Ezeakonam Nkebisi & Anor. V The State (2010)

LAWGLOBAL HUB Lead Judgment Report

J.O. OGEBE, J.S.C.

This is an appeal against the judgment of Court of Appeal, Enugu delivered on the 18th of July, 2001 in which it dismissed the appeals of the appellants and affirmed the judgment of Anambra High Court which convicted the appellants of the murder of one Maduneke Enweonye (hereinafter called “the deceased”).

The facts of this case as put forward by the prosecution were that there was a dispute among the members of Umuereagu Osiokwe Anaku Community as to the ownership of one Ikpi Fish-pond. The dispute was resolved and the fish-pond was leased to one Chief Philip Ezeobu for five years. The first accused in the trial court was employed as a guard to watch over the pond. After a while he was removed and replaced with the deceased. The first accused in the trial court was not happy and threatened in the presence of many people in a community meeting that he would kill the deceased. The deceased subsequently disappeared and was never found. Godfrey Emengini (hereinafter called “PW5”) was the only eye witness of the killing of the deceased by the appellants. He gave a graphic account of how the deceased was killed and the appellants arranged to dump the body in river Anambra.

The appellants denied the charge against them. The trial court relied mainly on the evidence of PW5 to convict the appellants. Their appeal to the Court of Appeal was dismissed. This is a further appeal to the Supreme Court.

Before this Court there are only two appellants and the learned counsel for them filed a brief on their behalf and formulated 4 issues for determination as follows:

“a. Whether the Court of Appeal was right when, relying on the evidence of PW5, Godfrey Emengini, it affirmed the conviction of the appellants for the murder of Maduneke Enweonye. (This issue flows from Grounds 1 and 3 of the Notice of Appeal).

b. Whether the Court of Appeal was right in law to have relied on the evidence of identification of PW5 who allegedly saw all the accused persons at the scene of crime to affirm the conviction of the appellants when the same evidence was relied upon to discharge and acquit the 7th co-accused person on a successful plea of alibi (This issue is formulated from Ground 2 of the Notice of Appeal).

c. Whether the learned Justices of the Court of Appeal were not in error to have held that failure of the prosecution to call the native doctor who allegedly exercised the baneful effect of the “Iyi Ani,” native oath taken by the PW5 was irrelevant. (This issue is distilled from Ground 4 of the Notice of Appeal).

d. Whether the Court of Appeal was right to have affirmed the conviction of the appellant when the prosecution failed to discharge the evidential burden of proof placed on it by law. (This issue is formulated from Ground 5 of the Notice of Appeal).”

The learned Director of Public Prosecutions Anambra State filed a brief in which he adopted the issues raised in the appellants’ brief.

The learned counsel for the appellants submitted on the first issue that the Court of Appeal was wrong in relying on the evidence of PW5 to affirm the conviction of the appellants for the murder of the deceased. He said that the witness was related to the deceased and failed to report the killing of the deceased for two months because he was allegedly given an oath by the appellants not to disclose what happened. He therefore submitted that the evidence of PW5 was not reliable enough to convict the appellants of murder. He relied on the case of Moses v. The State (2006) 11 NWLR (Pt. 992) 458, Rex v. Kofi Marfu (1936) 3 WACA 77 for the submission.

In reply to this the learned Director of Public Prosecution for the respondent submitted that the evidence of a single witness if believed by the Court can establish a criminal case even if it is a murder charge. He relied on the case of Effiong v. The State (1998) 8 NWLR (Pt. 512) 362.

There is no law which precludes a blood relation of a deceased person from testifying for the prosecution. In many cases when murder is committed in the presence of family members the only witnesses available are blood relatives. See the case of Oguonzee v. The State (1999) 2 LRCN, 232 (1998) 5 NWLR (Pt. 551) 521.

In this case PW5 gave a graphic account of how the appellants and other accused persons before the trial court killed the deceased and planned how to dispose of his body so that it would never be seen. They even threatened him with death for fear that he might expose them. They ended up giving him an oath not to disclose what he saw. He subsequently got a native doctor to cure him of the oath before he disclosed the heinous murder of the deceased. The trial court believed his evidence and the law is trite that the evidence of one witness if believed can lead to conviction in a murder charge. See the cases of Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538, Effiong v. The State (1998) 8 NWLR (Pt. 512) 362. This issue lacks substance.

Issue 2 is virtually a repeat of issue 1. The only new point made in this issue is that the trial court having discharged the 7th accused before it inspite of the evidence of PW5 alleging that he and the other accused persons were together at the scene of the crime and committed the offence together. The court should not have convicted the appellants based on that same evidence of PW5.

My quick reply to this is that the appellants and the 7th accused at the court of first instance did not have a common base for their defence and so the discharge of one of them cannot lead to the discharge of all of them. From the facts of this case the 7th accused gave a defence of alibi which the trial court gave him the benefit of. The present appellants did not claim that they were together with the 7th accused in the location of his alibi. It followed therefore, that his discharge could not affect the conviction of the appellants.

The 3rd issue challenged the failure of the prosecution to call the native doctor who cured PW5 of the effect of the oath he was given by the appellants. There is nothing to suggest that the evidence of the native doctor would be of any value to the prosecution. He was not an eye witness to the killing of the deceased. PW5 was not on trial before the High Court to suggest that it would be necessary to call the native doctor to testify for or against him. If the appellants wanted the native doctor as their own witness to challenge the veracity of the evidence of PW5, they were free to call him but they chose not to call him. The evidence of PW5 was not shaken under cross-examination. I agree with the view of the Court of Appeal that there was not relevance in calling the native doctor to testify for the prosecution.

Issue 4 is essentially the same as issue 1. Under this issue the learned counsel for the appellants has submitted that the prosecution failed to prove its case beyond reasonable doubt.

I do not agree with this submission. The lucid evidence of PW5 which clearly showed that the appellants were among those who killed the deceased, established the case for the prosecution against them beyond reasonable doubt. There was clear evidence from other witnesses that the life of the deceased was threatened at a public meeting. PW5 witnessed the threat being carried out, saw the dead body of the deceased and heard the appellants arranging for the disposal of the body so that it would never be found. The evidence pointed directly to the guilt of the appellants as found by the lower courts.

I am satisfied that the prosecution proved its case beyond reasonable doubt. I see no merit whatsoever in the appeals on the two appellants and I hereby dismiss the appeals, and affirm their convictions and sentences to death by the two lower courts.

SC.395/2002