Nwiko V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

ADAMU JAURO, J.S.C.

This appeal is against the judgment of the Court of Appeal, Port Harcourt Judicial Division wherein the Court affirmed the judgment of the High Court of Rivers State convicting the Appellant and two others for the offence of murder contrary to Section 319(1) of the Criminal Code, Laws of Eastern Nigeria, 1963 as applicable to Rivers State.

BRIEF FACTS OF THE CASE

The Appellant was arraigned with five others for the death of one Baribiae Iledae. The case of the Respondent was that the deceased and his sister, one Cecilia Tor-ue who testified as PW1 went to the deceased’s farm to do some work. PW1 in her evidence on oath testified that on their way back from the farm, the Appellant, the 1st and 3rd accused persons and others still at large who were in the 1st accused person’s Peugeot 504 drove past them, but then reversed the car and attacked the deceased with knives and axes while others joined them from the bush. PW1 testified further that she went to a nearby village to call for help and upon her return to the scene of crime, the assailants had killed the deceased as a result of multiple machete wounds and left his body in the bush. That the following morning, she reported the matter to the village head, one HRH Mene Baridam of Lumene village who wrote her a letter which she took to the police. According to PW1’s narrative, prior to the incident which culminated into the killing of her brother, there was a pending litigation between the deceased and the 1st accused person whose car was used in conveying the killers to the crime scene.

On his part, the Appellant denied committing the offence charged. He denied making a statement to the police which was tendered and admitted as Exhibit J and J2. At the conclusion of trial and after the adoption of final written addresses, the learned trial Judge delivered a considered judgment wherein he found the Appellant and two others guilty as charged and sentenced them to death by hanging.

The convicts were dissatisfied with the judgment of the trial Court and appealed to the Court below, albeit unsuccessfully. However, in a bid to exhaust his constitutionally guaranteed right of appeal, the Appellant in the instant appeal has invoked the appellate jurisdiction of this Court via a notice of appeal containing nine (9) grounds of appeal filed on 4th May, 2018.

EDWIN ANIIKWEM ESQ., in due observance with the Rules and Practice of this Court settled both the Appellant’s Amended brief of argument filed on 1 November, 2020 and Reply Brief filed on 16th February, 2022. For the determination of the appeal, the learned counsel for the Appellant formulated a sole issue to wit:

“Whether on the total circumstances of this case, the Court of Appeal sitting at Port-Harcourt was right when it affirmed the conviction and sentence of the Appellant by the Court of Trial. (Grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9)”

Arguing the sole issue, learned counsel submitted that it is evident that the Appellant was not one of those who killed the deceased as PW1 did not mention his name in her statement to the Police when the incident was still fresh in her memory, but only mentioned his name in her oral evidence made about two years after the incident occurred. He submitted that this contradiction in Exhibit A and the PW1’s oral evidence renders her evidence unreliable. Reliance was placed on POPOOLA V. STATE (2015) 6 NWLR (PT. 1456) 468, UCHE V. STATE (2015) 11 NWLR (PT. 1470) 380. It was further submitted that where a witness claims to have seen a person committing a crime but does not name him at the earliest opportunity, the failure to mention his name will detract from any credibility which the Court would have attached to the witness’ testimony. Counsel cited the cases of UDEH V. STATE (1999) 7 NWLR (PT. 609) 1, ANI V. STATE (2009) 16 NWLR (PT. 1163) 443.

It was his contention that the failure of PW1 to mention the name of the Appellant to the Police despite knowing him prior to the death of the deceased is fatal to the Respondent’s case. That there was no evidence linking the Appellant with the offence charged as the Police did not explain how they got to arrest the Appellant having not been mentioned by PW1.

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The Appellant’s counsel submitted that the only evidence that linked the Appellant to the crime was his statement to the police in Exhibit J. He submitted further that Exhibit J is not confessional as the Appellant denied committing the offence. It was further submitted that the contents of Exhibit J are clearly contradictory to the events as narrated by PW1 and that this raises doubt as to the veracity of her evidence regarding the death of her brother.

Learned counsel referred to the extrajudicial statement of the 1st accused person at page 8 of the record of appeal and submitted that the 1st accused person stated therein that PW1 admitted to Chief Baridam that she did not know who killed the deceased; that PW1 told Chief Baridam that she accused him (the 1st accused) of killing the Appellant because he had previously falsely accused the deceased of robbing him. It was submitted that this is indicative of PW1 having a vendetta against the 1st accused person. That the evidence of PW1 that the Appellant killed the deceased because of the pending litigation between them also further shows that she had an axe to grind with the Appellant. Counsel submitted that HRH Chief Baridam is a vital witness and that the Respondent’s failure to call him as a witness creates a reasonable doubt in the case of the Respondent. Reliance was placed on OSUAGWU V. STATE (2016) 16 NWLR (PT. 1537) 31.

It was submitted that the case as it pertains to the 1st accused person is important because if it is shown that he is not guilty, the Respondent’s case would collapse because as it was alleged that it was he who gathered the Appellant and others to kill the deceased. On the whole, counsel urged this Court to allow the appeal and to acquit and discharge the Appellant.