The State V John Ogbubunjo And Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

On 26th October. 2000 we heard this appeal which emanates from the decision of the Court of Appeal, Port Harcourt Division (hereinafter referred to as the court below). We peremptorily and unanimously dismissed it, having earlier carefully read the briefs of both parties and listened to the arguments of their counsel. I thereafter indicated that I would give my reasons today for so doing. Before proceeding to do so, however, I wish to pause here and pry into the case’s historical journey briefly as follows:

Criminal proceedings in this case were initiated by an information filed at the instance of the Attorney-General of Imo State in the Mbano/Etiti Judicial Division holden at Etiti and before Pats-Acholonu, J. as he then was. The proceedings were against six accused persons including the respondents herein, namely, John Ogbubunjo and Njoku Amaechi for the offence of murder contrary to section 319 of the Criminal Code, Cap. 30, vol. 11, Laws of Eastern Nigeria, 1963, applicable in Imo State. By the particulars of the offence, the respondents and four others were alleged to have murdered one Celestina Amucha on or about 25th day of September, 1988 in Obollo Mbano within jurisdiction. With the death of one Harrison Amucha, the original second of the 6 accused persons in custody, plea was taken from the remaining five whose identities consisted John Ogbubunjo (now 1st accused/1st respondent), Francisca Amucha (3rd accused), Njoku Amaechi (4th accused/respondent) and Janet Ameachi (5th accused).

In the trial that ensued, the prosecution called seven witnesses in an endeavour to prove the charge while all five accused including 1st and 4th respondents testified in their defence, calling no witness in the process.

The prosecution’s case was based on a purported circumstantial evidence and none of the seven witnesses called was an eye-witness to the alleged murder of the deceased. A summary of such purported circumstantial evidence may be made as follows:

1. The deceased, Celestina Amucha, on 25/9/88 was in her house when PW1 (Juliana Amucha) called to see her but later left her house in the company of 1st, 2nd, 3rd accused persons and one Harrison (the accused person that died before plea was taken) never to be seen alive again.
2. PW2 on the other hand, in his own evidence, stated that on 25/9/88, he went to the house of Celestina Amucha (the deceased) to take the things he (witness) asked her (deceased) to buy for him, that he saw 1st accused (a friend of the deceased) as well as 2nd and 4th accused and that 1st accused informed Harrison (deceased) that he had been waiting for him for their appointment but he did not see him. The 1st, 2nd and 3rd accused and Harrison (deceased) as well as the deceased (Celestina Amucha) he added, then left and after that day he did not see Celestina (deceased) alive again. She further stated that when Celestina, the deceased did not come back and she asked Francisca of her where about, she received the reply that she (Celestina) was helping the 1st accused/appellant in preparing palm oil. She thereupon summoned her husband’s relations the next day to inform them that Celestina who went out with the accused persons as she had mentioned had not returned while the only time she saw her again was when her body was exhumed from the grave. PW2, it was further stated, testified to how in the night of 25/9/88, he heard a female voice from 4th accused house saying:

“Umuahia, Chineke, do you want to kill me Please, allow me to say some prayers.”

Adding, that when in the morning he went to 4th accused’s house, he did not see human blood. PW3 testified to the effect that he only heard of the death of the deceased; that he was requested by his people to ask Harrison the whereabouts of Celestina and that Harrison informed him “he (sic) the accused persons kill (sic) the deceased.”

PW4 when examined-in-chief said that at the Mbano Police Station, one young man telephoned him to say that the deceased had died and was killed by the 1st accused.

The evidence of PW6, Godwin Ohaji, was to the effect that in September, 1989 during the new yam festival, he went to the house of the 4th accused person and saw 1st, 2nd and 3rd accused persons eating and drinking with a “plumpy yellow woman.” That the Police later started looking for 1st accused and asked him to locate him but that when he met him, (1st accused) the latter denied knowing or seeing the “plumpy yellow woman” even though she had been his friend. The witness further said that the 2nd, 4th and 5th accused persons told him that the deceased was buried in their land and described the place leading him to discover the grave of the deceased, though denying under cross-examination saying so to the Police in his statement.

Dr. Godwin Metuka, who testified as PW5, said he performed post mortem examination on the body of the deceased and gave the cause of death as “severe haemorrhage” adding that he found that the hands of the deceased were cut off from the wrist.

In their defence, all the accused persons denied committing the offence and with the exception of the 3rd accused denied knowledge of the deceased. The 2nd accused set up a defence of alibi contending that he was at Aba on the material date of the commission of the alleged offence.

At the end of the trial and after counsel’s submission, the learned trial Judge, Pats Acholonu, J. (as he then was), delivered his judgment on 27/7/90 convicting and sentencing the 1st and 4th accused persons (now respondents) to death while discharging and acquitting the 2nd, 3rd and 5th accused persons respectively.

The respondents as appellants were dissatisfied with the decision and so appealed to the court below, which court allowed their appeals and returned a verdict of discharge and acquittal in favour of each.

The State has now appealed to this Court by a notice of appeal dated 19thh April, 1996 and filed on 26/4/96 which contained eight grounds of appeal. From the eight grounds, two issues christened “Live and Burning” have been identified as arising for our determination, to wit: