Wowem V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

The Appellant was arraigned before the High Court of Rivers State, Port Harcourt Judicial Division on 5th April, 2011 for the offence of murder contrary to Section 319(1) of the Criminal Code of Rivers State. He pleaded “not guilty” and the Respondent called 5 witnesses to prove the charge while the Appellant testified for himself and closed his case. At the close of trial, the learned trial Judge convicted the Appellant and sentenced him to death by hanging.

Dissatisfied with the judgment of the trial Court, the Appellant lodged an appeal at the Court below vide an Amended Notice of Appeal filed on 30th April, 2015. In their unanimous decision delivered on 26th February, 2016, the learned Justices at the Court below affirmed the conviction and sentence passed on the Appellant by the learned trial Judge, hence, his further appeal to this Court.

The facts of the case which has led to this appeal in brief are that on 13/8/2010 at about 9.20pm the Appellant, who at the time was resident at No. 1 Gada Street, Ogbunabali, Port Harcourt went to No. 6 of the same street to invite out his friend, one Manuchim Owuru but the later declined on the ground that he was not feeling well. Incidentally, No 6 Gada Street was the deceased’s matrimonial home and the deceased was with his cousin, Mr. Manuchim, when the Appellant went to invite him. Having been informed that his friend could not go out with him the Appellant insisted to the annoyance of the deceased who told the Appellant to leave his cousin alone and come back the next day at which time he might have recovered his health. The Appellant was offended with the deceased and quarrel broke out between them upon which the Appellant issued threats against the deceased that he was going to “deal with him.” After they had dispersed, the deceased went to their house at No. 7 Gada Street and the Appellant to his father’s house at No. 1.

Both parties from this point gave different versions of what happened next. The prosecution’s witnesses testified that they (PW1 and PW2) both heard the Appellant issue threats that he was going to deal with the deceased as he was walking back home. Later, when the deceased was standing in front of No. 7 Gada Street, with his arms folded across the chest, the Appellant walk past and pretended to be buying yam from PW1’s step mother, one Mrs. Rose Chinwo, and suddenly ran towards the deceased, pulled a knife from his body and stabbed the deceased in the belly. The deceased was thereafter rushed to the hospital.

​On the other hand, the account of what transpired as rendered by the Appellant was that upon his visit to his friend Manuchim Owuru on the said 13/8/2010 the deceased, without any provocation slapped him. He queried the deceased as to the reason for such unprovoked attack and the deceased told him that his father, Mr. Vincent Wowem was instrumental to the shutting down of the games hall owned by the PW2 by elders of the community. That his father had told the elders of the community to shut down the game hall as it was used for gambling. That the deceased then started beating him mercilessly not minding that he was asthmatic. That a Kalahari woman, a Calabar man and Manuchim Owuru who all witnessed the incident were unable to hold back the deceased from beating him. That he struggled with the deceased until they both fell to the ground where he eventually picked up a sharp object and the deceased left him alone. That he cannot remember if the object he picked touched any part of the deceased body. That after the incident he returned to his father’s house and later heard that the deceased was dead. He made extra judicial statements which were admitted as Exhibits 8, 9 and 12.

Learned counsel for the Appellant filed an original brief of argument dated 23rd January, 2018 on 25th January, 2018. In response, counsel to Respondent filed the Respondent’s brief of argument dated 22/3/2018 on 11/4/2018. Counsel to the Appellant subsequently applied to amend his processes and he filed an Amended Notice of Appeal having 8 grounds of appeal dated 23/8/2018 and filed on 28/8/2018 and an amended Appellant’s brief of argument dated the same 23/8/2018 and also filed on 28/8/2018. The said processes were deemed properly filed by this Court on 5/11/2020. At the hearing of the appeal, counsel to the parties adopted and relied on their respective briefs of argument as well as Appellant’s reply brief of argument.

​In his amended brief of argument, learned counsel for the Appellant nominated three issues for determination as follows:-

Whether having regards to the facts and evidence led, the learned Justices of the Court of Appeal were right in upholding the decision of the learned trial Judge that the Appellant had intention to murder the deceased or cause him grievous bodily harm thus, rejecting the defence of self-defence, provocation and accident put forward by the Appellant.

Whether the Justices of the Court of Appeal were right when they affirmed the decision of the learned trial Judge notwithstanding the wrongful admission of Exhibit 6 in evidence by the Court, failure of the prosecution to properly identify the corpse of the deceased and tender the murder weapon.

This issue is distilled from grounds two, three and four of the Notice and grounds of appeal

3. Whether the Justices of the Court of Appeal were not wrong when they rejected the contention of the Appellant that from the facts and evidence led, there were no material, inconsistencies and contradictions witnesses as well as the lopsided consideration of the cases put forward by parties at the trial which made it unsafe for the learned trial Court to convict the Appellant of murder.

On his own part, learned counsel to the Respondent equally distilled three issues for determination as follows:-

1. Whether the Court of Appeal was right when it rejected the defences of self-defence, provocation and accident relied upon by the Appellant?
2. From the totality of evidence provided in this case was the Court of Appeal correct in affirming the judgment of the trial Court on the ground that the Respondent proved the charge of murder against the Appellant?
3. Were the contradictions and inconsistencies in the evidence of the prosecution witnesses sufficient to warrant upturning the concurrent judgment of the lower Courts?

Learned counsel also incorporated a preliminary objection into his brief of argument to strike out appellant’s grounds 2, 3 and 4 in the amended Notice of Appeal as those grounds contain fresh issues which were not previously raised at both lower Courts and consequently to discountenance and strike out appellant’s issue 2 distilled from those grounds. Relying on a number of authorities including Akunne Bosa Mbanefo v Mofunanya AGBU & Anor LER (2014) SC. 179/2007; Elema v Akenzua (2000) 6 SC (pt 3) 26; Ume v Mgbachi (2014) All FWLR (pt726) 615, learned counsel submitted that the Appellant failed to seek and obtain leave of Court before raising grounds 2, 3 and 4. That failure to so obtain leave before canvassing those grounds which contains fresh issues, render those grounds incompetent and liable to be struck out.

In his reaction to the respondent’s preliminary objection, learned counsel for the Appellant rightly observed that since the respondent’s preliminary objection was attacking some grounds of the amended notice of appeal and not the entire notice of appeal which would have invited the Court to determine the appeal in limine, that the respondent ought to have filed a motion on notice to strike out the alleged incompetent grounds instead of raising the preliminary objection in his brief of argument. He relied on the cases of NNPC v Famfa Oil Ltd (2012) 17 NWLR (pt1328) 148 at 185 – 186 paragraphs F – B; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113 at 139, paragraphs B – E, SPDCN Ltd v Amadi (2011) 14 NWLR (pt 1266) 157 at 183 paragraphs D – F, Odunukwe v. Ofomata (2010) 18 NWLR (pt 1225) 409 at 423 paragraphs E – G. Learned counsel for the Appellant further submitted that for the simple fact that the appellant is a murder convict and sentenced to death, the appellant has the liberty to raise any defence available to him and the Court has a duty to consider all defences raised by the appellant regardless of whether or not such defences were specifically put up by him. On this point he relied on the cases of Adelu v. State (2014) 13 NWLR (pt 1425) 465 at 482, paragraphs F-A and Fabiyi v. State (2015) 18 NWLR (pt 1490) 80 at 95 – 96 paragraphs H – A. He therefore urged the Court to discountenance and strike out the respondent’s preliminary objection.