Adolphus Onyerika V. The State (1993)

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ABDULLAHI, J.C.A.

T

his appeal is from the decision of the High Court, Owerri, Imo State dated 22/11/79 convicting the appellant for murder and sentencing him to death. The appellant appealed to this Court. In a one sentence judgment dated 12/5/81, the appeal was dismissed. The appellant appealed further to the Supreme Court. The Supreme Court in its judgment dated 15/10/92 sent the case back to this court to be reheard on merit.

The facts of the case briefly are that on 3/2/77 at Okuku, in Owerri Judicial Division one Alfred Onwusumaka now deceased was walking together with Mbonu Iroegbulam, who testified as P.W.1 the trial and the son of the deceased to the house of the deceased to have their meal.
As they were walking, P.W.1 heard a sound at their back he turned and saw the appellant holding a single barrel gun and a matchet. He talked to the appellant and the appellant indicated that he was going to his farm. P.W.1 then joined the deceased and his son and continued their journey to the house of the deceased. The next thing he heard was a gun shot. The deceased fell down. P.W.1 then turned round again and he saw the appellant raising his matchet and aiming at him. He ran into the bush and raised alarm. The son of the deceased ran home and informed his mother what happened. The deceased died on the spot. The wife of the deceased went to the scene and saw the corpse of her husband. She observed a gun shot wound on the head of the deceased and a deep matchet cut wound on the neck. The Police were informed and eventually the corpse was conveyed to the mortuary of the Owerri general hospital.

The appellant run away after the incident and he was not arrested until the following day. The appellant made a confessional statement to the Police on the day he was arrested admitting killing the deceased.

At the trial, the prosecution called six witnesses and the appellant gave evidence in his defence on Oath. At the end of the day, the appellant was convicted under Section 319 of the criminal code and was sentenced to death.

As I mentioned at the beginning of this judgment, the appellant appealed to this Court. On 12/5/81 the appeal was dismissed. The record of what happened on 12/5/81 is very short. It is as follows:-

Iketuonye, ABC for the Appellant
Ezenagu, A.I., Legal Adviser Imo State with him Mrs. I.A. Nwogu Senior State Counsel for Respondent.
Iketuonye: I have carefully read the Records and I am of the view that there is nothing to urge in favour of the appellant.
The evidence as to who killed the deceased coupled with the confessional statement of the appellant is so overwhelmed “(sic).
Ezenagu: I associate myself with that view.
Court: Appeal is dismissed.

The appeal then went to the Supreme Court. In an Order dated 15/10/92 the Supreme Court directed that the appeal be reheard again on it’s merit.

In this appeal, the learned counsel for the appellant, CHIOBI EKPECHI Esq filed appellant’s brief of argument. The respondent did not file any brief.

In his brief, the learned counsel for appellant indicated that he find himself unable to support any of the grounds of Appeal originally filed by the appellant himself and that from the totality of the evidence before the Court, he could not but agree with the learned trial judge that the prosecution has proved it’s case beyond all reasonable doubt.

He however went ahead and identified one issue for determination in the appeal.

I found this situation somewhat strange. If the learned counsel was unable to support the grounds of appeal filed, I wonder on what basis, he formulated the issue for determination in this appeal strangely. Learned Counsel did not make any attempt to seek leave to amend the original grounds which were filed within time or to file additional ground or grounds of appeal. So technically if I accept the position taken by the learned counsel, it means that the issue for determination he formulated has no base and therefore incompetent, since issue for determination in an appeal is based on valid ground or grounds of appeal combined, filed before the Court. See MANAGEMENT ENT. VS OTUSANYA (1987) 2 NWLR (PT.55) 179; ADEGOKE VS. ADIBI (1992) 5 NWLR (PT. 242) 410.

Happily, the Supreme Court has held in several decisions that technicalities shall not be allowed to defeat substantial justice. See NWEJI VS. CHUKWU (1988) 6 SCNJ 132 at 138, BELLO & ORS. VS A.G. OYO STATE (1986) 5 NWLR (PT.45) 828.