Augustine Idung V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

DALHATU ADAMU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of High Court of Cross River State holden at Ogoja delivered on 21st January, 2013 in Suit No. HC/4C/2008.

The facts leading to this appeal are that the appellant and his brothers are children of the deceased younger brother. Among the brothers of the accused is one described as Odugbo Idung who was said to have developed an ailment and was taken to a native doctor. In view of the visit to the native doctor and in accordance with his professional usage linked the source of the said Odogbo Idung ailment to the deceased.

On 9th August, 2007, the appellant with other of his brothers visited the deceased and invited him to accompany them to the native doctor’s house where the said Odogbo was receiving treatment. The appellant with the other of his brothers held axe and iron rod so as to compelled the deceased to follow them to the herbalist house for prayers but the deceased resisted their move as a result the appellant alongside two of his brothers started inflicting blow on the deceased with axe and iron rod, this led to the death of the deceased.

The trial court having heard the case, convicted the appellant to death by hanging, the appellant not satisfied with the judgment lodged this appeal.

In the notice and ground of appeal filed on the 7th of October, 2013. The appellant raised six grounds of appeal and urged this court to allow the appeal, discharge and acquitted the appellant.

The appellant brief of argument settled by Mathew Ojua, Esq., of counsel was filed on 7th October, 2013. The respondent brief settled by U. A. Ibitham and filed 17/3/2014.

In the appellant brief of argument four issues has been distilled for determination:-

(1) ISSUE 1- distilled from ground 1; whether given the quality of evidence the prosecution proved its case beyond reasonable doubt to warrant the conviction of the appellant for murder.

(2) ISSUE 2- distilled from ground 4: whether the learned trial judge was right in disbelieving the story of the appellant and thereby proceeding to convict him for offence of murder.

(3) ISSUE 3- distilled from ground 3 & 5; whether the learned trial judge was right in expunging exhibit 2 and discountenancing exhibit 5.

(4) ISSUE 4- distilled from ground 6; whether the learned trial judge properly and adequately assessed and evaluated the totality of evidence.

It should however be noted that ground 2 as contain in the notice of appeal did not hinge or relate to any of the four issues formulated therefore same is struck out. The law is trite by this court and Supreme Court respectively that grounds of appeal not covered by or incorporated into issue for determination is deem abandoned and should be struck out. In the instant appeal ground 2 is not covered by 4 of the issues formulated by the appellant, it is deemed to have been abandoned. See Victor John Bassey Anieka v. Mrs. Lilian Bassey Anieka (1999) 12 NWLR (pt. 631) p. 491 at 496.

On Issue 1: It is submitted that the onus of prove is on the prosecution and it does not shift. It is submitted that in murder case the prosecution has duty to lead evidence to show that the deceased is dead, that it is the act of the accused person that caused the death of the deceased and that the accused did the act intentionally with the knowledge that death and grievous bodily harm will be the probable consequences of his action. It is submitted that the prosecution has failed to prove these requirements of the law against the appellant relying in the case of Moga v State (1997) 1 NWLR (Pt. 483) 615 at 616.