Ubong Effiong James V. The State (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.(Delivering the Leading Judgment)

This in respect of an appeal against the judgment of the High Court of Akwa Ibom State, Uyo Judicial Division delivered on the 30th day of March, 2012 by Imeh Umanah J.

The appellant was arraigned on a one count charge of murder contrary to Section 326 (1) of the Criminal Code Cap 38, Vol 11 Laws of Akwa Ibom State of Nigeria. The particulars of offence stated as follows:

Ubong Effiong James on the 8th November, 2008 at Idu Uruan Local Government in Uyo Judicial Division murder Mfon Etim Asuquo.

The appellant pleaded not guilty to the charge and at the trial the prosecution called 3 witnesses while the appellant testified from the witness box in his defence. After taking final addresses of counsel, the learned trial judge in a considered judgment found the appellant guilty, convicted and sentenced him accordingly.

Exercising his right of appeal, the appellant filed a Notice of Appeal on the 6th of June, 2012 containing one ground.

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At the hearing of the appeal, his counsel, Mr. Udosen adopted the appellant’s brief filed on 25th February, 2013 but deemed properly

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filed and served on the 10th February, 2016 as the arguments of the appellant in this appeal. Therein he formulated a sole issue for determination from the lone ground of appeal as follows:

Whether from the totality of evidence adduced at the trial Court, the prosecution had proved a case of murder against the appellant.

On his part, Mr. Umoren the learned assistant director in the department of public prosecutions, Ministry of Justice, Akwa Ibom state, adopted the respondent’s brief filed on 16th September, 2013 but deemed properly filed and served on the 16th February, 2016 as the arguments of the respondent in contesting this appeal. Therein he adopted the lone issue formulated for determination by the appellant.

Arguing the said issue, Mr. Udosen submitted that from the totality of the evidence adduced at trial, only the appellant gave an account of how the deceased met his death and that his said account establishes the defence of provocation which whittled down the offence from murder to manslaughter. He urged the Court to hold that the ingredients constituting provocation was established by the appellant. He referred to EDOHO VS

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