Ubong Monday Jack V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JA’AFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Ita J. sitting in the High court of cross River State, Calabar in suit No.HC/36C/2006 and delivered on the 4th day of March, 2009. An information was filed against the appellant for the offence of murder contrary to section 319 (1) of the criminal procedure faw of Cross River State.

The issues for determination are whether the accident and self-defence raised by the appellant was considered and available to him and whether the lower court was right in holding that the prosecution proved its case beyond reasonable doubt.

Before the lower court charge No.HC/36C/2006 was brought against the appellant for the offence of murder contrary to section 319(1) of the criminal code of cross River state, that the appellant on the 27th day of September, 2005 at No.5 Umo Orok Street, Calabar, Calabar division murdered one Micheal Clement Effiong.

The information was filed on the 7th day of July, 2006 and attached to the information one (1) the list of names of four (4) persons the prosecution intended to call as witnesses (2) complainant’s statement (3) post mortem examination sheet (4) police information report and (5) Appellant’s statement.

The Appellant case at the court below was that, he lived in the same house with the deceased. The house belongs to the appellants father, and it is at No.5 Umo Orok Street, Calabar. That a tenant who had parked out of the premises left a room divider in his custody. In his absence the deceased collected the room divider defence from his room. When he went to recover the room divider from the deceased on the 27/9/2003 a fight ensured behtween him and the deceased. During the said fight which took place in the deceased room the deceased used hammer on him twice and the third time he brought out a machete and gave him a cut. They started to struggle for the matchet. That he collected the matchet from the deceased and defended himself with it. In the appellant’s words he said “so I used the matchet and wanted to “flock” him and the matchet cut him at his chest and side ribs and he died at the hospital.

The question for determination of this appeal is whether the defence of accident and self-defence raised by the appellant were considered and available to the appellant. It is to be noted that the appellant in his first statement to the police, exhibit 2 stated that so when I asked him he (deceased) used the hammer and hit me on my face, second time he took shoe to flog me and I collected the shoe from him. The third time he took matchet and cut me on my left hand. From there as we were dragging, I collected the matchet from him and the matchet cut him at the side of his arm….”.

The appellant also stated in his second statement to the police, that is exhibit 2A as follows:-

“(a) It was on Tuesday 27/9/2005 that I went to Effiong (deceased) and asked him of a room divider that was with hammer and stated to drag with me that the room divider was not mine” continuing.

(b) He used the hammer and beat me. He beat me with the hammer the second time, then the third

time.”

(c) He took one matchet which was recovered by the police and cut me the first time and we started to drag the matchet together,,…….

(d) “I collected the matchet from him and defence myself, continuing

(e) So I used the matchet and wanted to flock him and the matchet cut him at his chest and side ribs, and he died at the hospital,,.