Felix Morka & Ors V. The State (1998)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A. 

This is an appeal against the judgment of the Delta State High Court holden at Asaba presided over by Ogbodu, J., in charge No. AG/5C/90. The appellants were charged with the offences of conspiracy and arson. In his judgment delivered on the 6th day of December, 1993, the appellants were convicted of the offences with which they were charged but they were cautioned and discharged.

The case for the prosecution was that on 27th April, 1988, the appellants and two others came into the house of one Monica Nwanu were armed with different weapons to attack her. They attempted to drag her to the house of a native doctor to answer for a charge of witchcraft.

As she was being assaulted, some of the attackers were damaging her properties.

One of her sons called Peter managed to rescue her and escaped with her to the Police Station to report.

When they came back to their house with some Policemen they found that a part of their house and all their household goods had been burnt. This led to the arrest and subsequent charge of the appellants to court.

The appellants’ case was a total denial of the charges against them. They individually set up alibis in their statement to the Police. The defence also stated that P.W.2 Peter Nwanuwere, had by a report, Exhibit ‘P’ in the proceedings complained against the 2nd accused Catherine Marko, one Augustine Morka who was never charged and ”many others unknown” for coming to their house (house of P.W.2 and P.W.1 his mother) on the 27th of April, 1988 and destroyed doors and windows. The complaint further alleged that in the process, one of them presumably one of the “many others unknown” cut P.W.1 (P.W.2’s mother) with a machet. At the time of the complaint although the complainant knew the names of the 1st and 3rd accused persons who are indeed next door neighbours and children of the 2nd accused, the complainant did not mention their names nor make any allegations against them.

At the trial P.W.1 and P.W.2 testified to the effect that they were attacked by 1st, 2nd and 3rd accused persons and other known members of the 2nd accused person’s family. According to the defence no evidence was given of any “unknown” persons being involved in the attack or for choosing to complain against “many others unknown” instead of the known members of the 2nd accused family. It is the case for the defence also that evidence abound on record to show that the relationship between the complainant and his family including P.W.1 and the accused persons’ family has not been cordial and that there have been series of misunderstandings between them.

After a review of the evidence, the learned trial Judge convicted the appellants as indicated above but decided to caution and discharges them.

Dissatisfied with the decision of the court below, the appellants appealed to this court on a number of grounds of appeal as shown in their individual Notice of Appeal.

The appellants filed their briefs of argument. So did the State. The appellants also filed a reply brief dated 26th February, 1997. Based on the grounds of appeal filed, the appellants formulated the following issues for determination:-

“(i) Whether the learned trial Judge was right in holding that the defence of alibi was not available to the appellants.

(ii) Whether the learned trial Judge properly evaluated the evidence before him before coming to the conclusion that the appellants were guilty.

(iii) Whether the decision of the trial Judge is justifiable having regard to the evidence and the law.