Peter Sunday Udoh V. The State (1972)

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SIR I. LEWIS, J.S.C 

On the 22nd of March, 1972, we dismissed the appeal of Peter Sunday Udoh against his conviction of murder and sentence of death by Ete, J., on the 29th of October, 1971, in the High Court, Uyo in Charge No. HU/3C/1971 and we now give our reasons for so doing.
On the evening of the 21st of July, 1969, John Akpan Ekpo was shot in his house at Edebon Nsit, Uyo and died early next morning and on the 23rd of July, 1969, the senior medical officer in charge of the Qua Iboe Church Hospital, Etinan, (1st P.W.) performed a post mortem on his body and found:

“There was a huge and ragged cut on the left upper arm. There are also a complete fracture of the left humerus. The heart, lungs, liver and spleen and kidneys were normal. I certified the cause of death, in my opinion, to be due to profuse bleeding from the injured sites. In my opinion, the injuries could have been caused by gun-shots.”
and under cross-examination he confirmed that the injuries could only have been caused by gun shots and nothing else.
Only one person saw the incident and that was the deceased’s daughter (4th P.W.) who was a trader and said in her evidence:

“I was asleep in my room. Then I heard some gun-shots. I became afraid and left my room and went to my father’s room. As I was there I saw a person push open my father’s bedroom door and enter. My father flashed his torchlight and I saw a man in the light of the torch. The man I saw was Peter Sunday Udo – 1st accused. I knew the 1st accused before that night, and I knew his name. The 1st accused knocked off the torchlight from my father’s hand. I held my father by the shoulder to push him away so that he might find a place to hide, but the 1st accused who had a gun with him shot at both of us. A bullet caught me on the right hand and and passed through it and caught my father on his left shoulder and passed through to the armpit, and on to the wall. My father fell down and shouted, ‘Peter Sunday, are you the person doing this to me’ Then my father spoke to me and said Peter Sunday had joined others to kill him and that he was going to die. I dropped dazed to the floor. Many other persons entered the room and ransacked it and removed things. At dawn I noticed blood in the room and observed that my father’s articles of clothing and money had been removed. My father died not long after the intruders left. When I saw the 1st accused by the light of the torch he wore army uniform.” and under cross-examination it was put to her:

“I put it to you that with what was going on, your father had no time to flash his torchlight.”

to which she answered:

“He held it in his hand. We stood aside when they were pushing the door to open it. The door was opened when the bolt was unhooked. Firing was going on all the time outside and inside the house.”
The 3rd P.W., a preacher whose uncle was the deceased, said that he had left the deceased after a discussion about 9 p.m. on the 21st of July, 1969, and at about 11p.m., head voices and gun shots and got out of bed and saw the deceased rush from his bedroom to the parlour. Voices shouted at the deceased to open the door and people brokedown the door of his uncle’s house and entered and he heard shots but it was not until an hour later when all was quiet that he went to look and then found his uncle with a wound under the left armpit and though he and other tried to stop the bleeding they could not and his uncle died about 1.50 a.m. on the 22nd of July, 1969. The 3rd P. W. also said that he noticed in his uncle’s room that articles of clothing had been removed and his suitcase had been opened and things removed from it and he (3rd P.W.) found some empty bullet shells in the room. The 6th P.W. searched the home of the father (5th P.W.) of the accused on the 22nd of July, 1969, and found there a Baretta rifle with ten live rounds of ammunition in a magazine and he took possession of it together with the empty bullet shells found in the deceased’s room by the 3rd P.W. and sent them to the 2nd P.W., an Assistant Commissioner of Police who was the Police Force Ballistician. The 2nd P.W. after testing found that the spent bullets in the deceased’s room could have been fired from that particular Baretta rifle found in the home of the father (5th P.W.) of the accused as the markings were identical. The accused made a statement (Exhibit J) in which he said inter alia:-

“My master Lt. Umoh and myself visited our villages, Afaha Offiong and Edebom Nsit respectively on 18/7/69. We stayed in our villages for three days only, and on the 21/7/69, my master Lt. Umoh and myself left our villages at about 7 a.m. for Calabar. Before we left our place for Calabar my master Lt. Umoh instructed me to leave my rifle and some live ammunition in my father’s house at Edebom, and I did so. I cannot remember the number of the ammunition I left in my rifle.” and then went on to say that he left the village on the 21st of July; 1969, for Calabar with his master, Lt. Umoh.

The accused’s evidence at the trial was a denial that he was ever in the deceased house on the night in question or that he  had killed  him, then he adopted the statement (Exhibit J) which he had earlier made though in his evidence at the trial he said that the rifle was not his but was given to him  by Lt. Umoh to keep at his father’s house. He maintained in his evidence that though he visited his home on the 21st of July, 1969, he returned  to Lt. Umoh’s home at Afaha Offiong that same day and that they then went on together to Calabar. The accused did not call Lt. Umoh who it was said could not be found, and he could give no reason why the 4th P.W. should lie against him.

The learned trial Judge carefully considered the accused’s alibi that he was not in his own village on the night of the 21st July, 1969, but rejected it and after further warning himself that the 4th P.W. was the daughter of the deceased so that her evidence must be carefully scrutinized in case she was biased, he accepted her evidence as to recognising the accused as the person who shot her father, and found that it was corroborated by the fact that the spent catridges in the deceased’s room were found to have been fired from the rifle which was found at the house of the father of the accused and which the accused in his statement said was his though later at his trial when he adopted that statement he maintained that it was Lt. Umoh’s rifle.

The case certainly turned on the vital evidence of the daughter of the deceased (4th P.W.) but after the careful warning that the learned trial Judge gave himself we see no reason from the record why he should not have believed her and there has been no miscarriage of justice in his so doing.

We accordingly were satisfied that he was entitled to have come to the conclusion that he did on the evidence before him that the accused was the person who shot and killed the deceased.

Moreover, Mr. Akinrele on behalf of the accused informed us that he was unable to find anything to urge on his behalf. We accordingly dismissed the appeal.

SC.340/1971