Eluji Kingsley Eze V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the Imo State High Court sitting in Oguta in charge No. HOG/16C/2006, delivered by P. C. Ikpeama, J on 26th July 2010. The information filed by the state charged the Appellant with the murder of one Silas Orji, an offence contrary to Section 319(1) of the criminal code, cap 30 Vol. II Laws of Eastern Nigeria 1963 as applicable to Imo State. A brief fact of the case leading to the conviction of the Appellant is as follows:

On 7th March, 2005, at Umuobi Asaa Ohaji in Umuagwo, at about 7.30 Pm, while PW1, Florence Orji and PW2 Queen Orji – wife and daughter of the deceased respectively were cooking their dinner at the backyard of their compound, the Appellant went inside the compound and started calling “Florence, Florence”.

The PW1 asked the Appellant what the matter was that he was shouting her name. The Appellant told her that if he did not kill her husband, he would kill her. As the PW1 was pleading with the Appellant not to kill her and her husband, the Appellant gave her a matchet cut on the nail of her right index finger and the middle finger. As PW1 pleaded further the Appellant gave her another matchet cut on her left arm which was treaded in the hospital.

When PW2 saw what was happening, she asked why the Appellant gave her mother such matchet cuts at which time the Appellant gave PW2 matchet cut on her left shoulder. PW1 & 2 started crying and raising alarm after sustaining injuries from the cut by the Appellant. Their cry and shouting alerted the deceased as he was coming back from a visit to one of his Christian brothers.

While the deceased was asking why his wife and daughter were crying, the Appellant heard the voice of the deceased, ran towards him and gave him matchet cuts on his left hand and the arm neatly fell off and another cut on the left and right side of the abdomen. Blood started rushing out like water and the Appellant ran away. PW1 shouted for help which attracted neighbours who assisted to take the deceased to the hospital. The deceased died before getting to the hospital.

It was however the defence of the Appellant that on the fateful date aforementioned at about 8pm, he sent his 1st and 2nd daughters to one Mabere at Ohaji to grind cassava who later came back very late. On enquiry on why they returned late, they told him that the children of PW1 fought them. While scolding his children for returning late, the deceased came with his two sons, two daughters and PW1 to ask if he was present when his children fought with those of the deceased. At this point, Marcellinus Orji pushed him down the seat he was sitting which made him to fall. While struggling to get up, they gripped him, Light Orji had a matchet while PW1 had a stick. In the struggle that ensued, Light Orji used the matchet he was holding to hit him but missed him and the matchet cut the deceased. It was his further testimony that the deceased started shouting that Light had killed him and the alarm attracted people who came to their rescue. He denied killing the deceased. He called his daughter who testified as DW2 who also corroborated his testimony.

After autopsy and Police investigation, the matter was charged to court. After hearing the case, the learned trial judge believed the evidence of the prosecution witnesses and condemned the Appellant to death by hanging. Dissatisfied with the conviction and sentence of the Appellant by the court below, he filed Notice of appeal on 28/09/10. The said Notice contains two grounds of appeal. Thereafter, the Appellant, on 10/4/12 filed two additional grounds of appeal. From the four grounds of appeal, the Appellant has distilled one issue for the determination of this appeal. In the brief settled by D. C. Denwigwe Esq. (SAN) on behalf of the Appellant, the said sole issue states:

“Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt and if not whether the Appellant ought to be acquitted?”

However, in the brief of the Respondent, filed by K. A. Leweanya, Esq. Principal State counsel, three issues are distilled. The three issues are as follows:

“1. Whether or not considering the evidence particularly of PW1, PW2, PW3, the prosecution proved the offence of murder beyond reasonable doubt necessitating a verdict of guilt against the Appellant by the trial court

2. Whether or not there exist material contradictions cogent enough to disturb the verdict of the Learned Trial Judge.
3. Whether or not considering the state of evidence, the defence of self or accident or any other defence disclosed by the evidence adduced at the trial was properly assessed and acted upon before convicting the appellant for murder.”

A careful perusal of the argument of the Appellant herein and his sole issue discloses that it encompasses the three issues and arguments thereof by the Respondent. It is my well considered opinion therefore that this appeal can be determined squarely on the sole issue formulated by the Appellant. I shall therefore determine this appeal based on the said issue by the Appellant.

It was argued by the learned senior counsel for the Appellant that since the decision of the learned trial judge revolved on the determination as to whether it was the prosecution’s version of events or that of the Appellant that led to the death of the deceased, consistency in the evidence of the PW1 and PW2 as well as that of PW3 becomes imperative since the prosecution bears the burden of proving the guilt of the Appellant beyond reasonable doubt, referring to Section 135 of the Evidence Act; and the case of ALMU v. STATE (2009) 10 NWLR (Pt. 1148) 31 at 46 Para E – F. Learned counsel then listed the contradictions and inconsistencies in the evidence of prosecution witnesses which he considered are enough to vitiate the conviction of the Appellant.

The first of such material contradictions according to learned Senior Counsel for the Appellant is that whereas PW1 and PW2 told the court that three matchet cuts were inflicted on the deceased, the medical evidence from PW3 found two cuts on the deceased. Also whereas PW1 testified that their lantern was on, PW2 testified that she would be a liar if she said that the lantern was on. Again, whereas the PW1 stated that the events occurred in front of their house, the PW2 stated that the events occurred at their backyard. Learned counsel further stated that though PW2 testified that the finger of PW1 was cut off the PWI stated that her cut finger was sutured. Again, that although the court said in its judgment that it observed scars on the finger of the PW1, the record of the court does not contain such observation. Learned counsel submitted that the failure of the prosecution to observe such contradictions is fatal to its case, relying on the following cases: ONUBOGU v. THE STATE (1974) ECSLR 403 at 411 or (1974-1975) 9 NSCC Pg.358 at 366; ASUQUO WILIAMS v. THE STATE (1974-1975) 9 NSCC Pg.398 at 402-403.