Edet Offong Ekpe V. The State (1993)
LawGlobal-Hub Lead Judgment Report
AKINTAN, J.C.A.
The Appellant, Edet Offong Ekpe, was arraigned before Calabar High Court on Information in which he was charged with the murder of one Dickson Udo contrary to Section 319(1) of the Criminal Code Laws of Cross River State. The Particulars of the Offence are that the Appellant “on the 15th day of April, 1993 at Ikot Asuquo Affiong Anye Village, Akpabuyo in the Calabar Judicial Division, murdered Dickson Udo.”
The case was tried by Ecoma, J. The Appellant pleaded not guilty to the charge and the Prosecution called seven witnesses to establish its case. The Appellant gave evidence in his defence. The learned trial Judge, in a reserved judgment delivered on 28th May, 1986, found the Appellant guilty as charged. He was accordingly sentenced to death by hanging. The Appellant was dissatisfied with the verdict of the court and has appealed to this court.
The facts of the case are briefly as follows:
The deceased, Dickson Udo, was living at Ikot Asuquo village near Calabar with his daughter, Nkoyo Dickson Udo (P.W.4) and son, Asuquo Okon Dickson (P.W.5). In the evening of 15th April, 1983 after the deceased and his two issues (P.W.4 and P.W.5) had returned from farm, the deceased sent his daughter, Nkoyo (P.W.4), to buy some food items from a local shop in the village. The girl left on the errand carrying a lantern as it was already dark. The Appellant was also living in the same village. His house is on Nkoyo’s way to the local shop where she was to buy the food stuff.
The girl went to the shop and bought what she was sent to purchase. She then set out on her way home. While on her way home, she met the Appellant by the road side near the store. The Appellant asked the girl to follow him to his house with her lantern so that he could light his own lantern at home. The girl obliged. On getting to the front of the Appellant’s house, the girl gave her lantern to the Appellant who then went into his house with it and lit his own lantern. He however failed to return the girl’s lantern after lighting his. The girl called on him to return the lantern. The Appellant replied by inviting the girl to come into his room and collect her lantern. The girl went there.
As the girl was about to pick up her lantern, the Appellant held her hand and forcibly pulled her into his room as a result of which the girl hit her face on the bed in the room. The Appellant then told the girl that he was going to have sexual intercourse with her. She raised an alarm and called on one Udo Udo Jonah (P.W.1) whom she saw around shortly before the incident, for help. The girl’s father (the deceased) was eventually informed of what was happening to his daughter in the accused’s room. He ran there in company of his son, Asuquo Okon Dickson (P.W.5) and Udo Jonah (P.W.1).
When the deceased, with P.W.5 and P.W.1 arrived at the Appellant’s house, the deceased started to knock at the Appellant’s door and called on him to open his door for P.W.4 to come out. The Appellant did not open the door. P.W.4 was still crying for help then. But when eventually he opened the door, he hit the deceased on the head with a bottle which he picked from his room and was already holding at the time he opened the door. The deceased fell down, and died shortly thereafter.
While the deceased was on the floor, the Appellant again picked up a stick (scantling) and hit the deceased several times on the head with it. The Appellant used two beer bottles in all to hit the deceased. When he hit the deceased with the first bottle, it got broken. He then picked up a second one and with it he hit the deceased again on the head. It also got broken. He thereafter used the stick.
The deceased suffered serious head injuries as a result of the hitting he received from the Appellant who thereafter dragged the deceased from where he fell at the entrance into the Appellant’s room to the veranda of the house. It was from there that the deceased’s dead body was conveyed by the police to the hospital the next day.
Dr. Emmanuel Bassey Itam (P.W.3), the Medical practitioner who performed a post-mortem examination on the corpse, found that “there was a severe deep cut on the scalp and 6cm deep cut on the left temporal area of the skull, with skull and brain tissue crushed in the left area of the skull.” He certified the cause of death as the injuries to the skull.
The Appellant made a Statement to the police after his arrest (Exh. 4 with English translation as Exh. 4A). In it, he was recorded as admitting that he was the person who hit the deceased with a bottle on his head and that the man fell down in his (the Appellant’s) house.
The Appellant’s story of the event given in his evidence at the trial is different from the admission contained in his Statement (Exh.4). He told the court that Nkoyo Dickson (P.W.4) was his girl friend and that he gave the girl N10 earlier that evening. The girl then went away with a promise to return to the Appellant later the same evening. She did return to the Appellant as promised. She then carried a lantern and told the Appellant that she was going to the store and that the Appellant should wait for her. The Appellant said he went to meet her in the store and both of them walked back to the Appellant’s house from the store.
At the Appellant’s house, the girl and the Appellant went into the Appellant’s room, closed the door and had sexual intercourse. As soon as they finished, the Appellant said he heard a knock at his door. But as the person knocking did not say a word, he (Appellant) did not open the door as he did not know the person knocking at the door. The person knocking at the door left. After a short time, there was a another knock at his door. This time the Appellant saw a ray of light from the lantern carried by the visitor who knocked and continued to bang at the door to his room. The door opened. The Appellant said he came out and saw three people – Udo Udo Jonah (P.W.1); the deceased; and Asuquo Dickson (P.W.5). The Appellant alleged that P.W.5 hit him with the lantern he carried at the entrance to the room. The Appellant said he returned into his room. The girl (P.W.4) was then still in the room. The deceased and the two people who came with him (P.W.5 & P.W.1) followed him into the room and then started to beat the Appellant. The three men took the empty bottle in his room and hit him (Appellant) with it. He (Appellant) sustained injury on the head. The lantern was already broken and there was therefore no light in the room.
The Appellant said further that when the man continued to beat him, he picked another bottle and, with it, he hit one of his attacker’s before he (Appellant) fell down. When they realised that he had fallen down, the people left the room, including the girl (P.W.4). Not long after, the girl (P.W.4), P.W.5 and P.W.1 returned to the room. There they found the deceased on the floor and they started to beat him (the deceased) thinking it was the Appellant that was lying on the floor. The Appellant said he had managed to leave the room at that time.
The Appellant denied that he caused the death of the deceased. He said that the police beat him up and forced him to sign the Statement credited to him (Ext.4).
The trial court rejected the Appellant’s defence and convicted him for murder.
The Appellant filed four Grounds of Appeal against the verdict. The parties filed their respective Brief of Argument in this Court. The Appellant formulated the following five Issues for Determination in the Appeal:
“(1) From the credible evidence before the Court, has the Prosecution proved beyond reasonable doubt that the accused person murdered the deceased contrary to section 319 of the Criminal Code?
(2) Did the trial Judge correctly assess the evidence of P.W.4 and P.W.5 on which he totally relied for his conviction?
(3) Taking the normal sequence of action and reaction by ordinary reasonable human beings into consideration, is the account of the accused as to the circumstances leading to the death of the deceased not more likely, more natural and therefore preferable to the account of P.W.4 and P.W5?
(4) Are the defences of self-defence, provocation and/or accident not available to the Appellant?
(5) Is this a case in which the conviction of murder can be reduced to manslaughter?”
The Respondent formulated six Issues for Determination in the Respondent’s Brief. The first three are what may be regarded as the issues in the real sense while the rest are mere repetitions. The three are:
“1. Whether the death of the deceased resulted from the intentional act of the Appellant.
- Whether the defences of self-defence and provocation are available to the Appellant when he has already raised the defence of accident.
- Whether on the facts of this case, the Appellant can raise a defence of provocation.”
It was submitted in respect of the Appellant’s first, second and third issues that the learned trial Judge failed to properly review the evidence of the accused and as a result he unjustifiably relied on the evidence of P.W.4 and P.W.5 who, as issues of the deceased, were likely to be biased in favour of securing a revenge of their father’s death. The Court was said to have failed to exercise the necessary great caution and circumspection as emphasised in Idahosa & Ors. v. The State (1965) N.M.L.R. 85 and Omisade v. The Queen (1964) 1 All N.L.R. 233. It was further submitted that had the trial court properly applied section 148 of Evidence Act, took the normal sequence of action and reaction of ordinary reasonable human beings into consideration, the account of the events as given by the accused was more likely to be true than that given by P.W.4 and P.W.5.
In reply, it was submitted that the trial court fully considered the issues of who killed the deceased before coming to the conclusion reached in the case.
It is true that the main eye witness account of how the deceased met his death was given by P.W.4 and P.W.5 who are issues of the deceased, but the evidence of Udo Udo Jonah (P.W.1) who was not said to be related to the deceased also substantially confirmed the story as told by P.W.4 and P.W.5. The witness (P.W.1) told the court inter alia that she saw P.W.4 in front of the Appellant’s house that evening while she (P.W.4) was waiting to recover her lantern taken away by the Appellant. The witness (P.W.1) went away and shortly after, she heard P.W.4 shouting for help from the Appellant’s room. P.W.1 then said he went to assist in the release of P.W.4. by banging the Appellant’s door.
When the door was not opened, P.W.1 ran to the deceased’s house to inform the deceased and P.W5 of Nkoyo’s detention in the accused’s room. She thereafter accompanied the deceased and P.W.5 back to the accused’s house. The accused confirmed in his evidence in court that there were two visits to his room while she was in the room with girl, Nkoyo, and that during the second visit when his door was eventually opened, P.W.1 accompanied the deceased and P.W.5 to his place.
In Idahosa v. The State (1965) N.M.L.R. 85, supra, the Supreme Court held that where two prosecution witnesses had been separately accused of the murder, and there was no evidence of withdrawal of the charges, although they were not accomplices they were clearly interested persons who might have some purposes of their own to serve, and the trial Judge should have cautioned himself about reaching a verdict on their uncorroborated evidence. The same type of evidence was described as tainted by Mbanefo, Ag. J.S.C. in Omisade v. The Queen (1964) 1 All N.L.R. 233.
The two witnesses, P.W.4 and P.W.5, who were issues of the deceased, were not accomplices per se. Their evidence therefore requires no corroboration. It is however correct that, as the victim of the act was their father, there is need by the trial Judge to take precaution that they were not prejudiced in their account of the incident. There is no proof of such bias in the instant case. There was in fact independent account of the incident given by P.W.1.
As already shown above, there was conflict in the evidence given by the Appellant in court and his statement to the police. Since there was such inconsistency, the trial Judge rightly refused to believe his evidence given at the trial: See Ifenedo v. The State (1967) N.M.L.R. 200; and Ikemson & Ors. V. The State (1989) 3 N.W.L.R. (Pt.100) 455 at 473, where Karibi White J.S.C. observed:
“It has always been that where the statement of an accused made before the trial is inconsistent with his testimony at the trial the court should reject both as unreliable.”
The court therefore rightly accepted the evidence adduced by the prosecution in support of the charge and rejected the conflicting evidence adduced by the accused in defence.
On the issues whether the trial court adequately considered self-defence, provocation and/or accident raised by the evidence adduced at the trial, it was submitted that it was clear from the evidence adduced at the trial that there was a fight involving the deceased, P.W.4 and P.W.5 against the Appellant. The three men were said to have carried the attack to the Appellant in his house and deadly weapons were freely used. It was during the fight, that the accused got hold of a bottle and hit someone in self defence. It was submitted that the defence of Self-defence against unprovoked assault under Section 286 of the Criminal Code was therefore available to the Appellant but that the learned trial Judge wrongly failed to avail the Appellant of that defence.
Alternatively, it was submitted that the defence of Provocation was also available to the Appellant. This is because the Appellant returned a hit with a bottle for hits with a lantern, bottle and other weapons before tempers could cool down.
The learned trial Judge definitely considered and rejected the defences of Self-defence and Provocation in the course of his judgment. The facts relied on in the Appellant’s Brief are those given in the accused’s evidence at the trial. The court rejected the defence put across at the trial and accepted the version put forward by the prosecution. As already stated above, the evidence given by the Appellant at the trial was inconsistent with his statement to the police. The court was therefore right in rejecting the Appellant’s version of the incident.
The evidence accepted by the court was that the deceased and those who accompanied him to the Appellant’s house were not armed. All that they carried was a lantern. Even if the Appellant was hit with the lantern, that would not justify the use of the deadly instrument applied in retaliation. It is trite law that to establish the defence of self-defence, the evidence must show, or tend to show, that the accused believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm, otherwise than by using such force as he did: See The Queen v. Jinobu (1961) All N.L.R. 627.
The force used in self defence must not exceed that which was reasonably necessary. Where the force used exceeds that which is reasonably necessary, then the prisoner is liable for the excess: see Section 298 of the Criminal Code; The State v. Gwoji Jire (1965) N.N.L.R. 52; and R. v. Blake (1942) 8 W.A.C.A. 118.
Applying the law as stated above to the facts in the instant case, it is definitely out of proportion to retaliate hit with a lantern by striking on the head several times with bottles.
On the defence of provocation, the term provocation is defined in section 283 of the Criminal Code inter alia as:
“…any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal, relation, or in the relation of master or servant, to deprive him of power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.”
Under Section 318 of the Criminal Code, provocation may reduce the offence of murder to one of manslaughter. But the act which caused the death must be (a) done in the heat of passion; (b) caused by sudden provocation; and (c) before there was time for passion to cool: See John v. Zaria Native Authority (1959) N.R.N.L.R. 43; and Gorgore Nomad v. Bornu Native Authority (1954) 21 N.L.R. 31.
The facts of the instant case do not support any act of provocation of the Appellant by the deceased. The trial court was accordingly right in rejecting that defence. In conclusion, there is no merit in the Appeal. It is accordingly dismissed. The conviction and sentence of death passed on the Appellant by Ecoma, J. on 28th May, 1986 are affirmed.
Other Citations: (1993)LCN/0167(CA)
