Elijah Ukoh V. The State (1972)

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G. B. A. COKER, J.S.C.

We dismissed this appeal at the hearing on the 11th January, 1972 and now give our reasons for doing so. The appellant was charged before the High Court, Ado-Ekiti (Western State) with the murder of one Kalu Adule. He was tried by Craig, J., convicted as charged and sentenced to death. He appealed to the Western State Court of Appeal and on the 20th April, 1971, his appeal was dismissed by that court. The appellant was a friend of Kalu Adule, now deceased, and both of them lived in a room in the house of one Peter Ajayi who was called as the 4th prosecution witness to testify at his trial. He lived in another section of the same house and in the course of his evidence before the court that heard the case, he stated as follows:

“At about 2.00 a.m. on 28/10/68, I heard the loud sound of something crashing. I was in my room and the sound came from another part of the floor. It was a bungalow. I then shouted on one Sule Otubu. He too was a tenant. Sule answered me from his room and we two met in the parlour. Both Sule and I carried a lantern each. I saw the door of Adule’s room was open. I went inside. Sule was with me. I saw Kalu Adule on the floor in a pool of blood. He was dead.”
The witness further testified that he examined the corpse of Kalu Adule and found “a  matchet cut on his neck”. Indeed, Dr. Kantilal Kapadia  who later performed a post-mortem examination on that corpse confirmed the presence of “a very large wound on the right side of the neck about five inches long and two inches wide in the middle”. The doctor thought the wound could have been inflicted with a sharp instrument such as a cutlass and that in his opinion the death of Kalu Adule was caused by that wound.

In the course of his evidence, the 4th prosecution witness, that is Peter Ajayi, the landlord of both the appellant and Kalu Adule, was cross-examined by learned counsel for the appellant as to how he knew that it was the appellant who had killed Kalu Adule. He answered as follows:

“I knew that the accused killed the deceased because:

(1)  I saw blood stains on the buba which the accused was wearing. I noticed this when I saw the accused surrounded by many persons, secondly, the accused fled from the house that night. Thirdly the accused confessed that he killed the deceased.  He  told me this in the Land Rover when Police were bringing us to Ado-Ekiti.”

One of the neighbours of the appellant was also called by the prosecution as a witness. He was Sule Otubu (5th prosecution witness). He had been aroused from sleep by the landlord, Peter Ajayi, at about 12.30 a.m. Following the noise of the crash described by that witness. He had rushed as well to the room occupied by Kalu Adule and found him lying on the floor with a deep gash in his neck inside a pool of blood clotted here and there. He stated that at this stage of things the appellant, who was known to have slept in the same apartment with Kalu Adule the previous night, was nowhere to be found. A search was mounted for him and at about 9 a.m. on the 28th October, 1968, he suddenly appeared coming back into the house as if he knew nothing about all that has happened. He was then arrested and eventually handed over to the Police.

After his arrest, the appellant made a statement to the police and this was admitted in evidence as Exhibit 1. In it he stated that there was an argument between him and the late Kalu Adule; that the argument developed into a fight and that both of them fought it out until he got out his own penknife and used it on Kalu Adule. He also stated that as a result of this, Kalu Adule fell down and never got up again. In his evidence in court in his defence he stated that he had slept in his farm on the 27th October, 1968 and that on his return home on the 28th October, he saw many people in front of the room of Kalu Adule speaking in a local language which he did not understand. He stated that he was then taken inside the room by a policeman and others and there he saw the lifeless body of Kalu Adule. He was then taken to the Police Station where he made a statement to the police but certainly not in the terms of Exhibit 1 because he did not at any time confess to having killed Kalu Adule.

The learned trial judge extensively reviewed the evidence and expressed his considered findings as follows:

“On the careful consideration of all the evidence, I am satisfied on the facts that:

(1)    The accused slept in  the parlour of the house of Peter Ajayi on  the night of the 27th October,  1968.

(2)    Sometime during the night, the accused murdered the deceased Kalu Adule, and ran away from the house.

(3)    That when he was apprehended, he confessed to the 2nd prosecution witness in the house and to the 4th prosecution witness in the Police vehicle,that he killed the deceased.

(4)    That he later made a voluntary statement (Exhibit 1) in which he admitted the crime.

(5)    That the deceased died from the injuries found  on him.”

The learned trial Judge also considered the alibi set up by the appellant. He did not accept his story that he had slept in his farm on the night of the murder and indeed disbelieved his alibi. He then considered whether other defences were, on the evidence, open to the appellant, as, for instance provocation, and concluded that none was established. He stated further in his judgment that

“Having rejected the defence of alibi set up by the accused, I am satisfied that even though there is no eyewitness to the killing, the circumstantial evidence is such that the accused must be held responsible for the murder of Kalu Adule.”

He then convicted the appellant as stated before.

The appellant appealed against his conviction to the Western State Court of Appeal complaining of the inadequacy of the circumstantial evidence on which his conviction was based, the involuntariness of the confessional statement, Exhibit 1, the omission by the learned trial Judge to consider the defence of provocation and self-defence and the inadequate identification of the corpse before the post-mortem examination. These points were severally taken one by one by the Western State Court of Appeal and fully discussed. The strength of the circumstantial evidence on which the conviction of the appellant was based lies in the aim of the totality of such evidence. The fact that the appellant slept in the same room with Kalu Adule the night before and his unaccepted (and indeed unacceptable) denial of that fact, his subsequent departure from the locus criminis, the statement he made to the Police, Exhibit 1, and his subsequent attempts at the trial to resile from that statement, the confessions he made to fellow passengers with himself  in the Police car on the way to the hospital and other facts all seem to have the same  tendency – that of pointing unequivocably to his guilt of the offence with which he was charged. As for his statement to the Police, the learned trial Judge decided as an issue of fact that it was voluntarily made. That was clearly a matter of fact and there was abundant evidence on which the learned trial Judge could have so found.

Concerning the defence of provocation and self-defence, the learned trial Judge did consider provocation and stated that there was no evidence to support it. Although, in his statement to the  police, Exhibit 1, the appellant described a fight with the late Kalu Adule, there was no material on which the court could find that any issue of self-defence was raised. Indeed, the statement, Exhibit 1, said that both the appellant and Kalu Adule were fighting each other with their fists. Besides this, the appellant jettisoned the statement in the course of his evidence. A judge or court is not entitled to embark upon any type of speculation in considering a case of murder; the findings must rest on the evidence in the matter and where no material exists which may fairly suggest a particular kind of defence or issue it is not the business of the Judge or court to speculate as to that defence or issue. Finally, the learned trial Judge dealt with the identification of the corpse. “That was never a contested matter for all agreed that the corpse with the fractured neck on which the 1st prosecution witness performed an autopsy on the day he did was that of the late Kalu Adule.

The Western State Court of Appeal fully dealt with all the issues raised. Before us, learned counsel assigned to argue the appeal was unable to find any useful points to urge in favour of the appellant. We think that  on the fairest reading of the records, there was no conclusion open on the evidence before the court other than that of the guilt of the appellant. The trial court found this to be so and the Western State Court of Appeal affirmed that judgment. We think ourselves that the judgment was right, that no grounds have been shown to warrant our disturbing the findings and so we dismissed the appeal at the hearing.

Other Citation: (1972) LCN/1430(SC)