Effiong Johnny Ekaidem V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

The appellant herein was one of two accused persons charged with the offence of murder, contrary to Section 319 (1) of the Criminal Code Law of Cross River State, applicable to Akwa Ibom state, in charge No. HUK/16C/1999, before the High court of Akwa Ibom State, holden at Ukanafun Judicial Division. Appellant was the first accused thereat. Both the appellant and his co accused were alleged to have murdered one Etim Dan Adaidem on or about the 4th day of September, 1998 at Inen Ikot Owuk Village in Oruk Anam Local Government Area.

On 9th May, 2000, both the appellant and his co accused pleaded not guilty to the joint charge. The prosecution called four prosecution witnesses and tendered various documentary evidence. The appellant testified in his own defence, while his co-accused did the same. Learned counsel for both the defence and prosecution addressed the trial court. On 19th August, 2004, the learned trial Judge, Stephen E. Okon, J., delivered his judgment, wherein the appellant was convicted of the offence of murder and accordingly sentenced him to death, while his co – accused was discharged and acquitted.

The appellant was aggrieved with the trial court’s judgment and this appeal was brought against it, vide his notice of appeal filed on 5th December, 2005 pursuant to the grant of leave by this Court for extension of time within which to appeal. Also, appellant in his amended notice of appeal filed on 23rd February, 2009 with leave which was granted on 9th February, 2009, raised eight grounds of appeal. Out of the said grounds of appeal, the appellant in his brief of argument prepared by S. A. Alali Esq., and deemed duly and properly filed on 19th October, 2009, submitted five issues for determination by this Court. The issues are:

“1. Did the learned trial judge have before him circumstantial evidence cogent, compelling and irresistibly pointing to the guilt of the Appellant for the murder of Etim Dan Adaidem, to sustain the conviction of the Appellant when there was no evidence of animosity or previous quarrel between the Appellant and the deceased?

(GROUNDS 1 AND 4).

2. Was the learned trial judge right in excluding the death of the deceased by suicide and in convicting the Appellant of the murder of the deceased when there was no legally admissible evidence of the cause of death of the deceased and the trial Court did not make any finding as to how the deceased died. (GROUNDS 2, 3 and 5).

Having regard to the evidence that the deceased got missing at Aba on 30/8/98, that the Appellant assisted in the search for the deceased, and in the absence of evidence that the deceased was seen again with the Appellant prior to his death on 4/9/98, can the conviction of the Appellant be sustained on the principle that the deceased was last seen with the Appellant? (GROUND 6).

Was the learned trial judge right in accepting and relying upon the evidence that the Appellant was seen the previous day inspecting the tree on which the body of the deceased was found, when the Appellant denied that allegation in his statement to the police and was not cross – examined on this point at the trial?

(GROUND 8).

5. Was the learned trial judge right in his finding that the Appellant fabricated the story that the deceased got missing at Opobo junction in Aba (GROUND 8).”

On the other hand, the respondent in its brief of argument prepared by C. J. Udoh Esq., and deemed duly and properly filed on 6th October, 2010, identified just two issues for resolution in this appeal. They are:

“1. Whether the conviction of the Appellant for murder on the facts and circumstances of this case was Proper.

2. Whether the Appellant put up any defence in law that could avail him both in his statement to the police and the evidence before the Court.”

On 19th January, 2011 when this appeal matter came up for hearing before us, this Court was satisfied that the respondent was duly served with the notice of hearing in respect of the appeal. The said notice was served on 14th January, 2011. This Court accordingly invoked the provisions of Order 17 Rule 9 (4) of the Court of Appeal Rules, 2007 and proceeded with the hearing and the appeal was treated as having been duly argued for the respondent on its brief. On the said 19th January, 2011, the learned appellant’s counsel adopted and relied on both the appellant’s brief of argument and appellant’s reply brief of argument. The latter was deemed duly and properly filed on 14th December, 2010. It was urged on us that the appeal deserved to be allowed and that the trial court’s decision be set aside.

It is to be noted from the onset that there was no eye witness account as to how the deceased met his end. Both the respondent and the trial court, largely had recourse to circumstantial evidence for the prosecution and conviction of the appellant. These are the facts. On 29th August, 1998, the appellant and the deceased left the latter’s village, Inen Ikot Owuk for Owerri, to visit the family of the deceased’s wife, inform them of her state of health which became worrisome after she delivered and appease them with drinks to pour libation to the gods. It was the appellant who suggested this course of action. The hitherto second accused conveyed both the appellant and the deceased on his motor cycle to Ukanafun motor park, where they boarded a vehicle for Owerri. After accomplishing their mission at Owerri, they both slept in the house of appellant’s brother and after daybreak, the deceased picked his motor cycle at owerri for the onward journey to the village.

Thus, on 30th August, 1998, both the appellant and the deceased embarked on their homeward journey on deceased’s motor cycle.