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(2017) LPELR-42852(CA)

In The Court of Appeal of Nigeria

On Monday, the 14th day of August, 2017


Before Their Lordships

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria




THE STATE - Respondent(s)

Other Citations

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This appeal borders on the Offence of Murder.

This appeal is against the judgment delivered on 29/3/2004 by the High Court of Justice, Imo State, presided over by Hon. Justice A.O.H. Ukachukwu convicting the Appellant (who was the 2nd accused person in Charge No: HOW/1C/2004) for the offence of murder and sentencing him to death therefore as prescribed by the Criminal Code, Cap. 30, Vol. II, Laws of Eastern Nigeria, 1963, under which he and two other accused persons were charged.

???In the one count Information, one Vincent Ogueri (1st accused); Boniface Nwachukwu (2nd accused person and now Appellant); and Tajudeen Oladipo (otherwise called Johnson Chima) - 3rd accused person; were jointly charged with the murder of one Chief Ogbonnaya Uche (alias OGB). The charge was withdrawn against the 3rd accused person in the Information, on 31/5/2004 given his persistent absence in Court and the inability of the Police to apprehend him for the purpose of his trial. Thereafter the lower Court on the same 31/5/2004 duly took the respective pleas of the 1st and 2nd accused persons and each of them pleaded not guilty to the charge of murder in the Information.
Trial proceeded in the case and throughout the trial the 1st accused person was absent from Court (except on one occasion) even though he was represented by learned counsel on every occasion when trial was conducted. The prosecution fielded 5 witnesses in the proof of its case against the 1st and 2nd accused persons; while the 2nd accused person only, testified in his own behalf. Some pieces of real evidence and statements made to the Police by the 1st and 2nd accused persons respectively, were tendered in evidence by the prosecution in the proof of its case. The pieces of real evidence and statements having been admitted were duly marked as exhibits. Having had the benefit of the written addresses of the prosecution and the accused persons, the lower Court after an evaluation of the evidence before it, found the accused guilty and sentenced them to death accordingly.

???Miffed with the judgment of the lower Court Appellant  filed this appeal.

The Court determined the appeal on this lone issue:
 "Whether or not the specific offence of murder preferred against the Appellant was proved beyond reasonable doubt by the prosecution having regard to the legal and admissible evidence before the lower Court"

In a unanimous decision, the appeal was allowed. The conviction and sentence of the trial Court was quashed and the Appellant was discharged and acquitted.

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