Akpan Ikono & Anor Vs The State (1973)
LawGlobal-Hub Lead Judgment Report
U. UDOMA, JSC.
On 23rd November, 1972, we allowed this appeal and ordered the acquittal and discharge of the appellants and that they be forthwith released from prison custody. We now give our reasons for the order we then made.
The appellants, Akpan Ikono and Akpan Akpan Mboh, were together with Okon Udo Okoh and Udo Udo Akpan, alias Udo Udo Inyang, charged with the murder of one Samuel Ekperi of Obonipa Ariam village within the Umuahia Judicial Division of the East Central State.
On the information filed, the first and second appellants were first and third accused persons. All the four accused persons were arraigned before and tried by Anialogu, J., in the High Court of the East Central State holden at Umuahia who, after a review of the evidence, acquitted Okon Udo Okoh and Udo Udo Akpan alias Udo Udo Inyang who were the second and the fourth accused persons on the charge as framed. In acquitting and discharging the second and fourth accused persons, the learned trial Judge, in his judgment in the case of the second accused, said: “The case of the 2nd accused has presented me with a greater problem than that of the 1st accused.
He called as his witnesses two of the workers with whom he did work at Ikono North Dispensary on 8th April, 1971. Ebong (D.W. 7) remembered the day, 8th April, 1971, as being their clinic day in the dispensary. He swore that 2nd accused worked with them till 3 p.m. on that day.
This was confirmed by Udo John Akpan (D.W. 8). In his statement, Exh. 2, 2nd accused said he was working at his workplace on the day of the incident I have given serious thought to the evidence of this accused person and his witnesses. My strong suspicion is that he took part in committing the offence. On the other hand I do not feel myself able to ignore or disregard the evidence of these two witnesses of the Ministry of Health.
I have come to the conclusion that the best course would be to give him the benefit of the doubt even though reluctantly.” And in the case of the fourth accused, the learned trial Judge said: “Although Chibuko had said that the 4th accused person took part in killing his father, I cannot, in the absence of identification aforementioned, get myself to the conclusion that the case of the 4th accused person was properly investigated. I have a strong suspicion that he 4th accused person may have been one of those who did the deceased to death, but I would rather err on the side of a wrong acquittal than on a wrong conviction, especially in a murder case.
There is the additional fact that in respect of this 4th accused, Chibuko did not hear the deceased mention him.” We have gone to the trouble of setting out the above observation of, and conclusions reached by, the learned trial Judge in his judgment in discharging and acquitting the second and fourth accused persons because we consider the reasons given by the learned trial Judge for his decision of great significance as indicating quite clearly that the learned trial Judge felt considerable disquiet in the absence of proper legal evidence of identification in accepting and acting upon the evidence of Chibuko Samuel, P.W. 2 – the most important, indeed, the principal witness for the prosecution and on whose evidence, as would appear shortly, the case of the prosecution depended.
It is important also to note that Chibuko Samuel (P.W. 2) was described, quite rightly we think, by the learned trial Judge as the only eye-witness as to the person who committed the act and, indeed, we may add as to the beating of the deceased at all. In spite, however, of the above observations on the evidence of Chibuko Samuel (P.W. 2), a school boy who was only 13 years of age at the time of the alleged murder of the father, Samuel Ekperi, the learned trial Judge drew heavily from and acted on his evidence in convicting the appellants and sentencing them to death. The appellants appealed to this court against their conviction on three grounds, which were argued together, and may be stated as follows:- (1) The learned trial Judge was wrong in law to have convicted the appellants in the absence of proper legal evidence of identification, no identification parade having been held by the police for the proper and reliable identification of the appellants as among those who took part in the alleged murder of Samuel Ekperi (deceased). (2) The learned trial Judge erred in law in that had he disabused his mind of all suspicions and considered and examined the defences of the appellants in the same way and manner and with the same care in which he had considered the defences of the 2nd and 4th accused persons whom he acquitted, and had he properly evaluated the evidence as a whole he would have had no alternative but to give the benefit of the doubt which he had entertained over the evidence as a whole to the appellants and hereby would have entered an order of acquittal in favour of them.
And (3) The learned trial Judge erred in law in failing to evaluate the whole of the evidence in the case adequately because he failed to test properly the evidence of Chibuko Samuel (P.W.2), the principal witness for the prosecution on whose evidence he relied in convicting the appellants against the background of the incident as observed by Chibuko Samuel (P.W.2), having regard to all the circumstances, especially the conduct of Chibuko at the time he alleged his father was being beaten and thereby drew wrong inferences and came to a wrong conclusion that the appellants were guilty of the offence charged.
The case of the prosecution is that Samuel Ekperi was, until his death, a native of Obonipa Ariam village in Umuahia Division, East Central State and that all the four accused persons, who were charged with his murder, are natives of Mbiafun Ikot Abasi in Itu Division, South Eastern State. The two villages, that is, Obonipa Ariam and Mbiafun Ikot Abasi, are border villages as they are situate on the boundary between the East Central State and the South-Eastern State, the two villages being six miles apart between both whereof there is no other village. The inhabitants of Obonipa Ariam are Ibos while the inhabitants of Mbiafun Ikot Abasi are Ibibios.
There is no evidence nor has it anywhere been suggested that there had ever before been a dispute of any kind either between the inhabitants as a group of the two neigbouring villages or between the four accused persons or any of them and Samuel Ekperi as individuals. On the contrary, it is the case of the prosecution, as we understand it, that there is a practice whereby natives of the two neigbouring villages regularly trade in the same markets in the sense that natives of Obonipa village usually buy and sell freely in markets belonging to Mbiafun Ikot Abasi during the native market days of such village and vice versa. In the morning of 8th April, 1971, Samuel Ekperi and his son, Chibuko Samuel (P.W. 2), a school boy in Standard Three in the L.A. School, Obonipa, who could not tell the time by the clock and could only count from one to fifty in the English language, went to a swamp known as Ehie Swamp Bush situate some 11/2 miles from Obonipa village to collect raffia palm leaves. They successfully completed the collection of the palm leaves and tied them together into two bundles.
They then decided to return home. The father, Samuel Ekperi, carried one bundle while Chibuko Samuel (P.W. 2) carried the other and led the way, the father bringing the rear. The father was then walking at a distance of about 70 yards behind his son. Then suddenly his father called Chibuko Samuel by name and said that the Ibibios had killed him. Chibuko Samuel (P.W.2) immediately ran back to his father and there he saw all the four persons originally charged together with other persons unknown, numbering some ten persons in all, hitting his father indiscriminately with rods and sticks.
His father was then crying and calling upon him by name, as they were hitting him with stick and rods. They hit him forcefully at the back of the neck and at the waist. Chibuko Samuel (P.W. 2) observed that the second appellant was holding a rod while the first appellant and the two accused person acquitted were holding sticks. Chibuko Samuel (P.W. 2) then ran home to his village and reported the incident to his uncle, Arinze Alamba (P.W.3). That was about noon, the sun being then overhead. Arinze Alamba (P.W. 3) at once went to the locus in quo.
He was joined by Chibuko Samuel (P.W.2). On arrival there, Arinze Alamba (P.W.3) could find none of the assailants of Samuel Ekperi whom he then saw “sprawling on the ground and groaning”. He observed some swelling at the back of his neck and at his waist. According to him, Samuel Ekperi looked bad as if he had been beaten to death.
He was struggling for life. Arinze Alamba (P.W. 3) in the presence of Chibuko Samuel (P.W. 2) and to his hearing there and then asked Samuel Ekperi what the matter was. To that question Samuel Ekperi gave an answer (and what he said must be here separately stated as told by Arinze Alamba (P.W.3) and Chibuko Samuel (P.W. 2) as the learned trial Judge considered it very important as a dying declaration). In answer to the question, according to Arinze Alamba, (P.W. 3), Samuel Ekperi said: “Look at the people who killed me” and he then started to mention their names.
The names he called were: Akpan Iko
Other Citation: (1973) LCN/1717(SC)
