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Nnunukwe v. State

CHIEF  FYNEFACE  NNUNUKWE

V

THE STATE

COURT OF APPEAL

( PORT HARCOURT DIVISION )

JAMES OGENYI OGEBE, JCA ( Presided )

MICHAEL EYARUOMA AKPIROROH, JCA (Read the Lead Judgment)

ABOYI JOHN IKONGBEH, JCA

CA/PH/272/2000

WEDNESDAY, 11TH DECEMBER, 2002

COURT - Duty on where an eye-witness gives two conflicting statements with only the later one implicating others

COURT - Duty on while dealing with charge of murder

CRIMINAL LAW AND PROCEDURE - Alibi - Defence of - Duty on police to properly investigate same once raised

CRIMINAL LAW AND PROCEDURE - Murder - Charge of murder - Duty on court while dealing therewith

CRIMINAL LAW AND PROCEDURE - Murder -Charge of against accused person - What prosecution must prove to establish same

EVIDENCE - Eye-witness - Where gives two conflicting statements with only the later one implicating others -Duty on court

EVIDENCE - Witness - Testimonies of two witnesses - Inconsistency therein -  Who can explain same - Whether question of explanation can be extended to conflict between oral evidence of a witness and his previous statement


EVIDENCE - Witness - Where made previous statements inconsistent with evidence given at trial - How evidence of should be treated

Issue:

Whether upon the correct appreciation of the law and proper appraisal of the evidence before the court, the learned trial Judge was right in holding that the prosecution proved that the appellant was guilty of the crime of the murder of Hycienth Onyekazi Obilor beyond reasonable doubt.

Fact:

On 22/2/95, PW6, Joshua Nwankwoala had his birthday party and appointed the deceased as the Chairman. At the end of the party, PW3 Christian Nwankwoala took the deceased at his request to his girl friend’s house (PW8) in the premises of the 1st appellant. The deceased told him to come back to pick him at 5 a.m. the following morning and he left. PW8 Rose Obinna the deceased’s girlfriend was living in the premises of the appellant. On 22/7/95 as she was sleeping in the house, she was woken up by the voice of the deceased calling her and she opened the door to see what was happening to him but was ordered by the 2nd appellant who threatened to shoot and kill her if she came out. She opened the door a second time and saw the 2nd appellant beating and dragging the deceased in front of her door step towards the 1st appellant’s frontage under a pear tree. As a result of the threat by the 2nd appellant to shoot and kill her, she opened the louvres in her room and saw the appellants beating up the deceased. Her window faced the 1st appellant’s building and her house was at the centre of the premises and she saw clearly what happened to the deceased.

PW1, Nwairegbu Appolos testified that on 23/7/95 at 6 a. m. he was on his way to board a commuter bus at Umuaturu junction and as he approached the junction of Umuola, he met the 2nd and the 3rd appellants carrying something. When he got closer to them, he discovered that it was a human being that they were carrying. On enquiry, the 2nd appellant told him that the person got drunk in their yard and that they were carrying him to where they would cool his body.  At day break, he heard people shouting that somebody had been killed and dumped at Umola junction. He returned to the spot and observed that the person was already dead and identified the deceased whose body was abandoned in a collection of water near Umuola junction as his brother. He said that when he saw the 1st and the 2nd appellants carrying the deceased, one was holding his body below his arms while the other was carrying his two legs.

The appellants, Fyneface Nnunukwe, Nathaniel Ibe Nnunukwe and Clement Anyalebechi Njoku were charged with the murder of Hycienth

Onyekazi Obilor contrary to section 319(1) of the Criminal Code, Cap 30 Laws of the Eastern Nigeria, 1963 applicable in Rivers State.

The prosecution called eleven witnesses to prove its case. The defence of each of the appellants is a total denial of the offence.

At the conclusion of the trial, the trial court convicted each of the appellants and sentenced each of them to death by hanging.

Dissatisfied with their convictions, each of the appellants has appealed to the Court of Appeal