Uzevie Otumbere V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A.(Delivering the Leading Judgment)

The Appellant and three others were jointly charged and tried at the High court of Bayelsa State (coram: I. Eradiri J) for the offences of criminal conspiracy and arson, respectively punishable under Sections 444 and 371 of the Criminal Code of Bayelsa State. The 1st, 2nd and 3rd accused persons were convicted for the two offences.

They were each sentenced, without option of fine, to 4 year imprisonment for criminal conspiracy and 9 years imprisonment for the arson. The two terms were ordered to run concurrently. The three convicts have been in prison since their convictions and sentences on 5th December, 2011.

The 3rd accused/convict appealed his conviction on 9th February, 2012. His subsequent application for bail pending the determination of the appeal was refused.

The 4th accused person, charged and tried jointly with the Appellant, was discharged and acquitted on the two counts of criminal conspiracy and arson. The discharge of the 4th accused was premised on the evidence of the P.w.2, under cross-examination wherein he admitted that the 4th accused was not present at the scene of crime. This development was inspite of what appears to be a categorical evidence of the PW.3 fixing the 4th accused to the scene of crime. The PW.3 had testified that the 4th accused was the leader of the group that burnt the house of the Pw.1, the complainant. The Pw.3 testified that the 4th accused wore a red attire and that he was commanding the crowd that burnt PW.1’s house on 20th January, 2005.

The PW.2, like the PW.1, PW.3 and PW.4, had testified in their evidence-in-chief that they saw all the accused persons, including the 4th, at the scene of crime. The learned trial Judge had, in his judgment, dismissed the testimony of the PW1, as an eye witness, fixing all the accused persons to the scene of crime. I should thing and I so hold, that the acquittal of the 4th accused had some reciprocal impact on whatever was left of the testimonies of the eye witnesses. The testimonies at this juncture were left with diminished credibility.

The evidence of the PW.1 was dismissed at page 308 of the Record of Appeal as follows:

The PW.1, PW.2, PW.3 and PW.4 told the court they were eye witnesses to the crime that took place on that fateful night, and described the role played by some of the accused persons in burning the house.

Having regard to the evidence adduced by the prosecution, it is certain that the actual eye witnesses to the burning were the pw.2, pw.3 and pw.4. The PW1 was certainly not an eye witness to the fact since he was not in Agbura when the incident took place. He could only have known of the identities of the culprits from the source other than his personal knowledge.

This finding casts serious doubts on the evidence of the remaining eye witnesses who testified that they saw the 3rd and 4th accused in the crowd. By this finding, also, the PW.1 was a liar in his claim that he was an eye witness. His evidence, as an eye witness, had been so badly discredited and therefore unreliable. No reasonable court or tribunal therefore could rely on it for the conviction of the accused persons for the crimes alleged against them.

The Appellant, the 3rd accused person, is UZEVIE OTUMBERE. At page 201 of the Record the PW3 testified that the 3rd accused person, Uzevie, “was holding a dagger” that night. The PW.2, another eye witness believed by the trial court, testified at page 190 of the Records that he “saw Uzevie with a pistol”, and that “he is the 3rd accused”. The two pieces of evidence are mutually inconsistent.

The 3rd accused is also known as Tomvie, as it appears from the testimony of PW3, another acclaimed eye witness. No other witness, including the 3rd accused, ascribed that name to the 3rd accused. At pages 207 – 209 of the Records the Pw.3 testified: inter alia

I only saw the things that happened from where I was; not everything. I cannot say the exact time Ladina (PW.1) house was burnt. The burning lasted between 10 – 12 midnight. I saw Tomvie with a pistol. I did not bother about what he wore on that day. – – –

I put in my statement to the police that Tomvie was with a gun.