Festus Amayo V The State (2001)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

This is an appeal against a conviction for murder and sentence of death. The appellant, a police constable, was charged with the murder of one Julius Duru under section 316 of the Criminal Code, Cap. 30, Laws of Eastern Nigeria, 1963, erroneously stated as section 319(1). The alleged offence took place on 22 October, 1987 at Avu junction, Port Harcourt/Owerri road. He was tried in the High Court of Imo State presided over by Ubah, J. On 26 November, 1991, the learned trial judge in the concluding part of his judgment held:

“The testimonies of the 3rd, the 1st and 5th prosecution witnesses offer ample, and satisfactory proof of the ingredients of the offence of murder. In my humble view, the prosecution has proved the charge beyond reasonable doubt”.

Earlier, he regarded the 3rd P.W as the only eye-witness relied on by the prosecution. He accordingly found the appellant guilty of the offence of murder and convicted him. He then sentenced him to death.

On 13th July, 2000, the Court of Appeal (Port Harcourt Division) dismissed the appellant’s appeal and affirmed the conviction for murder and sentence of death. In the leading judgment by Akpiroroh, JCA, with which Nsofor and Ikongbeh JJCA concurred, he observed as follows:

“The 3rd P.W not being an accomplice or having any interest to serve in the case, his evidence was rightly in my view acted upon by the learned trial Judge in holding that the killing of the deceased by the appellant was voluntary. It is now well settled that a court can convict upon the evidence of one witness, without more, if the witness is not an accomplice in the commission of the offence and his evidence is sufficiently probative of the offence with which the accused has been discharged (sic: charged).”

There is no doubt that both the trial court and the court below accepted the 3rd P.W. as a vital witness upon whose evidence much reliance was placed.

The appellant has now appealed to this court and raised two issues for determination as follows:-

1. Whether the appellant was exculpated from criminal responsibility for the death of the deceased by virtue of the provisions of section 24 of the Criminal Code.
2. Whether the guilt of the appellant was established beyond reasonable doubt as laid down by law before he was convicted for murder and sentenced to death

It is necessary at this stage to state the facts of this case. First, as narrated by Monday Raymond who testified as P.W.1. On 22 October, 1987, he drove his commercial vehicle, a pick-up van registration No. IM3611 WA, from Owerri along Port Harcourt Owerri road towards his own village, Umuagwo. He had in his vehicle one Henry Anele (P.W.3) who sat between him and his conductor, Julius Duru (now deceased) in the driver’s cabin. At Avu junction, there was a road check conducted by a certain policeman. The policeman stopped the vehicle and asked what the driver carried in the van. He replied that there was nothing. While all three in the driver’s cabin remained seated, the policeman inspected the back of the van. He then tapped on the vehicle, signalling the driver to move on. He began to move on slowly towards some policemen who had used iron bar to mount a road block. A policeman emerged from under a mango tree near the road and ordered the driver to stop. Just then there was a gunshot, the bullet from which went through the side of the van where Julius Duru sat. The bullet hit him fatally. The driver did not know at that stage that it was a gunshot because when he heard the sound, thinking it came from a burst tyre or bad exhaust pipe, he turned towards Julius and asked him to check at both. But Julius replied that he had been shot. It is plain, therefore, that P.W.1 did not witness the shooting, that is, he did not actually see who shot at that instant.

The learned trial Judge so found. However, he also found, as already shown, that P.W.3 was an eye-witness indeed, the only eye-witness to the shooting.

In his evidence, P.W.3 narrated how he boarded the vehicle on the day in question and sat between the driver and his conductor who was close to the right-side door. I think it is pertinent to reproduce the crucial portions of the evidence of this witness. In evidence-in-chief he said:

“As we got near Avu Junction, people in police uniform flagged the vehicle to stop. The driver P.W.1 slowed down to stop. As the P.W.1 was about to stop the policeman who flagged him down turned his back to the vehicle and faced the other side of the road. Then the PW1 tried to continue moving onwards. Then another policeman immediately fired his gun towards us. He fired at us from the right side of the vehicle. The boy who was sitting outer most near the door of the pick up was hit by bullet from the gun fired by the policeman. The P.W.1 cleared from the road stopped and began to cry. Then the policeman who fired the gun also came to the vehicle and started crying.”

Under cross-examination, he said:

“I saw two policemen on our side of the road. The accused was one of them. No policeman signalled the P.W.1 to move on. Our vehicle was on our proper side of the road. From the position of the accused to the place our vehicle slowed down was about 8 1/2 meters. After the gunshot I saw the accused come to the vehicle. He held the injured person, weeping.” (Emphasis mine)