Uwe Idighi Esai & Ors V. The State (1976)

LawGlobal-Hub Lead Judgment Report

BELLO, JSC 

The four appellants were convicted in the High Court, Calabar, on a charge of murder of Monday Nimme and were sentenced to death on 20th June, 1975. One Effiong Efrede who was jointly tried with the appellants was acquitted of the charge. On 14th October, 1976, we dismissed the appeal of the 1st appellant and affirmed his conviction and sentence. We allowed the appeal of the three other appellants, set aside their convictions and sentences and directed that a verdict of acquittal and order of discharge be entered in respect of each of them. We now state our reasons.

The circumstances giving rise to the charge against the appellants are as follows: On 20th May, 1973, between 6-7.00 p.m., while driving his motor vehicle No.SE.705k on Oron-Eket Road, Monday Nimme knocked down a cyclist, Asuquo Esang, at Okosi village. The cyclist is a native of Oyubia village which is about a mile from Okosi. Monday Nimme stopped the vehicle and came out to see the cyclist. The conductor of the vehicle (P.W.1), testified that immediately after they had desembarked from the vehicle, a crowd rushed to the scene shouting and they held Monday Nimme and one passenger. The conductor said he sneaked out of the crowd and went to Oron where he reported to the police. When he returned to the scene about 7.30 p.m., he found the place deserted. Their vehicle was there but it was badly damaged. The police conducted search and inquires in the area that night but were unable to trace Monday Nimme.    

The accident took place in front of Edet Jackson’s (P.W.2) house. He was inside the house when he heard an alarm. He said as he was coming out of the house, a driver, whom he had known before, ran to him and informed him that his vehicle had knocked down someone and asked P.W.2 to help him to escape and to report to the police.

He said as he took the driver to the back of his house to escape, three persons – namely, Asquo Esio, Ekpe Okon Eme and the 1st appellant pursued him; that the 1st appellant held and beat him, the witness, while the other two persons held the driver. He said he tried to rescue the driver but the 1st appellant and the 2nd appellant, whom he said was also there, and some other persons over-powered him. He continued:   “My wife also saw when they took the driver to Oyubia. At the time the three persons carried away the driver the second accused came back with a vehicle and had many people in the vehicle. He reversed the car and put in the injured person and took him with some others inside it to the hospital. Others in the car walked home. Okosi to Oyubia is about a mile. When I went back to my house I overheard people saying that that vehicle should be damaged.”  

With regard to the other appellants, he only said the 3rd and 4th appellants were from Oyubia.  His wife (P.W.8), who also came out of the house as the result of the alarm, testified that she saw the driver running towards her husband and that she also saw the 1st appellant, Ekpe Ekeremue and Asuquo Essien beating her husband and struggling to snatch the driver from him. She further said:   “After they had snatched the person from P.W.2 the 2nd accused drove in with a vehicle carrying so many people. When the 2nd accused arrived he off loaded the passengers and then took the victim of the accident into his vehicle and then drove off. The three persons whom I first mentioned and those off loaded from the vehicle took away the person they   had snatched from my husband. I do not know the name of the person who was snatched away. He was a driver.

I did not know where they took the driver to.” (Underlining is ours) We may observe that this witness did not mention the 3rd and 4th appellants.    Okon Ofrede (P.W.4), was another witness for the prosecution who went to the scene of the accident. He said he met P.W.2 struggling with the 1st and 3rd appellants over the driver of the accident vehicle whom the P.W.2 was attempting to rescue from the grip of the two appellants. He said he warned the 1st and 3rd appellants not to kill the driver because he saw one person was dragging the driver to one side and the other to another side. He said it was at that stage that the 2nd appellant arrived at the scene with many people in his vehicle and he, the witness, left the place. It may be noted that this witness did not mention the 4th appellant.    

The other prosecution witnesses were police officers who investigated the case. The salient part of their evidence shows that on 22nd May, 1973, in a cassava farm situated at a distance of about 100 yards from Okosi to Oyubia and 25 yards off the Oron/Eket Road, the police found the pairs of trousers worn by Monday Nimme at the time of the accident; that the police observed signs of struggle at the place where the trousers were found and that since Monday Nimme was carried away from the scene of the accident he has not been seen or heard of despite his search made by the police.    All the appellants gave evidence at the trial.

The defence of the 1st appellant was an alibi that at the material time he was at Itak village, which was about 13 miles from Oyubia, in the house of one Emen where he resided. He said he had left Oyubia at about 3.00 p.m. on the day of the incident and arrived at Itak Iyati at about 7.00 p.m. In his evidence in chief, he said he did not know if Emen had other names but under cross-examination, he said Emen was also known as Edet Ebang. He called Edet Ebang (D.W.2), who testified that 1st appellant had been living with him at Itak Iyati as a servant; that on 18th May 1973, the 1st appellant had visited Oyubia and returned to Itak Iyati on 20th May, 1973, at about 7.00 p.m. The witness denied Emen to be his name.    

It is pertinent to point out that the prosecution adduced evidence which established that police had checked the alibi and were unable to find any person by name of Emen in a compound at Itak Iyati, shown to them by the 1st appellant. The 1st appellant did not also mention Edet Ebang in his statement, Exhibit 4. He stated therein that he was at the house of Emen whom the police could not trace.    

The 2nd appellant admitted driving his vehicle to the scene of the accident. He said a friend had informed him of the accident and requested him to convey the victim to the hospital; that on his arrival at the scene he met the 3rd and 4th appellants with the victim and that he conveyed the victim together with 3rd and 4th appellants to Iquita hospital where he left the 4th appellant to look after the victim when he returned to his house to sleep. He denied the charge.

PAGE 4  Both the 3rd and 4th appellants admitted having visited the scene of the accident but stated that they joined the 2nd appellant and conveyed the victim to the hospital. Both confirmed that the 4th appellant remained at the hospital with the victim while the 3rd appellant said he left in company of the 2nd appellant. Both denied the charge.    

A defence witness (D.W.7), testified that he also joined the vehicle of the 2nd appellant to the hospital and that both the 3rd and 4th appellants were in their company and that the 4th appellant remained at the hospital. The wife of the victim (D.W.4), who went to the hospital around mid-night said she met the 4th appellant looking after her husband.    

In his judgment the learned trial Judge observed that there was no direct evidence establishing that Monday Nimme was in fact dead or showing the cause of death. He appreciated that the case rested purely on circumstantial evidence. After having cited the Queen v. Onufrejczyk (1955) 39 Cr. App. R. 1 and R. v. Enweonye (1955) 15 WACA 1 relating to proof of death by circumstantial evidence, he came to the conclusion that the circumstantial evidence in the case in hand leads to no other inference than that Monday Nimme was murdered at the cassava farm.    

The learned trial Judge then proceeded to consider the evidence generally in the case. He believed the prosecution witnesses and rejected the defence of the appellants. He found:- (1) that the 1st appellant participated in the forcible removal of Monday Nimme from the protection of P.W.2 and in his abduction from the scene of the accident; (2) that the 2nd appellant brought the people of Oyubia in his vehicle to the scene in order to deal with Monday Nimme; (3) that the 3rd appellant assisted other assailants in dragging Monday Nimme before the arrival of the vehicle of the 2nd appellant at the scene; and (4) that the 4th appellant went to the scene in order to carry out a revenge.  

The learned trial Judge then stated in the judgment: “Section 8 of the Criminal Code provides as follows:- “When two or more persons form a common intention to p

Other Citation: (1976) LCN/2212(SC)