MR Ubong Obot V. The State (2014)

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 sitting in Uyo delivered on the 29th of July, 2013 and sentencing the accused to death by hanging.

Being dissatisfied with the judgment, the Appellant filed a notice of appeal on the 5th of August, 2013.

The facts of this case is that it was alleged that the accused/Appellant beat up the deceased a 13 year old boy, carried him up, turned him upside down and hit his head on the floor several times. As a result of these hits, blood started gushing out from all the orifices in his head. He became unconscious and the accused mum, bought rob ointment and applied on his body.

When the senior sister of the deceased returned from the market, she raised an alarm. One of their neighbours gave her money to take the deceased to the hospital. The deceased mum came back from the market and joined them in the hospital. The deceased was moved to three hospitals that night but he later died in the early hours of the morning, the following day. The body was thereafter deposited in the mortuary.

The deceased mum later made a complaint to the Police hence the arrest of the accused. After investigations, the accused was charged to court 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. At the trial, the accused pleaded ‘Not guilty’ and the trial commenced.

The prosecution called two witnesses, who testified in chief and were cross-examined. The trial Judge was thereafter transferred. Trial started de novo in another court. In the second court, the two witnesses did not testify again. However, their testimonies were tendered by the ACR of the court as Exhibit B. After that, the Doctor and the Investigating Police officer testified as pw 1 and pw 3 respectively and the prosecution closed its case.

The accused testified as DW1 and called no other witness in defence of his case.

Both counsel for the parties filed and adopted their written addresses. At the end of which the learned trial Judge delivered his considered judgment and found the Appellant guilty as charged, hence this appeal.

The Appellant filed his notice of Appeal with a Further Amendment on the 22nd of October, 2013.

The Appellant filed his appellant’s brief on the 22nd of October, 2013 and the Appellant’s reply brief on the 4th of February, 2014. In the Appellants brief, counsel articulated four (4) issues for determination. They are namely thus:

1. Whether the judgment is unreasonable and cannot be supported having regard to the evidence.
2. Whether the Learned Trial Judge erred in law when he relied upon the hearsay evidence of Inspector Monday Nnah (PW3) and Exhibit ‘B’ to convict the Appellant.
3. Whether the Learned Trial Judge erred in law when he admitted the proceedings/evidence that were taken by Honourable Justice A. E. Archibong when same was not certified by Honourable Justice A. E. Archibong.
4. Whether the Learned Trial Judge erred in law when he visited the sin/mistake of counsel on the litigant by refusing to acknowledge the mistake made by Appellant’s Counsel during the hearing of the case and relied upon the mistake.

The Respondent filed its brief on the 26th of February, 2014 but deemed properly filed and served on the 26th of February, 2014. Both parties on the 25th February, 2014 the date fixed for hearing of the appeal adopted their various briefs and relied on them in furtherance of their various submissions.

ISSUE ONE

Counsel submitted that in the first trial court, the trial Judge took evidence from an eyewitness PW 1, Blessing Peter Asuquo, (an infact)’ When the trial started de novo before another Judge, the A.C.R tendered the evidence of PW1 and it was admitted as Exhibit B See Shurumo Vs. The State (2001) 196 LRCN. Counsel submitted that there were grownups in the house when this incident took place and none was invited to testify.