⦿ CASE SUMMARY OF:
Ude & Anor. v. State  – SC
– Extra judicial statement;
Elvis Chukwuma Ilomuanya
 NGSC 17;
⦿ LEAD JUDGEMENT DELIVERED BY:
Musa Dattijo Muhammad, JSC.
* FOR THE APPELLANT
– Ngozi Olehi, Esq.
* FOR THE RESPONDENT
– Umch Kalu (A. G) Abia State.
⦿ FACT (as relating to the issues)
I shall elaborate on the facts that brought about the appeal at once. The appellant, others convicted along with him as well as the persons murdered by them all hail from Lokpanta in Umunneochi Local Government Area of Abia State. Lokpanta Youth Movement and the Lokpanta Development Union came into existence, the latter being the first in time, with the objective of enhancing the development of the Lokpanta Community. The former’s rivalry with the latter took an unwholesome trend. Its members serially threatened persons in the community and constituted themselves into a court adjudicating in all manner of cases. The appellant and his co-accused belonged to the youth movement. Their victims were members of the Lokpanta Development Union. Following the youth movement’s resolve to wrestle power from the Lokpanta development Union, its women members staged a demonstration in support of their organisation on the 3rd January 2007. The appellant who had been billed to become the youth movement president is said to have sponsored the demonstration. In the course of the demonstration, which eventually degenerated into a riot, the deceased were visited and subjected to abuse and torture in their respective houses by the appellant and other members of the youth movement. By the 4th of January 2007, the deceased persons along with PW4 were rounded up, taken to the market square where they were flogged and thereafter transported on motorcycles to a bush on a hill by the Lokpanta and Agwu border. At the hill, the deceased were brutally murdered and their dismembered bodies burnt. PW4, who was also forcefully transported by their abductors, escaped the clutch of the assassins by jumping into a pit and fleeing to safety. The appellant denied taking part in the murder of the deceased and insists that he is implicated by his detractors.
At the end of trial, the court preferred the case of the respondent and convicted the appellant and the two other accused persons as charged.
Appellant’s appeal to the court below was dismissed thus the instant appeal on a Notice containing four grounds filed on 2nd July 2012. At the hearing of the appeal, parties having identified their briefs adopted same as their arguments for and against the appeal.
1. Whether the quality of eye-witness evidence relied upon by the court below in affirming the conviction of the Appellant by the trial court is not questionable and doubtful and therefore insufficient to sustain the affirmation of conviction of the Appellant by the court below.
2. Whether the court below was not wrong in holding that the prosecution demolished the Appellant’s alibi when indeed the alibi given to the police at the earliest opportunity was not found to be false.
3. Whether the court below was not wrong in affirming the trial court’s decision that the Appellant counseled and procured other accused persons to kill the deceased in the absence of specified intention and positive acts of encouragement.
4. Whether the court below was not wrong in affirming the trial court’s conviction of the Appellant wherein Appellants evidence at the trial court was given scant regard thus violating Appellant’s right to fair hearing.
⦿ ARGUMENTS OF PARTIES (SERIALLY IN ACCORDANCE WITH THE ISSUES)
* FOR THE APPELLANT
1. i. Counsel submitted, no where in PW1 extra judicial statements, Exhibits B to B3, it is contended, has PW1 stated he was eye witness to the facts which constitute the offences of murder the appellant is convicted for.
Again, it is neither PW1 evidence in chief nor under cross examination that he witnessed the actual murder of the deceased by, among others, the appellant. Indeed, submits learned appellant counsel, PW1 evidence under cross examination at page 157 of the record ends dramatically with the testimony that he never witnessed the commission by the appellant of the offences he stands convicted for.
2. i. Counsel submits, Appellant had at his earliest opportunity in his statement to the police, Exhibit H, vehemently denied ever being at the scene of crime at the times relevant to the occurrence of the offences. Failure of the prosecution to disprove appellant’s alibi meant that he never was a party to the commission of the offences. Learned counsel relies on Okosi v. The State (1998) 1 ACLR 281 at 304 and urges that this Court so holds.
3. i. Under the 3rd issue, learned appellant’s counsel submits that appellant’s conviction as affirmed by the lower court is based on the wrong inference that the appellant who had not been situated at the scene of crime had in furtherance of a common intention murdered the deceased. The evidence before the two courts, on the common intention of the convicts to kill, learned counsel contends, is incapable of been believed given surrounding circumstances.
*FOR THE RESPONDENT
1. i. The lower court, contends learned respondent’s counsel, not being in the same vantage position as the trial court, is not entitled in law to substitute its own view of the evidence of the witnesses with that of the trial court. Both courts having acted lawfully, learned counsel submits, this Court lacks the jurisdiction to interfere with the judgment appealed against.
2. i. Under the 2nd issue, learned respondent’s counsel submits that the alibi the appellant raises is vague and inchoate. Having failed to furnish the prosecution with particulars of the alibi, the appellant cannot turn around and blame the former from investigating the truth or otherwise of his claim. Most importantly, submits learned counsel, the evidence of PW1, PW2, PW3 and PW4 has affixed the appellant at the market square as well as at the hill top where they eventually murdered their victims thereby making appellant’s alibi on the authority of Gachi v. The State (1965) NMLR 333 and Dogo v. The State, (supra) untenable.
3. i. On the 3rd issue, learned respondent’s counsel asserts that the lower court is right to have affirmed the trial court’s judgment for the very same reason that disentitles the appellant to his alibi claim. The appellant, it is argued, by the testimonies of particularly PW2 and PW4, has been shown to be the brain not only behind the demonstration and riot that preceeded but also the murder of the deceased as well. Not only did the appellant agree with others to kill the deceased persons, evidence also revealed him congratulating the others after the act.
4. i. On the 4th issue, learned respondent’s counsel refers to the decision in Deduwa v. Okorodudu 1976 NMLR 236 at 246 and contends that neither the trial court nor the lower court contravened the principles of natural justice in the course of hearing appellant’s case. In both courts, it is argued, the appellant was allowed to present his case and same was considered. It remains the primary duty of the trial court, argues learned counsel, to ascribe probative value to the evidence of witnesses and it is not the practice of the appellate court to lightly interfere.
⦿ HOLDING & RATIO DECIDENDI
ALL ISSUES WERE RESOLVED TOGETHER.
i. A riot ensued following a demonstration by supporters of each group. On 4 January, 2007 the appellants and others at large took the deceased persons and PW4 to the market square, flogged them ruthlessly, took them to a bush on a hill, dismembered them and burnt their remains. PW4 escaped to tell how the deceased persons were killed. One of those killed and burnt to death was PW4’s father. The appellants acted together. Put in another way there was a common intention between them to kill, and they killed members of the Lokpanta Development Union. The learned trial judge accepted these facts after hearing evidence from PW1, PW2, PW3 and PW4.
ii. Learned counsel for the appellant has been unable to satisfy this court that the facts found by both courts below are perverse, or that the trial court overlooked some principle of law or procedure. In the circumstances the facts relied on by the trial court to convict the appellant and affirmed by the Court of Appeal are correct.
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
The fact that these witnesses, PW2 and PW4 are blood relations of the deceased without more neither disqualifies them from being witnesses for the prosecution nor makes their evidence incredible. – Dattijo, JSC. Ude v. State (2016)
A plea of alibi should be raised at the earliest opportunity, in the accused person’s statement to the Police investigating the case. It is the duty of the accused to state particulars relating to where he was at the material time as well as the person or persons with him at the time and place of the alleged crime. – Ngwuta, JSC. Ude v. State (2016)
Every judge has his style of writing a judgment since each judge is a unique individual and so is not tied to a particular way of producing a judgment or format so long as a consideration of the facts or materials before him are made and of course the balance of justice met. – M. Peter-Odili, JSC. Ude v. State (2016)
Therefore, to utilize the common intention theory, the Court must ask itself if certain conditions exist which are:- 1. There must be two or more persons, 2. They must form a common intention, 3. The common intention must be towards prosecuting an unlawful purpose in conjunction with one another. 4. An offence must be committed in the process, and 5. The offence must be such a nature that its commission was a probable consequence of such purpose. – M. Peter-Odili, JSC. Ude v. State (2016)