Cornelius Obasi V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment delivered on 15/2/2007 by the High Court of Justice, Ebonyi State, holden at Abakaliki (hereafter simply referred to as “the lower court”), presided over by Obande Ogbuinya, J; (as he then was) and (hereafter simply referred to as “the learned trial Judge”), convicting the Appellant and two others (all of whom were charged and tried together) of the offence of murder and sentencing each of them to death by hanging.

The State (hereafter simply referred to as “the Respondent”) by a one-count Information dated 16/1/1992, charged the Appellant and two others jointly with the offence of murdering one Nathaniel Nwaekwo and which offence as stated in the Information is “contrary to section 319(1) (sic) C, C. Cap.36 Laws of Eastern Nigeria 1963 as applicable to Ebonyi State.”

The offence was alleged to have been committed on 25/9/1991 at Ogbala Ishieke. The case was partly heard by two of the Judges of the High Court in the Abakaliki Judicial Division, which has jurisdiction over venue of the commission of the offence, but the trials were never determined on the merit by either of the Judges.

The trial of the Appellant and the two co-accused persons in the instant case on appeal, commenced at the lower court on 1/2/2005 (i.e. 13 clear years after they allegedly committed the offence of murder). The Appellant and each of the two co-accused persons, pleaded not guilty to the charge of murder preferred against them. The Respondent in the proof of its case against the Appellant and the two co-accused persons fielded three witnesses; while the Appellant and each of the two co-accused persons, respectively testified in their own behalf and called no other witness.

After a review and evaluation of the evidence adduced before the lower court, and also having had the benefit of the addresses of the respective learned counsel for the Respondent and accused persons, the learned trial Judge found the Respondent to have established the offence of murder against the Appellant and the two co-accused persons, beyond reasonable doubt. Consequently, the Appellant and the two co-accused persons were each found guilty of the offence of murder as charged in the Information and the sentence of death by hanging duly pronounced on each of them by the learned trial Judge.

The Appellant was the 1st accused person in the Information, and being dissatisfied with his conviction and sentence appealed against the same by a Notice of Appeal dated 12/3/2007 and filed on 13/3/2007. The Notice of Appeal contains nine grounds of appeal. On 7/6/2011 the Appellant filed an Amended Notice of Appeal dated 24/5/2011. The Amended Notice of Appeal which contains eleven grounds of appeal was deemed as properly filed and served by the Order of the Court made on 6/7/2011.

In compliance with the Rules of this Court the Appellant and the Respondent filed and exchanged Briefs of Argument and which they also amended. Appellant’s Amended Brief of Argument dated 25/5/2011 and filed on 7/6/2011 but deemed as properly filed and served on 6/7/2011 as well as Appellant’s Reply Brief dated 11/2/2012 and filed on 23/2/2012 and deemed to have been properly filed and served on the same date were settled by Emeka Uwakwe Esq.; while the Respondent’s Amended Brief of Argument dated 12/8/2011 and filed on 15/8/2011 was settled by Dr. Ben O. Igwenyi (M.O.N.) learned Attorney-General of Ebonyi State.

The appeal was entertained on 23/2/2012 and Emeka Uwakwe Esq., learned lead counsel for the Appellant and Ikpor-Ofe (learned DDPP) for the Respondent, respectively adopted and relied on the Briefs of Argument filed on behalf of their clients, as hereinbefore identified, in support of their positions in the appeal.

Five Issues are formulated for the determination of the appeal in the Appellant’s Amended Brief of Argument. The Issues read thus:-

1. Whether the learned trial Judge was justified in the circumstances of this case in expunging Exhibit D from the proceedings and discountenancing same for the purpose of discrediting the evidence of PW1?
2. Whether it was illegal, unconstitutional, unfair and prejudicial to the Appellant in the circumstances of this case for the learned trial judge to heavily rely on the evidence of PW2 to convict him when PW2’s name, addresses and statement to the police were not contained in the proof of evidence as required by law and when he did not testify for the prosecution in the two previous proceedings in the case?
3. Whether the evidence of PW1 and PW2 were in the circumstances of this case, credible, cogent consistent and free from reasonable doubt to warrant the conviction of the Appellant for the heinous offence of murder?
4. Whether it is permissible in criminal trial of this nature and in the face of the appellant’s plea of alibi for the prosecution to secure his conviction without tendering his extra judicial statement to the Police and without any evidence from the Investigating Police Officer?
5. Whether the learned trial judge was justified in sifting and using excerpts from the extra-judicial statements of PW1 (Exhibits B and E) which were solely tendered for the purpose of contradicting her oral evidence in court in convicting the Appellant.

The Respondent likewise formulated five Issues for the determination of the appeal in its Amended Brief of Argument. The Issues read thus:-

1. Whether from the totality of evidence adduced by the prosecution, the learned trial judge was right in holding that the prosecution established the ingredients of murder against the Appellant?
2. Whether there were any fundamental or material contradictions in the evidence of the prosecution witnesses to render them unreliable and could the expunged Exhibit “D” have made any difference in the assessment of evidence?
3. Whether the learned trial Judge erred in law to have taken into consideration the evidence of PW2 whose name and statement were not contained in the proof of evidence before the court?
4. Whether the defence of alibi could avail the Appellant and also whether the failure of the prosecution to call a particular witness, in this case an IPO is fatal to its case?
5. Whether the learned trial Judge was not justified in making use of the extra judicial statement of a witness tendered in court in the assessment of the entire evidence before the court?

The appeal will be determined upon the Issues as formulated by the Appellant as they will as of necessity provoke a consideration of the import or essence of the Issues formulated by the Respondent.

APPELLANT’S ISSUE 1

The Appellant married his Issue 1 to grounds 1, 2 and 10 of the grounds of appeal as contained in the amended Notice of Appeal.