Emmanuel Ogar Akong Edoko V. The State (2015)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal sitting at Calabar which was delivered on 13th July, 2009 wherein the court below upheld the conviction and sentence to death of the appellant by the High Court of Cross River State.

The facts of this case, as can be gathered from the record of appeal shows that on the 26th day of November, 2004, the appellant left Edor, his village in Ikom Local Government Area to attend the burial of one late Gregory Awam at Nkonfab, a neighbouring village. Between 10.00pm and 11.00pm, the appellant went close to the vicinity where PW1, an eye witness to the crime and some of his friends were sitting and started smoking Indian hemp.

The deceased, Ajing Bisong who was serving food and drinks to PW1 and his friends, approached the appellant and told him to leave the area. A scuffle ensued and from the account of the prosecution, the appellant brought out a jack knife and stabbed the deceased who shouted and collapsed. The appellant on the other hand presented two versions of the incident. In his confessional statement to the police -Exhibit B, he claimed that the jack knife fell from the deceased in the course of the struggle, he then used it to stab the deceased on the left side of his ribs. In his oral testimony in court he stated that he was attacked by the deceased and five of his friends. According to him, the deceased sat on top of him, removed a jack knife and they continued to struggle. That as they were struggling, the knife pierced the deceased who shouted that the appellant had stabbed him. At that stage, the appellant ran away. PW1 rushed the deceased to the hospital but he died on their way to the hospital. The appellant was later arrested and arraigned in court after investigation. The prosecution called three witnesses to prove its case against the appellant. The appellant gave evidence in his defence and called no other witness.

The learned trial judge accepted the evidence of the prosecution especially that of the eye witness Ekom Francis Abaji (PW1). He considered but rejected the defences of provocation and self defence canvassed for the appellant.

In the circumstance, the learned trial judge convicted the appellant of the murder of the deceased and sentenced him to death.

Dissatisfied with the verdict, the appellant appealed to the Court of Appeal which found no merit in the appeal. The Lower Court accordingly affirmed the conviction and sentence of the appellant by the trial High Court. Again, not being satisfied with the stance of the Lower Court, the appellant has appealed to this court via a notice of appeal dated and filed on 11th August, 2009. Three grounds of appeal are contained therein out of which the learned counsel for the appellant has distilled one issue for the determination of this appeal. The lone issue states:

“Whether the court below was right to have upheld the decision of the trial court to wit: that the defence of self-defence and provocation did not avail the appellant.”

In the respondent’s brief, the learned counsel for the respondent M. N. O. Olopade Esq., adopts the lone issue as formulated by the appellant. I shall, in the circumstance determine this appeal based on the said issue.

Learned counsel for the appellant, A. U. Mustapha Esq., in the brief settled by him argued that when an accused person, as in this case, raises defence of self-defence, the onus remains throughout upon the prosecution to establish the guilt of the accused. He cited the cases of Adeyinka Albert Laoye V. The State (1985) 10 SC 177 at 204 – 205 and Sunday Baridan V. The State (1994) 1 NWLR (Pt.320) 250 at 262. It is his view that although there is a slight difference between the statement of the appellant in Exhibit B and his oral testimony in court it did not detract from the fact that it was the deceased that attacked the appellant first and that the jack knife in question, that is, the killer weapon, originated from the person of the deceased and that the deceased actually aimed at using the weapon on him.

In his further argument, he contended that from the evidence led by the appellant, it is glaring that the deceased was, apparently about to attack the appellant in a manner that grievous hurt and/or death was possible and the appellant had to defend himself. In support, he cited the cases of David Aganmwonyi V. Attorney-General of Bendel State (1987) 1. SC 77 at 94 and Sunday Baridan V. The State (supra). Relying further on the case of Sampson Uwaekweghinya V. The State (supra), the learned counsel submitted that the appellant was entitled to defend himself against unprovoked attack by the deceased.

Learned counsel submitted further that the facts disclose that the self-defence was instantaneous or contemporaneous with the threatened attack. That it happened in the course of the altercation and that there was no time break for frayed nerves to calm, relying on the cases of Njoku V. The State (1993) 6 NWLR (Pt.299) 272 at 279 and Uwaekweghinya V. The State (supra).

It was further argued by the appellant that the self-defence was not greater or disproportionate with the threatened attack. Furthermore, that no reasonable man could have done contrary to what the appellant did in the circumstance, referring to the case of David Aganmwonyi V. Attorney-General of Bendel State (1987) 1 SC 77 at 94. According to him, it was wrong for the Lower Court to affirm the decision of the trial court on this issue.

On provocation, he submitted that there was a wrongful act against the appellant by the deceased and that it was of the nature such as would deprive an ordinary person of the power of self control. That even merely requesting the appellant to cede his seat for an acolyte of the deceased’s was sufficiently insulting, not to talk of following the insult up with a blow to the eye. He submitted that the act of provocation was sufficient to induce the appellant to assault the deceased and that the fatal stabbing occurred in the heat of passion. The appellant relied on the following cases: Isaac Stephen V. The State (1998) 12 SC. 450 at 498 499, Abaji V. State (1965) 4 NSCC 210 at 215.