Prince Otisi Okon V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the decision of Abia State High Court in charge No.HOH/2C/2004, delivered on 14/1/2011 by Hon. Justice K.C. Nwankpa, wherein the trial Court convicted the Appellant and one other of the offence of murder, contrary to Section 319 (1) of the Criminal Code, Cap 30 Vol.11, Laws of Eastern Nigeria, 1963, applicable to Abia State. Appellant was sentenced to death by hanging.

At the Court below, Appellant was charged, along with one other; for killing one Agbaeze Kalu Ukariwo and one Itum Kalu Okoroafor on 22nd September, 2003, at Amogudu Abiriba Ohafia Judicial Division, all contrary to Section 319(1) of the Criminal Code, Cap 30 Vol. 11 Laws of Eastern Nigeria 1963, applicable in Abia State. They were also charged for conspiracy to commit the murder contrary to Section 516(A) of the said Criminal Code, which was later withdrawn.

Appellant (as accused person) pleaded not guilty to the charge on 24/1/2008, when the trial commenced, de-novo. The prosecution called four (4) witnesses to prove the charge. The Appellant testified on his behalf and called no witness. At the end of the trial, Counsel filed written addresses. The trial Court, in a considered judgment, convicted the Appellant and his co-accused for the murder of Agbaeze Kalu Ukariwo, but discharged and acquitted them in respect of Itum Kalu Okoroafor.

Appellant filed Notice of Appeal on 14/2/11 and disclosed 4 grounds of appeal, as per pages 219 to 223 of the Records of Appeal. Appellant filed his brief of argument on 6/6/2013 and disclosed three (3) issues for determination as follows:

“(1) Was the Learned trial judge right in convicting the appellant based on the evidence of PW3 and circumstantial evidence of PW1 and PW2? (Ground 1).

(2) Whether the trial Judge was right when he attached probative value to Exhibits A B and C in convicting the Appellant (Ground 2).

(3) Whether the trial judge was right when he held that the defence of the Appellant was unreliable and relied on Exhibits G as establishing the guilt of the Appellant – Grounds 3 and 4.”

The Respondent filed their brief on 9/10/13, which was deemed duly filed on 12/2/14. A lone issue was distilled by the Respondent for determination, as follows:

“Whether the Learned trial judge was right in convicting the appellant of the offence of murder based on the evidence before him.”

When the appeal was heard on 22/9/14, the Counsel, on behalf of the parties, adopted their briefs and urged us, accordingly.

Arguing the appeal, Anaga Kalu Anaga Esq, who settled the Appellant’s brief, on issue one, submitted that the trial Court was wrong to have convicted the Appellant, based on the evidence of PW3 and the circumstantial evidence of PW1 and PW2.

He said that it is trite under our jurisprudence and under section 135 of the Evidence Act 2011, that the burden of proof rests on the person who asserts a particular fact, and in criminal cases, proof is beyond reasonable doubt. He listed the ingredients of offence of murder that must be proved by the Prosecution, relying on the case of Idowu Vs State (2000) 12 NWLR (pt. 680 and Oludamilola Vs The State (2010) 8 NWLR (pt.1197) 565.

Counsel submitted that the allegation against the Appellant of killing Agbaeze Kalu Ukariwo is founded on circumstantial evidence, which are even contradictory. He referred us to the evidence of PW1, saying that while PW1 narrated the incident said that she saw some Abiriba Youths chasing Agbaeze Ukariwo and that she was standing at about 3 poles observing the incident and saw when Appellant shot Agbaeze Ukariwo on the shoulder. But that under cross examination, she said: