Ikpo V The State (1995)
LAWGLOBAL HUB Lead Judgment Report
IGUH, J.S.C.
The appellants, Silas Ikpo and Chigozie Ikpo, as 2nd and 3rd accused persons, along with seven others were arraigned before the High Court of Rivers State, holden at Ahoada, charged with the offence of murder contrary to Section 319 of the Criminal Code. The particulars of the offence charged are as follows:-
“Mark B. Ikpo, Silas Ikpo, Chigozie Ikpo, Gospect Ikpo. Christian Tobiah, Evison Ikpo, Ahanam Ikpo, Herbert Aloni and James Abraham on the 17th day of January, 1983 at Ochigba Village in the Ahoada Judicial Division, murdered Stephen Biogbo.
Each of the accused persons pleaded not guilty to the charge and the prosecution called a total of seven witnesses at the trial. The accused persons gave evidence in their own defence but called no witnesses.
The substance of the case as presented by the prosecution was that the accused persons, labouring under the misapprehension that the deceased had invoked some juju spell on the Ikpo family, to which they all belonged, and as a result of which one of their sons allegedly died brutally attacked the deceased, tied him up hands and legs, gagged him and forcibly carried him from his house into the bush on the fateful night. He was never seen alive thereafter.
Following a report of the incident made to the police by P.W.2, the wife of the deceased, the appellants, together with the other accused persons were arrested. A search party was organised and the first accused person took the police to a river from which the dead body of the deceased was recovered.
The case for the defence was a total denial of the charge. The learned trial Judge, Okor J., after an exhaustive review of the evidence on the 18th December, 1987 found the 4th, 6th, 8th and 9th accused persons not guilty of the offence of murder as charged. Accordingly he acquitted and discharged them. The 1st, 2nd, 3rd, 5th and 7th accused persons were however convicted as charged and were accordingly sentenced to death by hanging.
Dissatisfied with this judgment of the trial court, the convicted persons lodged an appeal against their convictions and sentences to the Court of Appeal, Port Harcourt Division. The Court of Appeal on the 13th day of April, 1994 allowed the appeal of the 1st, 5th and 7th accused persons, set aside their convictions and sentences and, in their place, entered verdicts of acquittal and discharge. The appeals lodged by the 2nd and 3rd accused persons were however dismissed and their convictions and sentences were accordingly affirmed. It is against this judgment of the court below that the said 2nd and 3rd accused persons, to wit, Silas Ikpo and Chigozie Ikpo, hereinafter referred to as the appellants, have now appealed to this court.
Both the appellants and the respondent filed and exchanged their respective written briefs of argument. In the appellants’ brief, the under-mentioned issues were formulated for resolution, namely:-
“(a) Whether the Court of Appeal duly considered the provisions of section 34(3) of the Evidence Act at the time it affirmed the convictions and sentences of the appellants.
(b) Whether there was proof beyond reasonable doubt by the prosecution to necessitate the affirmation of convictions and sentences of the appellants by the lower court.”
The respondent, for its own part, identified four issues in its brief for the determination, of this court. These are as follows:-
“1. Not having filed any additional ground of appeal, whether the appellant can argue an additional ground without first properly seeking and obtaining the leave of this Honourable Court.
- Whether such leave to file and argue an additional ground of appeal can be properly sought for and obtained in the appellant’s brief of argument.
- Whether section 34(3), now 35(3) of the Evidence Act is applicable in the circumstances of this cause.
- Whether the case was not proved beyond reasonable doubt.”
I think it should be observed that following the appellants’ application for leave to file an additional ground of appeal and an order deeming the proposed additional ground of appeal which had already been filed as duly filed and served, the first and second issues identified by the respondent for determination become irrelevant and overtaken by events. The respondent’s third and fourth issues are identical with the two issues formulated by the appellant. Accordingly, I shall in this judgment confined myself to the issues raised in the appellants’ brief of argument.
At the hearing of the appeal before us on the 4th day of October, 1995, learned counsel for the appellants’, Dr. T. C. Osanakpo adopted his brief of argument and made oral submissions in amplification thereof. He contended that there is some doubt as to which of the two police officers, to wit, P.W.5 or P.W.7 that recorded the appellants’ extra judicial statements, Exhibits G, G1 and F, F2 upon which the appellants were convicted. He stressed that the appellants maintained that they made their respective written statements to P.W.5, Inspector Emmanuel Nwosu and not to P.W.7, Sergeant Dennis Azuma who tendered them.
He argued that the proper person to tender the said statements was P.W.5 and not P.W.7 and that in the absence of compliance with the provisions of section 34(3) of the Evidence Act, Exhibits G, G I and F, F2 were wrongly received in evidence and must be discountenanced in their entirety. He urged the court to hold that the said Exhibits are inadmissible in evidence and therefore incapable of grounding the convictions and sentences passed on the appellants. Learned counsel further argued that being inadmissible, the appellants’ statements in issue were of no evidential value and could therefore not be corroborated by any other legal evidence before the trial court. He concluded by submitting that the prosecution in the circumstances of this case woefully failed to prove the guilt of the appellants beyond all reasonable doubt.
Learned counsel for the respondent, Mr. K. O. Appah, Director of Public Prosecutions, Rivers State who appeared before us when this appeal came up for hearing on the 3rd day of October, 1995 had, due to circumstances beyond his control, sought for and obtained the leave of this court to be absent from court at the continuation of hearing of the appeal the following day. He did indicate however that he had filed the respondent’s brief and that he was adopting the arguments therein canvassed. In it, learned counsel argued that the provisions of section 34(3) of the Evidence Act, Vol. VIII, Cap. 112 Laws of the Federation of Nigeria, 1990 are not applicable to the facts and circumstances of this case. He contended that it was therefore not necessary for the court below to have considered them particularly as the issue was, at any rate, not canvassed before it. He stressed that both P.W.5 and P.W.7 had testified before the trial court and unequivocally stated whose statements they recorded during their investigation of the case. He submitted that the statements in issue marked Exhibits F, F2 and G, G1 were, on the evidence, recorded and tendered in the proceedings by P.W.7. He therefore submitted that they were properly received in evidence by the trial court. Learned respondent’s counsel further argued that Exhibits F, F2 and G, G1 are both confessional statements of the appellants and that the conviction of the appellants thereupon was in law proper and justifiable as an accused person can be convicted solely on his confessional statement. Learned counsel concluded by submitting that the court below was right in affirming the judgments of the trial court with regard to the convictions and sentences passed on the appellants and he urged this court not to disturb the concurrent findings of the lower courts in the case.
Turning now to the first issue that was canvassed by the parties, section 34(1) of the Evidence Act provides thus:-
“34(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceedin
Other Citation: (1995) LCN/2604(SC)
