Godwin Anyanwu V. The State (2002)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

The appellant was charged along with 2 others at the High Court of Imo State for the murder of one Thomas Aliri in that on 17th October, 1982, they unlawfully killed the deceased and thereby committed an offence punishable under section 319(1) of the Criminal Code, Cap 30, Vol. 2, Laws of Eastern Nigeria, 1963 applicable at the time in Imo State. They each pleaded not guilty after the charge had been read and explained to them in Ibo language.

At the trial that followed, the respondent called 5 witnesses and closed its case. Each defendant gave evidence in his or her defence and closed the defence. After addresses by learned counsel for the parties, the learned trial Judge in a considered judgment, found the appellant guilty of the murder of Thomas Aliri, the deceased; he convicted him accordingly and sentenced him to the mandatory punishment of death by hanging. The 2nd and 3rd defendants were, however, found not guilty of the offence and were each discharged and acquitted. Being aggrieved with the said judgment as it affected him, the appellant unsuccessfully appealed to the Court of Appeal. He has now further appealed to this court.

With leave of this court, the appellant filed a notice of appeal containing five grounds of appeal. He also obtained leave to raise and argue points of law not canvassed in the court below. The points of law relate to subsections (6)(e) and (7) of section 33 of the constitution of the Federal Republic of Nigeria, 1979, then in force at the time the offence was committed and the appellant was tried. It is now section 36(6)(e) & (7) of the 1999 constitution. The grounds of appeal, without their particulars, read:

“1. The learned Justices of the Court of Appeal erred in law in failing to hold that the entire proceedings at the trial of the appellant including the judgment delivered by the trial court on 21/1/85 are null and void.

2. The learned Justices of the Court of Appeal erred in law in failing to hold that the appellant’s fundamental right under section 33(7) of the constitution of the Federal Republic of Nigeria, 1979 was violated.
3. The learned Justices of the Court of Appeal erred in law by failing to hold that the appellant was entitled to defence of provocation to mitigate his criminal culpability from murder to manslaughter.
4. The learned Justices of the Court of Appeal erred in law by upholding the trial court’s findings of fact that there was no fight between the deceased and any of the accused persons and that the deceased did not tell the 1st accused that he was responsible for the death of the wife of the 1st accused (now appellant) and would be responsible for 1st accused eventual death and thereby erroneously rejected appellant’s defence of provocation.
5. The learned Justices of the Court of Appeal erred in law in failing to hold that it is clearly unsafe to conclude that exhibits C and D were indeed the confessional statements personally made by the appellant.”

The parties filed and exchanged their respective briefs of argument. In the appellant’s brief the following 4 issues are raised as calling for determination in this appeal:

“1. Can it be safely concluded that exhibits C and D were indeed the confessional statements personally made by the appellant to the police

2. Whether the provisions of section 33 subsection (6)(e) of the constitution of the Federal Republic of Nigeria, 1979, as amended, which were designed to guarantee fair hearing to every person who is charged with a criminal offence (such as the appellant in this case) were fully complied with in the instant case and, if not, did such non-compliance not nullify the entire proceedings and judgment of the trial court
3. Whether the provisions of section 33(7) of the constitution of the Federal Republic of Nigeria, 1979, as amended, were fully complied with in this case and, if not, did such non-compliance not render the trial unfair.
4. Was the court below right in holding that the appellant was not entitled to the defence of provocation to mitigate his criminal culpability from murder to manslaughter”

The respondent adopted these issues in its brief.

In determining this appeal I shall first consider issue 1 and thereafter take issues 2 and 3 together. Issue 4 will be considered last.

Issue 1:

In the course of police investigation into this case PW 4, police sgt. Cosmos Amaechi obtained two statements from the appellant. The two statements were recorded in the english language and tendered at the trial without objection from the appellant and marked exhibits C and D. PW 4 testified at the trial as follows:

“I investigated this case. I know all the accused persons. Sometime in October 1982, a case of murder was reported and referred to Owerri urban police and transferred to State C.I.D. for investigation. During the course of my investigation, I arrested second and third accused persons. Before this, Owerri urban had already charged first accused to court. I visited the scene of crime at Umuogi, Ngor Okpala in Owerri Local Government. I also visited the prison yard where I obtained the statement of first accused in writing. I also obtained the statement of second and third accused persons. They were formerly charged to court with murder. A postmortem examination of the corpse of the deceased was performed by a doctor. This is the first statement made by first accused on 18/10/82. Counsel seeks to tender it. No objection. Statement admitted as exhibit ‘C’. This is the second statement made by first accused on 23/12/82. Counsel seeks to tender it. No objection. Statement admitted as exhibit ‘D’ …..Before each accused person made his statement or statements, he was cautioned and charged and he volunteered the statement without stress or inducement. The statements were obtained in english language and recorded in english language and read over to each accused persons and he said, it was correct before he signed it and I countersigned it. Exhibits C and D are repeatedly read in court by witness. No objection after the reading as to the voluntarily (sic) of each statement.”

(Italics are mine)

The question has arisen in this appeal as to whether or not exhibits C and D were made by the appellant. Learned counsel argued that the evidence of PW4 gave the impression that exhibits C and D were either written down by the appellant in english language or that he dictated them to PW4 in english language who then wrote them down and that, in any event, appellant signed each statement. Comparing exhibits C and D, learned counsel submitted that they could not have been made by the same person as the hand writings on them were different and, therefore, could not have been written by the appellant. It is counsel’s view that by the same argument, both statements could not have been written by PW4. It is further argued by learned counsel that as the signatures of the maker of the two statements were different, they could not both have been made by the appellant. Learned counsel then finally urged us to hold that “this is not a case where it can safely be said that the appellant made statements or any statement to the police in english language.”