Patrick Efe & 6 Ors V. The State (1976)

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BELLO, JSC

The seven appellants were convicted on a charge of murder of Ejoor Owah and were sentenced to death on 12th June, 1975, in the High Court, Ughelli. We dismissed their appeal and affirmed their convictions and sentences on 23rd September, 1976. We now state our reasons.

The facts of the case found by the trial Judge are as follows: On 26th June, 1973, between 3.00 to 4.00 p.m., Ejoor Owah, a child aged 9 years, in company of his senior brother (P.W.4) and his two senior sisters (P.W.5) and (P.W.6) went to the bush to hunt for frogs. While returning home, the children were waylaid by the 1st, 2nd 3rd, 4th and 7th appellants who conjointly emerged from the bush onto Ikpe-Idheze road. The 7th appellant, who was holding a gun, suddenly seized and carried him away into the bush while the child was crying.

Each of the 1st, 2nd and 4th appellants was armed with a matchet and the 3rd appellant had a long dane gun. When Ejoor’s brother and sisters asked the 7th appellant why he was taking Ejoor into the bush, the 1st, 2nd and 4th appellant raised their matchets in a threatening manner and the 3rd appellant pointed his gun at the brother and sisters who became frightened and ran home where they made a report to their father.    Upon the receipt of the report, their father was not unduly worried because the 7th appellant was his cousin and he thought Ejoor was in safe company.

However, he became worried when after sometime Ejoor had not returned home. He went into the bush with the children who showed him the place where Ejoor was kidnapped and from there he proceeded to a hut in the bush where the 7th appellant was then sojourning in self-imposed exile. When the father approached the hut, he shouted that he had come to search for Ejoor. The 7th appellant came out of the hut and, aiming his short gun of the army type at the father, he threatened to shoot the father, if he dared come to the hut. The father took to his heels and went back to the village where he sought the aid of the villagers who accompanied him back to the hut but the 7th appellant was no longer there. The villagers search for Ejoor in the bush until after they had received a report from Efemor (P.W.7) and Samson (P.W.8) when the search was called off that night.

The evidence of P.W.7 and P.W.8 in substance is that on the day in question between 6.30 p.m. and 7.00 p.m. both witnesses saw the car of the 7th appellant being driven by the 7th appellant from the direction of Okpe village towards Ofagbe direction; that P.W.7 waved the car to stop and it slowed down and the witness had conversation with the 7th appellant who informed the witness that he was going to Oleh. Both witnesses testified that all the appellants were in the car and both saw Ejoor, without any clothes on him except a wrapper tied around his neck, sitting on the laps of the 6th appellant who sat by the side of the driver, the 7th appellant; that when P.W.6 asked the 7th appellant where he was taking Ejoor, the 7th appellant replied by asking the witness why the witness asked that question when the witness knew that Ejoor was a relation of the 7th appellant; and that after the conversation the car drove away with Ejoor and all the appellants in it.    The trial Judge further found that on 7th July, 1973, two police officers (P.W.2 and P.W.3) searched the hut of the 7th appellant and found therein a pair of shorts which were identified by witnesses as being the shorts Ejoor was wearing at the time he was kidnapped. The police also found 3 rounds of .303 ammunition, 3 rounds of revolver ammunition and 2 heads of .303 spent ammunition in the hut.

Other findings made by the trial Judge are: that since Ejoor was abducted by the appellants on 26th June, 1973, he has not been found or heard of in spite of the thorough search for him; that there was no question of mistaken identity of the appellants by the prosecution witnesses, who identified the appellants, as those witnesses are natives of Okpe as the appellant are and the witnesses are relations of some of the appellants whom they knew very well. The trial Judge rejected the defence of each of the appellants which was a denial, based on alibi, of having committed the offence. In convicting the appellants, the trial Judge considered the decisions in Rex v. Sala and Sati 4 WACA 10 and R v. Michael Onufrejczyk 39 Cr. App. R 1 and then stated in his judgment:   “There is no direct evidence of the killing of the said Ejoor Owah and his dead body has not been found. The only irresistible presumption which can be drawn from the very strong circumstantial evidence before me is that the accused persons have killed and disposed of the child Ejoor Owah. There is no other reasonable presumption which fits the facts of this sad and heart-rending case.    I am satisfied beyond all reasonable doubt on the evidence before me that the accused persons killed Ejoor Owah with intent to kill him and that they disposed of his body after killing him.”

The only ground of appeal argued on behalf of all the appellants is the general ground that the judgment of the trial court is unreasonable and cannot be supported having regard to the evidence. Mr. Ajayi, counsel for the appellants, referred us to the evidence of P.W.1 who admitted under cross-examination that he did not inform the police, when he lodged complaint of Ejoor’s kidnapping, that he, P.W.1, had received a report from P.W.7 and P.W.8 that the two witnesses had seen Ejoor in company of the appellants in the evening of the day in question. Counsel contended that such an omission goes to the credibility of the witness, P.W.1.    With regard to the finding by the trial Judge that the villagers continued to search for Ejoor for three days despite the fact that the villagers had been told by P.W.7 and P.W.8 that Ejoor had been driven to Oleh by the appellants, learned counsel contended that the trial Judge ought to have adverted his mind to the only inference from that finding.

The inference according to counsel is, either P.W.7 and P.W.8 had not made such a report or, if they had done so, the villagers had not believed the report. The counsel submitted that had the trial Judge so adverted his mind, he might have great doubt in the case against the appellants. As to the fact that the senior brother and sisters of Ejoor knew the appellants very well, counsel submitted that it is most unlikely that the appellants would kidnap Ejoor in their presence. Counsel also made a lot of fuss over the fact that P.W.7 and P.W.8 made statements to the police four months after the incidents.

All the foregoing points taken by counsel relate to credibility of the prosecution witnesses which is a matter within the province of the trial Judge who has the singular advantage of listening to the witnesses, watching their performance, observing their demeanor and  thereby assessing their credibility. It is not our function on appeal to review the evidence and make our own evaluation thereof. It is trite law that if there was evidence before the trial Judge from which he could reasonably have come to the conclusion to which he did, our duty is to uphold his decision unless there is such error in the trial of such a major character which would amount to miscarriage of justice: See Michael Omisade & Ors. v. The Queen (1964) 1 All NLR 233 at 256.    

In the case in hand the trial Judge believed the prosecution witnesses and made his findings of facts, which we have indicated earlier on, from their evidence. We think there is sufficient evidence supporting his findings of facts and the learned counsel has not pointed to us such major error which it can be said would amount to miscarriage of justice, if the verdict should stand.    The learned counsel also complained that the trial Judge did not consider the defence of the appellants separately. We are unable to agree with counsel. It is sufficient to point out that the judgment of the trial Judge consists of 29 pages and the Judge devoted 10 of those pages to the defence of the appellants.

He separately, and in detail, considered the defence of each appellant and the submissions of their counsel, who represented them at the trial, before rejecting the defence of each appellant.    Although counsel has not challenged the inference made by the trial Judge that Ejoor was dead and was murdered by all the appellants, we think it is pertinent to expatiate upon it. The evidence relating to the violent manner Ejoor was seized and carried away by the 7th appellant in concert with 1st, 2nd, 3rd and 4th appellants and the threat of death offered to his brother and sisters at the time of his abduction indicates a concerted intention to use violence by 1st, 2nd, 3rd, 4th and 7th appellants of such a nature as to justify the inference made by the trial Judge that the 1st, 2nd, 3rd, 4th and 7th appellants had formed a common intention to kill Ejoor and that the killing of Ejoor in circumstances amounting to murder was a probable consequence of the prosecution of their common intention. In respect of the 5th and 6th appellants, we think that, having regard to the circumstances of the case, the evidence also justifies the trial Judge to infer, as he did, that 5th and 6th appellants joined that common intention and participated conjointly with the other appellants in the prosecution of the common

Other Citation: (1976) LCN/2201(SC)