Sunday Effiong V. The State (1998)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C

The appellant was on 27-9-83 convicted at the High Court of Borno State holden at Borno and sentenced to death by hanging under section 221 (b) of the Penal Code for causing the death of Police Constable Isaac Onoh on or about 23-6-82 at Tandari Ward, Borno by stabbing the said Isaac Onoh on the stomach with knowledge that death would be the probable consequence of his act.

He appealed against his conviction and sentence to the Court of Appeal and that court on 4-12-95 dismissed his appeal and affirmed the conviction and the sentence of death imposed on him by the learned trial Judge. He was not satisfied with the decision of the court below and appealed to this court. Nine grounds of appeal were filed on behalf of the appellant and from the grounds of appeal, only one main issue was identified in paragraph two of the appellant’s brief of argument filed on 19-1€¢ 97 as arising for determination in the appeal. It reads:

“The appellant respectively submits that there is only one major issue for determination by this honourable court. The major issue is whether the lower court was right when it held that the guilt of the appellant had been proved beyond reasonable doubt. This issue is related to all the grounds of appeal filed and it encompasses all other minor issues which call for determination.”

The following five issues were formulated in the respondent’s brief:

“(1) Was the appellant herein entitled to any of the defences having regard to the evidence on record

(2) Whether the Court of Appeal was right in holding that the prosecution had proved its case as required by law

(3) Was the lower court right in holding that Exhibits ‘A’ and ‘C’ were properly admitted and proved to sustain the conviction and sentence of the appellant by the trial court

(4) Whether the findings of the courts were amply supported by the evidence on record.

(5) Whether the trial court had jurisdiction to entertain the appellants (sic) case.”

I will consider this appeal strictly on the singular issue submitted and argued in the appellant’s brief of argument. If any ground of appeal was not covered by the issue formulated, that ground of appeal is deemed abandoned by the appellant and it is not open to the respondent to raise an issue from a ground of appeal which the appellant had abandoned. The appellant’s fourth ground of appeal was not argued by the appellant in his brief and it was not proper for the respondent to formulate an issue in respect of such a ground of appeal which the appellant for reasons best known to him decided not to argue. This comment is necessitated by the respondent’s fifth issue for determination. I will therefore ignore it.

The brief facts of the case were that on 23-6-82, P.W.2 (Police Corporal Salmanze Bwah) and the deceased (Police Constable Issac Onoh) were sent to Tandari Ward in Borno town to effect the arrest of the appellant who was suspected to have taken part in various house breaking complaints. The deceased went before P.W.2 to Tandari Ward. Later, P.W.2 met the deceased and the appellant at Peace and Charity Hotel in Tandari Ward. He joined them. After greeting the appellant, P.W.2 introduced himself to the appellant and told him that he was under arrest. When the appellant wanted to know the reason for his arrest, P.W.2 told him and wanted to handcuff the appellant two requested P.W.2 not to disgrace him as he was ready to follow P.W.2. The deceased pleaded with P.W.2 not to handcuff the appellant. He agreed and held the appellant by the shirt and they left for the police station. The appellant twice requested to be allowed to ease himself as they were going to the police station and on each occasion, the deceased pleaded with P.W.2 to allow the appellant to ease himself when P.W.2 was not willing to accede to the request. It was about 9.30 p.m. when the appellant urinated second time and after this, he asked in Hausa whether P.W.2 was going to leave him or not. He then pulled out a long knife tied to his right leg. The appellant stabbed P.W.2 on the left chest and both of them wrestled for the knife. The appellant directed the knife towards the deceased and stabbed him on the stomach and he fell down. The appellant stabbed P.W.2 again in the neck and P.W.3 (Police Constable John Ginde) who rushed to the scene was also stabbed by the appellant. The appellant stabbed P.W.2 for the third time as the witness was still holding him. At that juncture P.W.2 lost grip of the appellant. Police Constable Isaac Onoh died on the spot. P.W.2 ran to the police station and reported the incident and he was taken to the hospital where he was admitted and treated.

At the hearing of the appeal on 5-3-98, Gadzama, Esq. learned appellant’s counsel adopted the brief of argument filed on behalf of the appellant on 19-11-97. He relied on the arguments contained therein and urged us to allow the appeal. It was submitted in the brief that apart from P.W.1 (Dr. Nicholas Prekkop) who is a medical doctor, the remaining four prosecution witnesses belong to the same calling or occupation as the deceased and would naturally have sympathy over the death of their colleague as against the appellant who was alleged to have caused the death. It was his submission that they are tainted witnesses whose objective was to retaliate the death of their deceased colleague. Learned counsel referred the court to the cases of Okoro v. The State (1988)5 NWLR (Pt. 94) 255 at 274, Mbenu v. The State (1988) 3 NWLR (Pt. 84) 615 at 617 and Ukut & ors v. The State (1966) NMLR 18.

It was submitted in the respondent’s brief that P.W.2, P.W.3, P.W.4 and P.W.6 were not tainted witnesses. Rather P.W.2 and P.W.3 were victims of the appellant’s brutal attack and that they testified as to what actually took place and their testimony was corroborated by the appellant’s confessional statement (Exhibit “C”).