Simeon Nebeife Obidike V. The State (2014)

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 18th July, 2001. Therein, the court below dismissed the appeal of the appellant and affirmed the judgment of the trial High Court of Anambra State, Otuocha per Ezeani, J. delivered on 1st August, 1996 wherein he was convicted and sentenced to death along with five others for the murder of one Maduneke Enweonye. I note it here that the appellant was the 4th accused person at the trial court.

As extant in the record, the facts as briefly stated by the prosecution are that there was a dispute over the ownership of Ikpi fish pond in Anaku between one Sunday who claimed exclusive ownership and the rest of Umuereagu Isiokwe kindred which claimed communal ownership. The dispute was resolved in favour of the community which later leased the fish pond to one Chief Philip Ezeoba of Nando for five years. The said chief employed the 1st accused person as a guard of the fish pond through his farm manager called Vincent Okongwu (P.W.2). Subsequently, the lessee of the pond, through his manager, removed the 1st accused as the pond guard and replaced him with Maduneke Enweonye – the deceased. The 1st accused who was not happy with the development, went in company of one Onwualu Ikenna to the farm Manager to complain about his replacement with the deceased.

There was a general meeting of Isiokwe community on 21st May, 1994 at the Town Hall during the community’s ‘Uta Amanwuli’ festival where the issue of Ikpi fish pond was raised. The 1st accused at the meeting openly threatened to kill the deceased and do away with his corpse if he continued to go to the pond and that he should be so warned. The 1st accused was challenged for making such a statement and was advised to withdraw same. Rather than do so, he stormed out of the meeting and was followed by the other accused persons (the appellant herein inclusive) as well as some others at large. The 1st accused and his group then re-convened in his house near the Town Hall to hold a secret meeting.

The said Manager, Vincent Okongwu testified that on 9th June, 1994, he went to Ikpi fish pond to provide food for the deceased but did not find him there. He searched frantically for the deceased but did not find him. He reported the missing of the deceased to the villagers. Search parties thoroughly searched for the deceased to no avail. The deceased could not be located. A report was made to the police. On investigation, the accused persons were arrested and statements were taken from them and witnesses. Although the body of the deceased was not eventually found, the police had cause to arraign the accused persons in court for murder of the deceased. At the trial court, P.W.5 gave a graphic picture of how the killing of the deceased was carried out. The learned trial judge believed the evidence of the P.W.5, Godfrey Emengini and convicted all the six accused persons but acquitted and discharged the 7th accused person who he gave the benefit of his doubt. The appeal to the court below, was dismissed. The appellant who like some others before him, felt unhappy with the stance of the court below has also appealed to this court.

On 16th January, 2014 when the appeal was heard, Mr. J.O.N. Ikeyi, learned counsel for the appellant, adopted and relied on the appellant’s brief which was filed on 16th November, 2011 but deemed duly filed on 20th June, 2012. He urged that the appeal be allowed. Mr. P. A. Afuba, Hon. Attorney-General of Anambra State, duly adopted and relied on the respondent’s brief of argument filed on 30th November, 2012. He urged the court to dismiss the appeal and affirm the decision of the court below which affirmed the judgment of the trial court.

The sole issue couched for the determination of the appeal on behalf of the appellant reads as follows:-

“Whether the prosecution proved its case beyond reasonable doubt, upon the community reading of sections 131, 132, 135, 136 and 140 of the Evidence Act, Laws of the Federation of Nigeria, 2011.”

On behalf of the respondent, the two issues decoded from the appellant’s five (5) grounds of appeal for a proper determination of the appeal, read as follows:-

“(i) Whether the court below was right in affirming the conviction of the appellant based on the evidence of the single eye witness; the P.W.5.

(ii) Whether the appellant can raise the issue of alibi without leave when the issue was abandoned at the trial court and was neither raised nor considered at the court below.”

Learned counsel for the appellant submitted with utmost force that the prosecution failed to prove its case beyond reasonable doubt. He opined that the burden on the prosecution is to prove the guilt of the appellant in respect of the offence charged, beyond reasonable doubt. He submitted that the essential ingredients that the prosecution must establish in order to prove its case beyond reasonable doubt to justify a conviction for murder are as follows:-

(a) That the deceased is dead.

(b) That the death of the deceased was as a result of the act of the accused.