Etim Etim Udo V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the judgment of the Court of Appeal Calabar Division or Court below or Lower court delivered on the 22nd day of June, 2015, Coram: Nwosu-Iheme, O. A. Otisi, S. O. Elechi JJCA dismissing the appellant’s appeal against the judgment of the trial High Court per Stephen E. Okon J. on a one count charge of murder contrary to Section 326 (1) of the Criminal Code Laws Cap. 38 Volume 2, Laws of Akwa Ibom State of Nigeria 2000. The appellant was the 5th accused before that trial Court.
BACKGROUND FACTS TO THE APPEAL:
The accused/appellant was arraigned along with others before the High Court, Akwa Ibom State sitting at Ikot Ekpene and the appellant was the 5th accused.
Between 23rd March 2004 and 16th July 2009, the matter was inconclusively tried by three (3) other judges. The appellant and his other co-accused persons were re-arraigned and fresh pleas were taken on the 16th July 2009 after more than five (5) years of their first arraignment.
The prosecution called three witnesses namely one Emem Adolphus Udoh as PW1; George
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Essien Udofia as PW2 and Dr. Ido Friday a medical practitioner as PW3.
All the convicts including the appellant made extra-judicial statements to the police upon their arrest.
It is pertinent to stress that of all the statements made by the convicts, only the statements of the 1st, 2nd convicts and that of the appellant were admitted in evidence before the Court.
The 1st convict, Onyime George Udofia’s statement dated 6/7/2003 and 12/7/2003 respectively were admitted in evidence and marked Exhibits “C” and “B1″‘
The 2nd convict,Daniel Edem Daniel’s statement dated 06/07/2003 and 12/07/2003 respectively were admitted in evidence and marked Exhibits “C” and “C1″‘
The appellant, Etim Etim Udo’s statements dated 7/7/2003 And 15/7/2003 respectively were admitted in evidence and marked Exhibits “D” and “D1″‘
The prosecution’s case against the appellant is that he was amongst the accused persons who went to the house of one Okon Tom Akpan at about 10 p.m. and unlawfully killed him.
According to PW1, one Emem Alphonsus Udoh, all the accused persons and the deceased are from Abiaokpo Edem Idim Village. PW1 is a
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seamstress and lived with the brother-in- law, Okon Tom Akpan, the deceased.
PW1 testified that on the 5th day of July 2003, at about 10 p.m., she was sleeping in the house of Okon Tom Akpan (deceased). Someone knocked on the door of Okon Tom Akpan room. Okon Tom Akpan then asked who was knocking. PW1 stated that the person knocking replied that he was Etim Etim Udo, whereupon the deceased then asked him his mission to his house.
The person replied that he wanted to collect his clothes so that he could use same the following day. The deceased was a dry cleaner at Ikot Ekpene General Hospital but did part-time private dry-cleaning jobs at home.
PW1 stated that he told the 5th accused/appellant to come back the next day as it was already late. The alleged 5th accused was said to have persisted and pleaded with the deceased to be given the clothes because he wanted to wear them the following morning that is 6th July 2003. The
deceased was moved by the plea of the purported “Etim Etim Udo” and opened the door, she heard him saying “what have I done to you”.
PW1 testified further that Okon Tom Akpan, was strangled and the
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assailants stabbed the deceased’s eye with a dagger.
PW1 stated that apart from the appellant, the other accused persons were Unyime George, Ofonime Usua, Nsikak Usua and the 2nd accused person.
PW1 stated further that she saw the accused persons as there was moonlight and NEPA light. She said that where she stayed was not far and that she was in her room and the incident took place in the parlour close-by, where the deceased was ironing clothes.
PW1 stated that when she opened the door of her room and got out because of the noise, she pleaded with them to leave her in-law alone. PW1 stated that the 3rd accused, Ofonime Usua Udom pushed her inside and pointed a gun at her and said that if she talked again, he would kill her.
The accused persons/convicts locked PW1 inside her room and continued to beat the deceased and took him away. PW1 shouted and banged the door until the door was removed. She then ran out of the room. As she shouted, people came out. As people tried to approach the accused persons, they threw bottles at them and threatened to kill anybody who got near to them. They took the deceased to George Unyime
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father’s compound and continued to beat him until he died.
PW1 testified that the deceased had cuts all over his body. The accused persons carried the corpse of Okon Tom Akpan from George Unyime’s compound. When they saw the crowd, they dropped the corpse and ran away. PW1 thereupon ran to the house of the village head of Abiaokpo Edem ldim, Chief Nana and laid a report.
Subsequently, the police arrived and took her to the station. PW1 made two statements to the police dated 06/07/2003 and 11/07/2003.
On the other hand, the appellant denied the charge in its entirety as he also stated in his extra-judicial statement to the police dated 07/07/2003 and 13/7/2003 respectively Exhibits D and D1.
The appellant stated that on Saturday 5th July, 2003, at about 4.30p.m after his work, he went to the primary School in Abia okpo Edem Idim Village to watch the football practice session. After the football practice session at about 6.54p.m., he decided to go home.
Along the road, one Nsikak Usua Udom demanded that the appellant’s junior brother, Sunday Etim (alias Udo Etim Udo Obot)
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should buy hot drink for him because of the job he got. The appellant’s junior brother agreed and they all went to a joint (shop) where illicit drinks and cigarette were sold.
The appellant said he was in the company of the following persons namely (i) Nsikak Usua Udom (m); (2) Ofonime Usua Udom; (3) Amos Johnson; (4) Unyime George alias Kingsley; (5) Christopher George; (6) Daniel Edet and (7) Sunday Edim Udo alias Udo Etim Udo Obot. The appellant’s junior brother bought drink of N60 for the boys. The appellant maintained that at about 8.15pm he and his younger brother Sunday Etim Udo Obot alias Udo left the drinking joint for their house while the other boys stayed behind there.
The appellant maintained in his statements Exhibit “D” and D1 that he slept together with his younger brother Sunday Etim Udo in the same room. The appellant said that among the persons who spent the night together with him were one Nwa Eka, a girl-friend to his younger brother, Sunday Etim Udo and Inyene, a girl-friend to another junior brother of his – Idongesit Etim Udom. In the morning at about 6.20a.m the appellant said he left for Ikot Ekpene
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as he is a commercial driver. The appellant denied being among the assailants of Okon Tom Akpan on 5th July 2003 as alleged.
The 1st accused, Unyime George Udofia in his second statement to the police dated 12/7/2003 Exhibit “82” stated that appellant was not present during and after the incident but that appellant is his-elder brother’s friend. In Exhibits “C” and “C1” 2nd accused did not mention the name of the appellant.
On the 16th day of November, 2017 date of hearing learned counsel for the appellant, Frank O. Ezekwuche Esq. adopted his brief of argument filed on 25/4/2016 and distilled three issues for determination of the appeal which are thus:-
(i) Whether the learned justices of the Court of Appeal were right in affirming the conviction of the 5th accused/appellant for murder punishable under Section 326 (1) of the Criminal Code, Cap 38, Volume 2, Laws of Akwa Ibom State of Nigeria 2000
(ii) Whether the defence of alibi raised by the appellant/5th accused person was properly considered and rightly rejected as dismissed in the circumstances of this appeal by the learned justice of appeal
(iii) Whether the decision
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of the learned justices of appeal is not altogether unreasonable unwarranted and can be supported having regard to the evidence adduced before the Court by the prosecution
Learned counsel also adopted the reply brief filed on 24/4/17.
Learned counsel for the respondent and Attorney-General of Akwa Ibom State, Uwemedimo Nwoko Esq. adopted its brief of argument filed on 11/10/16 and deemed filed on the 7/6/17.
In it were identified the following issues for determination, viz:
(i) Whether the learned justices of the Court of Appeal were not right in affirming the conviction of the 5th accused/appellant for murder punishable under Section 326 (1) of the Criminal Code Law Cap. 38, Volume 2, Laws of Akwa Ibom State of Nigeria, 2000.
(ii) Whether the defence of Alibi raised by the 5th accused/appellant was not properly considered and rightly rejected and dismissed in the circumstance of this case by the Court below.
It seems to me that Issue One as raised by the appellant and as drafted by respondent is sufficient to answer all the questions in controversy in this appeal and I shall use it as Sole Issue.
SINGLE
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ISSUE:
The sole issue asks if the Court below was right in affirming the conviction of the 5th accused/appellant for murder punishable under Section 326 (1) of the Criminal Code, Laws of Akwa Ibom State.
Learned counsel for the appellant contended that the prosecution did not prove the appellant’s guilt beyond reasonable doubt and so the Court below fell into a grievous error when it affirmed the conviction of the appellant by the learned trial judge. That the statement by PW1 at the police station was markedly different in material respects from that in the Court during her testimony.
That there is doubt and uncertainty about the true identity of the person who knocked on the door of the deceased and demanded clothes, which is accentuated by Exhibit “B’, and also the confessional statements of Ofonime Usua Udom, 3rd accused and 4th accused, Nsikak Usua Udom and the failure to resolve these issues during investigation is fatal to the case entitling the appellant to an acquittal.
For the appellant, it was submitted that the appellant set up his alibi at the earliest possible opportunity in his two statements to the police of
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7/7/2003, Exhibit “D” which alibi the trial Court unjustifiably discountenanced even though the police did not investigate it which perversity, this Court should see as reason to intefere with the concurrent findings of fact in the matter. He cited Aigbadion v State (2000) 7 NWLR (pt.666) 686; Okogbue v COP (1965) NMLR 233; Umeh v State (1973) 2 SC 9; Obue v State (1976) 2 SC.
Learned counsel for the respondent submitted that there is nothing before the Court warranting it to disturb the concurrent finding of the two Courts. He cited Agbaje v Fashola (2008) 6 NWLR (pt.1082) 90; Nwokearu v The State (2013) 225 LRCN (Pt.2) 142; Friday v The State (2016) 257 LRCN 1.
He stated that the evidence of PW1 about the identity of 5th accused now appellant and his being one of the assailants were not contradicted under cross examination and so the Court is enjoined to act on that evidence as true. He relied on Okoro v The State (2012) 207 LRCN 108 at 133; Ani v The State (2003) 11 NWLR (Pt.803) 142 at 163.
The learned Attorney General stated that 3rd and 4th accused whose statements the appellant seeks to rely on did not testify in their
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own defence as they rested their case on the prosecution and those statements were not tendered in evidence, the resultant effect is that the Court should discountenance them. He relied on Bilbis v Tsafe (1999) 4 NWLR (pt.597) 24 at 33; Ajayi v The State (2014) All FWLR (Pt.711) 1457.
That an address of counsel no matter how brilliantly couched cannot take the place of evidence.
He referred to Nigeria Arab Bank v. Felly Keme (NIG) Ltd (1995) 4 NWLR (Pt.387) 100 at 106; Sunday Modupe v The State (1988) 4 NWLR (Pt.87) 130 at 137.
On the alibi raised by the appellant as a defence, learned counsel for the respondent contended that though alibi is an exculpatory defence when properly raised but in this case it does not avail the appellant as he was pinned to the scene of crime at all times material. He cited Aliyu v The State (2013) 226 LRCN (Pt.1) 123 at 149; Attah v The State (2010) 10 NWLR (Pt. 1201) 190 at 216 – 217.
Learned counsel for the respondent urged the Court to uphold the concurrent findings of fact and the conclusions therefrom.
For the offence of murder as in the case at hand, punishable under Section 326 (1) Criminal Code
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Law, Akwa Ibom State, the prosecution must prove the following ingredients which are thus:-
a. That the deceased had died.
b. That the death was caused by the act of the accused persons.
c. That the act of the accused person that caused the death was done with the intention of causing death or that accused knew that death would be the probable consequence of his act.
See Okoro v The State (2012) vol.207 LRCN 108 at 137;
Chukwu v The State (2012) 213 LRCN 96 at 109; Asuquo v The State (2016) 257 LRCN 16 at 45.
In establishing those elements above stated, either of the ways can be utilised that is as follows:-
i. Direct evidence of an eye witness
ii. A free and voluntary confession of the accused;
iii. Circumstantial evidence which must be cogent, positive and conclusive.
See Haruna v A. G. Federation (2012) 209 LRCN 70; Ani v The State (2003) 11 NWLR (Pt. 803) 142.
The prosecution had set about its duty with the evidence of PW1, an eye witness account which the appellant picked holes on stating that there were gaps and several angles from which the reliability would be questioned. I shall
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re-cast some of that evidence here below thus:-
“I know one Okon Tom Akpan. He is my brother-in- law. He was killed. I remember 5th July, 2003. Something happened between the late Okon Tom Akpan and the accused persons. At about 10 p.m., I was sleeping in the house of Okon Tom Akpan. Someone knocked the room door of my said brother-in-law. He asked who knocked. The person replied he was Etim Etim Udo, the 5th accused person on record. My brother-in-law asked what he was looking for. He replied he wanted to get his clothes so that he could use them the following day. My brother-in-law was a dry- cleaner at the lkot Ekpene General Hospital and at home also. My brother-in-law told the 5th accused to come back the following day since it was late.
The 5th accused used (sic) pleaded to get the clothes because he wanted to use them the following morning. When my brother-in-law opened the door for him, I overheard him say, “what have I done to you”. I did not hear his voice again. They strangled him and used dagger to pierce his eyes. Apart from Etim Etim Udo, the others were Unyime George, Ofonime Usua, Nsikak Usau. I cannot
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remember the name of the 5th person, he is the 2nd accused person. I saw them because there was moon-light and NEPA light also. Where I was, was not far. I was in my room and the matter happened at the parlour close by.
My late brother-in-law was ironing clothes in the parlour. When I opened the door of my room and got out because of the noise, I pleaded with them to leave my in-law alone, one Ofonime Usua Udom pushed me inside and pointed a gun at me and said if I talked again he was going to kill me.
They locked me inside my room and continue to beat my in-law and took him away. I shouted and banged the door till the door was removed. I then ran out of the room. As I shouted people came out. They took my in-law to the compound of Unyime George’s father and continued to beat him until he died. They inflicted cuts all over his body.
They brought out the corpse from the compound. When they saw the crowd, they dropped the corpse and ran away. From my in-law’s house to the house of the 1st accused father’s house is about 700 meters. I ran to the house of the village head of Abiakpo Edem ldim, Chief Nana, I don’t know his full
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names.
I went and reported to the village head. He told me he heard the commotion in the village. He asked me if I knew the assailants. I told him that I knew them by their faces and their names.
Thereafter the police visited the scene that night. They took me to their station…. the victim was strangulated. He could only ask the assailant
“what have I done to you, if you kill me my blood will be on your head”.
The Court of Appeal held thus on that evidence thus:-
“The evidence of PW1 is very clear, direct and was unequivocal. It clearly proved and laid to rest the ingredient of the offence of murder.”
The finding and conclusion of the Court below tallied with those of the trial High Court thereby producing the concurrent findings of fact of two lower Courts. The only way to disturb those concurrent findings is to show that they came from a perverse posturing and from what can be seen on the record, there was no perversity nor a misapplication of the law either procedurally or substantially. Also no miscarriage of justice was at play. Therefore those findings are left undisturbed.See Agbaje v Fashola (2008) 6 NWLR
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(pt. 1082) 90; Nwokearu v The State (2013) 225 LRCN (pt.2) 142; Friday v. The State (2016) 257 LRCN 1.
Learned counsel for the appellant had concerns on whether or not the pw1’s identification of the appellant was of a high quality to settle the matter that he was indeed one of the assailants. In this regard, pw1 had testified that she knew the assailants from their faces and names and there was both electricity light and moon light. That she was able to do this because she had lived in the area and grew up there. These pieces of evidence were not made issues under cross-examination and so they would be taken as the true version of what occurred at the material time and effectively settled the identity of the accused/appellant and in the circumstance could be taken alone to sustain a conviction for murder as that cogent and pungent evidence of identification was not dismantled under cross examination nor her statement to the police tendered and used to impugn her veracity and credibility.
The trial Court accepted and utilised her evidence to found the guilty verdict. See Ani v The State (2003) 11 NWLR (pt. 803) 142 at
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163; Eyisi v State (2000) 15 NWLR (pt.651) 555; Okosi v State (1989) 1 NWLR (Pt.100) 642.
The appellant had referred the Court to statements of 3rd and 4th accused persons and curiously, the said statements were not tendered as evidence and so not before the Court. All the more strange is that the said accused persons, 3rd and 4th did not testify in their defence as they rested on the prosecution’s case, therefore, there is nothing to be taken from them to buttress the case of the appellant.
It needs be said that a document such as the statements appellant is hanging on can only be exhibit and utilisable when tendered in Court and in this instance that did not happen and so appellant is clearly referring to a voice heard in the wind and of no effect and value for the discourse on ground. See Bilbis v Tsafe (1999) 4 NWLR (pt. 597) 24 at 33; Ajayi v The State (2014) All FWLR (Pt. 711) 1457 at 148; Olayinka v The State (2007) All FWLR (pt.373) 163; Ozaki v State (1990) 1 NWLR (Pt. 24) 92.
I agree with the submission of learned counsel for the respondent that the learned counsel for the appellant had set out a brilliant presentation
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and in so doing brought in what was outside the record such as the age of the pw1 which counsel for appellant had placed at 15 years thus throwing up the angle of her being a juvenile whose evidence would need something extra to be taken in. Indeed the address of counsel no matter how brilliant cannot be the substitute of evidence and in the absence of evidence that address which really is a beacon to highlight the evidence proffered and when no evidence is available, the address is a muted trumpet. In con to what is before the Court, the evidence of the PW1 being the version on sight, not controverted or contradicted leaves the Court of trial no option than to believe it, See Nigeria Arab Bank Ltd v Felly Keme (Nig) Ltd (1995) 4 NWLR (Pt.387) 100 at 106; Sunday Modupe v The State (1988) 4 NWLR (Pt.87) 130 at 137.
With respect to the defence of alibi raised by the appellant which is a way of the appellant stating that he was not at the scene of crime and could not have committed the offence.
Indeed the defence of alibi is a magic wand when raised and investigated thereof proves it to be true. It automatically exculpates the accused from blame when the alibi is
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established. I rely on Mohammed v The State(2015) 243 LRCN 122 at 148; Egwumi v The State (2013) 220 LRCN (Pt.1) 224; Egbirika v The State (2014) 227 LRCN 1.
The appellant’s reliance in this regard is with the extra judicial statements of 1st and 2nd accused, Exhibits B, B1 and C, C1 in which they said appellant was not present. However those pieces of evidence when juxtaposed with the unequivocal testimony of PW1 who identified the appellant and the others and stated why she was able to do so since there was both electricity and moon light and she grew up in the area. The evidence of PW1 appellant left unchallenged under cross examination and so the trial judge had no difficulty in finding the alibi as feeble and an afterthought in view of the eyewitness account which fixed the appellant at the scene of crime and identified him as a perpetrator of the crime. In such a situation not only does the defence of alibi collapse, it is a non issue. See Aliyu v. The State (2013) 226 LRCN (pt.1) 123 at 149; Attah v The State (2010) 10 NWLR (pt. 1201) 190 at 216 – 217.
For emphasis, it has to be said that it is not in all cases where the police
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fails to investigate an alibi such as the case in hand where the alibi was raised timeously that such failure would be taken to have a fatal effect on the case of the prosecution. This is so when the evidence proffered by the prosecution is such that the accused was well at the scene of crime at the material time. In the case at hand the evidence of PW1 was credible and strong enough to destroy the alibi raised by the appellant and so the fact that the alibi was not investigated is of no moment. See Ayan v The State (2013) 55 NSCQR 228-229; Gachi v State (1965) NMLR 333; Odidika v State (1977) 2 SC 21; Yanor v State (1965) All NLR 193; Salami v State (1988) 3 NWLR (pt.85) 670 at 677.
I cannot resist the conclusion rendered by Nwosu-Iheme JCA as it captured in brief the findings of both Courts below and settles the issue herein whether the prosecution proved its case beyond reasonable doubt. I quote from page 375 – 376 of the record thus:-
“In the instant case, on the level of evidence adduced by both sides, there was a direct and straight issue of credibility and the learned trial judge was entitled to weigh both issues and
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reach a conclusion on which side he believed. He did so at page 313 of the record of Appeal where he found, inter alia as follows:-
“Furthermore, I hold that though the evidence of the investigating police officer (IPO) was desirable, it was in the circumstance of this case necessary, the evidence of the PW1 alone was capable of sustaining the charge of murder against the accused person. The issue of alibi feebly raised by the defence counsel was an afterthought. I dismiss it out right”.
The above is a clear and succinct findings of facts which this Court has no reason to distort or reverse”
In my conclusion, I see no basis for interfering in the decision of the Court below as this appeal lacks merit. I dismiss the appeal while I affirm the decision of the Court of Appeal which upheld the judgment, conviction and sentence of the trial High Court.
SC.155/2016
