UCHENDU v. STATE
(2020)LCN/15654(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, May 28, 2020
CA/OW/5C/2018
Before Our Lordships:
ChiomaEgondu Nwosu-Iheme Justice of the Court of Appeal
Rita NosakharePemu Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Between
CHINEDU UCHENDU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
THE ELEMENTARY PRINCIPLE OF BEING BOUND BY CONTENTS OF THE RECORD OF APPEAL
In BAMIDELE PATRICK V. THE STATE (2018) LPELR-43862 (SC) per Augie, JSC at pages 31 — 32 paras E— B held:
“It is an elementary principle that the Court, the parties and counsel are bound by Contents of the record of appeal, which is presumed correct until the contrary is proved; no Court has jurisdiction to go outside the record to draw conclusions that are not supported by it”.
It is therefore not correct as argued by learned counsel for the Appellant that Exhibits G and K were erroneously expunged by the trial Court. The said Exhibits were expunged as prayed by counsel. It is noteworthy that counsel that made the application to haveExhibits G and K expunged did not appeal against the Ruling of the trial Court expunging the said Exhibit G. This is therefore not the appropriate circumstance to invoke Order 4 Rules 3 — 5, of the Rules of this Court. CHIOMA NWOSU-IHEME, J.C.A.
THE OFFENCE OF CONSPIRACY BEING DIFFICULT TO PROVE
On the issue of conspiracy, it is trite that the offence of conspiracy is difficult to prove. This is so because it is often contrived in secrecy. Circumstantial evidence is therefore often used to point to the fact that the conspirators had agreed on the plan to commit the crime. There must therefore be an act done in the open to justify the inference of conspiracy, The offence of conspiracy is said to have taken place when people have acted by agreement or in concert.
What is important in the offence of conspiracy is common intention. CHIOMA NWOSU-IHEME, J.C.A.
THE ACQUITAL OF AN ACCUSED PERSON DOES NOT AUTOMATICALLY TRANSLATE TO THE ACQUITTAL OF THE CO-ACCUSED
It is therefore not the law that the acquittal of an accused person automatically translates to the acquittal of a co-accused person/persons. Records show that evidence led in respect of them are not interwoven and therefore easily separable and the trial Court was faultless to have separatedthem. It is not the law that once an accused person is discharged and acquitted, the co-accused must as a matter of course be discharged and acquitted also. It depends on the facts of the case before the Court. Each of the accused persons’ case will be dealt with and determined on its own merit. CHIOMA NWOSU-IHEME, J.C.A.
THE SUCESSS IN A MURDER CASE IS DEPENDENT ON THE DECEASED BEEN DEAD AND THE INTENTION
To succeed in a charge of murder, the prosecution must establish that the deceased is dead, that the act or omission of the accused which caused the death of the deceased was unlawful and must have been intentional with knowledge that death Or grievous bodily harm was its probable consequence. See ABOGEDE V. STATE (1996) 5 NWLR (PT.448) 270 PHILIP OMOGODO V. THE STATE (1981) 5 SC 5 at 26 – 27. THE STATE V. JOHN OGBUBUNJO 2001 3 SCM 119 at 123 and JAMES OBUBA KALU V. STATE (1993) 3 NWLR (PT. 279) 20 at 30. CHIOMA NWOSU-IHEME, J.C.A.
CHIOMA NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal was arraigned with three others before the High Court of Justice Abia State, sitting at Umuahia and Presided over by K. O. Wosu, J, on an information of a two Court change of Conspiracy Contrary to Section 324 of the Criminal Code Cap. 30 Vol. Il Laws of Eastern Nigeria 1963 applicable to Abia State and ii. Murder Contrary to Section 319 (1) of the same Criminal Code.
In a considered judgment delivered on the 8th of May, 2015, the learned trial judge convicted the Appellant and two others sentenced them to death while the second accused was discharged and acquitted. This appeal is predicated on the said judgment.
SUMMARY OF FACTS:
The case on the prosecution as presented at the trial Court was that on the 7th day of December, 2006 the Appellant and two other convicts who are members of professor Vincent Uchendu’s family (the deceased), disguised as Mobile Policemen and shot the deceased Professor Vincent Uchendu dead in his house at UmuerimNsirimo Umuahia Abia State and made away with some valuable properties. They wereidentified by witnesses who were family members.
The wife of the deceased Mrs. Carol Uchendu who testified as PW1 stated that she was seated with the deceased in their sitting room in UmuerimNsirimo when somebody knocked at the door at about 8. P.m. As the deceased approached the door, some people pulled the door open and shot the deceased on his two legs and he fell down. They dragged him to his porch and shot him again. The deceased named the Appellant and his gang and said “My children that I trained are you people doing this to me”. He said so twice and also said that his name was gone, He died shortly after.
A. C. Okoroafor Esq of Counsel for the Appellant in his brief distilled two issues for determination as follows:
1.”Whether the lower Court was in grave error when he struck out Exhibit G (instead of Exhibit J) alongside the evidence of Pw4 who was withdrawn by the prosecution.
2. Whether in the circumstances of this case, the lower Court was right in convicting the Appellant for Conspiracy and Murder based on the evidence of Pw2 and Pw3″.
Dr. Livy Uzoukwu (SAN) for the Respondent who prosecuted with a fiat from theAttorney General of Abia State also distilled two similar issues but couched differently thus;
1. “Whether the trial Court struck out Exhibit G in error.
2. “Whether the trial Court was right in law when it convicted the Appellant for Conspiracy and Murder.”
The issues raised by both counsel are similar though couched differently and can conveniently be compressed into one straight forward issue of narrow compass thus:
“Whether on the facts and circumstances of this case the trial Court was in error to have struck out Exhibit G, rejected the defence of Alibi put forward by the Appellant, holding that the prosecution proved its Case and proceeded to convict the Appellant as charged.”
In his brief of argument and Reply brief, learned counsel for the Appellant C, Okoroafor Esq, submitted in summary, that the learned trial Judge erroneously relied on the evidence of Pw2 and Pw3 to arrive at the conclusion that the Appellant was guilty of the offences.
He contended that Pw2 neither mentioned nor identified the Appellant as one of the Gunmen who killed the deceased, counsel argued that Pw3’s evidence implicating the Appellant wasan afterthought as he did not mention the Appellant or any of the convicts in Exhibit G which is the extra judicial statement. Counsel submitted that having doubted the evidence of Pw3 which fixed the accused person at the scene of crime that it was no longer open for the learned trial Judge to rely on the same evidence in convicting the Appellant.
He cited numerous authorities to drive home these points and urged the Court to allow the appeal.
Reacting to the foregoing, learned senior counsel for the Respondent Dr. Livy Uzoukwu SAN contended that the Appellant who through his counsel consented to Exhibit G being expunged from the record of Court cannot turn round to blame the trial Court claiming that the said Court erroneously expunged Exhibits G & K. He argued that the legal effect of expunging Exhibit G from the record by the trial Court is that it is no longer legal evidence that could be relied upon in this appeal. He cited TEXACO PANAMA INC, V. S.P.D.C LTD. (2002) 5 NWLR (PT.749) 209; GARUBA V. OMOKHODION (2011) 15 NWLR (PT. 1269) 145.
Referring to the first statement of the Appellant made on the 6/2/2007 tendered as Exhibit P at page50 of the Record of Appeal, counsel submitted that the said statement does not in any way raise the defence of alibi. He referred to the said Exhibit P as vague, nebulous and devoid of particulars. Still on the issue of alibi, counsel referred to the third statement of the Appellant made on 14/7/2007 and tendered as Exhibit P2, he also reproduced the said Exhibit P2 and submitted further that in neither Exhibit P1 nor P2 did the Appellant claim he was in Enugu taking examination within the period the deceased was killed.
On the evidence of Pw3 which the learned trial Judge relied on in acquitting the 2nd accused, counsel posited that the evidence led by the prosecution in respect of the Appellant and the said second accused is in no way interwoven and inseparable and therefore there was no reason or justification for the learned trial Judge to use the same yard stick on the Appellant when the evidence of Pw2 apart from that of Pw3 clearly fixed the Appellant at the scene of crime.
On the issue of conspiracy, counsel referred to Exhibit L at page 34 of the Record of Appeal and submitted that the 1st accused person’s visit to Aba to meet with theAppellant and the visit by the 3rd accused to the Appellant all of which were prior to the murder of the deceased justified the finding of the trial Court on conspiracy to commit murder.
He urged the Court to affirm the evaluation of the trial Court according credibility to the prosecution witnesses and in totality dismiss this appeal.
To succeed in a charge of murder, the prosecution must establish that the deceased is dead, that the act or omission of the accused which caused the death of the deceased was unlawful and must have been intentional with knowledge that death Or grievous bodily harm was its probable consequence. See ABOGEDE V. STATE (1996) 5 NWLR (PT.448) 270 PHILIP OMOGODO V. THE STATE (1981) 5 SC 5 at 26 – 27. THE STATE V. JOHN OGBUBUNJO 2001 3 SCM 119 at 123 and JAMES OBUBA KALU V. STATE (1993) 3 NWLR (PT. 279) 20 at 30.
The attack on the judgment of the learned trial Judge herein, is basically on the striking out Of Exhibit G alongside the evidence Of PW4 and the evaluation Of evidence adduced at trial. ONNOGHEN JSC (Later CJN) in EDJEKPO & ORS. V. OSIA & ORS (2007) 29 NSCQR 842 at 885 had this to say: “It is settled law that evaluation Of evidence and the ascription of probative value thereto reside within the province of the Court Of trial that saw, heard and assessed the witnesses and that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of the Court Of Appeal to substitute its own views for the view of the trial Court.
However, the Court of Appeal can intervene where there is insufficient evidence to sustain the judgment, or where the trial Court fails to make proper use of the opportunity Of seeing or where the findings of fact of the trial Court cannot be regarded as resulting from the evidence or the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by evidence before the Court.”
The Appellant took exception to the credibility accorded the testimonies of Pw2 and Pw3 on the grounds that the testimonies contradicted each other and that the said witnesses being blood relations of the deceased had a purpose to serveother than the justice of the case. These witnesses gave eye witness testimonies at the trial Court.
I shall revisit this aspect of Credibility of the witnesses later in this Judgment.
Let me deal with the issue of Exhibit G.
Consequent upon the objection raised by the defence at the trial Court as to the competence of Pw4 and the evidence adduced, which the prosecution conceded to, Pw4 was withdrawn as a witness. Counsel to the 3rd accused person applied to the trial Court that not only should the evidence of Pw4 be withdrawn but all documents already tendered through him be withdrawn as well.
This application was granted by the learned trial Judge. See page 117 of the Records. For ease of reference let me reproduce some relevant portions of the application that gave rise to the withdrawal of the said Exhibit G.
“COURT: Learned Senior Advocate applies to withdraw Pw4. There is no objection by the defence counsel.
ORDER: Application is granted.
COURT: Counsel for the 3rd accused G. I Chionye applies that evidence so far given by the Pw4 be expunged from the record including exhibits G and K tendered. This is becausethe defence had no opportunity to Cross examination (sic) this witness of the evidence given by him.
Kalu associates himself. The application (sic) A. C. Okoroafor leaves it at the Courts discint (Sic) Learned Advocate (sic) concedes.
ORDER: Application is granted…”
(See page. 117 of the Records)
Learned Counsel for the Appellant made heavy weather and argued that rather than expunge the evidence of Pw4 and Exhibits J and K, the trial Court erroneously expunged Exhibits G and K.
A look at the proceedings at page 117 of the Record of Appeal reproduced above clearly shows that the learned trial Judge merely granted the application as prayed by counsel for the 3rd accused, G. I. Chionye Esq. counsel for the 3rd accused specifically prayed that Exhibits G and K be expunged. One then wonders why the heavy weather that Exhibits G and K were erroneously expunged when in fact the defence at the trial Court asked for it.
It is expected of a diligent counsel to promptly take objection to any irregularity as to procedure at the trial Court and not to be silent only to wake up from Slumber at the Appellate Court. To adopt this methodis like closing the stable when the animal had bolted away.
Reading through the proceedings at page 117 Of the Records, it was very clear that the learned trial Judge made the order as prayed by counsel for the 3rd accused and this Court and parties are bound by the Record of Appeal and should not depart from it.
The effect of expunging Exhibit G, as prayed by Counsel at the trial Court is that it ceases to be legal evidence that could be relied upon by this Court for any useful purpose. In BAMIDELE PATRICK V. THE STATE (2018) LPELR-43862 (SC) per Augie, JSC at pages 31 — 32 paras E— B held:
“It is an elementary principle that the Court, the parties and counsel are bound by Contents of the record of appeal, which is presumed correct until the contrary is proved; no Court has jurisdiction to go outside the record to draw conclusions that are not supported by it”.
It is therefore not correct as argued by learned counsel for the Appellant that Exhibits G and K were erroneously expunged by the trial Court. The said Exhibits were expunged as prayed by counsel. It is noteworthy that counsel that made the application to haveExhibits G and K expunged did not appeal against the Ruling of the trial Court expunging the said Exhibit G. This is therefore not the appropriate circumstance to invoke Order 4 Rules 3 — 5, of the Rules of this Court.
On the issue of conspiracy, it is trite that the offence of conspiracy is difficult to prove. This is so because it is often contrived in secrecy. Circumstantial evidence is therefore often used to point to the fact that the conspirators had agreed on the plan to commit the crime. There must therefore be an act done in the open to justify the inference of conspiracy, The offence of conspiracy is said to have taken place when people have acted by agreement or in concert.
What is important in the offence of conspiracy is common intention.
The trial Court made the following findings on the issue of conspiracy at page 359 of the Record thus:
“There is unchallenged evidence before the Court that the 1st accused visited the 4th accused at a hotel in Aba on 5-12-06 at the invitation of the 4th accused two days before the murder of the deceased on 7-12-06. It is indeed on record that he the 1st accused denied stating thisfact in his statement but when he was confronted with the statement under Cross examination he went dumb.”
A look at Exhibit L on page 34 of the Record shows how the 1st accused Ifeanyi Uchendu gave details of the invitation of the 4th accused (Appellant herein) to visit him in Aba. The message was sent through one Ifeanyi a friend of the Appellant. They converged at Onen Guest House Off Aba Owerri park in Aba in a chalet in the said Guest House. Curiously at page 159 of the Record, the 1st accused denied visiting the Appellant in a Guest House in Aba. It is noteworthy that the visit of the 1st accused Ifeanyi Uchendu to Aba to meet with the Appellant and the visit of the 3rd Accused Ugochukwu Amaechi to the Appellant all took place on the 5/12/06 prior to the incident i.e the Gruesome murder Of the deceased, Professor V. C. Uchendu on the 7th of December, 2006.
On the Murder of the deceased, going through the Record of Appeal at pages 207 and 211 of the Record precisely, the Appellant’s defence revolved mainly on the defence of Alibi. In the Appellant’s amended brief, he abandoned the defence of Alibi except at page seven of his Reply brief where hementioned the defence of Alibi in passing. However even though learned Counsel for the Appellant tactfully abandoned his reliance on the defence of Alibi, it will still not be out of place to touch on the defence of Alibi for the purpose of ascertaining whether the trial Court was justified in finding the Appellant guilty as charged. The defence of Alibi by an accused is a combined defence of lack of “actus reus” and “mens rea”; i.e, that the accused was not at the scene of crime and was therefore, neither in a position to have committed the offence alleged nor participated in its commission nor even had the intention of committing the crime. Therefore, being a matter of fact peculiarly within his personal knowledge, an accused who raises it has the burden of leading evidence of the fact of the Alibi, even though the primary or general burden of proof of guilt remains throughout on the prosecution and does not shift. See UKWUNNENYI V. THE STATE (1989) 4 NWLR (PT. 114) 131 at 144. ODIDIKA V. STATE (1977) 2 SC. 21. The evidence led by the prosecution was that the Appellant at about 8.p.m. on 7/12/2006 in company of the 1st — 3rd accused personsmurdered the deceased professor V. C. Uchendu in his house at UmerimNsirimo in Umuahia, Abia State. They were identified by witnesses who were family members. The prosecution was therefore, specific as to time and date of the commission of the crime. The evidence of Pw1, Pw2 and Pw3 were detailed and direct on these two essential aspects of the case. Pw2 and Pw3 stated that they knew the Appellant and the other convicts before the date of the incident being family members. Having led the foregoing evidence fixing the Appellant with the time and date of the crime at the scene, the evidential burden of leading evidence on Alibi on these points at least sufficient to cast doubt in the mind of the trial judge was on the Appellant. But in contrast, although the Appellant gave evidence in Exhibits P, P1 and P2, he also claimed that he was taking his examination in Enugu. While testifying on the 6th Of February 2014, the Appellant stated as follows:
“On the 7th day of December, 2006 I was in school taking my second semester Examination. We started the examination on 4th day of December, 2006 we finished the examination on 14th day ofDecember, 2006. I wrote examination on a paper called ICH 342 (organic chemical). After the examination on the said date, I went back to where I reside”.
It is noteworthy that seven years after making Exhibit P and seven years and five months after making Exhibits P1 and Pw2, the Appellant suddenly woke up from slumber and remembered to provide a semblance of particulars to the alibi he claimed and which particulars he never mentioned even in passing in his Exhibits P, P1 and P2.
For the defence of Alibi to be taken seriously, the accused must raise it at the earliest opportunity with the relevant materials. This is to save the Police the agony of embarking on an exercise in futility.
A defence of Alibi as in this case where the Appellant suddenly purports to give particulars of the Alibi more than seven years after should be ignored and likened to tale by moon light and should be thrown inside the garbage bin.
The Appellant never claimed in Exhibits P, P1 and Pw2 that he was in Enugu taking examination within the period the deceased was killed. He neither tendered any document to show the period he took the examination nor did hecall any witness to that effect. The Appellant rather succeeded in making a mocking and a caricature of the defence of Alibi. Where an accused sets up an Alibi as a defence, the mere allegation that he was not at the scene of crime is not enough. He must give some explanation of where he was and who could know of his presence at that other place at the material time of the commission of the crime. See SALAMI V. THE STATE (1988) 3 NWLR (PT. 85) 670 at 677. The learned trial Judge was well within the law to have treated the defence of Aibi put forward by the Appellant as an afterthought and a cock and Bull story.
On the credibility of the witnesses, Pw1, Carol Uchendu is the wife of the deceased. Pw2 is Raphael Uchendu, a retired Civil Servant and brother of full blood of the deceased. Pw3 is Ezeji Allison Uchendu. He is the younger brother of the deceased. They each testified to what they claimed to have seen, heard and done at the material time of the murder. Their accounts did not differ i.e that the Appellant and the other convicts deliberately shot and killed the deceased who was their half-brother and who in fact trained them. They were in full accord in identifying the Appellant and the other convicts locating them at the scene of the murder and ascribing the deliberate act of shooting at the deceased to the Appellant and the other convicts.
On contradiction, learned counsel pointed to what he termed contradiction, one of which was that Pw3 testified as to what happened n the 8th Of December, 2006 while the two count information stated that Prof. V. C. Uchendu was murdered on the 7th of December, 2006. Counsel also pointed out that Pw3 stated that he was hit by stray bullet when the hoodlums were shooting and in his testimony in Court he stated that he identified the Appellant and the 1st accused when they shot at him. In respect of Pw2, counsel argued that Pw2 never testified that he saw the Appellant nor identified him in connection with the commission of the offence as charged.
These according to counsel were what he termed contradictory statements.
For testimonies to be contradictory, they must relate to material points and are said to contradict when one account asserts the opposite of the other and both cannot be said to be simultaneously correct. They must create doubtsin the mind of the Court as to the guilt of the accused. Discrepancies however are bound to arise in the truthful accounts of witnesses to the same event as these accord with the normal course of human events. See EMMANUEL EGWUMI V. THE STATE (2013) 53.3 NSCQR. 455 per Rhodes VivourJsc:
“A Piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. Two pieces of evidence contradict one another when they are by themselves inconsistent. A discrepancy may occur when a piece of evidence stops short of or contains a little more than, what the other evidence says or contains some differences in details.”
On the blood relationship between Pw1, Pw2, Pw3 and the deceased, this calls for some caution as the requirements of justice to the accused persons must be balanced with the rights and sensibilities of the victims of the crime. They are equally before the Court seeking justice. The fact that a prosecution witness had some Close relationship with the deceased or victim of crime does not render the evidence inadmissible without corroboration butwould only make the Court circumspect with the reception of the evidence and to treat it with caution. This requirement is dictated by prudence and not law. It is a matter of practice which would not necessarily vitiate a conviction. See EKANG V. STATE (2001) 11 NWLR (PT.723) pg. 1. OGUNBAYO V. STATE (2002) 15 NWLR (PT. 789) PG. 76.
The learned trial Judge was prudent in his reception and evaluation Of evidence before him. The judgment of the trial Court was based not only on the evaluation of evidence of Pw2 and Pw3, but also the statement of the Appellant and the other convicts to the Police, his evidence in Court, the demeanor of the witnesses, circumstantial evidence, among others. All these led to the irresistible conclusion that the Appellant, the 1st accused and the 3rd accused committed this gruesome murder.
Learned Counsel for the Appellant also invited attention when he argued that the acquittal of the 2nd accused person translates to the acquittal of the Appellant and the other convicts.
In acquitting the 2nd accused person, the trial Court at page 353 of the Record found as follows:
“…However, I have read Exhibits R and T,contrary to the contention of the prosecution, the 1st statement of the 2nd accused made on 21/2/2006 in Exhibit R contain sufficient particulars of the where about of the 2nd accused on that fateful date and the person (his father) with whom he was. I hold that the Police was bound to investigate the alibi according to law…”
It is clear from the above that the trial Court put into consideration the statement of the 2nd accused Exhibit R which provided cogent and verifiable particulars of his where about. The said accused did not stop at that he called his father as witness to buttress these assertions. This is completely different from the Appellant who never raised the defence of alibi in his Exhibits P, P1 and P2 but woke up from slumber more than seven years after to make a caricature of the defence of alibi, same as the 1st convict Ifeanyi Uchendu.
It is therefore not the law that the acquittal of an accused person automatically translates to the acquittal of a co-accused person/persons. Records show that evidence led in respect of them are not interwoven and therefore easily separable and the trial Court was faultless to have separatedthem. It is not the law that once an accused person is discharged and acquitted, the co-accused must as a matter of course be discharged and acquitted also. It depends on the facts of the case before the Court. Each of the accused persons’ case will be dealt with and determined on its own merit.
Counsel for the Appellant made frantic effort to discredit the testimony of Pw3 when he specifically referred to the testimony of PW3 at page 109 Of the Record under cross-examination as follows:
“… I was watching television on the date of the incident. There was no light on the day of the incident. I said that when I was shot, I pretended to be dead. Yes I lay on the floor with my eyes shut. I was in that state for about ten (10) minutes..”
In determining whether there are contradictions properly so called in the case of a party, the entire evidence must be looked at holistically and not piece meal. I say so because at page 103 of the Record, Pw3 provided a more detailed account as follows:
“…I was in my house watching Television when I heard the sound of a gun. I put off my television. I then heard my latebrother shouting “Ifeanyi and brother do you want to kill me”. I then came out with my touch light and saw Ifeanyi and Chinedu’s mother Chinedu and Ifeanyi’s mother was carrying a lantern and Shouting “Dede Omereunugini eh “meaning” what did Dede do to you… Ifeanyi and Chinedu told their mother to go into their house. I flashed my touch light on them and they shouted at me to lie down. I refused and flashed the touch light on them.
They shot at me and I fell down and pretended I was dead. They shot me on the head. They watched over me, Chinedu passed through my right Ifeanyi followed him and they moved into Prof’s house….”
From the above graphic account given by Pw3, it was very clear that Pw3 already saw the Appellant Chinedu and the 1st Convict Ifeanyi Uchendu before they shot at him. It would therefore be wrong and incorrect for counsel to the Appellant to paint the picture that because Pw3 was shot at and he pretended to be dead that he did not see the Appellant Chinedu Uchendu and the 1st Convict Ifeanyi Uchendu.
Counsel for the Appellant also queried why Pw3 did not mention the Appellant and the other convicts as those whomurdered the deceased at the earliest possible time. Pw3 provided the answer in Exhibit H at page 20 of the Record as follows:
“Lest I forget, the key witnesses in this case of murder were threatened by the suspects if we revealed the secret. This however, informed my not mentioning Ifeanyi and others before now, until NsirimoAma-lse Congress committee prevailed on us to let the cat out of the bag by mentioning the actual killers of Prof. Uchendu, hence my statement above.”
The same Pw3 at page 106 of the Record stated thus:
“It is not true that the 1st accused was sleeping in her mother’s house. He was the one that shot me. It is not true that the 1st accused was part Of the crowd that sought to watch the compound. I told the police what I am telling the Court but I did not mention their names because if I did the would (sic) been set ablaze by the crowd. The 4th accused was not in any School at ESUTH Enugu. I was not the Only person that saw the accused persons when they were coming out. The accused persons were not masked on their way out…”
There is no doubt that Pw3 is very familiar with the Appellant and the other convicts being members of the same family, so identifying them would be as easy as ABC. Pw3 has given a cogent and convincing reason why he did not mention the Appellant and his cohorts immediately. Firstly the Appellant and his gang threatened the keywitnesses and secondly he felt the crowd would have set the Appellant and his gang ablaze. These are very compelling reasons and the learned trial Judge was well within the law to believe Pw3.
In the instant case, on the level of evidence adduced by both sides, there was a direct and straight issue of credibility and the learned trial Judge was entitled to weigh both sides and reach a conclusion on which side he believed. He did so extensively in relation to both counts on the information at pages 356 — 357 of the Records where he found inter alia, as follows:
“I have exercised caution and warned myself and I am satisfied that the Pw2 and Pw3 are credible witnesses. There is no evidence before me strong or credible enough to establish such malice that would warrant the Pw2 and Pw3 to indict their half—brothers without basis. I believe their evidence fixing the 4th accused at the scene of crime on 7-12-2006 as one of the killers of the deceased…” (See page 356 Of the Record)
At page 357 of the Record the trial Court found as follows:
“I have repeatedly held the evidence of Pw2 and Pw3 strong, positive and credible which fixed the 4th accused person and others at the scene of crime on the night of 7-12-2006 as one of the killers of the deceased. I adopt my findings on that point earlier in this Judgment and the explanations offered by the Pw3 why the prosecution witnesses did not mention the names of the accused person (sic), in their first statements to the Police while dealing with the case of the 1st and 3rd accused persons earlier in this judgment I hold that the strong and credible evidence against the 4th accused person aforesaid was sufficient to warrant the 4th accused person to introduce some evidence in order to discharge the evidential burden to support his alibi in the light of such damaging evidence before the Court by the Pw2 and Pw3 against him …”
The above is a clear and succinct finding of fact which I haveno reason or justification to distort or reverse.
In the same manner, the trial Court made impeccable finding on the matter of conspiracy when after reviewing and evaluating the evidence at page 359 of the Record that there was enough circumstantial evidence to ground a charge of conspiracy to commit murder.
In the premise, the sole issue is resolved against the Appellant and in favour of the Respondent.
This appeal is unmeritorious and is hereby dismissed in its entirety.
The Judgment of K. O. WOSU, J, of the Umuahia Division of the Abia State High Court, delivered on day Of May, 2015, in charge NO Hu/23C/2C07 is hereby affirmed as well as the conviction and sentence of the Appellant.
RITA NOSAKHARE PEMU, J.C.A.: I had the privilege to read, in advance, a copy Of the lead Judgment just delivered by my learned Brother, NWOSU-IHEME, Ph.D., JCA. dismissing this appeal. I agree with his reasoning and conclusions.
This appeal is without merit. I also dismiss this appeal and abide by the consequential Orders in the lead Judgment.
ONYEKACHI AJA OTISI, J.C.A.: I had theopportunity to read, in advance, a copy Of the lead Judgment just delivered by my learned Brother, CHIOMA NWOSU-IHEME, Ph.D., JCA, dismissing this appeal. I agree with and adopt as mine the reasoning and Conclusions.
This appeal is without merit. I also dismiss this appeal and abide by the orders in the lead Judgment.
Appearances:
A. C. Okoroafor, Esq.
E. Okoroji, Esq.
H. C, Akanwa, EsqFor Appellant(s)
Mike Onyekachi, Esq.For Respondent(s)