Sunday Ubom (Dead) & Ors V. The State (1972)
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Parties
- SUNDAY UBOM (dead)
2. UDO UDO AMAH
3. EFFIOM UDO EKPO
4. UDO AMA EKPO NKWO
5. OBO ADIAHA IKPOKPOK Appellant(s)
AND
THE STATE Respondent(s)
A. FATAYI-WILLIAMS, J.S.C
In the High Court at Uyo, the five accused persons were charged with murder contrary to Section 319 of the Criminal Code of the South- Eastern State. The particulars of offence stated that on the 18th day of December, 1969, at the Ute Etok/lkot Asute Swamp, Opobo, they murdered one Udo Udo Ekpo.
The first accused was reported dead before the trial was concluded. The remaining four accused persons were, however, found guilty of the offence on 9th February, 1972, and sentenced to death. Their appeals to this Court against their convictions were dismissed on 28th September, 1972, and we now give our reasons for doing so.
Briefly stated, the case for the prosecution is this. At about 7 a.m. on 18th December, 1969, Okon Nung Nung (P.W.3) went to his father’s swamp, called Mbat Udo Obobom, at Ute Etok to tap palmwine.
He was accompanied by Udo Udo Ekpo, the deceased. On reaching the swamp, P.W.3 climbed up a palmtree while the deceased went on to another part of the swamp. From where he was on the palm-tree, P.W.3 saw someone cut a stick and threw it at him. Two others joined this person and all the three of them, whom he then identified as the 1st, 3rd, and 5th accused, continued to throw sticks at him. The 3rd P.W. shouted at them and then came down from the tree. The three of them set upon him and beat him up.
One of them said that he (P.W.3) had been warned not to tap palmwine on any of the palmtrees in the swamp but that he would not heed the warning. Meanwhile, P.W.3 continued to shout. As a result, the deceased came to P.W.3 to find out what was happening. On seeing the three accused persons, the deceased asked who they were.
The 1st accused thereupon advised his companions to leave the 3rd P.W. alone and that the deceased who was the bigger of the two men should be killed instead, so that the consequences might be more painful to the Ute Etok villagers. The 1st, 3rd and 5th accused persons then left the 3rd P.W. and went over to where the deceased was and started to beat him up there. They were eventually joined by the 2nd and 4th accused persons and another man named Nka Nka. All six of them set upon the deceased and beat him up. PW.3 saw the 5th accused strike the deceased with a matchet followed by the 2nd accused. Seeing this, the 3rd P.W ran and hid in the bush nearby. The deceased was all the while shouting for help. After a while, the shouting ceased; there was silence and the six assailants then left. The 3rd P.W then emerged from where he was hiding and went to see the deceased whom he found lying on the ground. He spoke to the deceased but he did not answer him. Although his eyes were shut, the deceased was then still alive.
The 3rd P.W then left the deceased and went and reported what has happened to one Akpan Atukpan, their village chief (2nd P.W) who advised him to go and notify the family of the deceased while he himself sent for the police. The relations of the deceased arrived around the same time as the police and the 2nd P.W advised them to go and bring the deceased from the swamp. The deceased was still alive when he was brought to the village by his people. One of the policemen, P.C. Francis Edem (P.W.7), asked the deceased what had happened and he replied that some persons had beaten him up and mentioned certain names. The deceased died soon after giving this information to the police.
The body of the deceased was then taken to the Opobo General Hospital where Dr. Ime Lot Udo (P.W.1) performed the post-mortem examination on it. The doctor found a knife cut about six inches long on the skin of the right leg with fracture on the tibia and fibula. There were bruises all over the left leg. There were also bruises on the left temporo-frontal region of the skull. He certified the cause of death to be due to massive haemorrhage and shock occasioned by the injuries which he has described and which might have been caused by blows with a stick. He did not think that the blows could have been self-inflicted.
Ete Udo Ekpo (4th P.W) who was a half brother of the deceased informed the court, that, at the material time, there was a land dispute between his village and that of those who beat up the deceased.
The matter was referred on 28th December, 1969, to the C.I.D. at Opobo, where Okon David (P.W.8) and Akpan Inyang (P.W.6) were detailed to investigate it. Later that same day, while P.Ws.6 and 8 were still looking for them, the five accused showed up at the Ibesit Police Station in Opobo and announced themselves. All the five accused persons were thereupon, after due caution, charged with the murder of the deceased.
Each accused, in the statement made to the police, denied beating up the deceased on the day in question. In their defence, on oath, the 1st, 2nd and 4th accused admitted that people from their village went to the swamp on 18th December, 1969, to cut sticks and bamboos for the repair of the village school, but denied going with them. The 1st accused said he remained at home and took no part in the assignment. The 2nd accused said he was not well and was therefore unable to go. The 4th accused said he was also sick on that day and he had to ask for permission from their village chief not to go to the swamp.
The 3rd accused, in his defence, testified that after it was announced on 18th December, 1969, that people should go and cut sticks and bamboos in the bush to build the new school building, he went to the bush to cut sticks. On his way back he saw a crowd of people who were saying that a man had died at the swamp at Ute Etok. He denied that he was among those who beat up the deceased. He, however, admitted that there had been a dispute as a result of which he and some others had been charged to court for wilful damage in connection with the land at Ute Etok.
In his own defence, on oath, the 5th accused denied taking part in beating the deceased to death, adding that he did not know him. He admitted, however, that he and others went to Ikot Osute swamp on the day the deceased was attacked to gather sticks and bamboos for building, but stated that he did not see the deceased there. Although he himself did not witness any fight or take part in any fight at the swamp on that day, news reached him that Ute people and his own people fought.
Udo Ukpong (D.W.2) the Chief of Ikot Osute (the village of the accused persons) testified on their behalf. He confirmed that he ordered the villagers to go to the swamp on the day of the incident to fetch branches from palm-trees for the teacher’s house but said that the 1st, 2nd, and 4th accused asked to be excused on grounds of ill health and he excused them. Later, he heard the sound of the sound of drumming and trumpetry coming from the direction of Ute Etok and realizing that that meant trouble, as the people from that village always went and fought his people whenever the latter went to the swamp to cut bamboos, he went to the Police Station at Ibesit to make a report. He admitted that there had been disputes over the swamp which he said was part of their own land.
In his summary of the evidence adduced by the prosecution and of the defence put forward by each accused person, the learned trial Judge, after due consideration of the statement which the deceased was alleged to have made to Francis Edem (P.W.7), came to the conclusion, rightly in our view, that the statement, made hours after the attack, was not part of the res gestae. The learned trial Judge was also unable to admit the statement as a dying declaration as he was doubtful whether, when the deceased made the statement, he believed that his death was imminent. He therefore decided not to make any use of it in deciding who it was that attacked the deceased and inflicted the injuries from which he died.
The learned trial Judge, however, said that he believed the version of P.W.3 as to what happened at the swamp on the day of the incident. He then convicted each accused person of murder after finding as follows:
“From the whole of the evidence before me I am satisfied that what happened was that the deceased and P.w.3 went to the swamp and that there they were encountered by the accused persons here in court and Nka Nka, and possibly many more, P.W.5 might or might not have been there. In a sense therefore, it would be correct to say that some villagers of Uto Etok clashed with some villagers of Ikot Osute in the swamp.
The evidence of P.W.3 which I have said I believe is that the five accused and a sixth man attacked him and then the deceased. Counsel submits that there was a fight between members of the two villages and out of it the deceased was killed, and therefore there was no intent to kill. I do not accept this. The defence itself had been to the effect that there was a long dispute between members of the two villages over the swamp in question.
Exhibits ‘H’, ‘K’, ‘L’, ‘N’ were tendered to prove this. The defence had endeavoured to show that villagers of Ute Etok had been persistent trespassers on the land of the accused’s village. So when they encountered P.W.3 and the deceased at the swamp, they assaulted them and inflicted such grievous injuries on the deceased that he died that same day.
The intent to kill the deceased is derived from the long-standing grievance which the accused had against the members of the deceased’s village over ownership of the swamp. If for the sake of argument it is said that the accused had no intent to kill the deceased, they are caught by subSection 2 of Section 316 of the Criminal Code, that is, that they intended to do the deceased grievous harm. This is shown by the nature of the deceased’s injuries as described by the doctor.”
Before us on appeal, Mr. Akinrele, who appeared for each of the appellants, could find nothing to urge in their favour. We were also satisfied that they were rightly convicted of murder as charged and so we dismissed their appeals.
SC.48/1972
