Anthony Okoro V. The State (2016)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A. 

This is a criminal appeal against the judgment of Imo State High Court, Coram P. C. Onumajulu, J, now the Chief Judge delivered on 17th November 1997 convicting the appellant for an offence of murder of one Obediah Ofoegbu on 14th October, 1987.

The brief facts of the case are that the deceased in his lifetime, was the bellman of his church at Umuoloche Umulolo Okigwe, Imo State. On early hours of 13-10-87, he went to that church which was close to his compound to ring the bell for morning prayers; and after ringing the bell, there was sound of a gunshot and the deceased raised his voice saying “Anthony Okoro (appellant) has shot me.” This statement is credited to the evidence of PW1 being the wife of the deceased who by then was still in bed at the material time, but she recognized the voice as that of her husband. On hearing that, she rushed to the scene where she saw her husband stooping and holding his neck, which was bleeding profusely. The deceased repeated talking and crying that the appellant had killed him. That based on the above facts, local members of the community in the area, came to the scene of shooting and saw the condition of the deceased. PW1 then left the scene and made a report of the incident to the nearby Police Station at Umulolo while the deceased was rushed to a nearby hospital called Our Lord’s Hospital from where deceased was latter transferred to the General Hospital, Okigwe. At the same General Hospital, the deceased repeated the name of the appellant as the person who shot him and that at the material shooting by the appellant, two other brothers of the appellant were physically present. The two other suspects are Mbadiwe Okoro – 2nd accused and Friday Okoro – 3rd accused who were latter discharged and acquitted by the trial judge. Before his death, the deceased had made a dying declaration, which was tendered by the prosecutor and was admitted into evidence as Exhibit B.

The appellant denied the prosecution evidence of killing the deceased; and the learned trial judge considered the evidence of PW1, 3, 6, 7 and the validity of Exhibit B and found the appellant guilty of murder. Based on the appellant’s conviction and sentence to death, appellant has appealed to this court on totality of only two grounds of appeal and they read as follows:

“1. That the decision is altogether unreasonable having regard to the weight of evidence.

2. That the learned trial judge erred in law by admitting Exhibit B as a dying declaration and relied on the same to convict the accused/appellant, when the said Exhibit B did not meet the legal test for its admissibility as a dying declaration.”

Out of the two grounds of appeal; appellant has formulated two issues for determination and they are as follows:

“1. Was Exhibit B rightly admitted as a dying declaration? If not what would be the resultant effect if expunged from the judgment.

2. Considering that there was no eyewitness of the shooting of the deceased, did the weight of evidence establish by circumstantial evidence, that the accused/appellant was responsible for the murder of the deceased? In other words, was the circumstantial evidence unequivocal, positive and point irresistibly to the guilt of the accused/appellant to ground his conviction?”

In response to appellant’s issues and argument’ learned counsel for the respondent has formulated three issues for determination. They read thus:-

“(i) Whether Exhibit B and other dying declarations of the deceased to PW1 and PW3 admitted and relied upon by the trial court were rightly admitted and if so, whether weight given to them supported the conviction.

(ii) Whether other circumstantial evidence admitted and relied upon by the trial court supported the judgment.

(iii) Whether there were material contradictions in the evidence of the prosecution witnesses which vitiated the judgment and occasioned miscarriage of justice.”

In arguing issue one in his brief of argument, learned counsel for the appellant has wasted so much comparison of the evidences of PW1, PW3 and PW7 before the late justice S. N. Okoroafor at High Court Okigwe who later was retired before the criminal case could be determined. The same PW1 , 2 and 3 testified before Justice S. A. Nsofor who also not dispose of the case due to his elevation to the Court of Appeal and the case once more had to start de novo before Justice A. A. Ononuju at Okigwe Judicial Division. Still the case could not be determined and was therefore sent to the only relevant trial Judge who had to start hearing de novo again and determined the criminal matter to its conclusion and sentenced the appellant.

Appellant’s further argument on issue one is that the trial court was wrong in reliance of the evidence of PW1, PW3 and PW7 and Exhibit B being the alleged statement of the deceased. Counsel further contended that a critical look at the evidence offered by the prosecuting witnesses at the previous stages, especially before Nsofor (J), he has now noticed that at the trial court, PW1, 3 and 7 have improved on their evidence based on deliberate re-briefing by the prosecuting State Counsel A. C. J. Okorie. Counsel further contended that, justice was not done, nor did it appear to have been done at the trial court and that the conviction of the appellant should be quashed by this appellate court, because Nsofor, J. had rejected the document (Exhibit B) as a dying declaration.

On the part of the respondent, learned counsel has submitted that, exhibit “B” being the statement of the deceased to PW7 at the general Hospital Okigwe on the morning of 13-10-87 on his sick bed, was rightly admitted by the trial court as a dying declaration as provided by Section 33(1)(a) of the Evidence Act Cap. 112, 1990. Learned counsel further submitted that there was positive evidence in Exhibit B that the deceased had believed himself at the material time to be in danger of approaching death when he was asking PW7 to write his statement, notwithstanding the opinion or remarks made by the same PW7 under cross-examination that the deceased did not believe at the time he signed the statement. Respondent’s counsel referred and relied on the case of OKORO V. THE STATE (1967) NMLR, 189, ORSHIOR KUSE V. THE STATE (1969) 1 NMLR 153; (1969) 3 FSC 162.