Simeon Daniel Udoike V. The State (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL OBI ELECHI, J.C.A. (Delivering the Leading ?Judgment)

This is an appeal against the Ruling of High Court of Akwa Ibom State, Ukanafun Judicial Division delivered by the Hon. Justice Ezekiel Ennang on the 31st July, 2015. The 2nd Accused/Appellant was the 2nd Accused/person at the Lower Court whilst the 1st Respondent was the complainant and 1st, 3rd and 4th Accused person respectively.

The 1st- 4th Accused/Appellants were charged with conspiracy, Murder and causing grievous harm under Sections 331, 326 (1) of the Criminal Code Law respectively Cap 38 Vol. 2 Laws of Akwa Ibom State of Nigeria 2000. In Count 1, the 1st – 4th Accused/Appellants were alleged to have conspired on the18th March, 2015 among themselves to kill one Honourable Okon Joseph Uwah.

In Count 2, the 1st -4th Accused/Appellants were alleged to have murdered one Honourable Okon Joseph Uwah on l8th March, 2015. In Count 3, the 1st – 4th Accused/Appellants were alleged to have on the 18th March, 2015 did grievous harm to one Uduak Jackson Essien.

Upon being served with the information on the charge on the Accused/Appellants Counsel filed an Application by way

of Motion on Notice on the 12th June, 2015. The 1st Complainant Counsel filed a 5 (five) Paragraph Affidavit with written Address in opposition.

The 1st – 4th Accused/Appellants sought to strike out the 3 (three) count information against them. The Grounds of their Motion is that the information filed does not disclose any prima facie case of conspiracy, Murder and causing grievous having against the Appellants for lacking in evidence in proof to connect the Accused/Appellants with the offence charged. The Lower Court on the 31st Jury, 2015 delivered its Ruling and dismissed the Application.

Dissatisfied with the said Ruling the 1st – 4th Accused/Appellants have now lodged an appeal against that Ruling. In trying to argue this appeal the 2nd Accused/Appellant distilled 4 (four) issues for determination:

1. “Whether the trial Court can rely on hearsay to establish prima facie case of conspiracy, Murder and causing grievous harm against 2nd Accused/Appellant when the 2nd Accused/Appellant was not present at the scene of crime.
2. Whether the trial Judge was right to have established prima facie case of Conspiracy Murder and grievous harm against

the 2nd Accused/Appellant when he help that the 2nd Accused/Appellant attacked the deceased on the instruction of the 1st Accused/Appellant base on the hearsay of the prosecution witness when the 2nd Accused/Appellant was not present at the scene of crime (ground 2).

3. Whether a criminal charge preferred In the Magistrate Court without Jurisdiction which was sent to Director public prosecution and adjourned since die amount to the termination of the Criminal proceedings and whether the filing of Information at the same time at High Court did not amount to abuse of Court process and criminal Jeopardy against the 2nd Accused/Appellant (ground 3).
4. Whether the Learned trial Judge can rely on disputed State Law to rule against the consent to proffer Information at High Court of Akwa Ibom State under a valid existing Law (Ground 4).”

In arguing this issue No. 1, Appellants Learned Counsel referred the Court to the case of OLATUNBOSUN v. STATE (2013) 17 NWLR (Pt. 1382) 167 at 197 where the Supreme Court held that it is the duty of counsel especially in Murder cases to promptly take objection to any or every perceived irregularity relating at least

to procedure or charge. The Learned Appellant Counsel then submitted that it was acting within the ambit of the Law when he applied to quash the Court charge when the 3 (three) counts disclosed no prima facie case against the 2nd Accused/Appellant to link him with the offence charged with. He then argued that the statement of Gideon Amos udoko at page 6 – 11 of the Record of Appeal as proof of evidence intending to be used to establish the fact that he 2nd Accused/Appellant conspired and indeed attack the deceased is hearsay on the fact that the evidence is credited to one Akaninyene Peter Abai who was purported to have received instructions via telephone cell to attack the deceased the 2nd Accused/Appellant according to Learned Counsel was not at the scene of crime neither did he personally involved in the attack of the deceased but what the Court relied upon to link the 2nd Accused/Appellant and made out a prima facie case against him is only hearsay evidence of one Gideon Amos Udeko and urged the Court to hold that this cannot by any shred of evidence link the 2nd Accused/Appellant to the offence of conspiracy, murder and causing grievous harm. see SHURUMO

v. STATE (2010) 19 NWLR (pt. 226) 73 at l04. The proof of evidence by the prosecution did not disclose any prima facie case against the 2nd Accused/Appellant and in view of that; the Court is being urged to resolve this issue in favour of the Appellants.

Issue No. 2, a greater part of the argument to be preferred in this issue has already been covered in issue No. 1 above and he thereby adopted same as his argument and submission under issue No. 2. Nonetheless, Learned Appellant Counsel still maintains that the hearsay evidence of Gideon Amos Udoko cannot link the 2nd Accused/Appellant with the offence charged. The reason is that the mere mention of the 2nd Accused/Appellant by the said Gideon Amos Udoko as one of the boys who attacked the deceased without stating any particular direct involvement in the crime only amount to suspicion which no matter how strong it cannot establish prima facie case against the 2nd Accused/Appellant or secures conviction against the 2nd Accused/Appellant. see AL-MUSTAPHA v. STATE (2013) 17 NWLR (Pt. 1383) 350 at 413. Even the 2nd Accused/Appellant statement on oath raised a defence of Alibi and gave particulars of his

whereabouts that is staying with his in-Law’s compound but there was no investigation by the police.