Cyracus Ezeama V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI (PJ), J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the judgment of the High Court of Imo State sitting in Owerri presided over by Hon. Justice Nonye Okoronkwo, delivered on 8/10/2010 in charge No. HOW/35c/2000 – The State V. (1) Cyracus Ezeama (2) Anthonia Duru; wherein the Appellant was convicted and sentenced to death by hanging for the offence of murder contrary to Section 319 (1) of the Criminal Code Cap. 30 vol. 11, Laws of Eastern Nigeria, 1963, applicable to Imo State.

The brief facts of the case are that on 18/11/1998 between the hours of 4pm to 7pm, a couple; Basil Ezeama and his wife Francisca Ezeama, met their death at Umuduruaro Ubokoro Atta in Njaba Local Government Area of Imo State. The deceased husband, Basil Ezeama was on top of his bicycle with his deceased wife on the passenger seat when he was inflicted machete cuts and died on the spot along Orlu-Umuduruaro Ubokoro Atta road to harvest some farm produce from their farm.

The same assailant pursued Francisca Ezeama, who out of horror ran for safety but was unfortunately overtaken and equally macheted to death. One Hyginus Ibenyenwa, while returning from his store to his house at the Afor-Atta market stumbled unto the lifeless body of Basil Ezeama, dead atop his bicycle. He immediately informed the eldest man in their house together with whom they reported the incident to Eze Azuike, their traditional Ruler.

Before the break of day, the lifeless body of Francisca Ezeama was also discovered in a farmland. On 19/11/1998, the police visited the murder scene, subsequent upon which they arrested a total of seventeen (17) persons.

The police recovered a bucket stained with blood and a motorcycle from the family house of the Appellant and Anthonia Duru. At the end of their investigation, the police arraigned the Appellant, Cyracus Ezeama and his sister Anthonia Duru on a single charge of murder of Basil Ezeama and Francisca Ezeama on 18/11/1998; who pleaded not guilty to the charge.

At the hearing de novo on 21/7/2008, the Prosecution called four (4) witnesses and tendered Exhibits A – F but subsequently recalled PW1 through whom Exhibits G – H were tendered and admitted. The Defence opened on 19/3/2009 with the evidence of the Appellant as DW1 and Anthonia Duru as DW2 (now discharged and acquitted) and tendered Exhibits J – N and closed its case. Written Addresses were adopted on 15/6/2009 and judgment was delivered on 8/10/2009 wherein the lower court convicted and sentenced the Appellant of the offence of murder and discharged the 2nd accused.

Being dissatisfied with his conviction and sentence, the Appellant Appealed to this Hon. Court vide a Notice of Appeal filed with the leave of the court granted on 16/2/2010 containing five (5) Grounds of Appeal reproduced below without their particulars:

GROUNDS OF APPEAL:

1. The learned trial judge erred in law when he held as follows: “All the questions raised above are issues arising from the case which the Defence would expectedly answer or divert or diffuse but they were conveniently left for an inference to be drawn and, the ready inference having regards to all the circumstances above but in particular to the blood stained machete found in his house is that the 1st accused killed Basil Ezeama and his wife Francisca Ezeama.”
2. The learned trial judge erred in law when he convicted the Appellant of the offence of murder and sentenced him to death.
3. The learned trial judge erred in law when he allowed the Prosecution recall PW1 in circumstances not permitted by law and thereafter admitted, relied on and made use of Exhibits B, C, D and H & G tendered through the PW1 to the prejudice of the Appellant.
4. The decision of the trial court is unreasonable and cannot be supported having regard to the evidence before the court.
5. The learned trial judge erred in law when he tried and convicted the Appellant of the offence of murder without giving him his constitutional right to fair hearing/trial in public.

The parties pursuant to the Rules and Practice of this Hon. Court filed and exchanged Briefs of Argument. The Appellant’s Brief settled by O. N. Ichie, Esq., is dated 24/4/2012 and filed on 26/4/2012. The Respondent’s Brief settled by M. C. Ijezie, Esq., Chief State Counsel is dated 24/7/2012 and filed on 15/8/2012. Consequentially, the Appellant filed his Reply Brief dated and filed on 5/12/2012. The Appellant formulated these 4 issues for determination as follows:

1. Whether having regard to the admissible and usable evidence adduced before the trial court, the Prosecution discharged the onus of proof placed upon it by law in this case by proving all the ingredients of murder beyond reasonable doubt against the Appellant. (Grounds 2 & 4).
2. Whether the trial court was right to convict the Appellant of the offence of murder based on suspicion and irrelevant materials as well as “Exhibits”/materials which were not tendered in Court and upon which the Court had entertained doubt and whether Section 149 (d), Evidence Act, CAP. E14 LFN 2004 does not operate against the Prosecution in the light of the facts. (Ground 1).
3. Whether the recall of PW1 – Gregory Ezeama – was, upon the facts, in accordance with any Criminal Procedural Law in force in Imo State and if so, whether the admission of Exhibits G & H and use of same by the trial court in circumstances other than for cross examination as to credit did not occasion a miscarriage of justice. (Ground 3).
4. Whether the proceedings of the court below were in breach of Sections 36(1) to 36(4) – 1999 Constitution of the Federal Republic of Nigeria and therefore null and void. (Ground 5).

The Respondent equally formulated 4 Issues to wit:

1. Whether the circumstantial evidence relied upon by the trial court for convicting the Appellant based on the case of the Prosecution met the requirements of the law.
2. Whether the lower court was right in admitting Exhibits G and H which are evidence of witnesses in the previous proceeding before the matter commenced de novo before him.
3. Whether the alibi put forward as defence by the Appellant could avail him in this case.
4. Whether Written Addresses of counsel is a trial in ‘secret’ and as such in breach of S.36(1) and (4) of the 1999 Constitution of the Federal Republic of Nigeria which provides for the right to fair hearing.

At the hearing of the Appeal on 12/11/2013, learned counsel to the Appellant, O. N. Ichie Esq., adopted and relied on the Appellant’s Brief of Argument and the Reply Brief as his argument canvassed in this Appeal and prayed the Court to allow the Appeal, discharge and acquit the Appellant, while the Respondent’s counsel, C. N. Akowundu, Esq, DPP, Ministry of Justice, Imo State, adopted and relied on his brief and urged the court to dismiss the Appeal and affirm the decision of the learned trial judge.

I will for the purpose of determining this Appeal adopt the Appellant’s Counsel’s Issues as they capture the real complaint of the Appellant in the Appeal. Before I delve into the Appeal proper, let me comment on the Reply Brief filed by the Appellant. The Appellant’s counsel responded and argued on some issues raised in the Respondent’s Brief in his Reply brief dated and filed on 5/12/2012.

The learned counsel to the Appellant has urged this Honourable Court to strike out the Arguments of the Respondent contained on pages 8 – 9 paragraphs 3.12 – 3.17 because they constitute issues outside the Grounds of Appeal when he has not cross-appealed or filed a Respondent’s notice to affirm judgment. He relied on APGA v. Ume (2011) 2-3 MJSC (PT. 1) at 119 – 120 Paras G-H.