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Vivian Odogwu V. The State (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A.

The appellant along with other people at large were arraigned on an information/charge before the Rivers State High Court, Port Harcourt (High Court hereinafter) for the offence of murder. A statement of the offence on the charge sheet was that the Appellant and others at large on the 31st day of July, 2001 at No. 49 Woji Road, Rumuolu, and Port-Harcourt murdered one Iyobu Nemieboka contrary to Section 319 of the Criminal Code, Laws of Eastern Nigeria, applicable to Rivers State.

Four (4) witnesses testified for the prosecution and several exhibits were admitted in the discharge of the duty to prove the alleged offence beyond reasonable doubt as required by law.

On her part, the Appellant testified in defence of the charge against her.

After taking addresses of learned counsel, the High Court in the judgment delivered on the 8th of February 2005 found the Appellant guilty of the offence charged and sentenced her to death by hanging.

Being dissatisfied and indeed aggrieved by her conviction and sentence, the Appellant in exercise of her constitutionally guaranteed right of appeal, caused a Notice of Appeal dated the 30th of March 2005 to be filed on the 6th of April, 2005 against same.

In line with the practice in this court, an Appellant’s brief dated 27th January, 2006 was filed on 2nd March, 2006 based on the said Notice of Appeal. However the Notice of Appeal was amended with the leave of court on the 5th of June, 2008 and consequently, an Amended Appellant’s brief was filed on the 10th of June, 2008. The Respondent’s brief was filed and deemed properly filed on the date the appeal came up for hearing, that is, on the 28th of October, 2008.

At the hearing, Chief Chuks Muoma, SAN, leading Chief (Mrs.) A.N. Muoma, for the Appellant adopted and relied on the Amended Appellant’s brief as his submissions in support of the appeal. In his oral highlight of the brief, the learned senior counsel drew attention of the court to the statement of people who were not called as witnesses in the case but which were said to have been relied on by the High Court to convict the Appellant. He also referred to the pieces of evidence rejected by the High Court which according to him would have created doubt about the guilt of the Appellant. Lists of additional authorities filed on the 12th of December, 2007 and 14th of October, 2008 were relied on. Particular attention was drawn to the case of OJI V. THE STATE listed as No 1 on the list filed on the 14th of October, 2008. We were finally urged to allow the appeal, set aside the conviction by the High Court and discharge and acquit the appellant.

For the Respondent, Mr. R. N. Godwins, Director of public Prosecutions (DPP), Ministry of Justice. Rivers State adopted and relied on the Respondent’s brief-settled by him as the submissions in support of the Respondent’s position in the appeal. In his oral emphasis of the brief he said the circumstantial evidence against the Appellant was direct, positive and compelling as to irresistibly point to the guilt of Appellant. Further that the Appellant has not been able to show that the evaluation of the evidence by the High Court was perverse and so urged us to dismiss the appeal and affirm the decision of the High Court.

From the seven (7) grounds of appeal contained on the amended Notice of Appeal, four (4) issues were distilled in the Amended Appellant’s brief as the ones calling for determination in the appeal. The issues which were set at paragraph 2 on page 3 of the said paragraph are:-

(a) “Whether the learned trial judge was right in relying on the evidence of the tainted witnesses to convict the appellant.

(b) Whether the hearsay evidence relied upon by the learned trial judge in convicting the appellant amounted to proof beyond reasonable doubt of the charge/offence against the appellant.

(c) Whether the conviction of the appellant was based on a proper evaluation of the evidenced at the trial.

(d) Whether the learned trial judge was right in excluding pieces of evidence which were vital to the defence thereby depriving the appellant of the benefit of the doubt which that evidence could have created in the trial or in the case of the prosecution.