Uchenna Nwachukwu & Anor V. The State (2001)

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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.