SHOCKED by his conviction, Mr. Raphael Ude, who was recently sentenced to death by hanging by the Chief Judge of Abia State, Justice S. N. Imo, for alleged murder, has asked the Appeal Court sitting in Abia, to quash the judgement of the lower court, describing it as not only a miscarriage of justice, but a nullity being an unconstitutional denial of the his right to fair hearing.

Mr. Ude is contending that the lower court simply considered and accepted the case of the prosecution, whereas it has a duty to consider and resolve the defense put forward by the Appellant which duty the court abdicated by failing to consider the defenses in the Appellants statements to the police, his evidence in court and the address of his counsel and posited that the failure on the part of the court in the circumstances is a denial of a fair hearing which has led to a grave miscarriage of justice as the prosecution in the circumstances cannot be said to have proved the case beyond reasonable doubt.

Abia State Chief Judge had on July 1, 2010, sentenced Mr. Ude and two others to death by hanging for alleged murder of the trio of Messrs. Sunday Ude, Corlineus Orjiogo and Johnson Onwuegbuchulam during a protest by members of Lokpanta Youths Movement in Umunneochi Area of Abia state in January 2007.

In a notice of appeal through his counsel, Obiora Akinwunmi, Obianwu, SAN, Mr Ude argued that the learned trial judge misdirected himself and consequently arrived at a wrong decision which led to the miscarriage of justice when he held that evidence shows that the 1 st, (Ude) 2nd and 3rd accused persons hold leadership position in the Lokpanta Youths Movement.

Second Prosecution Witness (PW2) in his testimony in court stated that they were present at the scene and after the killing, congratulated the Youths (who allegedly committed the crime) for a job well done. Again 1st, 2nd and 3rd Accused closely followed the events such that they went to State C. I. D. where they were arrested.

Their interest and involvement as to follow them to the State C. I. D. is a clear manifestation that they were fully part of the events of 3rd to 5th January, 2007 resulting in the killing of the deceased persons. The defense offered by them as to why they went to the State C.I.D. is watery and something put up to defend themselves”.

Faulting the judgement by the Chief Judge, Mr. Ude declared: “There was no evidence that the Appellant was holding any leadership position in the Lokpanta Youths Movement at the time of the alleged murders.

The court did not advert its mind to the fact that PW2 was a tainted, witness whose evidence must be scrutinized with a tooth comb but wholeheartedly embraced and based its decision on the unreliable evidence of the witness which conflicted with that of the PW4 who claimed to be an eyewitness, PW5 and PW6. The same court did not advert to its earlier finding.

“The PW2 in his evidence to the police mentioned names of those he saw at the scene which did not include any of the accused” which rendered the subsequent testimony of the witness unreliable.

The unchallenged reason before the court on why the Appellant voluntarily visited the State C. I. D. was peremptorily and arbitrarily branded as “watery” by the court without adverting to the evidence of PW5 that the named criminals who committed the offences absconded because they knew they were guilty whereas the Appellant voluntarily visited for a legitimate reason.

The reasoning of the court is most specious, untenable and caused a miscarriage of justice. The learned trial judge erred in law when he relied upon the evidence of PW2 as the basis for finding the Appellant guilty of the offences charged.”

According him: “PW2 was a tainted witness whose evidence ought to be treated with considerable caution and examined with a tooth comb. The evidence of the witness was wholeheartedly embraced by the court inspite of its conflict with that of PW4, PW5 and PW6 and his statement to the police .EXHIBIT C on marital issues.

The evidence was unreliable and ought not to have found favour with any reasonable tribunal given the circumstances. The learned trial judge’ erred In law in holding that the Appellant was guilty of the offence of murder under Sections 8 and 9 of the Criminal Code. There was no evidence that the Appellant formed a common intention to prosecute an unlawful purpose with anyone much less the named killers.

There was no evidence on which the court based its finding that the Appellant occupied a leadership position in the Lokpanta Youths Movement at the time of the alleged offence as no witness gave credible evidence of same. There was no evidence that the Appellant counseled or procured the perpetrators of the offences to do so, especially when the evidence of PW2 was not credible.

The prosecution’s case which was not proved beyond reasonable doubt was one of direct involvement of the Appellant and not counseling and procuring on which the trial judge based his judgment. The court in the circumstance descended into the arena of conflict to make a case which the prosecution never made thereby occasioning a miscarriage of justice.

The judgment of the court in unwarranted unreasonable and unsupportable having regard to the evidence before the court. The learned trial judge erred in law in upholding the prosecutions case when the Appellants Alibi was neither investigated by the police nor disproved by credible evidence.”

“The Appellants alibi was in fact confirmed by the PW5, the investigating police officer. The court did not reject the Appellant’s Alibi as false in the judgment appealed against. In the face of the Appellants un-rejected Alibi, there was no proof beyond reasonable doubt.