Okon Etim Akpan V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal by the Appellant against the Judgment of the High Court of Cross River State, Akamkpa Judicial Division, delivered on 21st November, 2008 in Charge No. HK/1C/2006 in which the said trial court convicted the Appellant for the murder of one Ekpenyong Ayi Ekpenyong and sentenced him to death by hanging.

It was alleged that on 4th December, 2004, the Appellant, in the course of quarreling with the deceased, “took the deceased to the road, jerked him up and fell him on the ground. In the process the deceased person died instantly”.

The Appellant was charged with murder, punishable under Section 319(1) of the Criminal Code Law Cap C.16 Vol.3 Laws of Cross River State, 2004. At the trial, the prosecution called 5 witnesses and tendered 5 exhibits, while the Appellant testified in his own defence, maintaining that he had no previous quarrel with the deceased. At the conclusion of trial, the Appellant was convicted and sentenced to death by hanging. The Appellant, aggrieved by his conviction and sentence, filed this appeal.

The Appellant’s Notice and Grounds of Appeal was filed on 14/11/2012 raising seven grounds of appeal. The Appellant’s Brief of Argument was settled by Sonny O. Wogu, Esq. on 19/12/2012. The Respondent’s Brief was settled by P.S. Bisong, Esq., Director, Public Prosecution, Ministry of Justice, Cross River State, on 15/2/2013, and it was deemed properly filed and served on 24/3/2014.

On 24/3/2014, P.S. Bisong, Esq. informed the Court that the Appellant’s Counsel had notified him by telephone that he would be unable to attend Court on the said 24/3/2014. The Appellant’s Brief was therefore deemed adopted pursuant to the provisions of Order 18 Rule 9(4) of the Court of Appeal Rules, 2011; while Mr. Bisong adopted the Respondent’s Brief.

From the seven Grounds of Appeal, the Appellant distilled 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 raised for determination as formulated by the Appellant.

It is submitted for the Appellant that out of the five prosecution witnesses, only PW1 testified as an eye witness. PW5, Sergeant Joseph Bassey had in evidence in chief described PW1 “was the architect of the problem.” But, that this piece of evidence did not weigh at all in the mind of trial court. PW1 in her statement to the police at page 7 – 9 of the Record of Appeal had said that the Appellant “actually approached me for friendship which I did not accept at first” and that “when I later on accepted the friendship we stayed for one year and ended in 2003.” It is submitted that her testimony revealed that:

a. The only self-acclaimed eyewitness to the crime (PW1) was a tainted witness. She was described by the investigating Police Officer as the “architect of the problem”.

b. Apart from the testimony of PW1, nothing whatsoever linked the Appellant to the offence charged in any manner. No iota of evidence (oral, real or documentary) connected the appellant to the offence, as the Appellant did not make a confessional statement.

It is submitted that the Appellant was convicted and sentenced to death upon dangerously porous and hazy evidence. It is submitted that the evidence of the Appellant was consistent that he did not take part in the offence for which he was charged, even in cross-examination.

Learned Counsel referred to the findings of the trial Judge and submitted that the prosecution did not prove the case beyond reasonable doubt. It is submitted that in order to succeed in proof of the offence of murder, the Respondent must prove beyond reasonable doubt the following: