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.