Stephen Ukorah V. The State (1977)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C.

We now give our reasons for allowing this appeal on the 24th March, 1977.  In the High Court of Bendel State holden at Warri, the appellant was convicted and sentenced to death on the 30th July, 1976 for the murder of Raphael Okafor on the 17th day of August, 1973, at Ojobo Village in Western Ijaw.Briefly, the case for the prosecution is as follows:-  The deceased was a servant to Paul Okafor (PW.1) who had come to Ojobo from his hometown in the then East Central State to understudy the appellant in the trade of palm-wine tapping and distillation  of local gin.  

It was originally agreed between the appellant and PW.1 (Paul Okafor) that the period of “apprenticeship” would be nine months, during which he (PW.1) would not only act as servant of the appellant but would also render account, and make available to the appellant a substantial part, of all sales realised by him from all palm-wine tapped and collected, as well as from all gin distilled, by him (PW.1).  Paul Okafor (PW.1) duly served his period of apprenticeship and at the end of the first period of 9 months, he (PW.1) had to serve for a further period of three months on the insistence of the appellant who refused to give him a “discharge”.  At the end of the extended period the appellant, once again refused to give a “discharge” to P.W.1 and asked that one of the two servants of P.W.1 (of whom the deceased was one) be indentured to him in place of PW.1; whereupon a violent disagreement ensued between the appellant and PW.1.  Following a report by the appellant of this disagreement to the local community of their kinsmen (i.e. the Ibo Community of Ojobo Village) some ineffective and unsuccessful attempts were made by their kinsmen to resolve their differences.

The appellant insisted that P.W.1 must either provide him with one of his servant or leave Ojobo village. Thereafter, the relationship between PW.1 and the appellant deteriorated and following reports made to the police by the appellant, PW.1 was arrested by the police on a complaint which clearly pertained to the civil (not criminal) law. The appellant has complained that PW.1 was owing him some amount of money; and at his request the police granted bail to PW.1 in order that he may go to his hometown and provide himself with money with which to pay the debt.  It was during his absence that the deceased was killed; and it was P.W.2 (Joachim Ekuobi) – the star witness for the prosecution – who gave to P.W.1 the “eye-witness” account of events leading to the death of the deceased.

According to Joachim Ekuobi (PW.2), the appellant and two other persons came to the house of PW.1 (where the witness PW.2 and the deceased also lived) at about 10 p.m. on the 17th day of August, 1973, and inquired of PW.1 and was told by PW.2 that PW.1 had gone to his hometown. The appellant said that he and PW.1 had agreed that PW.1 should leave Ojobo Village, and requested that PW.2 and the deceased who, at the material time, were busy distilling gin should  leave the premises immediately. Their request that they should be allowed to remain on the premises until the return, a few days later, of PW.1 was refused by the appellant who immediately invited this associates to embark on the collection, with a view to removal, of the various instruments and paraphernalia (e.g. drums, empty tins, brewing pots, etc.) for the distillation of gin in the premises; and when P.W.2 managed to escape into a nearby bush while the appellant was “beating the deceased with his fists”. We think, at this stage, we should set down in detail parts of the evidence of Joachim Ekwuobi which read:

“… We tried to stop him from packing the pots. He (the appellant) got hold of Raphael Okafor (the deceased) and started to beat him up with his fists.  While he was doing this, the other two men began to pack the pots …I struggled out of the other man’s grip and tried to rescue Raphael but I was unable to do so because my right hand had been injured.

I eventually escaped and hid in a nearby bush.  I shouted for help but no one came. I continued to hear Raphael crying where I was hiding … I was afraid and so I was quiet where I hid.  I stayed in my hiding place till 5 a.m. the following morning.  I heard Raphael’s voice for about an hour after I ran away to hide and thereafter I did not hear his voice any more from my hiding  place I found my way to a place called Osuapele Creek where I saw one Ijaw woman …and begged her to take me to Raphael Nkekudu’s place. She helped me.  I told Raphael what happened and both of us went to the police station where I lodged a report …so on 19th August, in the morning, a policemen went with us to the bush.  When we got to the bush we found the corpse of Raphael Okafor face downwards around the spot where he was attacked by the accused (i.e. the appellant).  This was at the verandah of the hut. The back of Raphael’s neck was swollen and there was a deep long cut in the back. The body had been washed by the rain and there was no blood in the wound …”
(Underlining and brackets supplied)

Under cross-examination, this witness said that at the police post he reported that “the accused and two people came to attack” them. In his evidence, however, Police Constable, Sanchol Digba (PW.3) under cross-examination testified as follows:

“When the 2nd prosecution witness (i.e. Joachim Ekwuobi) came to the Police Post he was weeping saying “My brother don die o, my brother don die o”.  I asked him to cool down and get seated.  I then asked him what happened.  “He said one Stephen and two men come fight us in the bush at our hut and killed Raphael Okafor”.  The 2nd prosecution witness also gave the surname of Stephen as Ukorah”.
(Underlining and brackets supplied)
This report was made before the witness and the Police authorities went to the scene where the corpse of the deceased was discovered.

There was no evidence in this case as to the cause of death because there was no post mortem examination of the body of the deceased.  In his testimony the appellant denied the story that he went to the house of PW.1 and attacked PW.2 and the deceased; he claimed that he was in his house throughout the night of 17th August, 1973.

In a considered judgment the learned trial Judge (Uwaifo, J.) reviewed the entire evidence before him and found the appellant guilty of the offence of murder of Raphael Okafor.  Parts of his judgment read:-

“I have no doubt in my mind that the deceased died between 17th and 18th August 1973.  This together with the quest on whether he died as a result of the beating or violence he received on the 17th of August are matters of inference … In the present case I recognise there is no medical evidence.  Also the direct evidence as to how the deceased met his death is not complete. But if the evidence of the 2nd P.W. is believed, I do not think in the least that these are matters which will make the prosecution case less cogent …. If the evidence of the 2nd P.W. is believed, and I do believe it, it goes further to show that the deceased also knew the attacker.  The questions which must be asked are if the deceased was later found dead in those circumstances, as indeed he was, did he die from natural causes  If not, was he murdered  I have no doubt that he was. Who, therefore is the murderer  If this is a further aspect on which inference will be drawn from the circumstances, then I think that the inference is unmistakable that it was the accused who murdered the deceased.  The inference is irresistible, I regard it as conclusive, having already accepted that it was the accused who attacked him …..
There is no doubt therefore from the evidence that deceased died at the hands of the accused – at least one can say from the circumstances that he died as a result of the beating or the violence …. (Underlining supplied).

In the course of his judgment the learned trial Judge referred to a number of cases in which the court of trial in murder charges drew inferences as to the cause of death from circumstantial evidence in the absence or lack of medical evidence on the cause of death. Among the cases he referred to on this issue are R. v. Onufrejezyk (1955) 1 Q.B. 388 and Kato Dan Amadu (1956)1 FSC 25.

We are, however, unable to agree with the underlined statements of the learned trial Judge in the passage of his judgment immediately set out above.

“Circumstantial evidence is as good as, sometimes better than, any other sort of evidence, and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is established to the satisfaction of the jury they may well and properly act upon such circumstantial evidence.”  (Underlining supplied)

(Humphrey, J., in Rex v. Chumg and Miao, cited in Wills on Circumstantial Evidence, Seventh Edition (1936) p. 324). And, again, the learned author of Wills on Circumstantial Evidence on the same page makes reference to a direction of the court (and to which, we think, we should draw attention, with approval) in the case of Emperor v. Browning 39 I.C. 322 where it was stated:

“In a case in which there is no direct evidence against the prisoner but only the kind of evidence that is called circumstantial, you have a two-fold task; you must first make up your minds as to what portions of the circumstantial evidence have been established, and then when you have got that quite clear, you must ask yourselves, is this sufficient proof  It is not sufficient to say, ‘if the accused is not the murderer, I know of no one who is.  There is some evidence against him, and none against anyone else. Therefore, I will find him guilty’.  Such a line of reasoning as this is unsound, for experience shows that crimes are often committed by persons unknown who have succeeded in wholly covering their tracks

….(Underlining supplied)

We would like to point out that in the cases of Onufrejezyk (supra) and Kato Dan Amadu (supra) there were other facts which point irresistibly to the accused person (and no one else) in each of the cases being the culprit (i.e. the murderer).  In the case in hand the learned trial Judge seemed to have overlooked the following facts:

(i) that the evidence is that the appellant attacked the deceased and beat him up with his bare fists.

(ii) there is no evidence that the appellant or any of his associates was armed that evening with a matchet  or any sharp instrument (or any other kind of instrument capable of inflicting a cut on the human body)

(iii) that when well over some thirty hours since “escaping into a nearby bush” the P.W.2 (Joachim Ekwuobi) re-appeared at the scene of the crime (the village hut in which he and the deceased lived) he found the deceased already dead with “a long deep cut” at the back of the body.

(iv) that there is no evidence as to (i) the cause of death and (ii) whether the “long deep cut” on the body of the deceased was produced ante mortem or post mortem; for “In the later event the existence of such a cut may be irrelevant if, for instance, the cause of death was decidedly a result of a shock from a blow of the fist or asphyxia; and
(v)  that at the Police Post the star witness Joachim Ekwuobi had already reported a case of murder before he and the police officer saw the corpse and he knew that the deceased had died.”

From the foregoing facts it is, we think, pretty clear that the circumstances surrounding the death of the deceased given in evidence when accepted (as, indeed, they were by the trial court) do not make such a “complete and unbroken chain of evidence” as would justify a jury (or a trial court) in coming to the irresistible conclusion that the prisoner at the bar (in this case, the appellant) and no one else was the murderer. The case of Onufrejezyk (supra) is quite often misunderstood and, in the instant case, the analogy drawn by the trial court from that case is somewhat inapposite; that case shows that the fact of death is provable by circumstantial evidence notwithstanding that neither the body nor any trace of the body has been found and that the defendant has made no confession of any participation in the crime.  The issue here is different; there is no question of the body not having been found.  What has to be established is the link between the appellant (or his action) with the death of the deceased; and in the absence of clear unequivocal evidence (1) that the deceased died directly from the assault by the appellant on him or (2) that the appellant was armed with any sharp instrument during the assault on the deceased, it becomes necessary to have medical evidence on the cause of death so as to eliminate the problem raised by the existence of  “a long deep cut” on the body of the deceased.  And until that problem is eliminated we are of the firm view that it must be very unsafe to convict for murder, as charged, on this circumstantial evidence available. The Romans had a maxim that it is better for a guilty person to go unpunished than for an innocent one to be condemned, and this maxim later re-echoed with greater emphasis in the mouth of Sir Edward Seymour speaking on behalf of Fenwick upon a Bill of Attainder in 1696 when he said:

“I am of the same opinion with the Roman, whom, in the case of Cataline, declared, he had rather ten guilty persons should escape, than one innocent should suffer”.

(See also Hale’s Pleas of the Crown ii at 289).

At the close of arguments in this appeal we were satisfied that the circumstantial evidence in these proceedings fall far short of the standard required to justify a conviction for murder as charged; and accordingly, the appeal was allowed and the judgment of the trial court together with the sentence of death on the appellant thereon recorded on 30th July, 1976, was set aside.

SC.276/1976