Anthony Thompson Ebong & Anor V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, JCA (Delivering the Leading Judgment)

The appellants, Anthony Thompson Ebong and Uwem Thompson Ebong as accused persons, were tried and convicted on a one count charge of murder by Udoma, J. sitting at Itu Judicial Division of the High court, Akwa Ibom state. The judgment in question was delivered on 29th July, 2009. The statement and particulars of the one count charge read as follows:

“STATEMENT OF OFFENCE

MURDER, contrary to Section 926 of the Criminal Code Cap 38 Vol. II, Laws of Akwa Ibom State.

PARTICULARS OF OFFENCE

ANTHONY THOMPSON EBONG and -UWEM

THOMPSON EBONG on the 1sth day of January, 2006 at No. 17 Udo Inyang Street, Ikot Abasi Itam, in Itu Judicial Division did cause the death of one Sgt. David Edet Antai.”

On 8th November, 2006 the two accused persons pleaded not guilty to the charge. It is to be noted that on 23rd March, 2009 the charge was amended to read, “at No. 7 Udo Inyang Street”, instead of “at No. 17 Udo Inyang Street”: The pleas of the two accused persons were taken afresh and the accused persons, individually still pleaded not guilty.

In proof of its case, the prosecution fielded four witnesses and also tendered six exhibits. The two accused persons also testified in their respective defence and tendered one exhibit through PW2, during cross examination at the trial. In this case, the facts as contained in the record of appeal are as follows. The accused persons are brothers. The 1st accused owns a house situate at No. 7 Udo Inyang Street, Ikot Abasi, Itam, Itu Local Government Area, Akwa Ibom state. one sgt. David Edet Antai, a policeman lived with other tenants in the said house. Sgt. David has been assigned the responsibility of collecting money for payment of electricity bill from tenants in the house and handing the amount collected to the 1st accused person. In the morning, on 15th January, 2006, a quarrel ensued between the 1st accused and Sgt, David over the collection of money. for settlement of electricity bill.

Later in the day, the fracas began again, escalated and exploded into a fight which involved the two accused persons and sgt. David. According to the prosecution, sgt. David was beaten black and blue and was seriously injured during the fight. It was further alleged that the 1st accused person hit sgt. David on the head with a stone. The 1st accused person vehemently denied the allegation. According to him, Sgt. David fell and hit his head during the struggle/fight. While Pw2, Mayen David Antai, wife of sgt. David witnessed the hot exchanges which took place in the morning, it was Pw3, christiana David Antai, daughter of sgt. David who was said to be the sole witness to the altercation which took place later in the day. It was further stated that Sgt. David received medical treatment at University of Uyo Medical centre and Silver Medical Centre, Itam, a private medical establishment. Alas, on 17th January, 2006, Sgt. David died while receiving treatment at the said Silver Medical Centre, Itam.

The two accused persons were arrested and later released on the strength of legal advice received by the police, from the Director of Public Prosecutions, Ministry of Justice, Akwa Ibom State. The case file was sent for the second time to the Attorney-General and Commissioner of Justice, Akwa Ibom State, who recommended that the accused persons should be prosecuted. They were re-arrested and charged with the offence of murder of Sgt. David Edet Antai. The Hon. Justice Margaret E. Udoma in the concluding paragraphs of his judgment at pages 82 and 83 of the record of appeal said:

“A close look at the evidence of PW3 the only eye witness the deceased’s daughter as confirmed by the 2 accused person in the light of the evidence of the PW4 the Medical doctor as well as that of the DW1 and DW2 i.e, the 1st and 2nd accused Persons and the circumstances of this case show that the evidence of PW3 is true and is capable of belief.

On the whole the conclusions I have come to as held in the case of Nwaeze vs. The State (supra) the 3 general factors have been established viz:

(1) That the deceased died