Bassey Akpan Archibong V. The State (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

In the High Court of Justice of Akwa Ibom State in the Uyo Judicial Division, the appellant was arraigned, tried and convicted on an information containing one count charge to wit: murder, contrary to section 319(1) of the Criminal Code, Cap. 31, Vol. 11, Laws of Cross River State, applicable to Akwa Ibom State. The particulars of which were that on the 5th day of July, 1988, at Babara Inn, No. 22 Uko Eshiat Street, Uyo in the Uyo Judicial Division, the appellant murdered Bernadette Edem Essien. The appellant pleaded not guilty to the charge and at the ensuing trial, the prosecution called four witnesses and closed its case; after which, the appellant whose no case submission was overruled testified on his own behalf and called no other witness.

The case of the prosecution as narrated by the witnesses was that on the 5th day of July, 1988, Bernadette Edem Essien (the deceased) and the appellant went to Babara Inn at about 3.00 p.m. After ordering and taking some drinks, the appellant booked for a room at the Inn. The rate they charged was N2.00 per hour. The appellant and the deceased were checked into the room by one of the waiters or attendants called Peter Paulinus (P.W.3), the appellant and the deceased moved into the room and locked themselves by about 6.00 p.m. At about 7.00 p.m. P.W.3 knocked at the door of the chalet to ask for the money due for the hiring of the chalet and for the drinks taken by the deceased and the appellant. The appellant/respondent stated that he would pay when he came out. He asked for a little extra time. At about 8.00 p.m., P.W.3 knocked at the door of the chalet again and there being no response, he opened the door, switched on the lights and noticed that the appellant was no longer in the room, he had somehow mysteriously disappeared. He observed the woman lying naked, motionless and dead on the floor and observed foams from her mouth and nose. The clothes the woman wore were thrown on a table in the room. P.W.3 drew the attention of P.W.2 Margaret Otu Udo who was a waitress or attendant at the Babara Inn. Early on the following morning the 6th of July, 1988, the proprietor of Babara Inn, Paulinus Bassey Etim (P.W.1.) was alerted about what had happened in his Inn. He promptly went into the chalet and after observing the deceased still lying naked on the floor with her clothes on the table and asked P.W.2 and P.W.3 to lodge a complaint with the police. P.W.2 and P.W.3 were detained by the police until the appellant was arrested. Both P.W.2 and P.W.3 knew the appellant as a customer at the Inn. That occasion of the 5/7/1988 was not the first time, the appellant came and hired a room with the deceased. The appellant and the deceased were regular customers, coming to the Inn and renting chalets. In fact, P.W.3 thought the deceased was the wife of the appellant. It was apparently based on the description of the appellant made by P.W.2 and P.W.3 that the police were able to arrest the appellant. And in the midst of policemen in uniform and others, P.W.2 and P.W.3 picked out the appellant in an identification parade. Subsequent medical examination of the deceased by P.W.4, Dr. Udeme Daniel Akpan, revealed that the deceased died due to suffocation either by strangulation or by some other means and that the bruises on her body and the act of strangulation could not be self inflicted. In both his statement to the police exhibit A and in his evidence before the trial court, the appellant admitted knowing the deceased to be the wife of his half brother or sometimes wife of his cousin and therefore well known to him. He however denied having anything to do with her death. He, however admitted that he saw her in the vicinity of the Inn at one time. He sought to put up a defence of alibi but that only explained his whereabouts from morning up to about 3.00 p.m. on that fateful day. According to him his son was ill on that day and he had taken him to a native doctor, who was also his brother, Effiong Archibong and had only returned home with the son at about 3.00 p.m. on that date and had not gone out any where from that time. In a considered judgment delivered on the 1/8/1991, the learned trial Judge, Umoren, J., (as he then was) reviewed the evidence and rejected the alibi set up by the appellant. He convicted the appellant for the murder of the said Bernadette Edem Essien and sentenced him to death. The appellant appealed to the Court of Appeal where two issues were submitted to that court for the determination of the appeal. The issues were:-

(1) Whether the identity of the appellant as the perpetrator of the crime charged was proved beyond reasonable doubt.

(2) Whether the circumstantial evidence was direct, positive, cogent and compelling to warrant the conviction of the appellant.

After the consideration of the submissions of counsel in the briefs and oral arguments, the Court of Appeal resolved the issues against the appellant and affirmed the conviction of the appellant for the murder of Bernadette Edem Essien and also confirmed the sentence of death imposed. This now, is a further appeal to this court.

In his brief for the appellant, the learned counsel has identified, formulated and submitted to this court 3 issues arising for the determination of the appeal, the issues read:-

1. Was the lower appellate court right to have affirmed the finding of the trial court to the effect that the two prosecution witnesses sufficiently knew the accused person before the date of the incident and correctly identified him as the person who brought the deceased woman to the hotel on that fateful day.
2. In all the circumstances of this case, was the lower appellate court right to affirm the conviction of the appellant for murder when the case of the prosecution is not free from doubt.
3. Was exhibit A properly received in evidence And if the answer is in the negative did the wrongful admission of exhibit A lead to a miscarriage of justice,

The learned counsel for the respondent on the other hand has submitted the following two issues arising for the determination of the appeal:-

1. Was the Court of Appeal right in affirming the conviction of the accused person by the trial court.
2. Whether the admissibility of exhibit A in evidence occasions any miscarriage of justice.

I shall, however treat this appeal on the basis of the issues as discussed by the learned counsel for the appellant in the appellant’s brief.

Issue No. I

This is concerned with whether the identity of the appellant as the perpetrator of the crime was established beyond reasonable doubt. It is argued that both P.W.2 and P.W.3 who claimed familiarity with the appellant did not in actual fact know him well enough. It is conceded that this issue is concerned with the concurrent findings of fact by two courts and this court will only upturn concurrent findings of fact where such finding is perverse or when it will result in a miscarriage of justice. It is submitted that this is a proper case in which this court should interfere and reverse the findings of fact. It is submitted that the law is settled that the identity of an accused will not be in doubt if there is evidence before the court showing the opportunity the witnesses had to identify the accused as the assailant vide Olalekan v. State (2001) 18 NWLR (Pt.746) 793; Ajibade v. State (1987) 1 NWLR (Pt.48) 205. But such evidence should be received with caution and it must be weighed against other available evidence. See Abudu v. State (1985) 1 NWLR (Pt. 1) 55.

In the instant case, although it is evident that the appellant was known to and was identified by both P.W.2 and P.W.3 yet the witnesses did not identify him by name. Learned counsel submitted, doubt exists, even though P.W.3 described the appellant to the police which description enabled the police to arrest the appellant. Further to the above, P.W.2 and P.W.3 identified the appellant because he was chained. It is argued that the chains prod P.W.2 and P.W.3 to identify the appellant, it is argued that without the chains the witnesses would find it impossible to identify the appellant. It is again added, that if it was true that the appellant was a frequent user of the chalets in the hotel room why was it necessary for him to ask P.W.3 what the rate of hire was It is argued that a combination of these facts will reveal that the identity of the appellant did not measure up to the standard required. The evidence was not properly evaluated by the trial court. See Oje v. State (1972) 11 SC 23.

The learned counsel for the respondent on the other hand argued that the identification of the appellant by P.W.2 and P.W.3 was a concurrent finding of fact by the lower courts and can only be reversed upon exceptional circumstances by a further appellate court. See Olokotintin v. Sarumi (2002) 13 NWLR (Pt.784) 307; Jonason Triangles Ltd. v. CM & P Ltd. (2002) 15 NWLR (Pt.789) 176; Akulaku v. Yongo (2002) 5 NWLR (Pt.759) 135.

It is submitted that the issue of identification is in the exclusive preserve of the trial court. See Orimoloye v. State (1984) 10 SC 138. The evidence led by both P.W.2 and P.W.3 is beyond any doubt that they knew the appellant well before the fateful day. Not only that, the appellant himself conceded that he knew both P.W.2 and P.W.3 at the Inn. The fact that it was common ground that the appellant and the witnesses knew each other, makes it unnecessary for the identification parade see Igbi v. State (2000) 3 NWLR (Pt.648) 169; Ibrahim v. State (1991) 4 NWLR (Pt.l86) 399; Adeyemi v. State (1991) 1 NWLR (Pt.l70) 679.