Paulinus Tobby (Alias Udo Ebby) V The State (2001)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C.

The appellant was in 1983 arraigned before the Ikot Abasi Judicial Division of the High Court of then Cross River State, now Akwa Ibom State on an information. The charge against him was that on the 10th day of October, 1980, at Ufet Ikpor, Ikot Akpan Obong village in the Ikot Abasi Judicial Division, he murdered one Akin Dick Udo Udo (f) contrary to section 319 of the Criminal Code, Laws of the Cross River State. The case suffered delays. Even though the offence was committed on 10th October, 1980, the information was not filed until February, 1983 and he was arraigned before Nkereuwem, J., on 15-2-84 when his plea was taken.

Hearing commenced on 16-1-85 before Nkereuwem, J. Three witnesses testified for the prosecution between 16th January, 1985 and 27th March, 1985. It suffered four adjournments and on 21st November, 1985 fresh plea was taken before Akpabio, J., (as he then was). It is not apparent on the record why the case started de novo. Only one witness out of eleven witnesses whose names appeared on the information testified before Akpabio, J. The others could not be traced by the prosecution despite series of adjournments granted by the court to enable the prosecution locate the remaining witnesses. On 13th January, 1987, Mrs. Nssien, a Senior State Counsel who appeared for the prosecution applied to the court to close the prosecution’s case since she could not locate the remaining witnesses. The application was granted. The defence opened and the accused testified and closed his case. Both counsel addressed the court and judgment was reserved by the learned trial judge.

Judgment was delivered on 27-4-87. The court found that the prosecution had proved its case against the appellant and he was accordingly convicted as charged and sentenced to death by hanging. His appeal to the Court of Appeal, Enugu Division was dismissed on 30-11-94, hence a further appeal to this court. In dismissing the appeal, Akintan, J.C.A., in the leading judgments to which Tobi, J.C.A., and Ejiwunmi, J.C.A., (as he then was) concurred, held as follows:

“I am satisfied that the trial court adequately considered the evidence adduced before it and came to a right conclusion. The appeal therefore, fails and I accordingly dismiss it. The verdict and sentence of death passed on the appellant by the lower court are affirmed.”

On 1-2-2001, when the appeal came up for hearing, Mr. Kayode, learned appellant’s counsel argued a motion filed on 9-11-2000 for leave of this court to raise fresh issues that were not raised in the court below which are the additional grounds 5 and 6. They are argued as issues (1) and (4) in the appellant’s amended brief of argument. Leave was also sought to amend the appellant’s brief of argument and to deem the amended appellant’s brief already filed as properly filed and served. The application was granted.

The respondent was not represented at the hearing of the appeal. A respondent’s brief signed by D. Archibong, Esq., Deputy Director of Public Prosecutions, Akwa Ibom State dated 27-12-2000 was filed on 18-1-2001 fourteen days before the hearing of the appeal. Since briefs were filed by the parties, the appeal is treated as argued and it is considered as such. See Rule 6 of Order 6 of the Supreme Court Rules, 1999.

The following five issues are identified in the appellant’s amended brief as arising for determining in the appeal:

“1.Whether the entire proceedings before the Trial Court and the Court of Appeal was (sic) not illegal, unconstitutional, null and void, having been conducted in violation of:-

(i)Section 215 of the Criminal Procedure Law of Cross River State;

(ii)Section 33(6)(a) and (e) of the 1979 Constitution. (Ground 5)

2.Whether the Court of Appeal was right to have affirmed the judgment of the Trial Court which convicted the appellant when the prosecution failed to prove Appellant’s guilt beyond reasonable doubt. (Ground 1)

3.Whether the evidence of P.W. 1 merited the value placed on it by the Court of Appeal (and the trial court) (Ground 2)

4.Whether the Court of Appeal was right to have affirmed the judgment of the trial court which failed to consider all the defences open to the Appellant (Ground 6).