Ndubuisi Dike V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the judgment of Abia State High Court in charge NO. HUK/10C/2010, delivered on 25/1/2012 by Hon. Justice C.O. Onyeabo, wherein Appellant was convicted in a one count charge of murder and sentenced to death, by hanging.

Appellant (at the count below) was charge for causing the death of one Onyekwere Dike (Appellant’s brother) on 25th day of December, 2009, at Umuhu compound in Mbam Abuo Ukwa East Local Government Area, within Ukwa Judicial Division, contrary to section 319 of the criminal code, volume 11 Cap 30 laws of Eastern Nigeria 1963 as applicable to Abia State.

The Appellant as accused person was arraigned on 19/1/2011 and he pleaded “Not guilty” to the charge. The facts of the case at the trial court was that Appellant killed his brother Onyekwere Dike for refusing to give him (accused) some money. Dike PW1 Mercy Dike Nwulu, (Appellant’s mother) told the court:

“we all ate on that night and went to bed, and while asleep, I got up as if I had been awakened, and went outside and found that Onyekwere’s house was on fire, and I saw Ndubuisi walking around outside. It was Onyekwere’s room that was ablaze, where he was sleeping I asked Ndubuisi and he responded that he was the one who set the house on fire because he had asked Onyekwere for money and that Onyekwere had refused. And it is true that Ndubuisi wanted to use the money to buy a second-hand vehicle to use during the December season, at the cost of #90,000.00, but he demanded the sum of #100,000.00 (One Hundred Thousand Naira) from his brother Onyekwere, and Onyekwere said he did not have such money to give to him…… Ndubuisi is older than Onyekwere. When Onyekwere refused to give Ndubuisi this money, Ndubuisi became very angry and for three days, he did not eat in the house. Onyekwere on his part said that he had been giving Ndubuisi various sums of money like #2,000.00, #5,000.00, #10,000.00 but did not have the kind of money Ndubuisi was asking of him. After Onyekwere refused to give Ndubuisi the said sum requested and had also told me in words that he would do something terrible. The accused is always begging others for money. We have no rest when he is around. Ndubuisi had actually told me that he will kill someone and I had thought he had not meant it. When I came outside, I shouted and people came to the scene. The accused person told me that he killed his brother, he admitted doing so, asked me to forgive him and I told him that he had done terrible deed. I reported the matter to the police and when they came to arrest the accused person, he ran away from them but they later arrested him…. “see pages 32 – 33 of the records.

The above evidence was corroborated by PW2 Ihuoma Dike (a brother of the accused), when she said:

“I know the accused person he is my brother. He is older than I. I also know Onyekwere Dike. He is also my brother. He is now dead. He was killed by the accused person. The accused person was demanding for the sum of #100,000.00, from the deceased and the deceased said he did not have any such money. The accused was fully angered (sic) and said he would kill someone within three to four days, the accused person killed the deceased. We had gone to bed on 25th December 2009 and when we came out we saw fire burning on the room of my late brother, Onyekwere. I also saw the accused person outside while the room was burning, the accused person was going around it to see if the deceased would run out from the room. The accused had a matchet in his hand while he monitored the burning room. It was around 1:am to 2:am that the incident occurred…”(see pages 37 – 38 of the Records).

At the trial the accused denied killing his brother and denied any fire incident. He said;

“There was no fire lit by me on 25th December 2009 to the house where Onyekwere Dike was and I did not light any such fire on any other date to the building or premises where Onyekwere Dike was sleeping…I did not tell my mother Mercy Dike that I was the one who had set the building ablaze…

The evidence by the IPO (PW3) however showed as follows:

“….we had visited the scene of the crime at their compound. Inside the deceased’s bedroom is the bed, his corpse was lying upside down. Then he had burnt beyond recognition.

We recovered the corpse and deposited it in the mortuary…. I took photographs of the corpse at the scene of the crime….. I made police investigation… The result of the autopsy is in the case file…” (The medical report was Exhibit C) see pages 44 to 45 of the Records.

At the end of the trial, the court below held:

“The evidence of PW1 and PW2, though indirect, is cogent, positive and compelling and points to the accused person and to no other person or cause for the commission of the totality of the evidence, by the undersigned co-incidences, point unmistakingly in the direction of the guilt of the accused. It is therefore my finding that the death of the deceased was caused by the accused, and whose act or omission which caused the death of the deceased was intentional and with knowledge that death or grievous bodily harm was its probable consequence. Thus the second and third essential ingredients of murder as well as section 316(1), (2) and (3) of the criminal code were proved against the accused person beyond reasonable doubt… “(see pages 103 and 104 of the Records of appeal).