Emmanuel Nwaebonyi V. The State (1994)

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WALI, J.S.C. 

The appellant, Emmanuel Nwibo Nwaebonyi was arraigned before the High Court Abakaliki in Abakaliki Judicial Division, charged with the following offence –

“OFFENCE: Murder contrary to Section 319(1) C.C

Particulars of Offence

Emmanuel Nwibo Nwaebonyi alias Amasiri Nwaebonyi on or about 28th day of July, 1980 at Ndiogbaga Inyimagu Izzi in Abakaliki Judicial Division murdered Nwaji Nkwagu.”

He pleaded not guilty to the charge. The prosecution thereafter called a total number of 9 witnesses to prove the charge. At the close of the prosecution’s case the appellant gave evidence in his own defence but called no other witness.

The learned trial Judge, Offiah J. considered the evidence adduced and found the appellant guilty as charged and sentenced him to death by hanging.

In exercise of his constitutional right, the appellant appealed to the Court of Appeal Enugu Division and in a judgment of that court delivered by Oguntade J.J.C.A. (concurred to by both Awogu and Akintan, J.C.A.), the appellant was dismissed, confirming the conviction and sentence on the appeal by the trial court.

Before I consider the appellant’s appeal in this court, I consider it pertinent to give a resume of the prosecution’s case, leading to the appellant’s conviction, as follows:-

P.W.1 and the deceased were married under native law and custom. The appellant was making sexual advances to the deceased which she always rebuffed. When P.W.1 got to know of these immoral advances, he challenged the appellant which the latter denied. The near relations of both the appellant and P.W.1 intervened to settle the issue in a customary way. As a result the appellant was to take an oath in support of his denial that if the accusations against him were true, he would not have a living child. The appellant took the oath.

After the oath, the appellant’s wife (P.W.9) became pregnant on three occasions and each of the three children died shortly after birth. The appellant approached P.W.1 so that the effect of the oath he had taken might be neutralised. P.W.1 agreed and the appellant brought some wine to neutralise the effect of the oath, which the appellant and P.W.1 drank together. Thereafter, the appellant’s wife got pregnant again and delivered a baby which again died after birth.

The appellant decided to take a revenge on P.W.1. So on 28-7-80 which was a market day and when P.W.1 and other fellow villagers were away to the market the appellant sneaked into P.W.1’s house, matcheted his wife and their two children to death and set the house on fire, after which he escaped. He was not arrested until on 24-11-85 when he was identified to P.W.3, Sgt. Gabriel at Ugwogo Nike market square Enugu who immediately arrested him and brought him back to Iziogo where he was charged and cautioned in Ibo language as a result of which he made a statement confessing the offence.

In this Court, two grounds of appeal were filed from which the following two issues were raised –

“(a) Whether the appellant was rightly convicted solely on his confessional statement Exh. “A”.