Inyang Etim Akpan Vs The State (1994)

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ADIO, J.S.C

The appellant, Nyang Etim Akpan, alias Mbom Etim Akpan, was charged with the murder of one Enefiok Mbom Edet under section 319(1) of the Criminal Code Law, Cap. 31 of the Laws of the Cross River State of Nigeria, applicable in Akwa Ibom State of Nigeria. The evidence led by the prosecution was that on the 19th day of July, 1986, the deceased was one of those to be initiated as new members of Ekpo Masquerade Society in Mbiaya Uman, Uyo.

The appellant (who was the assistant head of Ekpo Society) had a matchet in his armpit and held a cow horn and wooden gong in one hand. He walked to the house of P.W. 2. While there, the deceased too came to the house of P.W.2 and asked the appellant why he hit him (deceased) with the cow horn. The appellant said that it was Patrick Okon that he wanted to hit with the cow horn and not the deceased. The next thing that happened was that the deceased took the Matchet and the cow horn from the appellant and ran towards the direction of his (deceased’s) house which was on the way to the village square where the ceremony was to take place. In response to the plea of the P.W.2, the appellant did not run after the deceased to take the Matchet and the cow horn from him.

Subsequently, the appellant arrived at the village square where the initiation ceremony was to take place and where he met many people, including the P.W.1 and the deceased, who had assembled there for the ceremony. According to the evidence given by the P.W.1, the appellant wore a big gown and without any incident, at that place, between him (appellant) and the deceased or any other person the appellant brought a gun out from his pocket and shot the deceased who died on the spot. Thereafter, the appellant took his Matchet and the cow horn, which were with the deceased, and left the place.

At the trial of the appellant before the learned trial Judge the defences of provocation and self defence were canvassed by the appellant’s counsel. The learned trial Judge gave consideration to the evidence before him and the submissions of the learned counsel for the parties. He found the appellant guilty of the charge. He was convicted and sentenced to death by the learned trial Judge.

The learned trial Judge expressed the view that it was common ground that the appellant shot and killed the deceased at the village square on the day in question. He held that the evidence of the appellant that the deceased and the P.W.1 chased him and that the deceased flung a matchet twice over his (appellant’s) face was an after-thought and he rejected it. In his view, the evidence of the medical doctor who performed the post-mortem examination on the corpse of the deceased was absolutely unnecessary. Dissatisfied with the judgment, the appellant lodged an appeal against it to the Court of Appeal.

The Court of Appeal dismissed the appellant’s appeal. The appellant made two statements to the Police, one was made on 19-7-86 and the second one was made on 21-7-86. The statement made on 19-7-86 was according to the court below, not tendered throughout the proceedings. The learned trial Judge fell that it was tendered and admitted and therefore considered its contents along with other evidence. In the case of the one which was made on 21-7-86, the court cautioned on the applicability of the principle enunciated in Oladejo v. The State, (1987) 3 NWLR (Pt.61) 419 at page 427 on the ground that the appellant’s evidence in the court contradicted his statement to the police as the Court of Appeal found that, in any case, the oral evidence of the appellant in court did not contradict his written statement to the police and that the principle in Oladejo’s case did not apply. The court expressed the view that the learned trial Judge was right in rejecting the defences of provocation and self-defence. Dissatisfied with the judgment of the Court of Appeal, the appellant lodged an appeal against it to this court.

In accordance with the rules of this court, the parties duly filed and exchanged briefs. The appellant filed an appellant’s brief and the respondent filed a respondent’s brief. Three issues for determination were identified in the appellant’s brief while two were identified for determination in the respondent’s brief. The three issues for determination identified in the appellant’s brief are sufficient for the determination of this appeal. They are as follows:-

“1. Whether there has been a want of fair trial.

2. Whether the Court of Appeal was justified in upholding the decision of the trial court that the defence of self-defence did not avail the appellant.
3. Whether the Court of Appeal, was justified in upholding the decision of the trial court that the defence of provocation had also failed”.

No doubt, two of the main issues in this case are whether the defence of self-defence was available to the appellant and whether, in the circumstances of this case, the defence of provocation was available as a defence to the appellant. However, in a charge of murder it is necessary to find out what is the nature of the onus on the prosecution. In other words, what are the ingredients of the offence which the prosecution has to prove beyond reasonable doubt It is after the burden of proving the ingredients of the offence beyond reasonable doubt has been discharged that the question whether the accused has a defence and, if so, the nature and proof of such defence can arise and be considered. In a charge of murder, the burden is on the prosecution to prove the following ingredients beyond reasonable doubt:-

i. that the deceased had died;

ii. that the death of the deceased has resulted from the act of the accused; and

iii. that the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.

See Akinfe v. The State, (1988) 3 NWLR (Part 85) 729; and Ogha v. The State. (1992) 2 NWLR (Part 222) 164.