Monday Enweliku Vs The State (1970)

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COKER, J.S.C.

We dismissed this appeal at the hearing on the 4th February, 1970, and now give our reasons for doing so. The appellant was convicted by Prest, J. (High Court, Ughelli) of the murder on or about the 2nd August, 1968, or one Ishiekwene Ukpoh, alias Sanko, and sentenced to death.

The facts given in evidence by the prosecution and accepted by the learned trial judge were to the effect that the appellant was one of a number of villagers who had set upon the deceased and killed him because as a member of the Civil Defence he had earlier on arrested and handed over to the Army authorities one Peter Eleh on the grounds that Peter was in unlawful possession of some dangerous drugs.

The name of the appellant became known as a result of the confession made by some of the villages who had hands in the killing of the deceased and the appellant himself had made a statement to the police soon after his arrest in which he stated, inter alia, that:-

“About one month ago one Johnny Onyesue native of Umukwata, Paul Onowu of Ogume, Emili Onowu Ogume all now residing at Ogume Utute village gathered in Johnny’s house at Ugute. I met them discussing that they want to kill the deceased Sanko Ishikwene… On the 29th July, 1968, the above mentioned people and one Samuel of Ebedei arranged in my presence that all of them will kill Sanko Ishikwene in farm on 2-8-68… Samuel threw rope he was holding on the deceased riding towards Ugute village when he was returning from his farm and he fell down.

As he fell down all I mentioned above carried him away into my farm. Johnny later hit him with a big stick he was holding, and he became weak. Samuel, Johnny Onyesue and Osakuni Osagie killed Sanko Ishikwene by hitting him sticks on his head.

Others held the deceased when these three men were hitting him with stick. Later, I gave them the hoe inside my hut which they used in digging the ground that Ishikwene was buried in my farm. I took the hoe from them later back to my hut. Sanko’s bicycle is with Samuel at Ebedei (m). We killed the deceased at about 7 p.m. on 2-8-68… I did not tell anybody that we have killed Sanko Ishikwene up till the 5-8-68 when police came to arrest Johnny Onyesue who mentioned all of us to police. We drank and smoke cigarette on the 3-8-68, for the fact that the deceased who use to worry us has been killed by us… Johnny Onyesue told police that the deceased was buried in my farm.

Then, Johnny Onyesue, U gbe Animam and I took the policemen to my farm and we showed them the spot Sanko Ishikwene was buried. Police removed the dried grass we packed on the grave of the deceased.”

At his trial, the appellant stated that he only signed the statement under duress and that although the deceased was stated to have been buried in his farm and that the hoe used belonged to him yet he was unaware of this fact and stated also that the hoe did not belong to him. The learned trial judge, not unjustifiably rejected his story and took the view, again justifiably, that he had made the statement ascribed to him voluntarily. He thereafter convicted him as charged.

Before us on appeal, the only point put forward was that the learned trial judge was “in error of law” to have treated the statement as a confessional one when it was not. One would have thought in any case that whether or not a particular statement was confessional is an issue of fact. We had examined the contents of the statement however and had taken the view, which learned counsel for the appellant himself eventually conceded, that the statement in substance confessed to the complicity of the appellant in the killing of the deceased.

There were a number of other circumstances also properly considered by the learned trial judge which made the truth of the statement consistent with a finding that it was voluntarily made by the appellant. See Raimi Akinwale v. The Queen. SC.322/63/ of 23/12/63.

We therefore dismissed the appeal at the hearing.
There is however a point which had caused us some concern.

The appellant was convicted on the 18th September, 1969, and his notice of appeal shows that it was thumb impressed on the 13th October, 1969. By the provisions of section 31(2)(b) of the Supreme Court Act, 1960, an accused person has thirty days from the date of his conviction to “give” notice of appeal against his conviction.

The data on the notice of appeal signed by the appellant shows therefore that the notice was prepared within the time limited by the law for giving notice of appeal. That, prima facie, was the date on which the appellant signed the notice but manifestly it is not effective until, according to law, it is “given” in the way directed by law. There is then this endorsement on the notice of appeal::-
“Notice and grounds of appeal filed on 23-10-69.”