NDENUJUO v. STATE (2020)

NDENUJUO v. STATE

(2020)LCN/14157(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, May 28, 2020

CA/OW/457C/2018

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Between

OKECHUKWU NDENUJUO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

ELEMENTS TO ESTABLISH THE OFFENCE OF MURDER

In establishing a case of murder, three main elements must be proved. They must be cumulatively established, they are:
1. That the deceased had died
2. That the death of the deceased was caused by the accused and
3. That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was it probable consequence. SOLOMON ADEKUNLE VS. STATE (2006) 14 NWLR (PART 1000) 717.
These ingredients be proved beyond reasonable doubt. PER PEMU, J.C.A.

WHETHER OR NOT WHERE DIRECT EVIDENCE IS NOT AVAILABLE IN CRIMINAL TRIALS, CIRCUMSTANTIAL EVIDENCE CAN BE ADMISSBLE

Where direct evidence is not available, circumstantial evidence, cogent, pointing directly, irresistibly and unequivocally and compellingly at the accused is admissible – OGBA VS STATE 1992 LPELR – 2273 SC; ABOKOKUYANRO VS STATE (2016) LPELR – 40107 SC. PER PEMU, J.C.A.

THE DIFFERENCE IN THE APPROACH OF EVALUATION EVIDENCE IN CIVIL AND CRIMINAL CASES

In evaluating evidence in criminal matters, in IBRAHIM VS STATE (1991) LPELR – 1404 SC, it was held that the basic difference in the approach of evaluation of evidence in civil and criminal cases.
In civil cases, the question as to weight of the evidence. The enquiry is which of the two evidence on as issue outweigh the other to ascertain this, they are placed on an imaginary scale and weighed together to find out which of them preponderates.
But in criminal cases, the issue of preponderance of evidence does not really arise, as the question is that whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the Trial Judge that is the end of the matter provided of cause that is manifest that they are given due consideration to the evidence by or on behalf of defence. He needs not to weigh them on balance. PER PEMU, J.C.A.

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Imo State High Court sitting at Mgbidi Imo State and delivered on the 13th of June, 2018 in Charge No. HOM/9C/2014. In the judgment the Appellant was convicted for the offence of murder of one Ifeanyi Jonas Onumonu and was sentenced to death. Pages 92 – 113 of the Record of Appeal.

FACTS LEADING TO THIS APPEAL
The Appellant Okechukwu Ndenujuo was charged to Court for the murder of one Ifeanyi Jonas Onumonu, an offence contrary to the provisions of Section 319 (1) of the Criminal Code, Cap 30, Vol. 11, Law of Eastern Region of Nigeria 1963, and applicable in Imo State.

He was charged for shooting the diseased with a gun on the 11th of January, 2014, with others at large, at Umuokparaoma Ozara in Oru-West Local Government Area of Imo State.

According to the Appellant, prior to the allegation of murder against him, he and one Chinedu Onumonu PW1 had some problems as a result of the Appellants sister called Udoka. PW1 had married Udoka against the Appellant’s father’s wish before he died.

After he died, however

PW1 married Udoka who subsequently died. The late Udoka had been managing her elder brother’s China business. The Appellant and his siblings alleged PW1’s manipulation of Udoka in her life time, and spending Udoka’s brother money.

The Appellant and his siblings accused the PW1 of the death of Udoka. PW1 lodged a complaint to the Police at Orlu Police Station against the Appellant. The Appellant reported PW1 to the Anambra State Police Headquarters in Awka, which arrested PW1 and some of his family members. PW1 then took the matter to the AIG’s Office Zone 9 Umuahia and parties were told to settle the matter out of Court.

PW1 then instituted a case against the Appellant and his family members at the High Court Mgbidi for breach of his Fundamental Human Rights. While the case was pending the alleged armed robbery which led to the murder of the deceased took place. The deceased was the younger brother of PW1.

The Appellant, upon conclusion of the matter in Court was convicted and sentenced for murder accordingly.

The Appellant in desirous of appealing this decision and filed an original Notice of Appeal on the 19th of

June, 2018 – Pages 114 – 117.

The Notice of Appeal was deemed amended on the 17th June, 2019 with four (4) Grounds of Appeal. The Appellant filed his Brief of Argument on the 15th April, 2019. It is settled by Chief I.A. Adedipe SAN. The Respondent’s Brief of Argument was filed on the 20th of September, 2019. But same was deemed filed on the 28th April, 2020. It is settled by M.C Jezie Esq.
A Reply Brief was filed on the 10th October, 2019, but same was deemed filed on the 28th of April, 2020.

On the 28th day of the April, 2020 Counsel adopted the respective Briefs of Argument.

The Appellant distilled a sole issue for determination for the Grounds of Appeal which is
“WHETHER HAVING REGARD TO THE QUALITY OF THE EVIDENCE ADDUCED BY THE PROSECUTION THE LEARNED TRIAL JUDGE WAS RIGHT IN CONVICTING THE APPELLANT FOR THE OFFENCE OF MURDER.”

The Respondent distilled two (2) issues for determination for the Grounds of Appeal they are:
“1. WHETHER THERE IS ANY MATERIAL CONTRADICTION IN THE EVIDENCE OF PW1 STRONG ENOUGH TO HAVE SWAY THE JUDGMENT OF THE LOWER COURT IN FAVOUR OF THE APPELLANT.
2. WHETHER

PW1 IS A TAINTED WITNESS.”

I shall consider this appeal based on the Appellant’s sole issue for consideration which in my view may cover the whole field as it affects the issue proffered for resolution by the Respondent.

SOLE ISSUE: the Appellant submits that to succeed in establishing a charge of murder the law is trite that the following must be proved viz:
1. That the Accused person killed the deceased.
2. That the killing was unlawful and
3. That the Accused willingly killed the deceased under one or the other of the six circumstances enumerated in Section 316 of the Criminal Code.
That the prosecution called four witnesses and tendered 7 exhibits.

That the Court below had rejected the evidence of the PW2 for being unreliable. That PW1 was an eye witness and the Court below relied heavily on his evidence, in convicting the Appellant. He submits that the testimony of the PW1 is unreliable by the reason of material contradictions.

Submits that the two extra judicial statements of PW1 as well as his oral testimony are contradictory as it relates to material issues as it pertains to the identification and

involvement of the Appellant in the murder.

RESOLUTION
It seems to me that the Appellant and prosecution witnesses PW1 and PW2 had been acquainted with one another, and indeed there had been a family feud between them. PW1 had been married to the Appellants younger sister but she died unfortunately at child birth. The family of the PW1’s late wife had allegedly threatened to settle scores with the family of PW1.

PW1 is Chinedu Onumonu. He testified at pages 28 – 34 of the Record of Appeal. He knows the Appellant. Testifying on the 5th of May, 2016 he stated that on the 11th of January, 2014, at about 8pm, his brothers Donatus Onumonu and Michael Onumuno were returning home to their home in their Lexus Jeep they parked in front of their home and waited for the gate to be opened. He was in the house and when they horned for the gate to be opened, he heard it and ran to the gate to see who was there upon getting to the gate, he heard some noise outside the gate followed by a gun shot.

He peeped through the hole of the gate to see and from there he could see a vehicle belonging to his brother. The Lexus jeep was dark in colour while

the Highlander jeep packed in front of the Lexus jeep.
He saw some boys robbing his brothers at gun point.

As the robbery went on he looked closely to see if he could recognize any of the robbers but he could not.

When he looked closely at the Highlander jeep, he recognized the accused person facially. That the accused person told the robbers to leave Donatus and Michael, as they are not the people they came for that rather, they came for Chinedu Onumonu and Ifeanyi Jonas Onumonu who is now deceased.

As this was going on the deceased appeared on the scene and was shot by the accused after he was identified to the other robbers.
The accused after shooting the deceased said “I have gotten what he wanted.”
The armed robber and the other robbers drove off in the two cars.

He identified the accused person because of the light from the Lexus jeep, which was on as well as a lighted bulb which was on the fence in his compound, where they sell water. This illuminated the compound where they are.

His brothers invited the Police to the scene of the incident. The deceased who was in a critical condition was rushed to

the hospital for treatment.

The following day he was transferred to Orlu Teaching Hospital where he died that the Lexus jeep was not recovered.

He made statement to the Police on the 14th of January, 2014. Under cross-examination, he married a sister to the Appellant. That the Appellant had threatened to kill him or any member of his family because they were responsible for the death of the deceased sister Udoka.

PW1 made a statement to the Police on the 11th of January, 2014. His statement was corroborated in all materials particularly by his evidence in Court.

Pw2 is Donatus Onumonu. A younger brother to the deceased. He corroborated the evidence of pw1 that those men came to their home on the date in question. One of the men who did not come out of the vehicle instructed the one who came out to leave him and Michael because the person they came for were Chinedu Onumonu and Ifeanyi Jonas Onumonu (the deceased).

That when Jonas Onumonu was coming back to the house, that one who was in the vehicle and (who gave instruction that the men should leave him and Michael because the person they came for are Chinedu Onumonu and Jonas Onumonu) saw

when Jonas Onumonu was coming, he came out of the car. He told his colleagues that Jonas Onumonu was one of the two person they came for. That after making this statement, he drew out his gun and shot Jonas Onumonu, entered their vehicle and left.

He corroborated the evidence of PW1, as to how the Police was invited after the incident and the deceased was rushed to the Hospital where he died after being transferred to another Hospital on the 13th of January, 2014.

PW2 said he can recognize the face of the Appellant as the person who fired the shot on Jonas Onumonu which later killed him. He was able to recognize the face of the Appellant because of the reflection of the vehicle light which was shining on the gate. There was also light mounted on their house fence which was on that night. He can also recognize the faces of the other robbers. Pages 39 – 41 of the Record of Appeal.

Answering questions put to him in cross-examination he stated that the Appellant and members of his family believed that it was PW1 who killed Udoka his sister.

PW3 – Ojareri Evans the investigating Police Officers testified that as a result of his

investigation he discovered that before the Appellant was arrested, he had problems with the complainant over the death of the sister of the Appellant for which the Appellant had vowed to retaliate by killing somebody from the complainant’s family.
That an eyewitness saw the Appellant at the scene of crime and identified him.

PW4 Dr. Onwukamuche Michael Emeka, medical practitioner, a consultant, histopathologist at Nnamdi Azikiwe University Teaching Hospital Nnewi.
Also works with the Imo State University Teaching Hospital on part times basis, as Hospital consultant.

He carried out a postmortem examination on the body of Ifeanyi Jonas Onumonu, after being identify by Pw1 and Pw3. This was on the 7th of March, 2014. On his body were three entry wounds. There was evidence of shock secondary to severe blood loss that the most likely cause of wounds are gun shots. He tendered Exhibit “F” doctor’s report. The postmortem took place about two months after the death of the deceased.

He did believe that the only cause of the death of the deceased was as a result of gun shots.

The Appellant was charged with murder

contrary to Section 30, Vol. II Laws of Eastern Nigeria 1963 as applicable in Imo State of Nigeria.

That Okechukwu Basil Ndinujuo and others still at large on or about the 11th day of January, 2014 at Umuokparaoma Ozara in Oru-West L.G.A within the Oru Judicial Division did murder one Ifeanyi Jonas Onumonu by shooting him with gun – page 3 of the Record of Appeal.

The Appellant testified on the 25th January, 2018. He said he knows PW1, but that he does not know him very well. He did not support the relationship of PW1 with his late sister Udoka.

When he learnt that Udoka was pregnant for PW1, he

asked him to come perform the marriage rites as their mother was a staunch Catholic.
He had warned Udoka not to allow PW1 to meddle in her brother’s business.

That on 8th May, 2013, he got a call from PW1 that Udoka had an attack. He requested that he sends the sum of N200,000 to him to enable him take Udoka to the Hospital to arrest her high blood pressure. He refused and warned PW1 not to take Udoka for surgery.
Udoka died. He knows the deceased.

PW1 was to swear on oath that he was not responsible for the death of Udoka, but he did not instead he went to report his family to the Police at Orlu.

He testified about the long standing feud between his family and PW1’s family over Udoka’s matter. There were reports to the Police and Counter reports. Arrest and filing of Fundamental Right action.
He said he was informed about the death of the deceased.

The Appellant said nothing about where he was on the night of the incident. He did not say when last he saw the deceased and his siblings.
He dealt more on the feud the two factions.

In criminal matters, it is trite that a trial Judge has a duty to

consider all the evidence before him when the guilt of the accused person must as a matter of law be proved beyond reasonable doubt. –ADAMU & ORS VS STATE (1991) LPELR – 73 (SC), Section 138 (1) Evidence Act, Cap 112 LFN. 1990. Of course, the justice of a case and statutory requirement will not be met if the trial Court considers one side of the case only. It is expected that adequate consideration be given to both sides. In discharging the duty, the Judge must evaluate all the evidence. It is not the justice of a case if a Judge fails to evaluate the evidence.
To say that he believes one side and disbelieves the other is not enough.
He must give logical reason for his belief or disbelief as the case may be.
Judges differ in their style of writing. Some Judges evaluate evidence witness by witness, some issues by issues with the link of each witness with the issue and then arrive at a conclusion.
Whichever style a Judge is used is used to or adopt, the essential thing is that he considers all the evidence before him by evaluation before arriving at his conclusion which is the finding. The mere fact that he first

evaluates the evidence of the prosecution before adverting to that of the defence is not evidence of bias or wrong evaluation.
What the law requires is for a Judge to evaluate all the evidence before him, and that suffices in law.

A painstaking look at the judgment of the Court below, they picked how painstakingly the Court evaluated the evidence before him which encompasses the evidence of the prosecution, that of the defence and the exhibits before Court.

It seems to me that the prosecution presented its case, by proving in my view that PW1 positively identified the Appellant as the person who shot the deceased on the in question. The deceased later died of the wounds he sustained from the gun shots. PW4 testified and tendered the medical report Exhibit “F” which states that the wounds sustained by the deceased was consistence with gun shots.

PW1 said he was able to see the Appellant shoot the deceased by virtue of the light which shone from the vehicle the robbers brought and light from the bulb which shone from his compound. This evidence was not shaken under cross-examination.

The evidence of PW4 and Exhibit

“F” were not challenged under cross-examination.

It is trite that the prosecution can secure a conviction by calling only one witness. It is not necessary to call a host of witnesses.
The Appellant was at the scene of crime.
PW1 recognized him and indeed his voice on that fateful night.

Indeed PW1 did say that it was the Appellant who told the other culprits to leave Donatus Onumonu and Michael Onumonu because they are not the target. That he said they came rather for Chinedu Onumonu and Ifeanyi Onumonu.
In his statement to the Police PW1 did state that he recognized the voice of the Appellant at the scene of crime (Exhibit A & B).

The feud between the raving parties which culminated in the death of Udoka the late sister to the Appellant and wife to PW1 shows that the parties had been interacting leading to this incident.

DW1 testified that the relationship between PW1 and Udoka did not go down well with his family and the late father of Udoka. The family of the Appellant believed that PW1 while maintaining his relationship with Udoka misappropriated the money of Udoka’s brother Chidubem who is a brother

to the Appellant too.

The Appellant was not happy that PW1 impregnated his sister and the subsequent death of his sister Udoka.

In fact the Appellant and his brothers had sought to arrest detain and prosecute PW1 for complicity and murder of Udoka vide a petition of 20th July, 2013 to the Commissioner of Police, Anambra State Police Command.

Exhibit “A” shows that the Appellant threatened Chinedu Onumonu and family with a shot gun when they went to officially report the death of their sister Udoka. He in fact threatened to kill three of his brothers before Udoka’s burial.

As rightly cleared by the Court below, the Appellant did not disclose to Court, or in his statement where he was on the night the incident i.e. the 11th of January, 2014.
Regarding the evidence of PW2 Donatus Onumonu, the Court below had this to say inter alia:
“The evidence of PW2 Donatus Onumonu that he could identify the accused person in the scene of crime is not convincing having regard to his earlier statement to the Police – Exhibit “C” in which he stated that he did not know the armed robbers and would not identify

them if seen. This is understandable since evidence in this case shows that he lives abroad but merely came home when the incident occurred.
I will therefore not act on the evidence of this witness in my evaluation of the evidence of the prosecution.”

I am of the view that the unimpeachable evidence and narration of the PW1 is enough to pin the Appellant to the crime.

PW1 narrated how he saw and heard the utterances of the Appellant. How it was the Appellant who chose who to kill and in fact killed the deceased.

He testified that he could identify the Appellant through light even through the incident took at night this evidence remain unimpeached.

The Appellant’s evidence leaves much to be desired. All he stated was about the feud that existed between his family and PW1. As earlier observed he did not tell Court where he was at the night of the incident. Neither did he call any witness to state where he was on the night of the incident.

It is my view that from the direct evidence and circumstantial evidence available, the Appellant and no one else is the one who killed the deceased. All circumstance point irresistibly at him

and none other.

The fact that after the shooting of the deceased, the Appellant was heard to say that he and the other armed men should leave the scene as they have gotten one of the person they wanted (evidence which remain uncontradicted) shows that the Appellant’s act was premeditated intentional and with knowledge that death and grievous bodily harm was the probable consequence of his action.

All the evidence of the prosecution remain unimpeached. From the direct and circumstantial evidence before the Court below, I am of the view that the prosecution has proved its case beyond reasonable doubt against the Appellant for the offence of murder.

The Court below evaluated the evidence before it thoroughly and it was right to have convicted the Appellant for murder thereby sentencing him to death.
The sole issue is resolved in favour of the Respondent and against the Appellant.
The Appeal fails and same is hereby dismissed.

The judgment of the High Court of Imo State, Holden at Mgbidi and delivered on the 13th of June, 2018, convicting the Appellant for the offence of murder, thereby sentencing him to death is hereby affirmed.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the opportunity to read in draft, the lead Judgment of my learned Brother R. N PEMU, JCA.
I agree with her reasoning and conclusion. This appeal is unmeritorious and I also dismiss same. The Judgment of the Trial Court is affirmed.

ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read in advance, a copy of the lead Judgment just delivered by my learned Brother, RITA N. PEMU, JCA, dismissing this appeal. I agree with and adopt as mine the reasoning and conclusions.

The appeal is without merit. I also dismiss this appeal and abide by the orders in the lead Judgment.

Appearances:

Chief I. A. Adedipe SAN, with him, Ayodeji Adedipe Esq., Donald Atogbo Esq. and Babatunde Fasuyi Esq.
For Appellant(s)

M.C Ijezie Esq. For Respondent(s)