Anigo Ekechi & ORS V. The State (1977)

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S. SOWEMIMO, J.S.C. 

The appellants were three out of the seven accused persons charged with the murder of one Edmud Achu. At the close of the case for the prosecution, the 1st and 7th accused persons were discharged by the court after the learned trial Judge upheld a submission that no prima facie case had been made against them. The 5th and 6th accused were similarly discharged at the close of the trial. The 2nd, 3rd and 4th accused, now appellants before us, were convicted at the end of the trial at the High Court of the then East Central State (now Anambra State) sitting at Enugu on 20th August 1974 and were sentenced to death. After the hearing of the appeal before us, the convictions were quashed and the sentences of death were set aside. It was further ordered that they be released from custody forthwith. As indicated in the judgment of this court delivered on 8th March 1977 we now give our reasons for allowing the appeal.

The learned trial Judge in his judgment stated inter alia as follows:-

“The submission of the learned defence counsel may be broadly classified under three heads: First those touching the credibility of the witnesses. Secondly those touching the identity of the person alleged killed and thirdly those touching the participation of the accused persons in the commission of the offence. Taking the first and second heads together the uncontradicted evidence of P.W.7 that P.W.1 at first denied the visit of Edmund but later admitted it is enough to regard this witness as unreliable (See the case of the Queen v. Ukpong (1961) ANLR 25). Nevertheless the witness was not the only eye witness to the events on that day. There was the testimonies of P.W.2, P.W. 3, P.W.5 and that of the accused persons themselves.

“Edmund is from Mgbowo. The 2nd accused admitted that the thief he caught was an Mgbowo man and according to P.W.5 the thief who was dragged to the school premises was said to be an Mgbowo man. It was part of Edmund’s clothes that was recovered near the school premises where the Mgbowo man was taken. All these facts certainly seem to lead to only one conclusion and that is the Mgbowo man who was accused of stealing on the day in question and taken to the school compound cannot be any other person than Edmund.” (Underlining ours)

The learned trial Judge did not set out what 2nd, 3rd and 5th prosecution witnesses saw. On the record the 2nd and 3rd prosecution witnesses only stated that they saw the deceased taken to the compound of the Head Chief, who was then 1st accused and no more. The appellants admitted that the deceased was taken to the compound. What was in issue was whether what 1st P.W. stated in evidence about the deceased person being taken into a school compound, tied up with rope and taken into a bush was also witnessed by the 5th P.W. The evidence of 5th P.W. was that he saw a crowd approaching the school compound but as he was ashamed about the allegation against the deceased he left. He could not say whether the deceased was taken into the school compound. The only person seen by the 5th P.W. was the 2nd appellant (then 3rd accused).

The learned trial Judge also referred to the evidence of the appellants, but again he did not say what portion of it he had in mind. The three appellants admitted seeing the deceased at the compound of the head chief. As a matter of fact it was 1st appellant who took the deceased to the compound and the 2nd and 3rd appellants were attracted there by the noise that someone had been brought there on a charge of theft. Their evidence in the main agrees with that of the 1st prosecution witness.

As pointed out above the learned trial Judge was in error to equate the 2nd, 3rd and 5th prosecution witnesses as eye witnesses of the incidents described in the school premises by 1st prosecution witness. It was because of this error that the learned trial Judge proceeded to hold that the charge against the appellants was proved and convicted them.

The only evidence against the appellants is that of the 1st prosecution witness and, having held that it was unreliable, for the reasons set out in his judgment, with which we agree, there is no other evidence which connected the appellants with the charge. In the circumstances, the learned trial Judge, on a proper appraisal of the evidence on record could only have come to the conclusion that the charge was not proved and should have acquitted and discharged the appellants.

It was for the above reasons that we have allowed the appeal at the hearing and we quashed the convictions and sentences and ordered an acquittal and discharge of the appellants.

We wish to observe that although the offence was alleged to have been committed in 1972, the trial in the High Court did not commence until 4th of July 1974 and judgment was given on 20th August 1974. The appeal came before this court on 7th March 1977 and was disposed of on 8th March 1977.

SC.15/1975