Asquo William V. The State (1975)

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NASIR, J.S.C. 

In Charge No. HU/36/1973 the appellant was convicted, in the High Court sitting at Umuahia by Aniagolu J., on 13th January, 1975 of the offence of murder contrary to Section 319 (1) of the Criminal Code.  On the 13th November, 1975 we heard this appeal. We allowed the appeal and discharged and acquitted the appellant.  We said that we would give our reasons later.  We now state out those reasons.

The appellant together with five other persons were arraigned in an information preferred under Section 340 (2) (b) of the Criminal Procedure Law charging them with the murder of one Sunday Nnana.

The case for the prosecution was that on the 2nd day of February, 1972 the deceased and his wife, Oyidie Sunday Nnana, Udo Umo and Ogbonnaya Obasi went to their farms at Nturi in Okpakon bush to cut Okro.  While working on the farm the deceased’s wife, Oyidie, heard the voices of people approaching the farm speaking Ibibio. She alerted her husband. When those people arrived they went to the side of the farm where the deceased was and started to pluck his okro. The deceased asked them why they were plucking his okro but they told him to shut up.  

The deceased asked again but he was again told to shut up. They then came and surrounded him. There were six of them, namely Asuquo William (1st accused), Edet Udo Ekpeyong, (2nd Accused), Akpan Bassey (3rd Accused), Ndarake Ekpenyong (4th Accused), Joshua Essien Nkpo (5th Accused) and Isang Usong (6th Accused). The 4th Accused, Ndarake Ekpeyong urged the 1st Accused to kill the deceased and as a result the 1st accused gave the deceased a matchet cut on the right side of his stomach. The deceased lunged forward and fell down with his intestines gushing out. The deceased was shouting “What have I done! What have I done!” One of the neighbours, Udo Umo, heard this and shouted to find out what happened to the deceased. When the accused persons heard the voice of Udo Umo they ran towards him but he himself started to run away and escaped with serious matchet wounds on his head, inflicted by the accused persons.

At this juncture Oyidie ran back to the village and raised alarm. The villagers then went to the farm and from there collected the dead body of the deceased and the body was subsequently taken to the Arochukwu hospital and a post mortem examination was performed. Udo Umo was also taken to the same hospital for treatment.

The first, second and third prosecution witnesses testified that all the six accused persons were on the farm on that day. The accused persons gave evidence on oath at the trial. The 3rd to the 6th accused denied being at the farm on the day in question. The 2nd accused while admitting being on the farm on the day in question denied being there at the material time and said that when he saw the deceased in an aggressive mood he got frightened and ran away and did not know what happened later. The 1st accused admitted being on the farm but alleged that he was the one surrounded by the deceased and other persons and denied killing the deceased.

The 1st P.W. made two statements to the police. These statements were put in evidence (Exhibits 1 and 22).  The statement to the police of the 3rd P.W. was also put in evidence (Exhibit 2). Likewise all the statements made to the Police by the accused persons were also put in evidence. We shall refer to some of these statements later.  The nature of the evidence adduced by the prosecution was that the learned trial Judge rightly acquitted five of the accused persons at the end of the trial and only convicted the appellant. He should have, in our view, acquitted even the appellant because of the unsatisfactory nature of the evidence in this case.
Only two grounds of appeal were argued by learned counsel for the appellant, namely:-

“(1) The learned trial Judge misdirected himself on the facts when he said “In that statement she said it was ‘Udo Ekpeyong’ who ordered the 1st accused to cut the deceased” whereas it was not so stated in the statement and then came to a wrong decision as to the evaluation of the evidence for conviction.

(2) That the judgment is unreasonable, unwarranted and cannot be supported having regard to the evidence.”

These two grounds were argued together. The points made by counsel are considered in this judgment. Suffice to note here that learned Principal State Counsel after further consideration of the arguments adduced and the wrong findings on which the learned trial Judge based his conviction, he indicated that he would not be pursuing his earlier suggestion that a verdict of manslaughter should be substituted.

We would consider the evidence in this case. The learned trial Judge said in respect of the prosecution witnesses:-

“Having seen and heard Oyidie Sunday Nnana (P.W.1), Udo Umo (P.W.2) and Ogbonnaya Obasi (P.W.3) and the 1st and 2nd accused persons, the Court, without any shadow of doubt, is satisfied that the version given by the prosecution witnesses on this issue is the true and correct one.  The Court is satisfied that it was the 1st accused who in the company of some Ibibios attacked the deceased who was harvesting his Okro crops from his farm.’

The learned Judge went on to disbelieve everything said by the Appellant and continued:-

“There are a number of contradictions in the story told by some of the prosecution witnesses to which attention must be drawn. Oyidie Sunday Nnana (P.W.1) told the Court in her evidence in-chief that all the six accused  persons surrounded the deceased; that 1st accused was the only one of them who had a matchet; that it was 4th accused who ordered 1st accused to kill the deceased. Under cross examination, she said 2nd accused was not among; that he did not come to the farm; that it was his father who took part in attacking the deceased…. Her statement to the Police was tendered as Exhibit 1. In this statement she said it was “Udo Ekpenyong” who ordered the 1st accused to cut the deceased. Udo Ekpeyong was the name she gave to the father of the 2nd accused. Yet in her evidence in court she had said it was 4th accused who gave the command.  In Exhibit 1 she gave the names of the persons who surrounded the deceased as: Ndarake Ekpeyong (4th accused);
“Udo Ekpeyong;
“Akpan Bassey (3rd accused);
“Ukpabi Udo Ogbonnaya and
“Joshua Esiet.”
She said in court that Joshua Esiet was the same person as Joshua Essien Nkpo (5th accused). Taking that to be the case, it follows that in Exhibit 1 she mentioned:
1st, 3rd, 4th and 5th accused persons.”

One of the complaints by learned counsel for the appellant was that the learned trial Judge misdirected himself when he said that in Exhibit 1 the witness has said that it was Udo Ekpeyong who ordered the 1st accused to cut the deceased.  We think the point is well taken. The witness did not say so at all. We are also of the view that the learned trial Judge misdirected himself when he said that in Exhibit 1 the witness mentioned 1st accused at all. She did not. If the learned trial Judge had considered the second statement of this witness (Exhibit 22) which was taken on the 5th February 1972, he, probably, would have noticed that the witness repeated the names of the same accused as she mentioned in Exhibit 1 and made no mention of the 1st accused as being present or getting any order from anybody. In both Exhibits 1 and 22 she said it was Ndarake Ekpeyong who responded to the order by cutting the deceased with his matchet. If the learned trial Judge had directed his mind to these very serious contradictions and inconsistencies, he would have reached a different conclusion on the evidence of this witness.
The learned trial Judge found in respect of the evidence of the 3rd prosecution witness (Ogbonnaya Obasi) that the witness said in his evidence in court that he saw all the accused persons on the farm but in his statement to the police (Exhibit 2) he said he saw 1st, 2nd and 4th accused persons and Ukpabi Udo Ogbonnaya. In respect of the evidence of Udo Umo (P.W.2) the learned trial Judge said:

“Udo Umo (P.W.2) stated under cross-examination that he did not see P.W.1 that day at the farm. He said it might be after he had returned to the village that P.W.1 went to the farm; but P.W.1 had stated that she went with P.W.2, P.W.3 and the deceased to the farm that day.”

Having gone over the evidence of P.W.1, P.W.2 and P.W.3, the learned trial Judge said:-

“The court cannot disregard the statements to the police and the evidence in this court of P.W.1 and P.W.3 as to the persons who came and surrounded the deceased in the farm on that fateful day. It is a notorious fact that a witness’s mind is much more clear and precise as to the happening of the events on the day of the incident and that the clarity recedes as one moves further away from the date of the incident.”

In the light of the above passage we are of the opinion that if not because of the misdirection in respect of the finding that 1st accused was mentioned in Exhibit 1 and the non-consideration of Exhibit 22, the learned trial Judge would have considered the evidence of both P.W.1 and P.W.3 as unsatisfactory and unreliable due to the contradictions and inconsistencies.

We agree with the observation of the learned trial Judge in respect of the case of Queen v. Asuquo Akpan Ukpong (1961) 1 All NLR 25.  Since this case (Ukpong’s case) this court has had opportunity to pronounce on the same matter in other cases such as Joshua v. The Queen (1964) 1 All  NLR. 1 and Christopher Onubogu and Another v. The State (1974) 9 S.C. 1. This court said at page 17 in the last mentioned case:

“We thought that the submission of learned counsel for the appellants are well founded. In our view, where a witness, such as the complainant (P.W.4) in the case in hand, has made a statement before trial which is inconsistent with the evidence he gives in court, the court, provided that no cogent reasons are given for the inconsistency, should regard his evidence as unreliable.”

This court then referred to the cases of the Queen v. Joshua (above) and R. v. Golder, (1960), 1 WLR. 1169 with approval. In the instant case before us we cannot gloss over the inconsistencies between the evidence of the witness (P.W.1) and her two statements to the police (Exhibits 1 and 22), as quoted earlier. The witness said in her evidence on oath at the trial that the 1st accused (the appellant) was present and was the person who dealt the fatal matchet cut on the deceased at the instigation of the 4th accused, Ndarake Ekpeyong. In her two statements to the police she did not say that she saw 1st accused that day. She said in Exhibits 1 and 22 that she saw Ndarake Ekpeyong. Udo Ekpeyong, Akpan Bassey, Ukpabi Udo Ogbonnaya, Joshua Esiet and one man who carried a shot gun and many others. In Exhibit 1 she said Udo Ekpeyong shouted “Kill him” and in Exhibit 22 she said “some people” shouted “kill, kill”. In both statements it was 4th accused, Ndarake Ekpeyong, who dealt the fatal matchet cut. The witness had known all the accused persons long before the incident. We cannot therefore see how the omission to mention the appellant and the categorical statement that it was the 4th accused who dealt the fatal matchet cut in both statements made within three days after the event, could be glossed over to get substantial agreement between the evidence on oath and the statements to police. We have on this score also come to the conclusion that it would not be safe to rely on the evidence of this witness as to the accuracy of her identification of the appellant and the part he played, if any.

All the three prosecution witnesses testified as to having seen the accused persons on the farm that day. But the 1st P.W. said in Exhibit 1 that she saw only 2nd, 3rd, 4th and 5th accused persons. She repeated the same in Exhibit 22. She said she went to the farm with Udo Umo (P.W.2); but Udo Umo denied seeing the 1st P.W. that day on the farm at all. The 3rd P.W. also differed from the 2nd P.W. on this point. We have from the above the problem of the prosecution witnesses not only each contradicting himself against his previous statement but the witnesses contradicting each other in their evidence on oath. This court has said in Onubogu v. The State (1974) 9 S.C. 1 at 20;
“We are also of the view that where one witness called by the prosecution in a criminal case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation, such as showing that the witness is hostile, before they can ask the court to reject the testimony of one witness and accept that of another witness in preference for the evidence of the discredited witness.”

In the case in hand there is no evidence cogent enough to warrant our choosing the accuracy of one witness as against the other. On this score also we are of the view that the prosecution has not been able to prove the charge beyond reasonable doubt.

In conclusion, we are of the opinion that this Appeal should succeed. As the learned trial Judge had laid emphasis in his judgment on the statement of the appellant we should express an opinion on this statement. In reading the record we noticed that the procedure followed when the accused persons were giving evidence was for each one of them to adopt the statement he made to the police earlier. For example the appellant in his evidence -in-chief said:-

“I made the statement to the police, Exhibit 4. I adopt Exhibit 4 as part of my defence. I have something to add to Exhibit 4. There were certain things I told the police but which they did not include in Exhibit 4.”

We consider this procedure to be irregular and unhelpful to the court and certainly unhelpful to the accused himself.  In the case of R. v. Alli (1949) 12 WACA 432 at 434, Verity, C.J. had this to say about this type of procedure:-

“Although we are not unaware that this procedure is at times followed, for the purpose, we presume, of saving time we do not think that it can be too strongly deprecated. It not only deprives the trial judge of hearing the witness tell his story, by way of narration or in answer to questions put by counsel, and of observing his demeanour and the manner in which he gives his evidence, but it also puts the witness at a considerable disadvantage in that the only time at which the court has the opportunity of observing him is that at which he is under cross – examination. It is, in our view, impossible for the trial Judge to form a just opinion of the merits of a witness in a circumstance in which the examination-in-chief amounts to no more than the reading of a statement.”

This court had endorsed the above quoted passage when it said in the case of Onubogu v. The State (above) at page 23

“We fully endorse the views of Verity, CJ., on the said procedure which we regard as most irregular, and it is hoped that it will be avoided in all trial courts in the future.”

We are of the view that the use of this irregular procedure has given undue weight to the statement of the appellant. In fact in his evidence-in-chief and under cross examination, the appellant almost completely rejected the statement which he was said to have adopted. It is important to note that the appellant did not confess to killing the deceased in his two statements to police (Exhibits 4 and 6). The highest he admitted was “cutting Sunday.” If statements to the police were anything to go by in this case, both 1st P.W. and 3rd P.W. stated in their statements to the police (Exhibits 1 and 2) that it was Ndarake Ekpeyong (4th accused) who cut Sunday (the deceased).

Having considered the whole evidence adduced in this case and the unsatisfactory nature of the evidence, due to contradictions and inconsistencies, we allowed the appeal and quashed the conviction and sentence. We ordered that the appellant be discharged.

Other Citation: (1975) LCN/2000(SC)