Abainta Okendu Ubani & Ors v. The State (2003)



Abainta Okendu Ubani & Ors v. The State (2003) – SC

by PaulPipar



1. Abainta Okendu Ubani
2. Chijioke Ubani
3. Gabriel Chikezie


1. The State


(2003) LPELR-3281(SC);
[2003] 18 NWLR (Pt.851) 224;
(2003) 12 S.C (Pt II) 1;
(2003) 12 S.C (Pt II) 1;


Supreme Court


D. O. Edozie, J.S.C.



– E.T.O. Njoku, Esq., for the 1st and 2nd Appellants;
– H.E. Wabara, Esq., for the 3rd Appellant;


– Chief S.U. Akume;


By an information dated 13th day of September, 1991 the three appellants on record were arraigned with three others before Isaiah Ngwa High Court jointly charged on two counts of offences, to wit, conspiracy and kidnapping contrary to sections 516 (A)(a) and (364)(b) respectively of the Criminal Code Cap., 30, Vol. 11, Laws of Eastern Nigeria, 1953, applicable in Abia State.

The particulars of the offences alleged that the three appellants and the three others at large on the 26th of March, 1991 at Amuzu Umurasi in Isiala Ngwa Judicial Division conspired to commit a felony, to wit, kidnapping and on the aforesaid date at Umuikeogale Oruokwu imprisoned Allison in such a manner as to prevent Felicia Abajua his wife from discovering the place where he was imprisoned. Each accused person pleaded not guilty to the charge and thereafter the prosecution called five witnesses at the conclusion of which the learned trial Judge, Isuama J, pursuant to section 163 of the Criminal Procedure Law ordered that the charge be amended to read murder contrary to section 319 of the said Criminal Code.

The star witnesses for the prosecution who gave eyewitness accounts of the events that led to the charge against the appellants were Ugboaku Abajua (P.W.1) and Felicia Abajua (PW2) who were the daughter and wife respectively of Allison Abajua hereinafter referred to as the deceased. Their evidence was to the effect that on 26th March, 1991 at about 6 a.m., one Hilary Chukwuemeka, a legal practitioner came to the house of the deceased, met him where he was weaving a mat and threatened that if the deceased did not vacate his premises, he would see what would happen to him. Apparently, the deceased did not heed the warning. Subsequently, at about 10 a.m. the same day, the six accused persons standing trial including the three appellants in company with others at large who are from Amuzu village and were relations of Hillary Chukwumemeka the legal practitioner and had come to harvest palm fruit near the house of the deceased, pounced on the deceased and asked him if he did not hear what their lawyer told him. They, armed with guns, matchets and clubs started beating the deceased until he fell down. He was dragged to the house of one of the accused person at Amuzu.

Available:  Deacon J.K. Oshatoba & Anor v. Chief Johnson Olujitan & Anor (2000)

It is the case for the prosecution that the deceased died in consequence of the assault on him by the accused persons with whom he had a land dispute. A report was lodged at the police at Umuoba and on investigation, some arrests were made. On 15/11/91, Inspector Silas Onuoha (P.W.4) took Dr. Chima Nwafor (P.W.3) to Umuorasi in the house of one of the accused persons where from a disused latrine pit a human forearm and a human leg were exhumed. The P.W.3 in his evidence stated that from the specimen provided, the sex of the victim could not be determined but that the extent of the decomposition did suggest that the body of the victim must have been there for about six months.

In their defence, the accused persons denied any involvement in the murder of the deceased. They elected not to go into the witness box after the relevant provision of the Criminal Procedure Law was explained to them. The learned trial Judge after a careful review of the evidence convicted the six accused persons for the offence of murder and accordingly sentenced each to death.

Each of three appellants on record lodged an appeal to the Court of Appeal Port Harcourt Division and in its judgment on 12th July, 2001 it dismissed the appeal of the 1st appellant and in another judgment delivered on 30th May 2002 similarly dismissed the appeal of each of the 2nd and 3rd appellants.

This is further appeal by each of the three appellants against their convictions and sentences for the offence of murder.


Whether the Court of Appeal was right in confirming the conviction of the 3rd appellant for murder on the basis of the evidence led at the trial?


[APPEAL: DISMISSED, only the 3rd Appellant was allowed “The 3rd appellant was not implicated in the murder as none of the witnesses for the prosecution mentioned his name”.]

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1. Issue 1 was solved in favour of the respondent.

i. To establish cause of death, the position of the law is that much as medical evidence is desirable, it is clearly not a sine qua non as cause of death may be established by sufficient, satisfactory and conclusive evidence other than medical evidence showing beyond reasonable doubt that the death in question resulted from the particular act of the accused person.

ii. It is manifest from the excerpts (testimonies) quote above that the 1st and 2nd appellants were among a hostile crowd that attacked the deceased beating him mercilessly with lethal weapons and eventually dragged him to an unknown destination. The incident occurred on 24th March 1991 and as at 8th March, 1994 when the P.W.2 testified, that is about three years after the incident, the deceased has not been seen alive. The attack on the deceased was premeditated having regard to the threats and warnings by Hilary the barrister and relation of the appellants a despicable conduct most undeserving of a lawyer. Again although proof of motive on the part of the accused on a charge of murder is not a sine qua non to his conviction for the offence, yet if evidence of motive is available it is not only a relevant fact but also admissible under section 9 of the Evidence Act: see Jimoh Ishola v. The State (1978) 9 10 SC 81 at 104- 105. The motive for the murder of the deceased was his refusal to vacate the land in dispute between him and his assailants. Having regard to the circumstances of this case particularly the fact that three years after the incident, the deceased has not been found and there was no explanation from his assailants as to his where about other than a bare denial of complicity in the crime, the inference is irresistible that he is dead; that it was the act of his assailants that caused his death and judging from the nature of the attack and the lethal weapons used, the attackers had the intention to kill or at least cause grievous bodily harm on the deceased. All the three ingredients of murder earlier enumerated having been established, the judgment of the trial court convicting the 1st and 2nd appellants and the court below affirming the conviction remain unassaible.

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From a long line of decided cases, it is settled beyond controversy that to secure a conviction on a charge of murder, the prosecution must prove (a) that the deceased had died (b) that the death of the deceased was caused by the accused and (c) that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. – D. O. Edozie, J.S.C. UBANI V. STATE (2003)

For circumstantial evidence to ground a conviction, it must lead only to one conclusion, namely, the guilt of the accused person but where there are other possibilities in the case than that it was the accused who committed the offence and that others other than the accused had the opportunity of committing the offence with which he was charged such an accused person cannot be convicted of murder. – D. O. Edozie, J.S.C. UBANI V. STATE (2003)

That is the inconsistency rule which is to the effect that where a witness makes an extrajudicial statement which is inconsistent with the testimony at the trial, such testimony is to be treated as unreliable while the statement is not evidence on which the court can act: see R v. Golder (1990) 1 WLR 1198 at 1172, as approved by this court, in Ukpong v. The Queen (1961) SCNLR 53; Joshua v. The State (1964) All NLR 1; Egboghonome v. State (1993) 7 NWLR (Pt.306) 383. For this rule to be applicable, the inconsistency between the extra judicial statement and the testimony in court must be on a material issue. – D. O. Edozie, J.S.C. UBANI V. STATE (2003)

It is settled law that although medical evidence is desirable to ascertain cause of death, it is not a sine qua non in cases of culpable homicide where the cause of death could be established by other evidence. – D. O. Edozie, J.S.C. UBANI V. STATE (2003)

It is that an appellate court will not interfere with the concurrent findings of the lower courts on issues of facts except there is established a miscarriage of justice or a violation of some principle of law or procedure. – D. O. Edozie, J.S.C. UBANI V. STATE (2003)




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