Anthony Okoro V. The State (2016)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A.
This is a criminal appeal against the judgment of Imo State High Court, Coram P. C. Onumajulu, J, now the Chief Judge delivered on 17th November 1997 convicting the appellant for an offence of murder of one Obediah Ofoegbu on 14th October, 1987.
The brief facts of the case are that the deceased in his lifetime, was the bellman of his church at Umuoloche Umulolo Okigwe, Imo State. On early hours of 13-10-87, he went to that church which was close to his compound to ring the bell for morning prayers; and after ringing the bell, there was sound of a gunshot and the deceased raised his voice saying “Anthony Okoro (appellant) has shot me.” This statement is credited to the evidence of PW1 being the wife of the deceased who by then was still in bed at the material time, but she recognized the voice as that of her husband. On hearing that, she rushed to the scene where she saw her husband stooping and holding his neck, which was bleeding profusely. The deceased repeated talking and crying that the appellant had killed him. That based on the above facts, local members of the community in the area, came to the scene of shooting and saw the condition of the deceased. PW1 then left the scene and made a report of the incident to the nearby Police Station at Umulolo while the deceased was rushed to a nearby hospital called Our Lord’s Hospital from where deceased was latter transferred to the General Hospital, Okigwe. At the same General Hospital, the deceased repeated the name of the appellant as the person who shot him and that at the material shooting by the appellant, two other brothers of the appellant were physically present. The two other suspects are Mbadiwe Okoro – 2nd accused and Friday Okoro – 3rd accused who were latter discharged and acquitted by the trial judge. Before his death, the deceased had made a dying declaration, which was tendered by the prosecutor and was admitted into evidence as Exhibit B.
The appellant denied the prosecution evidence of killing the deceased; and the learned trial judge considered the evidence of PW1, 3, 6, 7 and the validity of Exhibit B and found the appellant guilty of murder. Based on the appellant’s conviction and sentence to death, appellant has appealed to this court on totality of only two grounds of appeal and they read as follows:
“1. That the decision is altogether unreasonable having regard to the weight of evidence.
- That the learned trial judge erred in law by admitting Exhibit B as a dying declaration and relied on the same to convict the accused/appellant, when the said Exhibit B did not meet the legal test for its admissibility as a dying declaration.”
Out of the two grounds of appeal; appellant has formulated two issues for determination and they are as follows:
“1. Was Exhibit B rightly admitted as a dying declaration? If not what would be the resultant effect if expunged from the judgment.
- Considering that there was no eyewitness of the shooting of the deceased, did the weight of evidence establish by circumstantial evidence, that the accused/appellant was responsible for the murder of the deceased? In other words, was the circumstantial evidence unequivocal, positive and point irresistibly to the guilt of the accused/appellant to ground his conviction?”
In response to appellant’s issues and argument’ learned counsel for the respondent has formulated three issues for determination. They read thus:-
“(i) Whether Exhibit B and other dying declarations of the deceased to PW1 and PW3 admitted and relied upon by the trial court were rightly admitted and if so, whether weight given to them supported the conviction.
(ii) Whether other circumstantial evidence admitted and relied upon by the trial court supported the judgment.
(iii) Whether there were material contradictions in the evidence of the prosecution witnesses which vitiated the judgment and occasioned miscarriage of justice.”
In arguing issue one in his brief of argument, learned counsel for the appellant has wasted so much comparison of the evidences of PW1, PW3 and PW7 before the late justice S. N. Okoroafor at High Court Okigwe who later was retired before the criminal case could be determined. The same PW1 , 2 and 3 testified before Justice S. A. Nsofor who also not dispose of the case due to his elevation to the Court of Appeal and the case once more had to start de novo before Justice A. A. Ononuju at Okigwe Judicial Division. Still the case could not be determined and was therefore sent to the only relevant trial Judge who had to start hearing de novo again and determined the criminal matter to its conclusion and sentenced the appellant.
Appellant’s further argument on issue one is that the trial court was wrong in reliance of the evidence of PW1, PW3 and PW7 and Exhibit B being the alleged statement of the deceased. Counsel further contended that a critical look at the evidence offered by the prosecuting witnesses at the previous stages, especially before Nsofor (J), he has now noticed that at the trial court, PW1, 3 and 7 have improved on their evidence based on deliberate re-briefing by the prosecuting State Counsel A. C. J. Okorie. Counsel further contended that, justice was not done, nor did it appear to have been done at the trial court and that the conviction of the appellant should be quashed by this appellate court, because Nsofor, J. had rejected the document (Exhibit B) as a dying declaration.
On the part of the respondent, learned counsel has submitted that, exhibit “B” being the statement of the deceased to PW7 at the general Hospital Okigwe on the morning of 13-10-87 on his sick bed, was rightly admitted by the trial court as a dying declaration as provided by Section 33(1)(a) of the Evidence Act Cap. 112, 1990. Learned counsel further submitted that there was positive evidence in Exhibit B that the deceased had believed himself at the material time to be in danger of approaching death when he was asking PW7 to write his statement, notwithstanding the opinion or remarks made by the same PW7 under cross-examination that the deceased did not believe at the time he signed the statement. Respondent’s counsel referred and relied on the case of OKORO V. THE STATE (1967) NMLR, 189, ORSHIOR KUSE V. THE STATE (1969) 1 NMLR 153; (1969) 3 FSC 162.
Counsel for respondent further submitted that, apart from mere objection to the admissibility of Exhibit B at the trial court, on the basis that the prosecution did not lead evidence that the deceased believed himself to be in danger of death, appellant did not raise any other ground of objection against admissibility of the Exhibit as an evidence. counsel also submitted that at the trial court, the appellant’s counsel during the proceedings did not discredit nor contradicted the testimonies of PW1, 3, 6 and 7 during cross-examination when the dying declarations were admitted. That it is too late at this time for the appellant to urge this appellant court to reject and expunge from the record, the dying declarations proffered by PWS1, 3 and 7 just because they are at variance with other versions of dying declarations made by the deceased person to the aforesaid prosecution witnesses (PWS) in their evidence in chief at the previous proceeding before Nsofor, J. Respondent’s brief at paragraph 25 of page 4 has submitted that by provisions of the Evidence Act, 1990, the appellant cannot now benefit the use of the evidence in chief of PW1, 3, 6 and 7 as well as Exhibit B which were not contradicted or controverted at the trial court before Onumajulu, J., by tendering their previous evidence before Nsofor, J., and that it is too late now for the appellant to do such a thing in the appellate court.
The respondent has referred to the trial court findings in regard to the evidence of PWS 1, 3 and 7 as it relates to dying declarations made by the deceased and that before his death, he was consistent in his assertions that it was the appellant who shot him. Learned counsel in concluding his argument on issue one, urged that the trial court’s finding as to the admissibility of Exhibit B and other dying declarations made to the prosecuting witnesses should not be disturbed.
Before I go into parties relevant issues formulated for determination, I find it necessary to consider whether the issue is related to a ground of appeal. It is also necessary to ascertain if arguments are related to the issue formulated by either the appellant or the respondent. The appellant’s issue one in this appeal is couched in almost the same words formed in ground two of his notice of appeal. Even to the extent of repetitive quotation, ground two reads:-
“That the learned trial judge erred in law by admitting Exhibit B as a dying declaration and relied on the same to convict the accused/appellant, when the said Exhibit B did not meet the legal test for its admissibility as a dying declaration.”
From the above position of the ground 2, the appellant’s formulation issue one reads:-
“Was Exhibit B rightly admitted as a dying declaration? If not what would be the resultant effect if expunged from the judgment.”
In the appellant’s argument in connection with issue number one (1), learned counsel at page 5 – 13 of the brief, went on a voyage of misconception by comparing previous evidence of prosecution witnesses i.e. PW1 – Veronica Onwuamana being wife of the decease person; PW3 – Nze Augustine Nwoke and PW7 – Police Constable Samuel Onyia who testified before Nsofor, J. as be then was at Okigwe High Court and later testified before the lower trial judge. It is clear that at the trial court before Hon. Justice Onumajulu, J., appellant did not apply to tender the previous statements or evidence adduced by PW1, 3 and 7 in the earlier court of Nsofor, J. for the purpose to contradict their evidence as dying declaration of the deceased.
But that is not the only misconception of the appellant. The issue raised is specifically the admissibility of Exhibit B, being the written dying declaration. Exhibit B is distinct from the evidences of prosecuting witnesses (PWS) 1, 3, 6 and 7, which lower trial judge Onumajulu, J. as he then was relied upon as other dying declarations made orally to the other prosecution witnesses. The appellant therefore, has no reason to argue on the evidence of PW1, PW3, PW6 and even PW7 except on Exhibit B. He has no basis to argue as stated above, because his ground 2 did not raise or challenge the other dying declaration proffered, relied upon and admitted as relevant. The main dying declaration Exhibit B was tendered by PW7. See Page 113 lines 4 – 14 of the record of appeal and it reads as follows:-
“The doctor permitted me alone to see the deceased as they never allowed people into the ward. When I got into the Ward, I saw the deceased and the Nurse. The Head of the deceased was covered with white cloth leaving only his face. The cloth was soaked in blood. The deceased lay on Hospital bed. I then took permission from the Nurse to interview the deceased and I was permitted to do so when the deceased noticed my presence, the deceased said it was he who sent for the Police so that would narrate to the Police what happened to him before dying. The deceased expressed a desire that I write what he would say down. I then brought out paper and pen. The deceased narrated the story. I recorded same. The deceased narrated the story in English Language and I recorded same in the same Language as he made it.”
From the above relevant evidence of Exhibit B, the learned trial judge properly and lawfully applied the provisions of Section 33 (1)(a) of the Evidence Act 1990 as the circumstance is relevant where the cause of the deceased’s death was in issue or the transaction which resulted to the deceased’ death was in issue. in such situation as what happened in the instant matter, the trial court knew that it was in respect of murder or manslaughter of the deceased who at the material time of making his statement to PW7, believed himself to be in the danger of not only likely, but most probable, death. The deceased’s belief was the neck injury from the gunshot. The deceased’s dying declaration Exhibit B is identical to the case of OKORO V THE STATE (supra) and VORGHO v. The state (1972) 5 SC 1.
As earlier stated, appellant’s argument in issue one is discountenanced because he wasted same by relying on matters that were properly testified upon and relied on other dying declarations but the appellant did not appeal nor raise issues. I therefore hold that appellant’s total arguments in his issue 1 is incompetent.
Appellant’s issue 1 has woefully failed because the trial court had found as solid facts that the statements and evidence adduced by the prosecution witnesses PW1, PW3, PW6 and PW7 as well as Exhibit B, were all consistent dying declarations by the deceased that it was actually the appellant that used the fatal weapon who shot him. I find no reason to disturb the solid findings of the trial Judge. Issue one is in favour of the respondent. Before I come to issue two, I have to state that appellant filed only two grounds of appeal and per his brief of argument, he distilled the two grounds and formulated two issues, i.e. issue 1 is from ground 2 while issue 2 is from ground 1. But on the part of the respondent learned DCL (Director of Civil Litigation) formulated 3 issues for determination. Issue number 3 read:
“(iii) Whether there were material contradictions in the evidence of the prosecution witnesses which vitiated the judgment and occasioned a miscarriage of justice.”
Learned counsel has not shown under which appellant’s grounds of appeal he has formulated his issue 3. This is defective and wrong. In an appeal matter where issue for determination is not covered by the grounds of appeal, the Court of Appeal will discountenance the issue being irrelevant. see IBRAHIM v. OSUNDE (2003) 2 NWLR (Pt.804) 241. See also AUDU V. THE STATE (2003) 7 NWLR (PT.820) 516, Respondent’s issue 3 is struck out.
In the same vein, proliferation of issues from a ground of appeal is not acceptable and the multiplicity of issues more than the grounds of appeal are discountenanced. See UNILORIN V. OLUWADARE (2003) 3 NWLR (Pt.808) 557; PADAWA V. JATAU (2003) 5 NWLR (PT.813) 247.
Issue 2
This is from the omnibus ground one. The appellant’s argument is that there was no eyewitness of the shooting of the deceased, and that the weight of evidence did not establish conclusively by circumstantial evidence that it was the appellant who murdered the deceased. Learned counsel for the appellant however, has conceded that the fact that the deceased died as a result of gunshot wound is not being contested; but that no evidence has established unequivocally and positively pointed irresistibly to the appellant. In other words that the circumstantial evidence was not directed positively and irresistibly to the appellant. counsel referred to the case of OLADEJO v. THE STATE (1987) 3 NWLR (Pt.61) 419; (1987) 11 SC 204; HAUSA V. THE STATE (1994) 6 NWLR (Pt.350) 281; (1994) 8 SCNJ 144, NASIRU V. THE STATE (1999) 2 NWLR (Pt.589) 87 (1999) 1 SCNJ 83.
The learned counsel for the appellant submits that the deceased dying declaration did not fit the conditions in Section 33(1)(a) of the Evidence Act because there was no proof that deceased had believed himself to be in the danger of approaching death when he made exhibit B as well as his other statements made to PW1, PW3, PW6 and PW7 who wrote and countersigned same exhibit B. That there was no strict proof of exact words used by the deceased in exhibit B, and that if the words used in the declaration are unclear, imprecise and not free from ambiguity, its admission would not be accepted as a valid dying declaration, cases of HAUSA V. THE STATE (supra) R. OGBUEWU (1949) 12 WACA 483; R. v. WEYEKU (1943) 9 WACA 195 were relied upon. He urged this Court to expunge the evidence of the prosecution witnesses as well as exhibit B and discharge and acquits the appellant.
On the part of the respondent learned Director of Civil Litigation – Mr. Ehiwo contends that there are other grounds or facts established positively and irresistibly that it was the appellant who shot and killed the deceased at the material time and place. Learned prosecuting counsel, relied on the evidence of PW1, PW3, PW6 and PW7 which were proved beyond reasonable doubt that circumstance trial evidence which were not controverted, discredited or rebutted by the appellant. That the evidence of the above listed prosecuting witnesses have pointed unequivocally positively, unmistakably and irresistibly to the appellant as the person who shot the deceased on the 13-10-1987. Case of NASIRU V. THE STATE (1999) 2 NWLR (PT.589) 87 are relied upon. He urges that the findings and conclusion of the trial court on which the appellant was convicted should not be disturbed.
I have carefully read and considered the argument of both parties on whether other circumstantial evidence admitted and relied upon by the learned trial judge supported his judgment.
At page 87 lines 24 – 29 of the record of appeal, PW1 being the wife of the deceased in her evidence in Chief said the following:
“In the early hours of 13-10-87 my late husband went to the Church to ring the Church bell. After ringing the bell, he started coming back to the house to collect his Bible for the morning service. Suddenly, I heard the sound of a gun shot and my husband’s voice crying, ‘Anthony Okoro has shot me.” (Italics is mine)
From the above fact, the same witness further testified that she rushed to the scene and saw her husband was holding his bleeding neck. That seeing this situation, she started crying and the deceased pleaded with her not to keep weeping but to listen to what he was going to tell her, meaning, that the appellant, Anthony Okoro had killed him. It is to be noted that the above quoted evidence PW1 has also supported the evidence of PW3 – Nze Augustine Nwoke, see page 95 line 17 of the record where he stated as follows:
“In my presence, the deceased called all of us present including the doctor and the nurses and stated that if he died from the injuries we should realize that it was Anthony Okoro who shot him.” (Italics is mine for emphasis)
Now to appreciate the evidence of PW1 and PW3, it has to be noted that, these pieces of evidence were made contemporaneously with the facts of shooting the deceased which form part of the same transaction and are relevant fact and admissible in law. See section 7 of the Evidence Act 1990 which provides thus:
“7. Facts which, though not in issue, are so connected with fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time an place or at different times and place.”
There is no doubt that evidence of PW1 took place at the scene of shooting and the statement of the deceased that Anthony Okoro killed him. The evidence of PW3 as narrated by the deceased took place not at the scene but at the hospital of Our Lord. It was therefore proper and lawful for the learned trial judge to accept and relied on the PW1 and PW3 in convicting the appellant as those statements were made contemporaneously with the facts of the shooting as they formed part of the same transactions.
Still the evidence of PW1, PW3 and PW6 have shown that the deceased was positive, unequivocal and irresistible in his statement, exhibit B, being his dying declaration that it was the appellant who shot and killed him. Deceased’s statement to his wife, the Police Investigator and even in the presence of the other people who came to the scene and later at the Community Hospital and General Hospital, Okigwe, as testified before the trial court, are sufficient proofs of circumstantial evidence that it was the appellant who shot him.
The learned trial court Judge had found as a fact that it was the act of the appellant in shooting the deceased that caused his death from which 8 pieces of pellets were removed from his injured neck and despite the medical efforts he died in the theatre table.
Issue 2 is against the appellant. Other circumstantial evidence admitted and relied upon by the trial court was lawfully supported in convicting the appellant. He deserved the death sentence.
In conclusion, convict’s appeal has no merit and is dismissed. I affirm the conviction and sentence of the appellant as found and declared at the trial court.
Other Citations: (2016)LCN/8815(CA)
