Augustine Onuchukwu & Ors V. The State (1998)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The three appellants were convicted together with two others by Olike J of Anambra State High Court of the offence of murder, contrary to Section 319 (1) of the Criminal Code. Originally, 8 accused persons were arraigned before the trial High Court for the same offence. Two died in prison during the trial, one was discharged and acquitted by the trial court and two others, Ireka Edimgbo and Onodu Okeke succeeded in their appeal before the Court of Appeal and were both discharged and acquitted. The three appellants were not successful at the Court of Appeal. Their convictions and sentences were affirmed. Being dissatisfied with that decision they have now come before this court appealing against the conviction and sentence passed on each of them.

The fact which gave rise to this case is that there was a land dispute between the 1st appellant and his father, the 4th accused, who died in prison during the trial, on the one part, and the 9th witness for the prosecution, Valentine Obiekwe, on the other part. The dispute led to a serious fight during which the 4th accused was injured. The 1st appellant, on hearing about the fight between his late father and PW9, reported to the police. The police arrested PW9 and charged him to a Magistrate’s Court in Ihiala of the offence of assault. PW9 was remanded in prison custody by the order of the magistrate. The deceased, Samuel Ikejiobi, stood surety for PW9 and he was released on bail.

It was alleged that the act of the deceased angered the 1st appellant who issued a warning to the deceased to withdraw his suretyship for PW9 so that the court would revoke his bail and keep him in custody pending trial. The deceased refused to withdraw his suretyship for PW9 and this angered both the 1st appellant and 4th accused. On the 27th February, 1985, at about midnight, the deceased, Samuel Ikejiobi, was shot dead in his house and the house was set on fire. During the inferno the wife of Samuel Ikejiobi and his two children were burnt to death. On receiving a report the police went into action and after the completing of the investigation 8 accused persons were charged before the High Court of the murder of Samuel Ikejiobi. The 8 accused were: Augustine Onuchukwu 1st appellant: Livinus Okorie, 2nd appellant: Ezekiel Ireka, 3rd appellant: Ezeanochie Onuchukwu, the father of the 1st appellant; Odogwu Obiora, Ireka Edimgbo, Onodu Okeke and Chukunyekwuom Okeke.

As I have mentioned above, 4th Accused, Ezeanochie Onuchukwu and the 5th Accused, Odogwu Obiora, died in prison during trial. Mr. Chukunyekwuom Okeke, the 8th Accused, was discharged and acquitted by the High Court. The trial High Court convicted the 1st, 2nd, 3rd, 6th and 7th Accused persons and sentenced each of them to death.

On appeal to the Court of Appeal, the 6th and 7th accused who were 4th and 5th appellants before the lower court were successful. They were discharged and acquitted. The appeals of the 1st, 2nd and 3rd appellants were dismissed.

On further appeal to this court the three appellant argued their respective appeals separately. The appellants, through their respective counsel, filed several grounds of appeal for the prosecution of the appeals filed by the three appellants. The arguments advanced in those grounds are similar and the issues identified on those grounds are interrelated. I do not intend to reproduce each set of those issues since the points the appellants have grouse against the judgments of the lower courts are virtually the same. I will therefore consider their respective appeals together. After going through all the grounds of appeal and the issues raised on them by both the appellants’ and the respondent’s counsel, I find the following six questions to be sufficient for the determination of the appeals filed by the three appellants:

1. Whether the trial court as well as the Court of Appeal evaluated the evidence tendered before it at all/property.
2. Were there material conflicts in the statements and evidence of prosecution witnesses which rendered their various pieces of evidence unreliable and can the conviction of the appellants based on such unreliable evidence be sustained and upheld.
3. Whether the defence of alibi raised by the appellants in this case could not avail them given the circumstances of this case.
4. Whether the court below was right in upholding the conviction of the appellants based on remote, conflicting, doubtful and unreliable circumstantial evidence of the prosecution witnesses where there was no direct evidence whatsoever that the death of the deceased resulted from the overt act or omission of the appellants.
5. Whether the finding of conspiracy/common intention as well as aiding and abetting by the Court of Appeal against the appellants was not latently speculative and based on conjecture and suspicion.
6. Whether the charge of murder against the appellants had been proved beyond reasonable doubt.

I intend to consider the arguments of the appellants’ respective counsel in respect of the points raised in issues 1 and 2 together. The complaint of the appellants in the Court of Appeal is that the trial court did not evaluate the evidence led by both the prosecution and the defence properly. Instead, the Court of Appeal proceeded in its judgment to make its own findings of fact on the evidence adduced before the trial court.

It is the submission of the learned counsel for the 3rd appellant that there were contradictions between the evidence of PW 1, PW2, PW3 and PW5. Counsel argued that the contradictions were pointed out to the lower court but it did not regard them material. To illustrate such contradictions each learned counsel referred to the testimonies of PW 1, PW2 and PW5 who said that they saw the 1st appellant in company of 2nd and 3rd appellants soon after the operation in which the deceased was shot dead and his house set on fire. The witnesses told the trial court that they were all holding guns and jerrycans heading towards the house of the 1st appellant when the house of the deceased was on fire and other people were struggling to quench the fire.

On this issue, the arguments submitted by counsel of each of the appellants, although couched in a different style and manner, pointed out that the prosecution 8 witnesses have all contradicted themselves in the evidence they gave before the trial court. For example, learned counsel for the 1st appellant explained the inconsistencies between the evidence of PW1 and PW5. PW1, in his testimony stated thus:

“When the house of Samuel was on fire some of the accused persons assisted in fighting the fire to prevent it from spreading to other houses nearby”.

PW5 however, in his testimony, on this issue said:

“1 did not see the persons I named while the house of Samuel was burning nor did they join in stopping the fire from spreading to other houses. I did not see them.”

Learned counsel for the 1st appellant also referred to two other statements made by PW 1 which although believed to be true by the trial High Court were contradictory. The trial High Court believed that both PW1 and PW5 were near the house of the deceased at the time of the murder and they saw four men near the premises. Two of them were carrying jerrycans in their hands. In his statement to the police made after two months of the incident PW1 said: