MANASSEH JAPHET & ANOR v. THE STATE & ORS
(2010)LCN/4028(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of November, 2010
CA/PH/219/2007
RATIO
OFFENCE OF MURDER: WHETHER A CONVICTION FOR THE OFFENCE OF MURDER CAN BE SUSTAINED IN THE ABSENCE OF CORPUS DELICTI
It is trite law that conviction for murder can be sustained in the absence of corpus delicti where there is strong direct evidence. See R V. SATI (1938) 4 WACA 10; EDIM V. THE STATE (1972) 4 SC 160; BABUGA V. THE STATE (1996) 7 NWLR (Pt. 460) 279 and R. V. ONUFREJIZYK (1955) 1 QB 39. See also ABANITA OKENDU UBANI V. THE STATE (2003) 18 NWLR (Pt. 851); (2003) 12 SC (Pt 1) 1. In Ubani’s case (supra) death was inferred from the facts that the deceased was last seen with the Appellants three years ago. According to Edozie JSC on page 244 of the report. “Having regard to the circumstances of this case particularly the fact that three years after the incident, the deceased has not been found and there was no explanation from his assailants as to his whereabout other than a bare denial of complicity in the crime, the inference is irresistible that he is dead; that it was the act of his assailants that cause his death and judging from the nature of the attack and the lethal weapons used, the attackers had the intention to kill or at least cause grievous bodily harm on the deceased
All the three ingredients of murder earlier enumerated having been established, the judgment of the trial court convicting the 1st and 2nd appellants and the court below affirming the conviction remain unassailable.” PER T. O. AWOTOYE J.C.A
COMPLAINANT: MEANING OF THE WORD “COMPLAINANT”
The word complainant has to do with the initiator of the process or charge. It derives from the word complaint which is an allegation leading to the commencement of the trial. The maker of the allegation is the complainant. Both the prosecutor and the informant are connected with the initiation of the charge or complaint. It cannot in my respectful view be overstretched to include “witness”. PER T. O. AWOTOYE J.C.A
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 36(4) OF THE 1999 CONSTITUTION AS IT RELATES TO THE RIGHT OF A PERSON CHARGED WITH A CRIMINAL OFFENCE TO BE ENTITLED TO A FAIR HEARING IN PUBLIC WITHIN A REASONABLE TIME
Section 36(4) of the 1999 Constitution states inter alia thus: “36(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.” Within a reasonable time as used in section 36(4) of the 1999 Constitution presuppose a time frame within the expectation of the ordinary man of this country as apposed to an indefinite period. It is implicit in the right to fair hearing within a reasonable time that hearing should be convicted and concluded within a definite period. An adjournment sine die of a criminal case is to my mind against the spirit of the 1999 Constitution. Here is a criminal case that could not proceed to hearing because the prosecution could not get its witnesses and as a result the case had to be adjourned several times with the charge of murder hanging on the neck of the Appellants like a sword of Damocles. According to Belgore JSC (as he then was) in ABACHA v. THE STATE (2002) 7 SC (part 1) at 9 – 24; “To face a trial is not a matter to be treated with levity, a trial somehow impinges on the liberty of the subject most especially when it involves a serious offence punishable with death or life imprisonment (IKOMI v. THE STATE paragraph EGBE v. THE STATE (1980) INCR, ALR 341 and ADEYEMI v. THE STATE (1991) 6 NWLR (pt. 195)1, 35. PER T. O. AWOTOYE J.C.A
INTERPRETATION OF STATUTE: PROVISION OF ORDER 16 RULES 4(1) OF THE COURT OF APPEAL RULES AS IT RELATES WHO CAN SIGN A NOTICE OF APPEAL IN A CRIMINAL APPEAL
A notice of appeal in a criminal appeal must be signed personally by the Appellant himself in line with Order 16 Rules 4(1) of the Court of Appeal Rules. Order 16 Rule 4 (1) (5) and 6 of the Rules read: “4(1) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant himself, except under the provision of paragraphs (5) and (6) of this Rules. (5) Where on the trial of a person entitled to appeal it has been contended that he was not responsible according to law for his actions on the ground that he was insane at the time the act was done or the omissioin made by him or that at the time of the trial he was of unsound mind and consequently incapable of making his defence, any notice required to be given and signed by the appellant himself may be given and signed by his legal representative. (6) In the case of a body corporate where any notice of other document is required to be signed by the appellant himself, it shall be sufficient compliance therewith if such notice or other document assigned by the secretary, clerk, manager, or legal representative, of such body corporate. PER T. O. AWOTOYE J.C.A
NOTICE OF APPEAL: EFFECT OF A DEFECTIVE NOTICE OF APPEAL
The notice of appeal is the foundation and substratum of every appeal. It must be untainted with defects as this would vitiate the whole appeal and deprive the appellate court of its jurisdiction. See UWAZURIKE V. A.G. FED. (2007) 8 NWLR (Pt. 1035) 1 SC; A.G FEDERATION V. GUARDIAN NEWSPAPERS LTD (1999) (Pt.618) 187 SC and ODUNZE V. NWOSU (2007) 13 NWLR (Pt.1050) 1 SC. PER T. O. AWOTOYE J.C.A
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. MANASSEH JAPHET
2. SUNDAY JUMBO BARAYE Appellant(s)
AND
1. THE STATE
2. KORITE KALANGO
3. AMABO KALANGO Respondent(s)
T. O. AWOTOYE J.C.A (Delivering the Leading Judgment): There are consolidated appeals against the interlocutory decisions of the High court of Rivers state presided over by the Hon. Justice B.A, Georgewill delivered on 8/3/2006 and 28/11/2006 respectively.
In the first ruling the trial judge dismissed the Appellants application holding that the proof of evidence disclosed a prima facie case against them and in the second ruling His Lordship adjourned the hearing of the information sine die.
The Appellants being dissatisfied with the above rulings filed their notices and grounds of appeal on 22/3/2006 and 11/12/2006 respectively.
By their notice and grounds of appeal filed on 22/3/2006 their grounds of appeal are stated as follows:-
GROUNDS OFAPPEAL
1. The learned trial judge erred in law in holding that:
“Now, applying these salient principles to the proof of evidence against the Accused persons and the statement of the offence charged, I am unable to see how the contentions of the 2nd and 3rd Accused’s counsel can maintained that there are no prima facie case against the 2nd and 3rd Accused persons.”
PARTICULARS OF ERROR.
A. A prima facie case is said to exist in a criminal trial, when all the ingredients required by law to sustain the charge are established or present in the proof of evidence and upon the evidence led by the prosecution or upon looking at the proof of evidence in a trial by information, the evidence adduced by the prosecution is sufficient to convict the accused person if not rebutted by the accused persons, and there is no other disqualifying feature affecting the statements in the proof, which was not the situation or position in the case in hand.
E. The ingredients of murder as required by Section 319 (1) of the Criminal Code Cap 37, Laws of Rivers State of Nigeria, 1999, were lacking in the proof of evidence in that there was no evidence in the proof that the persons allegedly killed are dead, and or that if dead, they died on the 12th of April 2004 as charged, the cause of their death, if dead, that it was the Appellants either on their own or in conjunction with other persons that killed the alleged persons or caused their death.
C. There was evidence from the PW2 that as the 12th of April 2004, the allegedly dead persons were seen and still alive.
2. The learned trial judge erred in law and upon the facts in holding that:
“I am therefore satisfied that the application to quash this charge is lacking in merit that there are insufficient grounds to call upon the 2nd and 3rd Accused persons to stand trial in this charge I need not say anything further on this issue as evidence has not been led by the state in support of its proof of evidence.”
PARTICULARS OF ERROR:
A. An application to quash a Count in an information is bound to succeed, where, going through the proof of evidence and taking all the statements of the witnesses and the accused together, the case of the prosecution appear manifestly unreliable or the statements of the witnesses materially contradict each other or the case or defence set up by the accused in their statements in the proof have not been negative by the evidence adduced in the proof by the prosecution.
B. In the case in hand, the statement by the 2nd prosecution witness – Dr. George Harry, who was with and treated one of the alleged deceased Onyema, of his gunshot wounds to the legs, that it was Ateke Tom that shot him and burned Marino on several parts of his body, was contradicted by the statements of the brothers of the 3rd Appellant and cousin to the 2nd Appellant – Sunday Inabriesiri and Tamunoene Sunday that it was the 3rd Appellant that carried out those acts.
C.The Statement of the 2nd and 3rd Appellants to the Police setting up alibis and adding that their relations the 3rd and 7th witnesses merely attempted to implicate them or rope them into the alleged murder matter out of pure malice and vendetta were not investigated by the Police or shown on the proof to be false.
D. There was no statement in the proof from Ateke Tom, a very vital witness and the stated owner or operator of the dungeon where the allegedly deceased persons were taken to, as to who took them there, by his own role in the shooting of Onyema on the legs or the fate of the said persons.
3. The learned trial judge erred in law in holding that:
“Finally Grounds 3 and 4 are not matters the Court can competently deal with at this stage.
They in themselves make it imperative that the evidence if the parties are heard to enable the Court determine these issues on the merit. On the authority of Abacha v. The State (supra) and Duru v. Nwosu (supra) I hold that this application lacks merit and it is hereby dismissed.”
PARTICULARS OF ERROR.
A. It is a cardinal principle of our jurisprudence that where there is a wrong there is a remedy and that the Court does not allow the law or themselves to be used as engines or instruments of fraud persecution and operation.
B. Every Superior Court of Record including the High Court of Rivers State has a duty to stop an abuse of its process in whatever manifestation including unwarranted or unjustified prosecution – more so, when our judicial system does not provide for damages or compensation to people wrongly prosecuted.
C. The proof of evidence as encapsulated in grounds 3 and 4 of the Application to quash the Charge against the Appellants, showed the charge and the count therein against the Appellants as an act of vendetta and malice against them by the 3rd and 7th witnesses,
D. Grounds 3 and 4 of the Application to quash showed the Charge, as against the Appellants, to be a gross abuse of Court process.
E. The said grounds vis-a-vis the charge and the court in question, also showed that there was no basis for proceeding with the trial, when the state of the proof of evidence, the state could not secure a conviction against the Appellants.
F. The Honourable trial court did not need to wait for a full order to ascertain if upon the state of the proof of evidence and the deficiencies therein, the prosecution ought to proceed in the first place.
G. The Hon. Trial Judge did not display a dispassionate consideration of the statements of the Appellants alongside those of the prosecution witnesses before or in drawing his conclusion above and consequently dismissing the Application.
As aforestated the Appellants filed another notice and grounds of appeal on 11/12/2006. The grounds of appeal are:-
“GROUNDS OF APPEAL
1. The learned trial judge eared in relying on the side note to Section 280 of the Criminal Procedure Law of Rivers State 2004 in holding that the word “Complainant” in the said Section meant the prosecutor or in this case the State and not the primarily aggrieved person who laid the complaint to the State that led to the charge or information and thereby refusing to strikeout the information as provided in the section.
PARTICULARS OF ERROR
In the interpretation of Statutes, it is to the section itself that the Court pays attention and most resort and not to the side note which is only called in aid where the words of the section, are unclear or ambiguous.
B. Where there is a conflict between a Section of a statute and the sides note to the section, it is the words of the Section that prevail.
C. By section 280 of the criminal procedure Law aforesaid it is provided that where the complainant or Prosecutor fails to appear in court when the case is called the will dismiss the charge while the side note thereto only refers to the prosecutor, thus creating a conflict and the words of the Section ought to have prevail in the circumstances.
D. If the learned trial judge had properly interpreted the section to include the witnesses or the person that lodged the complaint in the first instance – in this case Mrs. Esther Kalango, he would have dismissed or struck out the charge, since he did not appear in court since the arraignment of the Appellants and over fifteen adjournments thereafter.
E. The interpretation placed on Section 280 of CPL by the trial judge was too restrictive and clearly defeated the clear intention of the legislature and contrary to the statutory definition of complainant in Section 2 of the CPL.
F. It is queer and unjust to hold that where a Prosecutor has been coming to court but cannot produce his witnesses in court to or prove his case, the matter should be adjourned at his behest sine die, until whatever time, year or century he is able to get or produce his witnesses.
2. The learned trial judge erred in law in not dismissing or striking out the charge as applied for on the behalf of the Appellants, when neither the complainant nor any of the prosecution witnesses was present in court when the case was called or has ever been so present since the arraignment of the Appellants but rather adjourning it sine die, contrary to the provisions of the criminal Procedure Law of Rivers state and the 1999 Constitution of Nigeria.
PARTICULARS OF ERROR
A. By Section 36 of the 1999 Constitution of Nigeria, the Appellants as accused person where entitled to or had a fundamental right to fair hearing which included having the case against them disposed of within a reasonable time.
B. By Section 280 of the Criminal Procedure Law of Rivers State 2004, once the accused is present in Court and the compliant – meaning the person or witness who lodged the initial complaint to the Police or State and kicked the machinery into motion or witness for prosecution or the Prosecutor is absent; the Charge or information must be dismissed or struck out and the accused discharged.
C. There is no provision in the Criminal procedure Law of Rivers State for the adjournment of a charge or Criminal matter sine die as this will leave the charge or information hanging on the head of the Appellants ad infinitum and even if there is such a provision, there was no pending event for which it was adjourned.
D. Sentiments have no place in judicial proceedings and in every Charge or information pending before a court of law, both the prosecution and the accused are equal before the law and must be so treated.
E. In the instant case, since the arraignment of the Appellants in 2005 and in spite of over twenty (20) adjournments of the matter, the prosecution, represented by the Director of Public Prosecution was either absent from court or if present could not produce any of its eight (8) witnesses named in the proof of evidence to testify and therefore could not prove it’s case.
F. The Director of Public Prosecution, on behalf of the State, had informed the court that he could not lay hands on any of it’s witnesses and whereas he tried to explain the difficulty he was having regarding one of the named witnesses – Mrs. Esther Kalango, he proffered no explanation whatsoever as to why he could not call for produce any of the other witnesses.
G. There was no indication from the State as to when it will produce the witnesses and the conduct of the witnesses had shown their loss of interest in the charge or non availability at all and it was not the duty of the Court to wait for them.
H. Though the Hon. Judge has discretion as to adjournment of matters the exercise of his discretion in this case was injudicious and unlawful.
3. The Ruling of the Honourable trial court is unreasonable, unwarranted and cannot be supported having regard to the facts and circumstances of the case.”
In their brief of argument the Appellants through their counsel Chief M. B, R. Urombo formulated three issues for determination.
The issues are:-
“1. Whether in view of the counts of murder preferred against the Appellants on the Information, the Proof of Evidence in support thereof and upon which it was based, disclosed a prima facie case against them and if no, whether the learned trial judge was right and justified in dismissing their application to quash the Information and discharge them as required by law.
2. Whether the learned trial judge was right in holding that the word “Complainant” under Section 280 of the Criminal Procedure Law, Cap 38, Laws of Rivers State, 1999 meant the State prosecuting the matter and not the primarily aggrieved person/s that lodged the complaint with the Police and their witnesses.
3. Whether the learned trial judge properly exercised his discretion in this case by adjourning the Information or Charge against the Appellants sine die instead of striking it out, when the State could not produce any of its eight witnesses or lead evidence in proof of its case, after several adjournments for hearing.”
In arguing the appeal on 21/9/2010 Chief A. B. R Urornbo for Appellant adopted the brief of argument and urged the court to allow the appeal and discharge the accused persons. The Respondents did not file any brief of argument.
In the Appellants brief of argument the Chief A. B. R Urombo argued the formulated issues thus:
ISSUE NO. 1
He cited Section 36(s) of the 1999 Constitution and Section 138(1) and 2 of the Evidence Act and admitted that the answer was upon the prosecution to prove the offence with which the accused person was charged beyond reasonable doubt.
He referred to the following cases, TSIBOR v. STATE (2002) 2 SC. pt 2 110 at 122 – 123, UDO v. THE STATE (2001) 87 LRCN 1656 at 1659. He further referred to Section 286 of the Criminal Procedure Law of Rivers State of Nigeria in support. He submitted further that the proof of evidence in a brief on information must disclose a prima facie case against the accused otherwise it would be quashed. He cited ABACHA v. THE STATE (2002) 7 SC (PT. 1) at 9 – 24. He explained the meaning of prima facie case and relied on the decisions of the Supreme Court in AJIDAGBA v. I.G.P. (1958) SCNLR 60 and UBANATU VS. C.O.P. (2000) 74 LRCN 72 at 86.
He submitted that the statements of the witnesses for the prosecution together with that of the accused persons where attached to the proof must establish the following ingredients of murder:
(1) That a human being was killed.
(2) That the accused caused the death of the deceased.
(3) That the act of the accused(s) caused the death of the deceased and it was ventrally done to cause death or grievous bodily harm.
He added that all the above ingredients must co-exist before the accused was made to stand trial upon that information. He cited NWAEZE v. THE STATE: (1996) 2 SCNJ 42 at 50, ADAVA VS. THE STATE (2006) 2 SC. (Pt.2) 136 at 139 – 140.
He submitted that there was no evidence in the proof of evidence to the above effect.
He further contended that in the face of the clear statements of the PW 1, PW2, PW3 and PW7 on the fact that the alleged deceased persons were taken to Ateke – Tom’s camp or cell at Okirika where they were tortured by him Ateke Tom was vital witness the ought to have been called.
He argued that the prosecution merely wanted to rope the accused persons into the alleged murder case and urged the court to quash the information.
He concluded under the issue that the trial judge was wrong and unjust to have held thus
“I am therefore satisfied that the application to quash this charge is lacking in merit in that there are sufficient grounds to call upon the 2nd and 3rd accused persons to stand trial in the charge” He urged the court to set aside a reverse that finding.
ISSUE NO. 2
He submitted that the word “Complainant” under section 280 of the Criminal Procedure Law was not limited to the prosecutor but extended to the information and the witness to the prosecution and that in the absence of any of them in court on a stipulated date which rendered the case impossible of proceeding the trial court was bound to dismiss it not minding that the prosecutor was in court except sufficient reasons for the adjournment were adduced by him.
He referred to section 36 of the 1999 constitution and contended, that mere presence of a prosecutor without witnesses would work against the provision of the section. He referred to the following cases ADESAMOYE v. ADEWOLE (2000) 5 SC 124 at 176; FASAKIN FOODS NIG.LTD. v. SHOSANYA (2006) 4 SC (Pt.II) 204 at 209/210; CHIGBU v. TONIMAS NIG. LTD. (2006) 4 SC (Pt. II) 186 at 191.
ISSUE NO. 3.
Chief Urombo argued that though it was at the discretion of the court to adjourn or not to adjourn a matter being an exercise of discretion that must be exercised judicially and judiciously and that where this was not so done an appellate court had the legal competence to interfere by setting aside or annulling the exercise of that discretion by the court below. He cited EHHIDIMHEN v. MUSA (2000) 4 SC (Pt. II) 166 at 188/189 and OWNERS OF THE MV LUPEX v. NOCS LTD (2003) 6 SC (Pt. II) 62 at 71.
He finally submitted that the adjournment of this matter in the lower court sine die was unlawful and in breach of section 280 of the Criminal Procedure Law. He added that it was a clear case of want of diligent prosecution and the trial court ought to have dismissed the information when the witnesses were not available instead of adjourning sine die.
I have carefully considered the arguments of learned counsel for the Appellant.
What really happened in the lower court?
The Appellants were the 2nd and 3rd accused persons in the lower court and faced 3 count charges before the lower court which reads:
“STATEMENT OF OFFENCE _ 1ST COUNT
MURDER: Contrary to section 319(I) of the Criminal Code of Rivers State (Cap. 37, Laws of Rivers State of Nigeria, 1999).
PARTICULARS OF OFFENCE
KORITE KALANGO, MANASSEH JAPHET, SUNDAY IUMBO BARAYE, and others at large, on or about the 12th day of April, 2004, at Port Harcourt, within the Port Harcourt judicial Division, murdered Marino Chukwu.
STATEMENT OF OFFENCE -2ND COUNT
MURDER: Contrary to section 319(I) of the Criminal Code of Rivers State (Cap. 37, Laws of Rivers State of Nigeria, 1999).
PARTICULARS OF OFFENCE
KORITE KALANGO, MANASSEH JAPHET, SUNDAY JUMBO BARAYE, and others at large, on or about the 12th day of April, 2004, at Port Harcourt, within the Port Harcourt judicial Division, murdered Marino Chukwu.
STATEMENT OF OFFENCE – 3RD COUNT
SHOP-BREAKING: Contrary to section 413(1) of the Criminal Code of Rivers State (Cap. 37, Laws of Rivers State of Nigeria, 1999).
PARTICULARS OF OFFENCE
KORITE KALANGO, AMABO KALANGO and others at large, between sometime in June, 2004 and about the 6th day of July, 2004, at Choba, within the Port Harcourt judicial Division, broke and entered MRS IJEOMA EDITH KALANGO’S shop, situated at No. 36 NTA/Choba Road, Port Harcourt, and committed a felony therein to wit, Stealing and did steal from the aforesaid shop, household and personal properties of Mrs. Ijeoma Edith Kalango estimated at bout Three Million, Nine Hundred and Eighty Thousand Naira(N3, 980,000. 00).
Attached to the information sheet was the list of witnesses and their respective statements.
Mrs. Ijeoma Edith Kalango’s statement is among other things to the effect that on 12/4/2004 her two brothers Mr. Marine Chukwu aged 31 years who worked with GEO-Guest Schlumberger Port Harcourt and Mr. Onyema Chukwu 27 years who was a final year student in Oko polytechnic Anambara state were taken away by unknown gun-men. She stated that 5 days after the kidnap of her brothers she got a phone call from an unknown person, “who said he was a member of my late husband’s family that they want me to surrender all that belong to I and my late husband to the family or my brothers wll be killed and one out of the two my brothers was asked to speak to me which he did by Saying: – SISTER SURRENDER EVERYTHING TO THEM INCLUDING THE HOUSE YOU ARE STAYING, THEY SAY IF YOU FAIL, THEY WILL KILL US, KILL YOU KILL MAMA KILL STANLEY, KILL CHICHI and KILL HENRY and THEY WILL LEAVE OUR BLIND FATHER TO KILL HIMSELF AND THEY SAID POLICE CANNOT DO ANYTHING AND SAID THEY ARE TRAILING YOU.
It was at this point that I ran to the chief Kalango family by name Chief Robert Kalango and reported the matter to him, who told me in confidence, that without been told that he knows where the heater is coming form that he would advice that we go and meet with the family to find out their demand. They told me that they wanted everything that belong to I and their late brother, which i went with the chief and handed it over to them (1) documents of building in Bayelsa State (2) documents of buildings in Rivers State (3) car keys and particulars of 7 car (4) Bank cheque books, they locked and collected the keys to the apartment which I stay with my late husband before he died. Shortly after I had handed over the property to them Mr. Korite called me that I should make available the sum of N10,000,000 or that I should consider my brothers dead, he accepted the kidnap of my brothers and that he is being backed and supported by one Hon. Mike Youpele Kalango a member of the House of Representatives, Abuja and a brother to my late brother and he assured me that there is nothing I could do because Hon. Mike Youpele Kalango has promised to use federal power on me, out of fear I called him and pleaded with him to collect the Sum of N100,000,which he accepted and promised to release my brothers and later he called me to come alone for him to take me to where my brothers are but I did not accept to go since he said I should come alone”
Dr. George Harry’s statement is also there. He stated inter-alia that he saw the alleged deceased persons in Ateke -cell. He described how they were tortured. He stated “within that one week Mr. Ateke brought out Onyema and shot him with our bullets on each leg. They also brought out Marino and Ateke burnt his hair, armpit on both sides, his back carvicle, his laps on both sides and returned them to the cell asking them to say the truth. One day as I was fetching water inside the premises with four guards by my side, I met one of Ateke boys called Soboma whom I have helped before at University of Port Harcourt Teaching Hospital when he was brought with a gun shot wound. Mr. Soboma then asked me what I was doing there and I explained how I was brought there in the presence of Mr. Ateke. Mr. Soboma them instructed the guards there that nobody should put me inside the cell again or send me message. He gave them N200 to buy me mineral and bread to eat. Since then I was being kept outside the cell. One day Marino called me after Onyema had discussed with the second in command to Mr. Ateke called Mr. Sotonye (Assistant Officer or A/O) and told me that he will give me his sister’s telephone Nos. including her office numbers because since I was asked to stay outside, they believed that hopefully, I will be released before them. He said I should inform his sister that they are being detained at that place. Before that day, one of the Ateke boys called Mr. Korite who is a commander in his own zone used to come to the cell and interrogate Marino and Onyema. He used to beat them asking them to tell him the truth about where their sister landed properties, documents of the house she is staying and the One million naira that Marino confessed that his sister gave to him to put inside his own account for safety reasons because of what is happening in her husband’s family. Mr. Marino explained that there was a time somebody died in his sister’s husband’s family and nobody brought out money for the man’s burial. So, where his sister’s husband died, she gave him one million naira to keep, so that if her husband’s family refused to bring out money for his burial, she will use that money for his burial expenses. Then Korite asked him to bring out that money ‘(one million naira). One night, Mr. Korite after questioning Marino brought him out of the cell and gave him a handset to call his sister and tell her that they were in Ogoni Mr. Korite asked Mr. Marino to discuss with his sister and arrange with her how she will bring the documents and money and car keys to them before they will be released. Then Mr. Marino called his sister and spoke with his sister as Mr. Korite instructed him to do. They were standing in from of the cell door during these discussions. One day, Mr. Sotonye (A/O) called me and gave me shot-of drink. He told me that as I am about to be released, that I should go to Mr. Marino’s sister and collect the money N200.000.00 and document for landed properties and cars they already discussed with her on telephone to enable them release Mr. Marino and Mr. Onyema under the pretence of taking them to the hospital for treatment.”
He identified 1st Appellant as are of those he saw at Ateke camp.
The statement is that of Sunday Inabiesiri. He stated among other things thus:
“As we are in the kidnap camp or guard room on 12th April, 2004 two Ibo men, were brought to the camp or guard room by four men namely Mr. Jumbobaraye Sunday, Mr. Solomon Akuru, Mr. Achase Obeala and Mr. Manasseh Japhet. The two Ibo men were Mr. Onyema and Mr. Marino. As they were brought to the guard room, Mr. Jumbobaraye Sunday and Mr. Solomon Akuru shot four bullets each to the legs of Onyema, then after that one Mr. Korite camp in and said Mr. Onyema did not know much about the case, that it was Marino that know much about the case, there Mr. Korite took his pistol and shot at Mr. Marino legs. It was that the godfather came and told Mr. Korite to release the men, Mr. Korite told godfather that his brother, one Mr. Michael will not agree for their release, then godfather asked him who is Michael, it was there Mr. Korite told godfather that Mr. Michael is a law maker in Abuja, then godfather said he will like to talk with Mr. Michael, there Mr. Korite connected his brother and gave the phone to godfather to speak with his brother. They spoke for some time and at the end of the talk, godfather told Mr. Marino and Mr. Onyema that they are not going, order from above. Due to the gun shots and boring of fire on both of them, one Doctor George Harry was the one treating them in the guardroom before I left on 20th April, 2004. As I left the guardroom I and my junior brother Mr. Tamunoene Sunday went and looked for their sister and informed their sister of their whereabouts. When Mr. Clifford Sam Etetegwun heard that we have escaped from our captors he “Mr. Clifford Sam Etetegwun ASP” now gave money to killers to shoot us at anywhere they come across us.
Since then I and my junior brother has left Port Harcourt. I know Mr. Jumbobaraye Sunday, Mr. Solomon Akuru, Mr. Achase Obeala and Mr. Manasseh Japhet in person and both of us from Okrika and Andoni. I know Mr. Korite when he came to camp or guardroom to address Mr. Marino and Mr. Onyema that if their sister fails to bring the money and properties she took or stole, he (Mr. Korite) will kill them, but if their sister returned their brother’s money and properties, he (Mr. Korite) will release them. And Mr. Korite do visit the camp or guardroom every two days.”
He identified 2nd Appellant as are of the group in Ateke Camp Tamounene Sunday also made a statement. He stated inter-alia
“On Monday 12th April 2004 I saw my brother Jumbobaraye, Solomon and other boys march two boys into our cell I later know their names as Mr. Onyema and Mr. Marino from Choba Street, NTA road Port Harcourt. On Wednesday 14/4/04, Mr. Jumbobaraye, Solomon and three other boys that accompanied them on 12/4/04 when they brought Mr. Marino and Mr. Onyema, brought two boys, one is a native of Bille town in Kalabari while the second boy is a conductor and a native of Calabar. That same day, shot and killed those two boys in our presence at Ateke camp. On that same day, I saw one of the Mr. Ateke boys later known as Mr. Korite.
They opened cell door for him and he came inside the cell, He told Mr. Onyema and Mr. Marino saying “have you seen what happened to those two boys? That if their sister refused to bring his late brother’s properties, they will face that type of penalty for their sister’s action. Mr. Onyema started telling Mr. Korite that he had had no problem with him before, why these entire problem now. Then Mr. Korite told Mr.Onyema that his car he used to drive was bought with his late brother’s money stolen by Mrs. Kalango his sister. Mr. Onyema said no, that the car belongs to his girl-friend.
Then, Mr. Marino said that he does not know anything about this case. He said the matter is supposed to be a family matter and not that Mr. Korite will bring them to Mr. Ateke’s detention camp. Then Korite became angry and moved out of the cell. Two days later, I saw Mr. Solo and my younger brother Mr. Jumbobaraye, they opened our cell gate for them. They carne inside and started beating everybody inside the cell. They took Mr. Onyema and Marino out of the cell: They asked Onyema to stand facing the waterside and he did so. My brother Mr. Jumbobaraye shot Mr. Onyema with a pistol on his two feet.
He was commanded to walk to the cell and he was walking in pool of blood. They also asked Mr. Marino to stand like that too; Mr. Solo used fire with stick and burnt his head, chest arm-pit and back. He was crying and begging them. He was asked to move back to the cell and he did. Then Mr. Solo asked me whether I saw what happened to Mr. Marino and Mr. Onyema and said yes, He then said that me and my senior brother must pay N130,000.00 before he will release us from that detention.
On that same day, in the evening Mr. Ateke himself came to see Mr. Marino. He asked Mr. Marino why does he not want to tell the truth, Mr. Marino said he has told them the truth, that Mr. Ateke should invite Mrs. Kalango (his sister) to come’ to the detention camp. Mr. Ateke quickly invited Mr. Korite through his GSM handset. When Mr. Korite came, Mr. Ateke told Mr. Korite what Mr. Marino said about inviting his sister Mrs. Kalango to come and settle this matter. But Mr. Korite said no, because his senior brother in Abuja will not accept it. Then Mr. Ateke became angry and left the place as well as Mr. Korite. Later we introduce ourselves and exchanged addresses as well as our relatives addresses. We agreed that whoever that is first to be released should inform ‘our relations’ about our whereabouts. It was my senior brother Inabiesiri Sunday who told Mr. Solo to meet somebody who will give him some amount of money for our release. I do not know the person he sent him to collect the money. But later Mr. Solo sent for us and we started discussing with him. That day I came out to throw away our urine and feaces. I saw our mother’s new husband Mr. Clifford Sam Etetegwun ASP and his son popularly called Mr. Ben Clifford inside Mr. Ateke’s came discussing some of the boys work for Mr. Ateke. As Mr. Solo entered our cell, he called me and my senior brother Mr. Inabiesiri out of the cell. He asked us to go and fetch water but when we reach there, we should drop the buckets and enter motorcycle and go away. I said that if anybody stop us on the, we should say the Mr. Solo sent us message. That was how we got released from Mr. Ateke’s camp. I and my senior brother later went to Onyema’s sister Mr. Kalango and told her where her brothers are detained. I knew Mr. Korite inside Mr. Ateke’s camp but if I see him anywhere I can identify him. I can even do drama as he and other Ateke boys do act inside the camp if he denies that he does not know me again. My brother has just told me that Mr. Solo is on hospital admission at Mainland Clinic room 40, in Okrika town.”
I have also gone through the statements of the Appellants.
They denied any involvement in the murder of the alleged deceased persons.
Chief Urombo had contended that this information should have been quashed and the matter should not have been allowed to proceed to hearing as the proof of evidence did not disclose a prima facie case against the Accused/Appellants. What should a court consider in deciding whether an information discloses a prima facie case against an accused person?
1) An accused person should not be made to face trial that he should clearly not have faced from out set – HEMI v. THE STATE (1986) 3 NNLR (Pt. 28) 314; EGBE v. THE STATE (1980) 1 NLR ALR 341; OKOLI VS THE STATE (1992) 6 NWLR. (Pt. 247) 381; at 392 EMMA VS THE STATE INWLR (Pt. 479) 115, 121 and 122.
2) If the facts in the statements attached to information do not disclose prima facie case the indictment must be quashed -: See AJIDAGBA v. I.G P. (1958) SCN LR. 60 and OKORO v. THE STATE (1988) 12 SC (Pt. III) 83. See also section 2 of the Criminal Procedure Law of Rivers State on interpretation of proof of evidence.
3) The prosecution must submit along with the information all the facts that will reveal not only the commission of an offence but also the involvement of the accused in the commission of the said offence, sufficient to warrant the calling upon the accused to explain himself. See R. V. COKER & OTHERS 20 NLR 6 2; IKOMI V. THE STATE (1986) 3 NWLR (Pt 28) 340.
4) Can the content, of the statements filed with the information sustain the information? Should the statements be believed would they be sufficient to prove the case against the accused? See AJIBOYE V. THE STATE (1998) 1 NCLR 355, EKWUNUGO V. FRN (2008) VOL. 40 WRN 160 at 170.
5) At this stage, the trial court is not considering credibility of the witnesses as hearing has not commenced neither is it to consider the weight to be attached to the evidence sought to be adduced.
The pertinent question is, is there a good ground for proceeding to trial of the accused on the information before the court in respect of the offence alleged?
I shall consider the issue of whether or not the information should have been quashed in the above light.
For clarity’s sake let me summarise what can be elicited from the statement against the Appellants.
1) 1st Appellant called the complainant after the kidnap of her brothers that she should make available the sum of N10,000.00 consider his brothers dead.
2) Dr. George Harry saw the alleged deceased persons in Ateke cell when they were shot on the legs and tortured.
3) He saw that the 1st Appellant usually accompanied Mr. Ateke to the detention cell. He positively identified 1st Appellant is his 3rd statement.
4) Sunday Inabiesiri stated that the 1st Appellant told the alleged deceased persons that if their sister did not bring the money and properties he would kill them.
5) Tamunoene Sunday made statements that he saw how two boys were shot dead in Ateke Camp. He also heard the 1st Appellant when he said he would kill the alleged deceased person if their sister did not bring the properties.
6) He saw the 2nd Appellant and her senior brother Solo when they brought out the alleged deceased persons and shot them in the legs.
Can the above sustain the Information?
It is true nobody saw the alleged deceased persons die. It is true that the bodies of the alleged deceased person were not produced. There is however statement to the effect that the alleged deceased person were last seen with the Appellants and the said Ateke group. There is statement to the effect that the alleged deceased persons had gun shot wounds. There is statement that the said Ateke group shot and killed some other people. There is statement that the 1st Appellant threatened to kill the alleged deceased persons if their sister did not produce the money and properties demanded.
It is trite law that conviction for murder can be sustained in the absence of corpus delicti where there is strong direct evidence. See R V. SATI (1938) 4 WACA 10; EDIM V. THE STATE (1972) 4 SC 160; BABUGA V. THE STATE (1996) 7 NWLR (Pt. 460) 279 and R. V. ONUFREJIZYK (1955) 1 QB 39. See also ABANITA OKENDU UBANI V. THE STATE (2003) 18 NWLR (Pt. 851); (2003) 12 SC (Pt 1) 1. In Ubani’s case (supra) death was inferred from the facts that the deceased was last seen with the Appellants three years ago.
According to Edozie JSC on page 244 of the report.
“Having regard to the circumstances of this case particularly the fact that three years after the incident, the deceased has not been found and there was no explanation from his assailants as to his whereabout other than a bare denial of complicity in the crime, the inference is irresistible that he is dead; that it was the act of his assailants that cause his death and judging from the nature of the attack and the lethal weapons used, the attackers had the intention to kill or at least cause grievous bodily harm on the deceased
All the three ingredients of murder earlier enumerated having been established, the judgment of the trial court convicting the 1st and 2nd appellants and the court below affirming the conviction remain unassailable.”
In this case the alleged deceased people were last seen, with the Appellants more than one year before they were arraigned.
In view of the above I am of the considered view that the statements filed alongside the information can sustain the charge against the Appellants and the lower court was right to have refused to quash the charge and to have held that the application of chief Urombo in that regard lacked merit. Grounds 1 and 2 of the notice and grounds of appeal filed a 22/3/06 therefore fail.
Now to issue 2 and 3 as formulated by chief Urombo for the Appellants they read:
IN THE ALTERNATIVE
1. Whether the learned trial judge was right in holding that the word “Complainant” under Section 280 of the Criminal Procedure Law, Cap 38, Laws of Rivers State, 1999 meant the State prosecuting the matter and not the primarily aggrieved person’s that lodged the complaint with the Police and their witnesses.
3. Whether the learned trial judge properly exercised his discretion in this case by adjourning the Information or Charge against the Appellants sine die instead of striking it out, when the State could not procedure any of its eight witnesses or lead evidence in proof of its case, after several adjournments for hearing.”
I intend to reframe the two issues this way: – What is the meaning of complainant within the con of section 280 of the Criminal Procedure Law) AND
Was the learned trial judge right in the exercise of his discretion to adjourn the information sine die when the state could not produce any of its eight witnesses after several adjournment for hearing? shall take them together.
Section 280 of the criminal Procedure Law of cap 38 Laws of the Rivers State Nigeria 1999 reads.
“No Appearance of Prosecutor”
If subject to the provisions of section 100 of this Law when the case is called the defendant appears voluntarily in obedience to the summons or is brought before the court under a warrant and the complainant having, to the satisfaction of the court, had due notice of the time and place of hearing does not appear in person or in the manner authorized by any written law, the court shall dismiss the complaint unless the court having received a reasonable excuse for the non-appearance of the complaint or his representative or for other sufficient, reason think fit to adjourn the hearing of the same future day upon such terms as the court, may think just.”
Chief Urombo had urged this court to hold that the world “Complainant” under section 280 of the criminal Procedure Law was not limited to the prosecutor but extended to the information and the witnesses to the prosecution and that in the absence of any of them in court on a stipulated date which rendered the case impossible of proceeding the trial court was bound to dismiss it not minding that the prosecutor was in court except sufficient reasons for adjournment were adduced by him.
Learned counsel compared the section with section 2 of the Interpretation section of the Law which defines complaint as “the allegation that any named person has committed an offence made before magistrate for the purpose of moving him to due process under this law and complainant to include” any informant or prosecutor in any case relating to a summary conviction offence, he also reviewed the meaning of complainant in the light of section 35 of the 1999 Constitution which guarantees trial within a reasonable time.
I respectfully disagree Section 280 of the Criminal Procedure Law comes under Part 33 of the law which is on summary trial.
Section 280 of the criminal Procedure Law does not apply to trials in High Court on information. The word complainant has to do with the initiator of the process or charge. It derives from the word complaint which is an allegation leading to the commencement of the trial. The maker of the allegation is the complainant. Both the prosecutor and the informant are connected with the initiation of the charge or complaint. It cannot in my respectful view be overstretched to include “witness”. I am of the humble view that the lower court should not have relied on section 280 of the Criminal Procedure Law at all but should have invoked the provisions of the section 36 of the 1999 Constitution in disposing off of the case from the court. Section 36(4) of the 1999 Constitution states inter alia thus:
“36(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.”
Within a reasonable time as used in section 36(4) of the 1999 Constitution presuppose a time frame within the expectation of the ordinary man of this country as apposed to an indefinite period. It is implicit in the right to fair hearing within a reasonable time that hearing should be convicted and concluded within a definite period.
An adjournment sine die of a criminal case is to my mind against the spirit of the 1999 Constitution.
Here is a criminal case that could not proceed to hearing because the prosecution could not get its witnesses and as a result the case had to be adjourned several times with the charge of murder hanging on the neck of the Appellants like a sword of Damocles.
According to Belgore JSC (as he then was) in ABACHA v. THE STATE (2002) 7 SC (part 1) at 9 – 24; “To face a trial is not a matter to be treated with levity, a trial somehow impinges on the liberty of the subject most especially when it involves a serious offence punishable with death or life imprisonment (IKOMI v. THE STATE paragraph EGBE v. THE STATE (1980) INCR, ALR 341 and ADEYEMI v. THE STATE (1991) 6 NWLR (pt. 195)1, 35.
It needs be respectfully stressed that it is the responsibility of every judge to manage his court by preventing it from becoming a dumping ground for comatose cases which cause court congestion thereby hampering the speedy administration of justice.
The above comment notwithstanding the appeal appears fatally flawed and incurably defective. A notice of appeal in a criminal appeal must be signed personally by the Appellant himself in line with Order 16 Rules 4(1) of the Court of Appeal Rules. Order 16 Rule 4 (1) (5) and 6 of the Rules read:
“4(1) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant himself, except under the provision of paragraphs (5) and (6) of this Rules.
(5) Where on the trial of a person entitled to appeal it has been contended that he was not responsible according to law for his actions on the ground that he was insane at the time the act was done or the omissioin made by him or that at the time of the trial he was of unsound mind and consequently incapable of making his defence, any notice required to be given and signed by the appellant himself may be given and signed by his legal representative.
(6) In the case of a body corporate where any notice of other document is required to be signed by the appellant himself, it shall be sufficient compliance therewith if such notice or other document assigned by the secretary, clerk, manager, or legal representative, of such body corporate.
There are two notices of appeal in these consolidated appeals.
None was signed by the Appellant himself. Besides the second notice of appeal seeks to attack the decision of the lower court made on 28/11/2006. I have carefully gone through the records. No such decision existed.
The decisions of the lower court were taken on 8/3/2006 and 27/11/2006 respectively. These issues being on the initiating process cannot be swept under the carpet.
The notice of appeal is the foundation and substratum of every appeal. It must be untainted with defects as this would vitiate the whole appeal and deprive the appellate court of its jurisdiction. See UWAZURIKE V. A.G. FED. (2007) 8 NWLR (Pt. 1035) 1 SC; A.G FEDERATION V. GUARDIAN NEWSPAPERS LTD (1999) (Pt.618) 187 SC and ODUNZE V. NWOSU (2007) 13 NWLR (Pt.1050) 1 SC.
The provision of Order 4 Rules 4(1) of the Court of Appeal Rules (2002) which is pari materia with the provision of Order 16 Rule 4 (1) of the Court of Appeal Rules 2007 was considered by the Supreme Court in UWAZURIKE V. A.G. FED. (supra). Citing STATE VS. JAMMAL (1996) 9 NWLR (Pt. 473) 384 at 399 and DR FEMI ADEKANYE & 2 ORS VS. FEDERAL REPUBLIC OF NIGERIA (2005) 15 NWLR, (Pt. 949) 433 at 454 456 Ogbuagu JSC in the leading judgment said on page 15 of the report thus:
“In effect it is now beyond doubt, argument or speculation that:
(i) the provision of Order 4 Rule 4(1) of the said Rules is not one of the exceptions under sub rule 4(5) and (6) of the Rules.
(ii) that the provision is clear unambiguous and mandatory.
(iii) that Rules of court prima facie must be obeyed in compliance and not in breach.
(iv) that failure to comply with the provisions of the court of Appeal Rules will render the notice of Appeal filed fundamentally defective and incompetent and therefore is liable to be struck out.
(v) that the said Rules do not permit the filing of a joint notice of Appeal nor the signing of such notice by counsel for the appellants.”
I am not unmindful of the fact that this issue is being taken up suo motu by the court at judgment stage. I have also deeply considered the provision of Order 16 Rule 4 (2) of the Court of Appeal Rules which seeks to mitigate the mandatoriness of Order 16 Rule 4(1) of the same Rules. I have also considered the decision by the Supreme Court in IKPASA V. THE STATE (1981) 9 SC 7 on this issue.
However even if this issue was not taken up by this court this appeal would still have failed in part for reasons earlier stated.
In the light of the above, I strike out the two notices of appeal on ground of incompetence.
The appeals are accordingly struck out.
M. D. MUHAMMAD, J.C.A: I have read in advance the leading judgment of my learned brother AWOTOYE JCA, and agree with his reasonings and conclusions therein. This court can only assume jurisdiction in respect of a criminal appeal if and only if the notice of appeal, as provided for under Order 16 rule 4(1) of the Court of Appeal Rules, is signed personally by the Accused himself. In the instant appeal where both notice; are not so signed, the two are incompetent and can not kick start the instant appeals. See: ADTEKANYE & ORS V. FEDERAL REPUBLIC Of NIGERIA (2005) 15 NWLR (Pt. 949) 433 at 455 – 456.
The defects in the purported Notices of Appeal are crucial and fundamental resulting in the incompetence of the appeals. In the absence of competent Notice of Appeal this court lacks the vires to consider any issues purportedly distilled from the grounds in the incompetent notices. Accordingly, I join my learned brother in declining jurisdiction following the incompetence of the appeals before us. I strike out both notices as well.
EJEMBI EKO, J.C.A: I read in draft the judgment just delivered by my learned brother, T.O. AWOTOYE, JCA in the two consolidated appeals. The two appeals are respectively the appeal filed on 22nd March, 2006 against the ruling of B.A. Georgewill, J on 8th March, 2006 (pages 34 – 37 of the Record), and the appeal filed on 11th December, 2006 against another ruling of B.A. Georgewill, J allegedly delivered on 28th November, 2006 (pages 66 – 69 of the Record). Issue 1, formulated at page 3 of the Appellants’ Brief, is the only issue distilled from the appeal filed on 22nd March, 2006. Issues 2 and 3 are distilled from the appeal filed on 11th December, 2006.
The appeal filed on 11th December, 2006, in my considered opinion, is incompetent. The appeal purportedly is against the “Ruling of the High court of Rivers State presided over by Hon, Justice B.A. Georgewill, delivered on the 28th day of November, 2006.” It is trite that parties and this court are bound by the Record of appeal.
The Record of appeal at pages 59 – 61 shown that on Thursday 23rd November, 2006 arguments were taken from the counsel namely: Chief Urombo, Ayemwenre Esq. and Godwins Esq., on whether under section 40 of the Constitution and section 280 CPL upon the absence in court of the prosecutor the criminal charges against the Appellants should be dismissed. The learned trial Judge at the close of the arguments by counsel ordered that “this case (be) adjourned to 27.11. 2006 for Ruling.” The Ruling was delivered, as ordered, on Monday 27th November, 2006. See pages 61 – 65 of the Record. The Record does not show that there was any proceeding, albeit a ruling, on 28th November, 2006. There was infact no ruling on 28th November, 2006 to be appealed, or that any person would be aggrieved with.
Section 24 (1) of the Court of Appeal Act states that any person who, desires to appeal to the court of Appeal “shall give notice of appeal – in such a manner as may be directed by the rules, of this court. By order 6, Rule 2(1) and order 16 Rule 3 the court of Appeal Rules 2007 all appeals to this Court shall be by way of rehearing and shall be brought by notice of appeal which shall set forth grounds of appeal and also stating whether it is the whole or part only of the decision of the court below that is complained of. See also Form 3 in the First Schedule and criminal Form 3 in the Second Schedule to the court of Appeal Rules. It is therefore mandatory that a notice of appeal must be directed only against an existing, and not a phantom, decision/order of the court below. The notice of appeal is an originating process. The appeal it initiates can only be said to have been properly brought if it was initiated by due process of law. See MADUKOLU v, NKEMDILIM (1962) 1 ALL NLR 587 at page 593.
An incompetent process, as the instant notice of appeal, deprives the court of jurisdiction or competence to adjudicate on it. See UWAZURUIKE v. A.G. (F) (2007) B NWLR [pt.103s] I at page 17
Satisfied, as I am, that the notice of appeal filed on 11th December, 2006 against the phantom decision or ruling of B.A, Georgewill, J is incompetent, like the appeal it purportedly originated; I do not have any hesitation striking it out. The said notice of appeal is hereby struck out. Consequently, all arguments canvassed under issues 2 and 3 in the Appellants Brief of Argument shall be, and are hereby, discountenanced.
No doubt this is a criminal appeal. The notice of appeal, under order 16 Rule 4 (r) “shall be signed by the appellant himself” unless the exceptional circumstances under order 16 Rule 4(5) and (6) exist. The notice of appeal at pages 66 – 69 of the Record was not signed by any Appellant but by Appellants’ counsel, Chief M.B.R. Urombo, JP. The provision to order 16 Rule 2 relaxes the rule as to strict compliance with order 16 Rules 3 (1) & (2) and 4(1) “in the interest of justice and for good and sufficient cause shown.” There is however no good and sufficient cause shown for the defective notice of appeal to be entertained.
The lead judgment has extensively dealt with Issue 1: that is; whether there is sufficient evidence in the proofs of evidence to sustain a prima facie case against the Appellants. The definition of a prima facie case, contained in the decision of Abbot F.J in AJIDAGBA v. IG.P. (1958) 3 FSC 5 at page 6 which has been adopted and applied by the supreme court in recent cases of TONGO v. C.O.P. (2007) 30 NSCQR 180 at pages 191 – 193 (per Oguntade JSC) and NYAME v. FRN (2010) 42.1 NSCQR 45 at page 84 (per Adekeye, JSC), is that there is ground for proceeding and that it is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty. According to these authorities, evidence discloses a prima facie case when it is such that if it is uncontradicted and believed it is sufficient to prove the case against the accused.
Counsel for the Appellants made so much fuss about nobody seeing the deceased persons die, and that their bodies were not found. This is about the same argument in MOSES JUA v. TH E STATE (2010 41.2 NSCQR 758 wherein at page 792 Nike Tobi JSC held that it is every case of murder, or culpable homicide, punishable with death that is proved by eye witnesses, and that there can be conviction if there exists cogent and compelling circumstantial evidence to the fact that the accused killed the victim.
On whether there can be conviction in the absence of corpus delicti, the law is settled that a conviction for murder or culpable homicide punishable with death can be secured in the absence of corpus delicti where there is positive evidence that the victim had died. See MOSES JUA v. THE STATE (supra), BABUGA v. THE STATE (1996) 7 NWLR [pt.460] 279 at 296.
I hereby adopt the consequential orders in the lead judgment of my learned brother, T. O. Awotoye, JCA.
Appearances
Chief M. B R UromboFor Appellant
AND
Respondents absent but servedFor Respondent
