Asende Yav & Ors V. The State (2004)

LawGlobal-Hub Lead Judgment Report

IFEYINWA CECILIA NZEAKO, J.C.A.

This is an appeal against the judgment of Ogbole J, sitting at the High Court of Justice, Makurdi Benue State of Nigeria. In the judgment delivered in charge MHC/19c/92 on 7th June, 1996. Of the 8 accused persons, he found 5 of them namely the 2nd, 3rd, 4th, 6th and 8th accused, guilty of the two counts for which they were charged. The 5th accused Ashikura Mtir had died before judgment, after he testified in his own defence. The 1st and 7th accused were discharged and acquitted, based on their respective pleas of alibi which succeeded.

The amended charge for which they were convicted were as follows:

Count 1:

That you Amile Gyuver, Asende Yay, lortuhwa Ngbar, lortim Kwaghvihi, Ashikura Mtir, Tsa Venande Lim, Nengem 19budu and Akar Igbudu.

On or about 13/4/89 at Ugambe Shangev Tiev in Konshisha L.G.A. within Benue State Judicial Division committed criminal trespass by entering into Yesem Ankyehe’s compound without his consent and against his will with intent to commit mischief by fire and thereby committed an offence punishable under section 348 of the P.C. read together with section 79 of P.C.

Count 2:

That you Amile Gyuve, Asende Yay, lortuhwa Ngbar, lortim Kwaghvihi, Ashikura Mtir, Tsasvenenad Lim, Nengem Igbudu and Akar Igbudu on or about 13/4/89 at Ugambe Shangev Tiev in Konshisha L.G.A. within Benue State Judicial Division, committed mischief by fire to wit: You set fire on two houses of Yesem Ankyehe which were ordinarily used as dwelling houses and also the corpse of the said Yesem Ankyehe’s mother which was exhumed from the grave and the said corpse burnt to ashes and thereby committed an offence punishable under section 337 of the P.C. read together with section 79 of the P.C. and triable by the High Court.

The prosecution at the trial in the court below, had adduced evidence, calling 3 witnesses, while all 8 accused persons testified in their own defence and called one witness, DW9. The 5 accused persons found guilty, were each sentenced to a fine of N1,000.00 or one year imprisonment in Count 1 and to 3 years imprisonment without option of fine in Count 2, the sentences to run concurrently.

Dissatisfied, they have appealed to this court on 4 grounds.

Learned counsel for the parties had filed and exchanged briefs of argument as required by the rules of this court. The appellants’ brief was filed on 11/11/98 while the respondent’s was filed out of time on 25/4/2001 by leave of this court granted on 24/4/2001. The appellants also filed a reply brief on 30/9/03 out of time by leave of the court granted on 18/2/04.

From the 4 grounds of appeal, learned counsel for the appellants had settled two issues for determination thus:

1. Whether or not the prosecution had proved its case warranting the conviction and sentence of the appellants by the trial court?.
2. Whether or not the trial court properly evaluated the evidence and considered the appellants’ case before it in arriving at its judgment?.

Counsel did not however identify the grounds of appeal from which each issue was distilled.

Learned counsel for the respondent who adopted the same issues, however married issue No.1 with ground 1 of the grounds of appeal and issue No.2 with grounds 2, 3 and 4.