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.

Counsel to the appellant he said, never objected to the omission to read exhibit A to the appellant in court thus, failure to re-read exhibit in court was mere irregularity which did not vitiate the trial.
Counsel relied on The State v. Salihu Mohammed Gwonto & Ors. (1983) 1 SCNLR 142, decided by the Supreme Court. He also cited Godwin Anyanwu v. The State (2002) 13 NWLR (Pt.799) 377, also decided by the Supreme Court.

Counsel believed that the court was right in not ordering a trial within a trial in the circumstances and referred to Ikemson v. The State (1989) 3 NWLR (Pt.110) 455; (1988) ACLR page 50 at page 92 paragraphs (sic) 15 – 30. Counsel maintained that the claim by appellant of involuntariness was an afterthought. Counsel later referred to the cases of Ntaha v. The State (1972) 4 SC 1; Eghogbonome v. The State (1993) 7 NWLR (Pt. 306) page 383 at page 433 paragraphs G-H. He stressed that exhibit ‘A’ was the best evidence in the circumstances and urged the court to reject appellant’s contention and thereby resolve Issue No.1 in favour of the respondent.

I have considered the arguments of counsel on both sides in respect of issue one as formulated by appellant’s counsel. Issue one is mainly on whether the court was right in relying on exhibit A, the confessional statement said to have been made by the appellant and finding him guilty of the offence charged without a trial within trial? At a glance therefore, two main points call for determination as regards issue No.1 and these are:
1. The weight of the said exhibit A in the case as a whole and the appropriateness of relying on it to convict the appellant.
2. The issue of conviction of the appellant without the court conducting a trial within trial.

Exhibit ‘A’ is the alleged confessional statement made by the appellant before the Investigating Police Officer, but which was later vouched by the PW2, a Superior Police Officer. Counsel to the appellant contends that the appellant having denied the voluntariness of the statement in court, reliance should not have been placed upon it by the trial Judge to convict the appellant. The respondent’s counsel on the other hand contends that the statement was made voluntarily and the court was right in relying on it.

The said confessional statement exhibit ‘A’ was shown to have been taken by an I.P.O. Sgt. Moses Azubike (now late) who later brought it with the appellant to the PW2. In his testimony on oath, PW2 said the statement was read to the appellant in his presence and the appellant confirmed the content and signed it before he PW2 counter-signed it. On page 66 of the record lines 1 – 26, PW2 said inter alia:
“On 14/8/97 Sgt. Moses Azubike, I.P.O brought before me a suspect, the 1st accused with his confessional statement. The statement was read over to 1st accused by the L.P.O. in English Language. After it had been read over to 1st accused, I inquired from him whether the statement was made by him. He confirmed that the statement was correctly recorded. He also agreed before me that he made the statement voluntarily without duress, threat or promise. I then signed the statement. The 1st accused also counter-signed the statement before me. This is the statement. After I had read the statement, I asked the 1st accused some questions. In reply to my questions, 1st accused told me that since the offence was committed in 1985, he had been in the Rivers State. He told me that he was using his motor cycle for commercial purposes.”

The PW2 gave evidence in the open court and through him the statement was tendered and admitted in evidence without any objection from the appellant’s counsel. The statement is on page 16 – 20 of the record and it contains details of how the plan was hatched. How the appellant conspired with three others to kill the victim in order to inherit the “victim’s” business which the three of them were doing with the deceased; how they changed their mind as to the use of a gun which they felt could attract attention and how they finally agreed to strangulate the victim without attracting the attention of neighbours etc.

I need say here that the details as given in the statement could never have been imagined by anyone who was not an insider and it contained a declaration that it was read to the appellant by the I.P.O to now say he was forced at gunpoint to give such detail of a terrible plot to kill is certainly not true. Apart from that, the appellant had the opportunity of challenging that statement when he got to the PW2 and a golden opportunity of challenging it in court, to make its admission in evidence impossible. Nothing of the sort was done till the statement was admitted in evidence. To my mind it is too late in the day to now deny the statement. I tend to agree with the respondent’s counsel on that score that the belated denial of its voluntariness is a mere afterthought.

Certainly, where a statement had been tendered without objection, its later retraction cannot vitiate the proceedings. See the case of Michael Okaroh v. The State (1988) 3 NWLR (Pt. 81) 214, where it was pointed out in ratio 1 that:
“The appropriate point to raise the involuntariness of a confessional statement is when it is about to be tendered in evidence especially where, as in this case, the accused person is represented by counsel, and it is assumed he ought to know what to do at each stage of the proceeding: (Obidiozo v. The State (1987) 4 NWLR (Pt. 67) page 748 followed).”

The other point connected with issue No.1 is the alleged failure by the court to conduct a trial within trial. With due deference to counsel, a trial within trial is necessary only where a confessional statement is effectively challenged, not where all the opportunities afforded for such denial were never utilised. The retraction of the statement came only after it had been admitted in evidence. Having already been admitted in evidence and marked as an exhibit it could no longer be made the subject of any trial within trial. The conviction of the appellant based on the said exhibit ‘A’ was therefore proper, considered from whatever angle.

The court was therefore right to have held on page 95 lines 8 – 15 of the record thus:
“On the whole, exhibit A was properly admitted and cannot be retracted by the 1st accused. Exhibit ‘A’ is a clear admission by the 1st accused that he along with others murdered the deceased. As has been stated earlier in this judgment, an accused person can even be convicted on his confessional statement alone. I am also satisfied that the prosecution has proved the case against the 1st accused.”

In essence, if the statement was not read to the appellant in court the omission to do so was mere irregularity, which could not vitiate the proceedings. see the case of Okaroh v. The State (supra) page 220, where the Supreme Court held on page 221 citing The Queen v. Equabor (1962) 1 ANLR page 287 inter alia thus:
“Only where an issue arises as to whether a confession was made voluntarily should the exceptional procedure of holding a kind of a trial within a trial be adopted by that court.”

The argument as to failure to hold trial within a trial is therefore not sustainable. Issue No.1 is in consequence resolved in favour of the respondent.

Learned Counsel also touched on an important aspect of the case, when he argued that the confessional statement (exhibit A) ought to have been read to the appellant in the open court, before it was admitted in evidence. That could be so, but the content was already well known to the appellant at least at the stage, when he was taken before PW2, who testified that it was read to the appellant and went on to state other details which the appellant gave about the killing of the victim. The appellant signed the statement and gave details of how the body of the victim was disposed of. In his evidence, he denied the content of exhibit A. In effect, he was all the time aware of the content. The PW2 was in fact never cross-examined as regards the reading of the contents of exhibit A to the appellant hence it was not disputed or in any way rebutted.

I need add that omission to read the statement to the appellant in the open court is a mere procedural omission, which need not vitiate the proceedings. See Okaroh’s case (supra) page 220 where the Supreme Court had said:
“The courts should see to it that justice is never defeated by technical rules of procedure. These rules should be seen as sub-servient hand-maid to justice, not as omnipotent masters at war with justice.”

The court went on to say thus:
“It is not for fun that the duty of the courts when an accused person is represented by counsel is much lighter. Under section 287(1)(b) of the Criminal Procedure Law, the court will merely call upon the legal practitioner to proceed with the defence. The rationale here is that the legal practitioner will know what to do and how to do it. He takes full responsibility.”

On issue No.2, the learned Counsel for the appellant argued that the appellant was arrested in 1997, that is, 11 years after the incident had happened in 1985 and there was no eyewitness account. The only evidence relied upon by the prosecution he submitted, was exhibit A, which he described as the purported confessional statement of the appellant. In the absence of exhibit A only circumstantial evidence remained and it must point irresistibly to the conclusion that it was the appellant, who murdered the deceased. The prosecution he said had not in the circumstances proved the charge beyond reasonable doubt. He then urged this court to allow the appeal and the conviction and sentence of the appellant be quashed, while a verdict of acquittal is returned.

The respondent’s counsel however, argued that the charge had been proved beyond reasonable doubt. Counsel enumerated all the points the prosecution needed to prove in a murder charge and cited Agbangbee v. The State (1988) 3 NWLR (Pt.84) 548; (1998) 1 ACLR 168 at 202; Akpan v. The State (1994) 9 NWLR (Pt. 368) 347 at 351. Counsel went on to say that the appellant and others conspired to kill the deceased and did so by strangling him. Counsel referred to evidence of PW2. The appellant also confessed to the crime and he specifically stated that they killed Benjamin Iheoma, the deceased, in his bedroom and got his body buried in a pit, along the road and the police exhumed the body on that very spot. The exhumation at the spot counsel said, corroborated exhibit A.

Since the ingredients of the offence of murder had been proved by the prosecution, counsel concluded, the prosecution had discharged the burden placed on it by law. He relied on Akpan v. The State (1994) 9 NWLR (Pt. 368) page 347 at page 361. Proof beyond reasonable doubt he said, did not mean proof beyond doubt and in this case he stressed, the prosecution had proved the case against the appellant beyond reasonable doubt. He relied on Ndike v. The State (1994) 8 NWLR (Pt. 360) 33 at 45 paragraph D. It is for the appellant he added to show that the prosecution did not prove its case beyond reasonable doubt and cited in support, Ekpe v. The State (1994) 9 NWLR (Pt. 368) 263 at pages 268-269 paragraphs H-A. Exhibit A he said was a direct account of the part played by the appellant in the murder of the deceased and the issue of circumstantial evidence did not arise. He urged the court to resolve issue No.2 in favour of the respondent.

The complaint of appellant’s counsel in this regard was that, the prosecution relied on circumstantial evidence which he said did not irresistibly point to the appellant as the culprit. The respondent’s counsel was of the view that it was not a case of circumstantial but direct evidence.

As a matter of fact, the whole case for the prosecution was hinged on exhibit A, the confessional statement made by the appellant from which he tried to retract, but failed to achieve that objective. The said statement gave a graphic account of how the plot was hatched, the reason behind the plot, the persons involved in the plan and how it was finally executed. That statement was admitted in evidence without challenge. The PW2, who gave evidence of the reaction of the appellant said the appellant in fact, went on to tell him what he was doing in Rivers State and named the 2nd accused as an accomplice. Coupled with the above is the fact that the body of the victim was found exactly, where he said it was buried. That is corroboration of exhibit A.

The statement of Ndulaka who was said to have been shot by appellant for reasons of short payment was also corroborative of exhibit A. The conduct of the appellant by disappearing from the area of crime to Rivers State where he hid for 11 years and the lie he was said to have told PW1 that the deceased had travelled away to Lagos and was to proceed later to Kaduna, when the man in fact lay buried in a pit, is another corroborative conduct of the appellant.

All the corroborative acts go to fortify exhibit A, which is quite direct and positive enough to warrant the conviction of the appellant. I therefore, agree with the respondent’s counsel that proof beyond reasonable doubt does not mean proof beyond any doubt and that in this particular case, exhibit A together with the surrounding circumstances are enough to sustain a conviction for the offence charged.

In the result, the appeal lacks merit and it is hereby dismissed. The judgment of the trial court, including the death sentence passed on the appellant is affirmed.

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Other Citations: (2004)LCN/1532(CA)