Michael Assah V. The State (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice F.O. Ohwo delivered on the 22/7/09 at High Court No.1 Ughelli, Delta State, wherein the Appellant was convicted for the murder of one Christopher Ojeabulu and sentenced to death by hanging. The facts that led to this are as follows:

The Appellant was arraigned before the Court on a one count charge, to wit:

STATEMENT OF OFFENCE

Murder punishable under Section 319(1) of the Criminal Code Cap. 48, Volume II Laws of the defunct Bendel State of Nigeria, 1976.

PARTICULARS OF OFFENCE

Michael Assah (m) on the 18th day of August, 2002 at Ughelli, within the Ughelli Judicial Division, murdered one Christopher Ojeabulu (m).

The Appellant pleaded not guilty to the charge read. To prove its case, the prosecution called three witnesses. P.W.1 Bose Iretegbe is a woman police constable serving in the same division as the Appellant, who was on night duty the night the deceased was murdered, but had gone to the toilet at the material time in question. P.W.2 Joseph Ekomaye is a Police Corporal who served in the same division as the Appellant and to whom the case of sudden and unnatural death was reported to by the Appellant.

P.W.3 Patrick Akpomreta is an Assistant Superintendent of Police attached to Ekiti State Police Command at the material time, who received a petition written by one Barrister F.B. Olorogun on behalf of one Joseph Ojeabulu in respect of the killing of his son, the deceased in this matter. He eventually investigated the petition. Appellant gave evidence in his own defence and called no witnesses. At the end of the trial, the Appellant was convicted and sentenced to death.

Dissatisfied with the judgment of the trial Court, the Appellant filed a notice of appeal and an amended notice of appeal on 24/4/13 containing ten grounds against his sentence and conviction. The Appellant’s brief of argument is dated 25/8/2009 and filed on the 7/9/2009. The Respondent’s brief of argument was filed on 9/4/2010, but deemed filed on 17/6/10.

Appellant in his brief settled by Chief A.P.A. Ogefere identified five issues for determination:

1. Was the case of murder established against the appellant beyond reasonable doubt as required by S. 138 of the Evidence Act before the trial Court convicted him for Murder and sentenced him to death by hanging? (Grounds 1, 4 & 7)
2. Was there cogent and convincing evidence in support of the finding that the act of the appellant in firing Ex D, caused the deceased’s death as required by law? (Ground 3 & 5)
3. Whether the evidence of the witnesses are not so materially inconsistent and contradictory as to be unsafe to rely on them to convict and sentence an accused to death in the circumstance of this case? (Ground 8)
4. Was the inability/failure of the prosecution to call material witnesses in the circumstance of this case not amount to suppression of evidence/miscarriage of justice warranting the invocation of the presumption in S.149(d) of the Evidence Act and the setting aside of conviction and sentence (Grounds 2 & 9)
5. Whether the trial judge misdirected itself on facts and law which misdirections occasioned grave miscarriage of justice? (Ground 10).

In the Respondent’s brief settled by Chief Victor E. Otomiewo, two issues were identified for determination:

1. Whether the prosecution proved the charge of murder beyond reasonable doubt.
2. Whether the failure to call as a witness, the wife of the deceased is fatal to the prosecution’s case?

After a careful perusal of the briefs filed by both parties, I have to say that there is only one issue for determination. Most of the Appellant’s issues are repetitive, as issues 1-5 will be satisfied by the same answers. The sole issue for determination is as stated below since all other issues will be addressed in answering one question:

SOLE ISSUE