Okon Nsibehe Edoho V The State (2010)

LAWGLOBAL HUB Lead Judgment Report

O. ADEKEYE, J.S.C

The appellant Okon Nsibehe Edoho was produced before the High Court of Akwa Ibom State, Eket Judicial Division on the 10th of September 1984, but could not be arraigned as’ he refused to respond to the charge. He was properly arraigned before the court on the 5th of October 1988 when his plea was taken. The charge preferred against him read as follows –

Statement of Offence

Murder contrary to Section 319 (1) of the Criminal Code

Particulars of Offence

Okon Nsibehe Edoho on the 31st day of October, 1983 at No.8. Esin Ufot Street, Afoha Eket in Eket Judicial Division murdered Akanimo Jacob Edoho.

Trial commenced de novo in the matter on the 21st of March 1989. The prosecution called three witnesses: the father of the deceased Okon Jacob Edoho as PW1, Akpachia Jacob Edoho as PW2 both were eyewitnesses of the incident leading to the death of the deceased on the 31st of October 1983 and a police officer who deposed on oath that he could recognize the handwriting of the IPO. The Investigating Police Officer could not be produced in court as a witness in the case, as he had retired from Police Service. The appellant after giving evidence, called two other witnesses, his brother Edoho Nsibehe Edoho as DW2 and Benjamin Edung a Prison Warder from the Prison in Eket where the appellant was remanded in prison custody. The background facts of this case were that the appellant, the deceased, PW1 PW2 and DW2 belong to the same family as clearly confirmed by their names and they were all at the scene of the incident. According to their testimony, the appellant took the walking stick of the deceased and in an effort to recover the walking stick; a fight broke out between them. After exchanging the initial slaps, the appellant went further to plunge a dagger into the chest of the deceased. The impact broke the dagger into two; the head was buried in the chest of the deceased leaving only the stump as remnant. The deceased was immediately rushed to a hospital where all efforts made to save his life failed. The appellant absconded on hearing about the news of the death of Akanimo. He thereafter made an effort to take his life by hanging with a rope. He was there and then arrested and handed over to the police. The medical officer in charge of the hospital where the deceased was admitted operated on his corpse to remove the head of the dagger.

He issued a Medical Report about the condition of the deceased.

The appellant blamed his reaction on being afflicted with insanity through witchcraft. The incident of attacking the deceased was beyond his control as he was then under the spell of the witchcraft and ultimately insanity. At the conclusion of trial, the learned trial judge believed the case of the prosecution as the PW1 and PW2 who are members of the same family with the appellant and eyewitnesses of the incident testified that they did not observe any abnormality in the appellant and at the time he stabbed the deceased on 30/10/83 and that there was no history of insanity in their family. The learned trial judge rejected the appellant’s plea of insanity and found him guilty of murder. He was convicted and sentenced to death by hanging. Being dissatisfied with the verdict of the trial court, the appellant found his way to the Court of Appeal for the review of his case on appeal. The Court of Appeal Calabar Division in its considered judgment delivered on the 4th of April 2006 affirmed the decision of the trial court.

The present appeal to this Court is against the dismissal of his appeal by the Court of Appeal. Both parties filed their respective brief of argument. Two issues for determination were distilled from the grounds of appeal filed and they read as follows –

(1) Whether the lower court was justified in striking out the issue and argument on hearsay.

(2) Whether the lower court was justified in finding that the defences of insanity and provocation did not avail the accused person in this matter.

The respondent in the brief filed on 25/3/2008 raised similar and identical issues as the appellant. I intend to be guided by these two issues for the purpose of this appeal.

Issue One