Udochukwu Grant Emesonye V. The State (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA J.C.A.(Delivering the Leading Judgment)

Appellant and his father SYLVANUS EMESONYE, were charged on 12/7/2012 for murder and arraigned before the Imo State High Court, presided over by Hon. Justice T. N. Nzeukwu, on 6/11/12, where he and his father pleaded, individually NOT GUILTY to the charge. The information (Charge No.HM1/10C/2012), read as follows:

?STATEMENT OF OFFENCE:

Murder contrary to Section 319 (1) of the Criminal Code Cap 30 Vol.11 Law of Eastern Nigeria 1963 as applicable in Imo State.

PARTICULARS OF OFFENCE:

Udochukwu Grant Emesonye and Sylvanus Emesonye on 23rd day of January 2012 at Ama Oboro Ubomiri in Mbaitoli/Ikeduru Judicial Division murdered one DONATUS OPARA

See page 2 of the Records of Appeal.

After hearing the case and considering the addresses of Counsel, the trial Court delivered judgment on 26/5/14 wherein it convicted the Accused persons for murder and sentenced them to death by hanging. On page 72 of the Records of Appeal, the trial Court said:

On the whole therefore, I hold that the prosecution had proved its case against the accused

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persons beyond reasonable doubt and I hereby convict each accused as per the charge Each accused is hereby sentenced to death by hanging as provided by the Law for conviction in such an offence. However, in view of the fact that through-out the duration of this case, the accused who are of same family appear to have regretted their action coupled with the age of the 2nd accused (80 years), it is recommended that the state committee on Priorogative (sic) on mercy (prerogative of mercy) should look at the case and see if it could recommend it to the Governor for necessary action.”

Each of the Accused persons filed appeal. The Notice of Appeal by the Appellant was filed on 30/6/2014, as per pages 73 to 75 of the Records of Appeal, disclosing three (3) grounds of appeal. Appellant filed his brief of Arguments on 30/1/2015, upon transmitting the Records of Appeal to this Court on 17/12/2014. In his brief Appellant distilled three (3) issues for the determination of the appeal, namely:

1) Whether the Honourable Court was right when it held that Appellant intended killing the deceased by a mere slap.. (Ground 1)

2) Whether the Court was