Aaron Akpan V. The State (1972) LLJR-SC

Aaron Akpan V. The State (1972)

LawGlobal-Hub Lead Judgment Report

SIR I. LEWIS, J.S.C 

On the 5th of November, 1971, Aaron Akpan was convicted by Ete J. In the High Court, Uyo in Charge No. HU/7C/71 of the murder of Grace Aaron (his wife) on the 22nd of June, 1970 at Ikot Akpan Eteduo, Opobo and sentenced to death. On the 22nd of March, 1972 we dismissed his appeal therefrom and now give our reasons for so doing.

There was only one eye witness to the killing and that was the 3rd P.W., the 10 year old son of the deceased and the accused, who, after the learned trial Judge had examined him and was satisfied that he understood the nature of an oath, was duly sworn and said in his evidence that on Sunday, the 21st of June, 1970, he returned home at about 6 p.m. and found his mother, the deceased, and his father, the accused, quarreling and his evidence as to what took place thereafter was:

“I saw my father throw native juju called “Mbiam” on my mother. After this mother gave him food and he ate it. Then my father went to his own apartment, but came out later and dragged my mother from her own room to his own. This was about 8 p.m. I myself was in my mother’s room, I did not follow them to his room. Also in my mother’s room with me were my junior sister Akon Aaron, my junior brother Udo Aaron and my third sister Nwahwa Aaron who was a baby. At about 5 a.m. I was awakened by the shouts of my mother emanating from my father’s room. I ran to the place and when I got there I saw my father matcheting my mother. I saw the matchet he used. (Witness identifies Identification 1 as the matchet the accused used.) I raised an alarm and P.W.2 came. When I raised alarm my father ran out of the house towards the road. When he ran out of the house towards the road. My father left the matchet on the floor some distance away from where my mother lay, also on the floor. My mother was dead by the time he ran away. The door of my father’s room was open when I got there. There was a lantern in the room but the room was not dark.”

The 2nd P.W., a half brother of the accused, gave evidence that a few days before the 21st of June, 1970, the accused had quarrelled with his wife because he thought she had committed adultery with one Ben Timothy and he went on to say in his evidence as to that matter:

“The woman said the Accused had accused her of committing adultery with Timothy and that she had denied. She said she was prepared to take the oath to clear herself. I sent for Ben Timothy. The accused himself was present. When Ben came I told him that the accused had accused him of adultery with his wife. The Accused himself told Ben that his wife herself confessed this to him. The wife replied that the Accused had threatened to kill her and tried to force her to admit. She said then that she wanted to be given the oath to clear herself. Ben told the Accused that he did not in fact commit adultery with his wife, and wanted to know from him what he should do to assure him that he did not in fact commit the adultery. The accused did nothing, so Ben went and brought a Police Officer to arrest the Accused and took him to Ibesit Police Station. Ben told the Police at Ibesit that he wanted the Accused to give him the oath, but the Police referred the matter to the elders in our village who would provide the oath. The two Chiefs – Akpan Akpan Ife-enyin and Amos Udo Udo Idem, Grace’s relation, Akpan Unwa Unwa, assembled and in their presence the accused provided a native oath for Ben to swear on. Ben did so, and Grace also took the oath. I was present.”

He then said that on Sunday, the 21st of June, 1970 at about 5.30 a.m. He heard the 3rd P. W. shouting from the accused’s house and on going there he saw the deceased dead on the floor with:

“A deep cut across her face beneath the nose, which almost divided her head into two and several other injuries on her body. There was a lantern in the room with the light lowered down. By the woman’s head I saw a matchet lying dripping with blood.”

He went in pursuit of the accused but the accused saw him and ran off into the bush but later when the 2nd P.W. went to report at the Police station he found the accused there shouting that someone had gone into his house and killed his wife.

The accused was later arrested and he made a statement (Exhibit “C”) in which he said:

“On Sunday 21/6/70 at about 2 p.m. in the afternoon, I went to the place of function somebody died in our village. When I arrived there, I have taken palmwine and illicit too much. The wine I drank worried me too much due to how I did not eat anything since day break. As the wine had worried me too much, I have struggle and carried myself back to my house. When I reached my house, I saw the unknown person broke into my room. As the person had removed the padlock and entered, I then called my wife and asked the person who had done that. Later my wife told that she did it. I then asked her the reason why she break into my house, she replied me that she wanted to enter into the house and packed her own thing and go away. I told my wife that it is night, that she should give me food to eat for I am very hungry. My wife on hearing this from me said that I should leave her. I then put my hand into her dress, held and draw her. My wife pushed me I fell down on the ground. I was very annoyed. I looked into the corner of my house, I saw something like stick, I took it and started to beat her without knowing that it is matchet I was using. The matchet gave her wound on her head. Then she started to shout. When my son heard the voice of his mother, he came into the room. My son then told me then his mother is dying I later came and reported myself to Police at Ibesit that I am the person who killed my wife. If I see that matchet I used, I can also identify it to Police.”

The accused, according to the 6th P.W., the Assistant Superintendent of Police in charge of Opobo division, confirmed that statement before him on the 24th of June, 1970.

The 1st P.W.7, the medical officer at the General Hospital at Opobo conducted a post-mortem examination on the deceased on the 23rd of June, 1970, and found that she died about a day before and had:

“(a) A severely mutilated left arm, the bone and flesh from elbow downward were in pieces and only held by strings of flesh;

(b) deep transverse incise wound at left upper arm about 8 inches long;

(c) incised wound about 3 inches long at the left should

(d) superficial incised wound about 4 inches long, at left lateral aspect of the neck;

(e) transverse deep wound from left check across bridge of nose to the right cheek with complete separation of the nasal bone and the zygomatic arches on both cheeks,

(f) incised wound about 10 inches long from ankle of left mandible behind left ear to the left parietal bone with complete fracture of the left parietal and occipital bone and with visible brain tissue. Internal examination revealed:

(a) deep laceration of left occipital lobe of brain about 4 inches long;

(b) 29 weeks pregnant uterus

In my opinion the cause of death was due to brain injuries and haemorrhage. The injuries could have been caused by a sharp-edged instrument such as a matchet.”

The accused gave evidence at the trial to the effect that he returned home from a funeral between 4 a.m. and 5 a.m. on the 2nd of June, 1970 and found his wife dead on the floor of the bedroom with wounds that suggested that she had been matcheted. He said he shouted and no-one came so he went and fetched the 2nd P.W. and then the 3rd P. W., his son, also came and after asking what he should do, the accused stated that he went off to report at the Police Station. He denied having killed the deceased or that he had quarrelled with his wife or thought that she was ever committing adultery. He was then cross examined by the counsel for the State according to the record in the following terms:-

“XXD by James

Q- Your son was attending school at this time

A. Yes, he was in Elementary II. He was born on 31/8/ 59. I paid his school fees, but once I failed to do so and he was stopped from attending school. Later I paid it.”

We must here comment that it appears to us that one question from the State counsel was a totally inadequate cross-examination in a murder case where apart from anything else it was unfortunate that he was not closely questioned as to the confessional statement that he made. In fact not a single question was put to him about it when in his evidence in court he had denied killing the deceased.

The learned trial Judge however carefully considered the evidence in his judgment and believed the evidence of the prosecution witnesses which we have set out and that the accused without any provocation killed the deceased. The learned trial Judge in particular in his judgment said:

“I am satisfied that the background to this gruesome murder was the accused’s obsessive suspicion and subsequent belief that his wife had committed adultery with Ben Timothy, despite the fact that the man and the wife had sworn on the native oath that they had not. I believe that the oath -taking did not wipe out the suspicion that the accused had about his wife’s supposed adultery and that this lingering suspicion was the basis of the quarrel that led of the tragic events of early morning of 22/6/70. The accused made a statement to the Police which he has not denied in court. As I see it, the point he tried to make in this statement was that he killed his wife when he was under the influence of excessive drunkenness and because he was provoked by her. But he tried to draw a red herring across the fact of the killing by saying he was merely whipping her with what he thought was a piece of stick but which in fact turned out to be a matchet. However he did not stick to this line of defence when he gave evidence in court. In court he stated categorically that he never drank at the funeral ceremony. I believe that in this instance he was speaking the truth. My belief is sustained by the evidence of his son who also said that neither the accused nor his mother drank. I believe therefore that not only did the accused not drink that day but also that his wife in fact gave him food in the morning before they went to Church, and also when he returned from his first visit to the funeral place between 5 p.m. and 6 p.m. So he was not hungry and drunk before attacking his wife as he would have us believe in the statement he made. I believe that when he made that statement he thought that the story of his being very drunk and hungry would be a good excuse for what he had done. I believe that on sober reflection he thought that would not be a good defence and abandoned it and then invented the story of his wife being murdered by some other person. He had named two persons to the Police, Marcus Udo and Wilson Ubom, but he changed his mind again when he testified in court. In court it was neither himself, nor Marcus nor Wilson who killed his wife but some unknown person………If, as suggested by counsel, the defence is drunkenness, the accused himself eliminated this defence by saying he did not drink.”

He accordingly convicted the accused and on the evidence before him which he believed, we were satisfied that he was entitled to come to the conclusion that he did as he accepted the sworn evidence of the only eye witness, the 10 year old 3rd P. W., as we think he was entitled to do and no miscarriage of justice arose therefrom as we stated in Akpan v. The State (1967) NMLR 185 when we said at page 187:

“In R. v. Campbell (1956) 2 QB 432, Goddard LCJ., delivering the judgment of the court of Criminal Appeal said:

‘The sworn evidence of a child need not as a matter of law be corroborated, but a jury should be warned, not that they must find corroboration, but that there is a risk in acting on the uncorroborated evidence of young boys or girls, though they may do so if convinced that the witness is telling the truth, and this warning should also be given where a young boy or girl is called to corroborate the evidence either of another child, sworn or unsworn, or of an adult.’

In our view when Goddard, LCJ., used the word ‘should’ in the con of the last case cited, he must be taken to have meant that it was a desirable practice that this should be done, not that it was a requirement so that if it was not done the appeal court must allow the appeal. It must in our view depend upon all the circumstances of any particular case whether in fact, if a judge does not warn a jury or if sitting alone does not warn himself of the risk involved in relying solely on the sworn evidence of a child under fourteen years, the court can be satisfied that there has been no miscarriage of justice.”

Moreover quite apart from the evidence of the 3rd P.W. there was here the corroboration of the confessional statement of the accused (Exhibit “C”) that he attacked the deceased. Mr. Akinrele on his behalf had nothing to urge before us and we therefore, as we have stated, dismissed the appeal.

SC.355/1971