Akpan Uko Ekpoisong V. The State (2008)
LawGlobal-Hub Lead Judgment Report
VICTOR. A. O . OMAGE. J.C.A.
In this appeal the appellant in his brief filed on 12/4/06 seeks an order of reversal of the judgment of Justice E. E. Ita, delivered on 26/4/05. The 1st and 2nd accused person, who incidentally are husband and wife and parents of one Martha Okon Akpan were taken by information to the State High Court sitting in Calabar on a charge of the murder of one Martha Ukpai. The information is dated 25th October, 2004. Hearing in the charge commenced on 25th October and judgment of the court was delivered on 26th April, 2005. In this judgment of the court, the 2nd accused person Marta Okon Akpan was discharged and acquitted. The 1st accused Akpan Uko Ekpoisong was sentenced to death. It is against that judgment that the appellant has filed this appeal upon leave of the court having been granted; on the ground filed with particulars. The appellant formulated the following Issues for determination of the appeal, thus:
a) Was it the action of the appellant that caused the death of the deceased Martha Ukpai.
b) Was there a dying declaration by the Martha Ukpai
c) Was the learned trial judge consistent in his findings.
In the Respondent’s brief filed with the leave of court as it was filed out of time on 14/5/07 after the appellant had received an order in his favour for this appeal to be heard and determined on the appellant’s brief only. The Respondent filed his response. The issues formulated by the respondent in his brief are as follows:
“(1) whether it was the act of the appellant that caused the death of the deceased Martha Ukpai
(2) Whether there was a dying declaration by the deceased Martha Ukpai
(3) Whether the learned trial judge was consistent in his finding as to the cause of death”
These are the facts of the case. The 1st prosecution witness Patrick Okon Effiong deposed that as he was going to his father’s house at Adiabo Esine Ufot village, en route his place of work, he saw a crowd of people gathered at his village hall. Among them he saw the deceased Martha Ukpai on 10th June 2003. There were several people in the gathering among who was the appellant. People in the crowd were questioning a girl of about 10 years old, who told the crowd that she had been given witchcraft by Martha Ukpai. Martha Ukpai was a tenant in the house of the father of PW1. PW1 said the girl answered that she was given the witchcraft when Martha Ukpai was their neighbour in a named village at Cross River State. The Appellant, and her mother now discharged had sent her to Sapele. While in Sapele she was taken to a Church in Benin where she was declared a witch; and in Sapele she claimed to have taken about four pupils into her witchcraft cult. PW1 said, the child claimed that Martha Ukpai used to visit her on a stick, and that Ukpai had captured her brothers for killing, when the child allegedly confessed in Sapele and Benin. She was taken to her parents in Ndiabo Esime Ufot village to confront the said Martha Ukpai. PW1 said it was her confrontation and the scene of the accusation of Martha Ukpai by the parents of the allegedly confessed witch that he saw at his village hall.
From the village head, they proceeded to the clan head, where the parties were asked to pay N5000 for transportation to the Housing Estate Police Station. At the Police Station, it was the appellant and his wife who reported the incident to the head of Ibibio, before they were directed to the clan head. At the Police Station, the appellant and his wife were at first charged with assault occasioning harm, when report of the death of Martha Ukpai reached the Police, they were charged with murder. The two witnesses testified for the prosecution, three for the defence.
In this judgment as it becomes necessary the testimony of each witness will be reviewed as the issue arises.
The issues formulated by the appellant and those of the defendant are the same, I will therefore treat the two issues in each number as each arises. The first issue in both sets of the two issues formulated by this appellant and the respondent is whether the action of the appellant caused the death of the deceased Martha Ukpai. The available evidence before the court includes largely the testimony of PW1. He testified in court on Wednesday 12th January 2005. I will quote here only the material and relevant part of his evidence –
“I knew the accused persons, I knew one Martha Ukpai”
(1) On 10th June 2003 at about 10 a.m. in the morning I was going from D4 Camp to my father’s compound.
(2) At the village hall
(3) I saw people gathered there.
(4) I saw Martha and 1st accused inside the hall. People were questioning a little girl who said she was given witchcraft by late Martha, 1st accused said at the village hall that the little girl was his daughter. I asked the village head. Chief Okon Otu to hand over the case to the clan council if he found it difficult to handle.
(5) I shouted to 1st accused that nobody should beat up the woman …..”
(6) Upon returned from work.
(7) I saw 1st accused and a crowd of people gathered at my father’s compound No .7 Eta Mbosi Ndiabo Calabar,
(8) It rained heavily
(9) I saw the woman had been badly beaten up and made to sit under the rain.
(10) She had wounds all over her body.
(11) All the people had sticks in their hands and surrounded Martha……… ” In the presence of 3rd person.
(12) I informed the clan head that Martha could die anytime
(15) From beating.
(16) After about three 3 days Martha was eventually taken to the Police and returned to her house.
(17) She died the same day as she had no care from anywhere. The incident happened on Friday, I went to Martha on Sunday and Martha informed me that after the beating on Friday the 1st accused went to her house at about 8 pm on Saturday and continued beating her.
The sticks they were holding were about diameter the leg of counsel’s table in court.”
The trial judge intervened, and supplied the size of the stick, he said.
“Court: By my estimation the diameter is about 1”.
1st PW continued “Martha also informed me that apart from beating 1st accused forcefully, he – Appellant inserted some substance into her mouth, Martha was an old woman. I would not know her age”.
In cross examination the 1st PW said “I saw what happened on 10th June 2003. I can’t remember what day of the week it was. On 10th June 2003 I saw the crowd at the village hall. The village head lives there. The deceased was not beaten same day the incident happened.
On 10th June 2003 after the deceased had been beaten I went to clan head to inform him about the beating. The other person was the son of the 2nd accused and his wife. Those are the people I could recognize because they live in our village. I did not know others” It is noticeable that the 1st and 2nd accused favour were not said to be present”, also impliedly reported the presence of other people.
(18) “It was the deceased relatives who gave her Lucozade and Milk in order to save her.”
PW1: “I told the police everything and the Police snapped photograph of the woman.”
The 2nd PW testified next.
In Cross examination the PW2 the village head he said “when Martha appeared before me I did not notice anything on her body, but she said she had some trouble.”
I wish in the first instance to consider the material evidence of the 1st prosecution witness in this appeal and compare same with the testimony of the 2nd PW. The testimony of the 1st PW in the charge against the 1st appellant is a collection of hearsay evidence and contradiction. I have numbered each piece of evidence and the contradiction above in this judgment. Evidence 1-17, gave an account of how Martha the deceased was beaten by the 1st accused person. Infact the evidence also showed that the 1st PW did not at anytime see who beat the deceased Martha. The first time the PW1, saw Martha and the 1st accused now appellant was at the village hall. Without prompting from any reason or anyone, 1st PW shouted on the 1st accused/appellant that Martha, the now deceased should not be beaten. 1st PW then took upon himself to advise village head to report the incident to the clan head, when evidence show that the village head was trying hard to advise the 1st accused/appellant to give up the matter. On his return from work, the 1st PW said the said Martha was sitting in the rain, and she had sores on her body. It is clear from the testimony of PW1. The alleged beating which 1st PW said caused the sores did not happen in the presence of PW1. He only saw as he deposed that the deceased Martha had been beaten. He did not know who among the crowd who held sticks beat the now deceased Martha. The medical report issued by PW4, on 12th August when the pathologist saw the embalmed body of the deceased Martha, show she had wounds of same size on her body covered with cotton wool which suggested that Martha before she died had some medical attention. He also wrote that the injuries on Martha may have been a result of accident which caused by trauma. Upon the history given to the Pathologist by the Police, the pathologist added – “or a result of assault or battery.” No reference whatsoever of the unknown substance, which the 1st prosecution witness said the appellant forcefully put in the mouth of the deceased – Martha, in the pathologist’s report.
The 1st PW also deposed that the deceased was given Lucozade and milk by her relatives after the alleged beating of Martha. Yet the 1st Prosecution witness said “Martha died as a result of no care from anybody.” The most damaging of the testimony of PW1 is the testimony of PW2, which is a contradiction in the testimony by the prosecution in the trial. The alleged beating of the late Martha was repeatedly stated by PW1 to have taken place before the arrival of PW1 from his work place at the time not stated. On 10th June 2003 before the invitation of all the parties to the village who advised the parties to go to the clan Council. PW 2, who is confused about the date when he referred to t he incident as having taken place on 6th May 2005; but said as follows “When Martha appeared before me. I did not notice anything on her body; but she said she had some trouble. She walked there by herself and returned by herself.”
Clearly if as deposed by the 1st PW the late Martha had been beaten while the crowd was waiting to see the village head on 10/6/2003 and the 1st PW on 10/6/2003 had on return from work seen the late Martha sitting in the rain and that she was already beaten and seated in the rain what is the explanation of the testimony of PW2, when he said Martha did not tell him she was beaten, he did not observe she was beaten, and all she said was that she had a problem. The prosecution evidence of the alleged beaten is therefore contradictory.
The testimony tendered at the trial for murder of Martha against the appellant does not in my view appear to be beyond reasonable doubt. Infact, it is not beyond reasonable doubt as regarded in Section 138 of the Evidence Act Cap 112, Laws of the Federation of Nigeria. The record shows that only the testimony of PW1 have implicated the appellant, but such testimony that he gave in court which is recorded in the record of proceedings is entirely hearsay and unreliable contradiction. Such evidence is inadequate to convict an accused person for murder. The review of the testimony by the trial court who also testified at the hearing on a material and relevant evidence of the size of the stick allegedly used by the appellant to beat the late Martha among others render the trial void as it made the trial judge in a cause of which he is a judge and it falls beneath the standard of proof in a criminal trial.
Without any reason the trial court in his judgment wrote that the testimony of PW2 was not material. PW2 evidence was given on oath instead the trial court gave a reason not contained in the record why after the beating of the late Martha, she could not appear before the clan head upon the statement of PW1 to the clan head. Clan head sent people to check, and of course PW1 went with the messengers who came back to the clan head to say late Martha then alive could not stand up. See p. 58 of the record. It is necessary and worthwhile to recall that before any alleged beating of Martha took place PW1 had warned the crowd not to beat up the late Martha. Of the alleged crowd waiting at the village hall near the house of the village head only PW1 said he saw Martha beaten and made to sit in the rain. He did not say whether or not he removed her from the rain, and how she got back to house in the house of PW1. Though the father of PW1 had died, PW1 did not until cross examination admit that his father had died, and the house belonged to him. PW1 was the one who reported before the clan head that Martha was ill and could not attend the summons of the clan head. The testimony of PW1 is suspicious and a proper evaluation by the trial court should have shown that the evidence of PW1 is unreliable, and no connection should have been made on it.
There is no evidence before the court that the appellant instigated anyone in the village to batter the deceased Martha, yet the trial judge wrote thus:
“There is only one conclusion that the evidence leads to and it is that at the instigation of the accused a host of people in the village along with 1st accused who would not heard DW3, his father’s warning and who confused to PW3 that he did so, battered by deceased Martha Ukpai that on 10th June 2003 and the battery resulted in her death.
On 24th June 2003 and I so find and hold. It is the law that the evidence upon which a conviction for murder can be based must be cogent and reliable, and it should be proof beyond reasonable doubt. The evidence upon which the learned trial judge in the court below convicted the appellant is clearly below the standard of proof.
In the charge before the court for the murder of Martha, there is no evidence of who instigated the crowd to batter Martha. There is no reliably evidence that the appellant battered Martha, the conclusion reached by the trial judge is his imagination which he called conclusion. The so called conclusion is wrong in law. The evidence in court even substantial as it may be does not lead irresistibly against the conclusion for a proof of murder. The prosecution has failed to prove the case of murder against the appellant and failed to proof that it was the act of appellant that caused the death of Martha Ukpai. The prosecution has also failed to see through the sustaining evidence of the PW1, which made him to convict the charges against the appellant. On the 1st issue therefore I rule against the prosecution in favour of the appellant.
The second issue in the appellant brief is whether there is a dying declaration by the deceased Martha Ukpai. The same issue was formulated by the Respondent in its issue 2. Here is the evidence relied upon by the trial court that: “PW1 deposed thus “The incident happened on Friday I went to Martha on Sunday, Martha informed me that after the beating on Friday 1st accused went to her house and about 8 p.m on Saturday and continued beating her. The stick they were holding was about the diameter, the leg of counsel table” “Martha also informed me that apart from the beating 1st accused now appellant forcefully inserted some substance into her mouth. Martha was an old woman I would not know her age.” The coroner’s report gave the age of deceased at approximately 47.
The dying declaration is deposed by law as a statement made by a person who is a victim of homicidal act and the cause of his injury is admissible at the trial for the murder or manslaughter of the maker of the statement” It is the rule of Law that such statement are admissible only if the maker of such declaration is in the extremity of death, when the maker is at the point of death and every hope of the world is gone when every move to falsehood is gone – see R v. Woodcock 1789, 1 Leash report 502.
In the instant appeal, the scenario presented in the report of PW1 of the alleged incident if it occurred, is one of a lover complaining to a loved one when the late Martha reported to PW1 in her room that the appellant came back to beat her and forced unknown substantive into her month on the Sunday. It is the same PW1 who testified chief that the appellant “forcefully inserted some substance into her (Martha) mouth”. The said late Martha’s mummified body was seen by a pathologist Dr. Jibrin Paul of UCTH Calabar here is his report, “There was multiple dry abrasions, some of them were covered with cotton wool dressing suggesting the person must have received medical treatment.
These types of wound could only be sustained during traffic accidents that there was no such history so I concluded that the person died from trauma sustained from sever physical assault such injuries could not be self inflicted”
In cross examination, the pathologist said “The wounds I saw could technically be called bums. I can’t ascertain whether the wounds was as a result of hot charcoal bums because the autopsy was not done immediately” from the above report of the autopsy on the late Martha the doctor did not find any evidence of any substance which the 1st PW testified was forced into the mouth of the late Martha. Secondly, it is an assumption not a proof beyond doubt that if at all anything was forced into the mouth of the late Martha it was a poisonous substance. No evidence of any substance in the body of the late Martha. Therefore no dying declaration of Martha can be assumed as deposed to by PW1 when he testified that Martha died on Sunday after the Appellant visited her on Saturday, after beating Martha on Friday. The evidence of the Pathologist showed that the injuries on the body of Martha could be as a result of road traffic accident, later the pathologist suggested bruises or charcoal bums, none of which is related to the appellant. Clearly, there is no proof of evidence of the death of Martha that is direct and traceable to the action of the appellant.
It is the law that a criminal charge of murder should be proved beyond reasonable doubt. The charge against the appellant is not so proved. The charged is full of assumption and conclusions made by the trial judge and it is fatal to the charge, as the evidence and trial are unreliable. For instance Inspector Isanedighi PW5 deposed that the late Martha was taken to hospital and returned to her room in the house of the father of PW1, who himself does not live in that house. This evidence however show that he know what went on the room of Martha day and night. There is a summary of the beating of PW1 testified that Martha was beaten on Friday. On Saturday appellant went to Martha house to beat her more and forced substance into the mouth of Martha. On Sunday Martha died, the question is compelling when did Martha go to hospital as deposed to by PW4, and PW5?
PW1 never testified that Martha received treatment in hospital whereas Inspector Isanedighi testified that Martha during her life was taken to a hospital. PW4 saw evidence of cotton wool which covered the bums on the mummified body of Martha. Furthermore PW1 testified that the family of Martha gave to Martha Milk and Lucozade yet the same PW1 deposed that Martha died as a result of lack of family care. PW1 did not say when milk and lucozade was given to the late Martha. A proper review of the testimony of PW1 by a competent judicial officer would have received with caution and suspicion the conflicting evidence of PW1 and come to conclusion that it is unreliable to convict the accused on a charge of murder.
Thus the two major basis for the conviction of the appellant for a charge of murder is as given by the PW1, who reported the beating of Martha which he did not see the appellant do; the instigation by the appellant of the people who he alleged beat the late Martha, the alleged forceful inversion into Martha’s mouth on the alleged report to him by Martha. In none of these events did PW1 report personal knowledge. Even the size of the stick allegedly used by the appellant to beat the deceased Martha was assumed by PW1, and the trial judge supplied the dimension. Such evidence would be dismissed by a competent tribunal as inadequate to convict an accused person for a charge of murder. In my view therefore the trial judge was in grave error to convict the accused person for murder under the provision of Section 316 of the Criminal Code. See Rex v. Banna Yeji (1936) 3 WACA. 80.
I hold therefore and rule that the deceased Martha may have died through any of other causes not traceable by evidence to the appellant. Since therefore he has undergone once a criminal trial, he will be entitled to plead autrefois convict, if he is ordered to go for another trial is against his constitutional right to be tried twice for the same offence. Thus I will therefore not send the case for a retrial for inadequate evidence; I will discharge the appellant, but not acquit him. See Rex v. Banma Yeji.
The appellant is discharged.
Other Citations: (2008)LCN/3048(CA)
