Obinna Osuoha V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment)

This is an appeal from the judgment of C. I. Ohakwe, J., delivered on 26th day of June, 2009, in the Owerri Division of the High Court of Imo State wherein the appellant was found guilty of the offence of murder contrary to section 319(1) of the Criminal Code Cap 30 Vol. II Laws of Eastern Nigeria, 1963, as applicable to Imo State of Nigeria.

The prosecution alleged that the appellant and other persons at large between the 15th – 17th September, 2004, at Ihiagwa within the Federal University of Technology Owerri (F.U.T.O.) University area in the Owerri Judicial Division murdered one Chima Chinaka. The Appellant pleaded not guilty to the charge. The prosecution called four (4) witnesses to prove the charge. They are: PW1, Donatus Chinaka, the father of the deceased. PW2, Emmanuel Chigozie Chinaka, the senior brother of the deceased. PW3, John Peter an ASP attached to the State C.I.D. Owerri and PW4, Dr. Rapheal Egejuru, a Medical Practitioner and a Pathologist at the Medical Centre, Owerri.

In defence, the appellant gave evidence as DW1 and his father Richard Osuoha gave evidence as DW 2. The facts of the case are that the Appellant and the deceased are old time friends. The appellant and the deceased went out to the knowledge of their different parents purportedly to attend a party in company of others at the Concorde Hotel, Owerri. From the appellant’s version, the company was diverted at gun point with some of the other boys in the car with them, namely – Sly, DVD, Bola and Smokey and the company was further diverted into a bush, where they started beating them. The appellant came to town in the morning of 17th September, 2004, in the same taxi with “Smokey” one of the boys that beat them up in the bush and he the appellant then took another taxi to his house. Meanwhile, when the deceased did not return home from the “party”, PW1, the deceased father sent his son, PW2 to the appellant’s house to inquire on the whereabout of the deceased. The appellant assured PW1 and PW2 that the deceased went for a test at the Imo State University and that he would soon return.

Later, when the deceased had not been found or returned, PW1 called in the police from Umuguma who arrested the appellant. At the time of arrest of the appellant by the police, from the Prosecution’s account, the appellant brought out things from his pockets and handed them over to his father. Amongst the things the appellant handed over to his father was a Motorola T. 190 handset which belonged to the deceased and was instantly identified as such as PW2 dialed the number in the handset and it rang in the hands of DW2. PW4 stated that the cause of death of the deceased was acute cardio-respiratory failure consequent upon aspiration of stomach content into the respiratory tract. The appellant denied involvement in the killing of the deceased and also denied being a member of a secret cult but rather that he also sustained injuries from the beatings. DW2 denied receiving the deceased’s handset from the appellant at the time of his arrest and that he never handed over any handset to the police.

In the concluding portion of his judgment at page 136 of the printed record, the learned trial Judge held thus:

“……… There is evidence that there were abrasions on the left arm front aspect of the chest, the abdomen and the two knee regions. That the body must have been dragged. The multiple wounds seen on the body of the deceased were so grievous in nature to infer an intention to kill the deceased. A person is presumed to intend the natural consequences of his act. There was a common intention by members of the 2 – 2 secret cult confraternity numbering over 12 persons who include the persons known and called by the accused person as Sly, Smoky, Devine or DVD, Bola, the accused person and one Christogonus Nnebedum (who escaped from the court hall during proceedings) to initiate people into their secret cult with the use of offensive weapons on their members and in the process murdered the deceased. They know that death was a probable consequence of the prosecution of such unlawful purpose. The accused person came into the warm embrace of Section 8 of the Criminal Code ………………………………………………………

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From the totality of the evidence before me, I hold that the prosecution has proved the charge of murder against the accused person. I find the accused person guilty of the offence of murder.”

Dissatisfied with this judgment, the appellant filed a Notice of Appeal containing 11 grounds of appeal before this court on 12th August, 2009.

Appellant’s brief of argument dated 5/11/09 and filed on 30/11/09 was deemed filed on 16/2/10. Respondent’s brief of argument dated and filed on 16/4/10 was deemed filed on 19/4/10. Learned counsel for the appellant nominated the following issues for determination.

“1. Whether the trial court was right in the conclusion which it reached against the appellant on the basis of Exhibit ‘C’ the handset (Grounds 3 and 4).

2. Whether the trial court was right in relying and acting upon the Police Investigation Report Exhibit ‘B’ against the appellant? (Ground 10)
3. Whether the trial court was right when it held that the Prosecution proved the offence of murder against the appellant? (Grounds 1, 2, 5, 6, 7, 8, 9 and 11).”

The learned Director of Public Prosecutions, Imo State for the Respondent adopted the three (3) issues formulated by the Appellant’s counsel.

On Issue No. 1, learned counsel for the appellant referred to page 129 (134) of the record, where the learned trial Judge summarized as follows: