Uchenna Nwachukwu Vs The State (2002)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C.

The appellant, Uchenna Nwachukwu, along with two others, to wit, Christopher Ndulaka and Chibuzor Nwachukwu, was arraigned before the High Court of Justice, Imo State, holden at Owerri, charged with the offence of murder contrary to section 319(1) of the Criminal Code, Cap, 30, Vol. II, Laws of Eastern Nigeria, 1963, applicable to Imo State.

The particulars of the offence charged are as follows:

“Christopher Ndulaka, Uchenna Nwachukwu and Chibuzor Nwachukwu on the 20th day of January, 1985 at Owerri in the Owerri Judicial Division murdered Benjamin Iheama”

Each of the accused persons pleaded not guilty to the charge and the prosecution originally called a total of eight witnesses at the abortive trial before Ukattah, J., as he then was. It was during the pendency of that proceeding that the then 1st accused, Christopher Ndulaka, was said to have been shot with a gun by one Anthony Nwachukwu, the principal suspect in this case but who is now at large. The said Christopher Ndulaka subsequently died at the General Hospital, Owerri before the conclusion of the trial. With the creation of Abia State from the old Imo State, Ukattah, J., was obliged to return to Abia State. Consequently the trial of the remaining two accused persons had to be started de novo before Maranzu, J. with the former 2nd and 3rd accused persons becoming the 1st and 2nd accused persons respectively at the new trial.

Both accused persons again pleaded not guilty to the charge at the new trial and the prosecution called three witnesses and tendered some exhibits. The accused persons testified on oath on their own behalf but called no witnesses.

The substance of the case as presented by the prosecution from the evidence of P.W. 2 principally and the statements of the 1st accused, exhibits B and C, is that following some dispute between the said Anthony Nwachukwu, now at large, and the deceased, Benjamin Iheama, both of whom carried on a joint electronics business at No. 4, Douglas Road, Owerri, Anthony Nwachukwu enlisted the assistance of the late Christopher Ndulaka and the two accused persons, his junior brothers, to kill the deceased. Both Anthony Nwachukwu and the deceased lived at all material times in one flat but in different bed rooms at plot 454, Ikenegbu Layout, Owerri. On the 20th January, 1985, the said Anthony Nwachukwu, the late Christopher Ndulaka and the 1st accused person congregated in the flat of both the deceased and Anthony Nwachukwu. All three of them unceremoniously trooped into the bedroom of the deceased and Anthony Nwachukwu immediately locked the door and intimated to the deceased, Benjamin Iheama, that they had come to kill him. According to the 1st accused’s narrative to P.W. 2, before the deceased could say any thing, Anthony Nwachukwu pounced on the late Benjamin Iheama and with the help of Christopher Ndulaka, now deceased, and the 1st accused strangulated and killed him. All three later that night jointly brought the dead body of the deceased down from their 2nd floor apartment and carried him into the booth of the 505 Peugeot car no. IM 315 WB which belonged to the deceased, Benjamin Iheama. Again, all three of them with Anthony Nwachukwu on the wheel drove with the dead body of the deceased in the booth to Uratta Express Road, Owerri where they buried him in a shallow grave in the bush. Christopher Ndulaka brought the two shovels that they used in digging the shallow grave. It was the 1st accused person who in the course of police investigation of this offence took P.W 2 and his team to the shallow grave in the bush along Uratta Express Road, Owerri where they buried the deceased.

With regard to the 2nd accused person, it would appear that the only evidence against him was entirely circumstantial as he took no part in the actual killing of the deceased. The case against him was built around the fact that he was an accessory after the fact to the murder.

The case for the defence was a total denial of the charge. The 1st accused denied killing the late Benjamin Iheama on the 20th January, 1985 or on any other date. He also denied any involvement in the death of the deceased or that he narrated to P.W 2 how the said deceased was killed. In particular, he said that it was untrue as testified to by P.W 2 that he told the said PW2 that Anthony Nwachukwu, Christopher Ndulaka and himself buried the deceased along Uratta Road, Owerri. He claimed that he was not present when the deceased was buried and that he did not take P.W2 or any policeman to the bush for the identification of the spot where the deceased was buried. He admitted making the statements, exhibits B and C, to the police. He accepted that their contents were correct but for two areas which he disowned. The areas he denied are, firstly, that he showed the police where Benjamin was buried and, secondly, that he was present when Benjamin was murdered as he ran away at that point. He said he knew nothing whatever about the death of the deceased Benjamin.

The 2nd accused for his own part, also denied any involvement, whether directly or indirectly, in the death of the deceased. The learned trial Judge, Maranzu, J., after a review of the evidence on the 31st day of July, 1995 found both accused persons guilty of the offence of the murder of the deceased, Benjamin Iheama, and accordingly sentenced them to death as prescribed by law. In his findings, the learned trial Judge was satisfied with and accepted the evidence of the prosecution to the effect that the 1st accused along with the runaway principal suspect, Anthony Nwachukwu, and the late Christopher Ndulaka acted in concert in the strangulation and murder of the deceased. He accepted the evidence of P.W.2 in particular, and that of the rest of the prosecution witnesses as reliable and found that the 1st accused, before his arrest, voluntarily narrated the part played by each and everyone of them to P.W. 2 as testified to by the witness. He was also satisfied that exhibits B and C were the voluntary statements of the 1st accused to the police. Of the 1st accused, the learned trial Judge stated:-

“There is also the evidence of P.W. 2 in these proceedings, the relevant part of which I have reproduced in this judgment and having regard also to exhibits ‘B’ and ‘C’ in these proceedings, I am convinced and I hold as a fact that the entire evidence in this case in respect of first accused Uchenna Nwachukwu and in particular the circumstantial evidence provided by P.W.2 are very cogent, very complete, compelling and irresistible and they lead to no other conclusion than that first accused Uchenna Nwachukwu was one of those who voluntarily, without any provocation, without any mistake of fact, without any extraordinary emergency, being very sane and without any accident killed late Benjamin Iheama and I find him guilty of the murder of Benjamin Iheama and also convict him accordingly.”

He described the 2nd accused as an accessory before and after the fact to the offence of the murder of the deceased Benjamin and also convicted him as charged.

Dissatisfied with this judgment of the trial court, both convicts appealed against their convictions and sentences to the Court of Appeal, Port Harcourt Division, which court on the 23rd day of April, 2001 allowed the appeal of the 2nd accused/appellant and set aside the conviction and sentence passed against him. That court as regards the 2nd accused observed:-

‘There is no evidence that the 2nd appellant did anything either directly or indirectly to cause the death of the deceased With all due respect to the learned trial Judge, there is no way on the evidence before him, the 2nd appellant could be said to be an accessory before or after the fact of the killing of the deceased ….. I am of the view that it will be unsafe to allow the conviction of the 2nd appellant to stand”.