Ekum v. State (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Lead Judgment):

This is an appeal against the judgment of the Court of Appeal, Calabar Judicial Division hereinafter referred to as the Court below, Coram: I. M. M. Saulawa, (JCA), C. E. Nwosu-Iheme (JCA) and J. O. K. Oyewole (JCA), delivered on the 30th day of November, 2017. By the judgment, the lower Court affirmed the judgment of the High Court of Cross River State (Coram: B. T. Ebuta, J.) delivered on December 17, 2014, which convicted and sentenced the Appellant to death by hanging for the offence of murder. The Appellant, consequently, lodged an appeal to this Court.

The Appellant filed six (6) grounds of appeal in the Notice of Appeal. The Appellant formulated three (3) issues as arising for determination in the appeal from the six grounds of appeal.

The facts which led to this appeal are as follows:
The Appellant was arraigned on May 24, 2011 at the trial Court on a one-count charge of murder contrary to Section 319 of the Criminal Code Law, Cap C16 Vol. 3 Laws of Cross River State, 2004. The Appellant pleaded not guilty to the charge.

At the trial Court, the Respondent’s case was that the Appellant on October 23, 2010 at No. 24 Ochedore Street, Four Corners, Ikom murdered one Ebam Takim Obiba by shooting him on the head with an AK47 rifle (“Exhibit 4′). From the evidence before the trial Court, the Appellant on that fateful date while armed with Exhibit 4 left his duty post as a Police guard at First Bank of Nigeria Plc, along Calabar Road, Ikom and went into a saloon in a storey building, where he held one Queeneth Assam hostage. When Queeneth Assam contacted her husband, Mr. Ayuk Ogar (“PW2”) Mr. Ogar was accompanied by the deceased to the scene. PW2 and the deceased on arrival at the scene met the Appellant holding unto Queeneth Assam while armed with Exhibit 4.

Subsequently, there was an altercation between the Appellant and his colleague on the one side and PW2 and the deceased on the other side. Following the altercation, the Appellant fired the AK47 rifle (Exhibit 4) randomly. It is also in evidence that the Appellant had previously during the altercation, pointed Exhibit 4, the AK47 rifle, at PW2 and the deceased but was cautioned by his colleague, PC Emmanuel Idoko (now deceased). PW2 sustained a gunshot injury on his left shoulder while trying to escape from the scene.

PW2 ran out through the stairs of the building to the road. PW2 while running continued to hear several gunshots and eventually heard someone shout that the deceased had been shot. The deceased died on the spot at the scene of the incident. Mbuk Oru Etta (PW1), the deceased’s brother, identified the deceased’s body to the medical doctor. The IPO who investigated the crime, John Orohi (PW3), testified that from Police investigations and the medical report (“Exhibit 3”), the deceased died of a gunshot injury. According to PW3, the Appellant failed to observe safety measures, especially by ensuring that the safety catch of the AK47 was put in place to avoid its discharge and that the Appellant emptied the entire 15 rounds of live ammunition at the scene of the incident.

Trial commenced at the trial Court on June 21, 2011. In proof of the charge against the Appellant, the Respondent, as prosecution, called three (3) witnesses namely, (A) Mr. Mbuk Oru Etta, the deceased’s brother who testified as PW1; (B) Mr. Ayuk Ogar, the person that accompanied the deceased to the scene of the crime testified as PW2; and (C) Mr. John Orohi, the IPO that investigated the offence testified as PW3.

The Respondent also tendered five (5) exhibits at the trial Court: (1) the confessional statement of the Appellant made on October 27, 2010 (Exhibit 2); and the confessional statement of the Appellant made on November 4, 2010 (Exhibit 2A); (2) medical report Form D18 (Exhibit 3); (3) the Ak47 rifle (Exhibit 4) and (4) Inspector Godwin Elumah’s statement made on October 24, 2010 (Exhibit 5).

After the Respondent closed its case on May 24, 2012, the Appellant made a no-case submission which was overruled on February 4, 2013 and the Appellant was called upon to enter his defence. In his evidence before the trial Court, the Appellant (who testified in person as DWI) testified that Exhibit 4 was loaded with 15 rounds of live ammunition but was not corked at the time of the altercation.

DW1 further testified that he did not know how the rifle corked and started exploding until the 15-live ammunition finished. DW1 also testified that he knows that someone “went down” in the process. During cross-examination, DW1 conceded that an AK47 rifle cannot fire until it is corked and fired. He also confirmed that a rifle can be corked by either of two ways-“rapid cocking” and “counting cocking”.

In each case, the rifle must be triggered for it to fire. He also testified to making 3 statements, two of which he wrote and signed personally at the State CID while one was recorded for him. He identified Exhibits 2 and 2A as the statements that he made and signed personally.

On December 17, 2014, the trial Court delivered its judgment, convicted the Appellant for the offence of murder, and accordingly sentenced him to death by hanging.

The Appellant dissatisfied with the conviction and sentence, filed a notice of appeal on 17/2/16. On 30/11/2017, the Court below affirmed the judgment of the trial Court and dismissed the appeal. The Appellant not yet satisfied has appealed to this Court by notice of appeal filed on 27/12/17.