Akpan Ben Akpan V. The State (2001)

LAWGLOBAL HUB Lead Judgment Report

KARIBI-WHYTE, J.S.C.

On the 11th May, 2000, the Court of Appeal, Calabar Division dismissed the appeal of the appellant against his conviction on the 24th June, 1999 for murder by the Akwa-Ibom High Court sitting at Eket. Appellant dissatisfied has further appealed to this court.

Appellant with Regina Ukpong were arraigned before Udofia J., sitting at the Eket High Court for the offences of murder contrary to section 316(1), and punishable under Section 319(1) of the Criminal Code, and as accessory after the facts of murder under section 322 of the Criminal Code respectively. Both accused persons pleaded not guilty to the indictment. After trial, in which the prosecution called seven witnesses, the accused persons, gave evidence on their own behalf and called no witnesses, The learned trial Judge held that the charge against the 2nd accused having not been proved acquitted the 2nd accused. The 1st accused was convicted and sentenced to death.

The facts in support of the charge are that appellant was on the night of the 1st October, 1987 at a Disco dance at Udokop Mansion Guest House Abat in Onna Local Government Area, Also at the dance were the deceased, PW2, PW3, PW4. The deceased invited and was accompanied by PW3 to the dance, While PW1 was dancing with PW4, appellant requested to dance with PW4, PW2 obliged and left the dance hall. When appellant approached PW3, for a dance, she referred him to the deceased for permission. The deceased did not give PW3 permission and asked to look for someone else. This resulted in a quarrel between the appellant and the deceased, Appellant threatened and vowed that he would kill the deceased that night, and that he should not be called “one one” any more if he did not do so.

PW3, then advised the deceased that they should go home to avoid trouble, The deceased agreed, The deceased in front of PW3, PW2 and PW4 started going out of the dance hall in that, order. According to the evidence of PW3, as they were going; they saw appellant run past them, and caught up with the deceased: They also saw him running away from the deceased. When they arrived at the scene they found the deceased on the ground in a pool of blood, dead.

In his own defence, appellant admitted attending Disco dance on the 1st October 1987, and that he met ,PW2, PW3, PW4 and the deceased. He admitted also dancing with PW3. It was after he danced with PW3 a second time that the deceased confronted him as to why appellant should dance with PW3 a second time. According to appellant, he left PW3 and went outside to ease himself, whilst outside he saw the deceased, PW2 and others unknown to him come out of the dance hall. He said that the deceased slapped him and a fight ensued between them.

During the fight the deceased brought out a dagger threatening to use it on appellant. In the attempt by appellant to disarm the deceased, both or them fell down resulting in the deceased being wounded by the dagger.

Appellant made two extra judicial statements to the police. Exhibit A- A1 dated 4/10/87 and Exhibit B-B1 dated 14/10/87. In Exhibit A-A1, appellant did not admit stabbing the deceased. In Exhibit B – B1, he admitted stabbing the deceased.

The second accused in her own defence stated that on 4/10/87 appellant who she had never seen before ran into her house and bolted the door from behind as he was being pursued by a group of persons. The persons pursuing appellant later returned with a policeman who forced the door of the 2nd accused where appellant was hiding open and arrested the appellant. As I stated earlier, the second appellant was acquitted and discharged on the charge of being an accessory after the fact of the murder of the deceased.

Appellant was convicted and sentenced to death for murder on the first count.

Appellant’s appeal against his conviction for murder and sentence to death to the Court of Appeal was dismissed by the Court of Appeal. He has further appealed to this court on three grounds of appeal alleging errors of law in excluding the statements of the accused, accepting motive of the accused as admissible evidence and fixing the guilt of the appellant on the circumstantial evidence of PW2, PW3 and PW4.

Learned counsel for the appellant has formulated only two issues as arising form the grounds of appeal. These issues have been adopted also by learned counsel for the respondent.

The two issues are as follows:-

(1) Whether the learned Justices of the court below were right in treating Exhibit B, B1 as a confessional statement and using the same to affirm the conviction of the appellant. (Ground 1)