Clement Obri Vs The State (1997)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

The appellant was charged with the offence of murder contrary to section 319(1) of the criminal code. He pleaded not guilty to the charge. Thereafter the prosecution called five witnesses and tendered some exhibits. The appellant testified in his own defence and called no witness.

The learned trial judge in a considered judgment found the appellant guilty as charged and sentenced him to death.

Being dissatisfied with the judgment of the High Court, the appellant appealed to the Court of Appeal, Enugu Division. Three issues were formulated for its determination thus:-

“(i) Did the learned trial judge comply with sections 154(1) and 182(1) of the Evidence Act before he received and relied on the evidence of PW 1 to convict the accused and can the conviction stand

(ii) Do the irregularities committed by the learned trial judge in the course of the trial not amount to denial of fair hearing to the accused

(iii) Given the irreconcilable contradictions between the previous statement to the Police and the testimony in court, was the learned trial judge right to have relied on the testimony in court of PW.1 to convict the accused”

Each of the above issues was considered and resolved against the appellant. Consequently his appeal was dismissed by the Court of Appeal and the conviction and the sentence of the High Court were confirmed.

The appellant has now appealed against the judgment of the Court of Appeal to this Court. In accordance with the Rules of Court, the parties filed and exchanged briefs of argument. These were adopted and relied upon at the hearing and in addition, oral submissions were made.

Chief Onyali learned counsel for the appellant in his brief submitted the following three issues as arising for determination in the appeal:-

“1. Whether the Court of Appeal was right when it came to the conclusion that the trial Judge had complied with the provisions of sections 155(1) and 183(1) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, before receiving the evidence of PW.1. a small child aged about 7 years.

2. Whether the Court of Appeal was right when it refused to consider the effect of the contradictory statement made by PW.1 to the Police simply on the ground that the said statement was not tendered in evidence even though the said statement had formed part of the record of proceedings before the Court of Appeal.
3. Whether the Court of Appeal was right to have come to the conclusion that there had been sufficient corroboration of the evidence of PW.1 from the evidence of PW.2, PW3 and PW.4.”

What is common to all the three issues above is the evidence of PW.1. His evidence was either not properly received, contradictory with his extra judicial statement to the Police, or not at all corroborated. Because of the importance of the evidence of PW.1 who was the only eye witness among the five prosecution witnesses, this court at the hearing and on the application of the learned counsel for the appellant, Chief Onyali, and in the interest of justice admitted in evidence the extra-judicial statement which PW.1 made to the Police dated 23/9/84, the day the alleged murder was committed. It was marked Exhibit SC.1. It could be seen that even in the Court of Appeal, two out of the three issues submitted for determination revolved around the evidence of PW.1. Certainly as the lone eye witness, the importance of his evidence cannot be over-emphasized.

Now, PW.1 (Ogar Joseph) the record shows was a child of about seven year, of age at the time he appeared in court before the learned trial judge on 27/11/85. He must therefore be aged about six years at the time the offence was committed on 23/9/84. PW.1 who was said to be a brother of the deceased testifying on page 12 of the record said amongst others:-

“On the day this thing happened I was sleeping when the accused Clement, came in with one person and tied Okara to his bed. He picked one knife from the cupboard and cut his throat. Witness points to the neck region. After cutting the deceased, the accused started to shout that thieves had killed Okara. The other person ran away. As accused was shouting he used the knife and inflicted a wound on his shoulder. The accused then, threw the knife into the bush in front of our house. The incident happened at night but the accused had brought in a lantern. I was sleeping as I laid down but accused’s noise woke me.”