Ime David Idiok Vs The State (2008)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C.

This is an appeal against the decision of the Court of Appeal; Calabar Division (hereinafter called “the court below”) delivered on 8th December, 2005 affirming the conviction and sentence of the Appellant by Udofia, J. of the Eket Judicial Division of the High Court of Akwa Ibom State in his judgment delivered on 25th February, 1991.

Dissatisfied with the said decision, the Appellant has appealed to this Court on two (2) Grounds of Appeal. Without their particulars, they read as follows:

[A] The learned Justices of the Court of Appeal erred in law when they affirmed the conviction and death sentence of the Appellant when the prosecution failed to prove its case beyond reasonable doubt.

[B] The learned Justices of the Court of Appeal erred in law when they affirmed the conviction and sentence of the Appellant notwithstanding the acquittal and discharge of the 1st accused Morris Ekpo Enoidern, who was charged together with the Appellant for the death of the deceased” .

The facts briefly stated, are that the Appellant and six others, were originally charged before the Chief Magistrate’s Court, Eket for the murder of the deceased one Akpan Ekpa. The case was struck out for lack of jurisdiction and all the seven accused persons, were discharged. When they were about to be re-arrested, four of them escaped and police succeeded in re-arresting three of them of which one of them died in prison custody. At the instance of the prosecution, the trial High Court, deleted the names of the 2nd, 3rd, 5th , 6th and 7th accused persons which included the 3rd.accused person who had died, from the charge sheet thus leaving the 1st accused – one Morris Ekpo Enoidem and the Appellant who pleaded not guilty to the charge. The prosecution called six witnesses while the 1st accused and the Appellant, testified on their own behalf and called no witness. The Appellant denied the charge. At the conclusion of the trial, the trial court, in a well considered judgment, discharged and acquitted the 1st accused person on the ground of insufficient strong evidence to convict him. The Appellant, was however, convicted and was sentenced to death by hanging; Dissatisfied with the decision of the trial court, the Appellant appealed to the court below that affirmed the said decision of the trial court, hence the instant appeal to this Court.

When this appeal came up for hearing on 24th January, 2008, both learned counsel for the parties, adopted their respective briefs. While the learned counsel for the Appellant – Ufot (Mrs.), urged the Court to allow the appeal and set aside the judgment of the court below, the learned counsel for the Respondent – Liadi, Esq, urged the Court to dismiss the appeal and affirm the decision of the two lower courts. Thereafter, judgment was reserved till today.

The Appellant has formulated two (2) issues for determination namely,

“3.1 Whether in all the circumstances of this case, the prosecution proved the charge of murder against the Appellant beyond reasonable doubt.

3.2 Whether the Court of Appeal was right in affirming the conviction and sentence of the Appellant notwithstanding the discharge and acquittal of the 1st accused”.

On the part of the Respondent, two (2) issues have been formulated for determination namely,

“i. Was there sufficient casual link between the act of the Appellant and the death of the deceased to justify the judgment of the trial court, as affirmed by the Court of Appeal

ii. Was the Court of Appeal right in affirming the conviction and sentence of the Appellant in spite of the discharge and acquittal of the 1st accused, having found that the evidence adduced by the prosecution witnesses against the Appellant is not interwoven and inseparable from that of the 1st accused”

I am of the respectful view that the issues of both parties are substantially similar although differently couched. However, in dealing with the said issues, I will prefer taking the 1st issue of the Appellant and the 2nd issue of the Respondent in order to arrive at a just decision in respect of the subject matter of this appeal.