IMO Akpan Bassey V. The State (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Akwa Ibom State, Uyo Judicial Division, delivered by Honourable Justice Imeh E. Umanah on June 30, 2011 in Charge No. HU/21C/2007 in which the Appellant was found guilty of the murder of his two children, Philip Imo Akpan and Magdalene Imo Akpan; and sentenced to death by hanging.

The facts leading to this appeal reveal that the Appellant was charged before the High Court of Justice, Akwa Ibom State, Uyo Judicial Division on a one count charge of Murder, contrary to Section 326(1) of the Criminal Code, Cap 38, Vol. II, Laws of Akwa Ibom State of Nigeria 2000. The Appellant pleaded not guilty to the charge. The complainant was his estranged wife. At the trial, the prosecution called one witness named Sergeant Philip Agara (PW1), a Policeman attached to the Anti-Human Trafficking Unit of the Nigeria Police Force. He tendered three extra judicial statements marked Exhibits A, B and C respectively. The Appellant testified for himself as DW1. At the hearing, the learned trial Judge found the Appellant guilty of murder and sentenced

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him to death. Aggrieved by his conviction and sentence, the Appellant lodged this appeal by Notice and Grounds of Appeal filed on 16/1/2014 upon six grounds of appeal, found at pages 137-140 of the Record of Appeal.

The parties exchanged Briefs of Argument. The Appellant’s Brief settled by Sonny O. Wogu, Esq. on 22/11/2014, was deemed adopted on 8/3/2016. The Respondent’s Brief was settled by Ekpenyong Ntekim, Esq., Honourable Attorney-General, Akwa Ibom State on 16/9/2014 but deemed properly filed and served on 11/5/20l5, and adopted on 8/3/2016 by Eyoh Asuquo, Esq., Assistant Chief State Counsel, Ministry of Justice, Akwa Ibom State.

Out of six grounds of appeal, the Appellant formulated a sole Issue for determination as follows:

Whether the Respondent proved the charge of murder against the Appellant beyond reasonable doubt.

The Respondent adopted this Issue as formulated by the Appellant for determination of this appeal. I shall also adopt this same Issue for determination.

The duty thrust upon the Court is to consider whether the Respondent has proved the charge of murder against the Appellant beyond reasonable doubt

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as required by law; Ogundiyan v. State (1991) 1 NSCC 448. See also Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 (formerly Section 138 of the Evidence Act, Laws of the Federation of Nigeria, 1990). While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. An accused person is presumed to be innocent until his guilt of the offence is established; Section 36(5) Constitution of the Federal Republic of Nigeria, 1999 as amended.

Courts, over time, have sought to clarify what ought to be the proper interpretation to be given to the well-worn phrase ‘proof beyond reasonable doubt’ in criminal trials. It is agreed that proof beyond reasonable doubt does not mean proof to a scientific certainty ? per Muhammad, JSC in The State v. Azeez (2008) 4 S.C. 188. As Pats Acholonu, JSC (of blessed memory), in Shande v. State (2005) 12 MJSC 152 so pertinently put it:

“Although the standard of proof is not that of absolute certainty (that should be in the realm of heavenly trials) the Court seized of the matter must convince itself beyond all proof