Anthony Nwachukwu V. The State (2004)

LawGlobal-Hub Lead Judgment Report

DAVID ADEDOYIN ADENIJI, J.C.A.

In this case, the appellant was convicted for the offence of murder, under section 319 Criminal Code Cap. 30 vol. II of the Laws of Eastern Nigeria applicable in Imo State, by the High Court of Imo State sitting at Owerri, presided over by Hon. Justice L.C. Alinnor. The appellant was sentenced to death on 20th March, 2000. The appellant being dissatisfied with the decision of the court appealed against same.

The facts of the case are that the appellant and the other accused persons were well acquainted with the deceased. The appellant was in fact a relation of the deceased, who was said to be working with the deceased. At a stage the four were said to have conspired to murder the deceased so they could inherit his business. A gun was to be used, but later the idea was dropped as the sound could attract their neighbours. The deceased was therefore, strangulated and later buried in a shallow grave.

The PW1, a brother of the deceased, was informed by the 1st accused that the deceased travelled to Lagos and would from there go to Kaduna. After some time however, information reached the PW1 that his brother was in fact murdered. Police investigation later revealed that the four, that is, Anthony Nwachukwu, Christopher Ndulaka, Chibuzo Nwachukwu, and Uchenna Nwachukwu, had a hand in the gruesome murder whereupon they were arrested. The 1st accused at first ran away to hide in Port Harcourt, but was later caught after he had been published as a wanted person.

The suspects were eventually charged to court.

The appellant’s counsel at the hearing adopted his brief of argument. He formulated 2 issues for determination by this court to wit:
(1) Whether the learned trial Judge was right in relying on exhibit A held to be confessional statement and finding the appellant guilt (sic) without investigation, or inquiry or trial within trial.
(2) Whether the guilt of the appellant was proved beyond reasonable doubt given that the prosecution relied on circumstantial evidence, which did not point irresistibly to the fact that it was the appellant that perpetrated the Crime.

The respondent’s counsel adopted the issues as formulated by the appellant in arguing his brief. The appellant’s counsel submitted that the appellant had in his evidence said that the confessional statement he was alleged to have made was obtained by force and threats and where a confession is obtained by inducement, it is irrelevant having regard to the charge against the accused person, that is, where it appeared to the accused person that he would gain some advantage or would by so doing avoid any evil of a temporary nature. Counsel relied for this on sections 27 and 28 of the Evidence Act.

Counsel further submitted that the issue of the voluntariness of the confessional statement arose during the evidence of the appellant but the trial Judge he said, merely glossed over the evidence of the appellant as regards the voluntariness of the statement. The court counsel maintained rather relied on the fact that no objection was raised to the tendering of the exhibit in evidence even though the appellant had testified that he was forced at gunpoint to sign exhibit ‘A’ (the confessional statement).

Appellant’s counsel was of the view that the court should have held trial within a trial moreso that the appellant claimed that the I.P.O. never read the statement to him. Failure to conduct trial within trial in this case, counsel added, was fatal to the prosecution’s case and on that ground alone counsel went on; the appellant was entitled to an acquittal. This he said, was moreso when there was nothing outside to corroborate the confessional statement to show that the content was true.

Counsel referred to the judgment of the lower court, where he said the trial court refused to conduct trial within trial because the statement (exhibit A) was tendered without objection and pointed out that the exhibit A ought to have been read to the 1st accused in the open court, before it was admitted in evidence. It was therefore, not properly admitted against the appellant’s interest. This case, he said is one based mainly on the confessional statement of the accused. Extra caution was therefore necessary on the part of the court before admitting exhibit ‘A’ in evidence. It should therefore not have been sufficient to foreclose the accused person as counsel put it.

The learned Counsel for the respondent on issue one submitted that exhibit A was not obtained by threats. Counsel pointed out that the PW2, the boss of the I.P.O. infact signed the exhibit, after the appellant had confirmed its correctness. The appellant then signed it without any complaint to the PW2. He submitted further that the statement was tendered in court without objection from the appellant.

It was therefore, late for the appellant to now complain. The PW2 he said was not even challenged on the statement by way of cross-examination as to the claim that the statement was obtained under duress and the court was right to have disbelieved the appellant on his allegation of duress. Counsel cited Solomon Thomas Akpan v. The State (1992) 6 NWLR (Pt. 248) 439 at 472. Learned Counsel insisted that an objection to the admission of the statement ought to have been raised at the stage it was being tendered.

He referred to Akpan v. The State (1992) 6 NWLR (Pt. 248) 439 at 459.
Counsel added that the voluntariness of a statement can never be determined on appeal but at the lower court and cited Akpan v. The State (supra) page 459 – 450. Since objection was not raised to the admission of exhibit A, trial within trial was not necessary, said counsel. He relied on Okoro v. The State (1993) 3 NWLR (Pt. 282) 425 at 436 paragraph F-G. The respondent’s counsel submitted that the appellant agreed that he was taken before PW2 and insisted that he was taken there to confirm the contents of exhibit A only.

Failure to re-read exhibit A in court he submitted, was therefore not fatal since the appellant had already known the content of exhibit A.