Michael Nwangwa & Ors. V. The State (1997)

LawGlobal-Hub Lead Judgment Report

KATSINA-ALU, J.C.A. 

This is an appeal against the judgment of the Isiala Ngwa High Court holden at Okpuala Ngwa presided over by Isuama, J., in charge No. HIN/28C/87. The appellants were charged with the offences of conspiracy and “Arson”. In his judgment delivered on the 27th day of February, 1995, the appellants were convicted of the offences with which they were charged and sentenced to five (5) and ten (10) years imprisonment respectively. The sentences to run concurrently.

The case of the prosecution as related by PW1 Chijioke Enwereuzo was that on the 6th day of March, 1980, the appellants went and harvested the palm fruits belonging to the complainants. After harvesting, the appellants went into the compound of the complainants, drove them away and set two of their houses on fire. PW1 gave an eye witness account of the incident. The prosecution also relied on the previous testimony of Donatus Enwereuzo (now deceased).

The appellants’ case was a total denial of the charges against them. They individually set up alibis in their statement to the police. The defence also tendered Exhibit ‘C’ the Report of the police investigation compiled by the IPO who had died before the commencement of the trial.

After a review of the evidence, the learned trial Judge convicted and sentenced the appellants as indicated above.

The appellants filed their brief of argument. So did the State. Based on the grounds of appeal filed, the appellants formulated the following issues for determination in this appeal:-

1. Whether the defence of alibi was available to the appellants and whether the learned trial Judge gave adequate and proper consideration to the defence of alibi set up by the appellants when he held that the appellants did not discharge the evidential burden of giving full and sufficient particulars of their defence of alibi? (This issue is covered by ground 1).
2. Whether the learned trial Judge was right in accepting and relying on the printed evidence of a witness who did not testify before him without proper caution or assessment? (This issue relates to ground 2).
3. Whether the learned trial Judge was correct in law to have regarded as worthless hearsay the Investigating Police Officer’s Report (tendered during trial) especially when the IPO had died before trial? (This issue arises from ground 3).
4. Whether the learned trial Judge was right in relying on the evidence of the prosecution witnesses without caution when there was abundant evidence of bad blood between the complainants and appellants. (This issue relates to ground 4 of the appeal).
5. Whether the circumstantial evidence relied upon by the trial court is cogent, positive and compelling to leave no doubt that it was the appellants who committed the offences charged.
6. Whether the terms of imprisonment imposed on the appellants were not excessive?

For its part the State raised four issues for determination which read:,

1. Whether the defence of alibi should avail the appellants.
2. Whether the learned trial Judge was right in attaching weight to Exhibit A, the previous testimony of a witness (now deceased) who testified and was cross-examined before another Judge, while attaching no weight to exhibit c, the investigation police officers report, tendered during trial but whose maker (now deceased) was never called as a witness.
3. Whether the trial learned Judge relied on circumstantial evidence that, fall short of the required standard to convict the appellants and did not warn himself before convicting on the evidence of the prosecution witnesses in view of the bad blood existing between the parties.
4. Whether the sentences were excessive.

The main question for determination in this appeal is whether the prosecution proved its case against the appellants beyond reasonable doubt as required by law. It is clear from the judgment of the learned Judge that he relied on the evidence of PW1 and Exhibit A to convict the appellants. I must state from the outset that in all criminal trials the burden is on the prosecution to prove beyond reasonable doubt the guilt of the accused. See Babuga v. State (1996) 7 NWLR (Pt.460) 279: Onubogu v. State (1974) 9 SC 201; Chia v. State (1996) 6 NWLR (Pt.455) 465. So that where there are material contradictions on vital issues which create reasonable doubt, the learned trial Judge has a duty to resolve the doubt in favour of the accused. See: Baruwa v. State (1996) 7 NWLR (Pt.460) 302.

I shall now examine the evidence led by the prosecution. PW1 Chijioke Enwereuzo was the complainant. He gave an eye-witness account of the incident: Part of his evidence-in-chief runs thus:

“I know the accused persons. They are my relations. On the 5/3/80, the accused persons harvested their own palm fruits and on 6/3/80 they came and harvested our own palm fruits. After harvesting our palm fruits, they came into our compound to fight us. All the accused persons were the people who came to our compound to fight us. They came into our compound and drove us away and set my building and my father’s house on blaze. I ran inside our backyard when the accused persons drove us away. I ran to the police station……..”

The learned trial Judge believed the testimony of this witness. The learned trial Judge also relied on Exhibit ‘A’. Exhibit ‘A’ is the previous testimony of one Donatus Enwereuzo before Eziri. J., on 23/6/88. This witness died before the commencement of hearing before Isuama, J. Part of his evidence in chief reads:

“I know the accused persons. They are from the same village with me. I remember the 6th day of March, 1980, I was in our compound that day around 3 pm many things happened around our house. By 10 am we were at home with my mother and my father’s wife, my younger brother was there with Cecilia and Angelina when the accused persons arrived with matchets and clogs chanting war songs. When we heard their war songs we ran away because we have not been in good terms with them. From our hiding place we observed that the whole compound had been engulfed with fire. We ran to the police station…..”

Under cross-examination this witness said:

“I saw the accused persons at a distance of 50 metres. I saw many of them up to one hundred people. I now say they might be 60 or 70 people all from my village………”