Hycienth Agbom V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A.: (Delivering the Leading Judgment)

Hycienth Agbom, a native of Amudo village in Ezza Local Government Area of Ebonyi state of Nigeria was tried, convicted and sentenced to death by Hon. Justice M.O. Eneji of the High Court of Justice, Ikom, Ikom Judicial Division, Cross River State of Nigeria on 27-04-2007 on a charge that read as follows:

“STATEMENT OF OFFENCE:

Murder – Contrary to Section 319(1) of the Criminal Code.

PARTICULARS OF OFFENCE:

Hycienth Agbom on the 13th day of February, 1996 at between Ikom Four Corners and Yala Nkum Junction along Ikom-Ogoja highway in the Ikom Judicial Division murdered Igulu Awara.

Signed

James A. Oyi

Senior State Counsel. ”

Being aggrieved with the conviction and sentence Hycienth Agbom filed a Notice of Appeal on 04-07-2007 to the Calabar Division of the Court of Appeal. On 10-12-2009 leave was granted the appellant to raise fresh issues and file additional grounds of appeal. Same were deemed to have been filed and properly served on the Respondent. Time was also extended for the appellant to file Brief of Argument. On 02-02-2012 the court, on application, extended time for the Respondent to also file and serve Brief of Argument. Same was deemed filed and served on the Appellant. When the appeal came up for hearing on 21-02-2012 learned counsel appearing for the appellant and the State adopted their respective Briefs of Arguments. Before I delve into the issues for determination I shall recapitulate the facts that led to the arrest, trial, conviction and sentence to death of the appellant for the murder of Igulu Awara.

Igulu Awara, the immediate junior brother of Jonah Awara Efem (PW6) of the Federal Medical Centre, Asaba, Delta State, whose sister is Mary Umoh (PW5) the wife of Anthony Umoh (PW1) is alleged by the prosecution witnesses to have conveyed the appellant on a ladies motorcycle, green in colour registered as No. AN 4277 UKB on 13-02-1996 from No.43 Broader Road, Ikom to Nkum Yala all in Cross River State. Till date Igulu Awara’s whereabout is unknown. The prosecution alleges that he was murdered by the appellant. The appellant denied the allegation that Igulu Awara conveyed him on that day as alleged. That it was Peter Agbo (PW3) that did so. PW3 admitted conveying the appellant on that fateful day where he picked some items. Jonah Aloa (PW2) admitted that about 10:00pm of 12-02-1996 at Edor, Ikom Local Government the appellant had come to his house looking for where to sleep.

The reason he gave was that he returned late to his compound hence he could not gain entry. He went to the Reverend Father in charge of the Catholic Church who refused to accommodate him hence he came to PW2 for assistance. Pw2 testified that while still interviewing the appellant about his identity his younger brother came to inform him that the police were looking for the appellant in connection with the shooting of someone at Amudo village in Ezza Local Government Area of Ebonyi State. PW2 offered the appellant drinks and then sent for the police. That the police came and immediately arrested the accused with a lady’s motorbike though he did not know the registration number. But it was blue in colour. Cross-examined by the Defence Counsel Peter Agbo (PW3) replied that, “It is true that I conveyed the accused to Yala Nkum – where he picked 5 tubers of yams, a camera and a FESTAC bag. I did not see the accused when he hired Iguru I was told. I have not seen lgulu’s dead body nor where he was buried.” See page 23 lines 7 -9 of the printed record’

The appellant alleged that Emmanuel Onele (PW4) sold the motorbike Exhibit “F” to him. But PW4 denied ever having any business transaction with the appellant. He denied that clement Oru introduced the appellant to him as claimed by the appellant. The witness denied ownership of Exhibit “F” but admitted that the sales agreement purportedly reflected his name, put there by the Investigating police officer (IPO). He was surprise to hear appellant’s allegation that he sold Exhibit “F” to him’ He denied meeting the appellant or Clement Oru on 13-02-2009. ASP Obio Udubio testified as PW7 the second in command’ Homicide Section, State CID Calabar, Cross River state through whom the police investigation report was tendered and marked Exhibit “G” PW7 admitted he was not the investigating police officer though he identified the signature of Mr. Paul Mbaya the Assistant Commissioner of Police (Rtd.) then in charge of Homicide at Calabar, Cross River State. The prosecution closed her case.

The appellant testified he bought the motorbike from Emmanuel Onele (PW4) on 14-02-1996, and “…N21,000.00 completely on 14-02-1996.” The appellant testified that, “I then took custody of the motorcycle and handed it over to Clement Oru. Clement was riding it as a commercial motorcyclist…” See page 42 lines 16-18 of the printed record. That Clement Oru was riding the motorcycle when apprehended by the police at Edor. Clement Oru sent for him and he was arrested by the police on 15-02-1996. The appellant gave evidence as to his whereabout between 12th and 13th February, 1996 as follows, “I was in 4 Corners, Ikom between the 12th and 13th day of February, 1996. I was in 4 Corners Ikom between 1st and 12th Feb., 1996. I made a statement to the police in connection with this case. I know the owner of Exhibit “E”. His name is Emmanuel Onele. He was the one who sold the motorcycle to me. He will not deny that he sold the motorcycle (Exhibit “F”) to me. I trade on ready made adult men and women’s clothes. On 13th Feb., 1996; I hired a motorbike of a pay cyclist to take me to Yala to convey my goods of trade. The goods in question include: (1) ready made clothes (2) yams and (3) my camera. The clothes were contained in a “Ghana must go” bag, If any one says I did not have any Ghana must go bag on that day will be a liar. I was arrested on 15-02-1996. I was arrested on the night of 13-02-1996 in Edor… I know one Linus Uzegbe. He is my town’s man He lives at Broader Road, 4 Corners, Ikom. I spent the night of 12-02-1996 in his house…” See page 44 lines 20-31 and p.45 lines 1-13 of the printed record. The appellant further testified thus, “…Before we were taken to Calabar, I handed over all my motorcycle particulars and agreement to the IPO – Christopher Alozie; and the sum of N11,000.00 which was in my pocket.” See page 43 lines 3-5 of the printed record. The appellant further gave evidence thus, “…I traveled to Edor on a motorcycle belonging to Emmanuel Onele. I handed over my own motorcycle (Exhibit “F’) to clement to drive as a pay cyclist on that 14-06-1996, when I paid for it.” See page 45 lines 11-13 of the printed record. Based on the above evidence the learned trial Judge rejected the story of the appellant but convicted him of the murder of Igulu Awara.