Chief Fyneface Nnunukwe & Ors V.the State (2002)

LawGlobal-Hub Lead Judgment Report

AKPIROROH, J.C.A.

The appellants, Fyneface Nnunukwe, Nathaniel Ibe Nnunukwe and Clement Anyalebechi Njoku were convicted of the murder of Hycienth Onyekazi Obilor hereinafter called the deceased by the High Court of Rivers State sitting at Isiokpo and sentenced to death contrary to section 319(1) of the Criminal Code, Cap. 30 Laws of the Eastern Nigeria, 1963 applicable in Rivers State on the 3rd day of July, 2000.

The prosecution called eleven witnesses while each of the appellants gave evidence in his defence and called no witness.

The facts of the case for the prosecution as presented in the court below can be summarised as follows:

On 22/2/95, PW6, Joshua Nwankwoala had his birthday party and appointed the deceased the chairman. At the end of the party, PW3 Christian Nwankwoala took the deceased at his request to his girl friend’s house (PW8) in the premises of the 1st appellant. The deceased told him to come back to pick him at 5 a.m. the following morning and he left. PW8, Rose Obinna, the deceased’s girlfriend was living in the premises of the appellant. On 22/7/95, as she was sleeping in the house, she was woken up by the voice of the deceased calling her and she opened the door to see what was happening to him but was ordered by the 2nd appellant who threatened to shoot and kill her if she came out. She opened the door a second time and saw the 2nd appellant beating and dragging the deceased in front of her door step towards the 1st appellant’s frontage under a pear tree. As a result of the threat by the 2nd appellant to shoot and kill her, she opened the louvres in her room and saw the appellants beating up the deceased. Her window faced the 1st appellant’s building and her house was at the centre of the premises and she saw clearly what happened to the deceased.

PW1, Nwairegbu Appolos testified that on 23/7/95 at 6 am he was on his way to board a commuter bus at Umuaturu junction and as he approached the junction of Umuola, he met the 2nd and 3rd appellants carrying something. When he got closer to them, he discovered that it was a human being that they were carrying. On enquiry, the 2nd appellant told him that the person got drunk in their yard and that they were carrying him to where they would cool his body. At day break, he heard people shouting that somebody had been killed and dumped at Umuola junction. He returned to the spot and observed that the person was already dead and identified the deceased whose body was abandoned in a collection of water near Umuola junction as his brother. He said that when he saw the 1st and the 2nd appellants carrying the deceased, one was holding his body below his arms while the other was carrying his two legs.

The defence of each of the appellants is a total denial of the offence.

At the end of the trial and in a reserved and considered judgment, the learned trial Judge convicted each of the appellants and sentenced each of them to death by hanging.

Dissatisfied with their convictions, each of them has appealed to this court and learned Senior Advocate filed a brief of argument for each of them and a joint reply for all of them and distilled only one issue for determination as follows:

“1. Whether upon the correct appreciation of the law and proper appraisal of the evidence before the court, the learned trial Judge was right in holding that the prosecution proved that the appellant was guilty of the crime of the murder of Hycienth Onyekazi Obilor beyond reasonable doubt?”

Learned counsel for the respondent also filed a brief of argument and framed one issue for determination as follows:

“Whether in all the circumstances of this case the prosecution proved the case of murder against the appellants beyond all reasonable doubts?.”

Learned senior counsel for the appellants submitted that the learned trial Judge was wrong in relying on the evidence of PW8 in convicting the appellants. He then referred to the first two statements she made to the Police in which she denied seeing the deceased in her house and the evidence of PW3 who said that he took the deceased to the house of PW8, his girlfriend on 23/7/95 and requested him to come back at 5 a.m the following morning to pick him. PW8 in her 3rd and 4th statements which she made to the Police, she changed and claimed that she heard the deceased shout her name “Rose” between 11 p.m and 12 p.m in the night of 22/7/95, and that when she opened her door the 2nd appellants threatened to kill her if she came out and banged her door and peeped through the louvres of her window and saw the appellant dragged and beat up the deceased at the frontage of the 1st appellant’s house. He also referred to the evidence of PW1 which the learned trial Judge relied on in convicting the appellants because he did not make his statement to the Police after a period of one month of the murder of the deceased by the appellants whom he claimed to be his brother, stressing that the long delay in making his statement to the Police rendered his evidence unreliable. He further submitted that the evidence of PW1 and PW8 rendered the case for the prosecution most unreliable and the learned trial Judge was wrong in convicting them on their evidence and relied on the cases of Onuchukwu v. The State (1998) 4 NWLR (Pt. 547) 576 at 589; Joshua v. The Queen (1964) 1 ANLR (Pt. 3) p. 1 and Onubogu v. The State (1974) 9 SC 1 at 19.

He further submitted that if the learned trial Judge had properly evaluated the evidence of PW8 which he relied on in convicting the appellants, he would have come to the irresistible conclusion that inspite of the explanation of the inconsistency in the evidence of PW8 and her first statements to the Police that her evidence remained unreliable and ought not to have been relied upon by him in convicting the appellants and that the case of Babalola v. The State (1989) 4 NWLR (Pt. 115) 264 is inapplicable to the facts of this case.