Nwanga Nwuzoke V. The State (1988)

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A. OPUTA, J.S.C.

The Appellant was in the Abakaliki Judicial Division of the Anambra State High Court charged with, and convicted of the offence of murder by Obayi, J. and sentenced to death. His appeal to the Court of Appeal Enugu Division was found to be totally unmeritorious and was accordingly dismissed.

In that Court neither learned counsel for the Appellant nor for the Respondent had anything useful to urge in his favour. He has now appealed to this Court on one original ground namely:-

“That the decision is unwarranted, unreasonable and/or cannot be supported by law.”

This ground calls for another review of the facts of this case. Just how many such reviews can we have in one single case That is the question and the answer seems to be in the policy of this Court to abide by the concurrent findings of the two Courts below unless exceptional circumstances are shown requiring this Court to intervene to prevent a miscarriage of justice.

Learned counsel for the Appellant, Senator N.N. Anah sought and obtained leave of Court to file and argue two additional grounds of appeal namely:”

1. The learned Justices of the Court of Appeal erred in law by not considering self-defence which was implicit and inherent in the defence of the Appellant and this caused a miscarriage of justice…
2. The learned Justices of the Court of Appeal erred in law by not considering the defence of property and person against a trespasser which also was implicit in the defence of the Appellant.”

The two additional grounds reproduced above refer and relate to two cardinal principles of our criminal law. It is trite law and needs no argument that when a defence however weak, however foolish, however unfounded, however conflicting, is raised by a person charged with crime, that defence should fairly and impartially be put to the jury. This is a paramount principle of our law R v. Kwabena Bio (1945) 11 W.A.C.A. 46 at p.48: see also R v. Dinnick (1909) 3 CR. App. R. 77 at p.79.

Following from the above is another principle no less fundamental that is, that such defence or defences need not be specifically put forward. It is enough if they arise from the totality of the evidence led on both sides or to use the phraseology of learned counsel for the Appellant if they are “implicit and inherent.” The summing up should therefore deal with any question arising from the evidence led which provides a defence to the charge even if counsel failed to raise or advert to such questions or defences.

The summing up should also deal with and adequately consider any other alternative view of the facts which might reasonably arise from the evidence: R v. Vassileva (1911) 116 CR. App. R. 228 at p.234: R v. Williams Hopper (1915) 11 CR. App. R. 136 at p.141: Mancini v. D.P.P. (1941) 28 CR. App. R. 65 at p.72. It is also necessary to emphasise that there is no obligation on any Court to go afishing for defences not borne out by the evidence.

There must be credible evidence to support any expressly pleaded and therefore explicit defence as well as any implicit or inherent defence. A story that was not believed by the trial Court cannot from the basis of an explicit or implicit defence.

The issues that now arise are as follows:-

(i) What were the facts of this case

(ii) What defences naturally arise from those facts

(iii) Were those defences considered by the learned trial judge