Jonathan Igbi & Anor V. State (1998)

LawGlobal-Hub Lead Judgment Report

ACHIKE, J.C.A.

The two appellants and six others were arraigned and charged on two count charge of conspiracy and murder of one Abel Emunemu (now deceased) on or about the 25th day of May, 1986 at Otumara Village in Orerokpe Judicial Division, contrary to sections 324 and 319 (1) respectively of the Criminal Code Cap. 48 Vol. II, Laws of the Bendel State of Nigeria, 1976, applicable to Delta State. In the course of the trial, three of the accused persons i.e. 1st, 2nd and 3rd died in prison. At the conclusion of trial, 4th, 5th and 7th accused persons were discharged and acquitted while the 6th and 8th accused persons were convicted and sentenced to death by the trial Judge, Okungbowa, J, The two accused persons have herein appealed against their conviction and sentence.

On the night of 24/5/86, the deceased, one Josephine P.W.1, P.W.2, P.W.3 and P.W.4 and others attended the burial ceremony in a neighbouring village, Otumara. P.W.3, Grace Edema, was one of the chief mourners. The above-named persons and some others went to the burial on P.W.3’s invitation. Also, at the burial ceremony were the two appellants, who were from the aforesaid village. At a point during the ceremony (about 3.00 a.m.) of 25/5/86, the deceased was alerted by one Umukoro, 7th accused at the trial that some Otumara boys were planning to attack him and those with him on their way home, it being alleged that the deceased was befriending Josephine who was once a girl friend to one of the Otumara boys and had the effrontery of bringing her to their village. The deceased thereafter sent Josephine back to Igun with the help of P.W.1 who look her away in his car at about 12 a.m. Later, the 7th accused came to inform the deceased and his group that the Otumara Boys had gone to waylay them on the road.

At about 3 a.m., the deceased, P.W.2 and P.W.4 against the advice of P.W.3, decided to go back to Igun through an alternative road, unknown to them that this was the route which their attackers were waiting, On their way home, they were chased by a group of boys among whom were the 1st and 2nd appellants and who were armed with a gun and a cutlass. At the nearby bush the deceased was matcheted to death.

At the trial, the trial Judge believed and accepted the evidence of P.W.2, P.W.3 and P.W.4 as to what happened at burial ceremony leading to the scene of crime on that fateful bright moonlight night.

Learned counsel for the 1st appellant (i.e. the 6th accused) Mr. J.I. Ojeh identified the following five issues for determination:

(i) Whether the 1st appellant (Jonathan Igbi) has been properly identified in this case.

(ii) Whether the side of the road (Igun/Utumara, road) P.W.2. P.W.4 and deceased ran to and the contradictions in their evidence are material in the circumstance of this case.

(iii) Whether the trial court was right in relying on Exhibit “8” to convict the 1st appellant (who was the 6th accused) after holding that it is no evidence on which the court can act.

(iv) Whether the trial court was right in believing the evidence of P.W.2 and P.W.4 to convict the 1st appellant.

(v) Whether the prosecution has proved the case against the 1st appellant beyond reasonable doubt.”

Again, learned counsel for the 2nd appellant, Mr. C.J. Akpobome postulated four issues for determination, to wit:

(i) “Was the learned trial Judge right in convicting the 2nd accused/appellant for murder of Abel Emunemu when there are contradictions and incons1stencies in the evidence of P.W.2 and P.W.4, the star witnesses in the case.

(ii) Was the learned trial Judge right when he relied on Exhibit “G” which was statement given to the Police by the 6th accused person now the 1st accused/appellant in convicting the 2nd accused/appellant after considering the following cases R. v. Ukpong (1961) 1 All NLR 25 (1961) 1 SCNLR 53 and Asuquo William v. The State (1975)9-11 SC. P. 139 at 154. See P. 58 line 30-32 and P. 58 lines 36-41.