Iheonunekwu Ndukwe V. The State (2009)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C

The Appellant herein was arrested and arraigned properly before the High Court of Justice in Isiala Ngwa High Court Abia State for murder punishable with death in that he caused the death of one Michael Anaba on 25/9/82.

The prosecution called three (3) witnesses including the Registrar of Isiala Ngwa High Court who tendered the Certificate of Record of previous evidence of the I. P. O and the evidence of the medical doctor in previous proceedings in the case before another judge as well as the statement of the accused person to the police.

As stated earlier, hearing started in earnest. At the end of the prosecution’s case, the accused person now appellant testified in his own defence and called no witness. Both counsel for the appellant and the prosecution copiously addressed the court on several contentious issues and the possible defence of the appellant.

At the end of the trial and addresses of learned counsel, and in a considered judgment, the learned trial judge found the appellant guilty as charged. He convicted the appellant as such and sentenced him to death.

The trial judge has this to say on pp. 26 – 27 of the record:-

“…From the totality of the evidence before the court, I am satisfied that the prosecution proved its case beyond reasonable doubt as is required by Section 137 (i) of the Evidence Law, for the law would fail to protect society if it permitted remote or fanciful possibilities to deflect the course of Justice. In the result, I find the accused guilty as charged and is accordingly convicted; and was sentenced to death”.

Being aggrieved by the above decision of the trial High Court, the appellant, unsuccessfully, appealed to the Court of Appeal Port-Harcourt Division herein called court below. The court below in a reserved judgment unanimously dismissed the appeal of the appellant and confirmed the decision of the trial court delivered on 10/4/95 by Isuama J. The Court below says:

“In this appeal, with the testimonies of proof of death by the report of the doctor tendered on his behalf by the IPO, PW3, the death of the deceased is proved to be by gun shot. The testimonies of the PW1 and PW2 show that the perpetrator of the act of murder is the accused person who was identified at the scene. Upon consideration of the defence of the accused person of uncertain identity and alibi and of allegation of hearsay evidence of PW 2, t the defence of the accused person is inadequate and indeed incompetent to effect the clear evidence of proof of identity by the prosecution of the accused person. Consequently the charge of murder against the accused person is proved beyond reasonable doubt. The court below was right to convict and sentence the accused person. I resolve the 2nd and 3rd issues in the two briefs of the appellant and respondent against the accused appellant and affirm the judgment of the court below of Isuama J. On 10/4/95 see pp 8 – 9 of the Record of Proceedings”.

Still dissatisfied with the above judgment of the court below, the Appellant has now further appealed to this court on the Notice of appeal containing three grounds of appeal. Shorn of their particulars they are reproduced hereunder:-

Ground One

“The learned Justices of the Court of Appeal erred in law when, in affirming the decision of the trial court, rejected the defence of Alibi put up by accused in the trial court.

Ground Two

The Learned Justices of the Court of Appeal erred in law when, in affirming the decision of the trial court; they held that the identity of the accused in the commission of the offence charged was proved by the prosecution.