Emeka Mbachu V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

On 15th July, 1999 the Appellant was convicted for murder and sentenced to death by the High Court of Rivers State in the charge No. PHC/3c/96. The appeal is against the said conviction.

The appeal is predicated on only one issue, to wit:

Having regard to the intrinsic and divergent evidence produced by the prosecution on the immediate facts of this case, was the charge of murder proved against the Appellant beyond reasonable doubt as required by law?

In the preamble it is submitted by the Appellant’s counsel in the amended brief of argument filed on 1st February, 2011, but deemed filed and served on 25th June, 2012, that the onus is, at all times, on the prosecution to prove the guilt of the accused person beyond reasonable doubt. This burden of proof beyond reasonable doubt in criminal prosecution is, as acknowledged by the Supreme Court in EMEKA MBENU v. THE STATE (1988) 3 N.W.L.R. (Pt. 84) 615, not Synonymous with proof beyond any shadow of doubt.

See also NWABUEZE v. THE STATE (1988) 7 S.C. (Pt. ii) 157; OTEKI v. A.G. BENDEL STATE (1986) 2 N.W.L.R. (Pt.24) 648. Once it is demonstrably evident that the guilt of the accused has been established, and the truth of the matter has been brought out or ascertained from the disputed facts from the evidence produced by the prosecution the burden of proof beyond reasonable doubt is thus discharged. In OTEKI’S case (supra), Oputa JSC but this:

In other words, when a court is satisfied that the charge has been proved, then that case has been proved beyond reasonable doubt. Now the question arises how is the charge proved? The answer is simple: by calling evidence. The sole object and end of evidence is therefore to ascertain the truth of a disputed fact or several disputed facts, or in ornate legal phraseology to resolve the points in issue. Proof is logically sufficient reason for assenting to the truth of a proposition advanced. In juridical sense, proof will include and comprehend everything that may be adduced at the trial, within legal rules, for the purpose of producing conviction in the mind of the judge or jury.

The witness who is believed will carry more conviction than ten witnesses who are disbelieved or whose testimonies do not induce belief. Although belief is subjective, yet still the judge before believing will subject the evidence to the objective test of probability, where the facts deposed to by the witness look probable when considered in relation to all the surrounding circumstances of the case, they induce belief. Probability is always a safe guide to the sanctuary where truth resides.

To find or ascertain the truth from competing facts the trial judge is enjoined to undertake proper evaluation of the totality of the facts of the case. If on proper evaluation, the trial judge is satisfied and makes a finding of fact, the appellate court will not normally disturb such conviction or finding, unless the finding of facts is either perverse or is not supported by the evidence before him. See QUEEEN v. OGODO (1961) 2 SCNLR 366; THE STATE v. EMINE (1992) N.W.L.R. (Pt.256) 658. Let me restate, briefly, the facts of the case before proceeding to the consideration of the only issue in the appeal.

On 3rd November, 1995 at about 6.45 pm at the 1st Artillery Junction, along Aba/Port Harcourt Highway, Port Harcourt, one Clifford Azubuike (hereinafter called “the deceased”) was on a routine traffic control duty. The deceased was checking vehicles and controlling the busy traffic along with other fellow Special Road Marshalls. The duty was a purely voluntary civic one. The Appellant drove his blue bus from Obigbo (Aba) end of the highway to where the Special Road Marshalls were.

The Pw.1, also a Special Road Marshall, who was directing the traffic at the road junction; noticed that the vehicle, driven by the Appellant, had only one headlamp. He directed the deceased to book the appellant, who had been stopped. The deceased drew the attention of the Appellant to the defective head lamp. As the deceased was examining the head lamp the Appellant went behind the steering and moved the vehicle. He knocked down the deceased who was screaming for help. The Appellant sped off and dragged the deceased on the road for some distance. He eventually ran over the deceased in the process. The deceased died.

The pw.4, a medical doctor testified upon his examination of the body of the deceased. The medical report, Exhibit “C”, was made by pw.4. The testimony of pw.4 shows the deceased’s body had “a long irregular wound behind the left ear and there were many deep scratches on the left side of the forehead and face” and that there were many wide opened scratches or abrasions on the side of the right of the upper and lower parts of the hand”. Pw.4 also found several fractures of the ribs, “a tearing and collapse of the whole right lung”, massive bleeding inside the chest on the right side. He concluded by stating that the cause of death was a result of the foregoing facts. The findings of the pw.4 and Exhibit “E” are consistent with the alleged fact that the body of the deceased was harshly dragged on the road.

At the trial the Appellant testified that he was at a hold up at Rumuodara Junction before the 1st Artillery Junction and that-

When the hold-up ceased, I moved, then someone came out of the Rumuodara Junction – the person from Rumuodara Junction – (ran) towards my vehicle – I applied my brake because there is no way to avoid him as my brake failed. My vehicle fender in front near the head light knocked down the person that was coming down from Rumuodara Road. I tried to stop and did stop to come and help the person I knocked down. As soon as I opened my door to go and help, I saw another (vehicle) smarched (sic-smashed) him.