John Ogbu V The State (2007)

LAWGLOBAL HUB Lead Judgment Report

W.S.N. ONNOGHEN, J.S.C. 

This is an appeal against the decision of the Court of Appeal holden at Jos in appeal No. CA/J/185C/91 delivered on the 9th day of December, 2002 affirming the conviction and sentence of the appellants by the Borno State High Court holden at Maiduguri in charge No. M/4C/97 presided by OGUNBIYI J, (as she then was). The appellants were charged with the following offence:

“COUNT 1 That you, John Ogbu and Linus Eze, on or about the 12th October, 1986, at about 2100 hours at Gomari Ward, Maiduguri, did commit culpable Homicide punishable with death in that you caused the death of Basil Eziam by doing an act to wit:- Beating, lifting Basil Eziam (deceased) by the legs and hitting his head against the ground with the knowledge that his death would not only be likely but the probable consequence of your act, and you thereby committed an offence punishable under section 221 (b) of the Penal Code.

COUNT 2. That you John Ogbu and Linus Eze, on or about the 12th October, 1986, at about 2100 hours at Gomari Ward, Maidiguri, had formed a common intention between yourselves to commit Culpable Homicide punishable with death and in furtherance of which you did the following criminal act, to wit:- Beating and lifting Basil Eziam (deceased) by the legs and hitting his head against the ground which is an offence punish-able under section 221(b) of the Penal Code read together with section 79 of the Penal Code.”

At the trial, the prosecution called seven witnesses while the appellants testified and called three witnesses. In a judgment delivered on the 4th day of October, 1990 the learned trial judge found the appellants guilty of the offences charged and sentenced them to death. Appellants were dissatisfied with that decision and appealed to the Court of Appeal which affirmed the decision of the trial court and dismissed their appeal. Upon further appeal to this court, the issues for determination as distilled from the grounds of appeal at pages 2 and 3 of the Amended Appellants’ Brief of Argument filed on 12/5/04 by S. OYAWOLE Esq of counsel for the appellants are as follows:

“1.Whether the Appellants were denied their fundamental rights to fair hearing when the Court below determined their appeals without the Exhibits tendered at the trial court (Ground 6)

2. Whether the learned Justices of the Court of Appeal were right when they upheld the evaluation of evidence by the learned trial judge and affirmed the convictions and sentences of the Appellants (Grounds 4 & 5).
3. Whether the learned Justices of the Court of Appeal were right when they held that there were no substantial contradictions in the evidence of PW1 at the trial court (Ground 3).
4. Whether the charges against the Appellants were proved beyond reasonable doubt to warrant the affirmation of their convictions and sentences by the court below (Ground 1 of the Notices of Appeal in the main record and Ground 7 Notices of Appeal in the Supplementary record).
5. Whether the learned Justices of the Court of Appeal were right in over ruling themselves of their earlier finding that loss (sic) Exhibits tendered will be fatal to the determination of the appeal before them and proceeded to determine the appellants’ appeal without first considering the effect of the loss of the said Exhibits (Grounds 1 &2).”

The respondent filed no brief of argument neither was any oral argument preferred on its behalf. It is the prosecution’s case that on 12th October 1986 at about 2100 hours the appellants and one Ikechukwu were returning home from a naming ceremony in Ngomari Ward, Maiduguri but midway in their journey, they decided to have more drinks at Merryland Hotel, Maiduguri. The incidence took place after they left the said hotel and continued their return home. On getting to Ngomari Bus Stop, the appellants and Ikechukwu met the deceased, Basil Ezian who then engaged Ikechukwu in a discussion over an undisclosed subject thereby delaying their return. The 1st appellant became worried for he was tired and wanted to get home and consequently told the deceased not to waste their time by continuing with the discussion with Ikechukwu. When the deceased continued with the discussion, 1st appellant approached the deceased and a fight ensued as a result of which 1st and 2nd appellants jointly beat up the deceased and lifted him up by the legs and hit his head on the ground which subsequently led to the death of the deceased before he could get to the General Hospital, Maiduguri.

The case of the defence is simply that it was the deceased who started the fight by giving Linus, the 2nd appellant a blow but that 2nd appellant did not retaliate. The deceased persisted and at a stage tried to use his leg in a Karate fashion to attack the 2nd appellant in the process of which he missed his target and fell down and collapsed and later died. In arguing issue No. 1, learned counsel for the appellants submitted that the appellants were denied their fundamental right to fair hearing when the Court of Appeal determined their appeals without the exhibits tendered at the trial court. Referring to pages 151 and 158 of the record, learned counsel stated that the appeal before the lower court was first heard and judgment reserved to 8th July, 1998 but that the judgment could not be written because the exhibits were not traced; that parties were subsequently told to take steps to retrieve the exhibits to enable the court consider the appeal; that after exhaustive efforts involving the police, Registrars of the courts, and counsel it was discovered that the exhibits were lost, and the lower court was duly informed; that the lower court consequently ordered counsel to address on the way forward in the circumstance resulting in the appellants’ counsel filing a complementary brief of argument on the issue which was taken into consideration by the lower court in the judgment on appeal before this Court. Referring to order 4 Rule (I) (f) of the Court of Appeal. Rules 2002 learned counsel submitted that it is the duty of the Registrar of the trial court to compile record including exhibits and forward same to the appellate court. To emphasis the point further learned counsel cited and relied on Effiong v. Ironbar (1965) NMLR 413 at 416, Anyanwu v. State (2002) 13 NWLR (pt. 783) 107 at 127 & 140; (2002) 11 SCM, 95 that since the decision of the trial court placed reliance on the exhibits the exhibits were very important for the review of that decision by the Court of Appeal; that exhibits A and I the medical reports were not before the lower court even though the trial court based its conclusion on them.

Referring to page 159 of the record learned counsel submitted that the lower court made a sumersault with regard to its earlier holding that it would be impossible to decide the appeal without the exhibits by holding that the loss of the exhibits did not constitute a hinderance to the determination of the appeal; that the court could, in the circumstance either strike out the appeal, or order a retrial or grant an equitable relief where either of the two options above will not meet the justice of the case but stated that on the authority of Engineering Ent. Of Niger Contractors Co. of Nig v. A-G of Kaduna State (1987) 2NWLR (pt. 57) 381 at 391 striking out of the appeal would not meet the justice of the case since the appellants were not the cause of the loss; that an order of retrial would be oppressive on the appellants particularly as the exhibits were lost; that the proper thing to do in the circumstance is to quash the conviction and sentence of the appellants. It should be noted that the above submissions of counsel are the same with what he submitted before the lower court in his complimentary brief which submissions were duly considered in the judgment now on appeal before this court. It is in accord with equity and good conscience as well as the right to fair hearing that all material and relevant facts and documents duly tendered and admitted in proceedings have to be taken into consideration in reaching a decision in the case or matter. From the appellants’ brief it is clear that the exhibits which learned counsel is complaining about are the medical reports and the statements of the accused persons.

To resolve the issue under consideration it is my considered view that the materiality and relevance of the said exhibits to the determination of the appeal before the lower court must be examined in relation to the issues that called for determination by that court. The issues were three and they are as follows:

“(1) Was the learned trial judge right to have relied on the evidence of PWI in convicting the accused persons despite the grave inconsi-stencies contained therein?

(2) Whether the judgment delivered by the learned trial judge six months after address did not occasion miscarriage of justice

(3) Whether the failure of the court below to consider the evidence of the defence did not occasion miscarriage of justice”

A glance at the above issues for determination before the Court of Appeal glaringly shows that the lost exhibits, to wit, medical reports and statements of the appellants are not only unnecessary but irrelevant for their determination. None of the issues is related to the exhibits or any exhibit at all. The medical reports could have been relevant if the cause of death was being questioned and, may be, there is no other direct evidence on how the deceased met his death or that direct eye witness account is alleged to be inconsistent with the medical report. Instead issue No.1 is complaining of inconsistency or contradictions in the evidence of PW1 which evidence was relied upon by the trial court to convict the appellants. I hold the firm view that the said issue can validly and effectively be resolved without the lost exhibits particularly as the said exhibits are not material neither are they relevant to the determination of that issue. What the Court of Appeal was required to do, and in fact did, is to examine the evidence of PW1 and see whether there are contradictions therein and to proceed further to determine, where contradic-tions are found to exist, whether they are material contradictions which could render the evidence of PW1 unreliable.