Egbe Nkanu V The State (1980)

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OBASEKI, J.S.C. 

The appellant, a middle aged man of 40 years and a native of Igbo Ekureku village in Obubra Local Government Area of Cross River State was in the High Court of Cross River State sitting at Ikom (Effanga, J.) tried and convicted of the murder of Edu Efe Ntomo (f) an old woman of 60 years and sentenced to death on the 9th day of June, 1971. His defence of denial of the killing and of insanity as a result of intoxication was rejected by the learned trial Judge for almost total absence of evidence in proof.

Aggrieved by the conviction, he appealed to the Federal Court of Appeal, his three main grounds being:

“(1) That my friend offered me a cigarette in my father-in-Law’s compound where we were entertained with drinks, which after I had smoked, it pushed me into wild behaviour.

(2) That under this influence of a supposed cigarette I made my way back to my house where I started to act violently and this resulted in my using a matchet on the deceased including others without my senses, as I was told later.

(3) That the offence was not intentionally committed.”

The appeal was summarily dismissed at the hearing following the submission by counsel for the appellant that he had nothing useful to urge in favour of the appellant. The appellant still aggrieved, has now appealed to this Court against the decision of the Federal Court of Appeal.

This is therefore a further appeal and it may be necessary at some future date for this Court to pronounce on the competence of such appeal when the announcement of counsel strictly is a notice of withdrawal of the appeal. Where there is a withdrawal of an appeal, it can safely be said that the resultant position is as if there never was an appeal filed by the appellant notwithstanding the order of the Federal Court of Appeal affirming the decision of the High Court which tried the appellant.

At the hearing in this Court of this appeal, counsel for the appellant with leave of this Court substituted new grounds for the original grounds. These new grounds read as follows:

“(1) That the learned trial Judge erred in law by holding that there was no independent evidence of insanity and that insanity could only be proved by the defence calling witnesses and the Federal Court of Appeal failed to consider the point.

Particulars of Error

(a) The learned trial Judge and the Federal Court of Appeal failed to consider the evidence of P. W.1 and P. W.3 who gave evidence to the effect that the appellant behaved in an abnormal manner at the time the offence was committed:

(b) The evidence of P.W.1 and P.W.3 and the appellant showed evidence of intoxication or abnormality which remained unrebutted and should have been considered by the learned trial Judge and the Federal Court of Appeal.

(2) The learned trial Judge misdirected himself on the method of killing which could be inferred to be that of an insane man which misdirection the Federal Court of Appeal did not consider