Akpan Uko Ekpoisong V. The State (2008)

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VICTOR. A. O . OMAGE. J.C.A. 

In this appeal the appellant in his brief filed on 12/4/06 seeks an order of reversal of the judgment of Justice E. E. Ita, delivered on 26/4/05. The 1st and 2nd accused person, who incidentally are husband and wife and parents of one Martha Okon Akpan were taken by information to the State High Court sitting in Calabar on a charge of the murder of one Martha Ukpai. The information is dated 25th October, 2004. Hearing in the charge commenced on 25th October and judgment of the court was delivered on 26th April, 2005. In this judgment of the court, the 2nd accused person Marta Okon Akpan was discharged and acquitted. The 1st accused Akpan Uko Ekpoisong was sentenced to death. It is against that judgment that the appellant has filed this appeal upon leave of the court having been granted; on the ground filed with particulars. The appellant formulated the following Issues for determination of the appeal, thus:

a) Was it the action of the appellant that caused the death of the deceased Martha Ukpai.

b) Was there a dying declaration by the Martha Ukpai

c) Was the learned trial judge consistent in his findings.

In the Respondent’s brief filed with the leave of court as it was filed out of time on 14/5/07 after the appellant had received an order in his favour for this appeal to be heard and determined on the appellant’s brief only. The Respondent filed his response. The issues formulated by the respondent in his brief are as follows:

“(1) whether it was the act of the appellant that caused the death of the deceased Martha Ukpai

(2) Whether there was a dying declaration by the deceased Martha Ukpai

(3) Whether the learned trial judge was consistent in his finding as to the cause of death”

These are the facts of the case. The 1st prosecution witness Patrick Okon Effiong deposed that as he was going to his father’s house at Adiabo Esine Ufot village, en route his place of work, he saw a crowd of people gathered at his village hall. Among them he saw the deceased Martha Ukpai on 10th June 2003. There were several people in the gathering among who was the appellant. People in the crowd were questioning a girl of about 10 years old, who told the crowd that she had been given witchcraft by Martha Ukpai. Martha Ukpai was a tenant in the house of the father of PW1. PW1 said the girl answered that she was given the witchcraft when Martha Ukpai was their neighbour in a named village at Cross River State. The Appellant, and her mother now discharged had sent her to Sapele. While in Sapele she was taken to a Church in Benin where she was declared a witch; and in Sapele she claimed to have taken about four pupils into her witchcraft cult. PW1 said, the child claimed that Martha Ukpai used to visit her on a stick, and that Ukpai had captured her brothers for killing, when the child allegedly confessed in Sapele and Benin. She was taken to her parents in Ndiabo Esime Ufot village to confront the said Martha Ukpai. PW1 said it was her confrontation and the scene of the accusation of Martha Ukpai by the parents of the allegedly confessed witch that he saw at his village hall.

From the village head, they proceeded to the clan head, where the parties were asked to pay N5000 for transportation to the Housing Estate Police Station. At the Police Station, it was the appellant and his wife who reported the incident to the head of Ibibio, before they were directed to the clan head. At the Police Station, the appellant and his wife were at first charged with assault occasioning harm, when report of the death of Martha Ukpai reached the Police, they were charged with murder. The two witnesses testified for the prosecution, three for the defence.

In this judgment as it becomes necessary the testimony of each witness will be reviewed as the issue arises.

The issues formulated by the appellant and those of the defendant are the same, I will therefore treat the two issues in each number as each arises. The first issue in both sets of the two issues formulated by this appellant and the respondent is whether the action of the appellant caused the death of the deceased Martha Ukpai. The available evidence before the court includes largely the testimony of PW1. He testified in court on Wednesday 12th January 2005. I will quote here only the material and relevant part of his evidence –

“I knew the accused persons, I knew one Martha Ukpai”