Jonathan Igbi & Anor V. The State (2000)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C.

The appellants were two of eight persons jointly charged at the High Court of (what was then) Bendel State with the offences of conspiracy to commit felony contrary to section 519 of the Criminal Code, Cap. 48 Vol II Laws of Bendel State of Nigeria, 1976 and murder contrary to seclion 319 (1) of the said Code. The two appellants, Jonathan Igbi and Okiemute Odibo, who were respectively 6th and 8th accused at the trial, now, respectively the Ist and 2nd appellants on this appeal. In the course of the trial three of the accused persons had died in prison and three were acquitted and discharged at the conclusion of the trial. The two appellants were found by the High Court of Bendel State (as it then was) not guilty of the offence of conspiracy but guilty of offence of murder as charged and incurred the mandatory sentence of death by hanging on 31st July 1991. Their appeals to the Court of Appeal were dismissed on 17th September 1998. These appeals are from the decision of the Court of Appeal. The background facts, taken largely from the summation of [he facts by Achike, J.C.A, (as he then was) who delivered the leading judgment of the Court of Appeal, with which Muhammed and Rowland, J.C.A. concurred, were as follows: On the night of 24th May, 1986 Abel Emunemu (“the deceased”) Josephine, Michael Eyeta (pw 1 “), David Emunemu (“pw 2”), Grace Edema (“pw3) Moses Eseguoro (“pw 4”) and others attended a burial ceremony in a neighbouring village called Otumara at which pw 3 was one of the chief mourners. The deceased and the others had attended the ceremony on the invitation of pw 3. The two appellants, among several others, were present at the ceremony. In the course of the ceremony, at about 3 am on 25th May, 1986, the deceased was alerted by one Umuboro (7th accused) that some Otumara boys were planning to attack him and those with him on their way home because the deceased, it was alleged, was befriending one Josephine who had once been a girlfriend of one of the Otumara boys and because the deceased had the effrontery of bringing her to their village. The deceased, with the help of pw 1, sent Josephine away at about 12 midnight. After the 7th accused had come back again to warn the deceased and his group that the Otumara boys had gone to waylay them on the road, the deceased, pw 2 and pw 4, against the advice of pw 3, decided to go back to Igun through an alternative road which, unknown to them, was the route where their assailants were waiting. On their way home, they were chased by a group of boys who were armed, among whom were the two appellants. At a nearby bush the deceased was matcheted to death. Pw 2, and pw4 gave eyewitness accounts of the killing of the deceased by the appellants and others. At their trial the appellants pleaded not guilty to the two counts, respectively of conspiracy and murder.

The 1st appellant’s case at the trial was that he was present at the burial ceremony which started in the evening of 24th May, 1986 and continued on 25th May, 1986 where he was the master of ceremony. As the ceremony was about to start, people from other villages came. Upon hearing a shout of ‘thief, thief’ between 11pm and 12 midnight by one Eduriere and his wife, people at burial ceremony ran towards Eduriere’s house where he and the others who ran there were told that the thieves had run towards Igun village. After he had gone to his house and returned to Eduriere’s house, he saw some people who had run towards Igun returning to Otumara saying that the thief had been killed. Thereafter he went home and slept. He denied that he killed the deceased or conspired with anyone to kill him. He repudiated his statement to the police Exhibit 8. The 2nd appellant’s case was that he was at the burial ceremony on 24th May, 1986 and that he was there till 25th May, 1986 when he went home at about 3.00 a.m. When he was at the party he did not hear any shout of “thief, thief’. He denied that he saw anyone being killed in the night of 24th May, 1986 and early hours of 25th May, 1986 or seeing anybody being pursued that night. His defence was a complete denial. The main witnesses for the prosecution were the 2nd and 4th prosecution witnesses the substance of whose evidence the trial judge summarised thus:

“On their way back home from the ceremony, 2nd and 4th p.ws. heard a gun shot and a loud voice ordered them to Stop. The deceased, 2nd and 4th p. w.s began to run towards the direction of Igun. They were pursued by some people and after a while they dashed into the bush. The deceased and the 2nd p.w. dashed into the bush on the left and hid behind some grasses known as Awolowo grass whilst the 4th p.w. dashed to the right. It was a bright moonlight night Shortly afterwards the 6th accused person whom the 2nd p.W. saw very clearly and who the 2nd p.W. had known before 24/5/86 came to where they were hiding and began to inflict machete cuts on the deceased. The other accused persons joined the 6th accused person to beat the deceased. The 4th p.w. also ran into the bush but dashed to the left hand side while the deceased and 2nd p.W. dashed to the right close to where he was hiding about 18 feet (6 metres) away, saw the 6th and 8th accused persons inflict several machete cuts on the deceased while the other accused persons beat the deceased with stick. The deceased died on the spot. Thereafter the 6th, 8th and the other accused persons carried the deceased corpse towards a direction.”

The trial judge believed the evidence of these witnesses whom he said impressed him as witnesses of truth. He rejected the denial of the appellants. On the appellants’ appeal to the Court of Appeal the issues that were canvassed related to alleged contradictions in the evidence of pw 2 and pw 4 and identification of the appellants.

The Court of Appeal resolved both issues against the appellants. That court held per Achike J.C.A. (as he then was) that “the discrepancy or mix up in this appeal (sic) as specifically addressed by the learned counsel for each of the appellants and the respondent, in so far as they are not substantial and fundamental to the issues in question before the trial court, cannot be fatal to the prosecution’s case.” In regard to the question of identity, the court below held first, that the identity of the 1st appellant was not in issue throughout the case. Nevertheless the court below considered the evidence on record relating to identification of the appellants and concluded thus:

“ln all the circumstances, having regard to the positive and unshaken evidence of pw 2 and pw4 of identification of 1st and 2nd appellant which the trial judge accepted and rightly, in my view, acted upon, I am bound to resolve the second issue in favour of the respondent.”

On this further appeal to this court the main issues canvassed though expressed in different words were much the same as were canvassed in the court below. The argument was repeated by counsel on behalf of both appellants in this court as in the court below, that there were obvious and irreconcilable conflicts and discrepancies in the prosecution witnesses’ evidence, and, by counsel on behalf of the 1st appellant, that that appellant was not properly identified as the killer or one of the killers of the deceased. It was argued that the absence of a formal identification parade left a gap in the case of the prosecution.

This appeal turns, in the final analysis, on facts. One disconcerting feature of the arguments presented before this court is in ignoring the fact that this is a further appeal and the facts are no more at large. This court was addressed, largely, as if we were trying the matter at first instance. Hence, scant and perfunctory attention was paid to the reasons given by the court below for rejecting the contention advanced by counsel for the appellants before it. The court below while acknowledging that there may have been some discrepancy in the evidence of pw 2 and pw 4 who were said to have given conflicting evidence as to the respective side of the road in which they were hiding had said:

“The question is what do I make of this discrepancy as to the resultant directions to which the deceased, PW 2 and PW 4 found themselves …. Whether they were on the same side of the road or on different sides of the road, to my mind, is not necessarily controlling. The substantiality of their positions or directions may become relevant and material to the determination of the crucial issue raised in the appeal only if it relates to the quality of their evidence with regard the fact (sic) of the murder of the deceased.”

Having thus directed itself, that court went on to say:

“Bearing in mind that the evidence discloses that the incident occurred at the earlier hours of the morning of 25/5/86 (sometime after 3. a.m.), it seems to me that the visibility of that fateful night and the positional location of pw 2 and pw 3 vis-a-vis the deceased at the time deceased was allegedly killed are undoubtedly matters of crucial importance in order to give credence or otherwise to the evidences of these two star eye witnesses.”

After considering the combined purport of the evidence of pw 2 and pw 4, the learned Justice came to a clear conclusion thus:

” …. the discrepancy or mix-up in this appeal as specifically addressed by the learned counsel for each of the appellants and the respondent in so far as they are not substantial and fundamental to the issues in question before the trial court cannot be fatal to the prosecution’s case.”