Sunday Chijioke Agbo & Ors V. State (2013)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C

This is an appeal against the judgment of the Court of Appeal; Enugu Division (the court below) delivered on the 24th February, 2010. Therein, the court below dismissed the appeal of the appellants against the decision of the High Court of Ebonyi State, “holden at Abakaliki (the trial court) delivered on 11th April, 2008 wherein the no case submission made on behalf of the appellants, was overruled.

The appellants were charged before the trial court for the murder of Ifeanyi Nnaji. The prosecution called five witnesses and closed its case. A no case submission was made on their behalf by their counsel. Same was overruled by the trial court. The appellants lodged an appeal at the court below which was dismissed on 24th February, 2010.

The appellants felt unhappy with the stance posed by the court below and have further appealed to this court.

It is apt to assemble briefly the case of the prosecution. The evidence adduced by the witnesses points to the direction that on 23rd August, 2001, the deceased, Ifeanyi Nnaji and three others while in a Toyota car driven by one Chibueze Idah, had skirmish with Mobile police officers on special duties at the border between Enugu State and Ebonyi State. In the ensuing melee, the driver of the car, Chibueze Idah was shot dead while the three others, including Ifeanyi Nnaji sustained injuries on their legs.

The three wounded persons were taken to the Police Headquarters, Abakaliki. Thereat, Ifeanyi Nnaji who had injuries on his leg had discussions with those around including the P.w.1 Gabriel Idah and expressed that he was well. Subsequently at the police Headquarters, Abakaliki, Ifeanyi Nnaji and the two other wounded persons were put inside a pick-up van and taken away by the appellants who were then attached to the Surveillance Squad, Police Headquarters, Abakaliki. The next day the dead body of Ifeanyi Nnaji was found at the Federal Medical Centre Mortuary, Abakaliki and was later certified to have died from gunshot at his skull which led to brain tissue damage. At the close of the case for the prosecution, the appellants, instead of entering their defence, elected to make a no case submission. Learned counsel for the defence maintained that they were not relying on the said no case submission. In the considered ruling handed out on 11th April, 2008, the learned trial judge Ogbu, J. overruled the no case submission and called on the appellants to open their defence.

The appellants felt unhappy and appealed to the court below which dismissed the appeal. This is a further appeal to this court.

On 31st January, 2013 when the appeal was heard, learned counsel on each side of the divide adopted and relied on the brief of argument duly filed on behalf of his client. Learned counsel for the appellants urged that the appeal be allowed while the learned counsel for the respondent urged that the appeal be dismissed.

The two issues crafted on behalf of the appellants for a proper determination of the appeal read as follows:-

“3.1.1 Whether, on the evidence on record, the learned Justices of the Court of Appeal were right to have applied and/or relied on the principle of doctrine of ‘last seen’ to hold that there was prima facie case against the appellants (Distilled from Grounds 1 and 3).

3.1.2 Whether the learned Justices of the Court below were right in dismissing the appeal of the appellants and holding that there is prima facie case against the appellants for the murder of Ifeanyi Nnaji when the prosecution failed to prove the essential elements of the offence of murder, or when the evidence of the prosecution witnesses is so manifestly unreliable such that no reasonable tribunal could safely convict on it. (Distilled from Ground 2).”

To balance the equation, so to speak, two issues were also decoded on behalf of the respondent for a proper consideration and determination of the appeal. They read as follows:-

“3.1 Whether the Court of Appeal was right in dismissing the ‘No case submission’ in respect of the charge against the appellants.

3.2 Whether the prosecution proved the essential elements of the offence of murder against the appellants and / or whether the evidence of the prosecution witnesses is infested with contradictions.”