Kingsley C. Nwosu V. The State (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Imo State High Court in suit no. HOW/46C/99, delivered on 28/7/2008, by Hon. Justice C. M. I. Egole, whereof the learned trial Judge convicted the appellant for murder and sentenced him to death, by hanging.

Appellant, as the accused person at the court below, was charged with murder of Innocent Nwosu on 22/6/1992, by giving him several matchet cuts. Thereafter, he, Innocent Nwosu, was rushed to the hospital where he died. The murder charge was founded on Section 319 of the Criminal Code, Cap 30, Volume 11 Laws of Eastern Nigeria as applicable to Imo State of Nigeria.

Appellant, as accused person, was arraigned on 15/6/2006, when he took plea, and pleaded not guilty to the charge. See page 44 of the records. At the end of the trial, the lower court convicted the appellant and found him guilty as charged, and sentenced him to death, by hanging.

A brief facts of the case shows that, on 22/6/92, the appellant and the deceased had some altercation, when appellant accused the deceased of passing on a land he (appellant) cultivated cassava. The deceased told appellant not to

address him (deceased) as a small boy, that he was not a small boy. The deceased passed on to ease himself and on coming back, appellant attacked him with a matchet and cut his right hand when the deceased lifted it to ward off the attack. He also cut his left hand when the deceased raise it, peeling off the skin to expose the bone.

Blood started gushing from the two hands. He was rushed to the Federal Medical Centre, Owerri for treatment, where he died the next day. PW2, who witnessed the matchet attack, said Appellant ran with the matchet into the bush, as they (witnesses) raised alarm that ?Kingsley had killed Innocent?.

The prosecution called 7 witnesses to prove the charge, while appellant defended himself and called no witness. In his defence, appellant said that he was rather the victim of the assault by the deceased and the relations of the deceased.

Appellant filed his notice and grounds of appeal on 24/9/2008, as per pages 120 to 125 of the records of appeal, raising 10 grounds of appeal. He filed his brief of argument on 21/1/2013, with the leave of this Court and distilled six (6) issues for the determination of the appeal, namely:

1. Whether the trial Judge was right when he believed the evidence of non experts as the cause of the death of the deceased. Grounds 1 and 6
2. Whether the trial Judge was right in acting on the contradictory evidence of the PW2 and PW3 (Ground2)
3. Whether the trial Judge was right when he believed the hearsay evidence of the prosecution witnesses as satisfactory to establish the cause of death of the deceased. (Grounds 3, 4 and 7)
4. Whether the trial Judge was right in believing the opinion of a non expert in establishing the certainty of hand writing (Ground 5).
5. Whether the trial court was right in not considering any defence which would have availed the appellant. (Grounds 8 and 9)
6. Whether the judgment of the trial Judge was well founded in view of the dearth of evidence from the prosecution (Ground 10).

The respondent filed its brief on 5/6/2014 with the leave of this Court, wherein it distilled only two issues for determination of the appeal, as follows:

(i) Whether the prosecution, by admissible evidence, proved the offence of murder against the appellant beyond reasonable doubt.

(ii) Whether the learned trial Judge failed to consider any of the defences

available in law for the benefit of the appellant that arose from the facts and evidence before the trial court.

This appeal was heard on 19/10/15 when the briefs were adopted by the parties.