Augustine Nwangbomu V. The State (1994) LLJR-SC

Augustine Nwangbomu V. The State (1994)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C.

The appellant, Augustine Nwangbomu was to marry one Juliana Igwe, a child. It seems that by custom of Ezza in Abakaliki she had to stay with the proposed husband for a while to decide whether they could live together as husband wife. Juliana Igwe (P.W.9) ran back home several times – about fourteen or fifteen times according to her Uncle Michael Onele, P.W.8. The appellant was apparently unhappy at the prospect of losing Juliana.

Michael Onele (P.W.8), a teacher got home from school and saw the appellant in their compound. The appellant told P.W.8 he had come to effect a settlement on the matter of Juliana and himself. Juliana was very young at the time, perhaps about 12 or 13 years. P.W.8 pleaded with the appellant to allow the girl to mature; the appellant apparently took offence for this simple advice. As P.W.8 was moving away from him the appellant attacked him (P.W.8) with a matchet at his back, neck, ear, right shoulder and on the head. P.W.8 raised an alarm and the appellant told him nobody would save him as he was going to kill him. P.W.8 was saved by the coming out of Juliana, the P.W.8’s mother and his wife.

Before P.W.8 came on the scene, the appellant had spoken to Juliana (P.W.9) and she told him the Obaji Oyibo (Juliana’s mother) had gone to the farm and that P.W.8 was away to school where he was a teacher. When P.W.8 arrived and appellant attacked him with matchet, P,W.9 ran out with the others and saw the appellant running away with a matchet. P.W.8 was having several matchet cuts on him and had to be taken to the hospital.

A little after this at the rice farm of Obaji Oyibo where she was with farm hands including Nwokporo Nweke (P.W.4), Nwafor Ochiagu (P.W.3), Ovu Onele (P.W.5) and Nwoja Odoh (P.W.6); suddenly they heard someone shouting and threatening he would kill anybody he met at the farm. All the others escaped and only Obaji Oyibo was not seen again alive as her corpse was found. According to medical evidence, she was at the time of her death about thirty-five years old and was carrying a five months pregnancy. She had a deep wound at the nape of the neck, five centimetres deep and eleven centimetres long. The wound penetrated the lower cervical vertebra. She died of haemorrhage due to a deep wound on the neck. Nobody who heard the threatening voice at the farm of the deceased waited to see who was threatening; they ran away leaving the deceased alone behind.

There was thus no direct evidence of who attacked the deceased with a sharp object that killed her except the appellant in his voluntary statement to the police. He was cautioned by the investigating police officer and he volunteered a statement (Exhibit B & B1) that infer alia says as follows:

“It is true that I killed Obaji Oyibe with a matchet. My annoyance is that Obaji and Michael Nwigwe and Ezaka Nwigwe conspired within themselves and took my wife from me. The name of my wife is Juliana Augustine. Obaji Oyibe is the mother of my wife while Michael is her uncle and Ezaka is the grandmother of my wife Juliana. Again that after I reported the matter to the police and the police told us to go and settle at home, we went home and instead of settling the matter as was directed by the police, Obaji was abusing me saying that since police have set her free, she was no more giving me one kobo.

Moreover, I understood that the above mentioned people i.e. Obaji Oyibe, Michael Nwigwe and Ezaka Nwigwe went to make charm so that before 31st December, 1983 I will die and they will get a chance to give out my wife to another person to marry. Since I discovered this, I felt sick in as much, I did not attend Eke market on two occasions. I could remember that the sickness which swoll (sic) my right leg and my waist started on or about 1st December, 1983 and up till now I am still suffering it. At about early November, 1983 when I went to collect Juliana’s locker from school Michael met me in the school where the headmaster and other teachers were and told me that he is planning for me with his people that I am going to suffer. This same Michael and Obaji instead of looking for settlement they encouraged Juliana not to marry me again.

Having considered all these things, I made up my mind to go and receive my money from them. When I reached their compound, Michael was not in so I waited until he came back from school. When I told him that I came to collect my wife he, Michael told me that Joseph Elom is the care taker and I should meet him with six cartons of beer and goat or any other thing he must have told me before I will come to meet him again. Having heard this, and other things from Michael I come to believe that they have really planned for me so I gave him matchet cut about three times and he fell down. I fell down too and was still there until (sic) they wanted to kill me before I ran away with the matchet I used. Before I left I have heard an information that Obaji went to farm so I ran through that direction and incidentally met her in the farm and gave her matchet cuts one on her neck and the other on her head. She then fell down and I ran away. One Eda Igide ‘m’ who is a brother to Ezaka was the person who said that the case which I reported to police will not be withdrawn so that any day they see me in their house they will kill me. It was Obaji who told me this and not Eda himself. That was the day I went to collect locker when she was telling me about the charm they have prepared for me. When police came to my house and arrested me, I showed them the matchet which I used in killing Obaji Oyibe.”

(Sgd.)

Augustine Nwangbomu.

9/12/83

Statement was recorded by me in English language read over to maker in same language and he signed it as correct.

(sgd.)

Chiegbu Cpl. 60454

9/12/83.

Thus, by this voluntary statement, the appellant confessed that he first attacked P.W.8, and having heard that Obaji Oyibo (deceased) was at the farm he ran there and found her alone and killed her with the matchet.

At the trial, appellant attempted to resile on his voluntary statement. Exhibit B and B1. He admitted he made a statement but that he never said all that was recorded. Thus the making of the statement rather than its voluntariness was in issue. Learned trial Judge ruled and admitted the statement. Trial Judge after a review of the evidence in the case, especially the complete denial of any knowledge of how the deceased died and the denial by appellant that he never even visited the compound of the deceased where P.W.8 and P.W.9 also lived on the 8th December, 1983, found the appellant guilty of the offence of murder under S.319(1) Criminal Code Law (Laws of Eastern Nigeria, 1963) Cap. 43 Vol.II He was sentenced to death. On appeal, Court of Appeal, Enugu Branch dismissed the appeal; thus the appeal to this court.

There is only one ground, the general ground of appeal. There are raised three issues for determination in the appellant’s brief of argument, to wit:

“ISSUES FOR DETERMINATION

(1) Whether the Court of Appeal was right in affirming the decision of the trial Judge in admitting Exh. B, B1 as a statement made and signed by the appellant, and if the trial court wrongly admitted Exh. B. B1 whether there was sufficient evidence to support the conviction.

(2) Whether there was enough cogent and compelling circumstantial evidence to support the conviction.

(3) Whether the prosecution has discharged the onus of proof beyond reasonable doubt.

All that happened right at the trial court was that the appellant resiled on his voluntary statement to the police whereby he confessed to killing the deceased. According to the counsel for the appellant ”There was a cloud of mystery surrounding” the statement which is marked Exhibit Band B1. It is difficult to find the mystery as trial Judge and Court of Appeal considered the issue which is that of fact. Trial court believed the appellant made the statement, and his denial was held to be an afterthought. Court of Appeal held the “denial of the appellant signing the statement is a matter of fact which the trial court ought to have resolved in one way or the other. It could not have attracted trial within trial ……….as the appellant never objected that the statement was involuntarily obtained from him.”

An accused person can resile on his statement to police officer in one of two ways, Either that he never made the statement at all, in which case it is a matter of fact to be resolved by the evidence before court; or that he made the statement or signed it but not voluntarily.

In the former case, the mere denial by an accused of having made a statement confessing to the crime charged is a question of fact that trial court must decide. It does not make the statement inadmissible, it must however be considered along with the entire evidence and circumstances of the case for the weight to be attached to it. For example, in cases where the accused merely challenges the correctness of the statement as recorded or the signature or thumb impression, that will be a question of fact to be decided by the court of trial, but not an issue for the procedure known as “trial within trial,” – See Obidiozo v. The State (1987) 4 NWLR (Pt.67) 748, 751; Akinfe v. The State (1988) 3 NWLR (Pt.85) 729: Ojegele v. The State (1988) 1 NWLR (Pt.71) 414; Section 27, Evidence Act). Thus confession is relevant and admissible. In the latter case of the statement being challenged not on the ground of it not having been made but that it was not voluntary as in Section 28, Evidence Act which provides:

“28. A confession made by an accused person is relevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature.”

The court in that case has more investigation to conduct before it decides whether the statement was made voluntarily or not a trial within trial must be held. In a trial within trial the onus is on the appellant to establish evidence whereby it will be shown that either by inducement, threat or promise having regard to the charge the accused person faces, and proceeding from a person in authority as to give him reason to believe that he would gain advantage from the evil now confronting him. Evidence will then be led by the accused to establish the involuntariness of the statement and prosecution will lead evidence to rebut whereby the judge will rule on voluntariness. It is thus not in every case the accused challenges his statement confessing the commission of the offence that a trial within trial must be held; it is only held; where the issue is voluntariness but not the making of the statement simpliciter. It is therefore not required in law to hold trial within trial to test a confession unless the issue of voluntariness is clearly raised. [See R. v. Kassi & 6 Ors. 5 WACA 154; R. v. Onabanjo 3 WACA 43; R. v. Igwe (1960) 5 FSC 55; 1960 SCNLR 511 Queen v. Eguabor (1962) 1 All NLR 287,292; (1962) 1 SCNLR 409 Obidiozo v. State (1987) 4 NWLR 748, 760, 761-763.]

In this case there is clear and cogent evidence leading to conclusion that the appellant did murder Obaji. He first attacked P.W.8 and inflict matchet cuts on him, he was lucky to survive; he at that scene promised to kill the deceased, P.W.9 having earlier told him that the deceased was in her farm. The appellant’s confession clearly stated where he met the deceased and killed her. Trial court believed these scenerio, Court of Appeal had no reason to interfere or disturb these findings of fact. The concurrent findings of the lower courts on the fact as they now stand hardly need the interference of this court.

Though this court has not been asked to consider the effect of an accused person who earlier confessed to police but resiled in the witness box at trial, it is pertinent to restate the present position of this court. Two cases seemed to have caused great confusion on the doctrine of inconsistency in a witness’ evidence; to wit Oladejo v. The State (1987) 3 NWLR (Pt.61) 419, and Asanya v. The State (1991) 3 NWLR (Pt.180) 422 tending to posit that an accused person resiling on his extra-judicial statement to the police should have his entire evidence regarded as unreliable.

In such a case both the evidence in court and the confession should be regarded as unreliable. However, considering S.28 Evidence Act (Supra) and the case of Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383, this court has defined a clearer path. An accused person’s confession is relevant and should not be disregarded merely because he later resiles on it, what is important is the weight the trial Judge will attach to such confession and retraction. The overwhelming evidence in this case now on appeal is that the accused not only threatened to kill the deceased but actually killed her and confessed doing so even though he later resiled on this.

For the foregoing reasons, I find no merit whatsoever in this appeal. I hereby dismiss it and affirm the decision of Court of Appeal which upheld the decision of the trial High Court which convicted the appellant of the offence of murder and sentenced him to death.

SC.288/1991