Harrison Owhoruke V. Commissioner Of Police (2015)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

This is an appeal from the judgment of the Benin Division of the Court of Appeal which affirmed the decision of an Oleh High Court Delta State that sentenced the Appellant to death. On the 18th day of January, 2006 the Appellant was arraigned on one count for murder. The charge read:

STATEMENT OF OFFENCE

Murder punishable under Section 319(1) of the Criminal Code Cap 48, Vol.ii Laws of the defunct Bendel State of Nigeria 1976 as applicable to Delta State.

PARTICULARS OF OFFENCE

Harrison Owhoruke (M) on or about the 14th day of November, 2004 at Uroto Quarters, Ozoro, within the Oleh Judicial Division murdered one Augustine Eveh (M)

The Appellant as the accused person pleaded not guilty to the one count charge of murder. In support of its case the prosecution called four witnesses, they are:

PW1 – The medical doctor who performed the postmorterm examination on the deceased

PW2 – gave evidence of what he saw and heard when the deceased was stabbed by the Appellant

PW3 – the father of the deceased. He identified the corpse of his dead son to PW1.

PW4 – The Investigating Police Officer

Documents marked exhibits, A, B, C, D, E, were admitted in evidence. The Appellant gave evidence, but did not call any witness.

The facts are these.

Augustine Eveh (deceased) and PW2, Joel Eriewe were outside the E. T. O. Bar at Uroto Quarters, Oleh, in Delta State at about 8.pm on the 4th of November, 2004. The Appellant was inside the Bar having a drink. There was an altercation outside the Bar between a man called Uzezi and Joel Eriewe over a girl who goes by the name Blessing. The Appellant was attracted to the scene and was able to restrain Joel Eriewe and Uzei from fighting. The Appellant thereafter returned to the Bar to resume drinking. The deceased came into the bar and snatched the Appellant’s bottle of drink and broke it. He held on to a piece of the broken bottle and threatened the Appellant with it. A struggle ensued. The appellant overpowered the deceased and stabbed him with the broken bottle on his neck. He died before he could get to the Hospital. The medical Doctor who performed the postmortem examination on Augustine Eveh said on oath that the stab wounds were on the left side of the neck, and that the major blood vessels, carotid arteries and jungular veins were cut into two. He concluded that the wound was not self inflicted. The Appellant admits that he stabbed the deceased, and that act of his resulted in his death, but that the death was not intentional.