Endurance Matthew V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of Hon. Justice F.O. Ohwo of the High Court of Delta State sitting at Ughelli in Charge No. UHC/10C/2006, delivered on the 10th day of March, 2010 convicting and sentencing the Appellant to death by hanging, having been found guilty of the offence of murder.

The Appellant was charged with murder; an offence punishable under Section 319(1) of the Criminal Code Cap 48 Vol. II 1976 Laws of Bendel State applicable to Delta State. The “particulars” are that on the 26th day of January, 2006 at Ekrerhavwe Village within jurisdiction, the accused murdered one Omonefe Oviefe (F). The evidence shows that the deceased (Omonefe Oviefe) was the child of the accused person.

Briefly the prosecution’s case at the High Court was that the Appellant was arraigned at the lower court on 24th day of January, 2007 for murder punishable under Section 319(1) of the Criminal Code Cap. 48, Vol. II 1976 Laws of Bendel State applicable to Delta State. See pages 48 and 49 of the record. The Appellant pleaded not guilty to the one count charge of murder and the case proceeded to trial.

In order to prove the charge against the Appellant, the prosecution called three witnesses and tendered one exhibit. Exhibit ‘A’ is the statement allegedly made by the Appellant to the police after her arrest.

In her defence, the Appellant denied the charge against her. At the point of tendering Exhibit ‘A’ by the prosecution, Appellant challenged the voluntariness of Exhibit ‘A’. The learned trial Judge ordered for a trial within trial at the end of which the trial court admitted Exhibit ‘A’ in evidence. See pages 54 to 60 of the record. Appellant admitted that the deceased was her child, but that it was one of her friend called Obakpororo and her brother (Okpako) that threw Appellant’s child to the well and that this was done without her consent. See the evidence of the Appellant at pages 52 to 64 of the record.

In his Judgment, the learned trial Judge relied on the evidence of PW1 and Exhibit ‘A’ to convict the Appellant and sentenced her to death by hanging. The learned trial Judge rejected the defence of the Appellant on the ground that the Appellant is “doubtlessly a big liar”.

Dissatisfied with the Judgment of the lower court, the Appellant appealed to this court. The notice of appeal filed on the 31st day of May, 2010, contained three (3) grounds of appeal. See pages 87 to 88 of the record.

The Appellant filed her Notice of Appeal contained on page 87 of the Printed Records dated 3/5/2010 and filed on the 31/5/2010. From the three (3) grounds contained in the said Notice of Appeal, the Appellant formulated the following sole issue for the determination of this court to wit:

“Whether having regard to the totality of the evidence adduced before the lower court, the lower court was right in holding that the prosecution proved the charge of murder against the Appellant beyond reasonable doubt.”

The Respondent on its part, formulated the following two (2) Issues from the three (3) Grounds of Appeal as follows:

(1) Whether having regard to the state of evidence before the court, the learned trial Judge was not right in law when he held that the prosecution proved the case of murder against the Appellant beyond reasonable doubt.

(2) Whether the learned trial Judge was right in law to have relied on the oral and written confessional statement (Exhibit CJ) of the Appellant in convicting him.

From the two sets of issues as formulated by the parties, I tend to be guided by the sole issue as formulated by the Appellant. The sole issue is all encompassing; and has captured the two of the Respondent. For the purpose of this appeal, the issue for determination is:-