Ozana Ubierho V. The State (2005)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

The appellant, Ozana Ubierho and seven others were arraigned before the Warri High Court on a one count charge of murder of one Miemie Uwarah contrary to section 319(1) of the Criminal Code, Cap. 48, Volume II, Laws of Bendel State of Nigeria.

Before the trial commenced, four (4) of the accused persons died in custody while three (3) others were discharged on a no case submission. The trial proceeded against the 4th accused alone.

At the trial, the prosecution called four (4) witnesses. The accused person gave evidence in his defence. At the close of trial, the learned trial Judge found the charge against the accused proved. However, because he was only 14 years old at the time he committed the offence with which he was charged, the learned trial Judge ordered that he be detained in prison at the pleasure of the Military Administrator of Delta State.

Ozana Ubierho’s appeal to the Court of Appeal was dismissed on 18th December, 2003. The present appeal to this court is against the dismissal of his appeal by the Court of Appeal. Both parties filed their respective briefs of argument. Based upon the grounds of appeal filed, the appellant submitted three issues for determination and they read as follows:

i. Whether the learned Justices were right in affirming the ruling of the trial court which rejected the no case submission made on behalf of 4th accused person

ii. Whether on the totality of evidence adduced, the learned Justices were right in holding that prosecution proved the case beyond reasonable doubt

iii. Whether the learned Justices were right in holding that the prosecution proved the culprit and cause of death of the deceased

For its part, the respondent raised two issues which are similar or identical with the appellant’s issues one and two.

I think the real question for resolution in this appeal is the parties issue No.2 which is whether the prosecution proved its case against the appellant beyond reasonable doubt.

Now the short facts of the case as related by the prosecution witnesses are these. PW1 Rowland Uwarah was the son of the deceased and was living in Warri at the time of the incident. He told the court that he was informed that his mother who had a hunchback, was missing. He made a fruitless search for her. Thereafter, on enquiry, he was informed that Okpako Ebe and Isaac Osiki (both deceased) had been seen in their compound. He went to their compound but could not see them. Subsequently, he reported to the police which led to their arrest and the arrest of one Anthony Oboh (3rd accused) by PW3 the investigating police officer. The arrested suspects then led the police to the bush where the corpse of the deceased was found. PW1 said he identified his mother’s corpse. He testified that he observed that his mother’s hunchback had been removed. PW2 Joshua Kubi, a native doctor testified that he was consulted by four boys who wanted medicine to promote their trade and to protect them from witches and wizards. He further told the court that he saw a bag containing meat which the 3rd accused put inside a hole outside his house. He disclosed that he was arrested by the police who took him and the 3rd accused to 3rd accused person’s compound where the piece of meat buried in the ground was recovered.

PW3, the investigating police officer, confirmed that the PW2 and the 3rd accused took him to where the hunchback was buried. He recovered it and sent it to the Forensic Laboratory, Oshodi for analysis and report. He testified that 1st and 3rd accused persons later took him to a bush where he recovered the corpse of the deceased and took it to the General Hospital, Warri where PW4 carried out post mortem examination on it. He said he later arrested the 4th accused, appellant herein, who volunteered a statement in pidgin English which he recorded in pidgin English. The said statement was received in evidence as exhibit K.

PW4, Dr. Macaulay Azebokhai confirmed that he performed post mortem examination on the corpse of the deceased after it had been identified to him by PW1. The corpse, he said, was in a decomposed state. He added that he saw no hunchback.

In his defence, the 4th accused, Ozana Ubierho denied that he killed the deceased. He also denied making exhibit K.