Ekpenyong Etim Eyo V. The State (2009)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

The appellant, Ekpenyong Etim Eyo, was arraigned before the High Court of Cross River State, sitting in Calabar, on a one count charge for the offence of murder of one Emmanuel Essien Umoh contrary to Section 319(1) of the Criminal Code, Cap 31, Vol. II, Laws of Cross River State of Nigeria, 1983. At the trial, 2 witnesses testified for the prosecution while for the defence only the convict testified on his own behalf. At the end of the trial, Hon. Justice F. E. Ita, rejected the defence of accident put up by the appellant and convicted him of the offence of murder and sentenced him to death by hanging.

Dissatisfied with the judgment, the appellant appealed to this court on 12 grounds from which he distilled three issues for determination in the appellant’s brief of argument dated 26/2/08 and filed the same day. The issues are as follows:

“1. Considering the state of evidence whether or not the learned trial Judge adequately considered the defence of accident raised by the appellant before reaching the decision convicting the appellant of murder Grounds 1, 4, 7, 9 and 10.

2. Considering the evidence of PW1 whether or not there exist material contradictions cogent enough to disturb the verdict of the learned trial Judge – Grounds 2 and 8.
3. Whether or not considering the evidence, particularly of PW1, PW2, DW1 Exhibit A, B and C the prosecution proved the offence or murder beyond reasonable doubt necessitating the verdict of guilt entered against the appellant by the trial court – Grounds 3, 5, 6, 11 and 12.”

The respondent in its brief dated 12/5/08 and filed on 13/5/08 but deemed properly filed by this court on 30/10/08, also distilled three issues for determination. The issues are set out herein below:

“1. Considering the state of evidence, whether or not the learned trial Judge adequately considered the defence of accident raised by the appellant before reaching the decision convicting the appellant of murder.

2. Considering the evidence of PW1, whether or not there exist material contradictions, cogent enough to disturb the verdict of the learned trial Judge.
3. Whether or not, considering the evidence particularly of PW1, PW2, DW1, Exhibit A, B & C, the prosecution proved the offence of murder beyond reasonable doubt, necessitating the verdict of guilt against the appellant by the trial court.”

Upon being served with the respondent’s brief of argument, the appellant filed a reply brief dated and filed on 30/10/08. At the hearing of this appeal the parties adopted and relied on their respective briefs of argument.

In arguing Issue NO.1, the appellant’s counsel, Mr. Nta submitted that the appellant, in his extra-judicial statement, Exhibit B, told PW2, the Investigating Police Officer (IPO) that he was fighting with one Akpan Eyen. While they were fighting, the said Akpan Eyen brought out a knife. He forcibly took the knife from Akpan Eyen and he told him that he would use the knife to wound him. As he was fighting with the said Akpan Eyen, the deceased, Emmanuel Essien Umoh rushed in between them and the knife got the deceased on the left side of his stomach. Learned counsel referred to the evidence of PW1, who testified that the appellant killed the deceased with a small knife and that the deceased had no problem with the appellant and this confirms the appellant’s evidence. He then concluded that the defence of accident under section 24 of the Criminal Code put forward by the appellant was never rebutted all through the trial. Mr. Nta referred to Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683 at 692-693; Turaki V. State (1995) 3 NWLR (Pt.381) 63 at 75; Adeyemi v. The State (1991) 6 NWLR (Pt. 195) 1 at 35; Chukwu v. State (1992) 1 NWLR (Pt. 217) 255 at 269 and Iromantu v. R. (1964) 1 All NLR 311 and submitted that an event which occurs by accident as used in Section 24 of the Criminal Code describes an event totally unexpected by the doer of the act and also not reasonably to be expected by any ordinary person, the reasonable man in law. He contended that the onus is on the prosecution to prove that the appellant fought the deceased and intentionally stabbed him to death. He submitted also on this issue that where an accused person led unchallenged and irrebuttable defence, the trial Judge is bound in law to consider such defence even when the accused never raised it, and failure to consider the defence, any finding or conclusion made thereunder is erroneous and perverse. He relied on Oghor v. State (1990) 3 NWLR pp. 501 – 502; Kim v. State (1992) 4 NWLR (Pt. 233) 17 at 28; Uwaekweghinya v. State (2005) 9 NWLR. (Pt.930) 277 at 248; Apishe v. State (1971)1 All NLR 50 and Dangari v. State (1968) 1 All NLR 242, and concluded that the trial Judge on the evidence laid before him ought to have acquitted the appellant.

On Issue No. 2, learned counsel submitted that the evidence of PW1 in court is inconsistent with his previous statement, Exhibit A, regarding the circumstances surrounding, the killing of the deceased, the, person who identified the corpse of the deceased to the Doctor who performed the past mortem. While PW1 said in his evidence in chief that he identified the corpse of the deceased, under cross-examination PW1 said it was his younger brother.

The past mortem report, Exhibit C, says it was Etim Pius Edem who identified the corpse and not PW1. Also that Exhibit C contains a report of the nature of the injury. While PW1 under cross-examination, said that the wound was on the shoulder groove, Exhibit C maintains that the deceased sustained many cuts an the right and left side of the head, right side of the neck and multiple defence injuries on both wrists and back of the hand. He concluded that these are many inconsistencies that the trial Judge ignored and the evidence of PW1 should have been treated as unreliable as was done in Okolo v. State (1974) 2 SC 73; Igabele v. State (2006) 6 NWLR (Pt. 975) 100 at 120; Onubogu v. State (1974) 9 SC 1 and Akogwu v. State (2000) 2 CLRN 27 at 37. Counsel also submitted that if a witness gives oral evidence which contradicts his previous statement in writing, his evidence should be treated as unreliable. He referred to Akogwu V. State (supra); R V. Joshua (1964) 1 All NLR 1 at 4 and Aderemi V. State (1975) 9/11 SC 115. Mr. Nta concluded that the inconsistencies and contradictions in the evidence of PW1 are material and fundamental enough to disturb or affect the verdict of the lower court as was done in Chukwu & Anor. v. State (2007) 13 NWLR (Pt. 1052) 420 at 465 – 467.

On Issue No. 3, Mr. Nta submitted that considering the evidence of PWs 1 and 2, DW1, Exhibits A, B and C, the prosecution failed to prove the charge against the appellant beyond reasonable doubt. He pointed out that Exhibit C, the past mortem report, was tendered through PW2 and Dr. Paul Jibrin who performed the post mortem was not called to testify therefore, the evidence as to Exhibit C, and its entire content amount to hearsay. He cited Ekpo V. State (2003) 7 NWLR (pt. 712) 292 and 304. Relying on Gabriel V. State (1989) 5 NWLR (Pt. 122) 457 at 459 and submitted that there being no eye witness as to the act of killing it was wrong for the learned trial Judge to have believed the story of PW1 and PW2 on the nature of the wound. He also pointed out that, the defence of accident raised by the appellant was unchallenged and uncontradicted throughout the trial. Therefore, the appellant ought to have been discharged and acquitted.

Learned Deputy Director of Public Prosecution, Ministry of Justice, Cross River State, Mr. Eyo U. Eyo, submitted on Issue NO.1 that what is in contention is not whether the appellant did not kill or cause the death of the deceased, but whether the killing was intentional or accidental. He submitted that the defence of accident raised by the appellant was challenged and rebutted by PW2 when he said that there was nobody existing called Akpan Eyen.

Learned counsel submitted, that though PW1 did not witness the stabbing, he heard when the deceased shouted, “Ekpenyong has killed me” and as he ran to the scene, he saw the deceased in a pool of his own blood and he saw the appellant running away from the scene with a knife. Counsel submitted that, that amounted to res gestae and it is sufficient to discharge the burden of proof on the prosecution. He relied on Vorgho V. State (1992) 2 All NLR 535 which facts are similar to the one in the instant appeal. Counsel referred to Chukwu V. State (supra); Adelumole V. State (supra) and submitted that the appellant who admitted under cross-examination that he could have walked away from the scene after disarming the deceased and after also admitting that he intended to wound Akpan Eyen with the knife, cannot claim accident. He concluded that the trial Judge was quite right when he rejected the defence of accident and convicted the appellant.

On Issue NO.2, counsel submitted that the issue in the instant appeal is not as to who identified the corpse of the deceased or whether PW1 was tying stick or bamboo; rather the issue is whether the death of the deceased was as a result of the act of the accused. He contended that the contradictions referred to by the appellant are so immaterial that it does not affect the justice of the case, whereas the evidence of the prosecution show categorically that Emmanuel Essien Umoh is dead and that his death was caused by the unlawful act of the appellant therefore, the conviction of the appellant was a natural consequence. It was contended for the respondent that though the medical officer who conducted the autopsy was not called, the fact that the appellant stabbed the deceased with a knife and he died not too long thereafter, there was a manifestation of an intention to kill. Moreover, medical evidence is not even a must to prove murder. He referred to Ehot v. State (1993) 4 NWLR (Pt. 290) 644 at 663 – 664.