Fred Dapere Gira Vs The State (1996)

LAWGLOBAL HUB Lead Judgment Report

ADIO, JSC.

In the High Court of the Rivers State of Nigeria, Bori Judicial Division, the charge preferred against the appellant was murder contrary to section 319 of the Criminal Code, Cap. 30 of the Laws of Eastern Nigeria, 1963, applicable in the Rivers State. It was alleged that the appellant, on the 28th February, 1983, did, at Nyowii Lueku village in the Bori Judicial Division, murder one Kenule Koma (f).

The evidence led by the prosecution was that on the day of the incident one Sanwii Bira, P.W.2, returned with her mother to her mother’s home from where they went. After some time they saw the appellant and his brother (Goodluck) coming to the house of the mother of P.W2, with torchlights. The appellant held a matchet and the appellant’s brother held a dagger with which they inflicted injuries on the deceased who was the daughter of the witness, and another person who was the mother of the witness. The evidence of the doctor who performed the post mortem examination on the corpse of the deceased, was that the deceased died as a result of the injuries inflicted on her with a sharp instrument or object such as a matchet.

Immediately after the incident, the witness went to the police station to make a report of the incident. While there, the appellant himself came to the police station. The witness there and then identified the appellant as the person who killed the deceased and the appellant himself told the police that he had killed two persons in the village and one other person in another place.

The constable who investigated the case testified that the appellant made a confessional statement to him. The statement was admitted and marked Exhibit “A.” The appellant also took the policeman to a house from the roof of which he brought out a matchet which, according to the appellant, was the matchet which he used to inflict the injuries on the deceased. The matchet was Exhibit “B.

The appellant denied the charge. He testified that it was not true that he had a misunderstanding with the deceased or that he and his brother inflicted injuries on the deceased and another person. He agreed that he was holding a matchet at all material times but stated that he did not use it to inflict matchet cuts on the deceased. He also agreed that he made a statement to the police but denied that part of the statement in which he was recorded as having said that he used the matchet to beat the deceased or that he killed her.

The learned trial Judge believed and accepted the evidence led by the prosecution. He rejected the evidence led by the appellant. In his view, the defence put forward by the appellant was an afterthought. He held that what was recorded in the statement, Exhibit “A,” was a true account of what happened as stated by the appellant. The appellant was found guilty. He was convicted and sentenced to death. Dissatisfied with the judgment, the appellant lodged an appeal to the Court of Appeal.

The court below dismissed the appellant’s appeal. The court held that notwithstanding the slip made by the P.W.2, when she stated that the appellant killed her mother and the appellant’s brother killed the deceased, there was evidence which showed beyond reasonable doubt that it was the appellant who used a lethal weapon, a matchet, to inflict injury on the deceased and that the injury caused the death of the deceased. Dissatisfied with the judgment, the appellant has lodged a further appeal to this court.

The parties duly filed and exchanged briefs. The appellant filed an appellant’s brief and the respondent filed a respondent’s brief. The appellant’s brief contained three issues but the third one was abandoned. Two issues were set out in the respondent’s brief. The first and second issues in the appellant’s brief and the second issue in the respondent’s brief are sufficient for the determination of this appeal. They are respectively issues (1) and (2) and issue (3) in this appeal and are as follows:

“(1) Whether it was established that the appellant on the evidence killed the deceased.

(2) Whether it was true as held by the court below that Exhibit ‘A’, the extrajudicial statement of the appellant, was corroborated by other pieces of evidence outside it.

(3) Whether the court below was right in holding that Exhibit “A” was confessional in nature as held by the learned trial Judge.”

There are certain things or matters that the prosecution has to prove before it can be said that the prosecution has discharged the burden on it to prove its case beyond reasonable doubt where the charge against an accused is murder. They include, as stated in Ogba V The State (1992) 2 NWLR (Pt.222) 164:

(i) the death of the deceased;