Anselem Agu V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of P.O. Onumajulu J- of the High Court of Imo State sitting at Mbaitoli/Ikeduru delivered on 26/7/99 wherein he found the accused appellant guilty of the offence of murder contrary to Section 319(1) of the Criminal Code and accordingly sentenced him to death.

The facts of the case are as follows. On the 2/5/92, PW3, the daughter of the deceased was returning from the stream where she had gone to fetch water. Her bicycle broke down on the way and had to drag the bicycle home. Later in the day between 4.pm and 5.pm, she took the bicycle to a bicycle repairer one Fabian Ugwushie to effect repairs. While she was with the repairer, she heard the deceased calling on her. On her way back to answer the call, she met the deceased on the way who asked her to go home to cook.

As she (PW3) moved to go to inform the repairer to continue with the repair work, she saw the accused emerged from a track with a matchet. The accused cut the deceased on the neck with the matchet. The deceased took to her heals and was yelling but the accused ran after her and continued to give her matchet cuts all over her body. PW3 was shouting following closely. The accused chased the deceased into the compound of one George Opara where he continued to cut her, and left her in a pool of blood.

The incident attracted a number of people including PW1, and PW4, who saw accused dashing out of the compound with a matchet, and PW5 who reported the matter to the police.

The statement of the accused person was admitted as exhibit “B”. At the close of the case for the prosecution, counsel for the accused person stated that he was not calling any evidence but was relying on the case presented by the prosecution. He therefore also closed the case for the defence. The matter was then adjourned for address.

Later, however, and before the addresses were rendered, the defence changed its mind and decided to lead evidence in defence. It applied to re-open the case and the application was granted. The accused, who then testified as DW1, denied the charge, denied knowing the deceased, denied murdering the deceased and denied making the statement, Exhibit B, credited to him.

On these facts, the learned trial Judge in a considered judgment convicted the accused as charged and sentenced him to death.

By the order of this Honourable Court, the Accused/Appellant filed a Notice of Appeal containing four (4) grounds of appeal before this court on 17/10/2005. Appellant’s brief of argument was also filed on 17/10/2005. Respondent’s brief of argument dated 26/4/10 was filed on 11/10/2012.

Learned counsel for the Appellant nominated two(2) issues for determination:

“1. Whether in the light of the failure of the police and the High Court to investigate the defence of the Appellant, the case for the prosecution can be held to be proved beyond reasonable doubt to support a verdict of guilt entered against the Appellant for murder contrary to Section 319 of the Criminal Code, Laws of Eastern Nigeria 1963 applicable to Imo State.

2. Whether the learned trial Judge properly evaluated the evidence before him.

Learned counsel for the Respondent formulated three (3) issues for determination as follows:

“1. Whether the prosecution did not prove its case beyond all reasonable doubt against the Appellant.

2. Whether the learned trial Judge did not consider all the defences available to the Appellant.
3. Whether the mere fact that PW3 was the daughter of the deceased and other prosecution witnesses were related to her for that matter renders their evidence inadmissible.

On Issue No. 1, learned counsel for the Appellant submitted that the case of the Appellant is that there has been a pre-existing animosity that has defined his relationship with deceased family, which animosity supports a version of attack and assault with intent to cause bodily harm and or death. That from Exhibit B, the Appellant’s case is that on the day of the incident he was attacked by the deceased, Okeuchi, Clifford Ejioba, Robert Opara and Chinasa Opara.