Eyang Edim Vs The State (1972)

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ELIAS, C.J.N

On March 22, 1972, we dismissed the appeal brought by Eyang Edim against his conviction for murder by Bassey, J., on July 12, 1971, in the High Court at Calabar in Charge No. C/6C/71. We now give our reasons for so doing.

In his statement, Exhibit 1, the Appellant said that at about 12 o’clock at night on November 19, 1970, after drinking palm wine with Eme Anthony Okori, the deceased, and others in the house of one Ebedem Efim, he and Eme went to the 5th prosecution witness, Arangha Oyum, to hire his canoe for twenty-five shillings, the deposit of five shillings having been paid by Eme. They packed Okasi leaves into the canoe which they rowed towards Oferekpe and landed opposite Ogurukpon where he the Appellant said he cut the deceased twice on the head. When the deceased did not die, he said he threw him into the water and also the okasi leaves. He said that he then washed the canoe and went home. He also said that it was because he had previously seen the deceased with money that he killed him and that, on putting his hand into the pocket of the deceased’s shirt, he found there only two pounds and ten shillings.

The first prosecution witness, Ukpai Uma, said that the Appellant told him and John Okpa, the 2nd prosecution witness and a councillor, that he had ferried the deceased on the night in question and had killed him in his sleep because he suspected him of being in possession of money, although he found only two pounds ten shillings on him. All the three then went to report the matter at the Obubra police station. John Okpa in his own evidence confirmed that the appellant admitted having killed the deceased by cutting him twice on the head and dumping him into the river, and that the sum of two pounds and ten shillings was all the Appellant said that he had found on the deceased. He said that he first saw the knife which the Appellant said that he used in cutting the deceased at the police station when it was brought in by Chief Esse Ogbanyi, the 6th P.W., although the knife belonged to one Ojong Edibi who, however, did not know when the accused removed the matchet. James Obi, the third prosecution witness, the investigating police officer, confirmed the story told by the first two as told to him in the presence of the Appellant and added that the Appellant admitted it all in his presence, and that all the search for the corpse which he and others conducted proved fruitless. Michael Effiong Efanga Okon, the fourth prosecution witness, the Deputy Superintendent of Police, testified as to how the Appellant’s confessional statement was produced to him, written and signed twice in front and once at the back by the Appellant before him and all the witnesses. Arangha Oyum, the fifth witness confirmed the Appellant’s account of the hire of his canoe on a deposit of 5/-, and said that the canoe was returned to him wet from washing. The last witness, Chief Esse Ogbanyi, said that the Appellant hailed from his village, that the 1st P.W. and the 2nd P.W. reported that for over three days they had not seen the deceased whom Appellant ferried in a canoe to Oferekpe. He said that the appellant admitted to him twice that he had killed the deceased. This witness said he was married to the appellant’s mother and that the Appellant was living with them. The learned trial Judge accepted the facts of how the Appellant killed the deceased and found him guilty of the latter’s murder.

There are, however, two questions to be considered in connection with the verdict. One concerns the non-discovery of the deceased’s corpse, while the other relates to the Appellant’s age. As regards the absence of the corpse, the learned trial Judge said:

“No doubt there is no eye witness evidence as to accused killing the deceased, but there is the confession by accused. When confession is truly made and voluntary it is enough to found a conviction. In Kanu v. The King (1952) 14 WACA 30 the court observed as follows: Corroboration by an eye witness cannot be obtained in all cases of murder. A voluntary confession of guilt, if it is fully consistent and probable, is justly regarded as evidence of the highest and most satisfactory nature wherever there is independent proof that a criminal act has been committed by someone.” See also R. v. Agagariga (1961) All NLR 462.

It is true that the body of the deceased has not been recovered. But it is settled law that where there is positive evidence that the victim had died, failure to recover his body need not frustrate conviction: Ogundipe & Ors. v. The Queen (1954) XIV WACA 458.

In this case the accused said he dumped the body of his victim into the river. The deceased was an itinerant trader who was frequently in company of 1 P.W. The way they had been carrying on their trade convinces me that if he were not dead 1st P.W. could not have failed to see him for such a long time.

Mr. F. O. Akinrele, the learned counsel for the Appellant, submitted that there was nothing he could urge in favour of the Appellant except that there was some doubt about his age. The learned trial Judge had, however, made a specific finding on that point saying that he found him to be over 21 years but in any case the Appellant had in his own evidence admitted that he was at the material time, November 20, 1970, at least seventeen years of age, which is what Section 368(3) of the Criminal Procedure Law (Cap. 31 of the 1963 Edition of the Laws of Eastern Nigeria) requires that an accused must be before a sentence of death can be pronounced upon him if found guilty.

As we were satisfied that the Appellant had been rightly convicted of the murder of the deceased by the learned trial Judge, we dismissed the appeal. We would nevertheless wish to endorse the learned trial Judge’s recommendation of a reprieve in view of the tender age of the accused.

Other Citation: (1972) LCN/1449(SC)