Godwin Etuk Udo Vs The State (1972)

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O. ELIAS, C.J.N.

The accused was charged with and convicted of the murder of one Robert Akpan Ekerete contrary to Section 254(1) and punishable under Section 257(1) of the Criminal Code, Cap. 28, Volume 1, Laws of Western Nigeria, 1959, on June 6, 1970 by Johnson, J., at the Ondo Judicial Division of the High Court of the Western State of Nigeria. On October 20, 1970, the Western State Court of Appeal dismissed his appeal. After hearing his appeal on August 14, 1972, we dismissed it as without merit. We now give our reasons for so doing.

The facts of the case may be briefly stated as follows: According to the accused’s own three confessional statements (Exhibits A, C and D), all of which were admitted without any objection, the accused said in Exhibit A that he was accompanied by his younger brother (Udo Jimmy) during the month of March, 1967 from their home town in the South-Eastern State to Okekale Camp via Oboto in Okitipupa Division of the Western State, where they were the only people living at the camp, tapping palm wine which they regularly brewed into illicit gin for sale to a man called Obara living at a place some three hours’ journey by canoe.

The deceased, Robert Akpan Ekerete, used to come and buy the illicit gin from the accused at Mr. Obara’s camp for sale in Lagos. In May 1967, the accused over-heard a conversation between his brother and the deceased in which the later suggested that Udo Jimmy should either leave his brother to work with him or go to work with someone who would take Udo Jimmy back to their home town. His brother did not tell him anything about the matter until, about three days later, his brother boarded a launch at Aboto in the Okitipupa Division and told him that he was returning to their State and would not come back.

This hurt the accused, as there had been no quarrel between him and his brother. Then in July, 1967, he learnt that rebel soldiers who infiltrated into the Okitipupa area from the Mid-West had killed his brother. The accused thereupon observed: “Then I said that it was Robert who misled my brother to meet his death like that.” In May 1968, because the accused could no longer bear it, he went near Obara’s camp to waylay Robert whom he shot dead there and then with a dane gun. He continued: “Immediately I shot him and he died at the same spot, I packed his dead body and I cut his head with his own cutlass and I went to a little distance and dug the ground and buried him there.

As I was doing all these things, nobody met me at all. I have sold the dane gun while I kept the used cutlass in Robert’s house.” He concluded in these words: “If Police follow me to the place where I buried him, I will show it and it is anytime from now that we can go there. One of my brothers is at EPE AREA, who told me to come to EPE side to continue my work there, and I went there also.

“But one day, I came from EPE to Aboto to get my money from one man where I was brought to the Police Station that my attention was needed and I came down to the Police Station. I killed Mr. Robert, because he killed my brother, by telling my brother to go home.” The accused stated in Exhibit C that the dane gun which he showed to the police and which had been recovered from Nwogbo  Jacob was the one which he used to kill the deceased and which he had sold to Nwogbo Jacob for 2(pounds) without telling the latter what he had done with the gun (Exhibit B). In Exhibit D, the accused described how he took a policeman and a doctor to the place where he had buried the body of the deceased which, after exhumation by them and examination by the doctor, was re-buried. He stated that the body was that of Robert whom he killed “sometimes in last year, 1968”. Sunday Ekerete, 6th P.W., a brother of the deceased, who accompanied them to the place also identified the body to the doctor, Justin Michael Uku, 1st P.W. who performed the post-mortem examination and whose testimony was as follows:
“I found there was a wound on the back of the left side of the chest; it appeared to be a gun shot entry wound. There was a circular hole in the left shoulder blade. There was a gun shot exit wound measuring about 2″ in diameter on the left side of the front of the chest. The 3rd and 4th ribs were fractured in front. The left lung was collapsed. The head was separated from the body. All internal organs showed slight putrefaction. The cause of death in my opinion was internal haemorrhage  due to gun shot wound of the chest.”

There were six prosecution witnesses who testified in the case. The confessional statement was obtained by Kelani Oyelude, 3rd P.W., and attested by Josiah Adedagbo Akande, 2nd P.W., a superior Police Officer. John Beggi, 5th P. W., was the investigating Police Constable who had collected the dane gun (Exhibit B) from Nwogbo Jacob.
At the close of the case for the prosecution, the learned defence counsel, having made an unsuccessful application to have the accused sent for medical observation, elected to call no evidence for the defence and asked for an adjournment in order to address the court. At the resumed hearing, the defence counsel tried in vain to show that the 1st P.W. did not say that the deceased’s head had been cut off as alleged by certain other witnesses, that the identity of the corpse was not established, and that the deceased asked for what came to him. The learned trial Judge found that the strongest evidence against the accused is his own confessional statement which was evidence of “a calculated and deliberate course of conduct” and of the fact that “the accused nursed malice against the deceased over the issue of his brother Jimmy”. The learned trial Judge found no evidence of any provocation offered by the deceased, so that the defence of provocation failed.

The failed trial Judge said that the contents of the confessional statements were corroborated by the post-mortem examination report and by the accused’s leading the team to the place where the corpse was recovered. Moreover, the statements were all admitted without any objection on the part of the accused. Thus these well-established tests laid down in R. v. Karimu (1952) 14 WACA were satisfied –

“(i) Is there anything outside the confession to show it is true
(ii) Is it corroborated

(iii)  Are the statements made in it of fact true as far as they can be tested Was the prisoner one who had the opportunity of committing the murder Is his confession possible Is it consistent with other facts which have been ascertained and which have been proved”

We agree with the learned trial Judge’s further finding that this was not a case of the police taking an accused person to the locus in quo for the purpose of obtaining admission, which was disapproved of in R. v. Bodon 2 WACA 353, but rather one on which the police took an accused person to the spot where he stated in his confessional statement that he had buried the victim of his crime, which was held in R. v. Onowo (1958) 3 FSC 26 by the Federal Supreme Court to be quite proper.

For these reasons we dismissed the appeal.

Other Citation: (1972) LCN/1391(SC)