Francis Ero V. The Sta In The Court Of Appeal Of Nigeria (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

The Appellant was convicted of the offence of murder punishable under Section 319(1) of the Criminal Code Cap. 48 Laws of Bendel State as applicable to Delta State, on 5th August, 2003 at the High Court of Justice, Agbor. He was consequently sentenced to death by hanging by the learned trial judge – T.O. Diai, J.

The prosecution’s case against the appellant was that, he being armed with a matchet, killed one Angela Nonum at Ekuma-Abavo within the Agbor Judicial Division of the Delta State High Court of Justice, on 24th February, 1997.

The prosecution called six (6) witnesses and tendered into evidence the extra judicial statement of the appellant Exhibit A. The appellant only, testified for himself. Learned counsel to the defence and the prosecution, at the end of witnesses’ evidence viva voce, each addressed the court. The learned trial judge in his judgment found the appellant guilty of the offence of murder, as charged and convicted him accordingly. He was ordered to be hanged until, he be dead.

This appeal is against the aforementioned judgment of 5th August, 2003. The appeal was anchored on two original grounds of appeal filed with the notice of appeal on 10th September, 2003. The appellant, with leave of this court sought and obtained on 7th April, 2008, filed five additional grounds of appeal. The seven grounds of appeal, shorn of their particulars are that:

“(1) The decision of the trial court is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence.

(2) The trial court erred in law in convicting the appellant when his defence of insanity was not considered by the court.

(3) The learned trial judge erred in law in holding that Exhibit A is a confessional statement and relying on same to convict the appellant.

(4) The learned trial judge erred in law when after finding that “the court would concede the obvious which is that there is no direct testimony or eyewitness account of the actual killing” went ahead to convict the appellant on circumstantial evidence that is neither direct nor positive nor pointing irresistibly to the conclusion that the appellant killed the deceased.

(5) The learned trial judge misdirected herself when she held that the statement of the appellant, Exhibit A, “placed the accused within the vicinity where the corpse of the deceased was found.

(6) The learned trial judge erred in law in holding that the appellant did not prove that at the material time he was suffering from mental disease or infirmity capable of affecting his will inspite of the abundant evidence before the court.

(7) The learned trial judge erred in convicting the appellant when the prosecutor did not call a material witness to tender the appellant’s 2nd statement to the police.”

The appellant’s brief of argument settled by Ojo Abijogun, Esq., of counsel and dated 18th April, 2008 was filed on 21st April, 2008. In the said brief of argument, the appellant indicated that ground 7 of the grounds of appeal, would be abandoned at the hearing of the appeal. Hence, three issues were distilled from the remaining grounds 1 – 6, for determination as follows:-

“1. Whether Exhibit A is a confessional statement and capable of sustaining the conviction of the appellant for the offence of murder. (Grounds 1, 3 & 5).