Anthony Okoro Vs The State (2012)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

The appellant was charged and arraigned with three other persons on a one count charge which read as follows:

STATEMENT OF OFFENCE:

Murder contrary to Section 319 (1) of the Criminal Code. Cap.30 Vol. 11, Laws of the Eastern Nigeria 1963 as applicable to Imo State of Nigeria.

PARTICULARS OF OFFENCE

Anthony Okoro, Mbadiwe Okoro, Friday Okoro and Godwin Okoro on 14th day of October, 1987 at Umulolo in the Okigwe Judicial Division murdered Obediah Ofoegbe. Trial commenced on the 26th of October, 1993 in a High Court at Iho, Imo state, Onumajulu J presided. Ten witnesses testified for the prosecution. Godwin Okoro was subsequently withdrawn from the charge and discharged. The remaining three accused persons gave evidence in their defence. A fourth witness also testified for the accused persons. Thirteen exhibits were received in evidence.

In a considered judgment delivered on the 17th of November, 1997 the learned trial judge acquitted and discharged Mbadiwe Okoro and Friday Okoro, found the 1st accused person, Anthony Okoro guilty of murder and sentenced him to death. Anthony Okoro filed an appeal. It was heard by the Court of Appeal Port Harcourt Division. That Court confirmed the judgment of the trial court. The concluding paragraph of the judgment read thus:

“In conclusion, convicts appeal has no merit and is dismissed. I affirm the conviction and sentence of the appellant as found and declared at the trial court”.

This appeal is against that judgment. In accordance with Rules of this Court, briefs of argument were filed and exchanged.

Learned counsel for the appellant formulated six issues for determination from his nine grounds of appeal. They are:

1. Whether the lower court was right when it upheld the judgment of the trial court when the appellant did not have a fair hearing in the trial court.
2. Whether the lower court was right when it relied on the evidence of pw1, pw3, pw6, Pw7 and Exhibit B in upholding the finding of the trial court that it was the appellant that shot and or killed the deceased.
3. Whether the lower court was right when it upheld the conviction and sentence of the appellant to death for murder by the trial court, after the trial court, based on the same evidence discharged and acquitted the 2nd and 3rd accused persons.
4. Whether the lower court rightly upheld the conviction and sentence of the appellant to death for murder by the High Court, when the charge and the entire proceedings before the trial High Court were incompetent.
5. Whether the prosecution proved its case against the Appellant beyond reasonable doubt to warrant the lower court to have sustained or upheld the conviction and sentence of the appellant to death for murder by the trial court.

And for the respondent, learned counsel formulated three issues, which are:

1. Whether the appellant was given a fair hearing.
2. Whether there was evidence sufficient enough to warrant the conviction for murder and sentence to death of the appellant by the trial court.
3. Whether the proceeding in the trial court was a nullity.

I am satisfied that the five issues produced by learned counsel for the appellant are adequate for the purpose of this appeal.

At the hearing of the appeal on the 20th of October, 2011 learned counsel for the appellant K. Wodu esq. adopted his appellant’s brief deemed duly filed on the 30th September, 2010 and a Reply brief filed on the 24th January 2011. Learned Counsel for the Respondent, N.A. Nnawuchi esq. adopted his brief filed on the 11th of November 2010 and in amplification of his brief referred us to the case of:

Anyanwu v State 2002 13 NWLR Pt 783 p107 on the doctrine of presumption of regularity and urged us to dismiss the appeal.