Akim Bassey V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

The appellant hails from Okuni Village while Slyvanus Nkom Oyongha (PW1) is from Akam Village. All are from Ikom Local Government Area of Cross River State. They were contesting the ownership of a piece of farmland bordering their respective villages. On 27th day of April, 2009 both met at the farmland and a fight ensued.

Both sustained bodily injuries and each reported to the police station at Okuni at different times. The police investigated their respective complaints but subsequently arrested and arraigned the appellant before the High Court of Justice of Cross Rivers, Ikom Judicial Division on a charge which read as follows:

”STATEMENT OF OFFENCE:

ATTEMPT TO KILL, contrary to Section 320(1) Criminal Code, Cap. C16 Vol.13 Laws of Cross River State, 2004.

PARTICULARS OF OFFENCE:

Akim Bassey on the 27th day of April, 2009 in a farm land at Akam in the Ikom Judicial Division did unlawfully attempt to kill one Sylvanus Nkom Oyongha by hitting him with a club on his head.”

The appellant pleaded not guilty. The prosecution called PW1 (Sylvanus Nkom Oyongha); PW2 (Dr. Julius Abang Ayang) who treated Pw1 for the injuries he sustained in the fight on 27th day of April, 2009 and PW3 (Corporal Victoria Okon) the woman police investigating officer. All testified and were cross-examined by the defense Counsel. The prosecution tendered the matchet the appellant took to the police station as the weapon Pw1 used in inflicting injuries on him.

This was admitted as Exhibit “A”. Exhibit “B” was the medical form the police issued the appellant for his treatment at a Hospital due to the injuries he sustained as a result of the matchet cut by PW1. The medical form subsequently issued by the police to Pw1 was also put in and marked Exhibit “C”. The first extra-judicial statement of the appellant when he reported the incident to the police was marked Exhibit “D”. The appellant made another statement upon his arrest which was admitted as Exhibit “E”. The appellant had snapped a photograph to show the extent of the wounds inflicted on him by Pw1 on 27th day of April, 2009.

The prosecution put in the photograph which was marked Exhibit “F”. The appellant testified as DW1. He called no other witness. At the close of evidence counsel submitted written addresses. On the 25th day of April, 2012 the learned trial Judge convicted the appellant, sentencing him to 5 years imprisonment with hard labour. Being aggrieved the appellant filed a Notice of Appeal on 3rd day of May, 2012 and a brief of argument on 9th day of July, 2012.

The appellant’s learned Counsel submitted the following issues for determination:

“1. Whether the trial Court adequately and or correctly evaluated/reviewed the totality of the evidence before it, before arriving at the decision the way it did.

2. Whether in law, the defence of self defence was available to the convict/appellant in the instant case.
3. Whether the prosecution proved its case beyond reasonable doubt warranting the conviction and sentence of the accused person the way the trial Court did.”

The respondent’s learned Counsel took exception to Ground one and two of the Notice of Appeal and the issues formulated thereon. Counsel argued that ground one is not a proper ground in criminal appeals. That the particulars in ground two have no bearing to the main complaint therein. Grounds one and two and the arguments following or accompanying them should be struck out.

I shall determine this appeal by considering the objection to grounds one and two in the Notice of Appeal. If the objections are upheld the issues and grounds are likely to be struck out. From the brief filed by the learned Counsel to the appellant it is clear that issue one relates to ground one and issue two relates to ground two. Issue three relates to ground three of the Notice of Appeal filed on 3rd May, 2012. The grounds of appeal are couched as follows: