Emmanuel David Ekanem V. The State (2009)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

The Appellant was arraigned on an information on 14/1/97, on a one count dated 1/9/94, before the High Court of Rivers State, Port Harcourt presided over by Hon. Justice ACHO OGBONNA for the offence of murder of one TOMBOA AKOKO aged 17 on 2/8/93 contrary to section 319 of the Criminal Code, Laws of, Eastern Nigeria 1963 applicable to Rivers State of Nigeria.

SEVEN witnesses testified for the prosecution. Several exhibits were admitted in evidence. On his own part, the Appellant testified in defence of the charge against him.

After taking and considering the addresses of the learned counsel for the Appellant and the Respondent, the learned trial Judge in his judgment delivered on the 28th July 2003, found the Appellant guilty of the offence of murder as charged and sentenced him to death by hanging.

Aggrieved by his conviction and sentence the Appellant appealed. The original Notice of Appeal contains 4 grounds of appeal, but 6 additional grounds were later filed with leave of this court, now making a total of 10 grounds. In compliance with the practice and procedure of this court, appellant’s brief dated and filed on 25/8/2006 upon an application for enlargement of time was deemed validly filed on 11/7/2007. The Respondent’s brief filed on 25/9/2007 was deemed filed on 17/6/2008 pursuant to an application for extension of time.

On 28/1/2009 the appeal came up for hearing.

DIKE UDENNA, Esq. learned counsel for the appellant adopted and relied on the Appellant’s brief of argument as his submissions in support of the appeal and urged us to allow the appeal, set aside the conviction by the High Court and discharge and acquit the appellant.

On the part of the Respondent MRS. C.U. EKE, Principal State Counsel, Ministry of Justice, Rivers State leading MRS. E. AGBOKHAN, State Counsel in the Ministry, adopted and relied on the Respondent’s brief as her submissions in support of the Respondent’s opposition of the appeal and urged us to dismiss the appeal and affirm the decision of the High Court.

From the 10 grounds of appeal Contained in the Notice of Appeal, TWO Issues were distilled in the Appellant’s brief of argument as follows:

“(i) Whether upon a proper evaluation of the evidence before the court the learned trial Judge was right in coming to the conclusion that the prosecution proved the charge of murder against the Appellant in accordance with the standard of proof imposed by law? (Grounds 1, 2, 4, 5, 6, 7 and 8) and

(ii) Whether the Appellant was not entitled to the Defence of self defence or any other defence in the circumstance of this case (Grounds 3, 9 and 10).

On their part, the Respondent formulated TWO Issues for determination of the Appeal as follows:

“(i) Whether upon a proper evaluation of the evidence before the court, the learned trial Judge was right in coming to the conclusion that the prosecution proved the charge of murder against the Appellant in accordance with the standard of proof imposed by law (Grounds 1, 2, 4, 5, 6, 7 and 8) and

(ii) Whether the Appellant was not entitled to the Defence of self Defence or any other defence in the circumstances of this case. (Grounds 3, 9 and 10).