Inyang Onah v. The State (1977)

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IDIGBE, J.S.C 

The appellant was on the 13th day of January 1976 convicted for murder and sentenced to death by the high court of South Eastern (now Cross River) State (Dan Eno J.). The case for the prosecution is that the deceased Ebit Otai, while tapping wine from a palm tree was killed by a gun shot fired by the appellant, the facts adduced by the prosecution in support of their case may be summarised thus: on the 25th December, 1975 P.W.2 (Ojah Osim), the deceased and one other person who, as the record later indicates, is Ekpenyong Assim (P.W.3) left their village, Akpervuni-Akamkpa, about 4.00 p.m. to collect palm wine from palm trees in a nearby bush; and while severally engaged in that business P.W. 2 heard a gun shot which was immediately followed by a cry from a voice he identified as that of the deceased.

He ran toward the direction of the cry and, at the base of a nearby palm tree, he found the deceased in a sitting position, clutching his “climbing ropes” around him while blood oozed from wounds on his body; he was already dead. A report of the post mortem examination on the body of the deceased (Exhibit 1) confirmed that the deceased died as a result of “perforation of the heart and right lung by small pellets”.

In his written statement to the police, (Exhibit 2A), the appellant stated: “I saw a bird on top of a tree I set my gun and shot the bird and the bullets (i.e. pellets) of the gun which I fired passed to meet Ebit Otai on top of a palm tree that he tapped wine”. There was also evidence that when, following a report on the death of the deceased made to the Head Chief of the Village (Akpervuni-Akamkpa), a meeting of the villagers was summoned on the same day (25th December 1975) the appellant was absent and could not be found that night inspite of the efforts of a search party organised for the purpose.

Testifying in his defence the appellant said that he was returning home from the bush whither he had been from 6.00 a.m. until it was “dark”, when he saw a “big bird on top of a tree and fired at it. Thereafter he heard a cry from a voice he recognized as that of a human being. On investigation he found that pellets from his gun had “caught the deceased” . Although in his testimony he had said that he had no malice against the deceased and regarded him as “a father”, parts of his written statement to the police read as follows:

“Before the incident, Ebit Otai has done something that made me annoyed with him, that is on this December, 1974 he took my palm tree that I wanted to tap palm wine with open eye from me secondly he came and packed about 17 roofing mats in my house and refused to pay me that money”. In his evidence the appellant also stated: “I did not see anybody when I fired. If I had aimed at the deceased the climbing ropes he used would have been affected. The deceased is married to my sister . . . I never had a case with him and no quarrel. “There is nobody in the village to say I ever had any dispute with the deceased. I was on friendly (terms) with the deceased. I used to go to work for him on his farm”.

In the course of his judgement the learned trial judge after reviewing the evidence before him made the following observations:

“For the State Mr Yellow-Duke contended that the case of the prosecution has been proved without any doubt. The accused he said has confessed to the offence in his statement (Exh. 2), and in Exh. 2 the accused has given his reason for killing the deceased. This is evidence of his intent and malice. Other traits of conduct on the part of the accused after the act, such as trying at the trial to resile from his statement on Exh.2; hiding the gun in the bush after the act, telling a lie that he was going hunting that day when P. W.2 said both he and the accused left the house that day to tap wine and they only parted company in the bush.

The fact that P.W.2 saw no gun with the accused shows the accused had a design by which he hid the gun. All these are to be regarded as acts corroborative and confirmatory of the accused’s confession that he indeed killed the deceased on the authority of Ridley v. Sykes 5 C.A.R. 236 at 237 the accused deserves a conviction for murder. See Kanu v The King 14 W.A.C.A. 30, upon a consideration of the whole evidence led in this case, I am of the view that the contention of the learned counsel for the prosecution has merit. There is no eye-witness to the act of killing. It is the accused himself who told the police in Exh. 2, and later in his evidence in defence that he killed the deceased by shooting at him with Exh. 5 . . . As the learned counsel for the prosecution has, rightly, in my view, said the conduct of the accused in the circumstances of the case tells very much against him. He hid the gun in he bush before and after the act. He gave the motive for his act in Exh. 2 which he later tried to deny. He did not return to the village until he was looked for . . . “.

Following the observations in the passage of the Judgement, set out above, the learned trial Judge found the appellant guilty of, and convicted’ him for, the capital offence of murder. This appeal is from the said Judgement.

The Principal ground of appeal filed and argued in support of this appeal reads:

“The decision is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence”.

The sum of the argument of learned counsel for the appellant is that the learned trial Judge not only misunderstood, but failed to evaluate adequately the evidence before him. The learned trial Judge, she contended, was of the view, albeit erroneously, that the deceased, P. W.2 and the appellant set out together from their village for the bush on that fateful day and, that on leaving the village for the bush the appellant although he had a gun with him, the same was carefully hidden away. Counsel further contended that on this erroneous view of the evidence the learned trial Judge readily came to the conclusion that not only did the appellant form a pre-conceived intention to kill the deceased, he had a motive for doing so.

The learned trial Judge erred in his understanding of Exhibit 2 (the written statement to the Police by the appellant), which he regarded as a “confessional statement” and the inference he drew from (1) the conduct of the appellant (in staying away from the village overnight on the fateful day) and (2) that portion of Exhibit 2 which referred to a disagreement, on December, 1974, between the deceased and the appellant, over a palm tree, is not, in the circumstances of this case, the only and irresistible one. Finally, it was submitted that there is no certainty that the learned trial Judge would have reached the same conclusion had he properly appraised the evidence before him.

We think there is considerable merit in the above contentions of learned counsel for the appellant. In the first place there is no evidence that the appellant and P.W.2 as well as the deceased set out together for the bush from their village, nor is there any positive evidence that he (the appellant) hid or kept away from the knowledge of his colleagues (the deceased inclusive) the lethal weapon (in this case the gun – Exh. 5) which he intended to use in execution of his preconceived and malicious intention. Had the learned trial Judge not formed the view, albeit erroneously, that the deceased left the village together with P. W.2 and the appellant, he most certainly would not have drawn the ready but hasty inference from the evidence of P.W.2 (which was to the effect that they all left the village, not for a hunting expedition but, for palm wine collection) that the accused lied when he told the police (in Exh. 2) and the court in his testimony, that he went on a hunting expedition on 25/12/75. Again, while is true that in Exh. 2 the appellant supplied facts (and here, we refer to that portion of Exh. 2 which disclosed a disagreement in December 1974 between the deceased and the appellant over palm wine collection from a particular palm tree) which are capable of the inference that the appellant was, prior to 25th December, 1975 (the fateful day), maliciously disposed to the deceased such inference, however, is not necessarily the only one to be drawn from those facts nor the irresistible one, in the face of other unchallenged evidence before the Court and some of these are the appellant’s unchallenged evidence that the deceased’s wife is his (appellant’s) sister and (2) that they (appellant’s sister and the deceased) were prior to 25th December, 1975, still living together as husband and wife, and (3) he always regarded and on 25th December 1975 still regarded, the deceased as “a father” and (4) that “there is nobody in the village to say I ever had any dispute with the deceased. I used to work for him on his farm.

” In passing we must observe that the action of the deceased in staying overnight in the bush instead of returning to the village in the circumstances of this case is certainly equivocal. While in some circumstances it could lead to an inference of guilty mind and possibly malicious intent it is capable in other circumstances (such as the present) of the inference that overwhelmed with the magnitude of his error of judgement (in taking a human being for a bird in broad daylight) the appellant may have decided to stay away from an irate group of villagers which would most certainly await him. Finally we agree with learned counsel for the appellant that Exh 2 cannot by any stretch of imagination be regarded as a “confessional statement”, and it is certainly not a confession or admission by the appellant of the offence with which he was charged. In Exh. 2 the appellant told the police that he saw a bird on the top of a tree, fired at the bird but the pellets from his gun (or cartridge in the gun) came in contact with the deceased. At the risk of being considered unduly repetitive we will once again set out the erroneous passage in the Judgement of the lower Court in the hope the points we have made above will be underscored; and that passage reads:

For the State Mr. Yellow-Duke contended that the case of the Prosecution has been proved without any doubt.

“The accused he (i.e. learned counsel for the prosecution) said has confessed to the offence in his statement Exh. 2, and in Exh.2 the accused has given his reason for killing the deceased. This is evidence of his intent and malice. Other traits of his conduct on the part of the accused after the act, such as trying at the trial to resile from his statement in Exh. 2; hiding of the gun in the bush after the act, telling lie that he was going hunting that day when P. W.2 said both he and the accused left the house that day to tap wine . . . The fact that P . W. 2 saw no gun with the accused “shows the accused had a design by which he hid the gun. All these are to be regarded as corroborative and confirmatory of the accused’s confession that he indeed killed the deceased. . . Upon a consideration of the whole evidence led in this case, I am of the view that the contention of the learned counsel for the prosecution has merit . . . There is no eye witness to the act of killing. It is the accused himself who told the Police in Exh. 2 and later in his evidence . . . that he killed the deceased by shooting at him with Exh. 5 . . . ”

We are satisfied that both the submission of learned counsel for the Prosecution set out in the passage above and the findings of the learned trial Judge thereon and on which he based his conviction are clearly erroneous.

The question in this appeal is whether it has been proved that the action of the appellant comes under any of the provisions of any of the sub-sections of Section 316 of the Criminal Code Cap 30 of the 1963 Edition of the Laws of the Eastern Region of Nigeria applicable in the former South Eastern (now, Cross River) State Obviously the answer is to be found in Exh. 2 and it is clear that the prosecution did not succeed in bringing the action of the appellant within the provisions of Sec. 316 aforesaid.

The intention of the appellant was clearly to discharge Exh. 5 (his gun) on a bird which he claimed to have perched on a palm tree at the time. If, as it does appear from the evidence, he failed to exercise sufficient care and consequently failed to observe that there was a human being on the palm tree aforesaid, or near the bird he claimed to have seen (if indeed there was such a bird) then it seems to us that his action comes clearly within the purview of Section 317 of Cap 30 aforesaid. The lower Court failed to direct its mind on this aspect of the law and consequently came to an erroneous judgement. We are satisfied that the lower Court was wrong in convicting for the offence of murder. The incident, however, occurred at 4.00 p.m. (in day light) and on the evidence the appellant discharged his gun at an object not as a result of mere carelessness but in complete and culpable disregard of his legal duty – to take care in circumstances surrounding the incident. We are satisfied that he is guilty of an offence under Section 317 of the Criminal Code.

This appeal therefore succeeds and the judgement of the High Court of South Eastern (now, Cross River) State holden at Calabar in charge No. C/17C/1975 dated the 13th day of January 1976, together with the order for conviction and sentence of death on the appellant thereon, is hereby set aside and in substitution therefore it is ordered that a conviction for the offence of manslaughter of Ebit Otai be entered and the appellant sentenced to a term of imprisonment for three Years I.H.L. effective from the 13th day of January, 1976; and this shall be the Judgement of the Court.

SC.73/76