PW2 are very cogent, very complete, compelling and irresistable and they lead to no other conclusion than that first accused Uchenna Nwachukwu, was one of those who voluntarily without any extra-ordinary emergency being very same and without any accident, killed late Benjamin Iheama, and convict him accordingly.’ (Italics mine)

It is clear from this that the learned trial Judge, did not rely on the evidence given in a previous proceeding before another Judge in convicting the 1st appellant. He relied on the evidence of PW2 supported by that of the 1st appellant himself.

The final and most crucial question, is whether or not the learned Judge was right in concluding that the prosecution proved its case against the 1st appellant beyond all reasonable doubt.

Learned Counsel submitted that, the circumstantial evidence led by the prosecution is not sufficient to establish the 1st appellant’s guilt. He submitted that the evidence of PW2 was based on hearsay and therefore, inadmissible. He stressed that if his evidence is expunged, there would be insufficient circumstantial evidence left to convict the 1st appellant. Reliance was placed on the case of Subramanian v. Public Prosecutor (1956) 1 WLR 965 at 969. He further contended that the statements of the 1st appellant Exhibits ‘B’ and ‘C’ were equivocal, and do not amount to admission of guilt and as such, the learned trial Judge was wrong to have admitted the evidence of PW.2 and relied on the statements in convicting him.

In order to sustain a conviction based on circumstantial evidence, the circumstances relied upon by the prosecution must lead conclusively and indisputably, to the guilt of the accused person.

While dealing with the appeal of the 2nd appellant, I demonstrated that the evidence of PWI was hearsay. He admitted that his evidence was based not on his personal knowledge, but on what he had been told. For all practical purposes, therefore, his evidence can be discounted. I have also demonstrated that neither Exh. B nor Exh. C is a confessional statement, in relation to the charge on which the 1st appellant was convicted. Therefore, standing by themselves, they can not ground a connection for the offence charged. They are, however, as held by the learned trial Judge voluntary statements. In the circumstances of this case, I have no reason to disagree with this finding. The fact that they are not confessional statements, does not mean that they cannot contain circumstances that, in conjunction with other circumstances, can lead to a conviction.

Now, I have already set out the portion of the judgment showing that, the learned Judge relied on the evidence of PW2 in preference to the 1st appellant. There was also the evidence of PW3. These two witnesses were corroborated by the 1st appellant, in some material particulars. The learned Judge preferred the story as told by the witnesses, that the 1st appellant told them the story of how he and the others, had killed the deceased and buried him. He preferred their story that he showed them the place of burial to his denial.

Having read the record myself I find myself unable to agree with the 1st appellant that the learned Judge was not justified in his preference. He was the one who saw and heard the witnesses as they testified.

On the evidence before him, particularly the evidence of PW2 and PW3, the learned Judge came to the right conclusion that the prosecution had proved beyond all reasonable doubt. I must, therefore, dismiss the appellant’s appeal and affirm the decision of the learned trial Judge.

In summary, I allow the appeal of the 2nd appellant and enter an acquittal for him. I however, dismiss the appeal of the 1st appellant and affirm the decision of Maranzu, J. convicting him and sentencing him to death.

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Other Citations: (2001)LCN/0973(CA)