Ananaba Ohuka & Ors V. The State (No.2)

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G. O. AGBAJE, J.S.C. 

The appellants, Ananaba Ohuka, Ukachukwu Onyegbule, Boy Ogbuchi, Chika Uwadineke, Enyinnaya Uwadineke, Onuoha Nwosu and Peter Sabi stood trial along with three others in the High Court of Justice of Imo State sitting at Umuahia for the offence of murder contrary to Section 319(1) of the Criminal Code. The particulars of the offence with which the accused persons were charged said that they on or about the 5th day of November 1978 at Umunwanwa Umuopara in the Umuahia Judicial Division murdered one Okebugwu Nwosuagwu.

The case was tried by Ononuju, J. and the trial commenced on 22nd June, 1979. The 1st-7th appellants were the 1st, 3rd, 4th, 5th, 6th, 8th and 10th accused persons respectively at the trial Court, the other accused persons being the 2nd, 7th and 9th accused persons. At the close of the case for the prosecution on 28/10/80, further proceeding was adjourned till the following day 29/10/80. On that day counsel for the accused persons except the 1st accused began a no case submission on their behalf.

The learned trial Judge having listened to all the submissions on behalf of the accused persons and the reply of the learned State Counsel to them gave his ruling on the submissions in two parts. On 6/11/80 at the end of all the submissions he upheld the no case submission on behalf of the 2nd and 7th accused persons, discharged and acquitted them and then reserved ruling on the submissions on behalf of the other accused persons till 8th November, 1980. In his ruling given on the latter date, he overruled the no case submissions made on their behalf and then called on them i.e. the 3rd, 4th, 5th, 6th, 8th, 9th and 10th accused persons to make their defences.

There is no doubt that the learned trial Judge correctly directed himself as to the principles applicable to the consideration of a no case submission when he said as follows in his ruling:-

“In a Practice Directory dated 9th February, 1962 the Queens Bench Divisional Court laid down that “a submission that there is no case to answer may be properly made and upheld –

(a) where there has been no evidence to prove an essential element of the offence charged.

(b) when the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon if’. The Divisional Court went further to say “apart from these situations a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole evidence which either side wishes to tender has been placed before it.”

A submission of no case means that there is no evidence on which the court could convict even if Court believed the evidence given.

Because of the issue arising for determination in this appeal reference should also be made to the case of Gafari Ajidagba and 4 ors. v. Inspector General of Police 3 F.S.C. 5 at page 6 where it was said in this regard as follows:-

“A decision to discharge an accused person on the ground that a prima facie case has not been made against him must be a decision which, upon a calm view of the whole evidence offered by the prosecution, a rational understanding will suggest;”

Only the 1st accused gave evidence in his own defence. Counsel for the other accused persons indicated that they would rest the case of their clients on the no case submission. Although none of the accused persons went into the witness box to give evidence it can be said that they participated in the proceedings after the no case submissions on their behalf had been overruled for their counsel cross-examined the 1st accused in the witness box on their behalf. However nothing turns on the latter as will hereinafter appear. At the end of the day, the learned trial Judge convicted the 1st, 3rd,4th, 5th, 6th, 8th and 10th accused persons of the offence of murder with which they were charged and they were sentenced to death. He found the 9th accused person not guilty of the offence charged and he was accordingly discharged and acquitted.

The 1st, 3rd. 4th, 5th, 6th, 8th and 10th accused persons appealed unsuccessfully against their convictions and sentences to the Court of Appeal, Enugu Division. They have now appealed further to this court against their convictions and sentences. The preliminary issue in this appeal as to whether the appeal of each of the accused persons to this court was within time or not was resolved in favour of the accused persons. True, the judgment of the Court of Appeal dismissing the appeals of the accused persons was given in their absence on 9th September, 1985. The notice of appeal of each of the accused persons was dated 10th December, 1985, suggesting that the appeal could not have been lodged within the statutory period of 30 days from the date of the judgment prescribed by section 31(2)(b) of the Supreme Court Act 1960 for an appeal against the judgment. Section 31(4) of the Act prohibits an extension of time within which to lodge the appeal in an appeal of this nature. But it transpired that the accused persons did not get notice of the result of their appeal at Port Harcourt prison where they were kept until 9th December 1985. For the notice was sent initially to the wrong address i.e. Owerri Prison and this accounted for its delay in reaching the accused persons before 9th December 1985. So relying on the decision in Ohuka & ors. v. The State (1988) 1 N.W.L. R. Part 72 p.539 it was decided that time within which the accused persons were to appeal against their convictions and sentences would not begin to run against them before 9th December 1985. As notices of their appeal were lodged on 10/12/85, the appeal of each of them was held to be competent.

Having spoken about the preliminary issue raised in this appeal, I can now go on to the consideration of the appeal of each of the appellants on the merits. Mr. F. O. Akinrele S.A.N. who appeared for all the appellants filed a joint brief of arguments on their behalf and Mr. L. M. Amadi, Legal Adviser Public Prosecutions Division, Owerri, Imo State filed a brief for the respondent. The issues calling for determination in this appeal arising from the grounds of appeal in the appeal have been clearly and, in my view, correctly, set down in the appellants’ brief of arguments as follows:-