IWEAJUNWA v. STATE (2022)

IWEAJUNWA v. STATE

(2022)LCN/16943(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/OW/64C/2021

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Between

JOHN IWEAJUNWA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON WHEN A JUDGEMENT IS SAID TO BE PERVERSE

A judgment is said to be perverse when it is consistent in error, different from what is reasonable or required and is against the weight of evidence. It is a situation where the Court took into account, matters which it ought not to have taken into account or where the judge shuts its eyes to the obvious. ATOLAGBE V. SHORUN (1985) LPELR – 592 (SC). PER PEMU, J.CA.

THE DEFINITION OF “DYING DECLARATION”

The term “Dying declaration” is from someone at the point of death, whose hope of life is gone. OKEREKE V. STATE 2016. LPELR – 40012 (SC). PER PEMU, J.CA.

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Imo State High Court of justice Orlu Judicial Division delivered on the 29th of July, 2020 in charge No. HOR/9c/2011.

SYNOPSIS OF FACTS:
The case, the subject matter of this appeal was initiated by a two-count charge of Conspiracy and Murder contrary to Sections 324 and 319 (1) respectively of the Criminal Code, CAP 30 Vol. II, Laws of Eastern Nigeria 1963 (as applicable in Imo State).

It is that on the 11th day of July 2010, the 1st and 2nd accused persons conspired to commit a felony and indeed murdered Joy Akpagbusi.

The prosecution called three (3) witnesses. The Appellant gave evidence for himself. He admitted being at the scene of crime in the company of his friend IBB and the deceased in his earlier statement to the Police, but later denied and pleaded alibi as an afterthought.
At the close of trial, the Appellant was found guilty of murder and sentenced to death.

Dissatisfied with the said judgment, the Appellant filed an Amended Notice and Grounds of Appeal filed on the 22nd day of June 2021, and deemed on the 22nd of February, 2022 encapsulating 19 (nineteen) Grounds of Appeal.

The Appellant filed his Brief of Argument on the 22nd June, 2021, deemed filed on the 22nd of February, 2022. It is settled by Uwajuruonye Uchenna Ernest Esq.
The Respondent’s brief was filed on the 3rd of March, 2022. It is settled by Clement Oji Chinaka, Esq.
The Appellant filed a reply brief on the 4th of March, 2022.
On the 7th of March, 2022, the parties adopted their respective briefs of argument.

The Appellant distilled four (4) issues for determination from the grounds of Appeal. They are
“1. WHETHER THE JUDGMENT IS NOT PERVERSE AND A NULLITY ON THE BASIS THAT THE TRIAL COURT RELIED ON MISREPRESENTED VERSION OF THE EVIDENCE OF KEY WITNESSES IN CONVICTING THE APPELLANT. Grounds 7, 8, 12 and 15.
2. WHETHER THE APPELLANT’S RIGHT TO FAIR HEARING WAS NOT BREACHED WHEN STATEMENTS AND SOME OTHER DOCUMENTS THAT WERE NOT TENDERED IN EVIDENCE AND WHICH THE APPELLANT HAD NO OPPORTUNITY TO CROSS EXAMINE THE MAKERS IN CONVICTING THE APPELLANT? GROUNDS 9, 10, 11, 13, 14, 15, 16, 17, 18 AND 19.
3. WHETHER THE TRIAL COURT DID NOT ERR IN LAW WHEN IT FAILED TO UPHOLD THE ALIBI RAISED BY THE APPELLANT AT THE EARLIEST OPPORTUNITY? GROUNDS 2 AND 15.
4. WHETHER THE TRIAL COURT DID NOT ERR IN LAW WHEN IT HELD THAT THE PROSECUTION PROVED ITS CASE BY CIRCUMSTANTIAL EVIDENCE AND BEYOND ALL REASONABLE DOUBT. GROUNDS 1, 3, 4, 5, 6, 10, 11, 15 AND 20.

The Respondent distilled a sole issue for determination from the grounds of Appeal, viz:
“WHETHER HAVING REGARD TO THE STATE OF EVIDENCE ON RECORD, THE TRIAL COURT WAS RIGHT IN LAW WHEN IT HELD THAT THE PROSECUTION PROVED ITS CASE AGAINST THE APPELLANT BEYOND REASONABLE DOUBT”.

A painstaking look at the issues for determination of the respective parties, it seems to me, that the Appellant’s issues for determination (save Issue No. 1) are tainted with the proliferation of issues. This is because all the issues are formulated from ground 15 and a combination of other grounds. This amounts to proliferation of issues and thus renders issues 2, 3 and 4 liable to be struck out and same are hereby struck out –
OLAIYA V. STATE (2017) LPELR – 43714 (SC); PHILLIPS V. EBA ODAN COMMERCIAL AND INDUSTRIAL CO. LTD. (2012) LPELR- 9718 (SC).

In the instant case, there are 19 Grounds of Appeal with only four issues formulated. Generally, it is advisable to formulate issues from a ground of Appeal or a combination of Grounds of Appeal. But you cannot formulate more than one issue from a Ground of Appeal or a combination of Grounds of Appeal which the Appellant did here.

This Appeal will therefore be considered based on issue No. 1 only of the Appellant’s issues for determination.

ISSUE NO. 1:
The Appellant submits that it is trite that justice rests on evidence and evidence rests on facts. That it is the primary duty of the Court to understand the essential facts of the case, appreciate the evidence and apply the law. That where the Court fails to understand the evidence, it cannot appropriately apply the law.

That there was misrepresentation of the evidence of key witnesses, misrepresentation and ascription of corroboration to the evidence of PW2. That the Court failed to independently evaluate the evidence of PW2 against the evidence of the defence or other witnesses.
That the trial Court has a duty to consider the evidence of each witness independently. Submits that for the evidence of co-accused to be corroborated, both must be in pari materia in all essential facts and that where there exist material differences or evidence cannot be corroborated – AG AND PT DELTA STATE & ANOR. V. OGOGO & ANOR. (2005) LPELR- 7553 (CA).
That evidence of PW2 corroborates that of PW1, as held by the Court, was perverse. That the Court below lumped and foisted two sets of evidence together which strengthened the Court’s mind to convict the Appeal.

RESOLUTION
A judgment is said to be perverse when it is consistent in error, different from what is reasonable or required and is against the weight of evidence. It is a situation where the Court took into account, matters which it ought not to have taken into account or where the judge shuts its eyes to the obvious. ATOLAGBE V. SHORUN (1985) LPELR – 592 (SC).

PW1 – Francisca Ezekwesiri testified on the 25th of June 2012 as to how she saw the Appellant with a double barrelled gun and that he in fact shot the victim. She further testified that, the deceased told her as she was dying that it was the Appellant that shot her. The victim was rushed to the hospital and PW1 reported the matter to the police.

Under cross-examination, PW1 testified that she knew the Appellant before this incident. PW1 owns a restaurant and a bar. She described the Appellant as wearing on the day of the incident, a white long sleeve shirt, covered with a black jacket with a cap.

PW2 – Chinaemerem Matthew Ezekwesili, testified that on the day in question, she was one of those that rushed the victim Joy to the hospital.
It was in the hospital that she told her that it was the Appellant that shot her. That Joy repeated in the presence of the police officer who later came and PW1, that it was the Appellant that shot her.
That Joy was shot at the back. That when the shot bang out, she ran away just as every other person.

The term “Dying declaration” is from someone at the point of death, whose hope of life is gone. OKEREKE V. STATE 2016. LPELR – 40012 (SC).

The Appellant’s defence is that, the deceased was his wife. That she left his matrimonial home and he never saw her again.
He said that he was at work at the time of the alleged incident without providing further particulars that was not investigated.
The IPO did not testify as he had gone to Sudan for peace keeping.
The evidence of PW1 and PW2 in my view, sufficiently links the Appellant to the commission of the crime.

The Appellant admitted that the relationship between the deceased and himself had gone sour. That she left her home and said she was going for a night vigil, but never returned.

The Court below was faced with the facts. PW1 saw the deceased shot and lying in the pool of her own blood.
Exhibit “C” is the Medical Report dated 7/10/2010. The cause of death was as a result of continued blood loss from the shattered vertebrae to damage of the left lung and diaphragm.

A cursory look at the Medical Report, one is in no doubt, that it is consistent with injuries sustained from a double barreled gun. The findings of the Court below cannot be faulted as the Appellant was the one who murdered the deceased in cold blood in the presence of eye witnesses. This coupled with the dying declaration of the deceased to PW1 and PW2, one is in no doubt as to the guilt of the Appellant.

I resolve this issue in favour of the Respondent and against the Appellant. The Appeal fails and same is hereby dismissed.
The judgment of the Imo State High Court, Orlu Judicial Division delivered on the 29th of July, 2020 in Charge No: HOR/9C/2011, is hereby affirmed.
The Appellant John Iweajunwa is hereby sentenced to death by hanging.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where the issues in contention have been set out and determined.
I agree that this appeal fails and I dismiss it.
The judgment of the lower Court is accordingly affirmed.

IBRAHIM WAKILI JAURO, J.C.A.: I read before now the preview of the judgment just delivered by my learned brother RITA N. PEMU, JCA (Presiding Justice). I am fully in agreement with the reasoning and conclusions that the Appeal is devoid of any merit and same is also dismissed by me.