Okon Etim Akpan V. The State (2016)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the judgment of the Court of Appeal Calabar Division Coram: M. L. Garba, U. I. Ndukwe – Anyanwu and O. A. Otisi, JJCA in which the Court dismissed the appeal of the Appellant and affirmed the judgment of the trial Court presided over by B. T. Ebuta J. of the High Court of Cross River State, Akamkpa which found the Appellant guilty of the murder of Ekpenyong Ayi Ekpenyoung and sentenced him to death by hanging.

BACKGROUND FACTS:

The Appellant was charged with the offence of murder contrary to Section 319 (1) of the Criminal Code Cap C 16, Laws of Cross River State of Nigeria 2005. The version of the Respondent before the trial Court was that the Appellant on the 4th day of December 2004, in the course of quarrelling 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 accused person pleaded not guilty and the Respondent called five witnesses.

The Appellant testified for himself and maintained that nothing happened between him and the

1

deceased and that he had no prior quarrel with the deceased and did not kill him.

According to the Pw1, the Appellant had had previous quarrels with the deceased and on the 4th day of December, 2004, the appellant had gone to the compound where the deceased resided and while there an altercation ensued and the appellant dragged the deceased to the road and when the PW1 (Alice Effiong Jumbo) tried to stop him, he used his legs and kicked the PW1 to allow him do what he was doing. On getting to the road still dragging the deceased, the appellant lifted the deceased up and hit him on the ground and he died instantly. Post mortem examination was performed on the deceased and the cause of death was traced to injuries resulting from the act of the accused carrying and throwing him on the ground. Upon these facts and supporting Exhibits, the trial Court convicted and sentenced the Appellant to death and on appeal to the Lower Court, the Lower Court affirmed the conviction and sentence and dismissed the appeal as lacking in merit.

Aggrieved on the Lower Court’s dismissal of the Appeal that the Appellant had to further appeal to this Honourable Court.

On the

2 19th day of November 2015 date of hearing, the learned counsel for the Appellant, Mr. Sonny Wogu adopted the Brief of Argument of the Appellant filed on the 10th July 2014 and formulated two issues for determination which were one and the other in the alternative.

1. Whether the Court of Appeal was not in error when it held upon the totality of the evidence adduced at the Court of trial, that the charge of murder had been established against the Appellant beyond reasonable doubt, Grounds 1, 3, 5, and 6 of the Notice and Grounds of appeal.

OR IN THE ALTERNATIVE

2. Whether on all the established facts in this case, the proper verdict which ought to have been returned by the Court of Appeal against the Appellant is not one of manslaughter rather than one of murder.

Grounds 1, 2, 5 and 6 of the Notice and Grounds of appeal.