Edet Offiong Ekpe V. The State (1994)

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MOHAMMED,J.S.C.

This appeal is from the decision of the Court of Appeal, Enugu Division, affirming the conviction of the appellant for the offence of murder, contrary to section 319(1) of the Criminal Code. The appellant was sentenced to death by Ecoma, J. (as he then was) of Cross River State High Court.

The incident leading to the conviction of the appellant happened on 15th April. 1983. at Ikot Asuquo Affiong Aye village, in Akpabuyo, within the Calabar Judicial Division. The deceased, Dickson Udo, sent his daughter, Nkoyo Dickson Udo, to a nearby store to buy some foodstuffs. As it was already dark the girl went with a lantern to the store. On her way back she met the appellant who asked her to allow him light his lantern with her own.

The girl gave him the lantern and after he had lit his own he invited the girl to come into his room to collect her lantern. On coming into the room the appellant held her and told her that he would have sexual intercourse with her. She raised an alarm and one Udo Udo Jonah, who earlier saw the girl outside the house of the appellant, came to her rescue. He knocked at the door of the appellant’s room but it was locked. He then ran and reported to one Edet Bassey. A small boy Nnana, who heard the girl shouting went and reported the matter to her father, Dickson Udoh.

Dickson Udoh and his son, Asuquo Okon Dickson, ran to the scene. On arrival they heard the girl shouting in the room of the appellant. Dickson Udoh knocked at the door and, when appellant opened, he hit him (Dickson Udoh) with a broken bottle on the head. The father of the girl fell down. The appellant picked a piece of scantling and hit him several times on the head. Dickson Udoh died before he was taken to hospital.

The appellant gave a different story of the incident. He said that Nkoyo Dickson was his girl friend and that he had given her N10.00 earlier on that day.

He testified in court and said that the girl came on her own to visit him and told him that she was going to a store. He later followed her and they came back to his house together. He then had sexual intercourse with her in his room. It was after they had finished that he heard a knock on his door. He did not open because the person knocking did not speak.

After a while he saw rays of light in his compound and when he opened the door he saw Udo Udo Jonah, Asuquo Dickson Udoh and the deceased standing by his door. The deceased attacked him and hit him with a lantern. He went into the room and the three people followed in and began to beat him. It was in the process that he picked a bottle and hit one of them. They went out and later came back again. They saw one person on the ground and began to beat him, not knowing that the person was the deceased.

The learned trial Judge evaluated the evidence adduced and disbelieved the version of the incident put up by the appellant. He convicted the appellant of murder and sentenced him to death. Dissatisfied with the said decision ,the appellant appealed to the Court of Appeal, which, in dismissing the appeal, affirmed the conviction and sentence passed on him by the trial court. He has now come to this Court.

On 22nd September, 1994, when this appeal was called for hearing it became clear that only the appellant had filed his brief. The respondent did not, in spite of proof of service of appellant’s brief on the Cross River State Ministry of Justice.

The provision of Order 6, Rule 8 (5), (7) and (8)of the Supreme Court Rules makes it abundantly clear that, save with the leave of the court, a party who fails to file his brief will not be permitted to present his oral argument in support of his appeal.

Consequently, when an appeal is called and it is discovered that a brief has been filed for only one of the parties, the appeal shall be argued on that brief.

In the case in hand, Mr. Seyi Sowemimo, learned Counsel for the appellant, filed appellant’s brief on 23rd December, 1993, and had it served on the respondent. Up to 22nd September, 1994, the date fixed for hearing of this appeal, the respondent did not file brief on behalf of the State. We therefore permitted Mr.

Sowemimo to make his oral submission in support of the appeal. The question raised for the determination of this appeal is whether the prosecution had proved their case beyond reasonable doubt, and as a corollary to this issue is the question whether the appellant’s version of the events can be dismissed without proper investigation.