Emmanuel Onyejiaka V. The State (1997)

LawGlobal-Hub Lead Judgment Report

KATSINA-ALU, J.C.A 

This is an appeal against the judgment of Njiribeako, J., of the Imo State High Court delivered on 1st March, 1994 whereby he convicted the appellant Emmanuel Onyejiaka of the murder of one Anthony Ohazuruike under Section 319(1) of the Criminal Code and sentenced him to death

At the trial, the prosecution called three (3) witnesses and closed its case. The appellant testified on his own behalf and called one witness. After the address of counsel, the learned trial Judge adjourned the case to 1st March, 1994 for judgment. On the 1st day of March, 1994 the trial Judge suo motu called one Dr. Donatus Sunday Izuagba as PW3 and thereafter delivered his judgment.

Before giving evidence in his own defence, the appellant, through his counsel, made a no case submission which was overruled by the trial Judge without calling upon the prosecution to reply. In the final result the trial Judge convicted the appellant and sentenced him to death.

Both parties filed their respective briefs of argument in this appeal which were adopted at the hearing of this appeal.

The appellant formulated a lone issue for determination. It reads:

“Whether the conviction can be sustained.”

For its part the respondent adopted the sole issue raised by the appellant.

In dealing with the issue for determination in this appeal it was submitted for the appellant that the conviction cannot be sustained. It was said that to sustain a charge of murder the prosecution must prove the death of a living person, the cause of the death and that it was the act or omission of the accused that brought about the cause of death. For this submission appellant’s counsel relied on the following cases:

R. v. Abengowe (1936) 3 WACA 85; Ozo v. State (1971) 1 All NLR at 115; Okorogba v. State (1992) 2 NWLR (Pt. 222) 244 at 253.

It was submitted by counsel that the absence of any of these elements will vitiate any conviction on a charge of murder.

The appellant contends that the death of Anthony Ohazuruike was not established. It was argued that there was no evidence from any person who identified the corpse of Anthony Ohazuruike. It was said that the assertions of persons who never testified in court that they saw the dead body of Anthony Ohazuruike cannot substitute the proof required of the prosecution.

The respondent however does not agree with the appellant that death was not established. The respondent contends that the testimonies of PW1 Bartholomew Nwadiekwe and the appellant (DW1) show that death was established.

Now part of the evidence of PW1 reads: