Frank Uwagboe V. The State (2006)

LawGlobal-Hub Lead Judgment Report

ALAGOA, J.C.A.

This is an appeal against the judgment of Itua J. of the Edo State High Court sitting in Benin City which was delivered on the 5th August, 2004 in Suit No. B/9C/99 – THE STATE V. FRANK UWAGBOE wherein the accused person was charged with, tried, convicted and sentenced to death on a one count charge of murder contrary to Section 319 (1) of the Criminal Code Law Cap 48 Vol. II Laws of Bendel State of Nigeria 1976 applicable to Edo State: The prosecution’s case was that on the 4th April 1994 the accused unlawfully murdered one Asia Uwagboe at Erua village Ehor in the Benin Judicial Division over an allegation that the accused had stolen a missing sum of N60.00. The prosecution had alleged that the accused with the aid of a cutlass inflicted severe injury on the deceased, nearly completely cutting off the right hand of the deceased which act caused the death of the deceased. The accused denied this allegation and relied on the defence of accident under Section 24 of the Criminal Code. The prosecution called four witnesses in proof of its case while the accused gave evidence in his defence and called no witnesses.

The learned trial Judge after considering the case for the prosecution in proof of the charge of murder and the defence of accident put forward by the accused person, found the accused person guilty as charged and passed a sentence of death by hanging on him.

Dissatisfied with this judgment, the accused appealed to the Court of Appeal by filing a Notice of Appeal dated the 10th August, 2004 and filed on the 12th August, 2004. The appellant by an application on Notice dated the 3rd May, 2005 and filed same day sought for and obtained leave of court to amend the grounds of appeal contained in the appellant’s notice of appeal dated 10th August, 2004 and to deem the amended notice of appeal already filed as properly filed and served. The amended Notice of Appeal comprises, four grounds reproduced hereunder as follows:-

“GROUND ONE

The learned trial Judge erred in law in convicting the appellant of the offence of murder when the prosecution failed to prove all the material ingredients of the charge beyond reasonable doubt owing to the failure of the prosecution to adduce the requisite material evidence to discharge the burden of proof placed on it by law thereby occasioning miscarriage of justice.

PARATICULARS OF ERROR

(a) Section 138 of the Evidence Act Cap. 112 provides that all the ingredients of a crime must be proved beyond reasonable doubt by the prosecution.

(b) The intent of the appellant to commit the offence of murder was not proved beyond reasonable doubt by the prosecution.

(c) The evidence of P.W.1, P.W.2, P.W.3, and P.W.4 are contradictory, untruthful and the unreliable.

(d) The confession or Exhibit 1 relied upon by trial Judge is not admissible as evidence or confession against the appellant because it was not direct or positive on the guilt of the appellant.

(e) The police officer who conducted the first investigation was not invited to give evidence as to location of the parties, whether doors were destroyed and the corridor from where the appellant picked a cutlass and why none of the two cutlasses was not recovered.

(f) The issue of two cutlass was not explained as to which one cut the palm of the deceased and who owned the very one that cut the palm of the deceased.

GROUND TWO