Nicholas Wankey Vs The State (1993)

LawGlobal-Hub Lead Judgment Report

WALI, J.S.C. 

The appellant Nicholas N.Wankey was arraigned before the Aba High Court of Imo State of Nigeria charged with the following offence:

“That you Nicholas N. Wankey on 2nd of February, 1985 at Osusu Umuikpeyi in Obioma Ngwa Magisterial District unlawfully killed one Adaelu Omalozu Onwueyi (m) with a gun and thereby committed an offence punishable under section 319(1) of the Criminal Code Cap. 30 Vol. 11 Laws of Eastern Nigeria, 1963.”

The accused pleaded not guilty to the charge.

The prosecution opened its case and called 11 (eleven) witnesses and tendered a number of exhibits. The accused gave evidence in his own defence but called no other witness. At the end of the trial the learned trial Judge, Johnson J. reviewed the evidence before him and found the accused guilty as charged and convicted him.

He sentenced him to death by hanging.

The accused appealed to the Court of Appeal, Port Harcourt Division against the conviction and sentence on several grounds. His appeal was also dismissed by the Court of Appeal. He has now appealed to this Court.

A resume of the facts in this case is as follows:

The accused and the deceased hail from the same village – Osusu in Umuikpeyi, Obioma Local Government. They have a protracted and outstanding land dispute over which they appeared before a Magistrate Court as well as a village arbitration committee in an effort to settle it peacefully, but apparently without success.

On 2nd February, 1985; the deceased employed eight (8) labourers to clear the bush on the disputed land which he was in possession of, preparatory to farming the same. The deceased was conducting the clearing work when the accused, armed with a gun appeared on the land at about 1 a.m. and ordered the deceased and the labourers to surrender. He fired the first shot in the air followed by the second one, aimed at the deceased’s legs which he missed. He fired the third shot and hit the deceased on the abdomen. The deceased slumped down and died on the spot. The labourers scattered in fear and disappeared. Henceforth the accused will be referred to as the appellant.

In compliance with Order 6 rule 2 of the Supreme Court Rules, 1985 the appellant filed a brief. The respondent did not file any brief nor was it represented in court on the date the appeal came up for hearing, though it filed an application for extension of time to file brief to which the proposed brief was annexed. it was struck out for non-prosecution.

In the brief filed by the appellant, the following five issues were formulated for determination by this Court:

“2.01 Was it proper for the Court of Appeal to surmise as to what the explanation proffered by P.W.’s 4 and 5 was in order to sustain the trial Court’s conclusion that there was no material contradictions between the testimonies of the two witnesses and their respective extra-judicial statements

2.02 Did the Court of Appeal direct itself properly as to the effect of the wrongly admitted and applied Exhibit ‘L’