Boniface Nwachukwu V. The State (2017)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

The appeal is against the judgment delivered on 29/3/2004 by the High Court of Justice, Imo State, presided over by Hon. Justice A.O.H. Ukachukwu (hereafter to be simply referred to as ?the lower Court? and ?learned trial Judge? respectively), convicting the Appellant (who was the 2nd accused person in Charge No: HOW/1C/2004) for the offence of murder and sentencing him to death therefore as prescribed by the Criminal Code, Cap. 30, Vol. II, Laws of Eastern Nigeria, 1963, under which he and two other accused persons were charged.

?In the one count Information on pages 3 and 4 of the record, one Vincent Ogueri (1st accused); Boniface Nwachukwu (2nd accused person and now Appellant); and Tajudeen Oladipo (otherwise called Johnson Chima) ? 3rd accused person; were jointly charged with the murder of one Chief Ogbonnaya Uche (alias OGB). The charge was withdrawn against the 3rd accused person in the Information, on 31/5/2004 given his persistent absence in Court and the inability of the Police to apprehend him for the purpose of his trial. The

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application to have the name of the said 3rd accused person struck out from the Information was made by the learned Law Officer prosecuting the case upon the prompting of the learned counsel that represented the 1st and 2nd accused persons in Court on the said date. Thereafter the lower Court on the same 31/5/2004 duly took the respective pleas of the 1st and 2nd accused persons and each of them pleaded not guilty to the charge of murder in the Information.

Trial proceeded in the case and throughout the trial the 1st accused person was absent from Court (except on one occasion) even though he was represented by learned counsel on every occasion when trial was conducted. The prosecution fielded 5 witnesses in the proof of its case against the 1st and 2nd accused persons; while the 2nd accused person only, testified in his own behalf. Some pieces of real evidence and statements made to the Police by the 1st and 2nd accused persons respectively, were tendered in evidence by the prosecution in the proof of its case. The pieces of real evidence and statements having been admitted were duly marked as exhibits. Having had the benefit of the written addresses of the

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prosecution and the accused persons, the lower Court after an evaluation of the evidence before it, identified the issue for determination to be the 1st accused?s issue 1 and 2nd accused?s issue two, namely, ?whether based on the evidence before the Court the prosecution proved its case beyond reasonable doubt?. The lower Court found that Chief Ogbonnaya (hereafter to be simply referred to as ?the deceased?) ?died of gunshot wounds from his murderers?.

The said Court consequently found (i) that ?the 1st accused Vincent Ogueri (aka) Pastor Vincent Ogueri took part in the planning an (sic: ?and?) murder of the deceased Chief OgbonnayaUche (aka) OGB?; (ii) that ?the 2nd accused Dr. Boniface Nwachukwu took part in the planning and recruitment of the murders (sic) as well as arranging the logistics for the murder?. Given its findings as stated hereinbefore, the lower Court found ?both accused persons guilty of the murder of Chief OgbonnayaUche(aka) OGB.?

?The 1st accused person being aggrieved with the judgment of the lower Court appealed against the same. This Court

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has since 14/11/2014 delivered its judgment in the appeal brought by the 1st accused in APPEAL NO: CA/OW/303CA/2010 ? VINCENT OGUERI V. THE STATE. The lead judgment in the appeal was prepared by Agube, JCA; and my lords Mbaba and Ige (JJ.CA) in their respective contributions agreed with the judgment of Agube, JCA; in which his lordship stated thus: –

?I hold that this appeal succeeds in part and set aside the judgment of A.O.H. Ukachukwu, J sitting at Owerri Judicial Division of the Imo State High Court which judgment was delivered on the 29th day of March, 2010 convicting and sentencing the Appellant to death by hanging, in absentia. The charge shall be remitted to the Honourable, the Chief Judge of Imo State for re-assignment to another Judge for the trial of the accused/Appellant de novo.?

The instant appeal is that of the 2nd accused person against the very same judgment of the lower Court and the Appellant initiated it, by a notice of appeal dated 30/4/2010 and filed on 22/6/2010. The notice of appeal contains seven grounds and the said grounds shorn of their respective particulars read thus: –