Godwin Okon Ita & Anor V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Akwa Ibom State delivered on 20th October, 2010 in Suit No. HKN/12C/2009.

The 2nd Appellant Eno James Essiet with the 1st Appellant Godwin Okon Ita were charged with the murder of Felix Okon Ita on 21st August, 2008 contrary to Section 326 (1) of the Criminal Code Cap. 38 Vol. 11 Laws of Akwa Ibom state 2000.

The prosecution/Respondent called four witnesses and tendered fourteen (14) Exhibits. The accused/Appellants called only one witness and tendered sixteen (16) Exhibits. At the end of a full trial, the trial Judge delivered his considered judgment and found the 2nd Appellant guilty and sentenced her to 3 years imprisonment. Aggrieved by the said judgment the 2nd Appellant filed a notice and four grounds of appeal on 19th January, 2011.

The 2nd Appellant filed her Appellant’s brief on 23rd March, 2012. In it she articulated three issues for determination as follows:

Whether the Defence of Alibi did avail the 2nd Accused/Appellant who raised Alibi timeously (Ground 1)

“Whether the court can pick and choose which prosecution Witness to believe when none of the prosecution witness was branded a hostile witness and wherein the testimonies of the prosecution witnesses were contradictory and inconsistent. (Ground 4)

Whether the testimonies of PW2 and PW3 were hearsay evidence Contrary to Section 77 Evidence Act (Now section 37 Evidence Act. 2011 as such amended) as such inadmissible. (Ground 2).

The Respondent filed its brief on 5th September, 2012 but deemed properly filed and served on 6th December, 2012. The Respondent articulated three issues for determination as follows:

“WHETHER THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN HE CONVICTED THE 2ND ACCUSED APPELLANT ON THE GROUND THAT THE 2ND ACCUSED/APPELLANT DID NOT GIVE PARTICULARS OF HER ALIBI (GROUND 1)”.

Whether the conviction of 2nd Appellant was based on hearsay evidence.

Whether the Learned Trial Judge erred in law when he believed the credible evidence of one witness against the incredible witness of the other to arrive at his decision.

The issues articulated by both parties overlap, however, I will utilize the issues articulated by the Appellant in this appeal.

ISSUE 1