Friday Aiguobarueghian & Anor. V. State (2004)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

The 1st and 2nd appellants were the 1st and 2nd of three persons jointly arraigned before the High Court of the Benin Judicial Division of Edo State holden at Benin City (per Joan Aiwerioghene, J.) on an information of murder punishable under section 319(1) of the Criminal Code, Cap. 48,Vol. 11, Laws of the defunct Bendel State of Nigeria, 1976. At the end of the case for the prosecution wherein seven witnesses in all were called, the 1st and 2nd appellants, after their respective defences, were both convicted of the lesser offence of manslaughter and were each sentenced to seven (7) years imprisonment.

Being dissatisfied with the said decision of the High Court, the appellants appealed to the Court of Appeal sitting in Benin City which dismissed their appeal and affirmed the decision of the High Court. They have both further appealed to this court upon a joint notice of appeal containing two grounds of appeal dated 26th day of August, 2002.

I will pause here and state the facts of the case briefly as follows:

The 1st and 2nd appellants were two of three persons accused of the murder of one Nathaniel Amu, second son of one Chief Alfred Amu whose first son, Augustine Amu now deceased owned a piggery where both 1st and 2nd appellants worked.

On the 7th day of March, 1989 Chief Alfred Amu, requested Mr. Doherty Sunny Osifo (PW 2), an agricultural expert and a Government employee, to go to his late son’s farm to assess its state with a view to advising on what steps he deemed expedient for the well being of the pigs on the farm. Nathaniel Amu, deceased following the agreement reached between his father and Mr. Osifo accompanied the latter to the piggery. Upon their arrival, they were subjected to a sudden attack by a mob resulting from the refusal by the 1st and 2nd appellants to open the farm gate of the piggery. As they were being beaten up, he (i.e. PW 2), said he ran away to seek for help. Upon his flight from the scene and after raising an alarm to the effect that 2nd PW was a thief, a crowd which had been attracted apprehended and beat him. The beating persisted until he was able to identify himself with the aid of his complimentary card he carried on him. It was next stated that the deceased lay there in a pool of blood outside the farm gate from where he was rushed first to the police station and later to the hospital. The deceased who was eventually said to have been discharged, developed a swollen body and subsequently died.

The 2nd appellant’s account in his defence was that he was not at the scene of the crime at all but was only attracted there by an alarm raised by people in the vicinity following the presence of thieves in the neighbourhood of the piggery.

A notice of appeal brought at the instance of the 1st appellant by his counsel dated and filed on 18th October, 2002 containing five grounds to supercede the earlier one filed at the conclusion of the trial, was adopted and a copy thereof served on learned counsel for the 2nd appellant.

Before the hearing of the appeal, learned counsel for 2nd appellant brought a motion for leave to appeal, extension of time to appeal, leave to raise fresh issues and to regularize the brief of argument. The prayer not being opposed by learned counsel for the 1st appellant and C. U. Ozua Esq. of the Office of the Director of Public Prosecution, Edo State, was accordingly granted as prayed.

The 2 issues submitted as arising for our determination by the learned counsel for the 1st appellant reads:

1. Whether the Court of Appeal was correct in holding that the acts of the 1st appellant caused the death of the deceased.

On behalf of the 2nd appellant, the issue which calls for determination is:

2. Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the 2nd appellant in view of the evidence led at the trial court and the defence of alibi raised by the 2nd appellant.

The respondent for his part, adopted these two issues formulated by the appellants.

Arguing first issue 1, learned counsel for him submitted how the issue emanates and encompasses all the grounds of appeal – all of which it is argued, are directed against the finding of the Court of Appeal (hereinafter in the rest of this judgment referred to as the court below): The cases of State v. Ogbubunjo (2001) 2 NWLR (Pt. 698) 576; (2001) 13 WRN 1 and Omogodo v. State (1981) 5 SC 5, were called in aid. It is thereafter, contended that evidence established that the deceased did not die immediately after the attack but died three months later. A critical review of the medical evidence especially that given by PW 5 and PW 6, it is argued, becomes imperative, adding that DW 6 it was who first testified that:

“On examination he was found to have multiple bruises all over the body. The left eye was swollen; there was infection of blood in the white part of the left eye. There was bleeding from the nose. Both knees had abrasion (sic) as well as the skull.”