Eyo Okpo Vs The State (1972)

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UDO UDOMA, JSC. 

The appellants was convicted in the High Court of the South Eastern State, Calabar, by Kooffreh, J., of the murder of one Anwana Bassey. He now appeals to this court against his conviction. The case of the prosecution against the appellant appears simple and straight forward.

The appellant had been away and had spent quite a long time in the Cameroons. His return home on 24th April, 1970, was a matter for rejoicing by his relatives and friends. His elder brother, Anwana Bassey, arranged a special reception for him to which he invited friends. There was plenty to drink, the appellant himself providing some of the drinks. There was general merriment including singing and dancing in which the appellant also played a prominent part.

The celebration of the return of the appellant took place in the house of Effiong Okpo (P.W.1) where both the appellant and Anwana Bassey were living at the time. While the drinking and merriment were in progress, Anwana Bassey was sitting outside with his back towards the house. The appellant in the course of dancing, entered into the house. He later emerged from the house with a matchet in his hand and all of a sudden, he inflicted a matchet cut on the back of the neck of Anwana Bassey. This caused the latter to shout: “Hold me! Hold me!” Thereupon, Okokon Iniokun (P.W. 2) who was nearby and had seen the appellant inflict the matchet cut, immediately rendered assistance with the help of Effiong Okpo (P.W.1), to Anwana Bassey who was then in great pain.

At the same time Effiong Okpo (P.W.1) caught hold of the appellant who was then still holding the matchet in his hand. Shortly thereafter, Anwana Bassey (hereinafter to be referred to as the deceased) who was then bleeding from the matchet wound died on the spot. The appellant willingly surrendered his matchet and when questioned why he had killed his own brother, answered that he had always intended to kill the deceased. The appellant was there and then taken to the Police Station, Oron. There, the appellant was arrested, charged, and after due caution, made a confessional statement, Exhibit 1A.  The statement, Exhibit 1A is very brief and is set out in full hereunder. It reads:-

“I returned from Cameroon on the night of 24/4/70. On that morning, myself and my brother the deceased – Anwana Bassey bought drinks to welcome my return from Cameroons. As we were drinking, I went inside the house and brought a matchet which I used to cut Anwana Bassey on the neck. He fell down on the ground. I took the matchet and reported what I have done to the Police at Oron. The reasons why I cut him is because he bewitched me that I should not see any fortune in my life.”

At his trial, the appellant in his evidence retracted his confessional statement. Indeed, he said that on the fateful day when his brother was killed he was unconscious; that he did not even remember ever being at the Police Station, Oron; and that he became conscious only on the day that the case first came before the Magistrate and he was told at the Magistrate’s Court that his brother was dead. He denied telling the Police that his brother had bewitched him. He also denied killing his brother but remembered returning from the Cameroons and having drinks that day. The confessional statement having thus been retracted, it became necessary for the learned trial Judge to review thoroughly the whole of the evidence in the case in the search for corroboration. After applying the well-known test as prescribed by law, the learned trial Judge reached the conclusion that the confessional statement was amply corroborated in every material particular. In the event, he found as a fact that the statement was a free and voluntary confession, which the appellant made to the Police when he was fully conscious and the incident was fresh in his mind.

He rejected the evidence given by the appellant at the trial which he described as false, but accepted the case for the prosecution. The learned trial Judge also gave consideration to the possible defence of drunkenness and rightly, we think, dismissed it as untenable on the authority of R. v. Meakin 11 Cox 270; and Director of Public Prosecutions v. Beard (1920) AC 479. He finally found the appellant guilty of the murder of Anwana Bassey as charged.

We have, ourselves, carefully examined the proceedings and judgment in this case and are satisfied, in so far as the question of the guilt of the appellant is concerned, that the evidence against him is overwhelming; that the decision of the learned trial Judge that the appellant is guilty is amply supported by the evidence; that the case against him was proved beyond all reasonable doubt; and that Mr. Akinola, learned counsel who was assigned to argue the appeal, was justified in informing the court that he had nothing useful to urge on behalf of the appellant.  But that is not the end of the matter. We observe that the learned trial Judge concluded his judgment by merely stating:“I find him therefore guilty of murder.”

He omitted to record the fact that he had convicted the appellant as well as sentenced him to death as prescribed by law. At the hearing of the appeal we considered this omission serious, and therefor drew the attention of both Mr. Akinola and Mr. Effanga to it. We think that the omission deserves comment by the court. We are of the view that the appellant having been found guilty, which was the verdict of the court, the fact of his having been convicted ought also to have been specifically recorded in the record of proceedings in the case. Then there is the omission to record the sentence which was passed on the appellant – a matter which was dealt with by this court in its unreported judgment in SC. 182/1968 – Mallam Gano v. The State delivered on 29th November, 1968. In that case the note made by the learned trial Judge as to sentence merely reads: “Sentence to death passed”. This court took the view that the learned trial Judge in that case had failed to incorporate in his judgement the statutory direction in terms of the provisions of Section 273 of the Criminal Procedure Code (Cap. 30) of the Laws of Northern Nigeria, which read: “When a person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.”

Section 273 of the Criminal Procedure Code mentioned above does not, of course, apply to the South Eastern State. The relevant law applicable to that State in this connection is contained in Section 367, 368 (1) and 369 of the Criminal Procedure Law (Cap. 31) of the Laws of the former Eastern Nigeria (1963) Vol. II, the provisions whereof are in the following terms:

“367. (1) The punishment of death is inflicted by hanging the offender by the neck till he be dead. (2) Sentence of death shall be pronounced in the following form – ‘The sentence of the court upon you is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.’

368. (1) Where sentence of death has been passed such sentence shall only be carried out in accordance with the provisions of this Part.

369. A certificate under the hand of the Registrar, or other officer of the court, that such sentence has been passed, and naming the person condemned, shall be sufficient authority for the detention of such person.”