Iyere Ojeabulu & Ors V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the leading Judgment)

This appeal is against the judgment delivered on 19/7/2010 by the High Court of Justice, Edo State of Nigeria holden in Benin City (hereafter simply referred to as “the lower court”) presided over by Hon. Justice J. I. Acha (hereafter simply referred to as “the learned trial Judge”).

The Appellants were jointly tried before the lower court on a two Count Information for the offence of conspiracy to murder and the substantive offence of murder and the lower court found each of them guilty of the offences and sentenced them as appropriate.

Hearing in the case opened on 10/12/2007 and was concluded on 26/4/2010 and the judgment appealed against delivered on 19/7/2010. The prosecution fielded 7 witnesses in the proof of its case; while each of the Appellants testified in his own behalf.

None of them called any other witness. The Appellants being aggrieved with their convictions and sentences passed by the lower court, each filed separate Notices of Appeal. The sole ground of appeal in each Notice of Appeal is the omnibus ground to wit: “That the verdict or decision is unwarranted, unreasonable and cannot be supported having regard to the evidence adduced”.

In accordance with the current Rules of this Court, the Appellants and the Respondent filed and exchanged Briefs of Argument. Appellants’ Brief of Argument dated is 13/12/2010 and filed on 17/12/2010 but deemed to have been properly filed and served on 28/11/2011. Appellants’ Reply Brief of Argument dated 31/10/2013 was filed on 4/11/2013. Both Briefs of Argument were settled by Emmanuel Oboh Esq.

The Brief of Argument of the Respondent dated 20/3/2013 and filed on 10/4/2013 but deemed to have been properly filed and served on 18/10/2013, was settled by Mrs. V. U. Adeleye (Assist. Director of Public Prosecutions (ADPP), Ministry of Justice, Edo State). The appeal was entertained on 20/11/2013 and learned lead counsel for the Appellants – E. I. Oboh adopted and relied on the Briefs of Argument of the Appellants, in urging this Court to allow the appeal; while learned Solicitor-General, Edo State (S.G.) leading three other Law Officers adopted and relied on the Respondent’s Brief of Argument, in urging this Court to dismiss the appeal.

Having regard to the sole ground of appeal in their Notices of Appeal the Appellants, in my considered view rightly formulated a lone Issue for the determination of the appeal. The Issue reads thus: “Whether the trial court improperly appraised and evaluated the evidence before it, thereby improperly convicting the 1st, 2nd and 3rd Appellants for murder”.

The Respondent too formulated a lone Issue for the determination of the appeal. The Issue reads thus: –

“Whether having regard to the totality of the evidence led at the trial and the circumstances of this case, the prosecution could be said to have discharged the burden of proving beyond reasonable doubt, the guilt of the appellants to warrant their conviction and sentence”.

The Issues as formulated by the parties are the same in purport, though the Issue as formulated by the Respondent is better couched. I must however observe that it is basically the correctness of their conviction for the offence of murder that the Appellants are questioning having regard to the Issue which they formulated above. Accordingly, the sole Issue for determination in the appeal is whether the prosecution (i.e. Respondent) established the charges particularly that of murder against each of the Appellants beyond reasonable doubt having regard to the evidence before the court.

Dwelling on the Issue, the Appellants set out the ingredients of the offence of murder and stated that the sequence of enquiry should be (1) whether the deceased had died; (2) whether the accused person caused the death of the deceased; and (3) whether the act of the accused person was intentional with knowledge that death or grievous bodily harm is its probable consequence.

The case of Tegwonor v. State (2008) All FWLR (Pt. 424) 184 at 1510 was cited regarding the elements of murder which the prosecution must prove beyond reasonable doubt. The Appellants conceded that the death of the deceased has been proved in the instant case. That what is crucial for consideration is whether there is any criminal link between the death of the deceased Chief Samuel Okhuelegbe, and any or all of the Appellants. In other words, whether it was proved at the trial that the Appellants caused the death of the deceased? It is the stance of the Appellants that the answer is a capital NO.

Stating to the effect that it was clear from the record that the lower court found the evidence of PW3 to have fixed the Appellants at the scene of the crime, they expressed the need for the scrutiny of the record in order to see the role played by the said witness during investigation and trial. The Appellants referred to the police reports in the record and which they said formed part of the case of the prosecution and submitted that the police reports are material evidence which the prosecution was bound to tender at the trial.