Emmanuel Ogar Edoko V. The State (2009)

LawGlobal-Hub Lead Judgment Report

MOJEED ADEKUNLE OWOADE, J.C.A.

This is an appeal against the judgment of M.D. Eneji, J. delivered on 20th September, 2006 at the Ikom Judicial Division of the High Court of Cross River State whereby the appellant was convicted and sentenced on a one count charge of the offence of murder.

The facts of the case are that on 26th day of November 2004, the appellant left Edor his village in Ikom Local Government Area to attend the burial of Late Gregory Awam at Nkonfab, a neighboring village. Between 10.00pm and 11pm, 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 prosecution’s account, the appellant brought out a jackknife and stabbed the deceased who shouted and collapsed. The appellant, on the other hand presented two versions of the story. In his confessional statement Exhibit B, he claimed that the jackknife 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 evidence, he retracted and said that he was attacked by the deceased in company of five of the deceased’s friends who he said ran away after the event. PW1 rushed the deceased to the hospital but he died on their way to the hospital. The appellant fled the scene of crime and was arrested later.

The learned trial Judge accepted the evidence of the prosecution especially through the eye witness. Ekom Francis Abaji PW1 and considered but rejected the defences of provocation and self defence canvassed for the appellant.

Dissatisfied with this judgment, the appellant filed a Notice of Appeal containing two grounds of appeal on 26th September 2006.

The appellant’s amended brief of argument dated 25/5/09 was deemed filed on 8/6/04. The Respondent’s amended brief was also deemed filed on 8/6/09.

The appellant formulated two issues for determination, which were adopted by the respondent as follows:

1. Whether the trial court properly evaluated the evidence before arriving on a decision to convict the appellant for murder.
2. Whether from the totality of evidence before the court the trial Judge considered or adequately considered the defence of self defence proffered by the appellant.

On issue NO.1, learned counsel for the appellant submitted that in the instant case, the learned trial Judge closed his eyes to the evidence of the appellant both in his confessional statement Exhibit B and his testimony in court that he was attacked by the deceased in company of his three friends. That, the content of Exhibit B even though confessional in nature, is not direct and positive to warrant a conviction for murder. This, according to appellant’s counsel is because the content of Exhibit B clearly shows the circumstance that led to the death of the deceased, according to counsel, an involuntary act of the appellant to steer off the attack on him by the deceased and his friends.

Appellant’s counsel relied on the case of Emeka v. State (2001) FWLR (pt. 66) 682, for the proposition that it is desirable to have outside the confession to the police some evidence, however slight, the circumstances of which made it probable that the confession was true.

Learned counsel for the appellant said, the question which the prosecution failed to answer and to which the trial Judge also failed to consider is whether on the evidence of PW1 who testified that he saw the appellant brought out a jackknife in the presence of Chief Boniface Ndome and the failure of the prosecution to call the said Chief Boniface Ndome did not amount to the withholding of evidence.

Appellant’s counsel furthered that the trial court also failed to take into consideration the absence of mens rea in the action of the appellant. As, it is in evidence of all the prosecution witnesses that the appellant reported himself to the Police and handed over the Jackknife to the police.

In reaction to appellant’s Issue No.1, learned counsel to the respondent submitted that the learned trial Judge painstakingly appraised the evidence of the prosecution as well as the defence and found that the act of the appellant in stabbing the deceased was intentional and not accidental. Also, that the evaluation of the evidence before the trial court subsumed all defences available to the appellant, not only the defence of self defence but other possible defences including the defences of provocation and accident.

Three perhaps two concretizations could be deduced from the allegation of non-evaluation of evidence by the Appellant. The first is that the appellant’s confessional statement raised the defence of self-defence which was not considered or adequately considered and if considered would have negatived mens rea. The second is the failure of the prosecution to call yet another eye witness Chief Boniface Ndome, as it were to corroborate the testimony of PW1 that the appellant brought out a Jackknife in the presence of Chief Boniface Ndome.