Arthur Onyejekwe V. The State (1992)

LawGlobal-Hub Lead Judgment Report

OMO, J.S.C.

The appellant and three others were originally charged in the Anambra State High Court (Onitsha Division) with the murder of a Police constable, Igwe Uduma, at Ogidi, on the 21st January 1984. Following a submission of no-case made at the end of the case for the prosecution at the trial, two of the accused persons were discharged and acquitted.

The appellant and one other (Obi Okonkwo) then testified in their own defence, after which counsel were heard by the Court on their behalf. In its judgment delivered on 7th February, 1986, they were both found guilty of the offence as charged and sentenced to death accordingly. On appeal, the Court of Appeal allowed the appeal of the other convicted person, Obi Okonkwo, and he was discharged and acquitted whilst the appellant’s appeal was dismissed. It is against this judgment that the appellant has appealed to this Court.

The only facts of the case that need be adverted to is that the appellant was a member of a gang of armed robbers who were operating at Ogidi on the night in question. In pursuance of this objective they mounted a road-block. Unfortunately for the operation, instead of civilian vehicles, policemen involved in an anti-robbery operation approached the road-block.

They were asked to stop by a member of the gang who soon realised it was a police vehicle with policemen in it and alerted the other robbers laying an ambush in the surrounding bush, who immediately opened fire on the vehicle. As some of the policemen with arms exchanged fire, members of the gang dispersed in various directions. It is the case for the prosecution that the deceased police constable was killed as a result of shooting by the armed robbers.

In the course of police investigation some members of the gang were arrested. Two of them (at least), including the appellant, made what were considered to be confessional statements, which were duly authenticated by a superior police officer. Four only were subsequently charged to court, and only two were called upon to offer a defence. In their evidence in defence, they retracted their confessional statements to the police which they denied making, and 1st appellant – Obi Okonkwo – pleaded an alibi.

The trial court considered the defences raised and found that the statements of the two accused persons before it, Exhibit D, E and F were confessional. It noted that the statements were not objected to when tendered in evidence. It rejected the 1st appellant’s defence of alibi, and the submissions made as to alleged contradictions/discrepancies in the evidence of the prosecution, and found both accused guilty as charged.

On appeal to the Court of Appeal, the following five issues were raised for determination:-

“1. Whether given the facts in this case and the state of medical evidence there was sufficient link or nexus between the act of the appellants and the cause of death of the deceased as would make the appellants liable for the murder of the deceased.

2. Whether the trial judge was right to have rejected the defence of alibi put up by the first appellant and to have convicted him without any investigation and or proper consideration of the said defence.
3. Whether the trial judge rightly convicted the appellants on their alleged confessional statements.
4. Whether it was right to convict the appellants even though the trial judge failed to advert his mind to various discrepancies in the evidence of witnesses on material points and also failed to make adequate and specific findings on them.
5. Whether having regard to the totality of the evidence before the court, a case of murder was proved beyond reasonable doubts against the appellants.”

The Court of Appeal considered all these issues which had also been raised before and determined by the trial court. It rejected the suggestion that the deceased was killed by a shot from the police, holding rather that the medical evidence suggests the shot which killed the deceased came from the armed robbers. It held that there was no discrepancy in the evidence of witnesses as complained of. In holding that the statements made by the two appellants complained of were confessional statements because it implicated them, the court below (per Uwaifo, J.C.A.) stated thus-

“Although they did not admit that they themselves were armed, they knew others were. They were well aware of the unlawful purpose all of them set out to perform, namely, armed robbery. Each one of them expected that force would be used when necessary and that, because of the nature of the weapons carried, death was a probable consequence. In other words, they had a common purpose and a common intention which, under section 8 of the Criminal Code, would make them liable together for an offence committed in the process of their operation. If therefore two or more persons set out to prosecute an unlawful purpose where the application of force is likely, and one of them is armed with a lethal weapon to the knowledge of the other or others; both or all of them will be guilty of any offence against the person, or homicide, which may be committed by one of them in the course of that unlawful purpose.”.

It also cited and relied on Akinkunmi v. The State (1987) 1 NWLR (Pt. 52) 608 and Adekunle v. The State (1989) 5 NWLR, (Pt. 123) 505 (518-520), as setting out conditions under which the doctrine of common intention enunciated in section 8 of the Criminal Code of Nigeria, would apply. On the defence of alibi raised by the 1st appellant in his second statement to the police made some months after his first statement, the court below held that “for whatever it was worth, the police at that stage had a duty to investigate” same. By not doing so, they had not discharged the burden on them to rebut the defence of alibi. Consequently a reasonable doubt as to the guilt of the 1st appellant had been created which entitled him to an acquittal vide Adedeji v. The State (1971) 1 All N.L.R. 75; Ozaki v. The State (1990) 1 NWLR (Pt.124) 92 at 109; Salami v The State (1988) 3 NWLR (Pt.85) 670 at 677. Before concluding on the appeal, the Court observed and raised suo motu issues, which were not raised on the grounds of appeal or issues filed by the appellants, to wit,

“(a) Whether there was conviction recorded by the trial judge and if not the effect;

(b) Whether a single sentence can properly be passed on two or more accused in respect of the same offence and if not the effect of so doing”