Abainta Okendu Ubani Vs. The State (2003)

LAWGLOBAL HUB Lead Judgment Report

O. EDOZIE, J.S.C. 

By an information dated 13th day of September, 1991 the three appellants on record were arraigned with three others before Isaiah Ngwa High Court jointly charged on two counts of offences, to wit, conspiracy and kidnapping contrary to sections 516 (A)(a) and (364)(b) respectively of the Criminal Code Cap., 30, Vol. 11, Laws of Eastern Nigeria, 1953 applicable in Abia State. The particulars of the offences alleged that the three appellants and the three others at large on the 26th of March, 1991 at Amuzu Umurasi in Isiala Ngwa Judicial Division conspired to commit a felony, to wit, kidnapping and on the aforesaid date at Umuikeogale Oruokwu imprisoned Allison in such a manner as to prevent Felicia Abajua his wife from discovering the place where he was imprisoned.

Each accused person pleaded not guilty to the charge and the thereafter the prosecution called five witnesses at the conclusion of which the learned trial Judge, Isuama J, pursuant to section 163 of the Criminal Procedure Law ordered that the charge be amended to read murder contrary to section 319 of the said Criminal Code.

The star witnesses for the prosecution who gave eyewitness accounts of the events that led to the charge against the appellants were Ugboaku Abajua (P.W.1) and Felicia Abajua (PW2) who were the daughter and wife respectively of Allison Abajua hereinafter referred to as the deceased. Their evidence was to the effect that on 26th March, 1991 at about 6 a.m., one Hilary Chukwuemeka, a legal practitioner came to the house of the deceased, met him where he was weaving a mat and threatened that if the deceased did not vacate his premises, he would see what would happen to him. Apparently, the deceased did not heed the warning. Subsequently, at about 10 a.m. the same day, the six accused persons standing trial including the three appellants in company with others at large who are from Amuzu village and were relations of Hillary Chukwumemeka the legal practitioner and had come to harvest palm fruit near the house of the deceased, pounced on the deceased and asked him if he did not hear what their lawyer told him. They, armed with guns, matchets and clubs started beating the deceased until he fell down. He was dragged to the house of one of the accused person at Amuzu. It is the case for the prosecution that the deceased died in consequence of the assault on him by the accused persons with whom he had a land dispute. A report was lodged at the police at Umuoba and on investigation, some arrests were made. On 15/11/91, Inspector Silas Onuoha (P.W.4) took Dr. Chima Nwafor (P.W.3) to Umuorasi in the house of one of the accused persons where from a disused latrine pit a human forearm and a human leg were exhumed. The P.W.3 in his evidence stated that from the specimen provided, the sex of the victim could not be determined but that the extent of the decomposition did suggest that the body of the victim must have been there for about six months. In their defence, the accused persons denied any involvement in the murder of the deceased. They elected not to go into the witness box after the relevant provision of the Criminal Procedure Law was explained to them.

The learned trial Judge after a careful review of the evidence convicted the six accused persons for the offence of murder and accordingly sentenced each to death. Each of three appellants on record lodged an appeal to the Court of Appeal Port Harcourt Division and in its judgment on 12th July, 2001 it dismissed the appeal of the 1st appellant and in another judgment delivered on 30th May 2002 similarly dismissed the appeal of each of the 2nd and 3rd appellants. These are further appeals by each of the three appellants against their convictions and sentences for the offence of murder. Briefs of arguments were filed and exchanged between their counsel and the counsel for the respondent. These were adopted and relied upon by counsel when the appeal was heard. In the brief of argument filed on behalf of the 1st and 2nd appellants on record the issue for determination was formulated thus:

“Was the charge of murder proved whether by direct or circumstantial evidence.”

In the 3rd appellant’s brief the sole issue was couched in the following terms:-

“Whether the Court of Appeal was right in confirming the conviction of the 3rd appellant for murder on the basis of the evidence led at the trial.”

The issue formulated for the respondent is identical with that of the 3rd appellant.

In the brief of argument filed on behalf of the 1st and 2nd appellants, learned counsel referred to the evidence of the five witnesses called by the prosecution and submitted that as none of the witnesses was treated as a hostile witness, it was not open to the trial Court of Appeal to accept the testimony of one witness and reject that of another. The court must evaluate the totality of the evidence called by the prosecution in order to determine whether the prosecution had proved its case beyond reasonable doubt. For this proposition, learned counsel called in aid the cases of Boy Muka & 2 Ors. v. The State (1976) 9-10 SC 305 at 325; Onungwa v. The State (1976) 2 SC 169.

It was contended that the trial court and the court of Appeal properly evaluated the evidence of all the five witnesses for the prosecution and taken all of them into account particularly the evidence of (PW3) the medical evidence which the court below observed was of no assistance on the identity of the deceased, reasonable doubts would have risen which would have been resolved in favour of the appellants. Furthermore, learned counsel contended that there were contradictions and discrepancies between the testimonies of P.W.1 and PW2 and their extra judicial statements to the police exhibits A, A1 and exhibit B. It was pointed out that while P.W.1 testified on 22/2/94 that the deceased Allisson Abajua died on the spot on 26/3/91, her statement to the police exhibits A and A1 suggests that the deceased did not die on the spot and that his where about was unknown or that she suspected that he must have been killed. With respect to P.W.2, it was pointed out that while in her testimony before the court she stated that as the accused persons were dragging the deceased towards their place, they killed him on the way but in her extra-judicial statement to the police exh. B she stated that when the police came searching for the deceased and his assailants, they could not be found. It was therefore, submitted that there were sufficient doubts raised in the testimonies of the P.W.1 and P.W.2 and that such doubts ought to be resolved in favour of the appellants. The following cases were cited and relied upon:- Onubogu v. The State (1974) 9 SC 1 at 17; The Queen v. Joshua (1964) 1 All NLR 1 at 3; Alor v. The State (1996) 4 NWLR (Pt.445) 726 at 741.

In respect of the brief filed on behalf of the 3rd appellant, it was contended that contrary to the findings by inference of the two lower courts that the deceased must have died as a result of the act of the accused persons who attacked him with lethal weapons, the prosecution did not establish the cause of the death of the deceased which is an essential ingredient of the offence of murder since the evidence of P.W. 3 in that regard was of no evidential value. The case of Uguru v. The State (2002) 9 NWLR (Pt.771) 90, (2002) 4 SCNJ 282 at p.295 was called in aid. It was pointed out that there were contradictions between the extra-judicial statements of PW1 and PW2, which initially implied that the deceased was kidnapped and must have died much later and outside his hut and their viva voce evidence in court suggesting that the deceased had died in the hut or at the spot where the accused persons attacked him. These contradictions or discrepancies render the evidence of PW1 and P.W.2 unreliable and cast doubt on the guilt of the 3rd appellant which ought to enure to his benefit vide the cases of Abogede v. The State (1996) 5 NWLR (Pt.448) 270; (1996) 4 SCNJ 223 at p. 228-229 and The State v. Musa Danjuma (1997) 5 NWLR (Pt.506) 512; (1997) 5 SCNJ 178 at 185.

Referring to the case of Sule Ahmed v. The State (2001) 18 NWLR (Pt.746) 622; (2001) 12 SCNJ 1 p.14 on the failure of the prosecution to prove the cause of death, learned counsel contended that there was no description of the nature of the injuries inflicted on the deceased nor was there any iota of evidence from which it could be inferred with certainly rather than suspicion that the deceased died as a result of the injuries inflicted on him.

In reply to the above submissions made on behalf of the three appellants, learned counsel for the respondent in his brief of argument referred to the evidence of PW1 and PW2 to the effect that it was the appellants that attacked the deceased in his house, beat him mercilessly with clubs, butts of guns and other dangerous weapons, dragged him along the road and killed him in the process and submitted that it was proper from the circumstances to draw the inference that it was the appellants that killed him. It was further submitted that whether the deceased died at the scene of the crime or when he was being dragged along the road or later was immaterial. Learned counsel pointed out that notwithstanding the overwhelming evidence of P.W.1 and P.W.2 that the appellants among others attacked the deceased, the deceased was last seen with the appellants when they were dragging him along the road and later took him to the house of the 5th accused person. It was noted that the appellant did not give evidence or offer any explanation as to the where about of the deceased who was last seen with them. Learned counsel submitted that if a deceased person was last seen alive in the company of the accused and there is no credible explanation of the deceased’s disappearance or where about by the accused as in the instant case, the accused would be properly convicted for murder on the authority of the following cases:- Esai & Others v. The State (1976) 11 SC 39; Rapheal Ariche v. State (1993) 6 NWLR (Pt.302) 752; State v. Godwin Nwakerendu & Ors. (1973) 3 ECSLR (Pt.2) 757 at 786; and Peter Igho v. The State (1973) 3 SC 87; 11 NSCC 166. We were urged to dismiss the appeal and affirm the convictions and sentence passed on the appellants.