Raphael Ifiok Sunday V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A (Delivering the Leading Judgment)

On the 19th day of November, 2007 the High Court of Justice Akwa Ibom State of Nigeria holden at Uyo, presided over by Stephen Okon J., convicted and sentenced the appellant to death for murdering his late father Norbert Sunday contrary to Section 519(1) of the Criminal Code of Akwa Ibom State. Being aggrieved the appellant filed a Notice of Appeal against the decision on 26th day of November, 2007 on the ground that the verdict is unreasonable and cannot be supported having regard to the evidence.

On 10th December, 2009 learned counsel applied and leave was granted him on 26th April, 2010 to file three additional grounds. The additional grounds were deemed properly filed and served on the Respondent. On 4th July, 2010 the appellant further sought and was granted extension of time to file a brief of argument. Leave was granted on 19th October, 2010.

On 29th February, 2012 time was on application, extended for the respondent to file a Brief of Argument. This prompted the appellant to apply on 11th April, 2012 for extension of time to file a Reply Brief out of time. The application was granted on 3rd May, 2012.

When the appeal came up for hearing on 5th December, 2012 the appellant and respondent’s briefs were all adopted. While learned Counsel to the appellant prayed that the appeal should be allowed, learned Counsel to the Respondent urged for its dismissal.

Before considering the issues for determination I shall set down the facts that led to the trial, conviction and sentence to death of the appellant.

The appellant is the eldest son of Norbert Sunday (deceased). He and his wife lived together with the deceased at No.81A Ikpa Road Uyo in Akwa Ibom State. The deceased had another son, namely, Innocent Norbert (deceased). The grand son of the deceased at the time of his death was Akpan Innocent who was still in the secondary school.

Etim Udoh (Pw1) lives at Afana Oku, Uyo. Edem Udofia Ibanga (Pw2) resides at No.81 Ikpa Road, Uyo. Madam Akon Hanson Udoh Ibanga alias “Mmaecce” is landlady of No.81B Ikpa Road, Uyo. She is the wife of the senior brother of the deceased according to the testimony of Pw1. Edem Udofia Ibanga (Pw2) testified that Norbert Sunday (deceased) visited him on 2nd April, 1996. On 3rd April, 1996 when he called at the appellant’s house at No.81A Ikpa Road, Uyo he could not trace the whereabouts of Norbert Sunday. Upon inquiry as to the whereabout of Norbert Sunday the appellant shouted and pushed him out of his compound. Pw2 explained what transpired between him and the appellant as follows:

“…I began to shout whether he had killed his father. The accused used to tell me that he would kill his father alleging that his father was wizard. He used to beat and stab his father. Sometimes his father would report to the police but he would not allow the police to prosecute him, fearing that if the accused was jailed he would on his return from the prison kill him. The accused did not tell me about the whereabouts of his father. Rather, he told me to look for him. Because of the shouts, the Pw1 came and asked me what happened. I told him the behaviour of the accused person. I told Etim Udoh I suspected that the accused person must have killed his father. The Pw1 told me that the accused person had told him that his father got lost. Pw1 said he asked the accused if he had reported to his family, he said no, and that he advised him to report to me. When the family assembled, the accused person told us that his father was missing. I told him his father was not lost, but that he the accused knows the whereabouts of the deceased. The accused suggested consulting an oracle. I said I had no money for the oracle. I told the gathering that the accused should be allowed to go and look for his father and report to us the following day. That suggestion was accepted. The following day we met and the accused said he looked everywhere without finding his father.”

See page 33 lines 22-23 and page 34 lines 1-15 of the printed record.

Nevertheless Pw2’s testimony continued thus:

“Pw1 was one of those who went to the village head. Pw1 told me after they had gone to the police station that the accused person told the police he suspected that his father was in the pit latrine. He had earlier made the same suggestion at the palace of the village head. The police went with the accused person to their compound. The accused showed the police the pit latrine. The latrine was broken and a corpse was found. The accused was asked to identify the corpse and he told the police it was the corpse of his father. The deceased was my half brother. I made a statement to the police in connection with this matter. When the accused person met with the family as aforesaid, he never told us it was Eette Ntebono who knew something about his father’s whereabouts when the police brought him before me, I asked him who killed and dumped the corpse of his father in the pit toilet. The accused person did not answer. It is not true as alleged by the accused person that I and other member of our family had threatened to kill the deceased in because the deceased killed the accused person’s junior brother. It is equally not true that the family told the accused person not to tell the police his father’s corpse was in the pit latrine. There was no land dispute between our family members and the deceased as alleged by the accused person. That’s all.”

See page 34 lines 24 to page 35 lines 1-15 of the printed record.

The implication of the evidence by Pw2 was that the corpse was found and retrieved in the pit latrine in the compound of the deceased where he lived with the appellant at No.81A Ikpa Road, Uyo. This is borne out in his testimony of 24th February, 2005 wherein he stated as follows: