IHEUKWUMERE LEVI v. THE STATE
(2019)LCN/12594(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of January, 2019
CA/OW/232C/2018
RATIO
EVIDENCE: WHETHER DYING DECLARATION AMOUNTS TO HEARSAY
“On the issue of dying declaration. In OKORO v. STATE (2012) LPELR 7846 S.C Rhodes Vivour J.S.C. citing R v. WOOD COCK (1989) 168 E. R. observed thus:- A dying declaration is an exception to hearsay rule. Two exceptions can only take effect on the principle that it is a declaration made in extremity. When the party is at the point of death and every hope of life is gone so that motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth.” PER RITA NOSAKHARE PEMU, J.C.A.
MEDICAL LAW: PRINCIPLE OF CAUSATION
“In UYO v. A-G OF BENDEL STATE (1986) 1 NWLR (PT. 17) 418, it was held that the principle of causation dictates that an event is caused by the act proximate to it all in the absence of which the event would not have happened; to establish a charge of murder or manslaughter it must be proved, not merely that the act of the accused would have caused the death of the deceased, but that it did. The important consideration for determination responsibility is whether death of the deceased was caused by injuries he sustained through the act of the accused, and not whether from the medical point of view death was caused by such injuries R v. OLEDINMA (1940) 6 W.A.C.A. 202.
As in the present case, the case of AIGUOREGHIAN AND ANOR v. THE STATE (2004) LPELR 270 is apt.
In the present case, death occurred about one month 28 days after the alleged fight and/or incident; medical evidence as to cause of death is absent. However PW3 Dr. Martin Nnoli testified on the 1st of March 2012. He is a consultant Pathologist/Sub Specialist in Forensics.” PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICE
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
IHEUKWUMERE LEVIAppellant(s)
AND
THE STATERespondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment):
Pursuant to a one count charge of murder proffered against the Appellant in an information filed on the 15th day of November 2011, in the Abia State High Court, Umuahia Judicial Division, the Appellant was convicted of the offence of murder, along with one Ikechukwu Ezekiel on the 1st of July 2013, and sentenced to death by the Court below. Pages 115 137 of the Record of Appeal.
FACTS OF THE CASE
Following allegation of embezzlement of money paid to the village by the Power Holding Company of Nigeria, levelled against one Ndubuisi Omeonu and others, some members of Okwoyi village Ibeku in Umuahia North Local Government Area of Abia State, lodged a complaint to the Police against the suspects including the deceased.
The deceased and one Ogbonna Owuru then lodged a complaint against some members of the community including the Appellants father.
The deceased and the said Ogbonna Ogwuru acting as pointers went with a team of Policemen to the village, and arrested persons from house to house.
On getting to the Appellants fathers house, they met a young girl named Alice Agwu the Appellants younger sister who told them that her father was not at home. The deceased allegedly slapped the young girl, thereby attracting the attention of the Appellant and the co-accused. Upon arrival at the scene, the deceased told the Police to arrest the Appellant and his brother as suspects regarding their earlier complaint to the Police.
The Police proceeded to arrest the Appellant, the co-accused, as well as the Appellants cousin Chinaza Nwokwam. The said Chinaza Nwokwam was shot on the leg by the Police.
Seeing this, the Appellant and his brother raised an alarm which attracted villagers to the scene. This made the deceased and PW2 with the nine Policemen that came to the scene to run away.
The Appellants family reported the matter to the Police. The deceased, PW2 and some Policemen were made to make statements on oath.
The deceased, the Policeman who shot at Chinaza, and PW2 told stories that the co-accused, Ikechukwu Ezekiel, came to the scene with a dagger, and that Chinaza Nwokwam had came to the scene with a matchet, and the police disarmed them.
The deceased father stated in his statement to the Police, that the Appellant and the co-accused gave him multiple injuries on his body, including an axe cut to his head. He also broke some of his ribs and shoulder bones.
That the Police wrote and compelled the accused persons to sign fresh statements purportedly admitting that they beat up the deceased on the 21st of July 2010.
As a result of the judgment delivered by the Court below, the Appellant is dissatisfied and filed a Notice of Appeal on the 4th of April 2018 encapsulating nine (9) Grounds of Appeal. pages 138-154 of the Record of Appeal.
The Appellant filed his brief of argument on the 8th of June 2018. It is settled by A. C. Okoroafor, Esq.
The Respondents brief was filed on the 13th of July 2018. It is settled by A. U. Onukwube Esq.
The Appellant filed a reply brief on the 1st of August 2018.
On the 5th day of November, 2018 the parties adopted their respective briefs of argument.
The Appellant had distilled four (4) issues for determination from the Grounds of Appeal, which are:-
i. WHETHER THE EVIDENCE OF THE PROSECUTION WAS SUFFICIENT, COGENT AND UNEQUIVOCAL ENOUGH TO JUSTIFY THE LOWER COURTS FINDINGS AND THE EVENTUAL DECISION THAT IT WAS THE APPELLANT AND THE CO-ACCUSED WHO KILLED THE DECEASED BY INTENTIONALLY INFLICTING EXTREME INJURIES ON HIM FROM WHICH HE DIED, AND THAT THEY CONFESSED TO THE CRIME IN EXHIBITS D AND F.
ii. WHETHER OR NOT THE EVIDENCE AS LED IN THIS CASE REVEALED A DEFENCE OF PROVOCATION WHICH THE LOWER COURT OUGHT TO HAVE RESOLVED IN FAVOUR OF THE APPELLANT.
iii. WHETHER THE LOWER COURT DID NOT PLACE AN UNDUE EVIDENTIAL VALUE ON EXHIBITS H AND J WHICH UNFAIRLY PREDISPOSED THE LOWER COURT TO FINDING APPELLANT GUILTY.
iv. WHETHER THE EVIDENCE LED IN THIS CASE JUSTIFIED THE DECISION OF THE LOWER COURT APPEALED AGAINST.
The Respondent distilled three (3) issues for determination from the Grounds of Appeal. They are:-
1. WHETHER THE TRIAL COURT RIGHTLY HELD THAT THE CHARGE OF MURDER AGAINST THE APPELLANT WAS PROVEN BEYOUND REASONABLE DOUBT HAVING REGARD TO THE EVIDENCE ADDUCED BEFORE THE COURT.
2. WHETHER EXHIBIT C THE STATEMENT OF THE DECEASED WAS RIGHTLY ADMITTED IN EVIDENCE BY THE TRIAL COURT.
3. WHETHER THE TRIAL COURT RIGHTLY HELD THAT THE DEFENCES OF ALIBI AND PROVOCATION DOES NOT AVAIL THE APPELLANT.
A cursory look at the respective issues for determination proffered by the parties, it seems to me that the Respondents issues for determination are essentially an adoption of the issues proffered by the Appellant, save that in its issue No 3, the Respondent introduced the issue of ALIBI.
I shall consider this appeal based on the issues for determination proffered by the Appellant, and also consider the issue of Alibi (if any) brought in issue by the Respondent.
However, I deem it pertinent to consider first issue No 1 and 4 of the Appellants issues for determination, as I am of the view that they dovetail, and can be considered together.
ISSUES 1 AND 4
The Appellant contends that the prosecution failed to adduce cogent and sufficient evidence in law to justify the conviction and sentence of the Appellant. That the prosecution has been unable to prove that the Appellant either alone, or together with his co-accused, caused the death of the deceased. He submits that where there is any doubt in the story of the prosecution, as to whether or not the action of the accused killed the deceased, the prosecution has failed to establish the commission of the offence by the Accused/Appellant citing AHMED v. THE STATE (2003) ACCR 152; FRANK ONYENANKEYA v. THE STATE (1964) ALL N.G.R. 151.
The Appellant submits that where the deceased did not die immediately after the attack (as in the case at hand), it has been decided by the Court that the prosecution must prove that the chain of causation was not broken and/or that there was no other likely came of death.
The Appellant submits that there is conflict between Exhibit A statement made by PW1 on the 20th of September 2010, and his oral testimony in Court. That when the Court below held that the prosecution adduced circumstantial evidence that led mathematically and irrestible to the conclusion that the Appellant and his co-accused intentionally killed the deceased, he was in error. He submits that when the Court below admitted Exhibit C (Statement of the deceased made on 23/8/2010 under caution) almost a month before his death, the Court below was in error in law by relying on the statement under Section 40 of the Evidence Act. Submits that the antecedent condition for admitting a document under Section 40 of the Evidence Act, is that the maker, at the time of making the statement, must be under the fear and contemplation of imminent death. This was not the case have, he submits.
He submits that there is no evidence to show the state of mind of the deceased as at the time of making Exhibit C. That there is nothing in Exhibit C to make one conclude that the deceased made the statement when he believed himself to be in danger of approaching death. That there was no specific finding by the Court below that Exhibit C was made by the deceased at a time he believed himself to be in danger of approaching death.
Submits that in considering Exhibits D and F, it limited itself to comparing the signatures of the accused persons. It did not judiciously and judicially resolve the issue taking into consideration other surrounding circumstances which made the admission of Exhibits D and F unreasonable.
Regarding Exhibit F he submits that the Court below failed to made specific finding whether the Appellant who testified in Igbo Language was able to read and write and whether Exhibit F was interpreted or properly interpreted to the Appellant NWEZE v. THE STATE (2018) 6 NWLR (PT. 1615) 197 @ 213; BELLO v. C. O. P. (2018) 2 NWLR (PT. 1630) 267 @ 321. Submits that failure for the prosecution to call both the recorder and the interpreter of Exhibit F to testify is fatal to the case of the prosecution.
Submits that the lower Court failed to note that Exhibit F (which was alleged to have been made on 30/8/2010) was said to have been made under caution by the Appellant, but there was no evidence that there was complaint against the Appellant and his co-accused until after the death of the deceased who died on 19/9/2010.
That a look at Exhibit D and F show that it was not PW5 who wrote them or interpreted them. That the handwriting in Exhibit D and F is different from the handwriting in Exhibits E and G. Cpl Oliver Umoh who wrote Exhibits D and F is a non Igbo man. The Respondent failed to show that he understand the Igbo Language. Exhibits E and G apparently recorded by an Igbo man (Julius Nwaefie) and was interpreted into Igbo Language.
Submits that the Court below was wrong to have made the finding that the Appellant made Exhibit F.
That the Court below erred in holding that the signatures in Exhibits D and F and Exhibits F and G are the same.
That Exhibits D and F are not confessional statements made by the Appellant and his co-accused.
The Appellant submits that the Court below was wrong to have relied on the purported expert opinion of PW3 in coming to a decision in this case. That the opinion, being speculative the Court below should have resolved the doubt in favour of the Appellant.
Submits that there was no evidential basis for the lower Court to have come to the conclusion that the Appellant killed the deceased.
The Appellant submits that from the totality of evidence adduced before the Court, the Court below erred when it found the Appellant guilty of the offence charged. That the available evidence was not properly evaluated.
He submits that there was contradiction in the evidence of PW1 and PW2, which renders uncertain the prosecution evidence as to who inflicted the injuries, and with what weapon, on the deceased.
Submits that the prosecution failed to tender the matchet, axe and dagger which were allegedly used on the deceased by the Appellant.
Submits that the prosecution failed to prove who inflicted the alleged injury on the deceased. These raises a reasonable doubt.
ISSUE NO. 2
The Appellant submits that the trial Court was wrong to have confined itself to the only defence of provocation raised in Exhibits D and F.
Submits that from evidence adduced of how one Chinaza Nwakwam, the Appellants brother was shot, as a result of which there was commotion; and the indiscriminate shooting by the Police. Further that the accused persons chased them immediately and caught up with the deceased and beat him up and gave him a matchet cut and an axe cut, the above pieces of evidence, all raised a weightier defence of provocation which the trial Court should have considered in favour of the Appellant.
Submits that the Court is bound to consider any defence of provocation raised by the evidence whether or not the accused person raised it himself.
ISSUE NO. 3
Submits that it is not in dispute that DW3 was shot on the leg by the Police on 21/7/2010. Also admitted by the prosecution (PW1 and PW4) that DW3, was rushed to the hospital on 21/7/2010. That DW3 also testified that he was admitted in Obioma Hospital on 21/7/2010, and did X-ray as in Exhibit J on 22/7/2010. That when the Court below held that Exhibit H was mutilated, which showed that the accused persons took DW3 (their brother) to hospital on the same 21/7/2010, it was in error.
Submits that the Respondent did not allege forgery of Exhibits H and J, nor calling evidence to prove same, the Court below was wrong to have made such suo motu.
ISSUE NO 3 OF RESPONDENT
It is the Respondents contention that a Court is bound to consider defences which in its opinion are available to the accused, though not specifically raised by him EMMANUEL EDOKO v. THE STATE (2015) LPELR 24402 (SC); ANI v. THE STATE (2003) 11 NWLR (PT. 830) 142. He submits that the main defence raised by the Appellant is that of ALIBI. That in his second statement, he was not around when the deceased was attacked and wounded as he took Chinaza Nwokwam to the hospital. That the Appellant however did not raise the defence of ALIBI at the earliest opportunity when his statement was first recorded on the 30th of August, 2010. This makes the defence an after thought, he submits.
That the Court below was right when it chose to believe Exhibit F (statement made on the 30th of August, 2010) to Exhibit G (statement made on the 27th of October 2010.) That this is because, it is trite that when an accused makes two contradictory extra judicial statements, a trial Court will be right to take the one which is less favourable to him, particularly when that one is first in time EMMANUEL OGAR AKONG EDOKO v. THAT STATE (2015) LPELR 24402.
He submits that the dying declaration of the deceased is compelling Exhibit C, which fixed the Appellant at the scene of crime. Exhibit H shows that the person allegedly taken to the hospital by the Appellant on the 21st of July 2010, only arrived the hospital the day after.
That Exhibits L and LI tendered by DW4 do not serve as proof of ALIBI. This is because, there is nothing to show that the pictures were not taken after the deceased had been attacked.
Urges this Honourable Court to hold that the Court below rightly rejected the defence of ALIBI put up by the Appellant.
He submits that the Appellant cannot rely on the defences of ALIBI and Provocation at the same time, as they are both mutually exclusive.
Submits that the lawful act of the Police in investigating and arresting persons is not, and cannot be provocative.
That the alleged provocation happened in the home of the Appellant, and the deceased was attacked in his own house. The Appellant pursued the deceased from their house to his house after first chasing the Police away, and then beat him to his death at his house. Submits that between the alleged provocation and the resultant reaction, there was enough time for the temper and emotion to cool down.
Therefore, he submits, the defence of provocation cannot avail the Appellant and urges this Honourable Court to so hold.
RESOLUTION OF ISSUES
ISSUES 1 AND 4
The deceased Ndubuisi Umeonu, made a statement to the Police on the 21st of July, 2010 after he was attacked. He stated that one Chinaza used his head on his nose, and he started bleeding. The Police who were present at the scene advised him to go seek medical attention. On his way home, one I. K. (one of Chief Ezekiel sons) attacked him with a small axe, which he used to inflict injuries on his head. That I. K. and the Appellant descended on him with sticks, right inside his own compound. They broke his left shoulder and his 6th and 7th ribs. They also broke his waist.
Pertinent to state here that the deceased made statement also concerning the shooting of Appellants brother and not as to his beating. That statement cannot stand as it amounts to hearsay evidence, as he is now dead.
The deceased allegedly died on the 19th of September, 2010, about, one month 28 days after his alleged beating. No date of death was stipulated on any medical report. Indeed there is no medical report as to the cause of death.
In UYO v. A-G OF BENDEL STATE (1986) 1 NWLR (PT. 17) 418, it was held that the principle of causation dictates that an event is caused by the act proximate to it all in the absence of which the event would not have happened; to establish a charge of murder or manslaughter it must be proved, not merely that the act of the accused would have caused the death of the deceased, but that it did. The important consideration for determination responsibility is whether death of the deceased was caused by injuries he sustained through the act of the accused, and not whether from the medical point of view death was caused by such injuries R v. OLEDINMA (1940) 6 W.A.C.A. 202.
As in the present case, the case of AIGUOREGHIAN AND ANOR v. THE STATE (2004) LPELR 270 is apt.
In the present case, death occurred about one month 28 days after the alleged fight and/or incident; medical evidence as to cause of death is absent. However PW3 Dr. Martin Nnoli testified on the 1st of March 2012. He is a consultant Pathologist/Sub Specialist in Forensics.
He works with the Federal Medical Centre Umuahia. He testified thus inter alia.
I recall 25/11/2010. I did an autopsy on that day one Mr. Ndubuisi Omeonu
Under cross-examination he testified thus inter alia
The corpse of the deceased based on the morticians report was received in the mortuary on 19/9/2010
He continued
I would not know what instrument was used to cause the injury. I would not know if the injury was caused with an instrument having a sharp point. I did not see matchet cuts. I did not see multiple injuries . What killed the patient was the sudden collection of blood on the little space remaining on the brain with relationship to the size of the skull .. In this case, the injury I saw on the patient was before death
In AIGUOREGHIAN AND ANOR v. THE STATE (SUPRA) medical report as to cause of death was uncertain.
It is trite that in circumstances such as in the present case, medical certificate as to the ACTUAL cause of death is a necessity and failure to produce same is fatal to the prosecution. The evidence of PW3 was neither here nor there.
In OMOGODO v. THE STATE 1981 5 S.C.5, Nnamani J.S.C. of blessed memory, observed thus:-
In a murder case the prosecution cannot succeed in establishing the guilt of the accused unless it not only establishes the cause of death, but establish in addition, that the act of the accused caused the death of the deceased.
On the issue of circumstantial evidence, it is trite that in cases where direct or circumstantial evidence come to play, same must have no other co-existing circumstances which will weaken or destroy that inference.
The Appellants statement is at pages 169 170 of the Record of Appeal Exhibit F. It was made on the 30th of August 2010 in English Language, and recorded by Cpl. Oliver Umoh.
On the 27th of September, 2010, he made another statement Exhibit G Pages 171 172 of the Record of Appeal, recorded by sergeant Julius Nwaojie. While the content of Exhibit F was not translated to the Appellant in Igbo Language, the contents of Exhibit G was translated to the Appellant in Igbo Language.
On the 12th of February, 2013 the Appellant testified as DW2 Page 83 of the Record of Appeal.
Notably is that he testified in Igbo Language.
The Appellant testified that he was one of those that rushed Chinaza Nnokwam, shot by the Police, to Obioma Hospital, School Road, Umuahia on the 21/7/2010. That he never left the hospital. In fact he was taking care of Chinaza, and he was never arrested by the Police. He was informed in September 2010 that the deceased had died.
He said that outside Exhibit G, he made no other statement to the Police including Exhibit F on 30/8/2010. He said:
Except going to the Police on 27/9/2010 he did not go to the Police at any other time.
(Page 86 of the Record of Appeal.) In the statement made by the Appellant on the 30th of August 2010 (which was denied by him) he stated thus inter alia:
The reason which made (us) me and Ikechukwu Ezekiel m to beat Ndubuisi Omuonu m to a state of stupor was that he first of all beat our junior sister, Alice Ezekiel so we had to revenge. (Page 170 of the Record of Appeal.) That statement, tendered as Exhibit F smacks of a confessional statement, but there is nothing to show that the Appellant was taken before a Superior officer for attestation of Exhibit F. Neither is there any indication that the statement was translated to the Appellant in Igbo language.
As earlier observed, the Appellant denied making a confessional statement Exhibit F. He is entitled to deny. I observed that Exhibit F was made in English Language. There is no proof that the English Language was interpreted to the Appellant in Igbo language.
There is nothing on record to show that the recorder of the statement and the interpreter were called to testify as to what transpired as regards the statement made by the Appellant.
The statement remains hearsay and ought to have been expunged by the Court below.
On the issue of dying declaration. In OKORO v. STATE (2012) LPELR 7846 S.C Rhodes Vivour J.S.C. citing R v. WOOD COCK (1989) 168 E. R. observed thus:-
A dying declaration is an exception to hearsay rule. Two exceptions can only take effect on the principle that it is a declaration made in extremity. When the party is at the point of death and every hope of life is gone so that motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth.
In the present case, the statement elicited from the deceased was made under caution, and same could therefore not have constituted a dying declaration.
I have taken pains to peruse the facts in this case, noted the shoddy investigation of same by the Police and the appraisal of the evidence in its totality by the Court below.
It is apparent that the prosecution has created a motley of doubts in this case and the law is trite indeed elementary, that the prosecution has a duty to prove his case beyond reasonable doubt.
From the time the deceased was inflicted injuries to the time he died, welcomes the possibility of intervening events that could destroy the case of the prosecution. There is nothing in the entire state of facts that links the Appellant to the death of the deceased whether direct or circumstantial.
20
Possibilities and probabilities, congestive and guess work have no place in proof in criminal cases, moreso a murder case which attracts the ultimate punishment.
I can conveniently answer the question put forth in issues 1 and 4 in the negative. Same is answered in the negative.
Issues 1 and 4 are therefore resolved in favour of the Appellant and against the Respondent.
ISSUE NO. 2
The Appellant raised the defence of provocation in that Policemen shot his brother, one Chinaza Nwokwam on the leg. As a result of this the Appellant and his co-accused chased the deceased, and beat him up mercilessly by giving him a matchet cut and an axe cut.
The Appellant submits that this coupled with the evidence of assault on the Appellants sister, is enough provocation which the Court below should have considered, but it did not, but rather confined itself to the only defence of provocation raised in Exhibit D and F.
The Court below considered the facts leading to the injuries on the deceased. But it failed to consider the facts of provocation juxtaposed with the incident of the beating up of the deceased. Could there have been provocation?
The Court below did consider the defence of provocation in the judgment. At Pages 134 135 of the Record of Appeal, the Court below observed thus:-
It is a known fact that the accused person in a murder charge is not restricted in the consideration of his defence to the defence raised by him, but it is open to the Court to consider other defences available to the accused on the facts established before the Court see STATE v. OJO (1973) 11 S.C. 331. In other words, it is my responsibility to consider all the defences put up by the accused persons express or implied on the evidence before the court. See also ANI v. STATE (2003) 11 NWLR (PT. 830) 142; ASANYA v. STATE (1991) 3 NWLR (PT. 180) 442. In this guise, it is the duty of the prosecution to establish the guilt of the accused persons. It is not for the accused persons to establish the provocation alleged. But even if it was true that the deceased slapped Alice Agiru, I do not believe that such should provoke the level of provocation that will make the accused persons inflict such monumental level of injuries that the PW3 discovered during the autopsy. It does not explain or excuse the accused persons beating the deceased into Stupor or Coma as the accused persons said in Exhibits D and F.”
With this, I am of the view that the Court below considered the defence of provocation. It is another matter as to his conclusion concerning it.
This issue is misconceived and same is resolved in favour of the Respondent and against the Appellant.
ISSUE NO 3.
Exhibit H is the cash receipt No 012253 from Obioma Hospital, School Road, Umuahia. It is for the sum of Five Thousand Naira as deposit paid for treatment of Nwokwam Chinaza dated 21/7/2010. (Page 173 of the Record of Appeal).
Exhibit J is X-Ray request form filled by Nwokwam Chinaza. Shows gun shot on his thigh. Page 174 of the Record of Appeal.
The Appellant submits that the findings of the lower Court to the effect that Exhibit H was mutilated to show that the accused persons took DW3 their brother to hospital on the same 21/27/2010 is erroneous.
A cursory look at Exhibit H shows that the date which was 22/7/2010 was amended to read 21/7/2010. It only pertained to the figure 20. There was no mutilation.
The word Mutilate, according to the Oxford Advanced Learners Dictionary 7th Edition, Page 968, means to damage sbs body very severely, especially by cutting or tearing off part of it. To damage very badly;
“a. In the Blacks Law Dictionary Mutilation is defined as the act or an instance of rendering a document legally in effective, by subtracting or altering, but not completely destroying an essential part through cutting, tearing, burning or erasing.”
I am of the view that Exhibit H was not mutilated. The number 20 was only connected from the above, to read 21. As I observed earlier, that correction should have been initialed.
The lower Court failed to place evidential value on Exhibit H because of this correction as to date but this is not fatal to the case of the prosecution.
This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO. 3 OF RESPONDENT
Simply put, the issue of ALIBI raised by the Appellant is of no moment, as he from his own lips did say that he was around when the deceased was beaten up on the 21/7/2010. That makes the defence of ALIBI put up as not tenable.
This issue is resolved in favour of the Respondent as the Court rightly rejected the defence of ALIBI put up by the Appellant.
The result is that this appeal succeeds as the Respondent has failed woefully to prove the case of murder against the Appellant. Iheukwumere Levi beyond reasonable doubt.
Accordingly the judgment of the Abia State High Court delivered on the 1st of July, 2013 in Charge No. HU/59C/2011 whereby the Appellant was convicted for the offence of murder and sentenced to death is hereby set aside while the conviction for murder is hereby quashed. He is hereby discharged and acquitted accordingly.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had read before now, the leading judgment just delivered by my learned brother Rita N. Pemu, JCA.
I agree entirely with his opinion and reasoning.
I also allow the appeal. The decision of the Court below is hereby set aside.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother HON. JUSTICE R. N. PEMU, JCA. I completely agree with her reasoning and conclusions. I have nothing more to add. I adopt her orders as mine.
Appearances:
A.C. Okoroafor, Esq.For Appellant(s)
A.U. Onukwube, Esq.For Respondent(s)
