The State V. Christian Okereke & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On 23-10-2007, an information was filed in the High Court of Ebonyi State, in Ivo Judicial Division, Isiaka commencing a criminal case, charge No HSK/3C/2007, against the respondents herein, Chukwu Abia (as 7th accused) and Philip Anyeru (as 8th accused). The charge contained one count of offence as follows-

COUNT 1: STATEMENT OF OFFENCE

Murder contrary to Section 319 (1) of the Criminal Code Cap. 30 Vol. 11 Laws of Eastern Nigeria, 1963 as applicable in Ebonyi State.

PARTICULARS OF OFFENCE

CHRISTIAN OKEREKE, BENEDICT ARO, CHUKWU AGHARANDU, IFEANYI NWAFOR, CHUKWU ABIA, UKPAI NGA, FREDRICK CHUKWU AND PHILIP ANYERU on the 17th day of June, 2006 at Ishiagu Community in Ivo Judicial Division murdered JOHN OTI”.

The record of this appeal show that proceedings in this case continued in the Abakaliki Judicial Division of Ebonyi State High Court at Abakaliki as charge No. HAB/6C/2008. The accused persons were arraigned on 28-7-2008 at Abakaliki. Following their plea of not guilty, trial commenced. The prosecution adduced evidence through four witnesses (PW1, PW2, PW13 and PW4) in support of its case. At the

close of evidence by the prosecution, Learned SAN for the accused made a no case submission. The trial Court, after considering the arguments, of, both sides; on 29-7-2010 rendered its ruling. It upheld the no case submission in respect of, the respondents herein (1st to 6th accuseds at the trial) and dismissed it in respect of the 7th and 8th accuseds (Chukwu Abia and Philip Anyeru). The concluding part of the ruling reads thusly-In the case of Idiok vs. State (2006) 12 NWLR (pt. 993) 1 at pages 4 – 5 ratio 1 the Court of Appeal held: “…

To establish that the accused person killed the deceased, the prosecution must adduce cogent evidence linking the accused with the death of the deceased showing either a positive act or a negative omission of the accused causing injury to the deceased, which in turn resulted directly in the death of the deceased.” In the absence of any direct evidence linking the other accused persons to the death of the deceased apart from the 7th and 8th accused persons namely Chukwu Abia and Philip Anyeru who were directly implicated with the death of the deceased by the evidence of the PW2 as no other evidence against the other

accused persons as to the committal of the offence was proved, I am therefore of the view that the no case submission can succeed partly on that ground. The consideration of the 3rd limb of the ingredient of the charge at this juncture may no longer be necessary so I shall no longer bother to do so. Likewise, the contradictions in the evidence of the prosecution witnesses as raised by the defence counsel is not on my view material enough now to raise doubts in my mind regarding death of the deceased.

For all the reasons I had above given or for any of them, I uphold the no case submission only to the extent that I had, earlier on stated. In the final analyses and because there is no evidence linking the 1st, 2nd, 3rd, 4th, 5th and 6th accused persons to the death of the deceased even though some of them were identified at the scene of the incident on that day, each of those accused persons above mentioned are hereby discharged.

The prosecution having made out a prima facie case against the 7th and 8th accused persons namely Chukwu Abia and Philip Anyeru respectively, these remaining two accused persons should enter into their defence in this present charge No.

HAB/6C/2008 and as I said earlier on the other accused persons are hereby discharged.”

Dissatisfied with this part of the ruling upholding the no case submission in favour of the 1st to 6th accuseds (respondents herein) the prosecution on 5-8-2010 commenced this appeal No CA/E/3/7/2010 by filing a notice of appeal containing 3 grounds for the appeal.