Edem Akpan Ekpo & Anor V The State (1964)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C. 

The appellants were convicted of murdering a custom officer named Jonathan Ogbonnaya Okereke on 7th September,1962, at the Erin Ekung creek in Oron.

Briefly these were the facts found by the trial Judge:A party of about thirty men went into the creek in two large canoes laden with contraband goods. Shortly after, a fisherman (P.W.15,Anwana Etienam) and his son entered the creek. The first appellant asked him to unload and bring his little canoe alongside. After so doing, the fisherman was looking for bait in the swamp. Three customs officers with three others came in a canoe, and the officers asked the smugglers to come out to the mouth of the creek where they had left the customs launch. Two smugglers went to parley, but as the officers would not accept a bribe, they capsized the officers’ canoe.Five of the men in it escaped; the deceased was carried by the current and got bogged in the mud by the root of a tree in the swamp at a spot near which P .W.15 (the fisherman) was looking for bait. Then the first appellant and others came up in the fisherman’s small canoe and got out of it; the fisherman begged them not to beat the officer; the first appellant told him that the officer had flatly refused to come to terms: he was so cross that he shot in the leg one of his party who had tried to pull the officer out of the mud. The first appellant and those with him went by a path back to their large canoe and moved it towards the officer, and when about eighteen feet from him, the first appellant shot him. The fisherman ran away. The second appellant jumped into the water,swam to the deceased, and gave him some matchet cuts. The doctor’s evidence is that it was the gunshot which caused death. Still, if the evidence against the second appellant had been reliable, he would have been guilty as an aider in the murder.

The evidence against the second appellant comes from two of the smugglers, P.W. 16 and P.W. 17. They were included among the accused in the information, but a nolle was entered for them and they were called as witnesses. Were they accomplices in law?

The judgment deals with accomplices at length; it cites local cases and Davies v. D.P.P. [1954] A.C. 378. Balonwu J., the trial judge,comments that these two witnesses could not have known that the appellants would have gone as far as murder to escape arrest as smugglers, and adds that these witnesses, with the approval of the others, openly blamed the appellants for what they had done. This general feeling must be taken with ‘a pinch of salt’: some smugglers capsized the officers’ canoe and might have drowned them,some wanted to beat the deceased when bogged in mud by the tree, and, worst of all, those in the first appellant’s canoe moved it to within close range for him to fire at the deceased. But these two witnesses are careful to say that they were not in that canoe. There is no need to go further into the point of whether they were liable for the murder itself.

A witness may also rank as an accomplice on the ground that he assisted the culprit to escape punishment and was an accessory after the fact in that way. The learned judge considers this aspect, and says that the smugglers left the scene homewards “not necessarily for the purpose of escaping punishment for the murder of the deceased.”

He goes on to say as follows:

“As to this, it is a question whether one could properly regard these prosecution witnesses as free agents, for they had only just seen the accused persons lay violent hands on the deceased; and so whether they and the other members of their party could have safely refused to pull the canoes out of the creek while the accused persons had still the gun and the matchet in their possession. However, it is more likely and more in keeping with th objects of their journey, and I so find, that the witnesses and their fellows pulled their canoes out of the creek to avoid being caught with contraband.”

With respect, these distinctions are too nice and refined to follow: we cannot distinguish between their running away to avoid being caught with contraband and their running away to avoid arrest for the murder or to help the murderers to escape arrest. The learned judge seems to have felt the difficulty: he adds as a make weight the theory that these witnesses might have felt fear, and that so might the others also-about thirty against two. Th commonsense of the matter is that the whole party wanted to get away and avoid being arrested for the murder as much as they wanted to avoid getting caught with contraband goods. In that common aim to escape they were helping the two appellants to escape punishment, and these two witnesses should be regarded as accessories after the fact at the least, and consequently as witnesses on whose evidence alone it would not be safe to let the conviction stand against the second appellant.

Their evidence can serve as auxiliary evidence against the first appellant, but it is the fisherman’s evidence that is paramount against him. The fisherman is an untainted witness. Two days after the murder he was interviewed by some customs officers who were making enquiries; some two months later he was taken to Uyo police station, and at a parade he identified the first appellant as the man who fired the gun. Mr. Cole, who argued the appeal,has repeated the suggestion that the fisherman’s identification of the first appellant cannot be relied upon: he might have seen the first appellant at the station before the parade, and secondly, this witness said it was two days after the murder that he was taken to the parade. As to the second comment, it is plain that testifying more than fifteen months after the events, this witness (No. 15) telescoped the second visit of customs officers into the first. And as to the first comment, the witness did not identify the second appellant at the parade, and his son did not identify either of the appellants;this witness denies seeing the first appellant before the parade, and his denial has the stamp of truth; the conviction of the first appellant stands on firm ground, and his evidence that he had nothing to do with the case raises no doubt.

The other criticisms of detail need not be discussed; they are of a minor sort and do not affect the substance of the case against the first appellant.

It is ordered that-

(1) the appeal of the first appellant, Edem Akpan Ekpo,from the decision of the High Court at Calabar dated 25th June, 1964 in caseNo. C/58C/1963 be and the same is dismissed; but

(2) the appeal of Ita Asuquo, the second appellant, be allowed and that a verdict of acquittal shall be entered in his regard.

Other Citation: (1964) LCN/1109(SC)