Chief Sakpugi Gonee & Ors. V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment)

The convicts/appellants, were tried and convicted for the murder of one, BARIBIAE ILEDAE deceased, contrary to section 319 (1) of the Criminal Code Laws of the then Eastern Nigeria 1963 applicable to Rivers state. The judgment appealed against, was delivered by B. A. Georgewill (J) of Bori division on 29-02-2008.

The brief fact of the case is that, initially, 6 suspects were tried together, but after the closing of evidence by the prosecution, three (3) accused persons were discharged and acquitted.

The case of the prosecution at the lower court is that, on 9th November, 2001 the appellants and others still at large, were in 1st appellants Peugeot 504. The deceased and his elder sister named Cecilia Tor-ue, were then returning home after farm work. The appellants then drove and passed the deceased and his sister, namely PW1. But that not far, appellants drove back and stopped, and then came out from the vehicle and began to attack the deceased with guns, axe and machetes, and that 4 other men also at large, emerged from the bush and joined the appellants. That seeing the way the appellants, and his supporters were causing the acts, PW1 had to run to Bionu village asking for help to come and rescue her brother. Before she got the assistance of PW4 and PW5, who came along with her, the deceased had been killed and dumped in the bush.

The deceased was taken to hospital the following day where the post-mortem examination was conducted after PW1 had identified his brother’s corpse. As testified or established by the prosecution witnesses, the corpse bore multiple machetes cuts about 10, the multiple cuts caused much bleeding leading to what is called hypocalcaemia by shock.

The medical doctor who performed the post mortem certified that the caused of death was as a result of the multiple machetes cuts. The prosecution called 8 witnesses and tendered exhibits in support where by, the trial judge sentenced the three appellants and convicted them to death by hanging.

The appellants being dissatisfied with the conviction filed on 29- 02- 2008 their respective notices of appeal. Latter each of the appellants filed another notice of appeal containing 5 grounds. Learned senior advocate for the appellants filed their brief of argument in which the following 4 issues are raised as follows:-

1. whether the prosecution has substantial by evidence beyond reasonable doubt the charge against the appellants as charged.
2. whether Exhibits C, F, O, J and J(i) were properly admitted in evidence by the court of trial.
3. Whether the trial judge properly appraised the identification evidence of the appellants before him.
4. What here the evidence of PW1 as a whole was properly accredited by the trial judge.

On the part of the respondent the brief has also raised similar issues for determination and there is no need to reproduce the identical issues.

However, it is to be that the appellants brief was wrongly signed by another person whose name is not known and said it is for F.A. Oso, SAN. In other words, the brief was signed by proxy which is not allowed. Be that as it may, the brief of the appellants would have been struck out, but justice.

Learned silk argued jointly the four issues he raised in the brief.

The contention is that there was no definite date when the deceased was murdered, and that PW7 Dr. C.N. Amakiri who performed the post mortem examination, had stated in Exhibit “L” that, the date of death was stated as on 9th December, 2001 and not on 9th November 2001 as averred by PW1, who was the eye witness of the murder. Learned silk is of the contention that the prosecution’s contradictions should be resolved in favour of the appellants, and relied on the decision of Abu Ankwa v. The State [1969] 1 NLR 133. Appellants Learned Senior Counsel also said there is a serious anomaly in the lower court’s judgment, when the trial judge took it upon himself to proffer explanations as to the date of the murder, and that it was wrong to have done so, and referred to the case Onubuogu v. The State (1974) 1 NWLR 1. The appellants are of the view of that, PW1, PW4, PW5 and PW6 testified that the date of the murder was committed on 9-11-2001, but that in Exhibit L, the pathologist stated that the probable date of death was on 9-12-2001. The silk urged this court to hold that, the trial judge had no right to proffers explanations to explain the contradictions in the evidence of PW1, 2, 3, 4, 5, 6 and PW7. The learned silk has also contended that, the trial judge made an error, when the issue of blood was considered, and that in Exhibits E,-E4, none of the prosecution witnesses could show that, there was a single drop of blood, either fresh or old or dried on the ground where the corpse of the deceased was lying and was photographed; that the same PW7, the pathologist, had stated that there was no blood in the pool of the deceased at the scene of crime. The appellant’s further contention is that, the trial judge rubbished the identification evidence of PW1 and that same should have been regarded as unreliable. Appellants counsel referred to and reproduced the trial judge’s findings and reasons reached in the judgment. Counsel urged this court to reject both the sworn testimony of PW1 and Exhibit A for being fundamentally, defective and urged the court to allow the appeal of the convicts because the conviction and sentence on the charge or information was not proved as led, and that the trial judge wrongly acted on Exhibits C, F, O, J and J1, which were legally inadmissible in convicting the appellants, that the trial judge relied on poor, wobbling and implausible identification evidence of the prosecution in convicting the appellant.

Learned silk lastly submitted that the evidence of the eye witness PW1, which was relied upon heavily as the basis for conviction was unreliable.

On the part of the respondent, learned Deputy Directior of public Prosecution, referred to the 8 prosecutions witnesses briefly. PW1 Cecilia Tor-ue was an eye witness to the murder of the deceased. The respondent also, referred to the numerous exhibits consisting of documentary evidence associated with the murder of the deceased.

The exhibits are as follows:-