Oduak Daniel Jimmy Vs The State (2013)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD J.S.C

This is an appeal against the judgment of the Calabar Division of the Court of Appeal, hereinafter referred to as the court below, affirming the conviction and sentence of the appellant by the Akwa-Ibom State High Court of Justice,

I hereinafter referred to as the trial court. The trial court’s judgment was delivered on the 30th day of March, 2006 while the lower court’s affirmation of the said judgment is dated 27th May, 2009. The appellant was tried and convicted for the offence of murder contrary to Section 319 (1) of the Criminal

Code Cap 31 Vol. 2 Laws of the Cross River State as applicable to the Akwa-Ibom State. Let me supply, very briefly, the facts of the case that brought about the appeal.

In the late 1990’s, the military which, before then, had ruled the country for almost a quarter of a century out of its thirty two years post-independence existence, decided to return the country to democratic rule. The instant case is one of the many dark and unfortunate shades in the course of the country’s laudable resolve and march towards a fresh democratic culture and means of governance.

The appellant, Oduak Daniel Jimmy and Aniefiok Joseph Bassey, the deceased, belonged to rival political parties that sponsored candidates in one of the elections held in ushering the new democratic dispensation in 1999. The particular elections took place on the 5th day of December, 1998. The two who hailed from Effoi Village in Eket Local Government Area of Akwa-Ibom State, had gone to cast their votes in their respective voting centres.

It is respondent’s further case that after casting his vote at the Effoi Village Hall voting centre, the appellant rather than go home, proceeded to another voting centre located at the Mary Slessor Health Centre, Effoi. There, following a disagreement between members of the PDP, appellant’s party, and members of the deceased’s party, the AD, voting had to be delayed for some time. After the voting, as the crowd of voters walked back to their respective residences, the appellant who had laid an ambush emerged with a matchet and dealt a fatal blow on Aniefiok Joseph Bassey leaving him with a deep cut on the left side of his neck. Bassey died instantly. His lifeless body was moved to the compound of the appellant’s father. Even there, asserts the respondent, appellant further threatened to kill PW2 with the very matchet he earlier killed Bassey. Appellant was later arrested and charged to court.

Appellant’s case is that Bassey’s death was accidental. He claims that it was the deceased who, on their way home from the Mary Slessor Health Center, first attacked him with a matchet. A struggle, the appellant further avers, ensued and the matchet accidently cut the deceased in the neck. While the respondent called five witnesses in making out its case, the appellant gave evidence on his own behalf and called an additional witness in his defence. At the end of the trial, the court having found that the respondent has proved its case beyond reasonable doubt, found appellant guilty and sentenced him to death. Dissatisfied, the appellant appealed to the court below which court in dismissing the appeal on 27th May, 2009, affirmed the appellant’s conviction and sentence by the trial court. The appellant has further appealed to this Court on seven grounds.

In compliance with the rules of court, parties have filed and exchanged their briefs of argument which briefs were adopted and relied upon, at the hearing of the appeal, as their respective arguments.

The four issues distilled at paragraph 3.00 of the appellant’s brief as having arisen for the determination of the appeal read:-

“1. Did the learned Justices of the Court of Appeal sitting in Calabar, properly avert their minds to the contradictory evidence of the prosecution witnesses in convicting the Appellant for murder

2. Did the Honourable Justices of the Court of Appeal properly evaluate the “intent to kill” as a mandatory ingredient of the offence of murder before convicting the Appellant
3. In view of the entire evidence, was the learned Justices right when they held that the prosecution had proved the offence of murder beyond reasonable doubt
4. Whether the defence of accident or self defence does not avail the appellant.”

The respondent, see page 5 of its brief of argument, has adopted the four issues formulated by the appellant for the determination of the appeal.

On their 1st issue, learned appellant’s counsel refers to the testimonies of PW1, PW2 and PW3 as well as their statements to the police and contends that the contradictions in their evidence make the evidence unreliable. In particular, learned counsel dwells on PW1s testimony at page 49, PW2’s evidence at page 54, PW3’s at pages 57 – 58 as well as the latter’s two statements to the police at pages 8 and 10 of the record of appeal in contending that the contradictions in the evidence of the three witnesses have rendered the evidence significantly unsafe. Respondent’s case so founded on material and fundamental contradictions, learned appellant’s counsel submits leaves the trial court with nothing to rely on in arriving at the decision it has. He relies on Agbo V. The State (2006) ALL FWLR (part 309) 1380 at 1385, Ubani V. State (2004) ALL FWLR (part 191) 1533 at 1539, 1550, Udosen V. State (2007) ALL FWLR (part 356) 669 at 699, and Sowemimo V. State (2004) 11 NWLR (part 885) 515 at 520 particularly at 532 and urges that we hold that the court below’s affirmation of the trial court’s decision is wrong. The logical inference to make from the totality of the evidence led by the respondent is that there was no eye witness on what actually took place between the appellant and the deceased thereby creating doubt as to how the deceased sustained the injury alleged to have led to his death. Once there exists the slightest doubt in respondent’s case, on the authority of Nausoh V. State (1993) 5 NWLR (part 292) 129, learned appellant’s counsel submits, respondent’s case automatically collapses. The concurrent findings of the two lower courts to the contrary, contends learned counsel, are erroneous. He prays that the issue be resolved against the respondent.

On the 2nd issue, learned appellant counsel submits that the respondent has the legal burden of proving all the ingredients of the offence appellant stands trial for beyond reasonable doubt. The respondent, it is contended, must establish not only the fact of death of the deceased and that same is a result of the act or omission of the appellant but that appellant’s act or omission that caused the death of the deceased was intentional as same was done with the knowledge that death or grievous bodily harm was its probable consequence. The three Ingredients of the offence of murder appellant is convicted for, learned appellant counsel submits, must conjunctively be established by the respondent through cogent evidence. Counsel supports his submission with the decisions in Adekunle v. State (2006) ALL FWLR (Pt 332) 1452 at 1456, Omonsa V. State (2006) ALL FWLR (Pt 306) 930 at 933.