Ifeanyi Chukwu Ejeka Vs The State (2003)

LAWGLOBAL HUB Lead Judgment Report

UTHMAN MOHAMMED, JSC 

The appellant was arraigned before Nwogu J of Imo State High Court, sitting at Owerri, for the offence of murder, contrary to Section 319 of the Criminal Code, Cap 30, Laws of Eastern Nigeria, applicable to Imo State. At the conclusion of the trial the learned trial judge convicted the appellant and sentenced him to death.

The facts of the case are in the following brief narrative: On 28th April 1984 at about 9.00pm. four students, Christopher Ejiogu, Emmanuel Obiyor, Simon Ejiogu and Emmanuel Nnodi all of Federal Government College, Oweri were going to the stream to take a bath. On their way they saw the appellant. He was going in the same direction. Christopher Ejiogu greeted him. The appellant did not respond. He continued on his way. A moment later he came back and rebuked the four students for not giving him his due respect by calling him “Nda”. Simon Ejiogu, who hereinafter shall be referred to as the deceased, pleaded with the appellant to go. The appellant turned to the deceased and asked “If it were his (deceased’s) brother, Patrick, would he show such disrespect to him?” The deceased told the appellant not to mention the name of his senior brother. The appellant slapped the deceased. The deceased held the appellant. The two were holding each other when the deceased shouted that the appellant had stabbed him. The other boys came and held the appellant. The appellant wriggled free and escaped. He was later arrested by the police. The deceased was rushed to the hospital and he died on the same day.

The appellant was tried for murder before Nwogu J of Imo State High Court. As I mentioned at the opening of this judgment, the learned trial judge convicted the appellant of the offence of murder and sentenced him to death. He appealed to the Court of Appeal but the appeal was dismissed. Hence his final appeal to this court. The following issues have been identified by the appellant’s counsel for the determination of this appeal;

“1.Whether the Court of Appeal can be said to have afforded the appellant a fair hearing of his appeal when that court failed to con

Whether, in view of the material contradictions in the evidence of the witnesses for the prosecution, especially the PW 1, PW 2 and PW 3, was the Court of Appeal correct in affirming the Judgment of the learned trail Judge?

Having regard to the facts established before the learned trial Judge, was the Court of Appeal correct in law, in refusing to invoke the provisions of section 179(2) of the Criminal Procedure Law of Eastern Nigeria?

The issues formulated by the learned counsel for the respondent are the same as the appellant’s issues expect issue 1 in which the respondent’s counsel questioned whether the mistaken reference (by the court below) of the issues formulated by the learned counsel for the respondent, as issues formulated by the appellant, imply that the court below did not consider arguments presented by the appellant in his brief?

Learned counsel for the appellant, in support of issue 1, submitted that the appellant was not afforded fair hearing by the Court of Appeal. He referred to a number of authorities on fair hearing including Gage V. The State (1975 ANLR 268, Garba V. University of Maiduguri (1986) 1 NWLR (Pt 18) 550 and Alhaji Lawal Tunobi V. Israel Orawole (2000) FWLR (Pt 2) 341.

Learned counsel Mr. I.A. Adedipe pointed out an error which the Court of Appeal committed when learned Justice Ogebe JCA referred to the issues identified by the respondent and said that it was learned counsel for the appellant who formulated them. I have looked at the issues which Ogebe JCA said in his judgment, that the appellant’s counsel formulated for the determination of the appeal before the Court of Appeal, I agree that the learned Justice was in error to say that those issues were formulated by the counsel for the appellant.

But is the error material for the learned counsel to submit that the appellant was not afforded fair hearing of his appeal? I think not. If one compares the issues formulated by the appellant and the respondent it will show that the respective issues, although couched in different terminologies were basically the same. Each set of issues raise the question of self defence, the question of proof of the prosecution’s case based on the evidence adduced and the question whether the facts of this case warranted the invocation of section 179 (2) of the Criminal Procedure Law. The fourth issue questioned the evaluation of the evidence by the learned trial Judge. It is quite clear that Ogebe JCA re-evaluated the evidence before the trial court. I have also observed from the judgment of the learned Justice of the Court of Appeal that he considered all the defences put up by the appellant during the trial and found them not convincing enough to warrant disturbance of the decision of the learned trial judge. The argument of the learned counsel, in the appellant’s brief, that the Court of Appeal did not consider the submissions made on behalf of the appellant during the hearing of his appeal could not therefore be correct. The error committed by Ogebe JCA in attributing the issues formulated by the respondent to the appellant does not amount to violation of the appellant’s constitutional right to fair hearing. I therefore resolve the first issue against the appellant.

On issue II, learned counsel for the appellant submitted that where a witness had made a statement before trial which was inconsistent with the evidence he gave in court and gave no cogent reasons for the inconsistency the trial court should regard his evidence unreliable. He referred to Christopher Onubogu V. The State (1974) ANLR 561 at 570; Adele V. The State (1995) 2 NWLR (Pt 337) 269 and Abogede V. The State (1995) 1 NWLR (Pt 372) 473. The inconsistency which learned counsel made heavy weather of is where PW1, PW2 and PW3 made statement to the police and said that there was a “fight” between the deceased and the appellant. But when they came to give evidence they said that there was no fighting between them.

The court below considered the issue about the allegation of a fight between the deceased and the appellant and it concluded that what happened was not a fight but a scuffle. The court observed, quite rightly, that the evidence from the prosecution witnesses shows that the appellant was the first to slap the deceased. I have looked into the statements made by the PW 1, PW2 and PW3 and the testimony of each of them in court and I do not see any inconsistency between their evidence and the statement they made before the police. The evidence given by PW1, PW2 and PW3 of the incident at the scene of the crime was convincing enough to affirm that there was no fight between the deceased and the appellant. The appellant was in fact the aggressor during the encounter. After all, the appellant had admitted injuring the deceased with a fork although he said it was not intentional. He said that he wounded the deceased with a fork when the deceased hit him with palm fronts. The essence of the testimony of PW1, PW2 and PW3 was to show that the appellant had stabbed the deceased and that the injury was the cause of his death. Even if the word “fight” was not used during the trial in describing how the incident occurred that does not amount to a material contradiction between the testimony of the witnesses and the statements they made to the police. It is well settled that not every contradiction will result in upsetting trial court’s judgment. For a contradiction to upset a judgment, it must be of such magnitude as to warrant interference with the conclusion reached by the learned trial judge – Gidado Iyanda V. The Queen (1960) 5 FSC 263 and Ikemson V. The State (1989) 3 NWLR (Pt 110) 455 at 466. The appellant has again failed to have this issue resolved in his favour.

On the third issue learned counsel for the appellant submitted that where the evidence adduced by the prosecution fails to support a conviction for the offence charged but would be sufficient to support a conviction of an attempt to commit the offence the appellate court or any court seized of the facts of the case has jurisdiction to convict for a lesser offence.