Sunday Archibong v. The State (1972)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

In charge No. C/52C/71 in the High Court of the Calabar Judicial Division held at Calabar on 10th January, 1972, P. O. E. Bassey, J., convicted the accused person of the murder of Arit Edet Sambo on 5th October, 1970, at Ikang Village, contrary to section 319 (1) of the Criminal Code of the former Eastern Nigeria.

The facts are as follows. One day, at about 3 p.m. in the early afternoon, the accused, a trader living at Archibong Ok on Street, Ikang, Calabar, was visited in his room by the deceased, a married woman whom he described as his trading customer. After both had been together in the room for a while the accused said that the deceased asked for water, after taking which she began to “tremble” and soon fell down suddenly on her left shoulder vomiting as she lay on the floor.

The accused said that he went to the room of his co-tenant, Okon Etim (1st prosecution witness) to invite him to come and see what was happening. The 1st prosecution witness, on the other hand, testified that he earlier saw the deceased and the accused enter the house and that it was on hearing a “commotion” in the accused’s room that he went of his own accord to knock on the door and demand to know the cause.

As there was no answer, he returned to his own room but, when the noise persisted, he went to the accused again and asked him to open the door, which he eventually forced open; he added that he then saw the accused standing naked and the woman lying also naked in bed. The 1st prosecution witness also saw in the room a piece of stick and a basin. The accused denied that either he or the deceased was naked at any time, and explained that when the deceased arrived he was wearing a pair of pants and that the deceased wore a gown and tied a wrapper which she never discarded throughout the period.

The accused said that the deceased, on temporarily regaining her consciousness, tried to lean against the bed and managed to scramble into bed which was across the room. When the woman again began to vomit, he went out again to invite some more of his co-tenants including 3rd prosecution witness; when these came, they said that the deceased was having “epileptic fits” but would not enter. Atim Ada, 2nd prosecution witness, the landlady also testified that, on returning home that day, she saw in the “verandah of my lounge”, which she shared in common with the accused in his adjoining room, a basin containing crayfish, periwinkles, and a stick of fish; she added: “When I looked into accused’s room I saw a woman lying on the ground and accused holding her” and, again, “I observed that sand was spread over part of the room where the woman was lying.

I also saw a piece of stick lying on the floor of the room. The police took away the stick.” The 2nd prosecution witness said that she shouted when she saw the woman on the floor, that people gathered to enquire who the woman was, that as the woman was weak, she, 2nd prosecution witness asked the accused to take her home, that she saw blood coming out of her right ear, and that there was an injury on the right side of the woman’s head. She said that the accused, however, did not take the woman home but, instead, dumped her in the gutter opposite the Salvation Army Church, and said further that “throughout this period the woman did not speak. At about 3 a.m. the police sent word that the woman had died and I went and saw her corpse.”

Adim Asuquo Etim (3rd prosecution witness) also gave evidence that, following the alarm raised by 2nd prosecution witness, he came out of his room and saw the woman sitting in the accused’s room vomiting; he added: “We asked accused what was wrong with the woman and accused said she was from his hometown, we should not worry, he knew what usually worried her. When we persisted accused chased us away. Later at about 6 p.m. I saw accused dumping the woman on the road.”

Edet Sambo (4th prosecution witness) was the deceased’s husband who identified the corpse to the doctor at the Public Mortuary, Calabar, and he too noticed that the deceased had injury on her ear and arm. The investigating police officer, Effiong Edet (5th prosecution witness) said that, when he was on duty at the Ikang Police Station, a case of murder was reported and that, on visiting the scene of the crime along Ikang Road, he saw the deceased with the accused and 3rd prosecution witness; he observed that the deceased was bleeding from her right ear and that there was also an injury on her left arm: “the woman was unconscious but was still breathing. I took the accused to the Ikang Police Station. I removed the woman to the Police Station.” There the accused volunteered a statement (exhibit 1); when 5th prosecution witness later visited the accused’s room he saw basin (exhibit 2), and a piece of wood under the accused’s bed (exhibit 3); the woman later died at the Ikang Police Station around mid-night, and 5th prosecution witness said that on the following morning he conveyed the corpse to the Public Mortuary, Calabar, where an autopsy was performed on her body. The 5th prosecution witness admitted that he found two pieces of wood under the accused’s bed and that it was he who tied them together; on cross-examination he also said: “I noticed from the bed that there was heavy struggle and I also saw excreta on the bed. There was a mat on the bed, but it was hanging and touching the ground.”

The evidence of Ime Lot Udoh (6th prosecution witness), the medical officer who performed the post-mortem on the corpse, was as follows:-

“The body was that of a young adult woman in her early twenties, about 5 feet 2 inches tall with dark hair. On examination there was an abrasion on the palmer aspect of the left wrist. The deceased was bleeding from the right ear. There was also rectal prolapse. Rectal prolapse, in a living person, can be evidence of ‘chronic malnutrition.’

In a dead person it can be the result of anaerobic respiration by intestinal bacteria. This mean the action of germs in the intestines.”

When asked by the learned trial judge whether this could be caused by forced sexual intercourse, the doctor replied:-

“This cannot be caused by forced sexual intercourse. The rectal prolapse, I think, is more likely to have been caused by anaerobic respiration. ”

He then continued with his testimony as follows:-

“On dissection there was bruising of the brain of the right temporal region of the skull.

Death, in my opinion, was due to cerebral contusion caused by blunt injury on the skull.

Abrasion of the palmer aspect of the left wrist could have been caused by a struggle and the deceased rubbing herself against a friction.

The injury to the skull could have been caused by a fall on a hard floor or a blow with a weighty object. Exhibit 3 which you have showed me could have caused such injury.”

The learned trial judge reviewed the evidence of all the prosecution witnesses and, with regard to the question of the use made by the accused of exhibit 3, he found:

“I do not accept the evidence in her answer to the court that 1st prosecution witness told her that he saw the accused use the exhibit 3 on the deceased.”

Later, the learned judge remarked:-

“No doubt there is no direct evidence to show that accused struck deceased blows which resulted in injuries to her brain and skull, but there is no other logical conclusions to be drawn from a situation where the deceased walked into accused’s house hail and hearty only to be carried out with injuries and blood coming out of her ear.”

Nevertheless, the learned trial judge found the accused guilty of murder on the following ground:-

“In my view he used exhibit 3 on her and accused must have realised that the use of exhibit 3 on her was such as was likely to cause the deceased grievous bodily harm.”

From this decision of the learned trial judge the accused appealed to this Court.

Mr. F. O. Akinrele, learned counsel for the appellant, sought and was granted leave to argue before us only the following ground:-

“The learned trial judge erred in law in convicting the appellant of murder when the circumstantial evidence offered does not point irresistibly to murder by the appellant.

Learned counsel argued that, in order to secure the conviction of the appellant, two factors must be established: (a) the cause of death and (b) the cause of death must be referrable to the appellant. He submitted that there was no evidence that the injury in question was due only to the use of a blunt instrument on the deceased; indeed, medical evidence was to the effect that the deceased’s head injury could equally well have been caused by a fall on a hard floor as by the use of something like exhibit 3. The learned trial judge himself found no direct evidence that the accused used exhibit 3, and yet he based himself on a positive assertion that the accused did. We see merit in this contention of the learned counsel.

We also think that the accused should have been cross-examined on the allegation that the deceased had epilepsy, so as to rule out epilepsy as the second of the two possible causes of deceased’s death according to medical evidence, leaving only the possibility that exhibit 3 had been used to injure the deceased. Even in the latter case, evidence must be given that it had been used at all in bringing about the deceased’s death. It was not enough to surmise, as did the learned trial judge, that the accused must have hit the deceased with exhibit 3 in an attempt to have sexual intercourse with her.

The appeal is accordingly allowed, and the conviction is set aside. The appellant is acquitted and discharged.

Other Citation: (1972) LCN/1382(SC)