Bassey Okpa V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Calabar Division in appeal No. CA/C/82C/2012 delivered on the 29th April 2013, affirming the conviction and sentence of the appellant by the High Court of Cross River State, coram Obojor A. Ogar J, for the murder of Efa Ephraim contrary to Section 319(1) of the Criminal Code, Volume 3, CAP C16 Laws of the Cross River State of Nigeria 2004. The brief facts that brought about the appeal are supplied at once below.

The appellant was arraigned before the High Court of Cross River State sitting at Calabar on a one count murder charge contrary to Section 319(1) of the Cross River State Criminal Code. This was on the 23rd March 2010. He pleaded not guilty and the matter went into a full trial. To establish their case, the respondent called three witnesses, while the appellant testified in his own defence.

The prosecution’s case is that the appellant, a police constable attached to the Atakpa Police Division Calabar, and other policemen led by Inspector Isah Gambo, were on a routine check along Target road by Mary

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Slessor Avenue, Calabar, Cross River State, on 23rd April, 2009. Efa Ephraim, the deceased, was in company of his two friends, Archibong Okon, the owner and driver of the Mazda car with registration No.DZ 279 SMK (Lagos) and Enefiok John. The two friends gave evidence at the trial Court as PW2 and PW3 respectively.

As the three drove along Target road towards E. E. Okon filling station by Mary Slessor Avenue, the prosecution asserts, they met the police team on patrol. They stopped at the check point and proceeded after they had been checked and permitted to go. Soon after they took off from the check point, it is further asserted, they heard a voice ordering them to stop and a sudden gunshot immediately thereafter. Moments after the gun shot, the deceased who was sitting at the back of the car, alerted the other two, PW2 and PW3, in a dwindling voice, that he had been shot by the police. PW2 immediately stopped the vehicle by the Mary Slessor round about to attend to the deceased who, by which time, could no longer speak.

Realizing that Efa Ephraim was already dead, PW2 called in Mr. Bassey Effiom, the president of their cub, the Apex Sports Club

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Calabar and Barrister Efita Ephraim, the deceased’s elder brother, on whose arrival they all drove back to the police check point along with the deceased. On arrival at the check point, where other vehicles and motor cycles were being routinely checked, a motor cyclist at once pointed at the appellant as the person who fired the gun at them. Asked why he shot at the vehicle by the policeman who earlier checked their vehicle, it is the prosecution’s further case, the appellant grew hostile threatening to shoot anybody who dared move near him. He at once corked his gun. Another police officer ran and removed the magazine from appellants gun. Two pick-up loads of policemen drove and whisked away the appellant. At the permanent site of the University of Calabar Teaching Hospital, where the deceased was taken to, the prosecution further asserts, a doctor confirmed Efa Ephraim dead. The post mortem report, exhibit B, certify that the deceased died of a gunshot injury.

Appellants case is that the gun discharged itself by accident; that the vehicle carrying the deceased, which was recklessly driven and at a top speed almost ran into them by the bend where they stood

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immediately after the check point; that in a spontaneous reaction, the appellant further asserts, he jacked forward towards the vehicle at which moment the rifle he held by his shoulder accidentally discharged itself and thus the death of the deceased.

The trial court disbelieved the appellant and in finding for the respondent convicted and sentenced the appellant as charged. Appellant’s appeal at the Lower Court was dismissed. He comes to this Court on a further appeal by his notice filed on 23rd May 2013 containing two grounds.