The Queen V. Udo Akpan Essien Ukut And 2 Ors (1960)

LawGlobal-Hub Lead Judgement Report

UNSWORTH, FJ

The appellants were, on the 27th May, 1960, convicted by the High Court of the Calabar Judicial Division, of the murder on the 26th October, 1959, of one Bassey Udo Usong. The appellants had originally been jointly indicted with seven other persons, but the learned trial Judge discharged those other persons on the ground that the evidence against them was not sufficient to prove that they were parties to the murder within the meaning of section 7 of the Criminal Code.

The evidence for the prosecution was that on the night of the 26th October the deceased man left his home for the purpose of removing his sheep from a neighbouring compound, to which they were alleged to have strayed. He was never seen alive again. On the following day his body was recovered from a well, into which it had been thrown, and the medical evidence established that the deceased had met his death by strangulation. In addition to an alleged motive, the case against the appellants rested on the evidence of two witnesses, who said that they actually saw the crime take place. These witnesses said that on the night of the of 26th October they heard shouts from the deceased man and went to the place from which the shouts had come. They there saw the first appellant holding the deceased, the second appellant hitting him with a stick, and the third appellant strangling him. The alleged motive was that the deceased, himself a Chief, had been suspected of the murder of another Chief named Etur in February of 1959, and it was suggested that the murder which is at present under consideration was a sequel to that earlier murder, and it was pointed out that the first appellant had been related by marriage to Chief Etur and that the other appellants were followers of that Chief. The defence was a complete denial, and each of the appellants said that he was at home with his wife on the night of the incident, though the respective wives were not called as witnesses to support these alibis.

The learned trial Judge accepted the account of the killing as given by the eyewitnesses and said that he had no doubt in his mind about the guilt of the three accused, who are the appellants in this case. In accepting the evidence of these witnesses, the Judge said that he had taken into consideration the fact that there were what he described as “minor contradictions” in their evidence, but said that he was satisfied that they saw the accused persons when they were attacking the deceased. The trial Judge does not appear to have attached any great weight to the alleged motive, but said that he was inclined to believe that the death of the deceased was due to his political aspirations and in this connection referred to the earlier murder.     No objection appears to have been taken at the trial to the admission of the evidence relating to motive, but a submission was made that the second and third witnesses, who were the eyewitnesses, should be treated as accomplices. The submission was, rightly in our view, rejected by the trial Judge.

The appellants have now appealed to this Court, and their Counsel had argued three grounds, which, with the leave of the Court, he substituted for the grounds of appeal originally filed.

The first ground of appeal was that the learned trial Judge misdirected himself by finding that the contradictions in the evidence of the second and third prosecution witnesses were of minor nature, and in arguing this ground of appeal learned Counsel for the appellants drew attention to apparent inconsistencies in the evidence of these two witnesses relating to whether they were together at the time of the incident and to their movements after the event.

It was not disputed by the Crown that there were discrepancies In the evidence, and the only issue that arises under this ground of appeal is whether the trial Judge misdirected himself In describing the discrepancies as minor discrepancies. The word “minor’ is a relative term, which is defined in the Oxford Dictionary as meaning “comparatively unimportant,” and we do not think that the Judge can be said to have misdirected himself in using this term, having regard to all the evidence in the case and to the fact that the trial Judge formed his view after he had had an opportunity of observing the demeanour of these witnesses when they were giving evidence-in-chief, and undergoing the searching cross-examination of our separate Defence Counsel.

The second ground of appeal was that the learned trial Judge failed to direct himself that the second and third witnesses were interested parties and that their evidence ought to be carefully scrutinised. In respect of this ground of appeal learned Counsel for the appellants submitted that these witnesses were guilty of misprision of felony and that they could have been tried for that offence. It is sufficient for us to say that there is abundant authority for the proposition that a special warning is not required in respect of the evidence of persons who witness a crime in circumstances such as those in the present case. It is clear from the judgment that the evidence of these two witnesses was, in fact, carefully scrutinised, as was all the other evidence in the case.

The third ground of appeal was that the evidence concerning the death of Chief Etur was inadmissible against the appellants, and the learned trial Judge erred by failing to reject it. In support of this ground of appeal learned Counsel for the appellant submitted that there was no sufficient link between the appellant and the earlier death, and that there was no threat by the appellants to avenge that death. We do not think it is necessary in a case of this kind for evidence of actual threats to be given, and in our view the evidence showing the relationship and association between the appellants and Chief Etur mentioned earlier in this judgment provided sufficient connective circumstances to make the evidence admissible. In any event we have no doubt from the wording of the judgment that the trial Judge would have come to the same decision, even if this evidence had not been admitted.

For the reasons stated above this appeal fails and is accordingly dismissed.

Other Citation: (1960) LCN/0852(SC)