Nsikak Bassey Ukpong V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

At the High Court of Akwa Ibom State, Ikot Ekpene Judicial Division, Nsikak Bassey Ukpong [the appellant herein] and one other, were arraigned on a one-count charge of murder contrary to Section 326 (1) of the Criminal Code, Cap 38, Vol 2, Laws of Akwa Ibom State of Nigeria.

Upon their plea of not guilty, the matter went to trial before the Court (hereinafter, simply referred to as “the trial Court). The Prosecution’s case was presented by five witnesses. It made the case that sometime in December, 2006, there was a proposed electrification project in a village close to Ikot Obong Otoro village, in Ikot Ekpene Local Government Area.

The deceased person, namely, John Tom Umoh, who was the Sanitation Chairman in Ikot Obong Otoro Village, indicated the trees that needed to be felled in the impending exercise. In the process, he tagged a coconut tree by the road side as due to be felled.

The appellant, who was not happy with this development, scolded the deceased person for so doing. That notwithstanding, the coconut and other economic trees,

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which obstructed the proposed power line, were felled. The aim was to facilitate the electrification project which the community was embarking on.

The appellant who, as shown earlier, was displeased, confronted the deceased person. A fight ensued. The appellant beat the deceased person to the extent that he [the deceased person] could not walk home. He [the deceased person] was in consequence, taken to the Ikot Ekpene General Hospital on the said day, December 13, 2006, when the incident occurred. Two days later, on December 15, 2006, he died.

Although he testified in his defence, he [the appellant] did not call any other witness. He admitted fighting with the deceased person on that day, December 13, 2006. He however, claimed that it was the deceased person who pursued him with a machete to a Road Junction in their village. At the end, the trial Court, persuaded by the Prosecution’s case, convicted the appellant, as charged. The Court, however, dismissed the charge against the second accused person. His appeal to the Court of Appeal, Calabar Division, having been dismissed, he has further appealed to this Court. He entreated the Court to determine the five

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issues he concreted from the Grounds of Appeal.

ISSUES FOR DETERMINATION

1. Whether the learned Justices of the Court of Appeal were right in holding that it is not necessary that there should be intent to kill to sustain a murder charge based on the provision of Section 323 (2) and (3) of the Akwa Ibom State Criminal Code, Cap 38, Vol 2 of 2000 and that the appellant intended to kill the deceased [person] because he fought the deceased [person] and death resulted therefrom
2. Whether in view of the contradictory evidence of the prosecution witnesses as to the nature of injury and date of death, the learned Justices of Appeal were right to have upheld the conviction of the appellant for murder
3. Whether the learned Justices of the Court of Appeal were right in affirming the judgement of the learned trial Judge which held that the defences of provocation and self-defence did not avail the appellant to mitigate the conviction for murder to that of manslaughter
4. Whether the learned Justices of Appeal were right when they affirmed the judgement of the trial Judge that the death of John Tom Umoh was a pre-meditated murder when there was no such evidence before the Court

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Whether considering the evidence led and the circumstances of the case, the judgement of the Court of Appeal is unreasonable, unwarranted and unsupportable by the evidenceThe Hon Attorney General for Akwa-Ibom State, for the respondent, Uwemedimo Nwoko, adopted Issues One and Five. He adopted issues two and four with modification. He canvassed the view that issue did not arise from the decision of the lower Court.On my part, I take the view that only one issue is determinative of this appeal. After all, this Court is entitled to reformulate issues framed by the parties in order to give them precision and clarity, Okoro v. The State [1988] 12 SC 191; [1988] 12 SCNJ 191; Latunde and Anor. v. Lajinfin [1989] 5 SC 59; [1989] 5 SCNJ 59; Awojugbagbe Light Industries Ltd. v. RN. Chinukwe and Anor. [1995] 4 NWLR (pt. 390) 379; [1995] 4 SCNJ 162; Ogunbiyi v. Ishola [1996] 6 NWLR (pt.452) 12, 24; [1996] 5 SCNJ 143; Lebile v. The Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria Ugbobla and Ors. [2003] 1 SCNJ 463. Simply put, therefore, the purpose of reformulating issues is to accentuate the real