Enebeli V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

ADAMU JAURO, J.S.C.

This appeal is against the decision of the Court of Appeal, Benin Division delivered on 7th June, 2016 in appeal No. CA/B/239C/2013 wherein the Appellant’s appeal was dismissed and the judgment of the Delta State High Court sitting in Sapele delivered by E.N. Emudainohwo J. (Mrs.) on the 16th July, 2012 was affirmed.

BRIEF STATEMENT OF FACTS

The Appellant was charged on a one count charge of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State as applicable to Delta State.

​In a bid to discharge the evidential burden imposed on it by law, the Respondent as prosecution at trial called three witnesses who testified as PW1 – PW3 and tendered seven exhibits marked Exhibits P1 – P7. The Appellant testified in his defence and called one other witness without tendering any exhibit. PW1 is the step father of the deceased; PW2 is the investigating police officer (IPO), while PW3 is the medical practitioner who conducted autopsy on the deceased. Exhibit P1 is the statement of the deceased, Exhibit P2 – P4 are negatives and photographs of the

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deceased, Exhibit P5 is the statement of the Appellant, Exhibit P6 is the attestation form of a superior police officer on the Appellant’s statement, Exhibit 7 is the medical report showing the cause of death.

The brief facts culminating into the instant appeal are that the Appellant and the deceased, one Alero Eniyan were lovers, but the deceased’s parents did not approve of their relationship. The parents of the deceased moved her from Koko where they reside to Ologbo with a view to ending the relationship. The Appellant traced her to Ologbo which caused the parents of the deceased to move her to Ondo town of Ondo State where she found a suitor. The deceased however returned to her parent’s place at Koko because of her sister’s birthday and her suitor came to visit her parents to inform them that he wanted to marry her.

​The case of the Respondent as prosecution was that the Appellant could not stand the deceased getting married to another man and therefore purchased four litres of acid which he poured on her.

That the deceased later died as a result of injuries sustained from the acid poured on her by the Appellant.

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The Appellant on the other hand denied committing the offence and claimed that he loved the deceased. At the conclusion of trial and after the addresses of counsel, the learned trial Judge found the Appellant guilty and sentenced him to death by hanging (see pages 91 – 115 of the record of appeal). The Appellant unsuccessfully appealed to the Court below with the Court below affirming his conviction and sentence by the trial Court. (See pages 176 – 198 of the record of appeal).

In a bid to exhaust the constitutionally guaranteed right of appeal, the Appellant invoked the appellate jurisdiction of this Court via a notice of appeal which has been amended. The amended notice of appeal was filed on 22nd January, 2018 and same was deemed properly filed by an order of this Court made on 17th October, 2019.

The appeal was heard on 11th March, 2021 when counsel adopted their respective briefs and made oral submissions in respect of their diverse postures in the appeal. Adopting the Appellant’s brief of argument which was deemed properly filed and served by an order of this Court made on 17th October, 2019, the Appellant’s counsel, OLUKUNLE EDUN ESQ. formulated three issues