Basil Akalezi Vs The State (1993)

LawGlobal-Hub Lead Judgment Report

OGWUEGBU, J.S.C. 

The appellant was charged on an information in the Aboh-Mbaise Judicial Division of the High Court of Imo State with the offence of murder contrary to Section 319(1) of the Criminal Code, Cap, 30, Vol. II Laws of Eastern Nigeria, 1963.

The particulars of the offence were that on 1st January, 1981 along Chokoneze/Akpodim Road in Ezinihitte Mbaise, the accused/appellant murdered Innocent Ohaka. The appellant pleaded not guilty to the charge after it was read over in English and explained to him fully in Igbo language and he appeared to have perfectly understood the charge.

Seven witnesses testified for the prosecution. The accused/appellant gave evidence in his own defence but called no witness. At the close of the trial and the address by counsel for the appellant and the respondent, the learned trial Judge in a reserved judgment found the accused guilty as charged and sentenced him to death. He was not satisfied with his conviction and sentence. He appealed to the Court of Appeal, Port Harcourt Division. This court on the 18th February, 1992 dismissed the appeal and affirmed the decision of the court of trial. He has appealed to this court.

Three grounds of appeal were filed along with the notice of appeal on 10th March, 1992. The grounds of appeal read as follows:-

“(1) The learned Justices of the Court of Appeal erred in law in holding that ‘the defence of provocation raised by the appellant under no circumstances can avail him and so cannot stand’.

Particulars of Error

(i) There was evidence of a sudden fight upon a sudden quarrel between the appellant and the deceased and that the fight was a continuous one without time to cool.

(ii) There was ample evidence on record to show that the appellant was deprived of his self control.

(iii) There was also evidence on record to show that the provocative act came from the deceased.

(2) The Learned Justices of the Court of Appeal erred in law in holding ‘that the act of pursuing the deceased for a distance of up to 50 metres and stabbing him on the left upper back with a pen knife also provides sufficient evidence of motive and premeditation’. Particulars of Error

(i) The distance of 50 metres was a mere conjecture by the trial Court.

(ii) The stabbing was done in the heat of the fight and passion and before there was time to cool.

(iii) The evidence on record does not support the Court’s said conclusion.