Akpankere Apishe & Ors Vs The State (1971)

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COKER, J.S.C.

The three appellants were charged with murder contray section 319 of the Criminal Code and were on the 16th April, 1970, convicted by Alexander, C.J. (High Court, Calabar) and sentenced to death. They were stated to have murdered one Ugbesie Ashakaba at Bayasung Obudu in the Calabar Judicial Division on the 1st day of April, 1969. The accused were members of the village community of Bayasung which village has had a long-standing land dispute with the nearby village of Busi over a piece of land known as olo. The man Ugbesie Ashakaba, later deceased, was from Busi village. Earlier on the 1st day of April, 1969, there was violent fighting between the two villages at or near the farm of one Akpa Ajino who had a farm on olo as a result of which Akpa Ajino suffered a fracture of his hand. Later in the day some villagers of Busi, including Ugbesie Ashakaba were returning home from the Bumajo Market and reached a point near a stream. According to the prosecution the three accused persons, armed with sticks, matches and guns and who had been waylaying the Busi people, emerged in front of the returning Busi villagers and ordered them to stop. They then allowed the wife of Ugbesie Ashakaba and two others to pass whilst they detained Ugbesie Ashakaba and a youth by name Evoke. One of those allowed to pass was Simon Abiyo of Busi who was also the 1st prosecution witness. He stated that as they proceeded homeward, after they were allowed by the three accused persons and a fourth man, not before the court, to pass they heard two gunshots in succession. He had turned back after the first gunshot and had seen Ugbesie Ashakaba falling down. At the second shot he was so terrified that he could not look back. Neither Ugbesie Ashakaba nor Evoke has since been seen alive.

There was evidence from other witnesses, who later saw the accused persons and their confederate, still at large, that they were covered with blood stains and that at sometime later still the third accused was seen washing blood stained clothing at a stream; indeed there was evidence that villagers who passed that way after the disappearance of Ugbesie Ashakaba were walking on a road strewn with blood.

The defences of the accused persons at their trial were alibis they were not at the scene of the crime described by the prosecution witnesses, although the 1st and 2nd accused persons admitted that they were present at the fighting earlier on that day.

In a very carefully worded judgment, the learned Chief Justice carefully considered the alibis of the accused persons but disbelieved them and found that the accused were the persons who, with a fourth man, still at large, waylaid Busi villagers on the day in question and disposed of Ugbesie Ashakaba. The Chief Justice stated expressly that he believed the testimony of the 1st, 2nd, 4th and 5th prosecution witnesses. Of the evidence for the defence, the learned Chief Justice said as follows:

“I do not believe the evidence of the three accused persons and reject it wherever it contradicts or conflicts with the evidence of the prosecution witnesses. I disbelieve the testimony of John Aria. I also reject the testimony of David Onebiare wherever it contradicts or conflicts with the testimony of the prosecution witnesses.”

After stating the cause of the earlier fighting between the two villages of Bayasung and Busi, the learned Chief Justice observed as follows in the course of his judgment:

“The fighting at olo subsided but the 1st and 2nd accused, together with the 3rd accused who was at least aware of the fighting, proceeded to the road from Bumaji market to Busi, to await the return of Busi people, for the purpose of venting their anger over the whole issue of the land dispute on the unsuspecting Busi villagers who had left for Bumaji market before the fighting at olo flared up and would be returning later in the morning.”

The learned Chief Justice, as we observed before, came to the conclusion that the accused person had killed Ugbesie Ashakaba in the way described by the prosecution witnesses. He considered the issues of common intention and circumstantial evidence. He concluded, rightly in our view, that there was common intention between the accused persons at the material date and time. We think that the learned Chief Justice was right in this conclusion. The act of laying in waits together at that lonely crossing, the way the accused persons were each armed with lethal weapons and the assistance each gave to the other in terrorising their victims all must and does lead irresistibly to the conclusion that each of them spoke the language of all and did the act of all. See the observations of this court in Eyo Okon Eyo and Ors. v. The State, S.C. 288/69 of the 25th September, 1970. On circumstantial evidence we think also that the learned Chief Justice came to the right conclusion on the facts. He carefully examined the mass of evidence to ensure that no circumstances existed which might turn out to whittle down the effect of the circumstantial evidence and concluded that the circumstantial evidence accepted by him unequivocally points to the fact that the accused persons were those who had killed the deceased.

The learned Chief Justice did not, however, advert in the course of his judgment to the earlier fighting over olo land in the farm of Akpa Ajino. The accused persons have appealed against their conviction and the substance of their complaint is that the learned Chief Justice “failed to consider at all the issue of provocation and the possibility of a verdict of manslaughter as opposed to murder”. It is of course correct to say that the learned Chief Justice did not consider provocation at all. He disbelieved the alibis of the accused persons and believed the story of the prosecution which without a title of doubt, established that the accused persons were the killers of the deceased. That however does not relieve him of the duty of considering and resolving the issue of provocation which was clearly posed by the earlier event of that day in which a member of Bayasung village had his hand broken during a fight with the people of Busi and in which fighting the 1st and 2nd accused participated and indeed of which the learned Chief Justice himself had found that the 3rd accused knew very well. In Kwaku Mensah v. The King (1954) 11 W.A.C.A. 2 at p. 5, the Privy Council stated the principle thus:

“But if on the whole of the evidence there arises a question whether or not the offence might be manslaughter only on the ground of provocation as well as on any other ground, the judge must put that question to the jury. This was distinctly laid down in R. v. Hopper (1915) 2 K.B. 431, a case in some respects resembling the present more especially in that the line of defence adopted was that the killing was accidental and no attempt had been made at the trial to rely on provocation. This ruling was expressly approved by the House of Lords in Mancin v. R. (1942) A.C.1. The reason for the rule is that on an indictment for murder it is open to a jury to find a verdict of either murder or manslaughter, but the onus is always on the prosecution to prove that the offence amounts to murder if that verdict is sought.”

See also Mancini v. The Director of Public Prosecutions (1942) A.C. 1. In Shehu Dummemi v. The Queen (1955) 15 W.A.C.A. 75 the West African Court of Appeal decided that provocation could be caused to a class of people and it would be legitimate to draw such an inference where the circumstances of the case so dictate.

We are of course unable to say what conclusions the learned Chief Justice in the case would have arrived at if he had adverted, as he ought to have done, to the issue of provocation. It is not impossible to find that the members of the village of Bayasung, as a class, were provoked by the fracture which one of their numbers had suffered during the earlier fighting. The evidence in this case established that the scene of the earlier fighting was not too far from the hillside stream where Ugbesie Ashakaba was killed although it was not possible to see one spot from the other because of tall elephant grass.

Certainly this was a matter which the law requires to be considered and it was not considered. To this extent the complaint on appeal must be considered justified. In a trial of murder it is the duty of the court to consider all the defences raised by the evidence whether the accused persons specifically put up such defences or not, although it is not right for any court to conjecture or to imagine points in respect of which no evidence has been raised or given. See generally the observations of this court in Orshior Kuse v. The State, S.C. 82/69 of the 27th June, 1969. In the case in hand, the issue of provocation was raised but not considered and as we are not in a position to say what conclusions the learned Chief Justice would have arrived at if he had considered that issue we think that the only course left open to us is to allow the appeal and substitute a verdict of manslaughter. It may be that if he had considered that issue the Chief Justice would have decided that provocation was not established; but on the other hand his view of the evidence may have led him to the conclusion that the members of Bayasung Village acted under the stress of provocation which still subsisted at the time they got hold of Ugbesie Ashakaba and killed him in the way they did. We are unable to veer one way or the other.

In the circumstances, the appeal succeeds and we will allow the appeals of all the accused persons and quash the conviction for murder and sentences of death passed on them.

We will substitute for each of the three appellants a verdict of manslaughter and will order that in the circumstances of the case each of them should go to prison for 12 years. Appeal allowed. Conviction for murder quashed. Verdict of manslaughter substituted.

Other Citation: (1971) LCN/1221(SC)