Okim Irom Ejukwa V. The State (2009)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

This is an appeal against the judgment of Honourable Justice E. U. Ofem sitting at the Cross River State High Court, Ugep delivered on 20th November, 2003 in charge No.HB/10c/99. By an information dated the 15th day of December, 1999, the appellant who was the 2nd accused was arraigned with 9 others before the High Court, Obubra for the offence of murder contrary to Section 319 (1) of the Criminal Code of Cross River State. The charge read as follows:

“STATEMENT OF OFFENCE

MURDER, contrary to Section 319(1) of the Criminal Code of Cross River State.

PARTICULARS OF OFFENCE

Sylvester Edim Oduma, Okim Irom Ejukwa, Charles Egor Ovat, Wilfred Asim Agbor, Ovat Okpa, Mbor Egwo, Chief Felix Achon Ayang, Egobi Akpang, Bassey Owuta’m and Okura Ovat on the 26th day of February, 1997 at Ochon Village, Obubra in the Obubra Judicial Division, murdered Sampson Ovat,”.

The deceased, late Sampson Ovat was a retired Police Sergeant. He was a native of Ofudua but settled in Ochon where he engaged in hunting activities after his retirement from the Nigeria Police Force. On 26th February, 1997, he went on a hunting expedition. On the same date there was news that Wilfred Agara Okey, a school teacher and an indigene of Ochon had been shot dead and it was suspected that Late Sgt. Sampson Ovat was responsible for the death of Wilfred Agara Okey. Following this suspicion, some people visited the deceased house and on his return from his hunting expedition he was taken away and it was later found that his head had been severed from the neck and this led to the arrest of 10 people including the 2nd accused. Hearing commenced at the Obubra High Court on 10th August, 2000. On this date, the court was informed that the accused, Egobi Akpang had earlier been discharged from prison custody by the Chief Judge and his name was struck out from the charge. On 23rd January, 2001, the court was further Informed of the death of the 10th accused, Okura Ovate His name was consequently struck out from the list of persons standing trial. Hearing continued with the remaining 8 accused. At the conclusion of the case by the prosecution and defence, the learned trial Judge found all the 8 accused persons guilty of the offence of murder and sentenced them to death by hanging on 20/11/2003.

The convicts were dissatisfied with their conviction and filed a Notice of Appeal to this court but it was discovered from the records that only one notice of appeal was filed on behalf of all the convicts and it was signed by D. O. Kulo and dated 23/11/2003. Consequently learned Counsel were invited to address this court on the competency of the Notice of Appeal. Mr. Esu of learned counsel who appeared for the appellant referred to the Notice contained at pages 117 – 118 of the records and informed the court that no other Notice was filed on behalf of the Appellant.

Section 25 (1) Court of Appeal Act and Order 16 Rules 3(1) and 4(1) & (2) Court of Appeal Rules 2007 deal with criminal appeals. Section 25(1) provides:

“Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this Section that is applicable to the case.”

Order 16 Rules 3(1) and 4(1) & (2) are in the following words:

“3(1) A person desiring to appeal to the court against any judgment, sentence or order of the court below, whether in the exercise of its original or of its appellate jurisdiction, shall commence his appeal by sending to the Registrar of the Court below a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, as the case may be, in the form of such notice respectively set forth as forms 1, 2, 3, 4, 5 or 7 in the Second Schedule to these Rules.

4(1) Every notice of appeal or notice of application for extension of-time within which such notice shall be given, shall be signed by the appellant himself, except under the provisions of paragraphs (5) and (6) of this Rule

(2) Any other notice required or authorized to be given shall be in writing and signed by the person giving the same or by his legal representative…”

The purported Notice of Appeal filed is in respect of all the convicts. It is incompetent and the appeal is therefore struck out. See: EGBUCHALAM & ORS v. C.O.P. (1965) NMLR 169.

Other Citations: (2009)LCN/3503(CA)